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Wiest, J.
Defendant was convicted of possessing intoxicating liquor in his cottage at a lake in Lapeer county, and reviews by writ of error.
The issue of fact in the case was whether the cottage, at the time of the raid and defendant’s arrest, was rented to and occupied by one Taylor. Defendant was in the cottage when the liquor was found but testified that he did not have anything to do with the liquor, it did not belong to him, and he was there making repairs. During the trial the prosecutor sent an officer to subpoena Taylor, and the officer, over objection, was permitted to testify that at the cottage he saw the wife of defendant just starting to go away to one of the neighbors; that Mr. Taylor was not there and he was unable to get information concerning him; that he had some conversation with Mrs. Davis, and thereafter Mrs.. Davis tried to unlock the cottage door, and he believed she unlocked it; that she had a key and “turned around and locked the door and she tried it to see if it was properly locked and went on up to the neighbors.” The prosecuting attorney stated to the court that the testimony was offered as proof of who had possession of the premises. The cottage was searched, the liquor found, and defendant arrested on October 21, 1928, and, manifestly, the issue as to possession of the cottage related solely to that date. The trial was had January 17, 1929, or quite three months later, and the acts of defendant’s wife upon the later date were sent to the jury as substantive evidence of a possession three months earlier by the defendant. The lapse of time and possibility of change of right of possession condemned the testimony.
It would establish a new and vicious rule to hold that acts of third parties subsequent to the arrest of an accused (except under his direction) may be employed as substantive evidence of the commission of an alleged offense. The testimony was inadmissible and highly prejudicial.
In the sentence defendant was required to pay costs to the amount of $400. We said in People v. Wallace, 245 Mich. 310, and now say again, that costs imposed in a criminal case must bear a true relation to the expense of the prosecution. We are well aware of the distinction between a fine and costs, and of the disposition of each by statute, but this knowledge only makes it more imperative that the function of each be observed. It is manifest from the record before us that the costs of this prosecution did not amount to the sum imposed.
Were this the only error, we would send the case back to the circuit for amendment or correction of the judgment in this particular. The other errors assigned require no discussion.
The conviction is reversed, and a new trial granted.
North, C. J., and Fead, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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Sharpe, J.
Plaintiffs brought an action against the defendants to recover on a written contract of guaranty, a copy of which was annexed to the declaration. With their plea of the general issue, defendants gave notice that the defendant Emma Endert is, and was at the time the contract was made, a married woman, the wife of the defendant Fred Endert, and that the matters referred to in no way related to her separate estate, and no consideration accrued to her therefrom.
On August 9, 1928, plaintiffs moved for summary judgment. The defendant Emma Endert filed an •affidavit of merits, in which she stated at greater length the facts set up in the notice attached to the plea, and further relied on Act No. 158, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 11488 [1] et seq.), relating to contracts made by married women and the lack of the statement required therein.
A summary judgment was entered- pursuant to the motion.- Defendants seek review by writ of error.
Plaintiffs here seek to hold the defendants jointly liable on a contract of guaranty.' Under the statute (Act No. 158, Pub. Acts 1917, Comp. Laws Supp. 1922, § 11488 [1] et seq.), the disability of married women to enter into a certain class or kind of contracts is abrogated and abolished. As a condition precedent to the creation of such liability, the statute (section 2), however, provides:
“Such instrument shall contain a statement that no undue influence or constraint has been exerted against the wife in the execution thereof. ”
The contract sued upon contained no such statement. The lack of it was averred by the defendant Emma Endert in her affidavit of merits. "Without it, her liability could not be fixed as a matter of law. As to her, the judgment must be reversed.
Counsel for the plaintiffs ask that, should we conclude that Mollie Dickman was not properly joined as a party plaintiff, “an order be entered dropping her as a party to the cause.” This may be done.
The judgment as to Emma Endert is reversed and set aside, with costs to her, and no new trial ordered. The judgment as to Fred Endert is affirmed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Sharpe, J.
The last will and testament of James Joy, of Detroit, after making several specific bequests, gave the residue of his estate to three trustees, and directed them to pay to his widow, Emilie A. Joy, “the net revenues thereof” during her lifetime, with remainder over, subject to certain other bequests, to the trustees of the Presbytery of Detroit. Mrs. Joy died on January 29,1924, leaving a will, in which Frederic W. Dennis was named executor.
Mr. Joy at the time of his death owned 1,504 shares of stock of the Detroit Copper and Brass Rolling Mills, of the par value of $25 each, and 562 shares of stock of Parke, Davis & Company, of the same par value. Both were Michigan corporations. While the estate was in the hands of the trustees, these companies paid considerable cash dividends, and in addition thereto declared stock dividends as follows: The Rolling Mills 66-2/3 per cent, on April 22, 1920, and 20 per cent, on December 12, 1922, and Parke, Davis & Company 100 per cent, on December 15, 1922.
The issue here presented is whether these stock dividends, or any part of them, belong to the estate of Mrs. Joy, the beneficiary, or to the Presbytery, the residuary legatee. The probate court awarded them to the estate of Mrs. Joy. The circuit court, on appeal, apportioned them between this estate and the residuary legatee. The residuary legatee and the executor of Mrs. Joy’s estate both seek review of the judgment entered by writ of error.
While this court has had occasion to consider wills, under the provisions of which stock dividends came into the hands of trustees, we were able from the language used to ascertain the intent of the testator as to the distribution which should be made of them. Poole v. Union Trust Co., 191 Mich. 162 (Ann. Cas. 1918 E, 622); Billings v. Dobbins, 221 Mich. 395; Mackellar v. Stebbins, 244 Mich. 170. This will contains no expression of such an intent as will justify us in resting decision thereon.
In common practice, a corporation engaged in business distributes its net earnings to its stockholders at regular intervals in what are called ordinary cash dividends, retaining a part thereof, either for the purpose of security against possible future losses and business depression or for additional working capital, in a fund which is usually referred to as surplus. These cash dividends are, of course, properly treated as income. Until so distributed, the surplus is the property of the corporation the same as other corporate assets, and may be employed as capital. The .stockholder is not entitled to any portion of it except that he may have an equitable right to insist that a part of it be divided among the several stockholders. Dodge v. Ford Motor Co., 204 Mich. 459 (3 A. L. R. 413). Occasionally, an extraordinary dividend, either in cash or stock, is declared. By the former, a part of the surplus, in addition to the regular cash dividend, is distributed. By the latter, the corporation capitalizes a part of its surplus by transferring it to fixed capital, and to the extent thereof it issues additional capital stock pro rata among its stockholders by a stock dividend. It is with the latter that we are here concerned, and the question presented is whether the stock dividends paid to the trustees should be distributed to those to whom the income from the trust property is given or is capital to be awarded to those entitled to the corpus or principal of the trust fund on the termination thereof, or whether a part thereof is income and a part capital, to be distributed to those respectively entitled thereto.
Out of the many theories presented to and considered by the courts of this country, three several rules have been adopted governing such distributions. Under what is known as the Kentucky rule, such dividends, “whether of stock or payable in money, are non-apportionable, and must be considered as accruing in their entirety as of the date when they are declared” (Cox v. Gaulbert’s Trustee, 148 Ky. 407, 414 [147 S. W. 25, 28]), and are awarded to the life beneficiary. This rule finds support in the decisions in the State of Delaware, and in the early decisions in the State of New York.
The supreme court of Massachusetts, in Minot v. Paine, 99 Mass. 101, 108 (96 Am. Dec. 705). early announced:
“A simple rule is, to regard cash dividends, however large, as income, and stock dividends, however made, as capital.”
This may fairly be said to be the rule adopted by the English courts, and by the supreme court of the United States (Gibbons v. Mahon, 136 U. S. 549 [10 Sup. Ct. 1057], reaffirmed in Towne v. Eisner, 245 U. S. 418 [38 Sup. Ct. 158, L. R. A. 1918D, 254], and Eisner v. Macomber, 252 U. S. 189 [40 Sup. Ct. 189, 9 A. L. R. 1570]), and by tbe courts of last resort in the following States: Connecticut, Georgia, Illinois, Maine, North Carolina, Ohio, Rhode Island, and West Virginia.
What is spoken of as the Pennsylvania rule was first announced in Earp’s Appeal, 28 Pa. 368. It is thus stated in Smith’s Estate, 140 Pa. 344, 352 (21 Atl. 438, 23 Am. St. Rep. 237):
“It is well settled in this State that, when the stock of a corporation is by the will of a decedent given in trust, the income thereof for the use of a beneficiary for life, with remainder over, the surplus profits, which have accumulated in the lifetime of the testator but which are not divided until after his death, belong to the corpus of his estate; whilst the dividends of earnings made after his death are income, and are payable to the life-tenant, no 'matter whether the dividend.be in cash, or scrip, or stock.”
This rule has béen consistently adhered to by the supreme court of that State, and may fairly be said to have been adopted by the courts of last resort in California, Maryland, Minnesota, New Hampshire, New Jersey, New York, South Carolina, Vermont, and Wisconsin. The decisions of these courts, as well as those favoring the Kentucky and Massachusetts rules, are reviewed at length in a copious note of many pages in 24 A. L. R., beginning on page 9, and need not be particularly cited in this opinion.
The Massachusetts rule is said to be arbitrary and inequitable; that it does not work justice as between the beneficiaries entitled to the income and the remaindermen. Rules of law, when not fixed by statute, are established to provide regulations for the orderly transaction of business by persons affected by them. They should be simple and easily understandable, and, when applicable to business transactions, should be as practical as the circumstances will permit. That such a result is reached by applying the Massachusetts rule admits of no doubt. When governed by it, a trustee may always be certain that he is right in the disbursements made by him. In the sense that he has no discretion, it is arbitrary. But, in common thought, we apprehend that the average man regards cash dividends as income and stock dividends as additions to his capital, and that he has this in mind when establishing a trust of this nature. If, however, he desires that the income beneficiary shall receive the whole or any part of the stock dividends distributed during the trust period, he may so direct, and the trustee will be governed thereby.
So much has been written in support of these several rules that we would but substitute words if we were to cover the whole field of thought thereon. In D’Ooge v. Leeds, 176 Mass. 558, 560 (57 N. E. 1025), the court said:
“In considering the distribution to determine its character, substance and not form is regarded. The .simple question in every case is whether the distribution made by the corporation is of money to be spent as income,' or is of capital to be held as an investment in the corporation. While this arbitrary rule may sometimes defeat the intention of the testator, in most cases it accomplishes the result intended, and there were practical considerations as well as principles which required the adoption of it. The property of a corporation, in whatever way obtained, belongs, in the first instance, to the corporation and not to the stockholder's. It may be used and managed as the interests of the corporation require. Sometimes it is desirable to divide the greater part of the earnings as income as soon as they are received. Sometimes it is important to retain large accumulations of earnings as additions to the original property and to make them a part of the permanent capitalization. Often it is desirable to keep in the business a large surplus to provide for losses or other contingencies which cannot be foreseen. For these reasons, as well as because of ownership, it is well that corporations should be permitted to determine for themselves how much of their earnings they will divide as income and how much they will retain as capital.
“Courts have often suggested the desirability of ascertaining whether the distribution in question is from a surplus accumulated prior to the creation of the trust, or from one accumulated during’ its continuance. Many decisions in England have been affected more or lesá by this consideration. See Bouch v. Sproule, 12 App. Cas. 385 (24 A. L. R. 24, note), and Sproule v. Bouch, 29 Ch. D. 635, and cases cited. But in Massachusetts, and we think now in England, it is held to be impracticable in most cases to conduct such an inquiry in the courts with justice to the parties. It would often be impossible to tell what part of an apparent surplus on hand at a particular time was needed for the protection of the capital, or to determine just when the surplus was earned. The conditions which create expenses often come into existence a long time before the expenditures are made, and the returns of one period are often the fruit of effort or outlay made long before. In cases of corporations, therefore, our court does not inquire further than to ascertain whether the distribution is of money to be used as income, or is of capital to be continued in the business,”
Mn Gibbons v. Mahon, supra, an appeál from the supreme court of the District of Columbia involving a similar question to that here presented, the court said (page 558 [10 Sup. Ct. 1058]):
“Money earned by a corporation remains the property of the corporation, and does not become the property of the stockholders, unless and until it is distributed among them by the corporation. The corporation may treat it and deal with it either as profits of its business, or as an addition to its capital. Acting in good faith and for the best interests of all concerned, the corporation may distribute its earnings at once to the stockholders as income; or it may reserve part of the earnings of a prosperous year to make up for a possible lack of profits in future years; or it may retain portions of its earnings and allow them to accumulate, and then invest them in its own works and plant, so as to secure and increase the permanent value of its property.
“Which of these courses shall be pursued is to be determined by the directors, with due regard to the condition of the company’s property and affairs as a whole; and, unless in case of fraud or bad faith on their part, their discretion in this respect cannot be controlled by the courts, even at the suit of owners of preferred stock, entitled by express agreement with the corporation to dividends at a certain yearly rate, ‘in preference to the payment of any dividend on the common stock, but dependent on the profits of each particular year, as declared by the board of directors.’ New York, etc., Railroad Co. v. Nickals, 119 U. S. 296 (7 Sup. Ct. 209).
“Reserved and accumulated earnings, so long as they are held and invested by the corporation, being-part of its corporate property, it follows that the interest therein, represented by each share, is capital, and not income, of that share, as between the tenant for life and the remainderman, leghl or equitable, thereof.
“Whether the gains and profits of a corporation should be so invested and apportioned as to increase the value of each share of stock, for the benefit of all persons interested in it, either for a term of life or of years, or by way of remainder in fee; or should be distributed and paid out as income, to the tenant for life or for years, excluding the remainderman from any participation-therein; is a question to be determined by the action of the corporation itself, at such times and in such manner as the fair and honest. administration of its whole property and business may require or permit, and by a rule applicable to all holders of like shares of its stock; and cannot, without producing great embarrassment and inconvenience, be left open to be tried and determined by the courts, as often as it may be litigated between persons claiming successive interests under a trust created by the will of a single shareholder, and by a distinct and separate investigation, through a master in chancery or otherwise, of the affairs and accounts of the corporation, as of the dates when the provisions of the will of that shareholder take effect, and with regard to his shares only.”
A stock dividend does not work a severance of earnings from other corporate assets. What belonged to the corporation still remains such. When the surplus was capitalized, its earning power was in no way lessened. The beneficiary would thereafter be entitled to receive the income derived by the trustees from this additional stock held by them. Should the whole or any part of the stock dividend have been allotted to her, she would then have had an integral interest in the assets of the corporation, which she might have disposed of at will. If the purpose of the trust was to protect against a spendthrift child, as it might well have been by the language used, the force of this reasoning would be apparent.
Another result of the application of this rule may be noted: Suppose the trust provides for the payment of the income to A for life and thereafter to B for life, and let us assume that the estate consists of 100 shares of stock in a corporation. If, during the lifetime of A, a stock dividend of 100 per cent, be declared which does not impair the actual value of the stock, A would be entitled to it, and would thereafter receive the cash dividends from the 200 shares, while B, his successor in the trust, after A’s death, would receive such dividends on but 100 shares and A’s estate on the other 100. Can it be assumed that the creator of such a trust would not be equally desirous of securing an income from the entire stock interest to B as to A?
The object sought to be attained by the Pennsylvania rule is .praiseworthy. It seeks to do justice between the life beneficiary arid the remainderman by apportioning the amount of the stock dividend between them, if earned partly before and partly after the death of the testator.
In Re Heaton’s Estate, 89 Vt. 550, 563 (96 Atl. 21, 27, L. R. A. 1916D, 201, 207), the court said:
“The courts that reject the Massachusetts' rule generally agree that the action of the corporation converting earnings into capital gives them that character for all corporate purposes, but they hold that the action of the corporation does not bind the life tenant and remainderman and that either can always show the true nature and source of the dividend in spite of any act or declaration of the corporation. ’ ’
But should the “act or declaration of the corporation” be disregarded? It must be assumed that a testator who holds stock in a corporation is familiar with corporate law and corporate management; that he realizes that any accumulated surplus belongs to the corporation, and that the individual stockholders have no enforceable right to any part thereof (ex- eept as heretofore stated) unless it be apportioned to them by action of the board of directors; that such board may distribute the whole or any part thereof by declaring a cash dividend, or may capitalize any part of it by declaring a stock dividend. As was said by an English court in Bouch v. Sproule, L. R. 12 App. Cas. 385, 397 (24 A. L. R. 24, note):
“When a testator or settlor directs or permits the subject of his disposition to remain as shares or stocks in a company which has the power either of distributing its profits as dividend or of converting them into capital, and the company validly exercises this power, such exercise of its power is binding on all persons interested under the testator or settlor in the shares, and consequently what is paid by the company as dividend goes to the tenant for life, and what is paid by the company to the shareholder as capital, or appropriated as an increase of the capital stock in the concern, enures to the benefit of all who are interested in the capital. ’ ’
It is also .said that the rule of apportionment is but the enforcement of the unexpressed but apparent intention of the testator.
“And then after all, the rule for the determination of controversies over dividends, between life tenants and remaindermen', should be to give to each just what the donor intended each to have. As has been said, the intent of the grantor or testator is the pole star for the guidance of the courts.” Boyer’s Appeal, 224 Pa. 144, 153 (73 Atl. 320, 323).
We are not impressed that an intention to make an apportionable distribution can be so inferred. We apprehend that the ordinary person, when making provision for the payment of “net revenues” from the stock of corporations, will understand that it means- the cash dividends payable therefrom. Should he have received a stock dividend during his lifetime, he would not consider it as income. It could hardly be called an addition to his original investment, as by it he secures no greater interest in the assets of the corporation than he had before.
“Far from being a realization of profits of the stockholder, it tends rather to postpone such realization, in that the fund represented by the new stock has been transferred from surplus to capital, and no longer is available for actual distribution.” Eisner v. Macomber, supra.
The practical difficulties which have been met with in applying the apportionment rule have been referred to in many cases. These are strikingly illustrated by a consideration of some of the decisions of the supreme court of Pennsylvania, in which the rule was first announced. Under it the trustee must determine when the earnings, were accumulated. To that end he must fix a definite value upon the stock at the time of the testator’s death, or at the beginning of the trust, and at the time the dividend is declared. If the effect of the dividend does not reduce the value of the stock, then all of such dividend is income. If the value is reduced, then, to the extent of the reduction, the stock dividend is capital and the balance income. But how shall the trustee ascertain such values? In Earp’s Appeal, supra, the question was determined by a comparison of the market values. In Smith’s Estate, supra, it was said: Pa. 264 (24 Am. Rep. 1154); Biddle’s Appeal, 99 Pa. 278. It is the intrinsic value of the shares, to be ascertained from the amount and value of the assets at the death of the testator, and at the time of the increase of the stock, which governs in the apportionment of the surplus profits.”
“It is true the market value of the shares was not greatly, if any, impaired by the increase, but the question of value is to be determined, not by the fluctuations of the stock market, but by the actual assets held by the corporation: Moss’s Appeal, 83
In Eisner’s Estate, 175 Pa. 143, 147 (34 Atl. 577, 579), it was said that “market values are no criterion.” In Stokes’ Estate (No. 2), 240 Pa. 288, 291 (87 Atl. 975, 976), the court said:
“The method pursued was that of taking the par value of the stock, and the surplus as it stood at the periods of comparison. For the purpose of a comparison of the real value of the assets, at the two periods, this method seems to be satisfactory.”
This is but another way of stating that “book value” must control. That the writer of the note in 24 A. L. R. 9, heretofore referred to, so understood it is apparent from the quotation therefrom in Mackellar v. Stebbins, supra. But in Thompson’s Estate, 262 Pa. 278 (105 Atl. 273), it was said that the court was not concerned with book value; that actual value alone should be considered. In Dickinson’s Estate, 285 Pa. 449, 452 (132 Atl. 352), the “liquidating value of the stock” was referred to as a basis for making the comparison, and in Jones v. Integrity Trust Co., 292 Pa. 149, 155 (140 Atl. 862, 864), the court said:
“that the ‘going concern’ value is a matter to which full weight must be given, is no longer an open question.”
And added:
“Market value has nothing to do with such distributions ; under all the situations which arise only ’ the intact value is to be considered.”
In Re Osborne, 209 N. Y. 450 (103 N. E. 723, 50 L. R. A. [N. S.] 510, Ann. Cas. 1915A, 298), the court at first directed that the percentage of the stock dividend which had accumulated after the commencement of the life estate should be treated as income and fixed the fractional amount thereof, but, on rehearing, said that such direction “was erroneous;” that,
“If the dividend is in stock the amount of impairment in money must be divided by the intrinsic value of a share of the new stock, and the quotient gives the number of shares to be retained to make the impairment good — the remaining shares going to the life beneficiary.”
And added:
“Market value, good will and like considerations cannot be considered in apportioning a dividend.”
The trustee must, however, under the apportionment rule, make a comparison of values at the inception of the life estáte and the declaration of the stock dividend. Assuming that he must determine the real or actual intrinsic value, in which value as a “going-concern” should be considered, we know of no method by which he may do so. While he might secure access to the books of the corporation, unless it be a foreign one, it would, we think, be impossible for him, or an accountant whom he might employ, to determine therefrom just when its earnings were accumulated, its losses sustained, or the increase in value of its assets occurred, and these must be specifically fixed as of the date when the values of the stock are to be determined. The value as a “going concern” might be largely increased or lessened from year to year by a change in corporate management.
'This difficulty is further illustrated by the fact that in the case before us eminent counsel represent ing the life beneficiary, the residuary legatee, and the trustees of the estate disagree with the trial court and with each other in the application of the apportionment rule. That such a disagreement may at times be expected appears from the opening paragraph in Jones v. Integrity Trust Co., supra (a case decided by the court which originated the rule, and in which it has been enforced for more than 70 years):
‘ ‘ The question involved in this case is: How shall certain stock, received by the defendant trust estate as the result of an extraordinary stock dividend of twenty-five per cent., be divided between the corpus of the trust and the life tenant who is entitled to the income thereof? To this, the court below, appellant and appellee have each given a different answer. It is certain, therefore, that two of them must be wrong; in reality all three are.”
The distinction between these several rules may be thus stated: Under the Massachusetts' rule, a stock dividend, declared during the life interest, whether earned partly before or partly during such life interest, goes in its entirety to the corpus of the estate; under the Kentucky rule, it is treated as income and goes to the life beneficiary; and, under the Pennsylvania rule, it is apportioned between the corpus and the life beneficiary in such a way as to prevent loss to the corpus by a reduction of the actual intrinsic value ofi the shares as of the date when the life interest accrued.
These rules are also applicable ■ to extraordinary cash dividends. While the Massachusetts rule may in some cases work a hardship to the life beneficiary in the distribution of a stock dividend, it may also greatly benefit such beneficiary in the distribution of an extraordinary cash dividend, as the surplus from which it is distributed may represent earnings accumulated before the inception of the trust estate.
After due consideration of the reasons advanced by so many of our State courts for adoption of the Pennsylvania rule, we are of the opinion that Michigan should align itself with those in accord with the Massachusetts rule. In arriving at this conclusion, we are doubtless somewhat influenced by the practical difficulties, heretofore pointed out, which have been met with in applying a rule which provides for apportionment. When a testator may so easily express his intent with respect to such dividends, his failure to do so should not impose upon a trustee the necessity of securing decision by review in this court before he can safely make disbursement of the dividends received by him.
The rule once adopted in a State becomes a rule of property, and courts have been unwilling to change it. In Ballantine v. Young, 79 N. J. Eq. 70, 74 (81 Atl. 119, 120),, the court said:
“As a matter of logic, it is difficult to resist the reasoning leading to the conclusion that stock dividends are, in fact, principal; for the life tenant, as is universally held, is not, in the absence of fraud, or improper conduct, entitled to the earnings until they are distributed. They are not, in fact, distributed, but, on the contrary, put permanently into capital account when new stock is, without any money equivalent, allotted to the whole body of stockholders.”
It was, however, further said that “discussion is out of place” for the reason that an earlier decision (Ashhurst v. Potter, 29 N. J. Eq. 625), applying the apportionment rule, was controlling. “While this latter case stands, there cannot be any doubt as to what this court must do. ’ ’
In Stokes’ Estate (No. 1), 240 Pa. 277, 282 (87 Atl. 971, 973), after referring to and stating the Massachusetts rule, it was said:
“If such a rule is desired in Pennsylvania, we think the change should be made by the legislature rather than by the courts.”
It may be here noted that the legislature of the State of New York, in which State the courts at first seemed to follow the Kentucky rule (In re Kernochan, 104 N. Y. 618 [11 N. E. 149]), and later the Pennsylvania rule (In re Osborne, supra), amended its personal property law by adding the following section thereto:
“Unless otherwise provided in a will, deed or other instrument, which shall hereafter be executed and shall create or declare a trust, any dividend which shall be payable in the stock of the corporation or association declaring or authorizing such dividend and which shall be declared or authorized hereafter in respect of any stock of such corporation composing, in whole or in part, the principal of such trust, shall be principal and not income of such trust. The addition of any such stock dividend to the principal of such trust, as above provided, shall not be deemed an accumulation of income within the meaning of this article.” Laws of New York, 1926, Chap. 843.
The judgment entered will be reversed and set aside, and the cause remanded to the trial court with direction to enter a judgment directing the probate court for the county of "Wayne to enter an order awarding the stock dividends in question to the residuary legatee.' Both parties having appealed, no costs will be allowed.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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McDonald, J.
The plaintiff has brought error to review a judgment disallowing the will of Rosette Bliss, who died April 29, 1927, leaving the major portion of her estate to Leslie Cliff, a nephew. He was named executor, and, on the death of the testatrix, presented the will in question for probate. Objections were filed by Frank Bliss, the only child of the testatrix. He was left nothing by the will. The grounds for his objections were that the will was the result of mental incompetency and undue influence. These questions were tried out by a jury in the circuit court, who returned a verdict disallowing the will. At the conclusion of the proofs, the plaintiff moved for a directed verdict on the ground that the evidence presented no question for the jury. The denial of this motion is the first question discussed in plaintiff’s brief.
On the 12th of April, 1927, the testatrix was taken sick with acute mastoid infection. She was operated on in the evening of the 21st, and died on the 29th. Dr. Biker, of Pontiac, was her attending physician. He began to treat her on the 12th. She gradually grew worse. On the 18th, he said she had a temperature of 104, that there were signs of cranial pressure, that she was delirious at times, and, 'like the majority of mastoid patients, her mental condition was “very poor.” On the 19th, the day the will was executed, she was worse. She suffered great pain, so much that opiates would not relieve her. She was “desperately ill” on that day. The doctor testified:
“She had this so-called mastoid with such a severe acute infection that she had a temperature of 104; she was drowsy all the time. * * * I would say that her condition was gradually progressing, worse from the 18th to the 19th, and that her condition in between, although she might possibly have had rational times at some time, nevertheless she was in such severe pain, high temperature as it comes on with mastoid, I would say that she was gradually getting worse and probably just as bad in between as the time I saw her, * * * Prom the condition I found when I operated, in my opinion I think it was developing for the last ten days or two .weeks, gradually. The condition that I found would indicate that the mental processes had been interfered with as regards, her judgment. In my opinion, I believe the diseased condition would affect her judgment and her mentality. Over a period from the time I saw her on the 18th until the time of the operation, any time during that. * * * She had a very severe mastoid. The whole mastoid process was diseased, filled with pus, and eat on into all the cells, extending down the tube of the mastoid and extending up in the brain, and we uncovered from one-fourth to one-half inch of the dura of the brain because the pus had eaten the bone of the skull at that point, and so I uncovered that in order to get drainage and she wouldn’t get any cranial lesion.”
Following this, the doctor gave his opinion that when she executed the instrument in question April 19th, the testatrix did not have sufficient mental capacity to engage in any business transaction that would require the “exercise of the reasoning faculties and a continuing line of thought.” His opinion was based on his observations as her attending physician and on the condition disclosed by the operation. The doctor’s testimony made a.case for the jury on the question of mental incompetency.
Error is assigned on the charge of the court relative to the application of the so-called rule of natural justice. This rule has no application to the facts of the case, and the court was wrong in instructing the jury that they might consider it. Frank Bliss, the only child of testatrix, was 50 years of age and upwards at the time the will was executed. He was married. He had no mental or physical infirmity, and was well able to care for himself. In view of these facts, his mother was under no legal obligation to leave him any part of her estate. Rivard v. Rivard, 109 Mich. 98 (63 Am. St. Rep. 566); In re Allen’s Estate, 230 Mich. 584.
Qn this question, the trial court correctly charged the jury in accordance with the rule stated in Re Allen’s Estate, supra, but he immediately thereafter qualified his instruction with the statement that they might consider the fact that the testatrix did not leave her property to “her only son, and only child,” that while that fact was not' of itself sufficient to establish mental incompetency, it was proper for them to consider it in connection with the other facts and circumstances. This was reversible error. If she had sufficient mental capacity to understand her relationship to her son, it was immaterial that she devised him nothing.
There was no evidence as to insane delusions or undue influence, and it was error for the court to submit these questions to the jury.
The judgment is reversed, and a hew trial granted, with costs against the contestant.
North, C. J., and Fead, Fellows, "Wiest, Clark, and Sharpe, JJ., concurred with McDonald, J. | [
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McDonald, J.
The purpose of this suit was to restrain the defendant from erecting a business building on a lot in the city of Lansing in violation of a zoning ordinance which prohibits the erecting of any building within that area except for residential use.
On April 16, 1927, under the ordinance then in effect, the defendant was refused a permit for the erection of the building. He instituted mandamus proceedings, with the result that the ordinance was held to be invalid and the city was compelled to issue the permit. On June 13, 1927, a valid ordinance covering the same subject-matter was passed by the common council. This ordinance became effective on July 24, 1927. On August 10th, the city returned the defendant’s license fee and advised him that his permit had been revoked. The defendant ignored this notice and the plaintiffs began suit. The defendant justifies his position on the theory that, in reliance on a valid ordinance, he had made substan tial expenditures of' time and money, and had thus created vested property rights which could not be destroyed by the ordinance subsequently enacted. On the hearing, the circuit judge found for the plaintiffs and entered a decree restraining the construction of the building. From this decree the defendant has appealed.
In the exercise of its police power, the city of Lansing had a right to enact the ordinance in question, but this right was subject to vested property interests acquired before its enactment. The defendant contends that he has such interests and that he acquired them in reliance on a valid permit. We would be inclined to agree with him if before the enactment of the ordinance he had done anything of a substantial character towards the construction of the building. There was an old barn and house on the lot. He sold the barn and had it torn down. This he says was no loss to him. As to the old house, he testified:
“I moved the old building away to a wall on the corner to make an apartment house of it. So far as the old building was concerned, it was no loss to me in its use or its income. It was simply moved to another portion of the property to be repaired and employed as an apartment. It has been a loss so far as it stood there. Outside of the removal of the old building from this location, there was nothing done with the construction of the new building until about a week or ten days previous to October 22d, the date of the first check to Mr. Bearup.”
It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the defendant had been notified that his permit had been revoked. If he had constructed the building or partially constructed it, if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights. But he did nothing of a substantial character. He went no farther than to order the plans and cause a survey to be made of the lot. This preliminary work was not sufficient to create a vested right to erect the building. In Rice v. Van Vranken, 229 N. Y. Supp. 32, a similar claim was asserted. There the defendant had made expenditures of money for plans and specifications, for building -materials and for financing a building. The court' said:
“In view of the fact that no work had been commenced and no building erected or in course of construction by defendant when the ordinance became effective, the expenditures made and the obligations incurred by him in reliance upon such permits, prior and subsequently to the enactment of the zoning ordinance, are insufficient to give him a vested right to erect these apartment houses in violation thereof. * * * Evidently the test in each case as to whether a holder of a permit has acquired vested rights thereunder is, not whether he has spent much or little in reliance upon it, but rather whether there has been any tangible change in the land itself by excavation and construction.”
It is our conclusion that the defendant acquired no vested right to erect this building in violation of the zoning ordinance.
It is further urged by the defendant that the plaintiffs are estopped from maintaining this suit because of their laches. This contention is without merit. The building which the defendant proposed to construct was to contain seven apartments and four stores. The building of an apartment in that location would not offend the zoning ordinance. The building of stores would. Until the excavation was finished and the footings put in, which was late in October, the plaintiffs could not he sure that the building was to contain stores. They filed this bill on the 2d of November. There was no unreasonable delay.
The circuit judge correctly disposed of the issue. A decree will he entered in accordance herewith, with costs to plaintiffs.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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] |
Potter, J.
Plaintiff sued defendant in assumpsit in justice’s court. The summons issued was re turned unserved. An alias summons was issued and returned with proof of inability to find defendant within the jurisdiction of the court and of substituted service by leaving a copy of the summons at defendant’s last place of abode within the county, in the presence of a member of defendant’s family of suitable age and discretion, who was informed of its contents. Defendant did not appear before the justice of the peace on the return day of the alias summons, and after waiting one hour, the case was called by the justice and judgment rendered for plaintiff against defendant, which judgment has not been paid. Later a transcript of this judgment was taken from the justice’s court and filed in the circuit court for Oakland county, and a writ of garnishment issued to the village of Clawson. The garnishee defendant disclosed indebtedness to various persons, including the principal defendant. Defendant moved to quash the garnishment proceedings because there was no valid judgment against him, which motion was granted, and plaintiff brings error.
The question involved is whether a personal judgment rendered by a justice of the peace against a resident defendant, based upon a return of service of the summons upon the defendant by leaving a copy thereof at defendant’s last place of abode in the presence of some one of the family of suitable age and discretion who is informed of its contents, is a valid judgment.
Defendant contends that personal service under the circumstances is essential to a personal judgment. 3 Comp. Laws 1915, § 14186, provides for the issuance of a summons and the service thereof upon the defendant by delivering to him a copy thereof. If defendant shall not be found, such summons shall be served by leaving a copy thereof at the defendant’s last place of abode in the presence of some one of the family of suitable age and discretion who shall be informed of its contents. 3 Comp. Laws 1915, § 14189, provides if it appear by the return that the summons was not personally served and defendant shall not appear on the return day thereof the plaintiff may thereupon take out a new summons against defendant in continuation of his suit; and if such summons be returned that the defendant cannot be found, after diligent inquiry, the plaintiff may, in further continuance of his suit, have an attachment against the defendant.
The statute authorizing substituted service of process must be strictly complied with in order to confer jurisdiction upon the court. Campau v. Charbeneau, 105 Mich. 422. The jurisdiction of the justice must affirmatively appear. Without a valid service of the writ or an appearance by defendant, he has no jurisdiction to proceed to judgment. Vliet v. Westenhaver, 42 Mich. 593; Harbour v. Eldred, 107 Mich. 95; Frank v. Brown, 119 Mich. 631.
Manifestly, a judgment based upon a return which does not show a valid service would be void, and all proceedings in a case where there has not been a valid service are null. Harbour v. Eldred, supra.
In this case there was no personal service upon sthe defendant. There was no appearance by the defendant. There was no attachment issued in further continuance of plaintiff’s suit. The justice did not acquire jurisdiction of defendant. The judgment rendered by him was void. The question of its validity was properly raised and properly disposed of by the trial court.
Judgment affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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] |
Potter, J.
Plaintiffs brought summary proceedings against defendants. There was judgment for plaintiffs. Defendants bring error claiming want of jurisdiction because of no personal service of summons on defendants. The attorneys for the parties stipulated in writing to continue the case from August 6, 1928, to August 13, 1928. Such stipulation for continuance amounts to a general appearance. 4 C. J. p. 1345; Waldron v. Palmer, 104 Mich. 556. The circuit court commissioner acquired jurisdiction. A general appeal was taken to the circuit court. This amounted to a general appearance (4 C. J. p. 1346), and conferred jurisdiction on the circuit court, judgment affirmed, with costs.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. | [
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North, C. J.
The plaintiff in this case filed a bill for separate maintenance, charging that the defend ant was guilty of extreme cruelty. He filed an answer and a cross-bill wherein the charge of extreme cruelty was made against the plaintiff and a decree of divorce sought by the defendant. At the hearing of the case the plaintiff filed a petition to amend her bill of complaint by adding thereto a prayer for divorce. The amendment was filed and at the conclusion of the proofs plaintiff was granted a decree of divorce, awarded alimony, and given the custody of three minor children. The defendant has appealed.
It is contended that the amendment changed plaintiff’s cause of action, and, further, that the defendant was taken by surprise in that he was not prepared to produce proof touching the property rights of the respective parties. We are not seriously impressed with the defendant’s claim that he was taken by surprise because the amendment changed the issues as to property rights involved. These same questions were presented for adjudication by defendant’s cross-bill wherein he sought a divorce. At the time plaintiff sought permission of the trial court to amend her bill of complaint no objection was made by the defendant and no application made for a continuance. In fact, the question does not seem to have been raised in any way in the lower court, and the defendant is in no position to complain at this late date.
On the merits of the case, the defendant contends in this court that the proofs show each of these parties was guilty of wrongdoing touching their domestic relations, and that while the defendant may have been the greater offender in this' regard, still it is maintained that the record is such that relief should be denied to each of the parties. Without reviewing the testimony in detail, it is sufficient to say that while there is evidence of some use of rough language by the plaintiff, and possibly some pugnacious conduct on her part, still a ■careful consideration of the whole record thoroughly convinces us that the defendant’s intemperate habits and his brutal conduct towards his family have produced an intolerable condition in this home, and that the plaintiff has abundantly established her right to a divorce on the ground of extreme cruelty.
The remaining question is whether a just disposition was made of the property rights of these parties. Six children were born of this marriage, three of whom were under 16 years of age at the time of the hearing. The decree provided that the defendant should pay to the plaintiff $2.50 per week for each of the three youngest children, payments to continue until they respectively become 16 years of age. It also provided that the defendant should pay to the plaintiff $4,000 in annual installments of $500. The household goods were divided between these parties. No complaint is made by the defendant as to the weekly allowance provided for the children or the division of the household property; but he does contend that the $4,000 alimony awarded to the wife is excessive.
The property possessed by these parties is about as follows: Subject to a $1,500 mortgage, they aré the owners as tenants by the entireties of 80 acres of land which in part is occupied by vineyards and fruit orchards. The testimony is in conflict as to its value. It was purchased by the parties in 1920 for $7,500. This, however, included the purchase price of some personal property. It is contended by the defendant it is worth at the present time no more than the parties paid for it. One expert witness testifying for the defendant placed the value at $8,500. On the other hand, plaintiff’s witnesses fixed the value at figures varying from $8,500 to $12,000.- The defendant is also possessed of an endowment policy which at the time of the trial had a cash surrender value of $2,418. The personal property on the farm other than that above mentioned was awarded to the defendant, and in value is said to be about equal to his outstanding unsecured indebtedness.
It is our judgment that, under the circumstances of this case, the amount awarded to the wife is too large and that it places a financial obligation upon the defendant which he will not be able to meet. The decree will be modified by reducing the amount to be paid to the plaintiff by the defendant to $3,000, as follows: $500 within 30 days after the decree herein, $500 annually thereafter until the entire sum of $3,000 is paid, and interest at the rate of 5 per cent, per annum on the unpaid portion shall be paid annually; the payment of principal and interest to be secured by a lien on the real estate owned by these parties. Subject to the above modification, the decree taken in the circuit is affirmed, without costs in this court to either party.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Wiest, J.
The bill in this case was filed to obtain rescission of an assignment of a land contract interest in premises, held by plaintiff, on the ground of fraud perpetrated by defendant John Niemiec. At the hearing in the circuit, the bill was amended to include household furniture, store fixtures, and an automobile. In the circuit the bill was dismissed, and the case is here by appeal of plaintiff.
Plaintiff was born in Poland, and at the time of the hearing in the circuit, was 50 years of age, and had been in this country for 28 years, without being able, she claimed, to speak or understand the English language. In 1910, plaintiff and her then husband, Charles Niemiec, purchased the premises in suit under land contract. Charles Niemiec died in October, 1921, and plaintiff, as survivor, took the contract interest. At that time there was due on the land contract the principal sum of $7,200 and a paving tax of about $1,300, to be paid in installments. The property was then worth somewhere around $12,000 or $13,000. Plaintiff’s husband, Charles Niemiec, had conducted a saloon upon the premises, and the building had bar fixtures and another part thereof was occupied and furnished as living rooms. At the time of her husband’s death plaintiff found his affairs somewhat involved. Plaintiff called in her husband’s nephew, John Niemiec, to take charge of affairs, and, not then contemplating another marriage, evidently planned that, if she turned over to John Niemiec the store property and business, she could make her home there and she would be relieved of business management and payments upon the land contract. Her husband owed a bank $1,000, and John Niemiec $1,000. Plaintiff’s husband, Charles Niemiec, carried life insurance, and, upon his death, the amount thereof was paid to her. In December, 1921, plaintiff assigned the land contract to defendant John Niemiec, gave him a bill of' sale of the furniture and fixtures, paid him the $1,000 her late husband owed him, and John Niemiec assumed the $7,200 due on the land contract and the paving tax and gave plaintiff his note for $2,228, due in five years, without interest. At that time it was thought the paving tax amounted to $1,500.
Plaintiff made a bad bargain, but failed at the hearing to establish fraud. We are persuaded that she comprehended the transaction, of which she now complains, and was willing at the time thereof to have the same consummated. She made a poor witness in court, and her asserted want of understanding of the deal with defendant was not borne out by the proofs. She admitted that she knew right after the deal that she had been defrauded, yet, at the hearing, she repeatedly stated that she did not know what was done.
After the deal there came a change. Eleven months after her husband’s death she married a man, many years her junior, after a courtship of five weeks, and immediately the new husband was alert in trying to get back the property. This husband was very active, and we think much of plaintiff’s discontent with the bargain and her desire to get the property back is traceable to his desires.
At the hearing, in February, 1926, it was claimed that the bar fixtures, household furniture, and other personal property, turned over to defendant John Niemiec in 1921, were worth $5,105. Examination of the list of the articles, with estimated values annexed, taxes one’s patience. We need mention but three: Phonograph, with 200 records, $175; saloon bar $1,000; lumber (not otherwise described) $1,000. In 1917 prohibition rendered saloon bars of little value, except for decorative purposes or a reminder of present uselessness.
Our disposition of the case renders it unnecessary to fix values upon the chattels. The value, however, was but a tithe of that claimed. It would benefit no one to give a lengthy review of the evidence.
The defendant Mathilda Kaiser is not interested in this suit.
An examination of this record leads us to affirm the decree, with costs to defendants.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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North, C. J.
Two suits brought by plaintiff against the defendants have been consolidated. In March, 1919, plaintiff’s decedent, W. D. Keefe, consummated contracts with the respective defendants whereby he undertook the sale of pianos manufactured by them and received by him on consignment. The decedent will be referred to herein as the plaintiff. By the terms of the contracts plaintiff was to settle for the pianos consigned to him within four months from the date of shipment. The prices of the pianos for which the plaintiff was to account were fixed by a list agreed upon between him and the respective defendants; but the prices at which the pianos were sold to the ultimate purchasers were fixed by Mr. Keefe. Some of the pianos were sold for cash and some were disposed of on leases or title-retaining contracts. Under the Bush & Lane contract unpaid portions of the purchase price bore interest at 6 per cent, per annum beginning four months after the date of shipment, and the Farrand Company contract provided for a like interest charge beginning 60 days after shipment. Beginning four months after shipment, plaintiff was also charged with a “carrying charge” of one-half of one per cent, per month on such unpaid balance until the portion of the contract price which belonged to the manufacturers was paid in full. Thereupon any unpaid balance on such contracts became the property of the plaintiff. This together with certain specified commissions constituted Mr. Keefe’s profit or compensation. After this contract had been in effect between the parties a little over two years, the plaintiff died (May 15, 1921) and at that time there were upwards of 40 of these sales contracts outstanding. Under the provisions of plaintiff’s contracts with the defendants, the leases or sales agreements entered into with the ultimate purchasers were taken in the name of “Manufacturer’s Agency of Chicago, Illinois; ’ ’ but each contract was forthwith assigned by Mr. Keefe to the company whose instrument was sold. All subsequent payments were made to the assignee. On June 30,1927, the administrator of decedent’s estate instituted these suits claiming a substantial balance was due to decedent from each of the defendants. This claim is founded upon two contentions. (1) That the “carrying charges” of one-half of one per cent, provided for in the contracts between W. D. Keefe and the defendants are usurious, and in consequence thereof the defendants are not entitled to make any interest charge against Mr. Keefe; and (2) that in any event the relationship between these parties was terminated immediately after Mr. Keefe’s death by the act of the defendants in sending their representative who took over the stock on hand, and that thereafter the charges now insisted upon by the defendants could not lawfully be deducted from the amounts that otherwise would have accrued to the estate of the deceased in the meantime. The case was heard before the circuit judge without a jury, a finding of facts and law was made and filed, and a judgment of no cause for action rendered. Plaintiff reviews by writ of error.
1. Are these contracts usurious because they provided that each unsettled account should not only bear interest at 6 per cent, per annum, but that plaintiff should also be chargeable with a “carrying charge” of one-half of one per cent, per month computed on the amount unpaid on the account at the end of the credit period? The contracts between these parties provide:
“All the pianos that are now or shall hereafter be furnished me (W. D. Keefe) by you are to be held upon consignment and sold on such terms as you may direct.
“All moneys, notes or other property, received on the sale of any piano shall belong to you as hereinafter provided. Customer’s notes or leases shall be made on blanks furnished by me and secured by lien on the instrument sold, assigned payable to your order, payment as stipulated in said notes and leases to be guaranteed by me and subject to your approval. * * *
“I agree to settle with you for all pianos consigned me within four months from date of shipment and to pay you interest at the rate of 6 per cent, per annum after 60 days (after four months in Bush & Lane contract) from date of shipment, but in event that you should agree to extend the consignment period on any instrument consigned me beyond the four months an additional premium of one-half of one per cent, per month on the consignment price of such piano is to be charged for the time so extended, it being expressly understood that the charge of said interest and said premium and the payment thereof is in no sense to be construed as indicating a sale of said instrument to me.”
Each time Mr. Keefe received a piano from one of the defendants, he sent to the shipper a receipt in which the instrument was described and wherein it was stated:
“Received the above described piano in good order and condition in all respects, and I agree to sell the same for the account of Farrand Piano Co., (or Bush & Lane Piano Co.) subject to my agreement with them dated 3-20-19.”
In the sale of goods it is a common and legal practice to accept a lesser price for cash than when sold on credit, and to accept less when sold on short-term credit than when a longer period of credit is granted. The transactions between the plaintiff and these defendants were not loans of money, but rather consignments of defendants’ goods incident to which plaintiff acted as defendants’ agent in the capacity of a salesman; and the defendants assumed the burden of the bookkeeping and making the collections on the sales contracts.
“On principle and authority, the owner of property, whether real or personal, has a perfect right to name the price on which he is willing to sell, and to refuse to accede to any other. He may offer to sell at a designated price for cash or at a much higher price on credit, and a credit sale will not constitute usury however great the difference between the two prices, unless the buying and selling was. a mere pretense; and it has been held that it is not material that the agreement for the purchase price in the future, instead of specifying the whole sum then to be paid, names a particular sum as principal, and declares that it shall draw interest at a rate which, were the transaction a borrowing and lending, would clearly be usurious.” 27 R. C. L. pp. 214, 215.
“Usury can only attach to a loan of money, or to the forbearance of a debt, and that on a contract to secure the price or value of work and labor done or to be done, or of property sold the contracting parties may agree upon one price if cash be paid, and upon as large an addition to the cash price as may suit themselves if credit be given; and it is wholly immaterial whether the enhanced price be ascertained by the simple addition of a lumping sum to the cash price, or by a percentage thereon. In neither case is the transaction usurious. It is neither a loan nor the forbearance of a debt, but simply the contract price of work and labor done and property sold; and the difference between cash and credit in such cases, whether 6, 10, or 20 per cent., must be left exclusively to the contract of the parties, and no amount of difference fairly agreed upon can be considered illegal.” Davidson v. Davis, 59 Fla. 476 (52 South. 139, 28 L. R. A. [N. S.] 102); State Mutual Fire Ins. Co. v. Randall, 232 Mich. 210 (41 A. L. R. 973).
We are of the opinion that the contracts between the plaintiff and the defendants are not usurious. Instead they were contracts for the services of Mr. Keefe as a salesman which provided he should receive a larger measure of compensation for cash sales than for sales on credit, and also that his compensation should be larger for sales made on short-time credit than for those on longer terms of credit.
2. Soon after plaintiff’s death, and on May 20, 1921, the defendants submitted a statement showing an “apparent surplus” in favor of Mr. Keefe of $934.88 on the Bush & Lane accounts, and $5,344.54 on the Farrand Piano Company accounts, but counter charges of $1,071.27 were made. It is now claimed that Mr. Keefe’s death terminated the relation of these parties and that thereafter neither interest nor the “carrying charge” should be allowed to continue to accrue and minimize or absorb plaintiff’s “apparent surplus.” But it should be remembered that the so-called “apparent surplus” was nothing more than a possible paper profit contingent upon the prompt payment of all outstanding contracts. For the purpose of computing and adjusting the amounts due on the respective outstanding sales contracts, the contractual relations between the respective defendants and Mr. Keefe were not affected by his death. The delay in bringing this suit from the time of Mr. Keefe’s death (May 15, 1921) until June 30, 1927, has resulted in an accumulation of interest and “carrying charges” which has wiped out the “apparent surplus”; but this seems to have been an inevitable result under the terms of these contracts, and could have been avoided only by the administrator of Mr. Keefe’s estate exercising his right to pay the portion of the respective contracts which belonged to the defendants and taking over the unpaid portion. He had the right to make these payments because they were guaranteed by Mr. Keefe. This was not done, but the defendants are not to be blamed for or charged with the consequences to Mr. Keefe’s estate. As stated above, the latter’s death did not affect the rights of the respective parties in the outstanding contracts either as to the interest charge or “carrying charge.”
No other questions are raised by the record. The trial judge arrived at the right determination and the judgment of no cause for action is affirmed. The appellees will have costs of this court.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
Plaintiff, in July, 1923, purchased from Carl E. Joelson a parcel of land having a frontage of 101 feet on the north shore of White Lake, in the county of Muskegon. At that time Joelson also owned the land to the north thereof. After a description of the property by metes and bounds, the deed contained the following:
“Together with a right of way 30 feet wide over the land immediately north thereof to the public highway now known as Lake Shore Drive.”
In 1926, and after the record of plaintiff’s deed, the defendants purchased from Joelson the land north of plaintiff’s, and between it and the highway designated “Lake Shore Drive.” The question here involved is the location of this right of way.
Plaintiff erected a summer home on his property, and occupied it in 1924. At the time of his purchase, an old barn stood across the west line of the lot north of plaintiff’s and about 60 feet from it. Plaintiff testified that this right of way “was to start from the northeast corner of the property that was conveyed by deed and run a northerly and'westerly course up to the corner of the barn,” and thence northerly to the highway. Joelson, his grantor, testified that it was agreed that plaintiff “could drive wherever he thought most practical until such time as the barn was removed, then, I said, he could get a permanent right of way.” In answer to the question, “Was there anything said as to where the permanent right of way should be ? ” he answered:
“I don’t remember exactly what was said, the words, but it was to be where the barn was, that was the most practical point, that was to be sold and he would not have to go out of his way, and it would be along the west line, otherwise he would have to go east and back west again.”
The plaintiff did some little work in fixing up a road, and used it until after defendants ’ purchase of the land to the north. The barn has been removed, and defendants insist that plaintiff must use a right of way along the side of defendants’ lot which will pass over where the barn stood. To that end they have obstructed the road used by plaintiff, and prevented his use thereof. While the directions as stated are somewhat confusing, the line in dispute clearly appears.
The trial court, in an opinion filed by him, said:
“It seems to me that the logical place for a right of way is as claimed by the defendants, and that the proofs of the arrangement originally made warrants me so holding. In other words, that it was agreed that a permanent right of way would be provided after the barn was wrecked, being located as now claimed by the defendants. The defendants concede that they are willing to carry out the arrangement originally made, the barn having been wrecked, and that they are willing to and already have provided for a 30-foot right of way for the use of the plaintiffs, running in a straight line from plaintiffs ’ property to Lake Shore Drive, such right of way being the westerly 30 feet of so much of defendants ’ property as lies northerly of the property of the plaintiffs. ’ ’
In our opinion, this finding was warranted by the proofs submitted, and the decree dismissing plaintiff’s bill of complaint, entered pursuant thereto, is affirmed, with costs to appellees.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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] |
Sharpe, J.
Frank A. Ronowski was in the employ of the Michigan State Bank, in Detroit, in 1925 as paying teller. Frank J. Knapp had an account at the bank at that time. In December of that year, certain checks, drawn by Knapp in favor of Caplan &' Harris, amounting to about $26,000, were presented for payment through the clearing house. While there is dispute about payment having been refused when they were first presented, it does appear that they were paid by Ronowski and carried by him as cash in the funds of the bank. Knapp prom ised to deposit the money to meet them. He did not do so, and Ronowski, realizing that he could not long conceal the matter from the officials of the bank, set about to raise the money to pay them. He and his wife owned a duplex property, in a part of which they lived, worth, as found by the trial court, $20,000. There was a mortgage thereon, of which $7,990 was then unpaid. Knapp paid in $5,000 in February.
On April 27, 1926, Ronowski and his wife placed a. second mortgage on their property for $3,750. The mortgagee therein named was Emma W. Henkel. It was not recorded until April 30th. The proceeds of this loan were turned over to Knapp, who deposited the money in another bank and gave a check thereon to Ronowski, payable to the Michigan State Bank, who applied it on the unpaid checks. This mortgage was duly assigned to plaintiff. There having been default in payment, this suit was brought to foreclose it. Plaintiff had decree, from which defendant Anna Caplan appeals.
. Caplan & Harris were engaged in the liquor export business in Windsor, Ontario. The checks were given to them by Knapp for purchases made by him from them. Ronowski visited Caplan several times at his office in Windsor. It is his claim that he insisted that this firm was under obligation to assist Knapp in making up the shortage on the checks, and urged that this be done. He testified that at an interview had on the evening of April 27th Caplan offered to make him a loan of $8,000 to apply thereon; that Caplan asked, “What have you got that I can loan you any money on?” and that he told him about his duplex property, but did not inform him of the mortgage executed to Emma W. Henkel on that day. They met by arrangement at Knapp’s office the following day. Eonowski had his abstract of title. 'Caplan’s attorneys examined it, and went to an abstract office and found the title clear except as to the first mortgage. On their return, Eonowski testified that two deeds of their property were prepared and executed, one in which Caplan’s wife, Anna, was named as grantee, and in the other both Mr. and Mrs. Caplan were so named. This is disputed by others then present. That to Anna Caplan was recorded as a deed on April 29th. Eonowski also testified that at that time he made inquiry as to when the loan was to be paid, and that Caplan signed a paper so stating; that he retained it for several days and finally tore it up on Caplan’s statement that his wife was distressed over his possession of it. In this he is corroborated by his wife, and there is no denial on the part of Caplan.
The issues presented in the trial court were whether Caplan had such knowledge of the mortgage to Mrs. Henkel as would render the recorded deed subject thereto, and whether the deed was in effect a mortgage and should have been recorded as such. The trial court, in' an opinion first filed, found with the defendant, but, after reargument, held with plaintiff for the reason first stated. In view of the conflicting testimony as to the first issue, we do not feel called upon to pass upon it, as in our opinion the deed to Mrs. Caplan was intended to operate as a mortgage, and, not having been so recorded, it was void as against the mortgage to plaintiff’s assignor. 3 Comp. Laws 1915, §§ 11712-11721.
It may be here noted that neither Caplan nor Knapp was present at the hearing or called as witnesses. The testimony of Eonowski, while subject to some criticism, is, we think, sufficiently supported by facts about which there is no dispute to warrant the conclusion stated.' Mrs. Caplan personally had nothing to do with the transaction. She testified, however, that she furnished the $8,000 paid by her husband to Ronowski. Ronowski testified, as before stated, that the loan was talked about in Caplan’s office in Windsor. There is no denial of this, although Caplan’s partner, Harris, was also then present. Ronowski at no time had even suggested a desire to sell his property. A significant circumstance is that, after the deed or deeds were executed, the abstract of title was returned to Ronowski and produced by him at the hearing. There does not seem to have been any adjustment of the interest then due on the first mortgage or of the insurance on the property, as is usual on sales of real estate. Mrs. Caplan testified that her husband told her that Ronowski was willing to sacrifice his property, and that she visited it, accompanied by him and her mother, before she advanced the money to purchase it. This is denied by Mr. and Mrs. Ronowski, both of whom, she says, were then present. Neither the husband nor the mother was called to corroborate her testimony in this respect.
The closing paragraph of the decree reads as follows:
“It is further ordered, adjudged and decreed that the cross-bill of complaint of the cross-plaintiffs, Frank A. Ronowski and Florence N. Ronowski, be and the same is hereby dismissed and that Anna Caplan is the owner of the said land and premises in fee simple by title perfect as against the defendants, ’ Frank A. Ronowski and Florence N. Ronowski. ’ ’
Counsel for appellant insists that, as plaintiff took no appeal from the decree, she is bound by this provision therein, and that this court may not now say that the -deed to Mrs. Caplan should be held to be a mortgage.
The decree recited:
“The court finds that the material allegations of plaintiff’s bill of complaint are true and fully sustained by the proofs, and that the plaintiff is entitled to the relief prayed for in her bill of complaint.”
It then decreed that the conveyances from the Eonowskis .to either Mrs. Caplan or to her and her husband “be and the same are hereby declared to be inferior and subordinate to the rights of said plaintiff under her mortgage,” and granted foreclosure thereof. By these provisions, plaintiff’s rights were fully protected. She had no concern as to whether, between themselves, the Eonowski deed conveyed title to Mrs. Caplan or operated in law as a mortgage. She had prayed for and obtained a decree under which the rights of Mrs. Caplan under her deed were declared to be subordinate to her rights under her mortgage, and, on appeal, could rely thereon, if the proofs justified such a holding.
In County of Ottawa v. Zwagerman, 229 Mich. 501, the bill of complaint prayed for the reformation of a conveyance, and also for specific performance of a contract which required the defendants to convey certain property not included in the conveyance. The trial court found that the property in question (a side track) was omitted from the deed by mutual mistake, and entered a decree reforming it. On appeal to this court, it was held that the testimony did not establish a mutual mistake. It was then said:
“But we have held on numerous occasions that a case will not be reversed because a wrong reason was given for a correct decree or judgment. We are clearly convinced that the contract was as claimed by plaintiffs. The bill prayed for its specific performance and that was the relief plaintiffs were entitled to. The fact that the side track was personal property does not, under the facts of this case, defeat such remedy. 25 B. C. L. p. 293. The result, however, is the same and it follows that the decree inust be affirmed.”
In view of the conclusion reached, it is unnecessary to consider plaintiff’s motion to dismiss -the appeal.
The decree is affirmed, with costs to appellee.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Potter, JJ., concurred. | [
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Wiest, J.
This action was brought to recover damages for claimed fraudulent.misrepresentations in an exchange of real estate. Plaintiffs had verdict and judgment for less damages than they demanded. Defendants’ motion for a new trial was denied, and they review by writ of error, claiming that the amount of the verdict is unsupported by evidence and the finding of fraud is against the weight of the evidence. There is no merit in the first point. The award was within the range of evidence, although no witness placed it at the exact sum found. The second point requires consideration of the issues and evidence.
A quotation from the lucid instruction given the jury by the trial judge will show the claims and issues:
“The plaintiffs in this case claim that they, as husband and wife, in October of 1924 were living on a farm in Crockery township, Ottawa county, consisting of 80 acres of land, which has been described to you as two 40’s-in section 9 of that township; that such farm was of the value of $7,500 and was mortgaged for $3,500, leaving plaintiffs’ equity therein $4,000; that on or about October 22, 1924, the defendants, with intent to cheat and defraud the plaintiffs, represented that they owned a piece of property in the city of Muskegon of the value of $4,000 which they would trade with the plaintiffs for their farm in Ottawa county, that this piece of property in Muskegon was a house and lot in a good and restricted neighborhood in Muskegon, and would readily rent for $35 a month. * * *■ that, induced by these false representations claimed to have been made by the defendants to the plaintiffs, the plaintiffs on October 22, 1924, executed a warranty deed of the farm to the defendants and defendants executed with Dora Shapiro, the wife of Sam Shapiro, a contract for the Muskegon property, the consideration named for the latter property being $3,200, of which $800, according to the contract, was named as cash paid thereon, being the equity in the Ottawa county farm, and the balance to be paid by monthly payments, which plaintiffs claim the defendants represented would easily be paid out of the rent to be received from the house and lot, which rent would be collected by the defendants and applied by them thereon. * * *
“The plaintiffs also claim, gentlemen, that the house and lot was not worth $4,000, but was worth not exceeding $2,500, and that the rental value was not exceeding $15 or $20 per month, and they claim that the defendants also later served upon them a notice of forfeiture of the land contract for the house and lot and have taken possession of the same.
“Plaintiffs also claim that the filling station at Spring Lake, now owned by them, on leased ground of the interurban railroad, was not in the deal for the trading of properties between them, but was a separate transaction, the plaintiff, Mrs. Shapiro, purchasing the same from the defendants, paying therefor $300 in cash and note, and that the same has nothing to do with the original trade between the parties and is not involved in this suit. And plaintiffs claim, * * * that they should now have damages, being, as they claim, the difference between the value of the property received by them as it actually was in October of 1924 and its value as it would have been at that time had it been as represented.
‘ ‘ The defendants, on the other hand, claim, gentlemen, that they are not liable to the plaintiffs in this ease, that they made no false representations regarding the value of the house and lot in Muskegon or as to its rental value. They claim that in October, 1924, they made a trade with the plaintiffs whereby the defendants were to receive plaintiffs’ equity in the Ottawa county farm, which was figured to be $900, the value of the farm as fixed between them being $4,000, from that deducting incumbrances by way of two mortgages amounting to $3,100, leaving $900 the value of the plaintiffs ’ equity in the farm; that plaintiffs were to receive therefor a filling station and equipment at Spring Lake of the value of $600 and a contract for the house and lot in Muskegon for a consideration of $2,800, of which $400 was to be considered cash and the balance, $2,400, to be paid in monthly installments, the $400 cash payment on the contract and the $600 for the filling station making $1,000, leaving $100, which was taken care of by plaintiffs with a note for $100; that the cash payment, gentlemen, for the house and lot was named in the contract $800 at plaintiffs’ request, which also required the purchase price to be stated in the contract as $3,200 instead of the actual purchase price of $2,800, the plaintiffs claiming that they-wished this done in that way because it would" be an advantage to them in case they later sold the property. * * * ”
All the issues so stated by the trial judge were supported by testimony. The jury accepted plaintiffs’ version.
The record has been examined, and we cannot find the verdict against the weight of the evidence. We may not try the case de novo and pass independent judgment upon the merits thereof. The case was one for consideration by the jury, and upon this record the verdict must stand.
No error. Affirmed, with costs to plaintiffs.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
McDonald, J.
This is ail action to recover damages for personal injuries received in a collision between an automobile in which the plaintiff was riding and an interurban street car owned and operated by the defendant in and between the cities of Saginaw and Bay City, Michigan.
The collision took place on Columbus avenue in Bay City. Columbus avenue extends east and west. The interurban track curves from the south on Farragut street west into Columbus avenue. The next street to the west of Farragut is Grant, and beyond Grant is Yan Burén. Farragut and Yan Burén run north and south across Columbus. Grant street intersects Columbus from the north but does not cross it. At a point 136 feet west from where the track enters Columbus avenue there is a switch to the south of the main track. It curves slightly to, the south for a distance of 93 feet, then runs straight for 70 feet and curves back 89 feet to the main track. The switch is 252 feet long. The place of the collision is in dispute but it was somewhere along the switch.
The plaintiff was riding in an automobile driven by a Mr. Frazer. They were going east, and it is her claim that as they approached the east end of the switch the interurban car which was going west changed its course and suddenly swung into the switch, that the driver of the automobile could not pass because of some automobiles parked at the curb, and that, confronted with this sudden peril, he turned to the left and attempted to cross the track ahead of the interurban car/ The result was a collision in which the plaintiff was seriously injured.
It is the defendant’s claim that the collision took place near the west end of the switch as the inter urban car was making the curve back to the main track, that the driver o'f the automobile saw, or if he had been looking would have seen, the car as it ■came west on the switch, that, at the point where the accident happened, there was ample room to pass between the track and the curb, and that the driver was not compelled to choose between two dangerous courses but negligently drove upon the track without looking and was therefore guilty of contributory negligence.
On the trial, the plaintiff recovered a verdict for $2,000. On motion, the court entered a judgment non obstante veredicto for the defendant. The plaintiff has brought error.
Because we are convinced that the plaintiff was guilty of contributory negligence as a matter of law, we will confino our discussion to that question. It is conceded by the plaintiff that we must find contributory negligence if we find that the collision took place west of Grant street at the west end of the switch. On the other hand she claims, and we think correctly, that if it took place at the east end of the switch her contributory negligence was a question for the jury.
The driver of the automobile and two other occupants testified positively that the accident happened east of Grant street near the east end of the switch. But in giving the details of the location, these same witnesses say that it took place opposite a certain grocery store and pool room, which the undisputed testimony shows was west of Grant street. They also testified that after the automobile was hit it went a short distance to the east and stopped at the northwest corner of Grant street. If this testimony is true, and there is no doubt of it, they were wrong in their conclusions that the accident happened east of Grant street. These conclusions are inconsistent with the definite details of the location given by the same witnesses. The language of Mr. Justice Wiest in Steinberg v. Lumber & Wrecking Co., 238 Mich. 181, is applicable and controlling:
“Conclusions stated by a witness are eliminated by facts subsequently given by him and inconsistent therewith. The husband of plaintiff did testify that before he got to the lumber yard a horse and wagon came out of the driveway.right on top of the car; that he stopped and saw the wagon kept right on coming; that he could not see the horse until it was on top of him; that he did not stop until after the horse hit him; that he was just opposite the driven way as the horse came on. Such testimony was either ambiguous or mere conclusions and yielded, unqualifiedly, all evidential value to his statements of actual locations, distances and definite facts.”
In the instant case, the only testimony relied on to make a question for the jury on contributory negligence is the statement of the three witnesses that the collision took place east of Grant street. Their subsequent testimony as to the details of the location showed that it took place west of Grant street. In this they were supported by the testimony of all other witnesses. In view of these facts, the court did not err in holding as a matter of law that the plaintiff was guilty of contributory negligence.
The judgment is affirmed, with costs to the defendant.
North, O. J., and Fead, Wiest, Clark, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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] |
Fellows, J.
The question here presented is one of fact pure and simple. It is whether a deed from defendant company to a finance company for $3,000 with a 90-day option to repurchase at $4,000 with interest, of land which the finance company’s only valuation witness fixed the value of at upwards of $13,500, and which the overwhelming testimony shows was worth around $20,000, was in fact a sale of the land or a mortgage with the manipulations indulged in purely with intent to evade the statute of usury. In 1925, the Majestic Development Corporation, hereafter called the development company, purchased land in Antrim county having a frontage on Torch Lake of 3,470 feet. In 1926, there was a very marked increase in the value of such frontage, and the demand for it was brisk. The testimony on this subject of value we will discuss presently. The development company was hard pressed for money. All agree that the officers of that company approached the officers of the Commercial Bond & Mortgage Company, hereafter called the finance company, for a loan of $3,000. Two witnesses connected with the development company testify that the transaction was a loan, and two witnesses connected with the finance company insist that it was a sale. In this situation much depends on whether what was actually done was the usual thing done in case of a sale, what papers were prepared and for what purpose, what were the relations of the parties, and all surrounding circumstances. The learned trial judge excluded much testimony which would have been helpful both to him and to us in solving the question before us, and most of it was not taken or preserved under the terms of the judicature act (3 Comp. Laws 1915, §§ 12003 et seq.). However, there is enough in this record to satisfy us beyond a peradventure that notwithstanding the lip service of the- officers of the finance company for their company, and the unusual steps taken by them to build up evidence of a sale, the transaction constituted a mortgage, and nothing else. We shall now take up some of the earmarks which indelibly stamp the transaction as a loan.
It is not in dispute that the two companies had dealt before, and while the trial judge refused, and as we view it improperly refused, defendants permission to show their method of .dealing, we think the exhibits and the testimony of the finance company’s president on cross-examination establish that such prior dealings had been loans, and except as to some details were handled as was this transaction, although the president says that a contract similar to the one here used was not made and the present deal was “ stiff er” than the other. Indeed, a part of the $3,000 which was named as the consideration in the deed was used to pay the balance of $675 together with $5 interest thereon which was in reality a prior loan from the finance company to the development corporation to secure which a deed with an option back had been executed.
The disparity between the value of the land and the purchase price named in the deed is too great to evidence a bona fide sale. The officers of the finance company had never seen the property, but the president testifies that he consulted a Mr. Weller who was familiar with values in this resort region and who entertained the view that the frontage was worth $2 a foot, which would make the property worth nearly $7,000'. Mr. Weller, however, was not called as a witness. A Mr. Jackson was called by plaintiff, and he at first fixed the value at $5 to $6 a foot front, but after persistent hammering reduced the figure to $4 a foot. Several dealers of considerable experience from the locality fixed the value at from $5 to $6 a foot, and we are satisfied the land was worth from $14,000 to $20,000; probably the latter figure is correct. "We are charitable enough to assume that the officers of the finance company did not take advantage of the development corporation’s condition and buy outright this valuable property for $3,000, and that their rapacity would have been satisfied at the time with a $1,000 bonus together with interest on a 90-day loan' of $3,000. The finance company did not take possession, but during the season of 1926 the development corporation was in possession, made some improvements, and controlled what few crops were raised on it.
The manner of handling the deal was out of the ordinary for the purchase and sale of real estate. While the articles of association of the finance company authorized it to purchase real estate, its name and dealings indicate that it was a finance company pure and simple,' doing the business of such a company in the usual, or possibly unusual, way. Plaintiff’s counsel point to the following language in a contract between the parties as settling the proposition that the transaction was a sale:
“Whereas, second party has made an offer to first party of three thousand ($3,000.00) dollars cash, for a conveyance of said premises by warranty deed free and clear of all incumbrances, of every kind and nature, which said offer is the best offer which has been made to first party, and which price of three thousand ($3,000.00) dollars cash is the best price nOw obtainable for said premises.”
But the contract containing the language just quoted bears the same date and was signed at the same time the deed was executed. What earthly use such a contract, executed simultaneously with the execution of the deed, had is beyond finding out unless it was to build up a paper case and cover. up the taking of the $1,000 bonus. The option was on a printed form of the same tenor as another option appearing in the record signed by the finance company. From this it is inferable that the finance company had these blanks on hand and used them in its business of loaning money. The president of the finance company testifies that, when approached for a loan, he refused, and protested that the deal had to be made just as it was made or not at all. Quite likely this was the usual method of doing business when large bonuses were exacted, and doubtless he did protest, but it was a protest for effect, for the making a record. He “protesteth too much. ’ ’ Plaintiff is a stockholder of the finance company. A deed was given him after a record had been made in the office of the register of deeds by defendants showing the claim of the development corporation that the deed was in reality a mortgage. He gave back his note but has paid nothing on it. He is not a bona fide purchaser.
Brushing aside the manipulations skilfully conducted and the cobwebs designed to produce doubt, we reach the conclusion that the decree appealed from must be reversed and one here entered fixing the character of the transaction as one of loan, and the instruments before us as constituting a mortgage; defendants to have costs of both courts.
North, C. J., and Fellows,, Wiest, Clark, Mo-j Donald, Potter, and Sharpe, JJ., concurred. | [
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Wiest, J.
Mary Bielecki was killed while riding in a Ford truck driven by her son Peter. The accident happened near midnight, upon a paved highway, and was occasioned by the truck colliding with the end of a large iron beam upon another truck and trailer. The truck and trailer belonged to defendant company, and defendant Green was the driver. The truck and trailer carried two iron beams about 50 feet in length, each weighing between 3% and 4 tons, and several smaller girders, and the whole load of beams and girders weighed about 14 tons. The two large beams rested upon the truck and trailer with the ends thereof projecting several feet over the rear of the trailer. The night was dark and stormy. The Ford truck collided with the projecting end of one of the large beams, forced it through the windshield and against the breast of Mrs. Bielecki, and caused her death within a few moments. The impact also drove the large iron beam forward on :the large truck, and against the cab thereof, with "such force that the driver had to break the windshield to get out. Claiming that the truck and trailer were stopped in the highway, with the end of one of the beams near the center of the pavement and without warning light, this suit was brought to recover damages in behalf of the estate of the de ceased. Upon, hearing the proofs, the circuit judge directed a verdict for defendants ,on the ground of the contributory negligence of Peter Bielecki, the driver, and imputable to Mary Bielecki, the passenger. Plaintiff reviews by writ of error, and insists that the issues should have been left to the jury, and invokes the provision found in Act No. 318, Pub. Acts 1927, later quoted and considered.
Was Peter guilty of contributory negligence as a matter of law? The lights on his truck were in poor condition as the reflectors were rusted and the outside right brake was absent. Accepting the claim that the lanterns hanging upon the ends of the projecting iron beams were unlighted, yet the beams were of such size as to be clearly visible had the lights of the Ford truck been properly serviceable. Peter did not discover the loaded truck and trailer until within ten feet of the ends of the large beams. He was driving about 15 miles per hour, at night, in a storm, with lights disclosing a view of not more than 10 feet. He was guilty of contributory negligence barring recovery in this case. Lett v. Summerfield & Hecht, 239 Mich. 699. But, even so, it is claimed that, in case of a collision , of vehicles, the court may no longer direct a verdict on such ground for the legislature-has taken away the power and made the issue of right of recovery one of fact and not of law. Attorneys for plaintiff claim there was a collision within the meaning of section 5a, title 3, Act No. 318, Pub. Acts 1927, and the court could not direct a verdict. The part of the section so invoked reads:
“That in the event of damages occurring to person or property on account of a collision of vehicles or of vehicles with other objects, in which both parties were violating any laws of the State pertaining to the operation of vehicles, than (then) the question of, who shall he held for damages shall he a question of fact.”
This provision in the statute appears to have been an interloper, as it came unannounced by the title, is quite unfitted to the company where found, uncertain in meaning, substitutes fact for law, and is a disturber of long-settled principles, if given the scope urged by the attorneys for plaintiff. The provision is not a legislative adoption of the rule of comparative negligence, for it lacks every essential element of such a rule. It is a newcomer in the field of jurisprudence, and its scope and applicability must be measured before its validity can be determined. What does it mean? It only applies in case both parties violate the law of the road. It does not require, by its terms, that the violation by either or both be the proximate cause of a collision. Under our holdings, violations of the law of the road by a plaintiff, unless contributing to an injury, do not bar right of recovery. Gleason v. Lowe, 232 Mich. 300. Does it abrogate the rule of contributory negligence only in cases of violations of the road law? If it does it gives no guide in place thereof and affords no measure for determining right of recovery beyond leaving the question of who shall be held for damages one of fact. Liability for negligence is always a mixed question of law and fact. If there is no actionable negligence there is no liability. If there is negligence and contributory negligence then there is no remedy. If there is liability there exists actionable negligence, and the court must define or declare the essentials thereof. If the collision is the result of negligent acts of both parties then the law heretofore has denied relief. Is this rule changed? If the question in such case is made one of fact only as to “who should he held for damages,” then it is for the jury to make an award regardless of guidance by the court and there is no exercise of judicial power. As near as we can judge, the purpose of the provision was to take from the court the judicial power of deciding contributory negligence as a matter of law in a particular class of cases.
The circuit judge held the mentioned provision unconstitutional. The Constitution of this State vests judicial power in the courts: The mentioned provision is no more than an attempted legislative mandate to control judicial power.
We had occasion in People v. Holschuh, 235 Mich. 272, to speak of a somewhat similar legislative mandate.
The supreme court of Wisconsin, in Thoe v. Railway Co., 181 Wis. 456 (195 N. W. 407, 29 A. L. R. 1280), had a somewhat similar question and held that, quoting from the syllabus in A. L. R.
“Where the constitution confers judicial power upon the courts; a statute forbidding the court to direct a verdict is unconstitutional, and it is immaterial that power is left in the court to render judgment non obstante veredicto.”
The opinion of the court in that case can be read with profit. We quote therefrom, with approval, the following:
‘ ‘ The statute says in legal effect that in every case where a jury has been sworn and evidence offered the evidence is conclusively presumed to warrant a finding in favor of either party; that in every case, no matter how conclusive the proof may be as to the ultimate right of either party, the court is powerless and the jury is authorized to find, if it chooses to do so, a verdict in favor of the party whose evidence may be wholly insufficient in law within the rule stated to sustain a judgment in his favor. If the power to determine the legal sufficiency of the evidence is a judicial power, then the legislature has exercised that power by determining in every case the legal sufficiency of the evidence to go to the jury. If this does not constitute a clear exercise of judicial power it is difficult to imagine a case where the judicial power can be invaded. At the close of the evidence the statute steps in and performs a function that has been the function of common-law courts from time immemorial. * *
“As was said in Kiley v. C., M. & St. P. R. Co., 138 Wis. 215, at p. 226 (119 N. W. 309, 120 N. W. 756):
“ ‘The powers of the court and jury in the administration of the law in these respects were distinct and well defined at the time of the adoption of our constitution and became vested in the court and jury by its provisions. They cannot be abrogated or modified by legislative action to the extent of impairing, in' any degree, the judicial power. Under the constitution courts have become vested with the judicial power to determine the questions of the legal sufficiency of the evidence to establish the rights of the parties at issue and to apply the law to the facts when found, and this power cannot be withdrawn from them and conferred on juries.’ * * *
“The people of the State of Wisconsin, through the constitution ordained by them, have conferred upon the courts of this State the judicial power, which includes the power finally to construe, interpret, and apply the law in private as well as public matters. The constitution having confided this high prerogative to the courts, they would be plainly derelict in their duty if upon any pretense whatever they permitted the powers so confided to them to be exercised by other than, judicial officers.”
The mentioned provision establishes no law, and, as an attempted mandate, invades judicial power and is unconstitutional and void.
We find no reversible error, and the judgment is affirmed, with costs to defendants.
North, C. J., and Fead, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision. | [
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Fellows, J.
Milo Beardslee is a brother-in-law of defendant. They entered into the following agreement:
“Agreement made this 16th day of February, 1924, between Stephen H. Howey, of Detroit, of the one part and Milo Beardslee, of Detroit, of the other part. The said Milo Beardslee agrees to invest a sum of money in a building to be constructed by Stephen H. Howey, said Beardslee to receive for the use of said sum of money the share of the net profit that the amount invested bears to the total cost of house and lot, that is, if the-cost of house and lot is $6,000.00 and said Beardslee invests the sum of ' $1,500.00, his profits will be one-quarter of the same, for instance if the net profit amounts to $2,000 in the land contract after sale of building, his profit in the contract would be $500 and after discount of said contract if the net cash profit amounts to $800 his profit would be $200.
“It is further agreed that after erection and sale of the first building said Beardslee may withdraw the sum invested with his share of the profit or withdraw his share of the profit only or leave the entire sum invested in further building construction, at his option.
“Witness the hands and seals of the said parties.
(Sgd.) “Stephen H. Howey, (Sgd.) “Milo Beardslee. “Dated: Detroit, Michigan, Fébruary 16, 1924.
“Received from Milo Beardslee the sum of fifteen hundred ($1500.00) under the terms of above agreement.
(Sgd.) “Stephen H. Howey.”
Elwin Beardslee is another brother-in-law, and he entered into a similar contract and advanced $1,000. Defendant mortgaged the property for $4,000 and erected a two-family flat found by the trial judge to have cost with the lot $7,500. None of these figures are disputed. From them it appears that defendant advanced $1,000. The property was not sold but seems to have been rented, and at profitable figures, most of the time. After several years, during which time the Beardslees received little consolation or money from their investment, they transferred their interest to plaintiff, who files this bill for an accounting, and, as a necessary incident thereto, a determination as to the title. Plaintiff contends that the contract by its terms or by proper construction gives him as assignee an interest in the adventure— in the property — while defendant insists that the contract is unambiguous, but, if open to construction, should result in the same holding, i. e., that the transactions were but loans of money. The trial judge found the plaintiff had an interest in the property in proportion to the respective amounts advanced, and decreed an accounting. Defendant appeals.
While there is found in the agreement language tending to render it ambiguous, we are nevertheless impressed that whether we consider the instrument from its four corners alone or in view of the surrounding circumstances, and the construction placed upon it by the parties, the.same result will be reached —an affirmance of the decree. In 33 C. J. p. 845, it is said:
“When the agreement provides that both or all the parties thereto shall contribute money to be used in the purchase of lands * * * the carrying on of building operations, * * * the transaction, in the absence of some special provision of the contract, indicating that the parties intended to assume some other relation, has, almost invariably, been construed to be one of joint adventure so as to give each of the parties a share, not only in the profits of the venture, but also an interest in the property from which the profits are to be derived.”
In Alderton v. Williams, 139 Mich. 296, this court held (quoting from the syllabus):
“Where one party agreed to establish and conduct a business and the other agreed to furnish a certain amount of money to assist it and take a stipulated portion of the net profits until paid, the business is properly described as a joint enterprise, though the parties are not partners and the title to the mill and business remained with the first party.”
If we take the literal terms of the agreement, it will be noted that the money advanced was treated as “invested,” not as loaned, and there was no express promise on defendant’s part to ever repay it. The agreement was prepared by defendant, who is an attorney, and must be construed most strictly against him. He testified on cross-examination:
“Q. You knew when you took this money you were a trustee !
“A. Absolutely; expected to make money for them.
“Q. You know that acting as a trustee you are held accountable for the utmost care of the money!
“A. Absolutely.
“Q. You know that you are expected to give a just and true account of what ■ is done with the money !
“A. Yes, sir.”
This court has been most vigilant in sustaining the statute of uses and trusts (3 Comp. Laws 1915, § 11571), but where there is a writing in existence evidencing the trust, we have not required that all “t’s” should be crossed or all “i’s” dotted. Innis v. Michigan Trust Co., 238 Mich. 282. In 39 Cyc. p. 53, it is held:
“Although strict in interpreting the statute of frauds to require some writing, the courts are liberal in their construction as to the kind of writing required, and hold that the statute is satisfied by any writing which sufficiently manifests the existence of the trust, and designates its terms with the certainty which is required in declarations of trust generally without regard to the statute of frauds.”
The decree will be affirmed, and the case remanded for its execution. Plaintiff will have costs of this court.
■ North, C. J., and Fead, Wiest, Clark, McDonald. Potter, and Sharpe, JJ., concurred. | [
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Quinn, J.
A jury convicted defendant of armed robbery, MCLA 750.529; MSA 28.797. He was sentenced and he appeals.
Defendant first contends that it was reversible error for the trial court to instruct the jury on defendant’s choice not to testify after he specifically requested that such an instruction not be given. In support of this contention, defendant cites People v Pruitt, 29 Mich App 230; 185 NW2d 57 (1970); People v Abernathy, 29 Mich App 558; 185 NW2d 634 (1971); People v Moore, 39 Mich App 329; 197 NW2d 533 (1972).
We decline to accept the foregoing authorities as controlling precedent supporting defendant’s contention that it is reversible error to instruct the jury on a defendant’s right not to testify when a defendant has specifically requested that the instruction not be given. The inception of the reasoning advanced in support of defendant’s position is found in dictum in Pruitt, supra.
In Pruitt, defendant offered no proofs but requested an instruction on his right not to testify. This Court held it was error not to give the requested instruction. The Pruitt Court properly found that a defendant’s right not to testify is part of "the law applicable to the case”, and that MCLA 768.29; MSA 28.1052 mandated the giving of the instruction.
Although this finding decided the issue conclusively, the Pruitt Court continued to discuss it. After quoting:
"Where such a request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented,”
from People v Provost, 144 Mich 17, 23; 107 NW 716, 718-719 (1906), the Pruitt Court concluded:
"Therefore, there is no discretion in the trial court when requested to give an instruction similar to the one requested here and the court’s refusal to give the instruction is error. The choice as to whether such an instruction is to be given to the jury is the defendant’s and not the trial court’s.”
The final sentence of the last quotation was not only unnecessary and not supported by the authority relied on, but it was extremely unfortunate. This is the language which gives rise to defendant’s contention that he has a choice as to whether or not an instruction on his right not to testify shall be given.
When a defendant does not testify, MCLA 768.29 requires that an instruction on his right not to testify be given. The instruction is more than an integral part of a defendant’s constitutional right not to testify. It is also an explanation to a jury of laymen of the reason why a defendant may not be called to testify in a criminal case. We cannot assume that lay jurors know what lawyers and judges know. Except in Detroit recorder’s court, the jurors hear civil and criminal cases. In civil cases, they encounter testimony by all parties as well as testimony by defendants called for cross-examination. It is not reasonable to assume that they will understand why a criminal defendant does not testify without an explanation therefor.
The remaining issues raised on appeal do not merit discussion either because they were not preserved for review, are not supported by the record or do not involve reversible errors.
Affirmed.
All concurred. | [
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] |
O’Hara, J.
This case involves a dispute between a probationary teacher and a school district. It is important then to keep in mind that the teacher tenure act is not involved.
Defendant-appellant Urka and her collective bargaining representative contend that the decision of the appellee school district not to renew her contract is mandatorily arbitrable by reason of the terms of the contract between the school district and the bargaining agency. Per contra the school district says it is not and moreover that the initial question of arbitrability is one of contract law and hence for the court.
It would seem then that the contract, together with any required statutory language by law made a necessary part thereof, should provide the answer.
We think it does. Before stating specifically what proviso of the contract we regard as sustaining our position we feel the following observations are in order.
We are well aware of the established rule that as a general proposition courts favor arbitration. Without a reservation-of-rights clause and where all questions arising under the contract are arbitrable courts will not and obviously should not interfere.
No beneficial purpose would be served in quoting a litany of cases in support thereof. Legal encylopedias are likewise filled to overflowing with annotations of this principle.
Just as axiomatically true and just as abundantly supported by authority is the general rule that the initial question of arbitrability under a contract is a question of law for the courts. See Detroit Demolition Corp v Burroughs Corp, 45 Mich App 72; 205 NW2d 856 (1973).
Our reports are, by reason of the volume of our case load, taxing the legal library space available to bench and bar alike. Thus we eschew whenever possible long discussions of settled principles with supporting citations.
We think the trial judge was right when he trenchantly observed:
"The defendant brings to the court’s attention certain cases where a similar incident was sent to arbitration and not decided by the court. Courts may do things for convenience but convenience does not supersede contractual rights. Viewing the law of the State of Michigan and the written arguments between the parties, the court agrees with the plaintiff that the contractual rights of the parties provide that this is a matter for the court and not a matter for arbitration, and the temporary injunction may be made a permanent injunction in this case. Any dispute growing out of the facts and circumstances of this case shall be determined by the court.
"An order may be so prepared.” (Emphasis supplied.)
The reservation-of-rights clause in this contract is about as broad as possible:
"BOARD RIGHTS
"A. The Board, on its own behalf and on behalf of the electors of the district, hereby retains and reserves unto itself, without limitations, all powers, rights, authority, duties, and responsibilities, conferred upon and vested in it by the laws and the Constitution of the State of Michigan, and of the United States, including, but without limiting the generality of the foregoing, the right:
"1. To the executive management and administrative control of the school system and its properties and facilities and school related activities.
"2. To hire all employees and subject to the provisions of law, to determine their qualifications, and the conditions for their continued employment or their dismissals or demotion; and to promote, and transfer all such employees, except as hereafter provided.”
We find nothing "hereafter provided” in this contract which accords to a non-tenure probationary teacher the absolute right to arbitrate the school district’s decision not to offer her a renewal of her teaching contract.
The above is what this opinion stands for, nothing more, nothing less.
Affirmed, no costs.
All concurred.
MCLA 38.71 etseq.; MSA 15.1971 et seq. | [
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Sherwood, J.
The respondent was convicted, in the Newaygo circuit, at the last September term, of the larceny of a yoke of oxen of the value of $100. The case comes before us for review on exceptions before judgment.
The record contains a bill of exceptions not including all the testimony, and from which it appears that the cattle stolen belonged to George Mowatt, a farmer, who lived at the time in the township of Croton, in Newaygo county; that the cattle were last seen by the owner on the twenty-fifth day of August, 1885, at about 2 o’clock in the afternoon; that he missed them the next morning about 9 o’clock; that he did not find them until the next January, when he discovered them at Ravenna, many miles distant, in the county of Muskegon, in the possession of one Patterson; that the respondent lived in the township of Brooks,- adjoining Groton, when the cattle were stolen, and but a few miles from Mowatt.
The record also states that the people introduced witnesses from Muskegon, who gave testimony tending to show that on the twenty-eighth day of August, 1885, the respondent was seen in the city of Muskegon in possession of the stolen oxen, and was offering them for sale, and finally did sell them to a cattle dealer, who afterwards sold them to said Patterson, in whose possession Mr. Mowatt found them in January, 1886, at Ravenna.
At this stage of the case, counsel for respondent moved to-strike out the testimony given by the Muskegon witnesses, on the ground that it was incompetent and immaterial; that no sufficient testimony had been given to warrant a verdict of larceny of the cattle. The court overruled the motion, and this ruling is made the basis for respondent’s first and second assignments of error. 'We think these exceptions were not well taken. The people had not yet concluded their testimony in the case, and the testimony offered was competent to go to the jury. Besides, the testimony given by the Muskegon witnesses is not stated in the record, but only what it tended to show in the opinion of the circuit judge. Under such circumstances, it is impossible for this Court to say error was committed in allowing the case to proceed. Error, to avail, must be made to appear upon the record, and not left in doubt.
Two additional witnesses, John Train and E. E. Baker, were sworn and examined on the part of the people, and who were acquainted with the respondent, and gave testimony tending to show that they met the respondent in the township of Ashland, in Newaygo county, driving a pair of cattle, which, according to their best judgment, were those stolen, and respondent was offering them for sale. The exact date of the meeting witnesses were unable to state, but, as given by Train, was “two weeks before the seventeenth day of September, 1885, during the middle of the week,” at about 8 o’clock in the morning. Witness Baker’s testimony was to the effect that he was with Train at the time the cattle were seen in possession of the respondent, and heard him offer them for sale; and he gave some testimony tending to identify one of the oxen. Said he could not give the date of the occasion, but thought it was in- September, and about six weeks after the twenty-eighth of July, 1885.
Eespondent’s counsel here objected to the “testimony of the witnesses Train and Baker as incompetent and immaterial, and having no tendency to prove the charge made against the respondent, no larceny, in fact, of said cattle having been proven by the people, and because the testimony of other witnesses, who claim to have seen respondent with the cattle in the city of Muskegon, fixes the date as August 28, 1885, and the witnesses Train and Baker fix the date when it is-claimed they saw respondent with the cattle in Newaygocounty, at a time subsequent to said twenty-eighth day of August, 1885; and the people have made time material in this case, the defense being an alibi;” and further inoved to strike said testimony of Train and Baker from the record, for the reasons aforesaid, which objections and motion were overruled by the court.
We see no error in this ruling. The circumstances stated by these witnesses were proper to go before the jury. If the occasion referred to by them was before the cattle were sold in Muskegon, the testimony was very important; and the court instructed the jury in the charge, unless they found such to be the fact, they could not consider the testimony. With this instruction, no harm could well come from the testimony.
The case, upon the testimony and circumstances, was one proper for the consideration of the jury, and the court committed no error in allowing them to pass upon it.
The court charged the jury upon the subject' of time, referred to by the witnesses, as follows :
££ Now, there has been testimony given tending to show that two men saw the respondent in possession of these oxen in this [Newaygo] county, and they tell you about when. One of them says that it' was on or near — uses the word ‘near ’— two weeks before the seventeenth day of September, in that year. If it was just two weeks before the seventeenth day of September, that would make it, as a matter of course, the third day of September. If that was the date they were seen, absolutely, then it would be after the twenty-eighth day of August, and the testimony ought not to be considered. If it was, however, prior to the twenty-eighth day of August, — if, instead of saying £two weeks,’ he should say £ three,’ which would make it about the time, the twenty-eighth of August, — then the testimony would be material, and ought to be considered. I say £ at or near.’ He says it was on or near two weeks. On the ■other hand, the other witness states that it was about six weeks after the twenty-eighth of July. If it was six weeks after the twenty-eighth of July, it would fetch it up to the ■seventh or eighth of September. If you should find, instead of being six weeks, it was four or thereabouts, and you can figure it, you will take that into consideration.”
These instructions were excepted to because it is claimed the court gave a construction to the testimony of Train and Baker which was misleading] and counsel for' respondent further claimed that the court erred in allowing the jury to ■consider their testimony for the purpose of fixing the date when those witnesses claimed to have seen the cattle.
We do not think the charge subject to the criticism made by respondent’s counsel, of giving construction to the people’s testimony. In this same connection the court said to the jury, referring to the testimony of Train and Baker:
“The fact which the court is going to allow you to consider, is the time that these men saw this, if they did see the ■cattle in the possession of the respondent, in this county] ■and you must gather from the testimony they gave, in connection with all other circumstances, what time you shall set, —what time has been proven. It will not be for you to guess, as a matter of course, upon so important a fact. You must .have some ground to base your belief upon; you must find ■these facts beyond a reasonable doubt.”
Under this charge, it is difficult to see how the jury could ■be misled. It is clear, and states the law correctly. The ’testimony not all appearing in the record, it is impossible for •us to say what all the circumstances bearing upon the question of the date of the interview referred to were; but the •court and jury had them all at the circuit, and the record •discloses no misapplication of the law.
The respondent at the trial was on bail. After the jury retired for deliberation, the respondent and his counsel and the prosecuting attorney left the court-room, and the circuit .judge went out for lunch. On his return to the bench, the jury returned into court, when the following proceedings were had, in the absence of the respondent and his counsel and the prosechting attorney:
“ A Juror. We want to know whether we have the right to pronounce the man guilty or not without — if we cannot ■connect the number of days between the seventeenth and twenty-eighth with the two-weeks statement, on what those two men claimed, on the state road — Train and Baker.
“ The Oourt. If there are any further instructions to be given, I would have to call the respondent and the attorneys into court.
“ A Juror. All that they want to know, in my estimation, is whether — They think that these men, from the time, the twenty-fifth, that they saw him, between that time and the twenty-eighth — They have all come to the conclusion—
“ The Oourt (interrupting). Don’t tell what conclusion you have arrived at. If you want to hear anything read, — ■ any of the charge of the court read, — you can call for such parts as you want. If any new instructions are given, we will have to call the respondent and the prosecutor.
“ A Juror. The question we differ on is this: We understood you to charge us that if we could not, without a reasonable doubt, fix the time between the time that the oxen were taken from Croton and the time they saw them down here on the State road, — Train and Baker, — then we could not convict him. We have made up our minds that they was all liable to a mistake.
“ The Oourt. Don’t tell what conclusion you have arrived at.”
The stenographer here read that portion of the charge reading as follows, as directed by the court:
“ Another request, that there is no testimony except that of Train and Baker in relation to the possession of these oxen in this county. That is a fact. There is no other testimony. No other witness mentions the fact. You must depend upon their testimony alone as to any possession in this county, because there is no other. You might find that this respondent had possession of these oxen in the county of Muskegon. If there was nothing to connect him with the possession of the same in this county, he might be guilty of larceny in the county of Muskegon, but not in this county, because he must be shown to have been in the possession of the property in the county of Newaygo at some time, as the court has before remarked, prior to the twenty-eighth of August, or upon that day, in order to be guilty of the larceny. The venue or place is laid in this county, and not the county of Muskegon.”
“ The Oourt. Take what was said by the court; and, if you are able to come to a conclusion by the charge that was made, that is all right. If you desire further instructions, we shall have to send for the respondent and the prosecuting attorney.”
Counsel for respondent excepts to the foregoing action by the court, in the absence of the respondent and his counsel. The jury had a right to be brought before the court, at any time they desired. No new instruction was given to them, and only a single paragraph of the charge they had already received from the court was read over to them; and it will be noticed that this paragraph was decidedly in favor of the respondent. Further than this the court told them he could not go without the presence of the respondent and his counsel. No further instructions being called for, the jury again retired, and, after further deliberation, returned a verdict of guilty. We are unable to see in what manner the respondent could have been prejudiced by these proceedings. The court kept clearly within the rule which should govern in such cases, and the exception was not well taken. Smith v. Kelly, 43 Mich. 393; Pray v. Cadwell, 50 Id. 222; Woodruff v. King, 47 Wis. 261 (2 N. W. Rep. 452); Com. v. Snelling, 15 Pick. 333.
We find no error in the rulings or charge of the court, and the circuit court is advised to proceed to judgment in the case.
The other. Justices concurred. | [
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] |
J. H. Gillis, J.
Plaintiff appeals the circuit court’s affirmance of her dismissal from employment by the teacher tenure commission. On appeal, we affirm.
Defendant Gibraltar School District hired plaintiff, formerly a tenured mathematics teacher in the Wyandotte schools, to teach high school mathematics in 1967. After one satisfactory year, plaintiff became tenured. In the summer of 1969 she assumed a nontenured position as a counselor-supervisor.
After friction developed between plaintiff and her immediate supervisor, the superintendent reviewed plaintiff’s employment application. He discovered questionable omissions as to her qualifications. Pursuing the matter, he learned plaintiff had misrepresented the nature of her graduate degree. The plaintiff was suspended, and formal charges signed by the superintendent were filed on March 11, 1970. At the same time, plaintiff and the school board secretary were served with copies of the charges.
The notice bore no indication that the superintendent had acted at the board’s request, nor did it reveal any reference to the board’s minutes.
On April 21, 1970, plaintiff appeared at the board hearing, represented by counsel of her choice. She was given the opportunity to present evidence and cross-examine adverse witnesses. On May 4, 1970, the board discharged plaintiff by written decision. Subsequent appeals to the tenure commission and circuit court resulted in affirmance of the dismissal. (The circuit court, however, ordered payment of plaintiffs salary from the date of suspension to the date of dismissal.)
On appeal, plaintiff claims a denial of procedural and substantive due process because the local board heard the case without having made or recorded a prior independent decision to proceed against plaintiff.
MCLA 38.102; MSA 15.2002 provides:
"All charges against a teacher shall be made in writing, signed by the person making the same, and filed with the secretary, clerk or other designated officer of the controlling board. Charges concerning the character of professional services shall be filed at least 60 days before the close of the school year. The controlling board, if it decides to proceed upon such charges, shall furnish the teacher with a written statement of the charges including a statement of the teacher’s rights under this article, and shall, at the option of the teacher, provide for a hearing to take place not less than 30 nor more than 45 days after the filing of such charges.”
Apparently, the board did not independently decide to proceed upon, the charges. Plaintiff claims the tenure act requires an independent choice, citing Fucinari v Dearborn Board of Education, 32 Mich App 108; 188 NW2d 229 (1971). Fucinari is distinguishable on two grounds. First, the teacher did not receive notice of the board’s action, denying her substantial procedural safeguards. Plaintiff here received timely notice. Secondly, some question existed in Fucinari as to the personnel director’s authority to act.
In Fucinari, the Court interpreted MCLA 38.83; MSA 15.1983, according to the statute’s plain meaning:
"[T]he controlling board shall provide the probationary teacher with a definite written statement * * *
Further, MCLA 340.561; MSA 15.3561, requires all board business to be conducted at public meetings. The statute nowhere authorizes the board to either act informally or delegate its authority to the personnel director and school administrators; it contemplates a mandatory board decision.
MCLA 38.102; MSA 15.2002, is not so explicit. The superintendent, as statutorily required, brought written charges, signed them, and filed them with the secretary, while serving a copy of the charges on the board. Here, as the statute requires, the teacher received notice and opportunity for a hearing. As we read the statute, a board’s decision to proceed results immediately in notice and an opportunity to be heard. Since both notice and a hearing date were provided here, we might infer the existence of a prior decision to proceed. The statute does not limit, as it did in Fucinari, the board’s discretion with respect to the decision to proceed. We refuse the invitation to narrow the scope of that discretion, especially where plaintiff can claim not even the least vestige of prejudice from the procedure, and the superintendent, different from the personnel director in Fucinari, acted within properly delegated authority over employment applications in suspending plaintiff and filing charges.
Plaintiff next claims the lack of independent board review frustrated the legislative purpose of protecting teachers, relying on Rehberg v Board of Education of Melvindale, Ecorse Twp School Dist No 11, Wayne County, 330 Mich 541; 48 NW2d 142 (1951). The Court there found the purposes of the act are "to maintain an adequate and competent teaching staff, free from political and personal arbitrary interference”, and to "promote[s] good order and the welfare of the State and of the school system by preventing removal of capable and experienced teachers at the personal whims of changing office holders”. Rehberg v Ecorse School District No 11, supra, p 545. The board’s action here clearly satisfies the legislative intent. Further, interference at the administrator’s personal whim is not even arguably present in this case.
In Rehberg, the Court stated:
"The Tenure Act places an additional safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection. It does not, however, otherwise diminish or interfere with the administrative power of the local controlling board, nor require it to indulge in idle ceremonies. ’’(Emphasis supplied.)
We think that plaintiff’s argument in this factual context is more closely akin to indulgence in idle ceremony than to denial of any substantive or procedural right. No denial of due process re- suited, even assuming the board did not make or record its decision to proceed..
"Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v Larche, 363 US 420, 442; 80 S Ct 1502, 1515; 4 L Ed 2d 1307, 1321 (1960).
A careful review of the record does not convince us the controlling school board denied plaintiff due process.
Affirmed. Costs to appellee.
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J. H. Gillis, P. J.
Plaintiff, Florence Totorean, brought this action to set aside a warranty deed given by her to defendants, her daughter and son-in-law. The June 28, 1966 deed, conveying plaintiff’s farm in Macomb County, reserved to plaintiff a life estate. Plaintiff, an 83-year-old widow, is a native of Romania. She came to this country at the age of 24. She is totally illiterate and her ability to speak and understand English is minimal. Mrs. Totorean had two children; defendant, Lydia, and a son, Gregor, who died in January of 1966. Her divorced son left two children, Brenda and Gregore.
In 1958, two years after her husband’s death, plaintiff executed a general power of attorney in favor of Lydia. Lydia’s involvement in her mother’s financial matters increased substantially after Gregor’s death. After the deed was executed, Lydia handled all of plaintiff’s affairs.
The death of plaintiff’s son precipitated a family crisis. Plaintiff was depressed over his death for several months. At about this time, Gregore broke out of a youth center and Brenda was pregnant out of wedlock. Lydia made several trips to Michigan from her Pennsylvania home to assist plaintiff. In September 1967, plaintiff went to live with defendants. The farm furnishings were auctioned off and the property leased. After a year in Pennsylvania, Mrs. Totorean returned to Michigan and lived with her grandchildren. In August of 1972, she moved back to the farm.
The deed in question was prepared by an attorney paid for and selected by Lydia. She first went to the lawyer’s office alone to discuss the situation. She returned with plaintiff twice, once to discuss the conveyance and once to sign the deed. Lydia acted as interpreter at these meetings, although there was a minimum of direct conversation in English between the attorney and plaintiff. The attorney testified that he was convinced plaintiff understood the transaction. There was no discussion of alternative means of disposition such as a will or guardianship.
Lydia testified that plaintiff wanted her to have the farm because of plaintiff’s disenchantment with the grandchildren and to avoid probate costs. Plaintiff claims she never wanted to sell or give away the farm, and that she did not know of the existence of the deed until shortly before the commencement of this action. Plaintiff testified that she went to the attorney’s office at Lydia’s request with the understanding that by making her mark on the instrument she would receive a $2,500 payment due her as mortgagee of other property.
The trial court determined that a fiduciary relationship existed between plaintiff and defendant Lydia, and that because of this relationship defendants had the burden of proving the fairness of the deed. The court, finding that defendants failed to sustain this burden, held for plaintiff. From a denial of their motion for a new trial, defendants appeal.
Defendants first contend that there was insufficient evidence to support the court’s finding of a fiduciary relationship. They explain the relationship between Lydia and plaintiff simply as that of a loving daughter taking care of her old mother. The existence of a fiduciary relationship is a question of fact. Taylor v Klahm, 40 Mich App 255; 198 NW2d 715 (1972). This Court will not set aside findings of fact by the trial court unless they are clearly erroneous. GCR 1963, 517.1. A fiduciary relationship exists only "when there is a reposing of faith, confidence and trust and the placing of reliance by one upon the judgment and advice of another”. In re Jennings’ Estate, 335 Mich 241, 244; 55 NW2d 812, 813 (1952); Mannausa v Mannausa, 370 Mich 180, 184; 121 NW2d 423, 425 (1963); Williams v Griffin, 35 Mich App 179, 183; 192 NW2d 283, 285 (1971); see Van’t Hof v Jemison, 291 Mich 385; 289 NW 186 (1939). A colloquy between plaintiff’s attorney and defendant Lydia reads as follows:
"Q. Was there any particular reason why your mother gave you this power [of attorney]?
’A. Well, my mother always had full confidence in me.
"Q. Yes?
"A. And she trusted me completely as she wanted me to act in her behalf. She never questioned anything I did for her. We always had a mutual understanding. Our relationship was always good and always has been.”
Similar testimony appears throughout the record. We think there is sufficient evidence of a fiduciary relationship; the trial court’s finding is not clearly erroneous.
This confidential relationship between Lydia and her mother, plus the gift of the farm to Lydia and her husband, raises a rebuttable presumption of undue influence by defendants. In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965); In re Kanable Estate, 47 Mich App 299; 209 NW2d 452 (1973). The nature and effect of presumptions, particularly presumptions of undue influence, are set forth in the landmark case of In re Wood Estate, supra, 288-290; 132 NW2d 42-43:
"Presumptions in the law are almost invariably crystallized inferences of fact. Experience has taught that if certain evidentiary facts be established, there is such a strong practical likelihood that another stated fact will be true that that fact may be presumed. The law’s special recognition of this lesson of experience is expressed by its rulings that if a litigant proves evidentiary facts A and B, then fact C’s existence will be presumed.
"The immediate legal effect of a presumption is procedural — it shifts the burden of going forward with the evidence relating to the presumed fact. Once there is a presumption that fact C is true, the opposing party must produce evidence tending to disprove either facts A and B or presumed fact C; if he fails to do so, he risks jury instruction that they must presume fact C to have been established.
"Suppose, however, that such controverting evidence is produced. The initial force of the presumption as a procedural rule of law shifting to the opposite side the burden of going forward with the evidence to avoid a directed verdict is spent and so fact C is no longer the mandatory inference it otherwise would have been. Nonetheless, the evidentiary facts A and B from which fact C could be inferred, and would have been inferred mandatorily but for the controverting evidence, are still present for jury consideration. Instead of being a mandatory inference, fact C now is merely what it would have been but for the attachment of the term 'presumption’ to the particular evidentiary situation involved, namely, a permissible inference.”
This makes it clear that (1) a presumption is substantive evidence and, even if rebutted, remains in the case as a permissible inference; and (2) the immediate effect of a presumption is to shift the burden of going forward with the evidence related to the presumed fact. However, Wood does not specifically answer one important question: Does a rebuttable presumption of undue influence shift the ultimate burden of proof from plaintiff to defendant? That is the key question in this case. The trial judge ruled that the presumption does put the ultimate burden of proof on defendant. If this ruling is correct, we must affirm.
Defendants cite us to two cases in support of their position that while the presumption shifts the burden of going forward with the evidence, the ultimate burden is always on the plaintiff. Straith v Straith, 355 Mich 267, 275-276; 93 NW2d 893, 897-898 (1959), a pre- Wood case, held:
"While it is true that a presumption is raised that calls for an explanation, the burden of proof to show undue influence is not to be shifted. In re Bailey’s Estate, 186 Mich 677 [153 NW 39 (1915)].
"We quote from Hill v Hairston, 299 Mich 672, 679 [1 NW2d 34, 36 (1941)], where Justice Bushnell, speaking for the Court, said:
" 'We are not unmindful that this Court said as recently as Beattie v Bower, 290 Mich 517, 529 [287 NW 900, 905 (1939)], that, under the authority of Connor v Harris, 258 Mich 670, 677 [242 NW 804, 807 (1932)], and authorities therein cited:
"'" 'The grantor was peculiarly under the care, control, and domination of defendant, who stood in a fiduciary relation to her, and obtained, without consideration, a large amount of property from grantor. Under such circumstances the burden of proof is upon defendant to show the fairness and good faith of the transaction.’ ” ’
" 'The rule is better expressed in the quotation from Gillett v Michigan United Traction Co, 205 Mich 410, 414 [171 NW 536, 538 (1919)], in Re Cotcher’s Estate, 274 Mich 154, 159 [264 NW 325, 326 (1936)], as follows:
" ' " 'It is now quite generally held by the courts that a rebuttable or prima-facie presumption has ho weight as evidence. It serves to establish a prima-facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.’ ” ’ ”
Straith’s reliance on Hill v Hairston, supra, greatly diminishes its present precedential value. The result in Hill was based largely on the theory that a presumption has no weight as evidence. This theory was discarded in Wood. However, Williams v Griffin, 35 Mich App 179; 192 NW2d 283 (1971), relying on Wood concluded that the ultimate burden of proof remains with plaintiif throughout trial.
We think the Williams Court misread Wood. We read Wood as standing for the proposition that a rebuttable presumption shifts the burden of proof. In dicta the Wood Court said:
"Finally, in every case in which evidence has been offered to rebut presumed fact C, the jury should be instructed that in the event it cannot decide upon which side the evidence preponderates, then as a matter of law fact C must be presumed.” In re Wood, supra, 295; 132 NW2d 46.
Therefore, in those cases where (1) plaintiff has the benefit of a presumption which has been rebutted and, thus, reduced to a permissible inference; and (2) the trier of fact determines the evidence of plaintiff and defendant to be equal, the trier of fact should return a verdict for the plaintiff. This can only mean the ultimate burden of proof is on defendant — not plaintiff.
Two post- Wood cases have so held. The trial court relied on Grondziak v Grondziak, 383 Mich 543; 177 NW2d 157 (1970). There a mother and stepfather deeded property to one of their sons and his wife, reserving a life estate. After their parents’ deaths, the other children brought suit to cancel the deed. In upholding the conveyance, the Court ruled that the defendants had the burden of proving the fairness of this deed. Quoting from the Court of Appeals’ decision, the Court reasoned:
"Whatever the correct label may be, whenever one member of a family is in a fiduciary relationship with his parents and he receives almost all of the parents’ property, society looks to him to establish his right to it and to demonstrate that he did not acquire the property improperly.” Grondziak, supra, 545; 158.
Likewise, this Court in In re Kanable Estate, supra, 303; 209 NW2d 454, held that the presumption of undue influence "shifts the burden of proof’.
We hold that the trial court was correct in ruling that defendants had the ultimate burden of proving the validity of the deed.
Affirmed. Costs to plaintiff.
All concurred.
The trial judge simply held that (1) because of the fiduciary relationship defendants had the burden of proof and (2) they failed to sustain that burden. He made no specific finding as to whether or not defendants rebutted the presumption. Consequently, we find it unnecessary to do so here.
In the case at bar, presumed fact C is undue influence by defendants. Presumed fact C is based on evidentiary fact A, the fiduciary relationship, and evidentiary fact B, the deed to defendants.
Grondziak v Grondziak, 12 Mich App 61; 162 NW2d 354 (1968). | [
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] |
J. H. Gillis, J.
Plaintiff Clara Raven, M. D., former Wayne County Deputy Chief Medical Examiner, appeals the trial court judgment for defendants. The trial court found her a classified employee subject to mandatory retirement, and not, as she contended, exempt therefrom as an appointed official.
Previously, this Court reversed summary judgment for defendants on plaintiff’s complaint for declaratory judgment and injunctive relief. The Court found the deputy chief medical examiner was an appointed public official according to criteria enunciated in Kent County Register of Deeds v Kent County Pension Board, 342 Mich 548; 70 NW2d 765 (1955). However, it ruled summary judgment improper because a cited statute governing removal of deputy county medical examiners in counties having civil service systems was not considered. MCLA 52.201(d)(f); MSA 5.953(1d) (1f). Raven v Board of Commissioners of Wayne County, 32 Mich App 4; 188 NW2d 197, leave denied 385 Mich 765 (1971).
MCLA 52.201 et seq.; MSA 5.953 et seq., states in relevant part:
"In counties having a civil service system, the ap pointment and tenure of the medical examiner shall be made in accordance with the provisions thereof.
* * *
"In counties having a civil service system, the county medical examiner shall appoint the deputy medical examiners, whose appointment shall be in accordance with the provisions of the county civil service system.
"In counties having a civil service system, the removal of the county medical examiner and the deputy medical examiners shall be made in accordance with the provisions of the civil service system. ” (Emphasis supplied.)
Kent, supra, is distinguishable from the instant case because of the reference to and applicability of civil service law. The issue, well stated by the trial court, is whether a civil service classification can be used in the implementation of a retirement ordinance in the mandatory retirement of an appointed public official.
MCLA 38.412; MSA 5.1191(12), empowers the county civil service commission to:
"Classify all the offices and positions of employment with reference to the examinations herein provided for, excepting as herein otherwise provided.” (Emphasis supplied.)
MCLA 38.410(a); MSA 5.1191(10)(a), and the Wayne County Civil Service Commission Rules and Regulations § 10, provide that unclassified service includes nine enumerated positions, among which deputy county medical examiner is neither expressly nor impliedly included. MCLA 38.410(b); MSA 5.1191(10)(b), provides:
"The classified service comprises all positions not specifically included by this act in the unclassified service.”
Wayne County Civil Service Commission, Rule 3, specifies those positions with particularity within Wayne County which are included within the unclassified service. Neither the deputy county medical examiner nor the medical examiner are enumerated therein. Indeed, plaintiff has never disputed her classified status.
Retirement Ordinance Enabling Act, MCLA 46.12(a); MSA 5.333(1), states:
"In any county pension or retirement plan adopted under the provisions of this section, the board of supervisors may require that all county employees, except elected or appointed officials, be retired from county service * * * .”
Further,
"Whenever any county shall adopt and establish a plan for the payment of pensions and retirement benefits to its employees, pursuant to the provisions of this section, the board of supervisors of that county shall have the authority to provide for a board of trustees to administer the plan and for the manner of election or appointment of the members of said board of trustees. The board of supervisors is hereby authorized to grant authority to said board of trustees to fully administer and operate said plan and to deposit, invest and reinvest the funds and reserves thereof within the limitations prescribed by the board of supervisors in said plan.” (Emphasis supplied.)
The Retirement Board of Trustees, as empowered, uses the civil service classification rules to determine whether an employee is an "appointed official.” The civil service law applies to petitioner and the long-standing policy of the Retirement Board of Trustees carries great weight.
The Wayne County Retirement System may use civil service classifications to implement the retirement ordinance. Since the inception of the Act, the Board of Trustees of the Retirement System has relied on the Wayne County Civil Service job classification system to determine those positions subject to and exempt from mandatory retirement.
"We have in this state a rule of statutory construction which—for this case—will bear repeating. It is that a long continued construction, given a long-standing statute by executive officers charged with its execution and administration (no one meanwhile having questioned such construction so far as our reports disclose), is entitled to most respectful consideration and will not be overruled without cogent reasons.” People v Holbrook, 373 Mich 94, 99 (Black, J., dissenting); 128 NW2d 484 (1964), cited in Magreta v Ambassador Steel, 380 Mich 513, 521 (Black, J., concurring); 158 NW2d 473 (1968).
See also, Magreta v Ambassador Steel, supra, 519; Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935).
The County Medical Examiner Act, supra, makes appointment and removal of the deputy county medical examiner subject to the county civil service. The Civil Service Act is intimately related to the job classification and to general policy uniformly practiced by the Retirement Board. Clearly, every person included in the Wayne County Civil Service system is either appointed or elected to his position. To adopt plaintiff's construction, it appears to us, would nullify the Wayne County Retirement System’s statutorily conferred powers, and the clear intent of the County Medical Examiner Act, in making removal of the deputy county medical examiner subject to civil service.
Affirmed. No costs, a public question being involved.
All concurred. | [
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Per Curiam.
Defendant was charged with robbery armed, MCLA 750.529; MSA 28.797. He pled guilty to a charge of assault with intent to rob being armed. MCLA 750.89; MSA 28.284. He was sentenced to a term of 15 to 30 years in prison and appeals.
Appellant raised the issue that he was neither informed of nor waived his right to confront witnesses against him. An examination of the record and briefs does not support this conclusion.
This was a negotiated plea to a lesser included offense. The plea taking process should be something more than a word game. The transcript reveals:
’’The Court: Now, Mr. Mathis, you understand you’re considered innocent of the original offense and that [the] presumption of innocence would stay with you if you were to go to trial throughout the trial until and unless a jury or a judge were to find that you were guilty. You would be entitled to the services of an attorney to represent you at the trial, to advise you, to examine witnesses and you would not have to take the witness stand at your own trial if you chose not to, but if you didn’t testify, neither the judge nor the jury could presume that you were guilty of this offense and the judge would have to tell the jury they could not use that as a circumstance against you because you didn’t testify, from the witness stand. They couldn’t use that against you in any way, the prosecution would have to establish your guilt without your testimony if they could do so. So, the jury could not in any way presume upon [the] fact that you did not take the witness stand in arriving at their verdict. Now, do you understand what I have explained so far? [Emphasis supplied.]
’’Defendant Mathis: Yes, sir."
The plain meaning of this advice to the accused that on trial he would be entitled to the services of an attorney "to examine witnesses” certainly cannot be read to exclude witnesses against him. Such common ordinary everyday language conveys much more understandable meaning than the pronouncement of the right to "confront your accusers”. .
This is not a silent record from which waiver cannot be presumed as indicated by Carnley v Cochran, nor is it, in our view, inconsistent with Boykin v Alabama, as that case was construed in People v Jaworski.
We write to the simple proposition that substantial compliance with all the foregoing cases does not rest on phraseology but rather on the substance of the advice given.
The complained-of error in sentencing is controlled by People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).
Affirmed.
369 US 506, 516; 82 S Ct 884, 890; 8 L Ed 2d 70, 77 (1962).
395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969).
387 Mich 21; 194 NW2d 868 (1972). | [
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R. H. Campbell, J.
Plaintiff and defendant were married on September 8, 1947. Two children were born of that marriage; Edwina Wasson, born January 19, 1950, and Jennifer Wasson, born February 24, 1951. Plaintiff and defendant were divorced, and a decree of divorce was entered in the Washtenaw County Circuit Court on December 6, 1952. According to the decree of divorce, Mr. Wasson was ordered to pay $17.50 a week for the support of the minor children. Defendant was incarcerated in the State Prison of Southern Michigan from December of 1954 until February of 1957. On January 25, 1973, an order to show cause was issued by the Washtenaw County Circuit Court, directing defendant to show cause why he should not be held in contempt of court for failure to pay the accrued arrearage of $3,230.00 in child support.
Defendant’s response to the above order was a motion for summary judgment on March 17, 1973. Defendant, relying upon GCR 1963, 117.2(1), said that plaintiff had "failed to state a claim upon which relief can be granted”. The trial court denied defendant’s motion for summary judgment on March 25, 1973. On May 22, 1973, the trial court entered a supplemental order, setting the arrearage amount at $3,230.00 less an amount credited to defendant for the time he spent in prison. Plaintiff, pursuant to the Washtenaw County Friend of the Court’s petition, claimed that a net amount of $1,247.50 in arrearage was now due. See, generally, MCLA 552.253; MSA 25.173 and GCR 1963, 727.4.
On January 19, 1971, Edwina reached the age of majority. On February 24, 1972, Jennifer did the same. Defendant has argued that the trial court committed reversible error when it decided that it had jurisdiction in a contempt proceeding to enforce an order to pay child support on unpaid arrearages which accrue before the children reach the age of majority, where the contempt action was commenced after the children reached that age.
This is a case of first impression in this state. According to MCLA 600.1701(5); MSA 27A.1701(5), the courts of this state may punish, for contempt of court:
"Parties to actions, attorneys, counselors, and all other persons for the nonpayment of any sum of money which the court has ordered to be paid, in cases where by law execution cannot be awarded for the collection of this sum, or the disobedience of or refusal to comply with any order of the court for the payment of temporary or permanent alimony or support money or costs made in any action for divorce or separate maintenance, or any other disobedience to any lawful order, decree, or process of the court.”
A divorce court has jurisdiction to:
"require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age [18 years] and may in case of exceptional circumstances, require pay ment of such allowance for any child after he attains that age.” MCLA 552.17a; MSA 25.97(1).
A person may be punished for contempt of court if that person fails "to pay money for the support and maintenance of minor children” after having been ordered to do so. MCLA 552.201; MSA 25.161. Finally, the Friend of the Court has the power to initiate contempt proceedings "to collect any and all delinquent payments due for * * * dependent minor children”. MCLA 552.253; MSA 25.173. See also GCR 1963, 727.4. Defendant has argued that despite the above provisions, the circuit court lacked jurisdiction to enforce an order requiring the payment of child support by the use of the above contempt power in a contempt proceeding which was initiated subsequent to the date on which the children reached the age of majority.
There is a split of authority among the jurisdictions in this country on the above issue. Anno: Power of Divorce Court, After Child Attained Majority, To Enforce By Contempt Proceedings Payment of Arrears of Child Support, 32 ALR3d 888. It has been noted that seven jurisdictions, Indiana, Minnesota, Mississippi, Oklahoma, Washington, Wisconsin, and Florida, have held that the divorce court lacks jurisdiction in a contempt proceeding to enforce a previous order to pay child support on the unpaid arrearage which accrued before the child reached its majority age, where the contempt proceedings were initiated after the child reached majority age. 32 ALR3d 888, 889. On the other hand, the states of Arkansas, Illinois, New York, Oregon, and Texas:
"have held that a divorce court does have jurisdiction in a contempt proceeding to enforce an order to pay child support on unpaid instalments accruing before the child reached its majority, where such proceedings were commenced after the child reached majority, reasoning that the jurisdiction of the court was a continuing one, and that the emancipation of the child should not serve to cancel the arrears.” 32 ALR3d 888, 891.
In Michigan, our courts have exercised their jurisdiction to order a delinquent defendant to pay the amount of support owed to his minor child in a proceeding initiated after that child had reached the age of majority. Rybinski v Rybinski, 333 Mich 592, 597; 53 NW2d 386, 389 (1952).
In the case of McFarlane v McFarlane, 298 Mich 595, 598; 299 NW 728, 730 (1941), the Court said, "If it is a decree for alimony, plaintiffs remedy should have been by contempt proceedings before the court where the decree was entered instead of by bringing suit to obtain the judgment. It lies within the jurisdiction of the court in chancery to modify or enforce its decrees for alimony.” In Pronesti v Pronesti, 368 Mich 453, 454; 118 NW2d 254, 255 (1962), defendant was subject to contempt proceedings initiated by plaintiff after defendant had refused to obey the divorce court’s decree ordering defendant to pay child support. Such decree was entered on June 5, 1946, at a time when the two minor children were eight and ten years old respectively. Defendant was served with the show cause order in 1960, well beyond the date at which the children had reached the age of 17, the age at which defendant would have been free of his obligation. Without questioning the lower court’s jurisdiction to hold the delinquent husband in contempt,. Pronesti affirmed the decision of the trial court which had in fact relieved the husband of his obligation because of the "changed circumstances” involved in that dispute. 368 Mich 453, 458-459; 118 NW2d 254, 257.
While it involved the question of whether or not a certain provision in a divorce decree, requiring the husband to support his children after they reach the age of 21, could be enforced against the husband by contempt proceedings, Ovaitt v Ovaitt, 43 Mich App 628, 629-630; 204 NW2d 753, 754-755 (1972), does contain some language which might be relevant to the instant case. Ovaitt held that this provision was enforceable by contempt proceedings, and that the order or judgment regarding the support and college expenses of these children could be enforced if the children were "minors at the time of entry of such order or judgment". 43 Mich App 628, 638; 204 NW2d 753, 758. (Emphasis in original.) Ovaitt referred to MCLA 552.151; MSA 25.151, noted that it was concerned "with the enforcement of support provisions of a judgment of divorce”, and said:
"The language of this section also indicated that if the order was entered during the minority of the child that its terms are enforceable by contempt proceedings. We see no bar or prohibition to such enforcement in any of our statutes nor in the cases decided thus far.” 43 Mich App 628, 639; 204 NW2d 753, 759.
Therefore, our Court has found that support provisions of a judgment of divorce, entered during the minority of a child, are enforceable by contempt proceedings initiated after that child has reached the age of majority.
In the instant case, the support order at issue was entered during the minority of the two children. The amount at issue accrued before these children reached the age of majority. The total arrearage was in fact reduced by the trial court, and defendant failed to argue that he does not owe the requested amount. Mrs. Wasson had to expend her own money to maintain her children, without receiving the requested assistance from her husband. In all fairness, Mrs. Wasson should not be denied the use of contempt proceedings as an effective means to enforce her husband’s duty to support his children. Since Michigan courts have apparently exercised their jurisdiction in somewhat similar proceedings, and because the statutes cited above regarding the power of the court to punish for contempt those who disobey orders for the payment of child support do not bar the initiation of proceedings such as the one at bar, we hold that the trial court was correct in its finding that it had the jurisdiction to enforce the support order at issue even though the contempt proceeding was initiated after the children had reached the age of majority.
Affirmed with costs to appellee.
All concurred.
MCLA 600.112; MSA 27A.112. "The term 'judgment,’ as used in this act, includes decree.” 1961 PA 236, eff Jan 1, 1963, and GCR 1963, 518.1. | [
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Holbrook, J.
Defendant Diecast Corporation initiated a profit-sharing plan for its employees on October 1, 1961. Under the terms of the plan, Diecast Corporation was required to contribute a sum equal to 20% of the net profits of the company for each fiscal year in excess of 6% of the book value of the company at the beginning of the year. However, the contribution was not to exceed 15% of the compensation otherwise paid or accrued during that fiscal year to all participants in the program.
In 1965 Diecast Corporation and the plaintiff entered into a collective bargaining" agreement. The agreement provided under article XIII, § 4:
"The profit-sharing program now in effect will be continued for the duration of this agreement. Employee distributions will be made by March 10 of each year. Certification by the corporate officer filing the federal tax return is conclusive. This program is not subject to the grievance procedure.”
This provision has been in each collective bargaining agreement since 1965.
Diecast Corporation paid nothing under the profit sharing plan to plaintiff’s members in 1970, allegedly because there were insufficient profits to allow any contributions for profit sharing benefits. Diecast’s failure to pay benefits in 1970 precipitated this suit. Plaintiff filed a complaint on June 23, 1971, against Diecast Corporation, and thereafter on September 1, 1971, filed an amended complaint which among other things added the defendant Jackson Die Company as a defendant. Pertinent portions of the original complaint and amended complaint containing plaintiff’s allegations read as follows:
Original Complaint
"6. That in the year 1970, the defendant Diecast Corporation reported its profits to be so low that it was unable to participate in the profit sharing plan as set out above.
"7. That all records, vouchers and books of the business are kept by the officers of the defendant at its principal place of business and the plaintiff officers have not been permitted to see such documents for the purpose of examination of the said records. For this reason plaintiff has no means at its command to determine the amounts due the employees under this profit sharing plan with the defendant.
"8. That during the period that this profit sharing plan has been in operation the defendant, Diecast Corporation, has never accounted to plaintiff, as representative of the employees of Diecast Corporation, for the amounts paid under the profit sharing plan.
"9. That defendant should be required to account to plaintiff for such net profits received by the defendant. And in order that said accounting may properly be had, the defendant should be required to show the records of its net profits for the fiscal year of 1970.”
Amended Complaint, Count I
"4. That defendant Diecast Corporation should be required to certify to plaintiff the book value of defendant Diecast Corporation at the beginning of each year from the inception of said profit sharing plan to and including January 1, 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
“5. That defendant Diecast Corporation should be required to certify to plaintiff the net profit of defendant Diecast Corporation, as that term is defined under said profit sharing plan, for each year from the inception of said profit sharing plan to and including the net profits for the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
"6. That defendant Diecast Corporation should be required to certify to plaintiff the total amount of defendant Diecast Corporation’s contribution to said profit sharing plan for each year from the inception of said profit sharing plan to and including the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
"7. That defendant Diecast Corporation should be required to certify to plaintiff the total number of full days worked by all employees participating in said profit sharing plan for each year from the inception of said profit sharing plan to and including the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
"8. That defendant Diecast Corporation should be required to furnish to plaintiff the federal income tax returns of defendant Diecast Corporation for each year from the inception of said profit sharing plan to and including the year 1971 for verification of the amount of net profit of defendant Diecast Corporation for each year from the inception of said profit sharing plan to and including the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
"9. That defendant Diecast Corporation should be required to provide to plaintiff records of defendant Diecast Corporation for verification of the book value of defendant Diecast Corporation at the beginning of each year from the inception of said profit sharing plan to and including the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.
"10. That defendant Diecast Corporation should be required to certify to plaintiff the total number of employees participating in said profit sharing plan for each year from the inception of said plan through and including the year 1971, which defendant Diecast Corporation has failed, refused and/or neglected to do.”
Amended Complaint, Count II
"9. Because of the fiduciary duty owed to the employees of Diecast Corporation, because of the fact that Jackson Die Company may derive all its revenue from Diecast Corporation and because of the fact that Die-cast Corporation and Jackson Die Company are conducting their business as a single corporate entity, instead of distinctive separate entities, defendants Die-cast Corporation and Jackson Die Company should account to plaintiff for all revenues paid to Jackson Die Company for work performed by employees of Jackson Die Company, and should account to plaintiff for all receipts from Jackson Die Company for rent, utilities and other expenses of operating Jackson Die Company which would normally be paid by Jackson Die Company, but on information and belief are not so paid, and should furnish to plaintiff all records necessary to determine whether excessive amounts have been paid to Jackson Die Company.”
On October 4, 1972, the defendants filed a motion for accelerated judgment, alleging that the circuit court lacked jurisdiction to hear the case. On December 27, 1972, the trial judge granted the defendants’ motion on the grounds that the allegations in plaintiff’s complaint, if proved, constituted an unfair labor practice under § 8(a)(5) of the National Labor Relations Act (hereafter NLRA), 29 USCA 158(a)(5), and was, therefore, solely within the jurisdiction of the National Labor Relations Board (hereafter NLRB), under the preemption rule announced in San Diego Building Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959). Plaintiff now appeals, claiming the trial court erred in holding that it did not have subject matter jurisdiction to hear this case.
The jurisdictional rules in this area are fairly straightforward. San Diego Building Trades, supra, held that when an activity is arguably protected or prohibited by § 7 or § 8 of the NLRA, the state and Federal courts must defer to the jurisdiction of the NLRB. An exception to this rule was carved out in Smith v Evening News Association, 371 US 195; 83 S Ct 267; 9 L Ed 2d 246 (1962), wherein the Supreme Court in interpreting § 301 of the Labor Management Relations Act (hereafter LMRA), 29 USCA 185, held that even if the conduct of an employer is concededly an unfair labor practice and within the jurisdiction of the NLRB, the Board’s jurisdiction is not exclusive and does not displace the jurisdiction of the courts in suits for alleged breaches of collective bargaining contracts under § 301 of the LMRA. If the Federal courts have jurisdiction under § 301 of the LMRA, then the state courts may also have jurisdiction under their own laws. Charles Dowd Box Co v Courtney, 368 US 502; 82 S Ct 519; 7 L Ed 2d 483 (1962).
As aforesaid, the trial judge granted the motion for accelerated judgment on the ground that allegations in plaintiffs complaint, if proved, constituted an unfair labor practice under the NLRA, and was therefore solely within the jurisdiction of the NLRB per the San Diego Building Trades rule. We agree with the trial judge that defendants’ alleged conduct, if proved, would constitute a bad faith refusal to bargain which is an unfair-labor practice under the NLRA. However, this completes only one-half of the required analysis. For though defendants’ alleged conduct, if proved, is concededly an unfair labor practice, the NLRB’s jurisdiction over the conduct is not exclusive if the actions also amount to a breach of the collective bargaining agreement, per Smith, supra, and § 301 of the LMRA.
Our review of plaintiffs complaint forces us to conclude that the trial court erred in granting defendants’ motion for an accelerated judgment and in holding that he had no jurisdiction to determine the issues raised in plaintiffs complaint. First, the above quoted portions from plaintiffs complaint claim, albeit in an indirect way, that the "certification” required to be made by the corporate officer filing the Federal income tax return in accordance with the provision of the collective bargaining agreement quoted above required much more than was apparently done by the defendants here. Clearly, then, contract interpretation is the task laid before the trial court, a task within the trial court’s jurisdiction under §301 of the LMRA, 29 USCA 185. Two fairly recent Federal cases underline the validity of this conclusion. In United Steelworkers of America, AFL-CIO v Rome Industries, Inc, 437 F2d 881, 882-883 (CA 5, 1970), the Court held that:
"The District Court erred in concluding that it could not make the determination of whether a contract existed because it considered there were insufficient allegations of breach. In El Paso Bldg & Constr Trades Council v El Paso Chapter Assoc Gen Contractors, 376 F2d 797 (CA 5, 1967), we held it unnecessary to allege violation of the contract to secure a declaratory judgment of rights under the contract. In this instance the failuré to allege a breach did not deprive the District Court of its power to determine whether the alleged contract existed.”
The Court in Bieski v Eastern Automobile Forwarding Co, Inc, 396 F2d 32, 33-34 (CA 3, 1968) followed a path like that of the Court in United Steelworkers in ruling:
"The underlying controversy in this case concerns certain seniority rights under a collectively-bargained labor agreement. There being substantial allegations that the seniority rights, if any, arise from such a contract and that recourse may lie for an alleged breach of the contract, the court has jurisdiction under § 301(a) of the Labor Management Relations Act of 1947, 29 USC § 185(a), authorizing District Court jurisdiction of suits for 'violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce’.” (Emphasis supplied.)
In essence, then, if the substance of the complaint concerns contract interpretation and potential contract breach, the courts have jurisdiction to hear the case even though alleged conduct cited in the complaint may also amount to an unfair labor practice. Clearly, a suit challenging the level of payments due under a profit sharing program in a collective bargaining agreement comes within this jurisdictional rule. For supportive cases, see Food & Service Trades Council v Retail Associates, 115 F Supp 221 (ND Ohio, 1953) (suit over commissions allegedly due sales clerks under a bargaining agreement); Chapman v Southeast Region ILGWU Health & Welfare Recreation Fund, 265 F Supp 675 (D SC, 1967) (suit to recover vacation pay allegedly wrongfully diminished under a collective bargaining agreement); O’Rourke v Breakstone Bros, Inc, 218 F Supp 648 (SD NY, 1963) (suit by a trustee of a dissolved local union to compel defendant employers to account for contributions allegedly due employee welfare funds and to pay such amounts over).
Reversed and remanded for further proceedings. Costs to await the final outcome.
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McGregor, P. J.
Defendant was convicted of breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305, was sentenced to 5-1/2 to 15 years in prison, and appeals as of right. The issues raised are procedural rather than substantive—at least, the defendant does not challenge the facts as insufficient to support his conviction.
Defendant contends that when a criminal defendant does not take the stand, it is reversible error for the prosecution to adduce during the trial the fact that the defendant was a prison escapee at the time of the alleged offense. The general rule is that prior convictions and unrelated pending charges are not admissible as substantive evidence of the defendant’s guilt except in order to impeach his credibility. People v Falkner, 389 Mich 682; 209 NW2d 193 (1973); People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). If defendant does not testify, there is no prior inconsistent testimony to be impeached. On the other hand, there is a high degree of probability that a jury will infer his guilt of the offense charged on the basis of his past record. The ordinary and best practice is consequently to exclude such testimony in these circumstances. People v Dunn, 46 Mich App 226; 208 NW2d 239 (1973). See also People v McPherson, 21 Mich App 385, 397-398; 175 NW2d 828 (1970). One exception is when these matters are part of the res gestae of the crime at bar. People v McPherson, 38 Mich App 534, 540-545; 197 NW2d 173 (1972).
A detective sergeant of the State Police who investigated this crime testified:
"Q. (by Mr. Spray, People’s attorney): Detective Nystrom, I now show you People’s proposed exhibit eleven, a box and its contents, and ask you if you’ve seen that before.
"A. Yes* * *
"Q. Where were these things found?
“A. These were found in the bedroom on the bedroom floor. The pants were wet up to about the knees; and, like I said, there is this prison number in the inside of the pants, which is common for prison clothing.
"I did make a check of this number—14910—and found it was registered to a William Hawley, an inmate at the prison, who was then and there at the Wing Farm.
”Q. (by Mr. Spray, continuing): As a result of your investigation, did you check on anyone else from the prison system at that time in that area?
”A. Yes. I—an officer brought me out a flier, escape flier, from the prison on an inmate—
"Mr. Boham (defense attorney, interrupting): Objection.
"A. (Continuing):—that had escaped that morning—
"The Court: Well, let’s take the jury out for a few minutes, and we’ll cover this out of the presence of the jury for a minute.
’’The Court: 1 don’t know what you propose to—I’ll allow you to go ahead with your questioning now to see what you’re leading up to, Mr. Spray, and see if it’s objectionable on a separate record here.
”Mr. Spray (addressing the witness): Detective Nystrom, did you—in the course of your investigation, were you aware of anyone else who had escaped, or was reported missing from the prison system at that time who might have worn those clothes?
"The Witness: Yes. Elma Vernon Andrews was reported missing at 6:30 a.m. on May the 16th, 1972, and—
"Mr. Spray: Now, in the normal course of your investigations on this kind of a case, would you have—do you normally check the escapees, or the escape report?
"The Witness: Oh, yes, we certainly do. On any crime that’s—reported to us, we check it against any possible recent escapes, and we have solved many crimes that way.
"Mr. Spray: Now, after—
"Mr. Boham: Objection.
"Mr. Spray (continuing):—after checking this report, did you—what did you do on the basis of checking this report in seeing that the defendant Elma Andrews had been reported missing from the prison system?
"The Witness: Well, I obtained a bunch of mug photos, and I later showed these to the three previous witnesses. That would be Mr. Bradley, Lois—uh—Win-gen, or—Lois—Mrs. Kenneth Wielenga, and Mr. Osterhouse. I showed this group of mug pictures, and I have those with me also—six mug pictures—one of which is the same picture on this escape notice. Then I took the information from this notice of the name of the suspect, Elma Vernon Andrews, and his birth date, and I give this information to our latent print unit, so that they could pull his fingerprints that were on file and compare them with the prints that I—
"Mr. Boham (interrupting): Objection.
"The Witness (continuing):—that I had on the bottom of the cookie jar. It was only for that purpose that I used this flier, to get an idea who is the suspect on this crime.
"Mr. Spray: Your Honor, I believe there has been previous testimony that these clothes as they appear in the photographs, were not in the home at the time the owner of the home left, but were there when he returned, and this testimony is offered solely to explain the presence of these clothes * * * in the home.
’’The Court: I realize the objection. I’m going to allow you here to go ahead. I’m going to allow you to question Detective Nystrom just as you have here off the record, or, on a separate record, I’ll allow you to continue that type of questioning in front of the jury, and I’ll overrule any objection in this regard by Mr. Boham, and, of course, his objection shows for the record, in the event that he wishes to preserve that. I’m sure he does.
"So, continue the questioning along that line, as you did here, I think we’re going to be all right as far as I’m concerned.”
These matters were then put on the record in the presence of the jury.
This testimony falls within the perimeters of the res gestae rule laid down in People v McPherson, supra.
"Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and * * * so illustrate and characterize the principal fact as to * * * render [them] necessary to exhibit [it] in its proper effect.” People v Kayne, 268 Mich 186, 191-192; 255 NW 758 (1934) (citations omitted).
Among the primary characteristics of res gestae facts are their probative value in establishing either motive or intent. Detective Nystrom’s testimony is highly relevant on both those grounds.
This Court can take judicial notice of the fact that when an inmate escapes from prison, his first impulse is to ditch his prison garb in favor of civilian attire that will enable him to blend in with other people. The obvious means to do so, in the event that accomplices are not waiting outside the walls with a change of clothes, is to break into nearby homes to get hold of one. By eliciting the fact that the defendant had escaped from Jackson Prison only hours before the crime charged here took place, the people demonstrated his possible— and likely—motive for committing it. In addition, the offense is properly styled breaking and entering a structure "with intent to commit any felony or larceny therein”. MCLA 750.110; MSA 28.305. It is a specific intent crime. Consequently, for the reasons just described, this testimony is most probative of the larcenous intent requisite to obtain a conviction. The evidence at bar falls squarely within the province of res gestae facts. Its admission is neither error nor an abuse of judicial discretion. Despite its high potential for being prejudicial to the defendant, it is extremely probative in the context of this case.
The defendant also contends that it was reversible error for the trial court sua sponte to give the jury a cautionary instruction that it could not draw any adverse inferences from the fact that the defendant did not take the stand.
The essence of the defendant’s argument is that such sua sponte instructions amount to a comment or reference by the trial judge on the defendant’s failure to testify in his own behalf in violation of MCLA 600.2159; MSA 27A.2159. The appellate defender makes a cogent argument for that position. The policy behind the statute is that "neglect to testify shall not create any presumption against [the defendant]”. To instruct the jury to that effect in the absence of request to do so represents commendable concern for the rights of the defendant and should in no way work against his interests. People v Waters, 16 Mich App 33, 36-37; 167 NW2d 487 (1969). There is no merit to this contention of the defendant. People v Harris, 52 Mich App 739; 218 NW2d 150 (1974).
Defendant further contends that it was error for the trial judge not to credit the defendant for the time served between his arrest and conviction.
MCLA 769.11b; MSA 28.1083(2) provides:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
This statute is remedial in nature and is accordingly to be liberally construed. People v Cohen, 35 Mich App 706; 192 NW2d 652 (1971). Its purpose, usually, is to put an accused who cannot post bail due to his indigency on an equal status with his counterpart who can. Bowen v Recorder’s Court Judge, 384 Mich 55; 179 NW2d 377 (1970); People v Pruitt, 23 Mich App 510, 513; 179 NW2d 22 (1970); People v Chattaway, 18 Mich App 538; 171 NW2d 801 (1969). The question here is its relevancy in the case of a defendant whose present incarceration on an unrelated prior charge precludes his admission to bail in any event.
With the sole exception of prison escape, there is no reason to treat offenses committed by inmates incarcerated on unrelated charges any differently than offenses committed by those not so incarcerated. People v Hall, 19 Mich App 95; 172 NW2d 473 (1969). Such disparate treatment raises arguable and serious equal protection problems. It follows that the sentence imposed must be amended pursuant to GCR 1963, 820.1(7) to grant the defendant credit for the 157 days which he had served between arrest and conviction. People v Lewis, 42 Mich App 121; 201 NW2d 341 (1972).
Other errors alleged by defendant are not reversible.
Defendant’s conviction is affirmed and the sentence is modified to grant credit for 157 days imprisonment served prior to conviction.
All concurred.
E.g., People v Andriacci, 11 Mich App 482; 161 NW2d 435 (1968) (action to evade explaining facially felonious presence in broken-into shops is admissible in prosecution for breaking and entering).
Compare People v Cygan, 229 Mich 172; 200 NW 967 (1924) (evidence that defendant shot other persons at the same time as complaining witness admissible in prosecution for assault with intent to kill as probative of intent), with People v Dudley, 131 Mich 261; 90 NW 1058 (1902) (evidence that defendant pointed a gun at other persons without firing it just prior to allegedly accidental shooting of complaining witness admissible in prosecution for careless use of a gun as probative of lack of malice).
One proffered reason for not granting credit for time served here is the deterrent effect rationale of MCLA 750.193; MSA 28.390:
"We consider that placing a premium on prison escape under the involved statute does result in 'absurd consequences’. It is apparent that to grant * * * credit from the date of * * * arraignment on the warrant for prison escape * * * would be an invitation to all inmates similarly circumstanced to attempt escape, then if apprehended and arraigned simply to indicate an inability to furnish bond. Automatically credit would of necessity be extended from the date of apprehension and arraignment to the date of sentencing for prison escape.” People v Pruitt, supra, 23 Mich App 514.
To the same effect are People v Passalacqua, 48 Mich App 634; 211 NW2d 59 (1973); People v Holibaugh (Docket No. 13907, decided April 27, 1973 [unreported]); People v Brooks, 33 Mich App 297; 189 NW2d 816 (1971). Indeed, Brooks expressly refused to overrule Pruitt on this point.
Another suggested distinction between prison escape and other crimes is that with respect to the former, the sentence is mandatorily consecutive: See People v Bachman, 50 Mich App 682; 213 NW2d 800 (1973). | [
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] |
V. J. Brennan, J.
On June 22, 1972, plaintiffs filed a complaint in the Ingham County Circuit Court seeking declaratory and injunctive relief against the defendants with respect to certain action taken by the Michigan Civil Service Commission and the Department of State Police which, plaintiffs alleged, was contrary to Const 1963, art 11, § 5 and the commission’s own rules. The acts which are the subject of the present controversy occurred while plaintiff, Donald L. Calcatera, was a member of the Michigan State Police occupying the position of "Sergeant 11”. In their complaint, plaintiffs alleged that at the time the complained-of acts occurred, Sergeant Calcatera was, by virtue of his "time in grade” and his successful completion of a competitive examination, eligible for promotion to the rank of "Staff Sergeant Level 12” (now called Lieutenant) and that his name was placed on the appropriate promotion list. Plaintiffs alleged that in 1971, however, a restructuring and reorganization of the Michigan State Police was undertaken by the Michigan Civil Service Commis sion and the Department of State Police which involved the reallocation of thirty-eight "Small Post Commanders” from level 11 to level 12 and the abolition of the position of "Assistant Post Commander”, a level 11 position, with the persons affected thereby placed on a level 12 layoff list. Plaintiffs further alleged that many of the persons who had occupied these positions at the time of the reorganization had not satisfied the basic requirements necessary for promotion to a level 12 position. The net effect of this restructuring and reorganization, plaintiffs alleged, was to elevate a number of the small post commanders to a level 12 position and to put a number of the displaced assistant post commanders on a list given preferential treatment for placement in level 12 positions in a manner contrary to Const 1963, art 11, § 5, thereby improperly depriving Sergeant Calcatera of promotion to the level 12 position for which he was eligible. Plaintiffs sought declaratory relief and an injunction restraining defendants from promoting any other "Sergeant 11” to "Lieutenant 12” until plaintiff Calcatera was promoted to the position of "Lieutenant 12”. Defendants filed no answer to plaintiffs’ complaint but, instead, filed a motion for accelerated judgment on the ground that the circuit court was without jurisdiction. GCR 1963, 116.1(2). After a hearing, the trial court granted defendants’ motion for accelerated judgment and dismissed the case. The trial court held that plaintiffs were actually seeking relief in the nature of mandamus instead of declaratory and injunctive relief as prayed for in the complaint and that, therefore, the action could only have properly been brought in the Court of Appeals. MCLA 600.4401; MSA 27A.4401; GCR 1963, 714.1(1). The circuit court also held that to allow the action to continue as one for declaratory relief would conflict with our Supreme Court’s holding in Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971).
Plaintiffs now appeal alleging that the circuit court erroneously granted defendants’ motion for accelerated judgment. Plaintiffs contend that by their complaint they properly sought declaratory and injunctive relief and that the holding of our Supreme Court in Viculin does not require a different conclusion.
In their complaint plaintiffs have clearly alleged a violation of the provisions of Const 1963, art 11, § 5. This article of the Constitution, in addition to establishing the state civil service and the manner of selecting and promoting civil service employees, provides:
"Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.”
Defendants contend that this constitutional provision was not meant to apply to a case such as plaintiffs’. Defendants argue Viculin made clear the "individual personnel decisions” of the Civil Service Commission are subject to review only under Const 1963, art 6, § 28 and that the method of review provided thereby is set out in GCR 1963, 706.3, which requires a plaintiff to employ the appeal procedures set out in the Administrative Procedures Act (MCLA 24.201 et seq.; MSA 3.560 [101] et seq.). They contend that the remedial provision of Const 1963, art 11, § 5 was only meant to apply to a situation where there has been a wholesale abandonment of the civil service system or a serious interference therewith. We disagree. In Viculin our Supreme Court dealt only with the methods of reviewing action of the Civil Service Commission under Const 1963, art 6, § 28 and did not purport to be limiting or construing the right of "any citizen” to employ the remedial provision of Const 1963, art 11, § 5. This provision permits any citizen to seek injunctive or mandamus relief to assure that any of the provisions of Const 1963, art 11, § 5 are complied with. In the case at bar the circuit court held, however, that plaintiffs were actually seeking mandamus relief and that, therefore, it did not have jurisdiction. We disagree with this determination. The fact that the requested injunctive relief would effect a result closely approximating that achieved through mandamus does not provide a basis for the circuit court to dismiss this complaint for lack of jurisdiction. See Civil Service Commission v Secretary of State, 379 Mich 613; 154 NW2d 451 (1967). We express no opinion, however, as to whether plaintiffs’ complaint presents a meritorious case for the requested relief. This determination is properly for the circuit court after each side has had the opportunity to present its proofs.
The circuit court also held, and we agree, that to allow plaintiffs to maintain their action as one for declaratory relief would conflict with the decision of our Supreme Court in Viculin. The appeal provisions of the Administrative Procedures Act (MCLA 24.201 et seq.; MSA 3.560[101] et seq.) must be complied with when a party seeks to review action of the Civil Service Commission in a manner other than that provided by Const 1963, art 11, § 5. See Viculin v Department of Civil Service, supra; Const 1963, art 6, § 28; GCR 1963, 706.3. An examination of the record in the case at bar reveals that plaintiffs failed to do this. Thus, under the facts of this case, we cannot say that the trial judge’s determination with respect to this aspect of the case was erroneous.
Reversed and remanded for proceedings not inconsistent with this opinion.
All concurred. | [
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O’Connell, P.J.
Defendant appeals by delayed leave granted his sentence of two to fourteen years in prison imposed following his conviction of a probation violation. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant pleaded guilty of uttering and publishing, MCL 750.249. The statutory sentencing guidelines established a minimum term range of nine to twenty-three months. Because this range permitted an intermediate sanction, the trial court’s sentence of one year of probation was within the guidelines. MCL 769.34(4)(c); MCL 769.31(b). Shortly thereafter, defendant pleaded guilty of violating his probation. The trial court concluded that it was not required to adhere to the guidelines when imposing sentence following a conviction of probation violation and sentenced defendant to two to fourteen years in prison, exceeding the minimum range of the guidelines by one month.
Contrary to the sentencing court’s conclusion, our Supreme Court has recently held that the statutory sentencing guidelines apply to a sentence imposed after a probation violation. People v Hendrick, 472 Mich 565, 565; 697 NW2d 511 (2005). However, the Court in Hendrick also recognized that conduct underlying a probation violation may serve as a substantial and compelling basis for departure. Id. Putting conduct aside, any probation violation represents an affront to the court and an indication of an offender’s callous attitude toward correction and toward the trust the court has granted the probationer. The violation itself is objective and verifiable, so we see no reason why a court must focus exclusively on the underlying conduct, especially since the conduct itself may be punished in a separate proceeding. We conclude that the offender’s probation violation itself is an objective and verifiable factor worthy of independent consideration. Because the probation violation is objective and verifiable, the trial court in its discretion may conclude that the factor provides a substantial and compelling reason to depart from the sentencing guidelines. Here, defendant violated his probation, and the trial court only departed from the guidelines by one month.
Moreover, when a reviewing court determines that a sentencing court would prescribe the same sentence notwithstanding a misunderstanding of the law or irregularity in the proceedings, the reviewing court may simply affirm the sentence. People v Babcock, 469 Mich 247, 260-261; 666 NW2d 231 (2003). Under the circumstances of this case, we affirm defendant’s sentence and decline to remand for resentencing. The trial court indicated that the guidelines range, though inapplicable, did not give adequate weight to defendant’s prior record. Defendant had ten felony convictions, thirty-one misdemeanor convictions, and had served five prison terms and numerous jail sentences. A trial court may depart from the guidelines range on the basis of an offense or offender characteristic that was already considered in calculating the guidelines range if the court concludes “that the characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b). Because the trial court articulated a substantial and compelling reason for imposing a sentence that exceeded the guidelines and indicated that it would have handed down the same sentence had it found the guidelines applicable, we need not remand for resentencing. Babcock, supra.
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Whitbeck, C.J.
i. OVERVIEW
Defendant Aaron Willing appeals by right his jury conviction of conspiracy to deliver 225 to 649 grams of a controlled substance after arranging to sell nine ounces of cocaine to an undercover police officer. Willing, who represented himself with the assistance of an appointed attorney, argues that he did not waive his right to counsel until after trial had begun, and that the trial court improperly allowed portions of the trial to proceed without Willing’s presence. We reverse, because Willing experienced a total deprivation of counsel during a critical stage of the proceedings.
II. BASIC FACTS AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
The facts of this case are essentially undisputed. Martin Lavin, an undercover officer with the Royal Oak police, learned from a confidential informant that the informant and Willing had discussed selling drugs while they were incarcerated together. The informant gave Willing’s telephone number to Lavin, and, after Willing was released from jail, Lavin began calling to ask if Willing would sell him cocaine. Willing initially told Lavin that he could not procure the amount Lavin was seeking and did not want to participate. However, in a three-way telephone conversation with Lavin, Willing, and Willing’s friend Danny Potter on December 30, 2001, Willing agreed to sell Lavin cocaine.
In a tape-recorded call later that day, Lavin asked Willing whether he should bring enough money for 472 or nine ounces, and Willing responded that he had “two different guys checking on it” who “both got it,” and he was expecting a call back with the price. When Lavin called back a second time, Willing told Lavin that he had “never bought nine before,” but thought the price would be “seventy-four,” meaning $7,400. Willing told Lavin that “he’s on his way out here right now,... I’m going to talk to him, check it out, get a price, get a ticket on it... give me fifteen more minutes and I’ll let you know.” When Lavin asked how it would “go down,” Willing responded that it would be “me, you, him, and probably one of his boys. And my girl.” Willing suggested they meet at a bar near 1-75 and M-24, and Lavin agreed.
The next day, Willing called Lavin and told him that he “got it for all nine of them,” meaning all nine ounces. On January 3, 2002, Lavin called Willing, who asked him if he knew what a “key,” or a kilogram of cocaine, looked like. When Lavin responded that he did, Willing said, “All right, this thing, it was about one or two inches thick and it was the length of the key,” and it looked like a “flat chunk” that had been broken directly off the key. Willing told Lavin that a friend would be driving him to the meeting place, which they had changed to a fast-food restaurant near Eight Mile Road and Greenfield.
Lavin, who was wearing a hidden microphone, drove to the meeting place with undercover officer Kenneth Bean to meet Willing, who had told Lavin that he and his friend would arrive in a Dodge Stratus. The friend was Danny Potter, who had participated in the December 30, 2001, conversation with Willing and Lavin. Lavin and Willing walked over to Potter’s parked car, and Willing got into the passenger seat. Willing told Lavin to expect the man with the drugs to arrive in a Grand Marquis between 5:30 and 6:00 p.m. As they waited, Willing offered Lavin the keys to Potter’s car to assure him that Potter could not drive away until the deal was completed. Sometime after 6:00 p.m., a man named London arrived with a bag of a white powdery substance. London showed Lavin the bag and allowed him to weigh it, but would not let him smell it. Lavin then gave the signal for his backup officers to move in, and they took Willing, Potter, and London into custody. As they did so, Lavin heard London say, “it’s flour.” A field test confirmed that the substance in the bag was not cocaine.
After being taken to the police station, Willing waived his Miranda rights, and Lavin interviewed him. According to Lavin, Willing told him that he knew he could get cocaine through Potter, who had a source from whom he, in turn, could get it. Willing told Lavin that he had expected that source to be at the arranged meeting place at the same time Lavin, Willing, and Potter arrived. Instead, Willing and Potter drove to the arranged place and “waited for the stuff to arrive,” which took about forty-five minutes. Willing’s written statement also indicated that “[t]he purchase agreement was nine ounces of cocaine.” Lavin asked whether Willing knew that the substance to be delivered was flour, and, according to Lavin, Willing responded, “I had no idea. I thought it was going to be cocaine.” After a preliminary examination, Willing was charged with conspiracy to deliver cocaine.
B. PRETRIAL MOTIONS AND SUBSTITUTION OF COUNSEL
Before trial, Willing moved for a Walker hearing to exclude the statement he gave Lavin at the police station, and also moved for a finding that Lavin had entrapped him into agreeing to sell cocaine. However, before the hearings on these motions could take place, the prosecution filed a motion to disqualify Willing’s retained attorney on the ground that he had previously represented the confidential informant on drug-related charges. The trial court granted the motion to disqualify Willing’s attorney, and appointed attorney Scott Neumann to represent Willing.
When the entrapment and Walker hearings began on March 10, 2003, Willing was not present, although Neumann stated that he had told Willing to be there on that date. Neumann waived Willing’s appearance, and the trial court proceeded with the hearings. Lavin and the confidential informant both testified, and the trial court was given the tapes of Willing’s phone calls and Willing’s signed waiver of rights. The trial court declined to rule on either motion until Willing could appear and testify.
At the beginning of the resumed hearings, Neumann told the trial court that Willing wished to dismiss him and proceed pro se. The following exchange occurred:
[Defense Counsel]: There is one issue as well. My client advised me that he would like to represent himself in this matter. I have explained to him the consequences of that and the options. That is his sound decision, unintelligently [sic]. Before I do—
The Court: This is Mr. Willing; is that correct?
[Defense Counsel]: Before I do anything, your Honor, he did request from me — he would like a request from this Court another court appointed attorney. I’ll let him address that issue himself.
The Court: Mr. Willing?
Mr. Willing: Your Honor, I have had, as far as me and Mr. Neumann go, our relationship has been miniscule [sic], if at all. Probably since he’s taken the case we’ve probably had contact a total four or five hours. I haven’t been pleased with our relationship. He, he hasn’t, he hasn’t given me the representation that I feel that I deserve.
As far as representing myself, I would respectfully ask the Court if he — if you could grant an adjournment so that I can try and retain my own attorney so I can have the defense that I want. And if that’s not possible, if you could grant me another court appointed attorney that I will be able to get along with and actually have a solid defense that I feel I’m worth.
The Court: What is the charge here?
[Prosecutor]: Your Honor, this is a conspiracy to deliver between 225 to 649 grams of cocaine. The maximum sentence is I believe 30 years, and it’s a mandatory minimum of 20 years, your Honor.
Mr. Willing: Which is why I’m so adamant about my defense.
The Court: Mr. Neumann is one of the finest young attorneys around, and he is very thorough in regards to his conduct with his clients. I’m going to continue him. You are — you may represent yourself, but he will be there to counsel you as you proceed to try to represent yourself in this tried.
At this point, the prosecutor told the trial court thát Willing had retained an attorney who was dismissed for having a conflict of interest, and expressed the opinion that Willing had the right to hire an attorney if he had the means to do so. The trial court asked Willing whether he had the means, and Willing responded that he had spent more than $17,000 on his previous attorney, but hoped to retain an attorney for “a couple thousand dollars.” The trial court responded:
The Court: You’re going to retain an attorney on $2,000 on a case-
Mr. Willing: No.
The Court: — that has a minimum of 20 years?
Mr. Willing: No. I don’t think I will be able to retain him for 2,000, but I believe to be able to retain someone between 5 and 10.
The Court: You have an attorney here who knows as much about the system as any other attorney does, who knows enough about the rules of evidence than anyone does.
Mr. Willing: I understand.
The Court: And this was the date and time set for trial.
Mr. Willing: I do, I do understand that, your Honor.
The Court: And I thought we had a long discussion, what was it, two or three weeks ago about this date being the date certain, did we not?
[Prosecutor]: We did, your Honor. It was last week, earlier in the week.
[Defense Counsel]: That’s correct, your Honor.
The Court: And I think you were so advised, were you not?
Mr. Willing: I, I was, your Honor. I’m not asking you to do anything you wouldn’t want to do. I’m just asking you to—
The Court: Well, I’m trying to do what is right.
Mr. Willing: That’s, that’s—
The Court: For the system and for you.
Mr. Willing: — the problem right there.
The Court: As well, because I know that I have the greatest confidence in Mr. Scott Neumann. He, he understands the system and I think he’ll represent you as well as possible. We have this date set for trial. We’ll go to trial.
Mr. Neumann will sit to the right of you and you may ask him for any counsel in regards to anything pertaining to the procedure of this case and you may counsel with him as you deem appropriate.
Thank you.
Let’s go through with the hearing.
The combined hearings proceeded, with Lavin repeating the testimony he had previously given, Willing questioning himself, and Willing calling his girlfriend to testify about the frequency of Lavin’s calls during December and Willing’s responses to those calls. After hearing the testimony, the trial court ruled that Willing was not entrapped and that his statements to the police were voluntary and admissible.
C. THE TRIAL
The trial began on August 5, 2003. The trial court decided to try Willing and Potter simultaneously, but before two different juries. After Willing’s jury was empanelled, the trial court elicited a valid waiver of counsel from Willing and confirmed that he intended to proceed pro se with Neumann acting as standby counsel.
Lavin, Bean, and two other officers who participated in the undercover operation testified for the prosecution. Transcripts of six telephone conversations between Willing and Lavin were admitted, and the tapes Lavin had made of those conversations were played to the jury. Willing testified in his own defense, with Neumann, acting as standby counsel, conducting the direct examination. Willing testified that when the confidential informant and Lavin first called him, he told them he wanted nothing to do with the deal. According to Willing, Lavin continued to call and ask him about obtaining drugs every three or four days. On December 30, 2001, when Lavin called while Willing happened to be on the phone with his friend Danny Potter, Willing realized that he and Potter “might be able to make some money real quick,” and Willing agreed to deliver drugs to Lavin.
Willing testified that while the original plan was to deliver actual drugs to Lavin, at some point he and Potter decided to take Lavin’s money without giving him any drugs in return, then run away. Willing acknowledged that, judging by the tape-recorded conversations, it sounded as though he was setting up an actual drug deal with Lavin; however, Willing explained that he had to make the deal sound as real as possible to get Lavin to give him the money. Willing testified that, contrary to what he told Lavin on the phone, he never actually saw the cocaine that was to be delivered. Willing testified that his intention to “rip Lavin off” rather than deliver drugs was evident from the fact that he repeatedly tried to get Lavin to agree to give him the money without seeing the drugs and, when Lavin refused, Willing tried to back out of the deal. When asked why Willing and Potter would bother getting London involved if their intent was to rip Lavin off, Willing testified that Potter did not contact London until it became clear that Lavin would not part with the money without seeing any drugs.
With respect to his postarrest statement to the police, Willing testified that Lavin told him to add the statement that the purchase agreement was for nine ounces of cocaine. Willing explained that he did not tell the police that his intent was to cheat or steal from Lavin at this juncture because he “figured it was pretty obvious because there was no cocaine delivered.” Willing further explained that he feared that Lavin would have beaten him if he knew that Willing had planned to cheat or steal from him because the police had treated Willing roughly while arresting him and driving him to the station.
Willing’s closing argument to the jury stated that it was not enough for the prosecution to show that Willing had an agreement with Lavin, because Lavin was a police officer. Rather, the prosecution had to show that Willing had an agreement with Potter to sell Lavin cocaine. Willing asserted that he did not have the intent to sell Lavin cocaine, as shown by the fact that no cocaine was found at the scene, and the prosecution failed to prove otherwise.
The jury convicted Willing of conspiring to deliver cocaine.
III. WAIVER OF RIGHT TO COUNSEL
A. STANDARD OF REVIEW
When assessing the validity of a defendant’s waiver of the right to counsel, we review de novo the entire record to determine whether the trial court’s factual findings regarding the waiver were clearly erroneous. “[T]o the extent that a ruling involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.”
B. LEGAL STANDARDS
Defendants who face incarceration are guaranteed the right to counsel at all critical stages of the criminal process by the Sixth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment. Both federal and state law also guarantee a defendant the right of self-representation, although this right is subject to the trial court’s discretion.
Before granting a defendant’s request to represent himself or herself, the trial court must determine that the three factors set forth in People v Anderson have been met: (1) the defendant’s request is unequivocal, (2) the defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-representation, and (3) the defendant’s self-representation will not disrupt, unduly inconvenience, and burden the court and the administration of the court’s business. In addition, a trial court must satisfy the requirements of MCR 6.005(D), which prohibits the trial court from allowing the defendant to make an initial waiver of the right to counsel without first:
(1) advising the defendant of the charge, the máximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.
A trial court must substantially comply with the Anderson factors and the court rule for a defendant to effect a valid waiver of the right to counsel.
When determining whether the requirements were met, we “ ‘ “indulge eveiy reasonable presumption against waiver of fundamental constitutional rights.” ’ ” “ ‘ “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” ’ ”
C. APPLYING THE STANDARDS
Willing argues that he did not waive his right to counsel for the pretrial proceedings; rather, he re quested to retain counsel or have new counsel appointed for him, and the trial court denied these requests. Willing maintains that he did not waive his right to counsel until after the jury was selected and given preliminary instructions on the first day of trial. Thus, Willing asserts that he was denied his right to counsel at the Walker and entrapment hearings, as well as at jury voir dire.
The trial court allowed Willing to proceed pro se with standby counsel at the beginning of the second day of the Walker and entrapment hearings after engaging in the colloquy recited above. The question is whether Willing unequivocally waived his right to counsel during this exchange, as Anderson requires. We begin by noting that Willing never expressed the desire to represent himself or to waive his right to counsel before the trial court. Although Willing’s attorney stated that Willing wanted to represent himself, the only thing Willing said on the subject was that he would either like an adjournment in order to retain another attorney or, alternatively, another court-appointed attorney.
The Michigan Supreme Court recently addressed the waiver issue under somewhat similar circumstances. In People v Russell, the Court determined that the defendant’s purported waiver of counsel was not unequivocal where he “clearly sought appointment of another trial counsel... .” It is clear from the record here that Willing also clearly sought either the appointment of another trial counsel or an adjournment to enable him to retain another attorney. However, the defendant in Russell explicitly and consistently rejected the suggestion that he wanted to represent himself, which Will ing did not do. Because the defendant’s unequivocal rejection of self-representation furnished a partial basis for the Russell Court’s ruling, we are reluctant to conclude that Russell alone compels the conclusion that Willing’s purported waiver was ineffective.
An examination of People v Suggs the companion case to People v Adkins (After Remand), aids our analysis. In Suggs, three months before trial began, defense counsel informed the trial court that the defendant had sent him a letter requesting to terminate the representation and to represent himself instead. The trial court granted defense counsel’s request to withdraw and, without any inquiry, told the defendant that he could represent himself. Before trial began, the trial court questioned the defendant about his decision to represent himself, and warned him about the hazards of doing so. When the trial court asked whether the defendant still wished to represent himself, the defendant responded, “Yes,” but then went on to state, “It’s not that I don’t want an attorney to represent me, it’s just that [defense counsel] never spoke to me. I had a trial date and never had a chance to talk to my attorney. I couldn’t understand it, it’s unprofessional.” The trial court responded that it had no problem with the defendant representing himself, but that it also had an obligation to warn him of the pitfalls and to “have you unequivocally indicate on the record you understand those and you do wish to represent yourself.” The defendant responded, “I understand — I understand what you said, yes.” While acknowledging that the trial court “could have responded better than it did to the defendant’s hesitation,” the Court concluded that the trial court had substantially complied with the waiver of counsel procedures, reasoning that the defendant unequivocally waived his right to counsel by first stating, “Yes,” then reaffirming his desire to represent himself after making the comment, “It’s not that I don’t want an attorney .. . .”
In this case, by contrast, Willing was not directly asked, nor did he directly state, that he wished to represent himself. Instead, he only stated his desire to retain a different attorney or have a different attorney appointed. Under these circumstances, we conclude that Willing did not unequivocally waive his right to counsel.
D. APPLICATION OF HARMLESS ERROR ANALYSIS
The next question is whether Willing’s ineffective waiver may be subject to harmless error analysis. When, as here, the error implicates a constitutional right, we must determine whether that error is structural or nonstructural. If the error is structural, we must reverse. If the constitutional error is nonstructural, we need not reverse if it was harmless beyond a reasonable doubt.
Willing had the full assistance of appointed counsel until the second day of his combined Walker and entrapment hearings, at which point the trial court ordered appointed counsel to continue in a standby capacity while Willing represented himself. It is well established that a total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal. While the harmless error doctrine is not entirely inapplicable to ineffective waivers of the right to counsel, it has been limited to cases in which the effect of the deprivation of counsel does not “pervade the entire proceeding” — for example, cases in which “the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial.” Thus, we must determine whether Willing’s ineffective waiver resulted in a total or complete deprivation of his right to counsel, whether this total deprivation occurred during a critical stage of the proceeding, and whether the effect of the deprivation pervaded the entire proceeding.
The prosecution first argues that, to warrant reversal on the basis of a defective waiver of the right to counsel, Willing must show prejudice. However, the case the prosecution cites for this proposition applies only to waivers of the right to counsel at subsequent proceedings when a valid waiver had already been procured at a previous proceeding. As this Court explained, the holding in that case does not apply to cases in which the initial waiver of the right to counsel is at issue. Accordingly, this argument is without merit.
The prosecution next argues that the presence of standby counsel prevented Willing from experiencing a total deprivation of counsel, and that therefore any error resulting from an ineffective waiver was nonstructural. To support this position, the prosecution relies solely on a footnote from Justice Boyle’s opinion concurring in part and dissenting in part in People v Dennany, in which she observed that
where, as here, the issue is whether a trial court obtained a valid waiver of counsel before allowing a defendant to proceed pro se, federal circuit courts have found a defective waiver to be harmless error when an examination of the whole record indicates no reasonable possibility that the defendant would have been found not guilty had he been represented by counsel. United States v Gipson, 693 F2d 109, 112 (CA 10, 1982), cert den 459 US 1216 (1983); Richardson v Lucas, 741 F2d 753, 757 (CA 5, 1984). The harmless error approach seems especially appropriate in cases such as the present, in which a defendant receives advice throughout the trial from standby counsel, the same counsel who would have represented the defendant had he not asserted his desire to proceed pro se.
Justice BOYLE’s opinion was joined by only one other justice, and is therefore not precedentially binding. Having examined the authorities on which it relied, we do not find it persuasive, either for the proposition that a defective waiver may be treated as harmless error or that the presence of standby counsel renders harmless error analysis applicable.
Justice Bolye’s opinion relied on the federal appellate decisions in Gipson and Richardson, but these cases have since been either directly or implicitly overruled. The Tenth Circuit Court of Appeals overruled Gipson after concluding that the United States Supreme Court’s decisions in Rose v Clark and Penson v Ohio rendered harmless error analysis inapplicable to invalid waivers of counsel. Rose involved the application of harmless error analysis to an erroneous jury instruction, not the denial of counsel, but it contained the statement that “ [h] armless-error analysis thus presupposes a trial at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Penson involved an indigent defendant whose appellate counsel withdrew after certifying that the defendant’s appellate arguments were meritless. In refusing to apply harmless error analysis, the Court rejected the notion that the defendant’s interests were adequately represented by his codefendant’s appellate attorney, stating that a criminal defendant “is entitled to a single-minded advocacy for which the mere possibility of a coincidence of interest with a represented codefendant is an inadequate proxy.”
The Tenth Circuit’s decision to overrule Gipson cast doubt on the validity of the Fifth Circuit’s position in Richardson, not only because that decision similarly predated Rose and Penson, but also because Gipson was the only authority the Richardson court had cited in support of its application of harmless error analysis. Of particular import to the present case is the fact that, when the Fifth Circuit subsequently was called on in United States v Taylor to determine whether a defendant who had the benefit of standby counsel was required to show prejudice from his lack of representation, it held that he did not. As the Taylor court explained:
Given the limited role that a standby attorney plays, we think it clear that the assistance of standby counsel, no matter how useful to the court or the defendant, cannot qualify as the assistance of counsel required by the Sixth Amendment. There can be no question that the roles of standby counsel and full-fledged defense counsel are fundamentally different. The very definition of full-fledged counsel includes the proposition that the counselor, and not the accused, bears the responsibility for the defense; by contrast, the key limitation on standby counsel is that such counsel not be responsible — and not be perceived to be responsible — for the accused’s defense. Indeed, in many respects, standby counsel is not counsel at all, at least not as that term is used in the Sixth Amendment.
... The defendant preserves actual control over the case he presents to the jury: standby counsel cannot substantially interfere with any significant tactical decisions, cannot control the questioning of witnesses, and cannot speak in place of the defendant on any matter of importance. Standby “counsel” is thus quite different from regular counsel. Standby counsel does not represent the defendant. The defendant represents himself, and may or may not seek or heed the advice of the attorney standing by. As such, the role of standby counsel is more akin to that of an observer, an attorney who attends the trial or other proceeding and who may offer advice, but who does not speak for the defendant or bear responsibility for his defense. Thus, as useful as standby counsel may be when a defendant wishes to represent himself, this Court holds that standby counsel is not “counsel” within the meaning of the Sixth Amendment.
We find this reasoning persuasive and consonant with Michigan case law, and therefore we adopt it here. Although the Michigan Supreme Court has not squarely addressed whether harmless error analysis may be applied in cases in which a defendant had the assistance of standby counsel, it has stated that “the presence of standby counsel does not legitimize a waiver-of-counsel inquiry that does not comport with legal standards.” Therefore, we conclude that Willing experienced a “total deprivation of counsel” despite the fact that he was assisted by standby counsel.
We further conclude that this total deprivation of counsel occurred during a critical stage of the proceedings. The phrase “critical stage” refers to “a step of a criminal proceeding, such as arraignment, that [holds] significant consequences for the accused.” In this case, Willing was left unrepresented at the combined Walker and entrapment hearings, which were his only opportunities to present his entrapment defense and to argue that his statement to the police should not be admitted. Further, the hearings took place after Willing had been formally charged. There is no doubt that the results of the rulings after the hearings affected the entire proceeding because, had Willing established that he was entrapped, he would have had a complete defense to the charge. In sum, because Willing experienced a total deprivation of counsel during a critical stage, and because the effects of that deprivation pervaded the entire proceeding, his conviction must be reversed.
Reversed.
MCL 333.7401(2)(a)(ii), before amendment by 2002 PA 665.
Nine ounces is equal to 255.15 grams.
Willing urges this Court to amend the original judgment of sentence, which erroneously stated that he was convicted of conspiracy to deliver 449 to 999 grams of cocaine rather than 225 to 649 grams. However, since Willing filed his brief on appeal, the trial court has issued an amended judgment of sentence that reflects the correct amount. Accordingly, we need not address this issue.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
6 Although this exchange took place in March 2003, the trial court did not enter an order reflecting Neumann’s appointment as standby counsel or Willing’s decision to proceed pro se until well after trial. The written date on the initial order was October 26, 2003, but the order was date-stamped on October 6, 2003. The trial court later set aside this misdated order, and entered a new order stating that Neumann began his appointed representation on February 20, 2003, and continued in an advisory capacity until November 12, 2003.
People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004).
People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004).
See Williams, supra at 641, citing Maine v Moulton, 474 US 159, 170; 106 S Ct 477; 88 L Ed 2d 481 (1985).
See Williams, supra at 641, citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
See People v Adkins (After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996), overruled in part on other grounds by Williams, supra at 641 n 7; Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975). See also Const 1963, art 1, § 13; MCL 763.1.
See People v Dennany, 445 Mich 412, 427; 519 NW2d 128 (1994); People v Anderson, 398 Mich 361, 366; 247 NW2d 857 (1976).
Anderson, supra at 367-368. See also Russell, supra at 190 (applying the Anderson factors).
14 MCR 6.005(D); see also Russell, supra at 190-191.
Russell, supra at 191-192, citing Adkins (After Remand), supra at 726.
Williams, supra at 641, quoting Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), quoting Aetna Ins Co v Kennedy, 301 US 389, 393; 57 S Ct 809; 81 L Ed 1177 (1937).
Adkins (After Remand), supra at 721, quoting People v Dunn, 380 Mich 693, 698; 158 NW2d 404 (1968), quoting Carnley v Cochran, 369 US 506, 516; 82 S Ct 884; 8 L Ed 2d 70 (1962).
Anderson, supra at 367; Russell, supra at 190, 193.
Russell, supra at 192 (emphasis in original).
Id.
See Adkins (After Remand), supra at 714-715.
Id. at 715.
Id. at 716-717.
Id. at 718.
Id. at 732.
Id.
Id. at 733 n 29.
Id. at 732-733.
People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000).
See Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999); People v Anderson (After Remand); 446 Mich 392, 405; 521 NW2d 538 (1994).
Id. at 405-406.
See United States v Cronic, 466 US 648, 659 n 25; 104 S Ct 2039, 80 L Ed 2d 657 (1984) (The United States Supreme Court has “uniformly found constitutional error without any showing of prejudice when counsel was ... totally absent... during a critical stage of the proceeding.”); Anderson (After Remand), supra at 405, citing Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). See also Russell, supra at 194 n 29 (“The complete denial of counsel at a criticad stage of a criminal proceeding is a structural error that renders the result unreliable, thus requiring automatic reversal.”).
Satterwhite v Texas, 486 US 249, 256; 108 S Ct 1792; 100 L Ed 2d 284 (1988).
Id. at 257.
See People v Lane, 453 Mich 132, 139-140; 551 NW2d 382 (1996).
See People v Belanger, 227 Mich App 637, 643 n 1; 576 NW2d 703 (1998).
37 Dennany, supra at 468-469 n 13.
See, e.g., People v Justice, 216 Mich App 633, 643 n 7; 550 NW2d 562 (1996).
Rose v Clark, 478 US 570; 106 S Ct 3101; 92 L Ed 2d 460 (1986).
Penson v Ohio, 488 US 75; 109 S Ct 346; 102 L Ed 2d 300 (1988).
See United States v Allen, 895 F2d 1577, 1579-80 (CA 10, 1990).
See Rose, supra at 579-580.
Id. at 578 (emphasis added).
See Penson, supra at 77-79.
Id. at 87.
See Richardson, supra at 757.
United States v Taylor, 933 F2d 307 (CA 5, 1991).
48 Id. at 312-313 (citation omitted; emphasis in original). See also United States v Mateo, 950 F2d 44, 48-50 (CA 1, 1991) (harmless error analysis inapplicable to ineffective waiver of right to counsel despite presence of standby counsel).
Dennany, supra at 446 (opinion of Griffin, J.)
Bell v Cone, 535 US 685, 695-696; 122 S Ct 1843; 152 L Ed 2d 914 (2002).
See Anderson (After Remand), supra at 402 (critical stages occur after the initiation of adversarial judicial proceedings against the accused).
See People v New, 427 Mich 482, 490; 398 NW2d 358 (1986); People v White, 411 Mich 366, 393; 308 NW2d 128 (1981) (Moody, J., concurring in part and dissenting in part). | [
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Per Curiam.
Plaintiffs filed complaints for su perintending control on November 21, 1978, and November 27, 1978, respectively. The issue presented is whether a Recorder’s Court judge can order property returned to a criminal defendant upon determination that the property was illegally seized, where the Michigan Department of Treasury has previously issued a jeopardy assessment on the property.
The facts are as follows. On October 26, 1978, John Patrick Withers was driving an automobile when he was stopped by the Detroit police for speeding. After struggling with the officers, Withers was arrested for driving under the influence of liquor. The police searched him and discovered $1,222 in cash and a quantity of cocaine. At that point, Withers and a passenger were arrested for violating the Controlled Substances Act and taken to a police station. A subsequent search of the vehicle at the station disclosed over $40,000 in cash as well as books, records and miscellaneous items.
On October 27, 1978, the Michigan Department of Treasury, Revenue Division, issued a jeopardy assessment against Withers. Copies of the assessment, along with a warrant and notice of levy were served upon a Recorder’s Court judge and the Detroit Police Department.
On November 2, 1978, Mr. Withers filed a motion for return of the property that had been seized. Recorder’s Court determined that the property had been improperly seized from the trunk of the car and ordered the police to return $42,242 and miscellaneous personal property.
In the meantime, defendant Withers was bound over for trial for violation of the Controlled Substances Act based upon the cocaine found on his person at the time of his initial arrest.
Plaintiffs filed complaints for superintending control against the Recorder’s Court judge. Mr. Withers filed a motion to intervene, which was subsequently granted. On November 28, 1978, this Court issued an order staying the proceedings in Recorder’s Court and consolidated the plaintiffs’ complaints.
The jurisdiction of Recorder’s Court is provided by statute. MCL 726.11; MSA 27.3561 provides:
"The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state, within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.”
In People v Rosa, 382 Mich 163; 169 NW2d 297 (1969), the defendant moved, after dismissal of the case against him, for the return of money seized in an illegal search. No jeopardy assessment had been filed by the Department of Treasury, but Recorder’s Court Judge Ricca concluded that he had no jurisdiction to entertain the motion. On appeal, this Court determined that the Recorder’s Court had jurisdiction over the question and reversed. People v Rosa, 11 Mich App 157; 160 NW2d 747 (1968). The Supreme Court agreed with our disposition and explained Recorder’s Court jurisdiction in these matters as follows:
"The statute in question in regard to the recorder’s court grants jurisdiction to said court to have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State for crimes, misdemeanors, and offenses arising under the laws of this State and committed within the corporate limits of the city of Detroit.
"These statutory words 'to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state,’ refer to criminal matters and are definitely connected with and refer to the preceding language dealing with issuing of process, et cetera, necessary to effectively and justly enforce the law and protect the accused from an unlawful exercise of police power.
"Our words go no farther than what we have just said. In view of section 726.11’s restrictive provision, 'in like cases,’ such words are not to be taken as extending either the power or jurisdiction of the recorder’s court beyond that of disposition of a duly instituted criminal proceeding which is then before that court.
"We do not interpret the Court of Appeals’ decision (as does plaintiff) as an authorization to the recorder’s court to exercise general jurisdiction determining questions of title, and specifically hold that the statute does not grant such powers.
"We do hold that in criminal cases similar to the one before us in this appeal, it is the ancillary right and duty of the recorder’s court to determine the right to possession of money or goods illegally seized by law enforcing officials.” 382 Mich 167-168. (Footnote omitted.)
In short, Recorder’s Court jurisdiction is limited to the disposition of duly instituted criminal proceedings and issues directly related to those pro ceedings. It does not include general jurisdiction to determine questions of title.
The jeopardy assessment issued by the Michigan Department of Treasury in this case does not institute a criminal proceeding and does not raise issues directly related to the ongoing criminal proceeding. Rather, the Department’s actions raise a separate question of title which must be addressed in a court of civil jurisdiction. See Craig v Detroit Police Dep’t, 397 Mich 185, 190; 243 NW2d 236 (1976), People v 3474 Fairview, 81 Mich App 479; 265 NW2d 381 (1978), lv den, 402 Mich 945 (1978). Accordingly, once the Department of Treasury served its jeopardy assessment and notice of levy, the Recorder’s Court had no jurisdiction to return the property in question to the criminal defendant. The Recorder’s Court order is vacated, therefore, as being void for lack of subject-matter jurisdiction. | [
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Per Curiam.
Plaintiffs appeal by leave granted the trial court order granting defendant partial summary disposition and holding that plaintiffs failed to state a cause of action under the Minimum Wage Law (MWL), MCL 408.381 et seq. We affirm.
Plaintiffs, who are employees of defendant, deliver bread and bakery products to retail stores and place stock on the shelves. They are paid a base wage plus commissions, which are based on the amount of product delivered and sold at the retail stores. Plaintiffs routinely work in excess of forty hours a week, but they have never been paid compensation for overtime in excess of forty hours a week.
Plaintiffs argue that the trial court erred in granting defendant summary disposition because the MWL applies to defendant. We review de novo a grant of summary disposition based on a failure to state a claim. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). A motion pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim on the basis of the pleadings alone, and the motion may not, therefore, be supported with documentary evidence. “ ‘All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. ’ ” Adair, supra at 119, quoting Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A motion pursuant to MCR 2.116(C)(8) should be granted only when the claim is “ ‘so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.’ ” Adair, supra at 119, quoting Maiden, supra at 119. We also review de novo questions of statutory application and construction. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
The regulation of minimum wage is governed by parallel state and federal statutes, the MWL and the Fair Labor Standards Act (FLSA), 29 USC 201 et seq., respectively. Allen v MGM Grand Detroit, LLC, 260 Mich App 90, 93; 675 NW2d 907 (2003). Both laws require the payment of a minimum hourly wage of $5.15, which began on September 1, 1997. MCL 408.384(c); 29 USC 206(a)(1). Both acts also provide that work in excess of forty hours a week must be compensated at a rate of IV2 times the regular wage rate. MCL 408.384a(1); 29 USC 207(a)(1). Both statutes provide a list of exemptions from the requirement of overtime pay. MCL 408.384a(4); 29 USC 213(b). Specifically, the FLSA exempts from the overtime compensation requirements “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of [49 USC 31502.]” 29 USC 213(b)(1). This is commonly referred to as the federal “motor carrier exemption.” Bilyou v Dutchess Beer Distributors, Inc, 300 F3d 217, 223 (CA 2, 2002). The MWL does not contain a comparable exemption.
Congress has expressly provided for overlapping regulation in this area, stating that the FLSA does not excuse noncompliance with any state law or municipal ordinance providing for a higher minimum wage or lower maximum workweek. 29 USC 218. The MWL expressly states that, it “does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act of 1938 ... unless application of those federal minimum wage provisions would result in a lower minimum wage than provided in this act.” MCL 408.394.
It is undisputed that the FLSA applies to defendant and that defendant is exempt from paying overtime wages under the FLSA because plaintiffs fall under the motor carrier exemption. Plaintiffs, however, argue that they are entitled to overtime pay under the MWL because application of the FLSA would result in a lower minimum wage. Defendant argues that plaintiffs do not receive a greater minimum wage under the MWL, but simply would be entitled to overtime pay, a benefit distinct from the minimum wage. This issue raises a question of statutory interpretation.
We must determine the meaning of the term “minimum wage” and decide whether it includes overtime pay. An undefined term in a statute is generally construed according to its common and approved usage, and it is appropriate for a court to consult a dictionary to give meanings to words used in a statute. Lee v Robinson, 261 Mich App 406, 409-410; 681 NW2d 676 (2004). Random House Webster’s College Dictionary (1997) defines the term “minimum wage” as “the lowest hourly wage that may be paid to an employee, as fixed by law or by union contract.” (Emphasis added.) Black’s Law Dictionary (6th ed) similarly defines “minimum wage” as the “minimum hourly rate of compensation for labor, as established by federal statute and required of employers engaged in businesses which affect interstate commerce.” (Emphasis added.) The term “minimum wage” is therefore unambiguous and does not include overtime pay. Applying the plain language of the statute, plaintiffs would receive the same “minimum wage” under the MWL and the FLSA. Accordingly, the trial court did not err in holding that plaintiffs failed to state a claim under the MWL.
Plaintiffs maintain that, when read in conjunction with MCL 408.394, MCL 408.384a(6) effectively defines “minimum wage” to include overtime compensation. MCL 408.384a(6) provides: “For purposes of administration and enforcement, an amount owing to an employee that is withheld in violation of this section is unpaid minimum wages under this act.” However, MCL 408.382, the definitions section for the MWL, does not include the term “minimum wage.” Moreover, MCL 408.384a(6) addresses only an amount that is withheld in violation of the overtime compensation section. Thus, we are not persuaded by plaintiffs’ argument.
Plaintiffs present another argument with respect to MCL 408.394, which provides that the MWL “does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act,... 29 USC 201 to 216 and 217 to 219, unless application of those federal minimum wage provisions would result in a lower minimum wage than provided in this act.” While the Allen Court established that the phrase “those federal minimum wage provisions” refers to the FLSA provisions identified in the previous phrase, it is obvious that the phrase “minimum wage” also modifies the term “provisions.” The entire FLSA is identified except for two sections, 29 USC 216a and 29 USC 216b. Although the absence of these two provisions may support the inference that the Legislature intended that only the identified FLSA provisions be considered minimum wage provisions, Allen, supra at 96 n 6, the great majority of the sections are not related to minimum wage in any way. We are not persuaded that the mere identification of the FLSA overtime compensation section, 29 USC 207, supports plaintiffs’ proposed definition of “minimum wage.”
Plaintiffs urge us to examine amendments to the MWL. Because we have concluded above that the language of the statute is unambiguous, we may not go beyond the words of the statute to ascertain legislative intent. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Plaintiffs also cite Allison v The Pepsi Bottling Group, Inc, unpublished opinion of the United States District Court for the Western District of Michigan (Docket No. 5:03-cv-244, June 28, 2004), in support of their definition of the term “minimum wage.” That court failed, however, to give the term “minimum wage” its plain and ordinary meaning, as described above, and we are not bound by its decision because it involves only questions of state law. Sharp v City of Lansing, 464 Mich 792, 802-803, 817; 629 NW2d 873 (2001).
Affirmed.
These two sections concern liability for overtime work performed before 1949, and 29 USC 216a has been repealed. Allen, supra at 96 n 6.
See, e.g., 29 USC 205 (special industry committees for American Samoa); 29 USC 208 (court review of wage orders in American Samoa), 29 USC 210 (court review of wage orders in Puerto Rico and the Virgin Islands); and 29 USC 212 (child labor provisions). | [
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Beasley, J.
Defendant was charged with larceny in a building in violation of MCL 750.360; MSA 28.592, and with receiving and concealing stolen property of a value over $100 in violation of MCL 750.535; MSA 28.803. Each of the offenses involved the same two snow tires. Pursuant to a plea agreement, defendant, then age 17 and not represented by counsel, pled guilty to the lesser included offense of attempted receiving and concealing stolen property over $100.
After defendant was sentenced to three-years probation with the first six months in the county jail, he moved to vacate his plea and set aside his sentence. The circuit court held an evidentiary hearing to determine whether defendant’s plea should be vacated for the alleged failure of the prosecutor to keep the sentence bargain relied upon by the defendant in offering his plea. His motion was denied and he now appeals as of right.
The record indicates that on the day set for defendant’s arraignment, a so-called pre-preliminary examination conference was held between the prosecuting attorney, the 17-year-old defendant and his parents. A plea agreement was reached whereby defendant would plead guilty to the lesser included offense of attempted receiving and concealing stolen property, to-wit: the two snow tires, in exchange for the dismissal of the two charges. The prosecutor indicated in writing that he would recommend probation for defendant. The prosecutor admits that no mention was made to the unrepresented defendant of the possibility that probation could include some time in the county jail.
Defendant claimed that, based on his satisfaction with this bargain, he chose to waive his right to be represented by counsel at the plea-taking hearing. The trial judge questioned defendant and the prosecutor as to any agreements that had been struck between them. Although the agreement as to dropping the principal charges was stated, nothing was said to the court by the prosecutor concerning his promise to recommend probation for defendant. Further, the prosecutor neither advised the probation department that he had agreed to recommend probation for defendant nor did he discuss with them the possibility of probation without serving time in jail.
A defendant must know the direct consequences of his guilty plea, including the actual value of any commitments made to him, in order to plead voluntarily, People v Lawson.
The Lawson Court quoted Hammond v United States, in making its determination:
" '[I]n order to plead voluntarily, a defendant must know the direct consequences of his plea, including 'the actual value of any commitments made to him’. Where, as here, counsel’s alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.’ ”
In the within case, at the hearing to vacate his sentence, defendant claimed that, had he known of the possibility of spending time in jail, he would have obtained the services of an attorney and would not have pled guilty.
We are satisfied that defendant believed from his conversation with the prosecutor that if he was placed on probation he would not be sent to jail for six months, and that he understood the prosecutor would recommend to the judge that he be placed on probation. The record does not indicate that the prosecutor so recommended to the trial judge. Thus, since the prosecutor did not perform the plea bargain agreement and since, as a result of the prosecutor’s representations to this unrepresented 17-year-old, defendant believed if he was put on probation he would not go to jail for six months, we find the plea was not voluntarily made and may be withdrawn.
Remanded for withdrawal of guilty plea.
MCL 750.92; MSA 28.287.
People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977).
528 F2d 15, 19 (CA 4, 1975).
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] |
R. M. Maher, J.
Defendant DeBeers Diamond Investment, Ltd., appeals from the order of the Ingham County Circuit Court affirming a cease and desist order, issued by plaintiff, ordering defendant to cease sales of diamonds to Michigan residents on grounds that such sales constituted sales of unregistered securities in violation of the Uniform Securities Act, MCL 451.501 et seq.; MSA 19.776(101) et seq.
Defendant is an Arizona corporation which, prior to the issuance of the cease and desist order, was engaged in selling unmounted diamonds to individual purchasers in the state of Michigan. DeBeers contacted potential customers through advertisements in The Detroit News and the Detroit Free Press, offering to sell diamonds as an investment and inviting interested persons to call for more information. Those who called the number given in the ad were sent a package of advertising material which included a price list, a chart showing the increase in diamond prices over sev eral years, a guarantee that the appraised value of any diamond purchased would exceed the purchase price by 75%, and assurances that DeBeers would, at any time, buy back any diamond purchased from them at the current prevailing market price.
On June 19, 1975, the Corporation and Securities Bureau of the Department of Commerce issued an order to defendant to cease and desist sales of diamonds with a repurchase guarantee. DeBeers timely requested a hearing on the matter, and a hearing was held on July 8, 1976, before an administrative law judge.
One R. G. Dusenberry testified at the evidentiary hearing that he read defendant’s newspaper advertisement early in 1975 and called the telephone number appearing therein. As a result of the phone call, Dusenberry received the package of materials mentioned above. After obtaining prices at two or three jewelers for unmounted diamonds of a size and quality comparable to those offered by defendant, Mr. Dusenberry telephoned defendant’s sales representative and placed an order. Mr. Dusenberry paid the full purchase price into a local bank and took possession of the diamonds. After taking possession of the diamonds, Mr. Dusenberry inquired of two or three retail jewelers regarding the possibility of selling his diamonds to them, but, encountering a lack of interest in such a transaction, made no further attempt to sell the diamonds.
Mr. Paul Lewis testified at the hearing that he had appraised Mr. Dusenberry’s diamonds prior to the purchase, at the request of defendant. In Mr. Lewis’ opinion, the price at which Mr. Dusenberry purchased the diamonds was a wholesale price, although probably higher than the price which a jeweler would pay. He also testified that jewelers and others in the diamond business would ordinarily not purchase unmounted diamonds from someone they did not know, because of the danger of unwittingly purchasing stolen gems. Mr. Lewis acknowledged, however, that sales to private individuals were a common occurrence. Defendant’s president, Alois Geiger, confirmed Mr. Lewis’ testimony regarding the diamond business. He added that some dealers would accept gems for sale on consignment, although they would not purchase them outright.
The hearing officer, applying the common enterprise test enunciated in Securities & Exchange Comm v W J Howey Co, 328 US 293; 66 S Ct 1100; 90 L Ed 1244 (1946), found that defendant’s sale of diamonds with a buy-back guarantee constituted an "investment contract” and was therefore an unregistered security under the Uniform Securities Act. The Ingham County Circuit Court affirmed. We reverse.
We begin our analysis by noting that our Supreme Court has held that the Uniform Securities Act is to be construed so as to achieve its purposes:
"The Uniform Securities Act carries within itself the statement of its purpose, i.e., to 'make uniform the law of those states which enact it and to coordinate the interpretation and administration of this act with the related federal regulation’. MCL 451.815; MSA 19.776(415). As a matter of judicial policy the act should be broadly construed to effectuate its purposes. Tcherepnin v Knight, 389 US 332, 336; 88 S Ct 548; 19 L Ed 2d 564 (1967). 'In essence this legislation * * * is designed to protect the public against fraud and deception in the issuance, sale, exchange, or disposition of securities within the State of Michigan by requiring the registration of certain securities and transactions.’ Schmidt & Cavitch, Michigan Corporation Law (1974), p 1071.” People v Dempster, 396 Mich 700, 704; 242 NW2d 381 (1976).
In interpreting the Michigan securities statute, we look not only to the interpretations of courts in those other states which have enacted the Uniform Securities Act, but also to interpretations of Federal securities laws:
"While the interpretation Federal courts have placed upon terms under the Federal securities acts is not binding upon state courts as they interpret the Uniform Securities Act, the similarity of the purpose and provisions of the state and Federal securities statutes, particularly those purposes and provisions pertinent to the facts at hand, cannot be ignored. Interpretation of one offers valuable guidelines as to the interpretation of the other.” People v Breckenridge, 81 Mich App 6, 16-17; 263 NW2d 922 (1978).
Courts interpreting securities statutes are careful to look beyond the form of a transaction to its substance, paying special attention to the economic realities of the situation, People v Breckenridge, supra, United Housing Foundation, Inc v Forman, 421 US 837; 95 S Ct 2051; 44 L Ed 2d 621 (1975), Wiener v Brown, 356 So 2d 1302 (Fla App, 1978).
With these principles of statutory construction in mind, we turn to the sole issue presented on appeal: whether the transaction between defendant and Mr. Dusenberry was a mere sale of goods or was, in reality, an investment contract within the meaning of MCL 451.801; MSA 19.776(401).
In reaching the conclusion that the transaction was in fact an investment contract, the hearing officer applied the definition of investment contract used by the Federal courts and first enunciated in Securities & Exchange Comm v Howey, supra, 298-299:
"a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”
Defendant urges us to reject the "common enterprise” test in favor of the "risk capital” test applied in the California case of Hamilton Jewelers v Dep’t of Corporations, 37 Cal App 3d 330; 112 Cal Rptr 387 (1974). We reject defendant’s suggestion, preferring to follow the majority of jurisdictions in applying the Howey test. However, we think that a proper application of the Howey test to the facts of this case yields a result different from that reached by the hearing officer.
The hearing officer relied heavily on Securities & Exchange Comm v Brigadoon Scotch Distributors, Ltd, 388 F Supp 1288 (SD NY, 1975), in reaching his decision. In Brigadoon Scotch the defendant, Federal Coin Reserve, Inc. (FCR), sold portfolios of rare coins to those answering advertisements in airline magazines, medical journals and other, similar publications. Advertising brochures sent to inquirers emphasized the investment potential of the coins and offered expert assistance in selecting the coins to be purchased, assistance in selling the coins, accounting services, insurance, tax advice and estate planning services. In addition, purchasers could leave their coins in the custody of FCR. FCR also promised its customers semi-annual accountings, regular financial reports and daily market quotations. Although few purchasers took advantage of the services offered, the Brigadoon court laid great emphasis on the availability of continuing services in finding the scheme to be an investment contract:
"FCR’s brochure itself repeatedly entices its readers with assertions such as that it 'has people working all day long, each and every day making certain that all potential avenues of profit are fully explored.’ * * * In Howey and Joiner [SEC v CM Joiner Leasing Corp, 320 US 344; 64 S Ct 120; 88 L Ed 88 (1943)] the Supreme Court considered such investment-oriented advertising to be factors leading to the finding of an investment contract. SEC v Howey & Co, supra, 328 US at 295, 66 S Ct 1100; SEC v Joiner, supra, 320 US at 346, 64 S Ct 120. As Judge Oakes aptly stated in Glen-Arden [Commodities, Inc v Constantino, 493 F2d 1027 (CA 2, 1974)]:
" 'It ill behooves appellants, after enticing their customers with fancy brochures touting their investment plan, now to claim there was no investment plan but the mere sale of an unadorned commodity.’ 493 F2d at 1034-1035.” SEC v Brigadoon Scotch Distributors, Ltd, supra, p 1292.
In the case at bar, by contrast, defendant offered none of the services which created a continuing relationship between Federal Coin Reserve and its customers. Defendant herein did guarantee to repurchase any diamond sold at the same price at which it was selling diamonds on the repurchase date. However, purchasers were free to sell their stones elsewhere, and there was no built-in incen tive to resell to defendant. The hearing officer’s conclusion that buyers were tied to defendant because of the absence of a market for resale of diamonds purchased is simply not supported by the evidence adduced at the hearing. Although Mr. Lewis and Mr. Geiger agreed that an outright sale for cash to a diamond merchant or jeweler was unlikely, they also testified that sales to private individuals were common and that many dealers would accept diamonds from private owners for sale on a consignment basis. The only other evidence regarding market availability was Mr. Dusenberry’s testimony that he had made a few telephone inquiries to retail jewelers and was disappointed with the results. On this record we cannot find evidence sufficient to support the hearing officer’s conclusion regarding the absence of a resale market, cf. Farmers State Bank of Concord v Dep’t of Commerce, Financial Institutions Bureau, 77 Mich App 313; 258 NW2d 496 (1977).
A review of recent cases in other jurisdictions involving sales of real or personal property supports our conclusion that more is needed to create an investment contract than a simple repurchase guarantee. In cases where a sale of property is held to be an investment contract, a continuing relationship between seller and buyer is an essential feature of the transaction. In Lowery v Ford Hill Investment Co, 556 P2d 1201; 84 ALR3d 997 (Colo, 1976), sale of a condominium was found to be an investment contract because the purchasers were required to sign an agreement giving the seller exclusive control over rental of the unit, including the right to set rental rates. In O’Quinn v Beach Associates, — SC —; 249 SE2d 734 (1978), by contrast, no investment contract was found despite an agreement appointing the seller as rental agent, where the service was optional and the buyer retained ultimate control over the condominium. The courts in both cases applied the Howey test. McCown v Heidler, 527 F2d 204 (CA 10, 1975), cited in plaintiffs brief, involved a sale of undeveloped lots in a real estate dévelopment. The court there noted that any expectation of profit depended on the developer successfully completing the project. In the case at bar, diamonds may be expected to appreciate or depreciate independently of any efforts on defendant’s part.
The Supreme Court of Washington, applying the Howey test, held in McClellan v Sundholm, 89 Wash 2d 527; 574 P2d 371 (1978), that sales of silver bars accompanied by selection, storage and resale services, along with continuing advice on the silver market, constituted investment contracts within the meaning of the Uniform Securities Act. Similarly, staff opinions of the Securities and Exchange Commission reach the same conclusion where similar services are offered, see Jim Halperin, Inc [1976-1977 Transfer Binder] Fed Sec L Rep (CCH) ¶ 80,715, Joseph L Aurichio [1976-1977 Transfer Binder] Fed Sec L Rep (CCH) ¶ 80,966, Charles Anthony Diamond Investments, Ltd [1976-1977 Transfer Binder] Fed Sec L Rep (CCH) ¶ 80,623. In Texas Arizona Mining Co, Inc [1971-1972 Transfer Binder] Fed Sec L Rep (CCH) ¶ 78,626, on the other hand, the SEC held that a negotiable contract redeemable for an amount of silver on a date certain, to be guaranteed by a financial institution and sold in expectation of a rise in the price of silver, was not an investment contract. See also Art Appraisers of America, Ltd [1976-1977 Transfer Binder] Fed Sec L Rep (CCH) ¶ 80,796, finding no investment contract involved in sale of packages of selected lithographs, accompanied by an appraisal and tax advice. Cf. Longines Symphonette Society [1972-1973 Transfer Binder] Fed Sec L Rep (CCH) ¶ 79,151 (sale of medallion with cost plus 10% buy-back guarantee is a security).
In Jenson v Continental Financial Corp, 404 F Supp 792 (D Minn, 1975), relied on by plaintiff in its brief, defendant CCEX dealt in gold and silver coins, offering customers the option of purchasing coins for cash or on margin. Ninety percent of sales were margin sales, and 90 percent of margin customers eventually resold their coins to CCEX without ever having taken possession of the coins. CCEX would redeem only its own margin contracts, and CCEX contracts were not recognized by other, similar companies. Contracts were not assignable unless the balance was paid to CCEX. Noting that the investor’s expectation of profits was inextricably intertwined with the success or failure of CCEX’s enterprise, the Jenson court found that CCEX’s margin contracts were investment contracts. Accord, State v Coin Wholesalers, Inc, 250 NW2d 583 (Minn, 1976), applying Minnesota test (see footnote 3, supra).
In the case at bar, defendant neither sells on margin, offers continuing advice and services, nor guarantees a return on the purchaser’s investment. Sales are for cash, and the purchaser immediately takes possession of the diamonds. Purchasers may elect, but are not required either by contract or by circumstances, to resell the diamonds to defendant at some time in the future. The case before us is thus distinguishable on its facts from those cases in which a purported sale of property has been found to be an investment contract. Even the most expansive interpretation of the Howey test has not gone so far as plaintiff would have us go in this case, see SEC v Brigadoon Scotch Distributors, Ltd, supra. We do not read the cases interpreting the Uniform Securities Act and similar statutes as holding that advertisements which offer commodities as investments, coupled with a guarantee to buy the goods back at market price, are sufficient to transform a simple sale of personalty into an investment contract.
The order of the circuit court is reversed and the cease and desist order is vacated. No costs, a public question being involved.
Defendant’s president, Alois Geiger, testified at the evidentiary hearing held before a hearing examiner that the current prevailing market price meant the price at which DeBeers was selling diamonds on the day of repurchase.
Security is defined in MCL 451.801(1); MSA 19.776(401)(1) to include an investment contract.
A third test is applied in Minnesota, where an investment contract is defined as "the placing of capital or laying out of money in a way intended to secure income or profit from its employment”. State v Coin Wholesalers, Inc, 250 NW2d 583, 588 (Minn, 1976).
See Anno: What constitutes an "investment contract” within the meaning of state blue sky laws, 47 ALR3d 1375.
Compare Investment Diamonds, Inc [1971-1972 Transfer Binder] Fed Sec L Rep (CCH) ¶ 78,350, where the Securities and Exchange Commission in a staff opinion found an investment contract in a sale of diamonds accompanied by options either to resell to seller at a predetermined price or to trade in a diamond on a larger stone for a credit amount larger than the repurchase price. The opinion emphasized that the scheme made the trade-in option so much more advantageous to the buyer that its effect was to tie the buyer’s fortunes to those of the seller in his search for profit.
Mr. Dusenberry testified that he "nosed around a little bit” and was told by one jeweler to bring the stones in and "I’ll see what I can do for ya”. Mr. Dusenberry did not take his diamonds to the jeweler.
Both Colorado and South Carolina have enacted the Uniform Securities Act. | [
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] |
J. H. Gillis, J.
Defendant, Augusta Township, appeals from an order of the Washtenaw County Circuit Court which, inter alia, declared that a township ordinance regulating the disposal of sludge is invalid to the extent that it allows the township to deny a permit for sludge disposal where plaintiff had complied with all other applicable ordinances, and where such disposal would otherwise be permitted by license of the Department of Natural Resources.
Since 1974, plaintiff has operated a sanitary landfill under a conditional use permit issued by the township. In May, 1977, the landfill became the proposed site for the disposal of 40,000 cubic yards of sludge to be displaced by expansion of the Ann Arbor municipal sewage treatment facility.
On January 8, 1978, the township board adopted an ordinance regulating the disposal of sludge, said ordinance to take effect on February 11, 1978. On the day before the ordinance was to take effect, plaintiff contracted with the Washtenaw County Board of Public Works to dispose of the sludge to be displaced by the sewage plant expansion.
On February 15, 1978, the township notified plaintiff of its intention to hold a hearing to determine whether there were grounds to terminate plaintiffs conditional use permit. Testimony was taken at a joint meeting of the township planning commission and the township zoning board of appeals. Findings of fact were issued and it was concluded that plaintiff had violated the conditions of its permit. At a meeting held February 27, 1978, the combined boards unanimously voted to terminate the permit.
Plaintiff commenced this action the next day, seeking injunctive relief. Plaintiff was subsequently allowed to amend its pleadings to request a declaratory judgment on the validity of the sludge ordinance.
The trial court dismissed most of plaintiffs requests for relief with one significant exception. The court held that while the township may regulate solid waste disposal within its boundaries, it could not prohibit such activity once the state has licensed it in a properly zoned area. It is from this portion of the judgment that defendant has appealed.
That portion of the township ordinance which the trial court found deficient provides:
"In determining whether or not to grant the license applied for, the township board shall consider the application, the reports of its professional advisors, the report of the planning commission, and the, evidence presented at the public hearing. It shall also consider the determination of the people of the State of Michigan in the Constitution of 1963, Article IV, Sec. 52 that the conservation and development of the natural resources of the state are of paramount public concern in the interest of the health, safety and general welfare of the people. It shall grant the license only if it first determines that the proposed activities will not pollute, impair or destroy significant natural resources, create hazards to the public health or safety, or result in public or private nuisance that is reasonably predictable.”
It is defendant’s contention that the ordinance under consideration is expressly authorized by § 2 of the garbage and refuse disposal act, which provides:
"No person shall dispose of any refuse at any place except a disposal area licensed as provided in this act. Nothing in this act nor any act of the commissioner’s shall usurp the legal right of a local governing body from developing and enforcing local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent that the provisions of this act, nor will this act relieve the applicant for license to operate a disposal area from obtaining a license from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conflict with this act.” MCL 325.292; MSA 14.435(2).
The foregoing provision has created some confusion over the extent to which a local governing body can prohibit a state-permitted use.
In Waterford Processing & Reclaiming Co v Waterford Twp, 25 Mich App 507; 181 NW2d 675 (1970), a local zoning ordinance required a person seeking to operate a landfill to obtain a permit. Such permit was to be granted only upon a determination by the township that the proposed operations would not be "injurious to the general public health, safety and welfare of the township and its citizens”. Id. at 509. After the state had granted a permit, the township refused to issue one because the planning commission believed there was a possibility that a nearby lake would be polluted. The action of the board was reversed by the circuit court and this Court affirmed that decision stating:
"Once the commissioner has approved a certain site and imposed operating conditions, the local governing body may impose any additional reasonable regulations designed to eliminate any forseeable health hazard. However, these local regulations may not exclude what the state has permitted. Builders Association v Detroit, 295 Mich 272; [294 NW 677] (1940). Since the operation of the Waterford Township zoning ordinance has an exclusionary elfect in this case, that portion of the ordinance permitting refusal of a local license to a state licensee is void as applied.” 25 Mich App at 511, 512.
The above-quoted material would seem to indicate that whenever the state has granted an applicant a permit to operate a landfill the local government is without authority to prohibit such use. However, subsequent case law indicates otherwise.
In Haring Twp v Cadillac, 35 Mich App 260; 192 NW2d 384 (1971), a township zoning ordinance prohibited the storage of garbage except by the township or its agents. The Department of Natural Resources gave the City of Cadillac permission to use state-owned land, located within the township, for landfill purposes. It also prohibited any use or occupancy of land without prior certification by the township, for landfill purposes. It also prohibited any use or occupancy of land without prior certification by the township building inspector. The lower court enjoined the City of Cadillac from using the land for dumping and the decision was affirmed by this Court with the simple statement that the "statute of the State of Michigan [MCL 325.292; MSA 14.435(2)] and the rules promulgated by the Department of Natural Resources mandate compliance with local ordinances”. 35 Mich App at 263.
The apparent conflict between Haring and Waterford was resolved in Dettore v Brighton Twp, 58 Mich App 652; 228 NW2d 508 (1975). The Court there noted that in Waterford, the land under consideration had already been zoned to permit its use as a sanitary landfill. In addition, the only reason the permit was denied was because the local commission believed there was a possibility of pollution. The Dettore Court stated that this "reason was obviously untenable” since the state license was granted only after it was determined that unlawful pollution would not be created. The Court subsequently set forth the following:
"In Waterford, the applicant had met zoning requirements and had complied in every respect with all applicable local regulations. Its request for a permit was denied by the local officials for a reason which was both unsupported by the facts and 'in conflict with this act’. MCL 325.292; MSA 14.435(2). Waterford, then, stands for the proposition that issuance of a state license pursuant to the garbage and refuse act prohibits the locality from denying a permit for reasons or under circumstances inconsistent with the express provisions of the act itself.” Dettore v Brighton Twp, supra, at 658-659.
In Jamens v Avon Twp, 71 Mich App 70, 78; 246 NW2d 410 (1976), the Court distilled the following two-fold rule from the above trilogy of cases:
"First, once the Department of Natural Resources pursuant to the garbage and refuse disposal act, MCL 325.291 et seq.; MSA 14.435(1) et seq., has authorized a particular location as a landfill and has prescribed operating procedures, townships may supplement the DNR requirements with '* * * any additional reasonable regulations designed to eliminate any foreseeable health hazard. However, these local regulations may not exclude what the state has permitted’. Waterford, supra, at 511. (Emphasis in original.) Second, DNR licensees may not disregard local government zoning.”
We think this is a somewhat broad reading of Dettore. We read it to mean that once the state has determined that no danger of pollution is posed by the use of a site as a sanitary landfill, the local governing body may not use "potential pollution” as a reason for denying a permit. However, the local governing body may refuse to issue a permit based upon factors not examined by the state authorities.
In the instant case the township ordinance provides that a license shall be granted only if the board determines that the proposed activities "will not pollute, impair or destroy significant natural resources, create hazards to the public health or safety, or result in public or private nuisance”. The record does not indicate exactly what factors were considered and resolved when the decision was made to issue a state license. Presumably the dangers of water contamination and pollution were considered. Waterford, supra, at 511. To the extent that the ordinance at issue allows the township to deny a permit based upon factors previously determined by state authorities it is invalid. However, since we are unable on the record before us to determine whether all of the factors to be examined under the ordinance have previously been resolved by the state authorities we remand the case for such a determination.
Remanded for proceedings consistent with this opinion. No costs, a public question being involved.
In Jamens v Avon Twp (On Remand), 78 Mich App 289; 259 NW2d 349 (1977), the Court reversed its prior decision and held that the plaintiff had failed to satisfy the burden of proving that the zoning ordinance, which restricted a proposed landfill site to residential purposes, was unconstitutional. | [
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D. C. Riley, J.
Plaintiff appeals a jury verdict of no cause of action following a six-day trial in which he claimed his landlord was liable for injuries he sustained when he was robbed by unknown assailants in the lobby of the building in which he lived. Specifically, plaintiff alleged that the cause of his injuries was defendant’s failure to provide and maintain a rear door that closed and locked properly. Defendant’s answer asserted contributory negligence as an affirmative defense, stating that the facts supporting that defense would be subsequently provided. It is conceded by the defendant that she did not offer any evidence on this issue at trial.
In plaintiff’s application for jury instructions he requested that the trial judge charge that "[t]he action or inaction of the defendant may be negligent if she realized or should have realized that her action or inaction involved an unreasonable risk of harm to her tenants, even through the criminal conduct of other persons”. The trial judge refused to give this instruction and, over objection, gave instead several Standard Jury Instructions concerning negligence. The court also instructed the jury on the defense of contributory negligence, over plaintiff’s objection. The trial judge found the general statement of contributory negligence contained in defendant’s answer to be sufficient and also found that there was sufficient evidence of contributory negligence at trial to support the giving of the charge.
In asserting that the trial court erred in refusing to give the first requested instruction, plaintiff does not argue that the instruction given by the judge was legally erroneous, but rather, claims that the charge was incomplete in that it did not inform the jury that, according to the rule in Michigan, defendant could be liable in negligence even though the harm suffered by the plaintiff was the result of criminal acts of third parties. Our review of the record does not support this claim of error.
A jury charge must be considered in its entirety and if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, we will not find reversible error. Jones v Morgan, 58 Mich App 455, 465; 228 NW2d 419 (1975), lv den 394 Mich 775 (1975). A trial judge is not obliged to give a jury charge in the manner requested so long as the jury is fully and properly apprised of the applicable law. Coon v Williams, 4 Mich App 325, 338; 144 NW2d 821 (1966). Standard Jury Instructions must be given in civil proceedings if they are requested, accurate and applicable. GCR 1963, 516.6(2), Javis v Ypsilanti Board of Education, 393 Mich 689, 697; 227 NW2d 543 (1975), Poplawski v Huron Clinton Metropolitan Authority, 78 Mich App 644, 648; 260 NW2d 890 (1977), lv den 402 Mich 882; 262 NW2d 299 (1978).
Using the Standard Jury Instructions requested by defendant, the trial judge instructed the jury that "in connection with this occurrence” defendant was under a duty to use ordinary care for the safety of the plaintiff, and defined ordinary care as that which a reasonable, careful person would use under the circumstances of the case. The court further charged on the definitions of negligence and proximate cause, and also advised the jury of plaintiff’s burden of proof. Considering these instructions as a whole against the factual context of the present case, we are persuaded that they sufficiently apprised the jury that defendant could be liable despite the fact that the harm suffered by plaintiff resulted from the wrongful acts of third persons. The instant lawsuit arose out of a criminal attack on the plaintiff in the building in which he lived. His entire case was premised upon an allegation of negligent maintenance of an apartment building door. The jury was well aware of these factors when it received the court’s instructions that they could find defendant liable if she did not exercise ordinary care for the safety of the plaintiff.
Plaintiff urges us to consider the requested charge even more exigent in light of defense counsel’s affirmations to the jury during voir dire and closing argument that his client could not control crime and therefore should not be held responsible for the acts of third persons. We note, however, that plaintiff’s attorney had ample opportunity to object to these statements during trial but did not. We note, also, that he directly addressed the jury on this issue in his closing argument.
We find, therefore, that the court’s refusal to give the requested instruction was not error where the Standard Jury Instructions given by the court did apprise the jury of the substance of the proposed charge.
Plaintiffs second allegation of error regarding the trial court’s instruction on the defense of contributory negligence is two-fold: first, defendant’s answer did not plead sufficient facts in support of the defense; second, defendant’s failure to present evidence of contributory negligence at trial constituted a waiver of the defense.
This case was filed in October, 1974, and in December defendant filed her answer using pro forma language to preserve a potential affirmative defense of contributory negligence: "the particulars of which will be spelled out after the completion of discovery.” Defendant also appended the following language under her special and/or affirmative defenses:.
"Further, that the acts of a third person or third persons not parties hereto constituted an efficient intervening cause resulting in the injury complained of, and that none of the acts and/or omissions as alleged in the complaint heretofore filed, all of which have been specifically denied by this defendant, were or could have been in any part a proximate cause of the losses set forth by the plaintiff.”
Extensive discovery was undertaken, numerous depositions filed and batteries of interrogatories exchanged before the case was set for a pretrial conference on January 11, 1977, which the pretrial summary indicates actually took place on Tuesday, February 15, 1977. Ostensibly contributory negligence was not perceived by the defendant’s counsel to be a viable defense at the time of pretrial. Contributory negligence was never mentioned from the date of the filing of the original answer on December 30, 1974, until the instructions were taken up at the close of proofs on May 10, 1977. Admittedly, it is a very close question because the trial judge apparently allowed the injection of the issue as being within his discretionary power under GCR 1963, 118.3. The court ruled:
"Now, procedurally the Court would say that in the Complaint, or at least in the answer, rather, or in the affirmative defense, the Court does not recall which, which is really not material, there is a general statement of contributory negligence by Counsel, by Defense Counsel, and he suggests that he is going to elaborate on that. Well, the Court would say from the testimony offered, and the nature of the case, really elaboration was not necessary in this case. It did not bring about any surprise for the Plaintiff and, as a matter of fact; the testimony flowed very naturally from the witnesses as to what happened. Really the Complaint [sic] should be amended to conform with the proofs as they were produced by the witnesses and without objection.”
Apparently what the trial judge was saying was that although the defendant offered no factual theory of contributory negligence by pleading, motion, pretrial statement or opening statement, and although she presented no independent proofs on contributory negligence, the jury could infer from the plaintiff’s own testimony that he was contributorily negligent. Therefore the failure to plead by amendment, motion or otherwise was not critical. We do not agree. The proofs were closed. The posture of the litigated issues from the viewpoint of the jury involved a factual dispute as to whether or not the defendant was negligent and whether or not that negligence, if any, was the proximate cause of plaintiff’s damages. These were the issues described in the pretrial summary and, on the form requesting the outline of defendant’s claims and affirmative defenses, no affirmative defense was mentioned.
The trial court founded his ruling under the amended and supplemental pleadings rule, GCR 1963, 118.3.
However, in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 415, the authors’ comments describe two different situations and we do not believe that this situation fits in either one. The authors say:
"There may be problems in deciding whether an issue has been tried by implied consent. In many circumstances, the conduct of the parties in presenting evidence, cross-examination, rebuttal and argument will plainly show that they have recognized an unpleaded issue as being in the case. On the other hand, one party may offer evidence which his opponent recognizes as outside the pleadings but for tactical reasons does not object to it because he reasonably believes it to be of no consequence. Should his failure to object be construed as implied consent to trial of the issue if it subsequently develops to be a matter of consequence? If so, he has been deprived of any effective opportunity to defend against an unpleaded issue, but it may be argued this is simply the consequence of his failure to object to evidence on the issue in the first place. If objection had been made, the consequence of the unpleaded issue and whether to permit an amendment to allow it in the case would have been posed for decision under the second facet of this rule.”
We perceive this to mean that the authors believe the party requesting the amendment has a hill to climb. The petitioner has to satisfy the court that the objecting party is not being hurt and if the court allows the evidence it should decide whether or not to give additional time to the objecting party to meet the evidence. So the court’s comment that: "Really the Complaint [sic— should be answer] should be amended to conform with the proofs as they were produced by the witnesses and without objection”, is inapropos. We hold that this issue should have been decided within the framework of the pretrial rule, GCR 1963, 301, and not the amended and supplemental pleadings rule, supra. Rule 301 contemplates a narrowing of the issues and mandates a meaningful summary which should control the subsequent proceedings. The authors’ comments in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 6, say:
"The primary goals of the pretrial conference are to facilitate the settlement of pending suits and to illuminate and narrow the issues, thereby to shorten trial proceedings.”
At 7-8:
"The court’s pretrial summary is an important document, which will control the future course of the trial insofar as it contains admissions or limitations of issues to be presented for trial.
"When the pretrial summary is received by counsel, it is imperative that it be studied closely so that the attention of the court may be called to any discrepancies and, if necessary, objections to the summary may be raised with the pretrial judge immediately.”
There is no question but that the trial judge has discretion to modify the pretrial summary at or before trial to prevent manifest injustice. Bednarsh v Winshall, 374 Mich 667; 133 NW2d 202 (1965). But it does not follow that the manifest injustice argument operates to allow defendant to raise an issue of contributory negligence after all the proofs are in.
A defendant who raises an affirmative defense of contributory negligence in a "boilerplate” pleading that promises to furnish a factual basis after discovery is deemed to have waived any such affirmative defense if his pretrial statement and the court’s pretrial summary are silent as to same.
The applicable portions of the defendant’s pretrial statements follow:
“1. Factual statement of plaintiff’s claims or defendant’s claims, including counter claims, cross claims and affirmative defenses. * * * This defendant denies any and all claims of negligence, and avers that the door, the door closer, and the lock all operated properly and did not malfunction.
"This defendant further avers that the acts of third persons, not parties hereto, constituted an efficient, intervening cause resulting in the injury complained of, and none of the acts and/or ommissions [sic] as alleged by the plaintiff, all of which have been denied, were or could have been in any part a proximate cause of the accident complained of.
"Defendant avers that unknown assailants attacked the plaintiff, and there is no knowledge or testimony as to how those individuals entered the building or when they entered.
"2. What, briefly, are the factual and legal issues TO BE LITIGATED?
"Liability; damages.
"Proximate cause.
"Intervening, superseding acts of unlawful conduct and criminal actions of third parties.”
The applicable portions of the plaintiff’s pretrial statement follow:
"1. Factual statement of plaintiff’s claims or defendnat’s claims, including counter claims, cross CLAIMS AND AFFIRMATIVE DEFENSES. * * *
"Defendant owned an apartment building at which plaintiff was a tenant. On January 24, 1974, after entering through the rear door of the apartment building and while walking down a hallway, plaintiff was robbed, beaten and stabbed by intruders who also had been able to enter through the rear door because the defendant was negligent in permitting use of and in failing to repair or replace a defective automatic door closer device and a defective door and lock. As a result of the stab wound, plaintiff went into shock and suffered a stroke and complications therefrom which have left him totally and permanently disabled.
"2. What, briefly, are the factual and legal issues TO BE LITIGATED?
"Negligence of defendant.”
Neither party called for amendment to the pleadings. Both parties left blank questions 3, 4, and 5 on the pretrial form which were:
"3. If pleadings are not satisfactory at this time, WHAT FORMAL AMENDMENTS WILL YOU REQUEST AT PRETRIAL?
"4. Why is such amendment necessary?
"5. Why was it not sought prior to pre-trial?”
We consider it significant that defendant did not list contributory negligence as an issue and that defendant contested the fact that the assailants entered the building through the door in question. It is likely that the defense considered it the better part of strategy not to be caught on the horns of a dilemma saying the assailants didn’t get in the back door, but if they did it was plaintiffs fault.
Further, we consider it significant that the thrust of defense counsel’s opening statement was to the effect that defendant could not be held responsible for the horrendous crime problem in the area; it was a disease of the times. No mention at all was made of any claim of contributory negligence.
It seems fundamentally unfair to allow an affirmative defense to be reserved to a point where a party has the option of claiming it, not only after investigation, discovery and pretrial, but after all the proofs are in without ever complying with the rules of pleadings and pretrial procedure. We cannot presume the jury disregarded the instruction.
Reversed and remanded for retrial consistent with this opinion.
No costs, neither party having prevailed in full.
The question of whether a landlord is under a duty to protect tenants against foreseeable criminal activity of third persons within the area of a multiple dwelling was first addressed in Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972), where the Michigan Supreme Court adopted the view expressed in 2 Restatement Torts, 2d, § 302B, p 88.
"An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”
The Johnston case was followed in Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975). The issue is not without debate. See Anno: Landlord’s obligation to protect tenant against criminal activities of third persons, 43 ALR3d 331. | [
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Kelly, J.
The Court of Appeals affirmed defendant’s convictions for first-degree felony murder, two counts of first-degree criminal sexual conduct (CSC I), assault and battery, kidnapping, and unlawfully driving away an automobile (udaa). We affirm the defendant’s convictions, at the same time finding that the Court of Appeals rationale for its affirmance was in error.
I. FACTS
This factual summary was established at trial through the voluntary testimony of defendant’s wife, Regina Warren, except where otherwise indicated.
On January 18, 1995, defendant prepared a candlelight dinner for Ms. Warren. She discovered that he had been drinking. Defendant’s alcohol consumption had been a cause of continuing confrontation in their marriage. This occasion was no exception, and Ms. Warren returned upstairs without eating the dinner.
Defendant became angry at her behavior and reacted by threatening to tie her up and throw her in the basement. He found a plastic clothes line and set about binding her with it, telling her to stand up or something would happen to her. As she stood up, he held her hands behind her back. At that moment, the doorbell rang.
Ms. Warren pounded on the window to alert the person at the door to her plight. It was Ms. Warren’s sister, who, when told of the situation, left the house, taking Ms. Warren and her children to her own house. From there, Ms. Warren and the children went with Ms. Warren’s mother, Ms. Powell, to the latter’s house.
Later in a bedroom at her mother’s, Ms. Warren noticed that a window had been broken in an exterior door. Ms. Powell concluded that defendant had forced his way into the house. She had seen him walking outside earlier. They called the police. An officer arrived and checked the house for intruders. He did not discover defendant in the basement.
Later, Ms. Warren was awakened by her mother screaming from the basement for her to call the police. Ms. Warren rushed to the basement stairwell where she encountered her husband running up the stairs with a knife in his hand. She seized a mop and struck him with it.
Defendant told Ms. Warren that he loved her and would never hurt her. He wiped the knife with some material and put it down near the sink. Ms. Warren tried to determine if her mother had been injured, but defendant prevented it. He said he wanted her to feel what it is like to be beaten, and he punched her in the face.
He took her to a bedroom and continued to beat her on her face and body. He then forced her to perform fellatio on him and raped her vaginally.
The children awakened, and Ms. Warren asked to see them. Defendant agreed and went back to the basement for about five minutes. She repeated her request to see her mother. Defendant replied that, if she went downstairs, she would not return. He said her mother had stumbled over a basket and hit her head on the floor.
After sunrise, Ms. Warren asked defendant to leave the house to get some personal items for her and he agreed. Before leaving, he bound her, put a sock in her mouth and secured the sock by tying a cloth around her head.
Ms. Warren heard her mother’s car start and depart. She freed her feet and ran to the basement. Turning on the light, she saw a large pool of blood. She screamed for her mother through the gag, but heard no response. She then ran out the front door with her hands and mouth still tied. A neighbor let her in and allowed her to call the police.
The neighbor described her as disheveled, shaky, and emotional. Ms. Warren said she had been raped, believed her mother had been killed in the basement of her house, and expressed concern for her children.
When the police arrived, they found Ms. Powell dead, lying in a large pool of blood in her basement. An autopsy revealed that she had been stabbed eight times.
A police detective, gathering evidence at the scene, collected a beer can with defendant’s fingerprints on it and a large butcher knife. He found fabric that appeared to be discolored by blood, as though an object had been wiped on it. He also collected glass from a broken window.
Defendant was driving Ms. Powell’s car on a highway out of town when the police arrested him. He had cuts and scrapes on his hands. Stains appearing to be blood were on his pants. After waiving his Miranda rights, he gave a self-incriminating statement that the police videotaped. He stated that, upon returning with supplies, he observed a fire truck in front of Ms. Powell’s house. He turned around, stopped briefly at his house and took a back road out of town.
Defendant filed a pretrial motion claiming that the spousal privilege statute prevented his wife from testifying about the facts supporting felony-murder, first-degree home invasion and udaa. The trial judge denied the motion by written opinion, finding that Ms. Warren could testify about defendant’s crimes against her mother. She had a cause of action under the wrongful death statute. It followed that a personal wrong had been done to Ms. Warren by her husband, and she could testify pursuant to the “personal wrong” exception to the spousal privilege. During trial, the defense renewed its objection, in order to preserve it in the record.
A jury convicted defendant on all charged counts. The home invasion conviction was vacated at sentencing, because it was the felony underlying the felony-murder conviction.
The Court of Appeals affirmed. It agreed that defendant’s spouse could testify against him, pursuant to the personal wrong exception. It held that she could testify about those crimes that were committed against her mother and her mother’s property. It found that such evidence provided a relevant context for the remaining crimes that qualified as personal wrongs. 228 Mich App 336, 342-343; 578 NW2d 692 (1998).
It noted that Ms. Warren’s testimony about seeing defendant ran up the basement stairs with a knife after her mother screamed implicated defendant in the home invasion and murder charges. However, it found this testimony admissible, as it also explained why Ms. Warren did not resist his later acts of assault, rape, and confinement. Ms. Warren’s testimony that she heard defendant drive away in her mother’s automobile implicated defendant in the udaa charge. However, the Court of Appeals found that the testimony was admissible as pertinent to the kidnapping charge, because it explained why defendant bound and gagged Ms. Warren.
The Court of Appeals concluded that all Ms. Warren’s testimony was properly admitted because “[a] party should ‘be able to give the jury an intelligible presentation of the full context in which disputed events took place.’ People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996).” 228 Mich App 342. The crimes that did not fit within the exception were blended with and explained the circumstances of those crimes that did qualify. Id. at 742.
We granted defendant’s application for leave to appeal. 460 Mich 851 (1999).
n. MICHIGAN’S SPOUSAL PRIVILEGE STATUTE
At the time of the events in this case, Michigan’s spousal privilege statute provided in relevant part:
(1) A husband shall not be examined as a witness for or against his wife without her consent or a wife for or against her husband without his consent, except as follows:
* :|; *
(d) In a cause of action that grows out of a personal wrong or injury done by one to the other .... [MCL 600.2162; MSA 27A.2162 (emphasis added).]
The statute vested the privilege in the nonwitness spouse. The privilege could be asserted only while the spouses were legally married, and it precluded all testimony regardless of whether the events occurred before or during the marriage. People v Hamacher, 432 Mich 157, 161; 438 NW2d 543 (1989); People v Wadkins, 101 Mich App 272, 282; 300 NW2d 542 (1980).
A. PEOPLE v QUANSTROM
Over one hundred years ago, in People v Quanstrom, this Court rendered a narrow interpretation of the personal injury exception to the spousal privilege. It found that a wife could not testify in her husband’s prosecution for bigamy. The Court read “personal [wrong or] injury” to mean “violence, either actual or constructive, to the person.” Id. at 256. “If not a crime against her, it certainly is not a wrong which is personal to her.” Id. at 260.
The Michigan Legislature later amended the spousal privilege statute specifically to include a bigamy exception. More recently, in People v Butler, this Court effectively limited Quanstrom’s narrow reading of the exception to cases of bigamy. Id. at 439. In that case, the defendant was charged with arson of a dwelling house after setting his wife’s apartment afire. She was allowed to testify against him under the personal wrong exception, even though she had not been physically injured. The Court concluded:
We see no reason ... to interpret the “personal wrong or injury” exception in the narrow fashion stated by Quanstrom. [Id. at 439.]
As the bigamy exception had been added to the spousal privilege statute when Butler was issued, Butler left Quanstrom with no precedential value, the holding having no application.
B. PEOPLE v LOVE
A 1986 decision of this Court regarding the personal wrong exception to the spousal privilege statute, People v Love, addressed facts very similar to those in the present case.
In Love, the defendant’s wife was the prosecution’s main witness, establishing the bulk of its case. Id. at 694. The defendant was separated from his wife, and she had instituted divorce proceedings. He believed she was sexually intimate with Johnny McQueen, one of her co-workers. The defendant contacted McQueen and asked him to come to his wife’s house to discuss his relationship with her. Id. at 694-695.
When McQueen arrived, the defendant and his wife got into McQueen’s car, the wife in the passenger seat and the defendant in the back behind McQueen. After some discussion, the defendant suddenly shot McQueen in the head, killing him. He then kidnapped his wife, turning the gun on her and driving off aimlessly. Id. at 695.
Ms. Love indicated at trial that she did not wish to testily. The court compelled her testimony concerning the charges of kidnapping, second-degree murder and possession of a firearm during the commission of a felony. Id. at 708. The court denied a defense motion to preclude Ms. Love’s testimony regarding the latter two charges under the spousal privilege statute. Defendant was convicted of all three charges, and the Court of Appeals affirmed the convictions. Id. at 694-695.
In a plurality opinion, this Court found that a witness-spouse could not be compelled to testify under the personal wrong exception, and that the exception was inapplicable on these facts. In the lead opinion, with Justice Levin concurring, Justice Cavanagh wrote:
The phrase “grows out of” indicates that the particular cause of action must be for the personal injury inflicted upon one spouse by the other. The prosecution’s cause of action for kidnapping grew out of the personal wrong inflicted upon Mrs. Love. The cause of action for murder and felony-firearm grew out of the personal injury inflicted upon Mr. McQueen. The fact that the three offenses occurred during the same criminal transaction is irrelevant to the determination of which cause of action grew out of which personal wrong or injury. [Id. at 702-703.]
Supplying the deciding votes, Chief Justice Wtlltams in a concurring opinion, joined by Justice Brickley, found the personal wrong exception inapplicable, using a different rationale:
[A] cause of action cannot “grow]] out of a personal wrong or injury done by one to the other” that did not occur at the time of the “cause of action”____[Id. at 709.]
They focused on the temporal sequence of the offenses, and decided that only if the spouse was wronged first could subsequent criminal acts be found to “grow[] out of” that personal wrong or injury.
Thus, Ms. Love was not permitted to testify concerning the charges of murder and felony-firearm. The admission of this testimony was not harmless error, because his wife was the only witness who testified about the commission of these crimes. Id. at 706. The Corut reversed the defendant’s convictions on the two charges. Id. at 709.
Justice Boyle, joined by Justice Riley, entered a dissenting opinion. She rendered yet a third interpretation of the language of the spousal privilege statute, agreeing with the holding of the Court of Appeals in its decision:
“[A] crime committed against a third person as part of the same criminal transaction as a crime committed against a spouse ‘grows out of a personal wrong or injury’ done to the spouse and is therefore within the exception.” [Id. at 713, quoting People v Love, 127 Mich App 596, 602; 339 NW2d 493 (1983).]
She further concluded that a spouse may be compelled to testify under the statute. Id. at 716. Thus, Justice Boyle concluded that the spouse’s testimony was properly admitted under the exception and that defendant’s convictions should be affirmed. Id. at 717.
C. PEOPLE v VANN
Nine years later, in People v Vann, this Court stated that “[a] majority of justices agreed that the wife in Love could not testify in the murder prosecution because the offense against the third-party decedent occurred before the offense against the wife . . . .” Id. at 51. This statement does not accurately reflect the holding in Justice Cavanagh’s lead opinion. It stated that the “crime charged must have been committed against the witness-spouse to come within the ‘personal wrong or injury’ exception.” Love, supra at 703. The lead opinion never acknowledged the temporal sequence test advocated by Chief Justice Williams and Justice Brickley.
In Vann, the husband attacked both his wife and the third party, simultaneously committing a single criminal act against two victims. Vann, supra at 52. There was no temporal sequence to the conduct. Therefore, because the Court did not employ the tem poral-sequence test in reaching its conclusion, its comments with respect to this test were dicta. People v Case, 220 Mich 379, 382-383; 190 NW 289 (1922).
Contrary to the statement of this Court in Vann, Love lacks a majority holding. It does not serve as binding precedent. The lead opinion drafted by Justice Cavanagh and the concurring opinion drafted by Chief Justice Williams cannot be reconciled; they have no common denominator except in result.
m. statutory interpretation
The Court’s varied readings of the personal wrong exception to the spousal privilege in the opinions discussed here bear witness to the ambiguous language of the exception. “If reasonable minds can differ concerning the meaning of a statute . . . judicial construction is appropriate.” Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). As Quanstrom’s narrow reading of the exception retains no precedential force and the plurality opinion in Love lacks a majority holding, the bounds of the exception are not clearly delineated.
Privileges are narrowly defined and their exceptions broadly construed. Univ of Pennsylvania v EEOC, 493 US 182; 110 S Ct 577; 107 L Ed 2d 571 (1990). Professor McCormick aptly explains why privileges are not generally endorsed or broadly construed:
The overwhelming majority of all rules of evidence have as their ultimate justification some tendency to promote the objectives set forward by the conventional witness’ oath, the presentation of “the truth, the whole truth, and nothing but the truth.” ... By contrast the rules of privilege . . . are not designed or intended to facilitate the fact-finding process or to safeguard its integrity. Their effect instead is clearly inhibitive; rather than facilitating the illumination of truth, they shut out the light. [1 McCormick, Evidence (5th ed), § 72, pp 298-299.]
We decline to follow the reading of the personal wrong exception set forth by Justice Cavanagh’s lead opinion in Love. It follows the view delineated by Quanstrom, which, as we have noted, retains no precedential value and has been abandoned by later decisions. The “grows out of” wording requires a connection between the cause of action and the harm or injury committed against the spouse. However, the phrase does not limit spousal testimony to those crimes of which the spouse was the direct victim.
On the other hand, we reject the “same transaction” test advanced by Justice Boyle in her dissent in Love. To find that any additional crime done by a defendant when he commits a crime against his spouse “grows out of a personal wrong or injury done” to the spouse stretches the exception beyond its plain language. The “broad, comprehensive and general meaning” that has been ascribed to the phrase still requires that the other crimes have as their seed the personal wrong or injury committed against the spouse.
We find Justice Boyle’s and Justice Cavanagh’s interpretations of “grows out of” in Love to be too broad and too narrow, respectively. However, we agree that the temporal sequence test set out in Chief Justice Williams’ Love concurrence has support in the language of the statute.
Additionally, we read the exception to allow a victim-spouse to testify about a persecuting spouse’s precedent criminal acts where (1) the underlying goal or purpose of the persecuting spouse is to cause the victim-spouse to suffer personal wrong or injury, (2) the earlier criminal acts are committed in furtherance of that goal, and (3) the personal wrong or injury against the spouse is ultimately completed or “done.”
Thus, where a persecuting spouse’s criminal activities have roots in acts ultimately committed against the victim-spouse, those preparatory crimes constitute “cause[s] of action that grow[] out of a personal wrong or injury done by one to the other . . . .” MCL 600.2162(l)(d); MSA 27A.2162(l)(d). This is because the underlying intent, the “seed” from which the other criminal acts grew, was the personal wrong or injury done to the spouse.
IV. ANALYSIS
In this case, we find the Court of Appeals justification for permitting the defendant’s spouse to testify against him concerning the crimes against her mother to be in error.
The Court of Appeals held that the spouse’s testimony about these crimes was admissible as evidence of other bad acts. 228 Mich App 342-343; MRE 404(b)(1); Sholl, supra at 742. There is no authority for employing this unrelated rule of evidence to broaden the exception to the spousal privilege. The other bad acts here were charged crimes that, but for the spousal privilege statute, the spouse would have been permitted to testify about regardless of MRE 404(b)(1).
We reject the Court of Appeals rationale. Brian Warren’s underlying purpose throughout the entire criminal transaction was to commit a personal wrong against his wife or to injure her. Ms. Warren’s testimony indicated that defendant initially assaulted and battered her at their house. He threatened to tie her up and throw her in the basement. He retrieved a plastic cord, ordered her to stand up and held her hands behind her back to make good on his threat. The arrival of Ms. Warren’s sister interrupted the attack.
Not to be foiled, defendant broke into Ms. Powell’s home and murdered Ms. Powell in order to have access to his wife. The defendant then assaulted, battered, raped, and kidnapped Ms. Warren. The crime of felony murder, based on the underlying felony of first-degree home invasion, grew out of these personal wrongs done to his wife.
Finally, defendant took Ms. Powell’s car in order to obtain supplies for Ms. Warren, at her request. That he bound Ms. Warren before leaving indicates that his intention was to continue her secret confinement. His motivation did not change to one of self-preservation until, returning from the errand, he saw a fire truck in front of Ms. Powell’s house. Thus, the UDAA grew out of the kidnapping of Ms. Warren, bringing the udaa within the personal wrong exception to the spousal privilege.
V. CONCLUSION
We affirm defendant’s convictions. We find that defendant’s spouse could testify about all the crimes of which defendant was convicted. Brian Warren’s purpose in embarking on his crime spree was to com mit a personal wrong against or injury to his wife. He achieved this objective, and all the crimes that he perpetrated grew out of it.
Affirmed in part and reversed in part.
Weaver, C.J., and Taylor, Corrigan, Young, and Markman, JJ., concurred with Kelly, J.
MCL 750.316; MSA 28.548.
MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).
MCL 750.81; MSA 28.276.
MCL 750.349; MSA 28.581.
MCL 750.413; MSA 28.645.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
MCL 600.2162(1); MSA 27A.2162(1).
MCL 750.110a(2); MSA 28.305(a)(2).
MCL 600.2922; MSA 27A.2922.
MCL 600.2162(l)(d); MSA 27A.2162(l)(d).
On June 20, 2000, the Legislature amended the spousal privilege statute. 2000 PA 182. The amendments do not eliminate the “personal wrong” exception.
Unless modified by statute or court rule, privileges are governed by common law. MRE 501.
93 Mich 254; 53 NW 165 (1892).
1897 PA 212, § 1.
430 Mich 434; 424 NW2d 264 (1988).
MCL 750.72; MSA 28.267.
Other cases reaffirm Butler’s abandonment of Quanstrom’s narrow reading of the personal wrong exception. In People v Eberhardt, 205 Mich App 587; 518 NW2d 511 (1994), the defendant’s wife was allowed to testify that he took her Aid for Dependent Children check, forged her signature and cashed it. Also, People v Pohl, 202 Mich App 203; 507 NW2d 819 (1993), remanded on other grounds 445 Mich 918 (1994), found one spouse’s destruction of the other’s personal property qualified as a personal wrong or injury under the exception.
425 Mich 691; 391 NW2d 738 (1986).
MCL 750.317; MSA 28.549.
MCL 750.227b; MSA 28.424(2).
448 Mich 47; 528 NW2d 693 (1995).
Decisions without a clear majority holding do not constitute binding authority under the doctrine of stare decisis. Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976).
Several courts, in interpreting the phrase “arising out of” in insurance contracts, have found the phrase to have a broad, comprehensive, and general meaning synonymous with the phrase “grows out of,” as well as the phrases “originating from,” “having its origin in,” or “flowing from.” League of Minnesota Cities Ins Trust v Coon Rapids, 446 NW2d 419, 422 (Minn App, 1989); Auto-Owners Ins Co v Transamerica Ins Co, 357 NW2d 519 (SD, 1984); Baca v New Mexico State Hwy Dep’t, 82 NM 689; 486 P2d 625 (1971); Jamestown Mut Ins Co v General Accident, Fire & Life Assurance Corp, 66 Misc 2d 952; 322 NYS2d 806 (NY Co Ct, 1971); Ins Co of North America v Royal Indemnity Co, 429 F2d 1014 (CA 6, 1970).
“Every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory . . . .” Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
In relevant part, MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
A litigant should “be able to give the jury an intelligible presentation of the full context in which disputed events took place.” Scholl, supra at 741.
“ah relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court.” MRE 402. “ ‘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.” MRE 401.
Secret confinement is an element of one form of kidnapping under the statute. People v Jaffray, 445 Mich 287, 295; 519 NW2d 108 (1994). | [
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Per Curiam.
The defendant was convicted of delivering between 50 and 225 grams of cocaine, which presumptively requires a prison term of ten to twenty years. The trial court concluded that there were substantial and compelling reasons for departing from the statutory mandate, however, and imposed a prison term of five to twenty years. We agree with the dissenting judge in the Court of Appeals that the trial court considered an inappropriate factor in concluding that a departure was warranted. We thus reverse and remand to the trial court for resentencing.
I
The defendant was arrested in November 1996 and charged with delivering cocaine on four different occasions to an undercover police officer. A jury convicted him of one count of delivery of 50 grams or more but less than 225 grams of cocaine, and three counts of delivery of less than 50 grams of cocaine. MCL 333.7401(2)(a)(iii), 333.7401(2)(a)(iv); MSA 14.15(740l)(2)(a)(iii), 14.15(7401)(2)(a)(iv).
The presumptive penalty for delivery of 50 or more but less than 225 grams of cocaine is a mandatory prison term of ten to twenty years. There is an exception, however:
The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. [MCL 333.7401(4); MSA 14.15(7401)(4).
In the instant case, the trial court concluded that there were substantial and compelling reasons for departure, and imposed a prison term of five to ten years for delivery of 50 or more but less than 225 grams of cocaine. With respect to the three counts of delivery of less than 50 grams of cocaine, the court sentenced the defendant to serve consecutive prison terms of one to twenty years.
The prosecutor appealed to the Court of Appeals, arguing, among other things, that the trial court improperly had considered the “remorse” of the defendant in departing from the mandatory sentence. The Court of Appeals affirmed, however, with Judge Whitbeck dissenting.
The prosecutor appealed to this Court.
n
In concluding that there were substantial and compelling reasons in the instant case for departing from the presumptively mandatory sentence of ten to twenty years prescribed by the Legislature, the trial court first noted that the defendant did not have a prior record. The court then stated:
I’m also very impressed by your letter of remorse. I am impressed by the remorse that you’ve shown. So many of the people, Attorney Hand [the assistant prosecutor], who come before me when I sentence them over the years, their only comment was, “I’m going to appeal you, Judge.” That’s what I get. There is a man that has not mentioned that; of course, he has the right to. But he said he’s very sorry. And remorse is very important to the re-establishment and to behavior modification.
Before imposing sentence, the trial court also noted that the defendant had provided assistance to police, that he had strong family support, and that he was only seventeen at the time of his offense.
The Court of Appeals held that the trial court did not clearly err in finding that there were “substantial and compelling factors” that warranted a departure from the statutory mandate in this case. Neither did the trial court abuse its discretion in determining that those “properly identified factors” constituted substantial and compelling reasons to depart, the Court said.
Writing in dissent, Judge Whitbeck concluded that a remand for resentencing was necessary because this Court has specified that a defendant’s expression of remorse is a subjective factor that a trial court may not consider in determining whether a departure from the sentence mandated by statute is justified. People v Fields, 448 Mich 58, 69, 80; 528 NW2d 176 (1995). The dissent observed that, although the trial court also considered appropriate objective and verifiable factors in the instant case, the appropriate remedy under Fields was to remand for resentencing “with only objective and verifiable factors to be considered by the trial court in determining whether to depart downward from the generally mandatory minimum sentence . . . .”
in
We agree with Judge Whitbeck that a remand is necessary. This Court held in Fields that only objective factors that are capable of verification may be used to assess whether there are substantial and compelling reasons to deviate from the minimum term of years imposed by the Legislature for certain drug offenses. In so doing, we adopted the basic tenets set forth by a special panel of the Court of Appeals in People v Hill, 192 Mich App 102; 480 NW2d 913 (1991).
This Court emphasized in Fields that the Legislature, in an effort to deter drug-related crime, intended that only in exceptional cases should . sentencing judges deviate from the minimum prison terms mandated by statute. We listed examples of objective and verifiable factors that would be appropriate to consider in determining whether a departure is warranted: (1) mitigating circumstances surrounding the offense, (2) the defendant’s prior record, (3) the defendant’s age, and (4) the defendant’s work history. We also said that it would be proper to consider factors that arose after the defendant’s arrest, such as cooperation with law enforcement officials.
We expressly disapproved, however, considering a defendant’s expression of remorse in determining whether to depart from the minimum sentence required by statute. In Fields, as in the instant case, “remorse” was one of the factors that the trial court cited in explaining the departure.
As Judge Whitbeck emphasized, the trial court in the instant case did not rely solely on the defendant’s remorse in reaching its departure decision, but also listed several objective and verifiable factors. However, as we explained in Fields:
Sentencing normally is not a job for the appellate court, the usual procedure being to send the case back to the trial judge for resentencing if it is found that the sentence is in some respect deficient. It is unclear whether the trial judge in this case would have found substantial and compelling reasons to deviate from the statutory minimum solely on the basis of objective and verifiable factors. [448 Mich 80 (internal citation omitted).]
Accordingly, as in Fields, it is necessary to remand this matter for the trial court to determine whether there are substantial and compelling reasons to deviate, when only appropriate factors are considered. In this regard, we emphasize that it is not sufficient sim ply to identify objective and verifiable factors. As Justice Young explained, in writing for a unanimous panel of the Court of Appeals in People v Johnson (On Remand), 223 Mich App 170, 173-174; 566 NW2d 28 (1997):
Given the underlying legislative intent to insure that drug traffickers receive prescribed sentences unless there are exceptional circumstances justifying the deviation, Fields does not authorize the mere listing of garden variety “factors,” even objective and verifiable ones, as a means of complying with legislative intent. Accordingly, we reemphasize that the simple iteration of objective and verifiable factors alone is insufficient to meet the statutory standard: the sentencing court must also specifically articulate the reasons why the factors it identifies and relies upon collectively provide “substantial and compelling” reasons to except the case from the legislatively mandated regime.
IV
We briefly respond to the dissenting opinions in this Court. The dissenters express disagreement with—and would overrule—our decision in Fields, supra at 90, that factors in support of a downward departure under MCL 333.7401(4); MSA 14.15(7401)(4) must be objective and verifiable. We decline to overrule Fields, as we believe it was properly reasoned.
First, and most importantly, we simply believe that the decision in Fields was correct. Moreover, while not dispositive to our decision, we do note the obvious fact that hundreds, if not thousands, of sentencing decisions for drug-related crimes subject to generally mandatory minimum sentences under MCL 333.7401; MSA 14.15(7401) have been made since the release of Fields. The trial courts imposing these sentences have presumably attempted to comply with Fields in deciding whether to undertake a downward departure under MCL 333.7401(4); MSA 14.15(7401). In light of this widespread reliance on Fields, overruling that decision could create havoc in the criminal justice system.
The precise meaning of the phrase “substantial and compelling reasons” as used in MCL 333.7401(4); MSA 14.15(7401) (4) is hardly self-evident. Thus, judicial construction is appropriate. People v Valentin, 457 Mich 1, 5-6; 577 NW2d 73 (1998). With regard to the meaning of the terms “substantial” and “compelling,” the Fields Court stated:
Statutes should be interpreted according to the common and approved usage of any undefined words within them. MCL 8.3a; MSA 2.212(1). Webster’s New World Dictionary, Third College Edition defines “substantial,” in relevant part, as, “2 real; actual; true; not imaginary 3 strong; solid; firm; stout 4 considerable; ample; large 5 of considerable worth or value; important . . . .” It defines “compelling,” in relevant part, as, “irresistibly or keenly interesting, attractive, etc.; captivating . . .
From these definitions it is evident that the words “substantial and compelling” constitute strong language. The Legislature did not wish that trial judges be able to deviate from the statutory minimum sentences for any reason. Instead, the reasons justifying departure should “keenly” or “irresistibly” grab our attention, and we should recognize them as being “of considerable worth” in deciding the length of a sentence.
* :|: *
In this context “substantial and compelling” cannot acquire a meaning that would allow trial judges to regularly use broad discretion to deviate from the statutory minimum. Such an inteipretation would defeat the intent of the stat ute. Rather, it is reasonable to conclude that the Legislature intended “substantial and compelling reasons” to exist only in exceptional cases. [Fields, supra at 67-68.]
Accordingly, we agree with Fields that for a reason in support of a downward departure to be “substantial and compelling” it must be objectively verifiable rather than requiring assessment by the subjective impression of a sentencing judge. Without such a limitation, appellate courts could not assure that downward departures are only based on substantial and compelling reasons because a departure could be made for reasons, such as a trial judge’s subjective acceptance of a defendant’s protestations of remorse, that cannot be objectively measured in terms of their strength as mitigating factors. It is easy to envision the lack of an objective and verifiable factor requirement leading to widespread, rather than narrowly limited, departures from generally mandatory minimum sentences.
Contrary to the position taken by Justice Cavanagh in his dissent, the trial court’s consideration of the defendant’s expression of remorse in this case was violative of Fields. The Fields Court expressly referred to a defendant’s expression of remorse as a factor that may not be considered in undertaking a downward departure. Id. at 69, 80. This is because an appellate court cannot effectively or objectively review the sincerity of such an expression of remorse. The trial court’s remarks at sentencing make clear that it heavily considered the defendant’s expression of remorse as a factor in support of its downward departure. After the trial court stated its intention to undertake a downward departure and began justifying that decision, it referred to being impressed by defendant’s “letter of remorse.” Further, after discussing remorse, the trial court even referred to the defendant’s having assisted the police as another substantial and compelling reason for departure. This particularly highlights the trial court’s clear reliance, contrary to Fields, on the defendant’s expression of remorse as a factor in support of its downward departure.
v
For the reasons stated by the dissenting judge in the Court of Appeals, we reverse the decision of that Court and remand this matter to the trial court for resentencing with respect to the defendant’s conviction for delivery of 50 or more but less than 225 grams of cocaine.
Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred.
1 The statute has been amended by 1996 PA 249 and 1998 PA 319, but the changes do not affect this case.
See MCL 333.7401(3); MSA 14.15(7401)(3).
The trial court imposed the presumptively mandatory prison terms of one to twenty years with respect to the defendant’s convictions for delivery of less than 50 grams of cocaine.
Unpublished opinion per curiam, issued November 20, 1998 (Docket No. 207755).
448 Mich 80.
Supreme Court Administrative Order No. 1990-6, now MCR 7.215(H)(3).
In Hill, the Court of Appeals adopted the test set forth in People v Downey, 183 Mich App 405; 454 NW2d 235 (1990), as modified by People v Krause, 185 Mich App 353; 460 NW2d 900 (1990).
In People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), this Court directed that sentencing judges be guided by the following criteria in fashioning an appropriate sentence: (1) the disciplining of the wrongdoer, (2) the protection of society, (3) the potential for reformation of the defendant, and (4) the deterring of others from committing similar offenses. In Downey, n 7 supra, one of the cases cited with approval in Fields, the Court of Appeals explained the relationship between the Snow factors and the sentences mandated by the Legislature for certain drug offenses:
The Legislature’s imposition of presumptively mandatory sentences for certain drug offenses reflects the Legislature’s, and thus society’s, determination that the length of the sentences contained in the statute are necessary to discipline the offender, to protect society and to deter others from committing drug offenses. The statutory amendment allowing deviation in exceptional circumstances reflects a desire to give judges some flexibility in making sentencing decisions based upon individual circumstances. Senate Legislative Analysis, SB 598, January 27, 1988. For these reasons we believe that the [objective and verifiable] factors which go into determining the rehabilitative potential of the defendant may be considered when determining if substantial and compelling reasons exist to deviate from the presumptive sentence. [183 Mich App 414.]
In Krause, n 7 supra, another of the eases cited with approval in Fields, the Court of Appeals noted why remorse is not an appropriate factor to consider in making a “departure” decision:
The fact that a defendant expresses remorse, whether orally or in writing, is an objective action which can be confirmed. However, a defendant’s intent when he expresses remorse is within his own mind and is, therefore, subjective. It cannot be confirmed by his own statement. Consequently, his mere protestation of remorse should not be considered as a balancing factor for determining substantial and compelling reasons to depart from the mandatory sentence. [185 Mich App 358.]
As Judge Whitbeck noted, the consecutive sentences imposed with respect to the defendant’s three convictions for delivery of less than 50 grams of cocaine were not challenged on appeal. | [
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] |
V. J. Brennan, J.
The City of Warren appeals as of right from the March 20, 1978, circuit court order enforcing retroactive health and dental insurance benefits awarded to the Warren Police Officers Association by the collective bargaining arbitration panel.
Contract negotiations between the City of Warren (hereafter defendant) and the Warren Police Officers Association (hereafter plaintiff) reached an impasse in November of 1976, and arbitration proceedings were begun under the compulsory arbitration of labor disputes in municipal police and fire departments act (hereafter the Act), MCL 423.231, et seq.; MSA 17.455(31), et seq. Hearings of the arbitration panel were conducted on various occasions from December 22, 1976, to July 29, 1977, and the award was signed on December 8, 1977. By complaint filed in circuit court on February 15, 1978, the plaintiff sought to enforce the provisions of the award which, as alleged by plaintiff, directed defendant to provide certain health and dental insurance coverage retroactively to July 1, 1977, the first day of the second year of the arbitration award. The circuit court in its order enforcing the award found that the award did provide health and dental insurance coverage retroactively to July 1, 1977, and that such an award does not contravene pertinent provisions of the Act. It is from this order that defendant appeals.
Defendant initially questions the jurisdiction of the arbitration panel to award health and medical insurance benefits retroactively. The pertinent provision of MCL 423.240; MSA 17.455(40), in effect at the time of the award, provided:
"* * * The commencement of a new municipal fiscal year after the initiation of arbitration procedures under this act, but before the arbitration decision, or its enforcement, shall not be deemed to render a dispute moot, or to otherwise impair the jurisdiction or authority of the arbitration panel or its decision. Increases in rates of compensation awarded by the arbitration panel under section 10 may be effective only at the start of the fiscal year next commencing after the date of the arbitration award. If a new fiscal year has commenced since the initiation of arbitration procedures under this act, the foregoing limitation shall be inapplicable, and such awarded increases may be retroactive to the commencement of such fiscal year any other statute or charter provisions to the contrary notwithstanding.”
The defendant contends that in accordance with the above only "increases in rates of compensation” can be awarded retroactively. Further, "rates of compensation” refers to money paid directly to an individual as compensation and does not include health and dental insurance benefits. We disagree with the defendant’s narrow construction of the subject provision.
Initially we point out that the statutory provision in question is rather ambiguous as to its meaning. Since the term "rates of compensation” is not defined in the Act it is open to diverse subjective analysis. Accordingly, we must interpret the term in accordance with the public policy and underlying purpose of the Act. See Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87; 233 NW2d 497 (1975). The public policy to be furthered by the Act is set forth at MCL 423.231; MSA 17.455(31) as follows:
"It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.” (Emphasis added.)
Thus the purpose of the Act is to provide an "expeditious” and "effective” means of solving a labor dispute where, as noted in Justice Williams’s separate opinion in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229, 293; 231 NW2d 226 (1975), "the public welfare cannot endure the impact of a work stoppage while awaiting the resolution of problems through normal negotiations”. Accordingly, the implicit goal is to provide arbitration awards which approximate agreements that would have been reached in the normal course of collective bargaining. The award of retroactive health and insurance benefits is thus contemplated by the Act since such benefits are normally included in a private-sector bargaining agreement.
The defendant next contends that the lower court erred in finding that the arbitration award included retroactive health and dental insurance benefits to July 1, 1977.
Inasmuch as the trial court’s finding constitutes a factual determination as to the extent of the arbitration award, our review is limited to the question of whether that finding is clearly erroneous. GCR 1963, 517.1.
The dispute regarding the health insurance benefits concerns the defendant’s proposal that any increase in premiums after July 1, 1977, be sustained by the individual officers. The plaintiff proposed that the defendant’s present practice of sustaining increases itself be maintained. In granting the plaintiff’s proposal, the arbitration award most certainly took into account the significance of the July 1, 1977, date. The award also granted the plaintiff’s proposal for dental insurance coverage effective "the second year of the contract”. The second year of the contract commenced July 1, 1977, thus that date’s significance was again emphasized.
Moreover, the plaintiffs last settlement offer clearly labelled health and dental insurance benefits as second-year economic issues, and the defendant did not assail this characterization. The arbitration award provided that "all economic issues were retroactive unless indicated otherwise”. Taking this and the significance of the July 1, 1977, date into account, the trial court’s determination that the awards were retroactive is not clearly erroneous.
We affirm the order of enforcement.
This portion of the act was subsequently amended to read:
"* * * The commencement of a new municipal fiscal year after the initiation of arbitration procedures under this act, but before the arbitration decision, or its enforcement, shall not be deemed to render a dispute moot, or to otherwise impair the jurisdiction or authority of the arbitration panel or its decision. Increases in rates of compensation or other beneñts may be awarded retroactively to the commencement of any period(s) in dispute, any other statute or charter provisions to the contrary notwithstanding.” (Emphasis added.)
There is no question that the act as amended allows for retroactive health and dental insurance benefits. | [
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] |
Per Curiam.
The sole issue in this case is the construction to be given a dual option lease granting the lessee a fixed price option and a first refusal option.
On May 1, 1957, defendants Edmund and Margaret Kraft entered into a lease arrangement with plaintiff Amoco Oil Company’s predecessor in interest, Standard Oil. The lease gave the lessee, Standard Oil, a fixed price option to buy the leased premises for $60,000 and a right of first refusal to buy the property for the amount contained in any bona fide offer made by a third party. The lease was for a ten-year term commencing December 13, 1957, and could be renewed at the lessee’s option for two additional terms of five years each.
In 1970, after Standard Oil had previously extended the lease for an additional five-year term, the Krafts notified plaintiff that they had received a bona fide offer from defendants Richard and Lynn Yezbick to purchase the leased premises for $165,000. Plaintiff declined to exercise its right of first refusal, and the property was sold to the Yezbicks. After having extended the lease for its final five-year term, plaintiff in 1977 notified defendants that it intended to exercise its fixed price option and purchase the property for $60,000. Defendants refused to convey the property and plaintiff commenced this action for specific performance.
Defendants claim that the fixed price option was extinguished when plaintiff received notification of a bona fide purchase offer higher than the fixed price but refused to exercise its first refusal option and thus allowed the property to be sold to a third party for a price in excess of the fixed price. Plaintiff contends that the two options remained independently operative throughout the entire term of the lease and the failure to exercise the first refusal option upon receiving notice of a third party’s bona fide purchase offer in excess of the fixed price had no effect on and did not extinguish plaintiff’s rights under the fixed price option. The trial court agreed with defendants’ interpretation of the contract and granted their motion for summary judgment. Plaintiff appeals as of right.
In construing contracts, the primary rule of construction is to ascertain the intent of the parties. Klever v Klever, 333 Mich 179; 52 NW2d 653 (1952), McIntosh v Groomes, 227 Mich 215; 198 NW 954 (1924). The language of the lease clearly indicates that the parties intended to create alternative options of equal stature. Under plaintiffs interpretation of the contract, however, the first refusal option would cease to be an independent option and instead be transformed into a secondary option subordinate to the fixed price option. Plaintiffs interpretation would freeze the value of the leasehold at the amount of the fixed price option. No one would be willing to purchase the property for a higher price than the fixed price with the knowledge that he could lose his investment and be divested of the property if plaintiff decided to purchase the property at the lower fixed price. This being the case, plaintiff would never have occasion to exercise its first refusal option, and it would be rendered virtually meaningless. We find nothing in the contract to show that the parties intended to make the first refusal option dependent on the fixed price option or to fix a ceiling price on the value of the leasehold. Therefore, plaintiffs interpretation of the contract cannot stand. See Manasse v Ford, 58 Cal App 312; 208 P 354 (1922), Texaco, Inc v Rogow, 150 Conn 401; 190 A2d 48 (1963).
Conversely, under defendants’ interpretation of the contract, both options continue to be viable until one of them ceases to be merely a contingent interest and instead becomes a vested right, at which time the nonvested option is extinguished. Since defendants’ interpretation of the contract keeps both options independent and viable, it is the more reasonable interpretation of the contract.
There is another factor which militates against plaintiff’s position. Plaintiff seeks specific performance of the fixed price option. Specific performance is an equitable remedy and as in all equitable remedies the maxim, he who comes into equity must come with clean hands, applies. A lessee who declines to exercise his option to purchase the property for $60,000 during the first 13 years of a 20-year lease, and then knowingly allows the leasehold to be sold to another for $165,000 by declining to exercise its alternative first refusal option, is certainly not acting according to principles of equity and fair dealing when in the twentieth and last year of the lease it seeks to reassert its fixed price option and buy the property for $60,000, a price approximately one-third of the leasehold’s fair market value. See Shell Oil Co v Jolley, 130 Vt 482; 296 A2d 236 (1972).
The trial court did not err in granting defendants’ motion for summary judgment.
Affirmed.
"Lessee shall have, and is hereby given, the option of purchasing said premises, buildings, fixtures, equipment, machinery and appliances included in this lease, for the sum of Sixty Thousand and No/ 100 Dollars ($60,000.00), provided Lessee shall give Lessor notice in writing of its election to exercise said option of purchase at least thirty (30) days prior to the expiration of this lease, or at least thirty (30) days prior to the expiration of any extension period, if this lease be extended, it being understood that in no event may this option be exercised prior to the end of first year of original term. If any part of the demised premises shall be taken by right of eminent domain or by any conveyance in lieu thereof or in connection therewith, the purchase price set forth herein, if the purchase option is exercised, shall be reduced in the same proportion that the area immediately prior to such taking is reduced by the taking. It is further understood that if the Lessor or the Lessor’s heirs, executors, grantees, or assigns, or successors or assigns at any time during the term of this lease or any extension thereof, receives a bona fide offer to purchase said premises or any property which includes the premises, and said buildings, fixtures, equipment, machinery and appliances and desires to sell said premises, buildings, fixtures, equipment, machinery and appliances, or any part thereof under the terms of said offer, Lessor agrees to give Lessee sixty (60) days notice in writing of such bona fide offer, setting forth the name and address of the proposed purchaser who has made the offer, the amount of the proposed purchase price, and all other terms and conditions of such offer, and the Lessee shall have the first option to purchase the demised premises by giving written notice to the Lessor of its intention to purchase within said sixty (60) day period at the same price and on the same terms of any such proposal, it being understood that in the event Lessee does not give notice of its intention to exercise its option to purchase said premises within said period, this Lease and all of its terms and conditions shall nevertheless remain in full force and effect and the Lessor and any purchaser or purchasers of the demised premises shall be bound thereby, and in the event said premises are not sold for any reason pursuant to the bona fide offer set forth in the notice, the Lessee shall have, upon the same conditions of notice, the continuing first option to purchase the said premises upon the terms of any subsequent bona fide offer or offers to purchase.”
In fact, under plaintiff’s interpretation, the first refusal option would only be viable if the market value of the leasehold was less than the fixed price. Although the fact of whether the market value is greater than or less than the fixed price might be determinative in plaintiff’s decision to exercise its fixed price option or wait for an offer lower than the fixed price and exercise its first refusal option, the fixed price option was not meant to limit the amount of offers or affect the very viability of the first refusal option as opposed to the advisability of its use.
An option becomes vested when the conditions and procedures specified in the contract are complied with in such a manner as to give the lessee an immediate right to exercise the option, i.e., for the first refusal option plaintiff is given notice of a bona fide offer to purchase from a third party, for the fixed price option the lessee notifies the lessor at least 30 days prior to the termination of the contract that he intends to purchase the property for the contract price. | [
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Per Curiam.
The plaintiff obtained a default judgment against the defendants, and then began garnishment proceedings to obtain the proceeds of an insurance policy that had been purchased by one of the defendants. The insurer defended by asserting that the insured had breached the insurance contract by failing to provide notice of the suit. On a statutory ground, the circuit court ordered the insurer to pay the plaintiff. The Court of Appeals reversed, but we reinstate the judgment of the circuit court.
i
From late 1991 through early 1994, plaintiff Linda M. Helder had a relationship with defendant Edward Sruba. Mr. Sruba was the sole shareholder of E.J.E.C.S. Corporation, which operated a tavern called The Neutral Comer on Ann Street in Grand Rapids.
In a May 1994 complaint, Ms. Helder alleged that during the years of their relationship, she was “repeatedly assaulted” by Mr. Smba. The complaint listed a number of specific dates, and stated that assaults had occurred on “other unknown dates.” Ms. Helder charged that Mr. Sruba had “intentionally engaged in a pattern of conduct including the above mentioned assaults, verbal abuse, manipulation and mindgames for the sole purpose of inflicting emotional distress upon the Plaintiff.” She further alleged that Mr. Sruba had violated a January 1994 restraining order.
Ms. Helder’s complaint also listed e.j.e.c.s. as a defendant. She alleged that, on dates separately provided to E.J.E.C.S., Mr. Sruba “was served alcoholic beverages while visibly intoxicated either by himself or by other employees of [e.j.e.c.s.].” She further stated that “the illegal serving of alcoholic beverages to [Mr. Sruba] on the dates set forth in the [statutory notice] was a proximate cause of [Mr. Sruba’s] subsequent assaults of the Plaintiff on those dates.”
In her complaint, Ms. Helder alleged serious physical injuries, including broken bones, inner ear damage, broken teeth, and closed head injury.
Both Mr. Sruba and E.J.E.C.S. were served with the summons and complaint. However, neither defendant filed an answer or filed any other response to this matter.
In this Court, Ms. Helder states that Mr. Sruba “testified in [a later] bankruptcy proceeding that he did notify his insurance carrier of this action pursuant to the instructions of his then attorney . . . .” However, North Pointe Insurance Company says that it never received notice of this action, and we will assume that to be true for purposes of this opinion.
In June 1994, the circuit court entered the default of Mr. Sruba and E.J.E.C.S. We are told that proceedings for entry of a default judgment were delayed until 1996 because of the pendency of the bankruptcy. On the basis of Ms. Helder’s documentation of injuries suffered at the hands of Mr. Sruba, the circuit court entered a November 1996 default judgment in her favor and against Mr. Sruba and E.J.E.C.S., jointly and severally, in the amount of $100,749.51, plus interest and costs.
Ms. Helder began garnishment proceedings against North Pointe Insurance Company in February 1996. On the garnishee disclosure form, North Pointe answered, “Principal defendant did not provide garnishee with notice of plaintiff’s claim, as required by defendant’s insurance policy with garnishee.”
Ms. Helder moved for summary disposition on the ground that North Pointe’s policy defense was ineffec tive in light of MCL 436.22Í; MSA 18.993(6), which provided:
The insurance policy hereinbefore mentioned shall cover the liability imposed by [MCL 436.22; MSA 18.993], and shall contain the following conditions:
That no condition, provision, stipulation or limitation contained in the policy, or any other endorsement thereon, shall relieve the insurer from liability (within the statutory limits provided by [MCL 436.22a; MSA 18.993(1)]), for the payment of any claim for which the insured may be held legally liable under [MCL 436.22; MSA 18.993].
North Pointe’s rejoinder was that MCL 436.22f; MSA 18.993(6) did not apply to a defense based upon a complete lack of notice. Henderson v Biron, 138 Mich App 503, 506; 360 NW2d 230 (1984). In turn, Ms. Helder cited this Court’s subsequent decision in Coburn v Fox, 425 Mich 300; 389 NW2d 424 (1986).
The circuit court agreed with Ms. Helder that MCL 436.22f; MSA 18.993(6) was applicable, and granted summary disposition. The court ordered North Pointe to pay its policy limits of $100,000, plus interest.
The Court of Appeals reversed. 234 Mich App 500; 595 NW2d 157 (1999). Judge Jansen dissented, say ing that the circuit court had correctly applied the statute.
Ms. Helder has applied to this Court for leave to appeal.
n
In a nutshell, here is how the Court of Appeals majority saw this matter:
According to plaintiff’s interpretation of [MCL 436.22Í; MSA 18.993(6)], an insured’s failure to timely notify the insurer of a claim cannot relieve the insurer from liability. Garnishee defendant argues that plaintiff’s interpretation “provides a blueprint for guaranteed recovery for plaintiffs who collude with insureds against their liquor liability insurer.” We agree with garnishee defendant that plaintiff’s interpretation is not only wrong, but would encourage fraudulent and collusive lawsuits. [234 Mich App 504.]
The majority added, “[p]laintiffs interpretation is erroneous for many reasons, but primarily because it ignores a key phrase and creates absurd and unjust results.” 234 Mich App 504-505.
“Accordingly,” said the majority, “we interpret the statute to mean that the insured’s failure to notify the insurer, absent any evidence of prejudice to the insurer, cannot preclude the plaintiff’s recovery.” 234 Mich App 505. The majority placed on the insurer the burden of showing such prejudice, and remanded the case to the circuit court “to give garnishee defendant the opportunity to demonstrate that it was prejudiced by the lost opportunity to demonstrate that plaintiff’s claim was not one for which the insured could be held legally liable.” 234 Mich App 507.
in
Writing in dissent, Judge Jansen relied on the plain language enacted by the Legislature. We agree with her analysis and, with slight editing to reflect the current status of this matter, adopt her opinion as our own.
[T]he trial court did not err in ruling that a dramshop liability carrier may not assert a lack-of-notice defense to a garnishment action because the applicable statute in this case, MCL 436.22f; MSA 18.993(6), clearly and unambiguously does not permit the insurer to relieve itself of liability under a lack-of-notice defense.
Pursuant to MCL 436.22f; MSA 18.993(6), liquor liability policies must contain a condition “[t]hat no condition, provision, stipulation or limitation contained in the policy, or any other endorsement thereon, shall relieve the insurer from liability . . . for the payment of any claim for which the insured may be held legally liable under [MCL 436.22; MSA 18.993].” Plaintiff asserts that this provision precludes defendant’s lack-of-notice defense set forth in the dramshop liability policy. Garnishee defendant argues that this provision does not apply to a lack-of-notice defense, relying on [the Court of Appeals] decision in Henderson v Biron, 138 Mich App 503; 360 NW2d 230 (1984).
This case requires us to construe and apply MCL 436.22Í; MSA 18.993(6). The “cardinal rule” of statutory construction is to identify and give effect to the intent of the Legislature. Shallal v Catholic Social Services, 455 Mich 604, 611; 566 NW2d 571 (1997); Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). The first step in discerning intent is to examine the language of the statute. Id. The language is to be read according to its ordinary and generally accepted meaning. Shallal, supra, p 611. Judicial construction is authorized only where the statute lends itself to more than one interpretation. Id. When statutory language is clear and unambiguous, the court must honor the legislative intent as clearly indicated in that language and no further construction is required or permitted. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538; 565 NW2d 828 (1997); Turner, supra, p 27. Therefore, where the statute is clear on its face, “the role of the judiciary is not to articulate its view of ‘policy,’ but to apply the statute in accord with its plain language.” Rogers v Detroit, 457 Mich 125, 140; 579 NW2d 840 (1998).
[We] find the language of MCL 436.22f; MSA 18.993(6) to be clear and unambiguous and, therefore, it must be applied as written. No provision or limitation contained in the dramshop liability policy can relieve the insurer from liability for which the insured may be held legally liable. Therefore, North Pointe cannot assert a lack-of-notice defense against plaintiff to preclude her from recovering her default judgment against defendants Sruba and E.J.E.C.S. Further, there is nothing absurd or unjust about applying the plainly worded statute as written to the facts of this case. None of the parties [has] attacked the default judgment, for which there are clear remedies, and there is not one shred of evidence of fraud or collusion in this case. In this regard, [we] note that the Legislature has created a check against collusion by requiring the plaintiff to name and retain the intoxicated person who actually committed the injury as a defendant. See Browder v Int’l Fidelity Ins Co, 413 Mich 603, 615; 321 NW2d 668 (1982); Salas v Clements, 399 Mich 103, 110; 247 NW2d 889 (1976).
[It is true that] in Henderson, supra, p 506, [the Court of Appeals] held that the prohibition contained in [MCL 436.22Í; MSA 18.993(6)] does not preclude a dramshop liability insurer from asserting a lack-of-notice defense. However, [we] believe that Henderson . . . ignored the clear and unambiguous language of [MCL 436.22f; MSA 18.993(6)] and did not apply the rules of statutory construction in holding that a dramshop liability insurer is not precluded from asserting a lack-of-notice defense. [The Court of Appeals] decision in Henderson clearly violates the rule of statutory construction that a clear and unambiguous statute must be applied as written. If the role of the judiciary is not to articulate its view of policy, but to apply the statute in accord with its plain language, Rogers, supra, p 140, then, in applying [MCL 436.22f; MSA 18.993(6)] in accord with its plain language, North Pointe cannot assert a lack-of-notice defense in this case.
Because [MCL 436.22f; MSA 18.993(6)] is clear and unambiguous and must be applied as written, it is not necessary to consider whether the Supreme Court’s decision in Cobum, supra, implicitly overruled [the Court of Appeals] decision in Henderson. In any event, the facts and circumstances of Cobum are easily distinguishable from the present case because Cobum involved the automobile no-fault act and a lack-of-cooperation defense. In the same vein, North Pointe’s reliance on Kleit v Saad, 153 Mich App 52; 395 NW2d 8 (1985), and LeDuff v Auto Club Ins Ass’n, 212 Mich App 13; 536 NW2d 812 (1995), is similarly misplaced because these two cases involve the no-fault act. This distinction is of further significance because MCL 257.520(f)(6); MSA 9.2220(f)(6) permits automobile no-fault insurers to assert a lack-of-notice defense. There is no similar provision regarding dramshop liability insurers, and [MCL 436.22Í; MSA 18.993(6)] of the dramshop act specifically precludes dramshop liability insurers from relying on their policies to reheve themselves of liability where the insured may be held legally liable.
Accordingly, [we] apply the clear and unambiguous provision of [MCL 436.22Í; MSA 18.993(6)] of the dramshop act to the facts of this case. North Pointe may not assert a lack-of-notice defense, as set forth in the dramshop liability policy with defendants, to relieve itself of liability where the insured was legally liable for its actions. [The Court of Appeals should have] a£firm[ed] the trial court’s judgment in favor of plaintiff. [234 Mich App 507-511.]
One portion of Judge Jansen’s dissent should be emphasized. As she states, none of the parties has attacked the default judgment, although MCR 2.603(D) and MCR 2.612 provide procedures for such a challenge. In the present case, North Pointe had the option, when given notice, of assuming the defense of Mr. Sruba and E.J.E.C.S. and moving to set aside the default judgment on the basis that there is a meritori ous defense. That course is far different than defending the garnishment proceedings on the ground that North Pointe did not receive notice—a defense arising under the insurance contract and thus barred by MCL 436.22Í; MSA 18.993(6).
MCL 436.22f; MSA 18.993(6) does not prohibit an insurer from raising a meritorious defense that the insureds’ actions simply did not trigger liability under MCL 436.22; MSA 18.993. Again, however, North Pointe chose to defend the garnishment proceedings on the basis of lack of notice, instead of arguing— directly or in proceedings to set aside the default judgment—that its insureds were without liability under the dramshop act.
For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Weaver, C.J., and Cavanagh, Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred.
Because this case was decided by default judgment, we take the facts from the pleadings and other papers in the circuit court file.
Ms. Helder reports that Mr. Sruba’s behavior eventually resulted in two criminal prosecutions.
The dates were listed in a notice required by statute. MCL 436.22e; MSA 18.993(5). This section was repealed by 1998 PA 58, and the notice requirement is now found in MCL 436.1801(4); MSA 18.1175(801)(4).
The Court of Appeals has held that one can prosecute a dramshop action on the basis of an intentional tort by the allegedly intoxicated person. Weiss v Hodge (After Remand), 223 Mich App 620, 625-632; 567 NW2d 468 (1997).
Mr. Sruba, personally and as resident agent of e.j.e.c.s., was served at the Grand Traverse County Jail.
Ms. Helder supports her statement with a transcript of a portion of Mr. Sruba’s bankruptcy proceedings. North Pointe protests that the transcript is being submitted for the first time, and it notes shortcomings in Mr. Sruba’s testimony. We do not need to address North Pointe’s complaints in this regard since, as indicated, we are assuming that it never received notice.
Other garnishment-related papers have been filed in this case, but are not pertinent to the' present appeal.
A copy of the policy is not found in the files of the circuit court, the Court of Appeals, or this Court. As we have observed on other occasions, parties seeking relief or defending against a claim on the basis of contractual language should provide a copy of the document. See Allstate Ins Co v Freeman, 432 Mich 656, 703, n 2; 443 NW2d 734 (1989) (opinion of Boyle, J.). See also MCR 2.113(F)(1). Cf. MCR 2.112(D)(1), which concerns the contents of the complaint.
This section was repealed by 1998 PA 58, in which the Legislature enacted nearly identical language as MCL 436.1811; MSA 18.1175(811).
The issue in Cobum was “whether the enactment of the Michigan no-fault insurance act invalidates any provision in a no-fault contract relieving the insurer of liability should the insured fail to cooperate in defending a claim by an injured third party.” 425 Mich 302. This Court’s conclusion was that, “[b]ecause of the compulsory nature of the liability insurance, the noncooperation of the insured is not a good defense in an action between a third-party victim and an insurer to the extent of the statutorily required minimum residual liability insurance.” 425 Mich 312.
Reh den, unpublished order entered May 26, 1999 (Docket No. 198327).
12 The majority explained:
The statute clearly states that policy conditions, provisions, stipulations, and limitations may not relieve the insurer from Lability “for the payment of any claim for which the insured may be held, legally liable under section 22 of said act." MCL 436.22Í; MSA 18.993(6) (emphasis supplied). An insurance carrier claiming that the insured’s failure to comply with a policy notice of claim or suit requirement deprives the insurer of the opportunity to investigate the validity of a troublesome claim is not relying on a policy condition or provision to avoid paying a “claim for which the insured may be held legally liable.” Plaintiffs interpretation ignores the final phrase of the provision, and requires the insurer to pay even those claims for which the insured could not be held legally liable. This would create an absurd result, authorizing a lucrative windfall for any plaintiff lucky enough to sue a dramshop licensee who says nothing to the insurer and defaults. Worse yet, collusive litigants would gain a lucrative windfall for any plaintiff and defendant dramshop licensee who arrange a collusive dramshop action, default judgment, and then commence a garnishment proceeding against an unsuspecting insurer. [234 Mich App 505.]
With respect to this portion of the majority analysis, Ms. Helder correctly observes that counsel for North Pointe did not rely on the final clause of MCL 436.22Í; MSA 18.993(6) as he argued this matter in circuit court.
In a case involving a failure to give notice of suit to a homeowners insurer, this Court said:
[I]t is a well-established principle that an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position. [Koski v Allstate Ins Co, 456 Mich 439, 444; 572 NW2d 636 (1998).]
We have omitted the footnotes from Judge Jansen’s dissenting opinion.
15 Here, Judge Jansen cited MCR 2.603(D) and MCR 2.612.
16 In this regard, Ms. Helder writes:
In fact, the principal defendant/insured has twice been convicted of crimes involving Plaintiff as a victim including an assault and a stalking offense. Furthermore, he has twice declared bankruptcy and forced us to litigate this case in that forum. Any allegation of collusion here is false, outrageous and insulting.
Regarding such a motion, see Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219; 600 NW2d 638 (1999).
In its submission to this Court, North Pointe does contest dramshop liability, though it does not deny the assaults or the resulting injuries. For instance, North Pointe vigorously argues that alcohol consumed by Mr. Sruba in Kent County had “absolutely nothing” to do with the final assault that occurred in Acme in Grand Traverse County. However, that was not the basis of North Pointe’s answer to the garnishment disclosure, nor of its arguments in circuit court. | [
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Taylor, J.
In these consolidated cases we are required yet again to consider the parameters of civil liability for governmental agencies and police officers when a police chase results in injuries or death to a person other than the driver of the fleeing vehicle. More specifically, the question in these cases is whether the city of Detroit or individual police officers face civil liability for injuries sustained by passengers in vehicles fleeing from the police when the fleeing car caused an accident. As explained below, we hold that defendants are entitled to judgment as a matter of law.
First, we hold that the police owe a duty to innocent passengers, but owe no duty to passengers who are themselves wrongdoers whether they help bring about the pursuit or encourage flight. A passenger who seeks to recover for injuries allegedly caused by a negligent police pursuit bears the burden of proving personal innocence as a precondition to establishing the duty element of a cause of action. Because the record does not allow us to conclude as a matter of law whether plaintiffs were innocent as a matter of law, we are required to address additional grounds on which defendants assert they are entitled to prevail.
Second, we hold that the city of Detroit is entitled to judgment as a matter of law because one cannot reasonably conclude under a narrow reading of the motor vehicle exception to governmental immunity, MCL 691.1405; MSA 3.996(105), that plaintiffs’ injuries resulted from the operation of the police vehicles. We agree with Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), that an officer’s physical handling of a motor vehicle during a police chase, can constitute “negligent operation ... of a motor vehicle” within the motor vehicle exception. However, plaintiffs’ injuries did not, as a matter of law, result from the operation of the police cars where the police cars did not hit the fleeing car or physically cause another vehicle or object to hit the vehicle that was being chased or physically force the vehicle off the road or into another vehicle or object. Thus, we overrule Fiser and Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998). Contrary to Rogers, we also hold that an officer’s decision to pursue does not constitute the negligent operation of a motor vehicle.
Third, we conclude the individual police officers are immune from liability because their actions were not “the proximate cause” of the plaintiffs’ injuries. Thus, we overrule Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), and hold that the phrase “the proximate cause” as used in the employee provision of the governmental immunity act, MCL 691.1407(2); MSA 3.996(107)(2), means the one most immediate, efficient, and direct cause preceding an injury, not “a proximate cause.” Because the conduct of the individual police officers in these cases were not “the proximate cause,” i.e., the one most immediate, efficient, and direct cause, of the passengers’ injuries, the officers are entitled to governmental immunity.
I. REVIEW OF OUR CASE LAW
Our first opinion addressing police chase liability was Fiser, supra, where this Court considered a lawsuit filed by a plaintiff who was injured when his car was hit by a car driven by someone who was fleeing the police. The plaintiff sued the city of Ann Arbor and the police officers involved in the chase. The trial court granted summary disposition to the city and the police officers. The Court of Appeals affirmed. This Court reversed with respect to the city and two of the police officers, holding that the excessive speed of the fleeing vehicle could be said to have resulted from the fact that the driver was being pursued by the police and that it was this high speed that caused the fleeing driver to lose control. Id. at 475. The Court further held that the issues of negligence and proximate causation of his injuries was for the jury. Id.
More recently in Rogers, supra, we considered two consolidated police chase cases. Both cases involved car chases in which the fleeing vehicle crashed into vehicles occupied by innocent parties. The defendants argued that the conduct of the police officers could not be a proximate cause of the injuries. The majority held that it was for the factfinder to determine whether the actions of the police officers in operating the pursuing vehicles were causes in fact of the plaintiffs injuries, i.e., the jury could effectively conclude that the police were causing the flight. Id. at 129. The Rogers majority reaffirmed Fiser and expanded on it by holding that the municipal defendants could be held hable for their officer’s decision to commence pursuit or to continue the pursuit. Id. at 143-145.
Thus, pursuant to Fiser, police officers face a conundrum wherein they have a sworn duty to apprehend suspected lawbreakers yet simultaneously face legal liability if anyone but the fleeing driver is injured when they give chase. Under Fiser this liability is imposed even where the police car does not hit the fleeing car or physically cause another vehicle or object to hit the fleeing car or physically force the fleeing car off the road or into another vehicle or object. Pursuant to Rogers, even more remarkably, liability may attach for the mere decision to give chase to a suspected lawbreaker.
n. FACTS AND LOWER COURT PROCEEDINGS
In Cooper, plaintiffs Marlon Cooper and Martell Morris, both fourteen years of age, were passengers in a stolen Jeep Cherokee driven by Damian Collins, who was also fourteen years old. The Detroit police initially noticed that Damian Collins appeared too young to drive and that the Jeep’s steering column was broken. The officers, who were in a partially marked police car, attempted to stop Collins by turning on their car’s lights, briefly using the siren, show ing Collins a police badge, and instructing him to pull over. Instead of stopping, Collins sped away. The police pursued him. After a chase through a residential neighborhood, Collins crashed the Jeep he was driving into a house. Collins was killed, while Cooper and Morris were seriously injured.
The parents of Cooper and Morris filed a lawsuit against the individual officers and the city of Detroit. The defendants moved for summary disposition under MCR 2.116(C)(7), (8), and (10). After argument, the trial court granted summary disposition for both the officers and the city. The trial court held that the officers were entitled to governmental immunity because plaintiffs had failed to state a claim in avoidance of the employee provision of the governmental immunity act. The trial court also concluded the officers owed no duty to plaintiffs. The trial court further held that the city was entitled to governmental immunity because the plaintiffs had failed to state a claim within the motor vehicle exception.
The Court of Appeals reversed, holding that the officers were not entitled to governmental immunity because plaintiffs’ claims avoided the employee provision of the governmental immunity act and also that the officers owed a duty to plaintiffs. The Court of Appeals also held that the city was not entitled to governmental immunity because plaintiffs’ claims fell within the motor vehicle exception.
In Robinson, Courtney Henderson, age fifteen, was walking to his summer job when neighbor Marcelle Blakeney offered him a ride. Henderson sat in the back seat; Marlon Smith, age eighteen, was in the front passenger seat. The Detroit police observed Blakeney weaving from lane to lane. When the police activated the lights on their police car, Blakeney began to flee rather than stop. The police turned on the siren and began to pursue the vehicle. This pursuit ended when Blakeney’s car collided with a nonpolice vehicle. Henderson died in the accident.
Plaintiff, as personal representative for Henderson’s estate, filed a lawsuit against the city of Detroit and the police officers involved in the pursuit. Defendants filed a motion for summary disposition under MCR 2.116(C)(7), (8) and (10). The trial court granted defendants’ motion for summary disposition. The trial court ruled that the officers were entitled to governmental immunity because plaintiff had failed to state a claim in avoidance of the employee provision of the governmental immunity act. The trial court also held the officers owed no duty to Henderson. The trial court ruled that the city was not entitled to governmental immunity because plaintiff’s claim fell within the motor vehicle exception. The trial court nevertheless concluded that summary disposition in the city’s favor was proper in light of its duty ruling.
After a conflict panel was convened, the Court of Appeals ultimately affirmed, holding that the police owe no duty to a voluntary passenger in a fleeing driver’s vehicle.
This Court granted leave in both Robinson and Cooper and ordered the cases to be submitted together. After oral argument, we set the case over to the present term and asked the parties to file additional briefing regarding whether Fiser, Rogers, and Dedes were properly decided.
m. THE QUESTION OF DUTY
In Fiser, supra at 469-473, this Court implicitly held, in the context of a police pursuit, that the police owe a duty to innocent bystanders. In Jackson v Oliver, 204 Mich App 122, 126-127; 514 NW2d 195 (1994), the Court of Appeals distinguished Fiser and held that in the context of a police pursuit the police do not owe the fleeing suspect, i.e., a wrongdoer, a duty to refrain from chasing the suspect at speeds dangerous to the suspect. The Jackson panel’s holding was premised on public policy:
Out of concern for public safety, police must sometimes allow fleeing suspects to get away. However, it would be absurd to conclude that the police, out of concern for the safety of a fleeing criminal suspect, must cease pursuit of the fleeing suspect or risk possible civil liability. [Id. at 126.]
The cases at bar concern a scenario not considered in either Fiser or Jackson, i.e., whether the police owe a duty to a passenger in a fleeing vehicle. The Court of Appeals in Cooper held that the police had a duty to passengers, while the conflict panel in Robinson resolved this issue consistently with Jackson, holding that the police do not owe a duty to passengers in a fleeing driver’s vehicle.
We conclude that it is irrelevant whether a wrongdoer is a driver or a passenger or whether an innocent person is inside or outside the vehicle. Consistent with the reasoning in Fiser and Jackson, whatever their location, there is a duty to innocent persons, but not to wrongdoers. In other words, the police owe a duty to innocent persons whether those persons are inside or outside the vehicle. Conversely, the police owe no duty to a wrongdoer, whether the wrongdoer is the fleeing driver or a passenger.
Our conclusion that police officers giving chase owe a duty to innocent persons is consistent with the statutes governing operation of emergency vehicles. MCL 257.603(3)(c); MSA 9.2303(3)(c) authorizes emergency vehicles to exceed prima facie speed limits, but only as long as “life or property” is not endangered. Similarly, MCL 257.632; MSA 9.2332 exempts police officers from speed limits when chasing violators of the law, but does not exempt the police from the consequences of a “reckless disregard of the safety of others.” Further, MCL 257.653; MSA 9.2353, which requires drivers to pull over upon the approach of an emergency vehicle with flashing lights, specifically states that the statute does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of persons using the highway.
The statutory references to endangering life and the safety of others demonstrates that the Legislature has placed a duty upon police officers toward innocent persons when they are giving chase.
We place on the plaintiff the burden of proving that a passenger was an innocent person and that the police therefore owed the passenger a duty. Where no genuine issue of material fact exists regarding the status of a passenger, summary disposition may be appropriate. However, when a genuine issue of material fact exists concerning whether a passenger is innocent or a wrongdoer, and thus whether the police owed a duty, the question is appropriately resolved by the trier of fact. See, e.g., Holland v Liedel, 197 Mich App 60, 65; 494 NW2d 772 (1992) (although the issue whether a duty exists is generally a question of law for the court to decide, where the determination of duty depends on factual findings, those findings must be made by the jury). In the cases at bar, the issue of the passengers’ status has not been sufficiently devel oped, thereby making summary disposition on the basis of duty inappropriate at this time. Thus, we turn to consideration of defendants’ additional defenses.
IV. THE motor vehicle exception to governmental immunity
Plaintiffs contend the city of Detroit may be liable pursuant to the motor vehicle exception to governmental immunity. This statute provides in relevant part as follows:
Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner .... [MCL 691.1405; MSA 3.996(105).]
In Fiser, supra at 469, this Court held that a police officer’s pursuit of a fleeing vehicle could fall within the motor vehicle exception as the “negligent operation of a motor vehicle.” The Court so held even where the police vehicle did not hit the fleeing car or physically cause another vehicle or object to hit the fleeing car or physically force the fleeing car off the road or into another vehicle or into some other object.
In Rogers, supra at 145-146, the majority went beyond Fiser and concluded that negligent operation of a motor vehicle encompasses not only the pursuit itself, but also a police officer’s decision to commence a pursuit. The dissent would have held that the phrase “negligent operation of a motor vehicle” encompasses the manner in which a police vehicle is driven during a pursuit, but does not encompass an officer’s decision to pursue a fleeing vehicle. Id. at 158-161 (Taylor, J., with Weaver, J., concurring).
As indicated in footnote 9, we have been asked on numerous occasions to revisit Fiser. See, e.g., Frohman v Detroit, 181 Mich App 400, 414-415; 450 NW2d 59 (1989):
When a situation occurs, such as in the instant case, where an officer performs his legal duty by attempting to catch a fleeing lawbreaker, conducts the pursuit in what one may minimally call a negligent manner, and does not strike any vehicle with his vehicle, it is a remarkable legal principle that he can be said to have “caused” the resultant accident. To prevent the accident, all the fleeing driver need have done is stop. For the law to incorporate the presumption that a person will violate the law and to thereby hold that the officer’s pursuing the violator is a proximate cause of an accident involving the fleeing person makes society the insurer of a risk no private corporation is required to assume under the law. Furthermore, the ordinary person in society has no such obligation or even a right to pursue such a lawbreaker, whereas a police officer has.
We conclude that in police pursuit cases an initial legal decision should be made to determine whether the nature of the pursuit is such as to create a question which must be submitted to a jury. We invite the Supreme Court or Legislature to establish a bright line test which provides that a decision to engage in pursuit, as a matter of law, cannot be the basis of a claim of negligence. Only when the officer’s driving itself is a direct cause of an injury would the question of negligence be submitted as a fact question to the jury. The determination should not turn on how the officer was conducting the pursuit but rather on what effect the manner in which the officer drove his vehicle had on the cause of the accident. Fiser’s legal fiction, that a police pursuit of a lawbreaker should give rise to a legal expectation the lawbreaker will flee, should be re-examined, especially in light of Ross [v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984)] ....
We begin our analysis with the basic principle, of which there is no longer any dispute, that the grant of immunity in MCL 691.1407(1); MSA 3.996(107)(l) is broad and that the statutory exceptions thereto are to be narrowly construed. Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d 828 (1998); Horace v City of Pontiac, 456 Mich 744, 749 ff; 575 NW2d 762 (1998); Wade v Dep’t of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992).
In this regard, we note that Fiser was decided before this Court’s seminal governmental immunity opinion in Ross v Consumers Power Co, supra, where we held that statutory exceptions to governmental immunity are to be narrowly construed. Previously, of course, this Court had given the exceptions broad readings. As explained in Horace v City of Pontiac, two cases decided by this Court before Ross that had given a broad reading to the defective public building exception to governmental immunity were no longer good law once Ross determined that statutory exceptions were to be narrowly construed. Id. at 750, n 3. Fiser meets a similar fate. Fiser may have been proper when decided, but it is no longer “good law” after Ross. Contrary to Ross, Fiser requires a broad reading of the motor vehicle exception to conclude that a police vehicle, merely by the fact of pursuit, proximately caused a subsequent accident when the police vehicle did not hit the fleeing car or force it off the roadway or into another vehicle or object.
In Robinson, the plaintiff alleged that the city was negligent “through the conduct of one or more of its police officer employees in failing to operate the police vehicle at all times in such manner as to avoid placing the general public in danger . . . .” In Cooper, plaintiffs alleged that the city was liable because the pursuing officer “[flailed and neglected to operate the vehicle owned by Defendant city of Detroit in a safe, prudent and reasonable manner at all times and to obey all traffic laws and regulations.” Notably absent from the plaintiffs’ allegations is the assertion that the police vehicles hit the fleeing car or otherwise physically forced the fleeing car off the road or into another vehicle or object.
The motor vehicle exception requires that a plaintiff’s injuries result from the operation of a government vehicle. MCL 691.1405; MSA 3.996(105). Because there is no case law that has previously examined the phrase “resulting from” we turn to the dictionary. The American Heritage Dictionary, Second College Ed, p 1054, defines “result” as: “To occur or exist as a consequence of a particular causef;] To end in a particular way[;] The consequence of a particular action, operation or course; outcome.” Given the fact that the motor vehicle exception must be narrowly construed, we conclude that plaintiffs cannot satisfy the “resulting from” language of the statute where the pursuing police vehicle did not hit the fleeing car or otherwise physically force it off the road or into another vehicle or object.
We also agree with the dissenting opinion in Rogers that the decision to pursue a fleeing motorist, which is separate from the operation of the vehicle itself, is not encompassed within a narrow construction of the phrase “operation of a motor vehicle.” Further, allowing a police officer’s decision to pursue to be construed as the “operation of a motor vehicle” and therefore fall under an exception to governmental immunity, conflicts with the police officer’s duty to apprehend criminal suspects. The officer should be able to rely on MCL 257.602a; MSA 9.2302(1) and MCL 257.653; MSA 9.2353, which mandate that a motorist not wilfully fail to obey a police officer’s direction to stop. We thus reject the holding in Rogers that a police officer’s decision to pursue a fleeing vehicle falls within the motor vehicle exception to governmental immunity.
V. THE EMPLOYEE PROVISION OF THE GOVERNMENTAL IMMUNITY ACT
The plaintiffs also sued the individual police officers, seeking to hold them personally liable. The tort liability of governmental employees is governed by the employee provision of the governmental immunity act, which states in pertinent part:
Each . . . employee of a governmental agency . . . shall be immune from tort liability for injuries to persons or damages to property caused by the . . . employee . . . while in the course of employment . . . while acting on behalf of a governmental agency if all of the following are met:
(a) The . . . employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The . . . employee’s . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, “gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. [MCL 691.1407(2); MSA 3.996(107)(2).]
There is no question that (a) and (b) are met in both of these cases. As to subsection (c), in Dedes, supra at 107, this Court effectively interpreted “the proximate cause” in subsection (c) to mean “a proximate cause.” The Court further explained that “the” proximate cause does not mean “sole” proximate cause. Id. We overrule Dedes to the extent that it interpreted the phrase “the proximate cause” in subdivision (c) to mean “a proximate cause.” The Legisla ture’s use of the definite article “the” clearly evinces an intent to focus on one cause. The phrase “the proximate cause” is best understood as meaning the one most immediate, efficient, and direct cause preceding an injury.
Because the Legislature is presumed to understand the meaning of the language it enacts into law, statutory analysis must begin with the wording of the statute itself. Carr v General Motors Corp, 425 Mich 313, 317; 389 NW2d 686 (1986). Each word of a statute is presumed to be used for a purpose, and, as far as possible, effect must be given to every clause and sentence. Univ of Mich Bd of Regents v Auditor General, 167 Mich 444, 450; 132 NW 1037 (1911). The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another. Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217 (1931). Where the language of the statute is clear and unambiguous, the Court must follow it. City of Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959).
These rules of statutory construction are especially germane in the cases now before us because Michigan strictly construes statutes imposing liability on the state in derogation of the common-law rule of sovereign immunity. Johnson v Ontonagon Co Bd of Co Rd Comm’rs, 253 Mich 465, 468; 235 NW 221 (1931); Detroit v Putnam, 45 Mich 263, 265; 7 NW 815 (1881). This Court has repeatedly acknowledged that governmental immunity legislation “evidences a clear legislative judgment that public and private tortfeasors should be treated differently.” Ross at 618.
The majority in Dedes interpreted the phrase “the proximate cause” to mean “a proximate cause.” It did this on the basis of an analysis that not to do so would produce a marked change in Michigan law, and that the Legislature, in its “legislative history,” gave no indication that it understood that it was making such a significant change. This approach can best be described as a judicial theory of legislative befuddlement. Stripped to its essence, it is an endeavor by the Court to use the statute’s “history” to contradict the statute’s clear terms. We believe the Court had no authority to do this. After all, the judiciary has always adhered to the principle that the Legislature, having acted, is held to know what it has done, i.e., to know the difference between “a proximate cause” and “the proximate cause.” Yet, in this circumstance, it is not necessary to rely on theoretical surmises to conclude this, as the Legislature has shown an awareness that it actually knows that the two phrases are different. It has done this by utilizing the phrase “a proximate cause” in at least five statutes and has used the phrase “the proximate cause” in at least thirteen other statutes. Given such a pattern, it is particularly indefensible that the Dedes majority felt free to read “the proximate cause” as if it said “a proximate cause.” The error will not be compounded, as today this Court corrects the flawed analysis of the Dedes majority.
Nevertheless, the fact that the Legislature sometimes uses “a proximate cause” and at other times uses “the proximate cause” does not, of course, answer the question what “the proximate cause” means other than to show that the two phrases should not be interpreted the same way. Our duty is to give meaning to the Legislature’s choice of one word over the other.
We agree with the following analysis found in the dissent in Hagerman v Gencorp Automotive, 457 Mich 720, 753-754; 579 NW2d 347 (1998):
Traditionally in our law, to say nothing of our classrooms, we have recognized the difference between “the” and “a.” “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. Further, we must follow these distinctions between “a” and “the” as the Legislature has directed that “[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language .... MCL 8.3a; MSA 2.212(1). Moreover, there is no indication that the words “the” and “a” in common usage meant something different at the time this statute was enacted ....
Further, recognizing that “the” is a definite article, and “cause” is a singular noun, it is clear that the phrase “the proximate cause” contemplates one cause. Yet, meaning must also be given to the adjective “proximate” when juxtaposed between “the” and “cause” as it is here. We are helped by the fact that this Court long ago defined “the proximate cause” as “the immediate efficient, direct cause preceding the injury.” Stoll v Laubengayer, 174 Mich 701, 706; 140 NW 532 (1913). The Legislature has nowhere abrogated this, and thus we conclude that in MCL 691.1407(2)(c); MSA 3.996(107)(2)(c) the Legislature provided tort immunity for employees of governmental agencies unless the employee’s conduct amounts to gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.
Applying this construction to the present cases, we hold that the officers in question are immune from suit in tort because their pursuit of the fleeing vehicles was not, as a matter of law, “the proximate cause” of the injuries sustained by the plaintiffs. The one most immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct of the drivers of the fleeing vehicles.
Accordingly, summary disposition for the defendant officers was proper because reasonable jurors could not find that the officers were “the proximate cause” of the injuries. Moll v Abbott Laboratories, 444 Mich 1, 28, n 36; 506 NW2d 816 (1993).
VI. STARE DECISIS
In overruling Fiser/Rogers and Dedes we have given serious consideration to the doctrine of stare decisis. Stare decisis is generally “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” However, stare decisis is not to be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes.
Courts have cited numerous factors to consider before overruling a prior case. For example, Helvering v Hallock, 309 US 106, 119; 60 S Ct 444; 84 L Ed 604 (1940), states:
[S\tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.
We must also recognize that stare decisis is a “principle of policy” rather than “an inexorable command,” and that the Court is not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.
Further, as Justice Powell stated concurring in Mitchell v W T Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406 (1974), “[i]t is thus not only our prerogative but also our duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question.”
Courts should also review whether the decision at issue defies “practical workability,” whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision. See, e.g., Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 853-856; 112 S Ct 2791; 120 L Ed 2d 674 (1992).
The first question, of course, should be whether the earlier decision was wrongly decided. We believe the decisions at issue here were. As previously explained, we conclude that Fiser has fallen victim to a subsequent change in the law, that Rogers reflects a misunderstanding of the statute that establishes the motor vehicle exception to governmental immunity, and that Dedes misconstrued a plainly worded statute.
However, as this discussion makes clear, the mere fact that an earlier case was wrongly decided does not mean overruling it is invariably appropriate. Rather, the Court must proceed on to examine the effects of overruling, including most importantly the effect on reliance interests and whether overruling would work an undue hardship because of that reliance.
The “practical workability” of Fiser has also been suspect. As set forth in footnote 9, the Court of Appeals has repeatedly questioned Fiser.
As to the reliance interest, the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations. It is in practice a prudential judgment for a court.
We conclude that these cases have not become so embedded, accepted or fundamental to society’s expectations that overruling them would produce significant dislocations. It is apparent that the fleeing drivers, as they sought to evade the police, were undoubtedly not aware of our previous case law, nor is it likely that they drove as they did in reliance on the theory that they or the person injured as a result of their fleeing might have recourse against the municipality or individual police officers. In fact, it seems incontrovertible that only after the accident would such awareness come. Such after-the-fact awareness does not rise to the level of a reliance interest because to have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event. Such a situation does not exist here.
Further, it is well to recall in discussing reliance, when dealing with an area of the law that is statutory (which Fiser/Rogers and Dedes do), that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people’s representatives. Moreover, not only does such a compromising by a court of the citizen’s ability to rely on a statute have no constitutional warrant, it can gain no higher pedigree as later courts repeat the error.
In summary, we are compelled to overrule Dedes because our responsibility is to interpret the words of the Legislature and “the proximate cause” does not mean “a proximate cause,” and because this distinction is critical in determining responsibility for the injuries suffered by passengers in fleeing vehicles. We are equally compelled to overrule Rogers because we do not believe that the phrase “operation of a motor vehicle” encompasses the mere decision itself by the police to pursue a fleeing suspect, as opposed to the specific conduct of the police during such pursuit. Finally, we believe it is necessary to overrule Fiser because a narrow reading of the phrase “bodily injury . . . resulting from the negligent operation of a motor vehicle” does not properly characterize a situation in which a police vehicle pursuing a fleeing suspect has neither hit the fleeing car nor physically forced the vehicle off the road or into another vehicle or object.
We return the law, as is our duty, to what we believe the citizens of this state reading these statutes at the time of enactment would have understood the motor vehicle exception to governmental immunity and the employee provision of the governmental immunity act to mean.
CONCLUSION
Thus, the police owe a duty to innocent passengers and pedestrians but not to passengers who are engaged in encouraging or abetting the fleeing. If an innocent person is injured as a result of a police chase because the police physically force a fleeing car off the road or into another vehicle that person may seek recovery against a governmental agency pursuant to the motor vehicle exception to governmental immunity. Plaintiffs in the cases at bar do not have causes of action against the city of Detroit under this exception because the injuries did not result from the police physically hitting the fleeing car or physically causing another vehicle or object to hit the fleeing car or physically forcing the fleeing car off the road or into another vehicle or object.
Innocent persons who are injured as the result of police chases may sue an individual police officer only if the officer is “the proximate cause” of the accident, i.e., the one most immediate, efficient, and direct cause of the accident. Because the officers in the cases at bar were not “the proximate causes” of the injuries, the plaintiffs have no causes of action against the officers.
The result in Robinson is affirmed. Cooper is reversed.
Weaver, C.J., and Corrigan, Young, and Markman, JJ., concurred with Taylor, J.
As noted in footnote 6, there was some evidence suggesting that Henderson was not innocent. However, because the test we announce is new, and Henderson’s estate was never on notice of its obligation to produce any evidence to the contrary, we take the more prudent course and decline to find as a matter of law that Henderson was a wrongdoer.
Conversely, if an innocent person is injured as a result of a police chase because a police car physically forces a fleeing car off the road or into another vehicle or object, such person may seek recovery against a governmental agency pursuant to the motor vehicle exception to governmental immunity and also against'the officer operating the police vehicle if the individual police officer is “the proximate cause” of the accident.
107 Mich App 367; 309 NW2d 552 (1981).
Plaintiffs also brought a lawsuit against the personal representative of the estate of Damian Collins. However, that lawsuit is not before us.
218 Mich App 649; 554 NW2d 919 (1996).
225 Mich App 14; 571 NW2d 34 (1997). The three-judge panel in Robinson originally issued an opinion on September 10, 1996, affliming the judgment of the trial court and holding that no duty is owed to a passenger voluntarily in a fleeing car. 220 Mich App 801, 803; 561 NW2d 390 (1996). The Robinson panel then granted rehearing on its own motion to review the apparent conflict between this decision and that of Cooper v Wade, which was released fifteen minutes before its decision in Robinson. Id. at 801. On rehearing, the Robinson panel, concluded that it was compelled to follow Cooper and reversed the judgment of the trial court holding that “a duty was owed the present decedent despite the fact that he made obscene gestures to the police and encouraged the flight that led to his death.” Id. at 802. The Court of Appeals then convened a special panel to resolve the conflict between Cooper and Robinson. Id. at 801.
458 Mich 861 (1998).
456 Mich 905 (1997).
461 Mich 1201 (1999). This Court has been urged to revisit Fiser on several occasions. See, e.g., Frohman v Detroit, 181 Mich App 400, 413-415; 450 NW2d 59 (1989) (“We invite the Supreme Court or Legislature to establish a bright line test”); Ewing v Detroit (On Remand), 214 Mich App 495, 499-500; 543 NW2d 1 (1995) (“I urge our Supreme Court to reconsider Fiser," opinion of Doctoroff, C.J.), affd 457 Mich 125; 579 NW2d 840 (1998); Cooper v Wade, 218 Mich App 649, 663; 554 NW2d 919 (1996) (“I concur but suggest this area of the jurisprudence of this state should be revisited by the Supreme Court,” concurring opinion by Michael J. Kelly, X). It is also the case that Dedes and Rogers were decided over vigorous three-justice dissents.
One might even argue that these statutes create a duty toward a fleeing driver. We need not reach that question, but do note that, even if such a duty were found to exist, a fleeing driver would nevertheless be barred from seeking to recover for iqjuries sustained while attempting to evade a lawful order to stop his vehicle under Michigan’s wrongful conduct rule. This rule is rooted in the public policy that courts should not lend their aid to plaintiffs whose cause of action is premised on their own illegal conduct. Orzel v Scott Drug Co, 449 Mich 550; 537 NW2d 208 (1995). Culpable passengers have no greater claim to benefit from the wrongful conduct than does the driver.
This statute provides in pertinent part as follows:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.
The other four statutory exceptions are maintenance of public highways, MCL 691.1402; MSA 3.996(102), performance of proprietary functions by government entities, MCL 691.1413; MSA 3.996(113), the public building exception, MCL 691.1406; MSA 3.996(106), and the governmental hospital exception, MCL 691.1407(4); MSA 3.996(107)(4).
It is appropriate to consult a lay dictionary when defining common words or phrases that have not acquired a unique meaning at law because “the common and approved usage of a nonlegal term is most likely to be found in a standard dictionary and not a legal dictionary.” Horace v City of Pontiac, supra at 756. See also Consumers Power Co v Public Service Comm, 460 Mich 148, 163, n 10; 596 NW2d 126 (1999), and MCL 8.3a; MSA 2.212(1).
The dissent suggests that there should be liability where a police vehicle forces an innocent intervening car to hit the fleeing vehicle causing injury to an innocent person in the fleeing vehicle. However, we do not believe that such a scenario would fit within a narrow reading of the statutory requirement of “resulting from.” The dissent’s position would be more in accord with a proximate cause “but for” analysis. However, the statute does not say that governmental agencies are liable for injuries or property damage “proximately caused” by the negligent operation of a motor vehicle. Rather, the statute says the injuries or property damage must result from the negligent operation of a motor vehicle. Because the Legislature did not utilize proximate cause language, we will not import such an analysis here.
The decision to give chase is not the operation of a motor vehicle, just as an inebriated person’s decision to drive drunk is not a crime. Only when the decision is translated into driving can there be the operation of a motor vehicle or the commission of the crime of driving while under the influence of alcohol.
See MCL 436.1801(3); MSA 18.1175(801)(3), MCL 600.2947(6)(a); MSA 27A.2947(6)(a), MCL 600.6304(8); MSA 27A.6304(8), MCL 691.1665(a); MSA 12.418(5)(a), and MCL 750.145o; MSA 28.342A(o).
See MCL 257.633(2); MSA 9.2333(2), MCL 324.5527; MSA 13A.5527, MCL 324.5531(11); MSA 13A.5531(11), MCL 324.5534; MSA 13A.5534, MCL 418.375(2); MSA 17.237(375)(2), MCL 500.214(6); MSA 24.1214(6), MCL 600.2912b(4)(e); MSA 27A.2912(2)(4)(e), MCL 600.2912b(7)(d); MSA 27A.2912(2)(7)(d), MCL 600.2912d(l)(d); MSA 27A.2912(4)(l)(d), MCL 600.2947(3); MSA 27A.2947(3), MCL 600.5839(1); MSA 27A.5839(1), MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), and MCL 750.90e; MSA 28.285e.
The dissent claims our construction of the word “the” ignores MCL 8.3b; MSA 2.212(2), which states:
Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number.
We disagree. First, the statute only states that a word importing the singular number “may extend” to the plural. The statute does not say that such an automatic understanding is required. Moreover, MCL 8.3; MSA 2.212 provides that the rule stated in § 3b shall be observed “unless such construction would be inconsistent with the manifest intent of the Legislature.” Second, the Legislature has directed that
[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language .... [MCL 8.3a; MSA 2.212(1).]
There is no indication that the words “the” and “a” in common usage meant something different at the time this statute was enacted.
We recognize that our proximate cause analysis with respect to individual police officers is inconsistent with that found in Fiser. However, the employee provision of the governmental immunity act, which requires the governmental actor to be “the proximate cause,” was enacted three years after Fiser was decided as part of 1986 PA 175. Thus, the Fiser Court was not restricted by the statute as are we. The dissent’s broad statement that we are rejecting the Fiser Court’s proximate cause analysis is in error. As previously explained, the Legislature changed Fiser’s proximate cause analysis with respect to the individual police officers when it enacted the employee provision of the governmental immunity act.
Stare decisis means “To abide by, or adhere to, decided cases.” Black’s Law Dictionary (rev 4th ed), p 1577.
Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).
Holder v Hall, 512 US 874, 944; 114 S Ct 2581; 129 L Ed 2d 687 (1994). It is also the case that “this Court will not close its eyes to a possible error it may have committed in the past.” Wilson v Doehler-Jarvis, 358 Mich 510, 514; 100 NW2d 226 (1960). Moreover, this Court has no obligation to perpetuate error simply because it may have reached a wrong result in one of its earlier decisions. Thus, the doctrine of stare decisis does not tie the law to past, wrongly decided cases solely in the interest of stability and continuity.
Hohn, n 21 supra at 251.
Holder, n 22 supra at 937.
We reject the dissent’s argument that Fiser should not be overruled because of legislative acquiescence. As we recently explained in Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999):
If it has not been clear in our previous decisions, we wish to make it clear now: “legislative acquiescence” is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.
See further Van Dorpel v Haven-Busch Co, 350 Mich 135, 146; 85 NW2d 97 (1957) (Voelker, J.):
Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact: flattery both to the profound learning and wisdom of the particular supreme court which has spoken, and flattery to a presumably alert and eagerly responsive State legislature. One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets of their respective supreme courts—■ and thenceforth indicating their unbounded approval by a vast and permanent silence.
Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may be scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just.
Cases that come to mind with regard to reliance that, even if wrongly-decided, we might nevertheless decline to overrule could well be our recent ruling regarding term limits Massey v Secretary of State, 457 Mich 410; 579 NW2d 862 (1998), or this Court’s initial advisory opinion with regard to automobile no-fault insurance. In re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973). What it is that singularizes these cases, even as with the United States Supreme Court’s legal tender cases after the Civil War, see Knox v Lee, 79 US (12 Wall) 457; 20 L Ed 287 (1870), is that to overrule them, even if they were wrongfully decided, would produce chaos.
In addition to this, at a very practical plane, we question whether anyone would reasonably have relied upon these controversial opinions, as they were decided with the narrowest of majorities. As was stated in Sommers v City of Flint, 355 Mich 655, 662; 96 NW2d 119 (1959):
Younglas [v City of Flint, 345 Mich 576; 77 NW2d 84 (1956)] was decided too recently and by too close a margin to carry great weight under the doctrine of stare decisis. | [
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Corrigan, J.
In this disciplinary matter, the Grievance Administrator, on behalf of the Attorney Grievance Commission (ago), appeals an Attorney Discipline Board (adb) order reducing the discipline imposed on respondent by a hearing panel from a forty-five-day suspension to a reprimand. We hold that the ADB erred as a matter of law in concluding that our prior order denying the Grievance Administrator’s application for leave to appeal barred it from suspending respondent for longer than forty-five days. In light of that error, and because the adb did not have the benefit of our guidance regarding use of the American Bar Association (aba) Standards for Impos ing Lawyer Sanctions, we remand this case to the adb for reconsideration of its order of discipline.
I. THE ABA STANDARDS
Today, we direct the adb and hearing panels to follow the Aba Standards for Imposing Lawyer Sanctions when determining the appropriate sanction for lawyer misconduct. We have historically utilized an ad hoc approach to determine the appropriate sanction after a finding of professional misconduct. A comprehensive set of written standards for imposing sanctions has never existed in this state. Only our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession on this subject. We conclude that written standards are needed to guide the adb and hearing panels.
In the past twenty years, the number of Michigan attorneys has nearly doubled. With this increase, we have experienced a significant increase in complaints regarding attorney conduct. Although only a small fraction of our bar is disciplined each year, we conclude that a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct. We therefore adopt the aba standards on an interim basis. Their use will further the purposes of attorney discipline, help to identify the appropriate factors for consideration in imposing discipline and establish a framework for selecting a sanction in a particular case, and promote consistency in discipline. Application of the standards will produce reasoned decisions that will also facilitate our review.
a
The aba standards establish an analytical framework to guide the disciplinary body in determining the appropriate sanction in a case.
[T]he standards are not designed to propose a specific sanction for each of the myriad of fact patterns in cases of lawyer misconduct. Rather, the standards provide a theoretical framework to guide the courts in imposing sanctions. The ultimate sanction imposed will depend on the presence of any aggravating or mitigating factors in that particular situation. The standards thus are not analogous to criminal determinate sentences, but are guidelines which give courts the flexibility to select the appropriate sanction in each particular case of lawyer misconduct. [Aba Standards, p 6.]
Under the framework, the disciplinary body initially answers three questions:
(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)
(2) What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly, or negligently?)
(3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct? (Was there a serious or potentially serious injury?) [Aba Standards, p 5. See also Aba Standard 3.0.]
Through this inquiry, the disciplinary body identifies the type of misconduct involved in a particular case.
The disciplinary body then undertakes the second step of the analysis. It determines the recommended sanction for the type of misconduct by consulting the relevant aba standards. Aba Standards 4.0 through 8.0 contain the recommended sanctions for a variety of misconduct. Finally, after 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.
Courts of other states have recognized that the aba standards are a valuable analytical tool for determining the appropriate sanction for misconduct. Four state courts have adopted their own standards patterned after the aba standards. The courts in at least fourteen other states rely on the aba standards for guidance in determining sanctions, while another three employ only the aggravating and mitigating factor provisions of the aba standards. The courts in nine additional states have relied on the aba standards to a lesser extent. Further, in a few states, state disciplinary boards closely follow the aba standards even though the courts do not. Levin, The emperor’s clothes and other tales about the standards for imposing lawyer discipline sanctions, 48 Am U L R 1, 34, n 157 (1998).
In Michigan, the adb executive director began transmitting the aba standards to hearing panel members for use as an additional resource soon after their promulgation. Cunningham, 1988 Annual Survey of Michigan Law, Professional Responsibility, 34 Wayne L R 1005, 1027 (1988). The adb has not, however, adopted the aba standards or promulgated any other set of standards. Today, we join the courts of other states in recognizing the value of the aba standards as a benchmark in the decisional process.
b
This Court has the power under Const 1963, art 6, § 5, to regulate and discipline the members of the bar of this state. In re Schlossberg, 388 Mich 389, 395; 200 NW2d 219 (1972); see also MCL 600.904; MSA 27A.904. Exercising our rulemaking authority, we bifurcated the Michigan attorney disciplinary system in 1978, vesting the investigative and prosecutorial functions in the AGC, and the adjudicative function in the adb. MCR 9.108(A), 9.110(A). Subchapter 9.100 of the Michigan Court Rules governs attorney disciplinary proceedings before hearing panels and the adb.
By court rule, we have established the analytical framework that the hearing panel must use in making its decision and have specified the form of the hearing panel’s decision. We have also delineated the adb procedures for reviewing a hearing panel decision.
These court rules serve two main purposes. First, they promote considered decision making that accords procedural fairness to the respondent and instills public confidence in the disciplinary process. Second, they generate a record that contains the information this Court needs to engage in meaningful review when exercising its ultimate authority to regulate and discipline members of the bar. Schlossberg, supra at 395; MCR 9.122. Today, we adopt the Aba Standards for Imposing Lawyer Sanctions on an interim basis to further these purposes.
The basic goal of our disciplinary system is to protect “the public, the courts, and the legal profession.” MCR 9.105. While we have emphasized in the past that disciplinary cases “must stand on their own facts,” and that analogies to other cases are of limited value, our statements merely reflect the proposition that no two misconduct cases are identical. Our prior statements clearly do not signal a rejection of the principle that equivalent misconduct should be treated equivalently. Rather, we have stressed that the adb overview function involves “continuity and consistency in discipline imposed.” In re Daggs, 411 Mich 304, 320; 307 NW2d 66 (1981).
The difficulty of insuring consistency within the current disciplinary framework has become apparent in recent years. In the year before we bifurcated the disciplinary process, the predecessor disciplinary board received 753 complaints, imposed 62 orders of final discipline, and handled 1,687 matters without opening a file. Final Report State Bar Grievance Board, July 1, 1977—June 30, 1976, 57 Mich B J 1002, 1005 (1978). There were about 16,800 members of the bar during this period. Id. Over the past twenty-years, our bar membership has nearly doubled, 78 Mich B J 712 (1999), and an increase in disciplinary activity has accompanied our increase in numbers. In 1998, the AGC received 3,935 requests for investigation. State of Michigan Attorney Discipline Board & Attorney Grievance Commission, Joint Annual Report, January 1, 1998, to December 31, 1998, p 5. During that year, the AGC filed 241 formal complaints with the adb, issued 179 confidential admonishments, and closed 342 files with cautionary letters. Id. The adb entered 205 final disposition orders during this same period, among them orders in 47 appeals from hearing panel orders. Id., p 12.
Attorney volunteers serve on hearing panels that make the initial determination of misconduct and appropriate discipline. MCR 9.111. In 1998, the adb maintained a roster of 450 attorneys who serve on the three-member hearing panels. Joint Annual Report, supra, p 10. While these attorneys undoubtedly attempt to prioritize cases and achieve some degree of consistency in discipline, an individual panel member’s attempt is hindered by a lack of information about discipline imposed in other cases. Although the members of the adb have more information than hearing panel members, the analytical framework established by the aba standards will assist them in selecting the appropriate discipline in each case. The aba standards will guide hearing panels and the adb in imposing a level of discipline that takes into account the unique circumstances of the individual case, but still falls within broad constraints designed to ensure consistency.
Standards for imposing lawyer sanctions will help insure that the sanction imposed in a given case advances the basic goal of our disciplinary system. We agree with the remarks contained in the preface to the aba standards:
For lawyer discipline to be truly effective, sanctions must be based on clearly developed standards. Inappropriate sanctions can undermine the goals of lawyer discipline: sanctions which are too lenient fail to adequately deter misconduct and thus lower public confidence in the profession; sanctions which are too onerous may impair confidence in the system and deter lawyers from reporting ethical violations on the part of other lawyers. Inconsistent sanctions, either within a jurisdiction or among jurisdictions, cast doubt on the efficiency and the basic fairness of all disciplinary systems.
Use of the aba standards will further the goal of our disciplinary system because they “combine clear, straight-forward guidelines which ensure a level of consistency necessary for fairness to the public and the legal system with the flexibility and creativity essential to secure justice to the disciplined lawyer.” In re Buckalew, 731 P2d 48, 52 (Alas, 1986).
Application of the aba standards will also facilitate our review. This Court has the ultimate responsibility to oversee the conduct of the members of the State Bar. Grievance Administrator v Rostash, 457 Mich 289, 297; 577 NW2d 452 (1998); Grievance Administrator v August, 438 Mich 296, 304; 475 NW2d 256 (1991). On appeal, this Court “may make any order it deems appropriate, including dismissing the appeal.” MCR 9.122(E); Although we have broad authority to change a disciplinary order, we have historically invoked our power “only if the sanction imposed is inappropriate.” Rostash, supra at 297.
Our review is often hampered by the absence of a clear explanation of the reasons for selecting a particular sanction. Reference to the aba standards will lead to well-reasoned decisions that will facilitate meaningful review. We therefore direct the adb and hearing panels to follow the aba standards in determining the appropriate sanction for lawyer misconduct.
II. LOPATIN
A. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
This case arises from respondent’s allegedly improper contact with Court of Appeals Judges S. Jerome Bronson and Richard M. Maher. The ago filed a formal complaint in September 1992, alleging misconduct involving (1) respondent’s gifts to, and services for, Judge Maher and the failure to disclose those gifts and services (count i); (2) respondent’s contact with Judge Maher regarding pending cases in which respondent did not represent a party (count II); (3) respondent’s ex parte contact with Judge Bronson in the matter of Luszczynski v Henry Ford Hosp, Court of Appeals No. 84686 (count m); (4) respondent’s boasting of his influence with Court of Appeals judges (count iv); and (5) respondent’s attempt to persuade attorney Sue Radulovich to represent his secretary during a grand jury investigation into his conduct involving Judge Bronson in an attempt to obtain information regarding the secret proceedings (count v).
A hearing panel presided over a misconduct hearing during late 1994 and early 1995. The panel orally advised the parties of its decision in February 1995, and issued a written report on June 7, 1995. Regarding count I, the panel determined that respondent violated DR 7-110(A) by giving or lending items or ser vices of value to Judge Maher. It found, however, that respondent did not make the gifts to influence Judge Maher’s decisions in cases important to respondent’s law firm. The panel further determined that respondent violated DR 1-102(A)(5) and MCR 9.104(1) by failing to disclose to opposing counsel in a case pending in the Court of Appeals his law firm’s representation of Judge Maher and Judge Maher’s daughter in an unrelated personal injury suit. Finally, the panel found that respondent violated DR 1-102(A)(1), (5), and (6), DR 7-110(B), and MCR 9.104(l)-(4) by causing a copy of a memorandum prepared by an associate for the case of Luszczynski v Henry Ford Hosp to be sent to Judge Bronson without notice to opposing counsel and the other judges on the panel. The panel rejected the remaining allegations in the complaint. Considering the nature of the misconduct and some of the aggravating and mitigating factors identified in the aba standards, the hearing panel reprimanded respondent for the misconduct.
Respondent and the Grievance Administrator petitioned the ADB for review of the hearing panel decision. In February 1996, the ADB modified the hearing panel’s first finding of misconduct, reversed the second finding, and affirmed the third finding. Regarding the panel’s first finding, the ADB affirmed the panel’s determination that respondent’s renting of his Florida condominium to Judge Maher at a reduced rate constituted an improper gift. The ADB agreed with the hearing panel that a reprimand was the appropriate discipline for the misconduct.
The Grievance Administrator applied for leave to appeal to this Court. Petitioner applied for leave to appeal as cross-appellant. In lieu of granting the applications, we remanded to the hearing panel for (1) findings regarding the credibility of three witnesses, (2) resolution of count n of the formal complaint, (3) a finding whether Judge Bronson, in open court, directed respondent to deliver the memo and to deliver it without serving opposing counsel or filing it with the clerk, (4) an explanation of the panel’s finding that respondent did not intend to influence Judge Maher’s decisions, (5) reconsideration of any findings affected by evidence of attorney Radulovich’s prior consistent statements, which the panel erroneously excluded. We further advised that the panel could exercise its discretion to reopen proofs if it deter mined that the improperly excluded evidence would be decisive. We also directed the panel to consider whether any changed findings would affect the level of discipline.
On remand, the hearing panel found that attorney Radulovich was the least credible of the three major witnesses (Radulovich, respondent, and Judge Maher). It therefore declined to base a finding of misconduct on her uncorroborated testimony. The panel, in contrast, found that respondent was fairly credible, except for his testimony regarding Judge Bronson’s statements during oral argument. The panel further found Judge Maher credible.
The hearing panel also expanded on its findings regarding respondent’s gifts to Judge Maher. It found that respondent did not intend to influence, directly or indirectly, Judge Maher’s decisions by giving him gifts. The panel further determined that petitioner failed to prove the allegations in count H.
Finally, the panel expanded on its findings regarding respondent’s ex parte communication with Judge Bronson. The panel rejected respondent’s testimony that Judge Bronson stated from the bench that respondent could serve the memo on him alone and he would forward it to the other judges and parties. It found that respondent’s testimony was incredible on its face, was inconsistent with his associate’s memo and her testimony, clashed with Judge Gribbs’ testimony, and conflicted with his firm’s established filing procedures. The panel further observed that the Clerk of the Court of Appeals, Ronald Dzierbicki, essentially testified that he would have heard if Judge Bronson had made the statement because it would have been unusual. The panel found that, even if Judge Bronson occasionally directed counsel to send briefs to him, he would not have agreed to serve the brief on oppos ing counsel. The panel further noted that its finding that an ex parte communication had occurred was supported by respondent’s admission that he “was following his instructions, what he said at oral argument.” The panel also reiterated its dismissal of the remaining two counts in the complaint. The panel concluded that its additional findings regarding the ex parte communication justified a different sanction—a suspension for forty-five days.
Respondent subsequently moved for this Court to strike the section of the hearing panel report that addressed the level of discipline. He also requested a stay of the panel’s order.
In a December 9, 1997, order, we denied petitioner’s application for leave to appeal because we were “not persuaded that the questions presented should be reviewed by this Court.” In lieu of granting either respondent’s application for leave to appeal or motion to strike, we remanded the case to the adb for consideration of respondent’s arguments regarding the increased discipline, except for his argument that hearing panel action exceeded the scope of the remand order. We denied respondent’s application and motion in all other respects. We also stayed imposition of discipline until further order of the adb.
On remand, the adb affirmed the hearing panel’s additional findings. It determined, however, that this Court’s “dismissal” of the Grievance Administrator’s application for leave to appeal precluded it from suspending respondent for more than forty-five days. The adb concluded that a reprimand was the appropriate sanction for respondent’s misconduct. Two adb mem bers dissented, explaining that they would have affirmed the hearing panel.
We granted the Grievance Administrator’s application for leave to appeal. 461 Mich 1206 (1999).
B. APPROPRIATE SANCTION FOR THE MISCONDUCT
The Grievance Administrator’s challenge involves the adb finding of misconduct on the basis of respondent’s ex parte contact with Judge Bronson. We ordinarily review hearing panel and adb findings to determine whether proper evidentiary support exists on the whole record to support the findings. In re Grimes, 414 Mich 483, 490; 326 NW2d 380 (1982); State Bar Grievance Administrator v McWhorter (On Rehearing), 407 Mich 278, 291; 284 NW2d 472 (1979). Neither the Grievance Administrator nor respondent challenges the finding of misconduct by the hearing panel as adopted by the adb. We conclude nonetheless that ample evidence supports the ADB finding that respondent violated DR 1-102(A)(1), (5), and (6), DR 7-110(B), and MCR 9.104(l)-(4) by engaging in improper ex parte contact with Judge Bronson.
We further conclude that the adb erred as a matter of law when, in determining the appropriate sanction for the misconduct, it concluded that our prior order denying the Grievance Administrator’s application for leave to appeal precluded a suspension of longer than forty-five days. In light of that error, and because the adb acted without the benefit of our guidance regarding use of the Aba Standards, we remand this case to the adb for reconsideration of the appropriate discipline for respondent’s misconduct.
1. HEARING PANEL AND ADB DECISIONS
In its initial decision, the hearing panel reprimanded respondent for the misconduct. It explained:
[T]he panel is also persuaded that, while in all instances, ex-parte communication must be avoided, that in this instance respondent should be reprimanded only, for the following reasons. First, testimony indicates (and is not rebutted) that the memorandum submitted to Judge Bronson discussed the two cases that had been presented on the oral record. . . . Respondent testified that he brought new, pertinent Supreme Court cases to the panel’s attention at oral argument and presumably in the presence of opposing counsel. Further, the memorandum could not have had an impact on Judges Gribbs and Clements since they had not seen the memorandum and they had taken positions on the case before the memorandum was delivered to Judge Bronson.
The panel is also troubled by the remoteness of the incident complained of by the Grievance Administrator and the dearth of “hard evidence,” i.e. a transcript to implicate respondent. The panel comes to its conclusion of ex-parte communication by virtue of circumstantial evidence. Still, the panel believes that ex-parte communication is not a trivial matter and though no new information was imparted to Judge Bronson, such an occurrence is harmful to the integrity of the judicial process.
The panel, in imposing a reprimand, also considered respondent’s previously unblemished record over a long and distinguished career.
* *
In addition to the nature of the misconduct established in this case, the panel has considered the factors identified as aggravating or mitigating by the American Bar Association’s Standards for Imposing Lawyer Sanctions. While it is true that the respondent has substantial experience in the prac tice of law [Standard 9.22(f)], we do not find that this factor has any significant aggravating effect in this case. On the other hand, the mitigating factors present in this case are: Absence of a prior disciplinary record [Standard 9.32(a)]; Absence of a dishonest or selfish motive [Standard 9.32(b)]; and the passage of as much as .thirteen years between some of the events charged and the filing of the formal complaint [Standard 9.32(i)]. We therefore conclude that a reprimand is the maximum discipline which is warranted in this case.
The adb affirmed the panel’s decision:
[W]e agree with the panel that the respondent’s conduct was not a trivial matter and although no new information was imparted to Judge Bronson, such an occurrence is harmful (or potentially harmful) to the integrity of the judicial process. However, we also share the panel’s concern for the remoteness of tire incident and the dearth of “hard evidence” in support of this count and we adopt the panel’s findings that the misconduct in this case is substantially mitigated by respondent’s previously unblemished record over a long and distinguished career; the absence of a finding that he acted out of dishonest or selfish motives and the passage of as much as years between some of the events charged and the filing of the formal complaint. We agree that a reprimand is the maximum discipline which is warranted in this case.
On remand, however, the hearing panel revisited the sanction issue in light of its additional findings. The panel also considered the Grievance Administrator’s argument that, under Aba Standard 6.31(b), disbarment is the appropriate sanction for the miscon duct The panel further recognized that Aba Standard 6.32 suggests that a suspension is the appropriate sanction for some improper ex parte communications. In this case, the panel determined that a forty-five-day suspension was the appropriate discipline:
We do not wish to dwell too much upon the actual or potential injury to a party or the actual or potential effect on the proceeding. Every unlawful ex parte communication on the merits is injurious to the integrity of the legal system and must be taken seriously. Nonetheless, the Standards do provide for gradations. Here, we find it difficult to determine whether the memo was the cause of any actual or potential injury or interference in the outcome. This is in part because the evidence indicates that Judge Bronson may have reassigned the case to himself prior to receiving the memo. Also, the decision making power is diffused in the Court of Appeals, and one of the three Judges was leaning in Judge Bronson’s direction at the post-oral argument conference.
Additionally, we consider that the substance of the memorandum had been presented in open court with opposing counsel present. This does not excuse the improper ex parte contact or diminish the significance of the fact that opposing counsel was not given the opportunity to respond in like kind to the arguments therein. However, as compared to an ex parte communication which raises an entirely new analysis or presents a resolution of issues to which opposing counsel was not privy, we find this type of communication somewhat less harmful to the system and the party aggrieved.
We find that the facts of this case fall more clearly in section 6.32 of the Standards than in section 6.31(b). Moreover cases cited in the Attorney Discipline Board’s opinion in Grievance Administrator v Sheldon L. Miller, ADB No 90-134-GA (ADB 1991), and Florida Bar v Mason, 334 So 2d 1 (Fla 1976), support the imposition of a suspension rather than disbarment. Two of the cases cited in Miller impose 30 day suspensions for multiple offenses including an ex parte contact and false or less than candid statements to conceal it. In the absence of mitigating factors, we think that may be too lenient under such circumstances.
We have considered the imposition of a suspension of sufficient duration to require reinstatement proceedings. However, we have determined that in these particular circumstances, which include the nature of the ex parte communication and its potential to affect the proceedings, the remoteness in time of this apparently isolated incident, and respondent’s lengthy and unblemished record as a member of the bar, a suspension of 45 days is appropriate.
On remand from this Court to consider the increased discipline, the ADB initially concluded that our denial of the Grievance Administrator’s application for leave to appeal precluded it from suspending respondent for more than forty-five days. Considering the options of affirming the hearing panel’s decision, reducing the suspension to a period of not less than thirty days, and reprimanding respondent, the adb elected to adhere to its prior decision to reprimand respondent.
The adb explained the basis for its determination:
Since the panel’s original order of reprimand in June 1995, this case has twice made its way to the Supreme Court and is now before the Board a second time. While the panel’s findings with regard to count 3 have been more fully explicated and respondent’s culpability brought into sharper focus, the passage of time has not changed the fundamental nature of that misconduct or the substantial mitigation previously recognized by the panel and the board. We are una ble to conclude that a forty-five day suspension of respondent’s license will provide a significantly higher degree of protection to the public, the courts or the legal profession as a deterrent to respondent or other attorneys. On the contrary, a short suspension imposed twelve years after the misconduct would, in our opinion, be primarily, if not exclusively, punitive in nature.
We stress that respondent’s misconduct is worthy of condemnation by the legal profession. However, bearing in mind that the ex-parte memorandum which is the subject of count 3 was submitted to Judge Bronson in early June 1986 and considering both the extended history of this case and respondent’s unblemished record during the intervening years, we now conclude that the public, the courts, the legal profession, and the parties and their counsel will be served by an order bringing this matter to a close.
2. LAW OF THE CASE
Our prior order denying the Grievance Administrator’s application for leave to appeal as cross-appellant did not preclude the adb from increasing the level of discipline beyond the forty-five-day suspension imposed by the hearing panel.
We reject respondent’s argument that our prior order denying the Grievance Administrator’s application for leave to appeal constitutes the law of the case. Under the law of the case doctrine, “if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.” CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). The appellate court’s decision likewise binds lower tribunals because the tribunal may not take action on remand that is inconsistent with the judgment of the appellate court. Sokel v Nickoli, 356 Mich 460, 465; 97 NW2d 1 (1959). Thus, as a general rule, an appellate court’s determination of an issue in a case binds lower tribunals on remand and the appellate court in subsequent appeals. Webb v Smith (After Second Remand), 224 Mich App 203, 209; 568 NW2d 378 (1997); see, generally, 5 Am Jur 2d, Appellate Review, § 605, p 300.
Law of the case applies, however, only to issues actually decided, either implicitly or explicitly, in the prior appeal. Webb, supra at 209; Roth v Sawyer-Cleator Lumber Co, 61 F3d 599, 602 (CA 8, 1995). In denying the Grievance Administrator’s application for leave to appeal in this case, we expressed no opinion on the merits. See Frishett v State Farm Mut Automobile Ins Co, 378 Mich 733 (1966) (order); cf. Teague v Lane, 489 US 288, 296; 109 S Ct 1060; 103 L Ed 2d 334 (1989) (the denial of a writ of certiorari imports no expression of opinion on the merits of the case). Therefore, the law of the case doctrine does not apply. See Mirchandani v United States, 836 F2d 1223, 1225 (CA 9, 1988).
In this case, the adb was free on remand to consider and decide any matters left open by our mandate. See Sokel, supra at 465; cf. Quern v Jordan, 440 US 332, 347, n 18; 99 S Ct 1139; 59 L Ed 2d 358 (1979). We remanded in this case “for consideration of arguments by the respondent concerning the appropriateness of the increased level of discipline ordered by the hearing panel, with the exception of arguments that the action exceeded the scope of remand.” 456 Mich 1206-1207 (1997). Thus, as in all cases in which it reviews a hearing panel order of discipline, the adb could “affirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline.” MCR 9.118(D). Accordingly, the adb erroneously concluded that our order precluded it from increasing the level of discipline beyond the forty-five-day suspension imposed by the hearing panel.
3. REVIEW OF SANCTION IMPOSED BY THE ADB
The Grievance Administrator urges us to increase the level of discipline imposed by the ADB for respondent’s misconduct. We invoke our authority under MCR 9.122(E) to change a disciplinary order only if the sanction imposed by the ADB is inappropriate. Rostash, supra at 297. In this case, however, the adb erroneously concluded that our prior order limited the disciplinary options. Further, the adb did not have the benefit of our guidance regarding use of the aba standards. We therefore remand this case to the adb for reconsideration of its decision regarding the appropriate level of discipline in light of the aba standards. On remand, the ADB may consider all sanction options, including disbarment.
Aba Standards 6.31(b) and 6.32 discuss the circumstances under which misconduct involving an ex parte communication with a judge warrants a suspension or disbarment. The adb, of course, is not bound by the hearing panel’s application of the standards, particularly its assessment whether the ex parte communication caused serious injury or potentially serious injury to a party, or caused significant interference or potentially significant interference with the outcome of the legal proceeding. We are troubled by the hearing panel’s narrow focus on the preliminary voting decisions of the other members of the Court of Appeals panel, without regard for the effect of a strongly reasoned proposed opinion on their decision whether to join Judge Bronson’s opinion. In addition to potentially altering the Court of Appeals decision, an ex parte communication that affects the reasoning of the opinion may also injure a party by necessitating the expenditure of additional resources to obtain relief from this Court.
The adb should also consider the harm to the administration of justice caused by respondent’s misconduct. Shaman, Lubet & Alfini, Judicial Conduct and Ethics (3d ed), § 5.01, pp 159-160, describes the dangers associated with ex parte communications:
Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge “may be incomplete or inaccurate, the problem can be incorrectly stated.” At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communication is an invitation to improper influence if not outright corruption.
m. CONCLUSION
Today, we adopt the aba standards on an interim basis and direct the adb and hearing panels to use them in determining the appropriate sanction for lawyer misconduct. In this case, we hold that the ADB erroneously concluded that our prior order prevented it from increasing the level of discipline beyond the forty-five-day suspension imposed by the hearing panel. We therefore remand this case to the ADB for reconsideration of its decision regarding the appropriate sanction for respondent’s misconduct.
Weaver, C.J., and Taylor, Young, and Markman, JJ., concurred with Corrigan, J.
APPENDIX
V. COUNT III: EX PARTE SUBMISSION TO JUDGE BRONSON A. INTRODUCTION AND PROCEDURAL HISTORY.
1. THE ALLEGATIONS AND RESPONDENT’S DEFENSE.
Count m of the formal complaint alleges that
“in a case entitled Luszczynski v Henry Ford Hospital, Court of Appeals No. 84686, (Decided 1986) in which Respondent represented the plaintiff, following oral argument on the appeal and prior to the issuance of an opinion by the court, Respondent directed Monica Farris Linkner, an attorney employed by his law firm, to prepare a draft opinion/memorandum of law regarding issues in Luszczynski and caused or permitted the memorandum, or information contained within it, to be given or communicated, ex parte, to the late Court of Appeals Judge S. Jerome Bronson, who was assigned to write the opinion. Portions of Ms. Linkner’s memorandum were, in fact, incorporated into the Court of Appeals opinion authored by Judge Bronson. [Formal Complaint, ¶ 15.]”
This conduct was alleged to violate Canon 7 of the then applicable Code of Professional Responsibility, DR 7-110(B), and other rules.
At the hearing, respondent testified that Judge Bronson truncated respondent’s argument regarding recently decided cases, saying “Submit a memorandum . . . and I’ll see that the proper parties get a copy of it.”
In our report, we found:
“that Mr. Lopatin caused a copy of the memorandum prepared by Linkner to be sent or otherwise communicated to Judge Bronson without proper notice to opposing counsel and the other panel members. [Report, pp 14-15.]”
We then imposed a reprimand.
2. REMAND.
The Supreme Court’s order remanding this matter states in pertinent part:
“The panel did not resolve the issue of whether Judge Bronson, in open court, directed respondent to deliver to Judge Bronson the Linkner memorandum and whether that delivery was to be made without service of a copy of the memorandum on opposing counsel and filing a copy with the clerk of the court. On remand, the panel shall make specific findings of what, if anything, Judge Bronson said in open court. [MSC order of 1/28/97, pp 1-2; emphasis added.]”
3. PANEL FINDINGS ON MISCONDUCT.
In our original report we found that respondent submitted an ex parte communication to Judge Bronson in violation of DR 7-110(B) even though it contains an exception for communications “otherwise authorized by law.” (Perhaps this exception was the basis for the Grievance Administrator’s concession that, if Bronson had said what was claimed, then respondent should not be disciplined [Tr 1493-1494].)
Rulings from the bench gave a hint as to our resolution of the conflicting evidence. At page 1533 the panel chair stated:
“[Panel Chair]: Our finding was based on the responsibility of counsel to serve it on the other side and to serve it on judges, whether or not Judge Bronson had said that.
“And we also gave weight to the fact that neither Judge Gribbs nor Judge Clements remembered him saying that. And they both said they would have remembered if that were the case.”
A few moments later, at pages 1543-44 of the transcript, the panel chair and respondent’s counsel had the following colloquy:
“Mr. Miller: But will we have your findings of fact in relation to that particular issue?
“For example, will there be a finding as to whether judge Bronson said, “Give me—File it with me?”
“[Panel Chair]: We have concluded that that was not said. And I think that’s already in the record.
“Mr. Christensen: My understanding was that your ruling was that even if it was said, that there was an independent responsibility—
“[Panel Chair]: (Interposing) That’s true also. [Tr 1533, 1543-1544; emphasis added.]”
It is now apparent to us that our report could be viewed as:
“(1) disagreeing with the Administrator’s legal conclusion that Bronson’s statement, if it had been made, would exonerate respondent (Tr 1493-1494);
“(2) finding that, even if Bronson said what respondent claimed, in light of the fundamental duty to provide notice to your opponent one could reasonably interpret Bronson’s promise to get the memo to the “proper parties” as including only judges and court staff, and not opposing counsel; or
“(3) an outright rejection of respondent’s testimony as to what Bronson said from the bench.”
We now clarify that we rely on each of these independent grounds for our finding that misconduct occurred. After our review of the evidence and our specific finding that Bronson did not make the remarks claimed by respondent, we have determined that respondent should be suspended for 45 days.
B. GENERAL FINDINGS OF FACT.
The appeal in Luszczynski v Henry Ford Hospital arose out of a case in which the plaintiff in a case tried by respondent received a no cause verdict. On appeal, plaintiff claimed instructional error by the trial judge. The appeal was assigned to a panel made up of Judges Jerome Bronson (presiding), Roman Gkibbs, and Martin Clements (a Lapeer Circuit Judge). The case was argued on May 6, 1986 (Tr 555 [Rathke]; exhibit o [Clement’s (sic) file which includes docket]). Respondent’s associate, Monica Farris-Linkner, was assigned to do the appellate briefing (Tr 466 [Lopatin]; Tr 1243 [Linkner]). Respondent did the oral argument (Tr 467, 1243). The opinion was released in September, 1986 (Tr 555; exhibit o).
Judge Clements, Bronson’s law clerk (Robert Rathke), and the former Clerk of the Court of Appeals (Ronald Dzierbicki) all testified as to the normal procedure for assigning opinion-writing duties. The judges are listed on a docket or case call in some order such as presiding first, and the next two by seniority. The cases were then assigned to judges in rotation. Judge Clements, Mr. Rathke, and the records kept by Judge Clements clearly establish that Judge Clements was assigned by this random method to write Luszczynski.
At the post-oral argument conference between the judges on the panel, the judges discussed their initial impressions: Judge Clements leaned toward affirmance; Judges Bronson and Gribbs leaned the other way. The testimony of Clements and Rathke establishes that soon after oral argument (perhaps at the post-oral argument conference) Judge Bronson told Judge Clements that he would draft the majority opinion. Mr. Rathke, Judge Clements, and Mr. Dzierbicki established that the custom was for the assigned writer to do the first draft even if he or she ended up in the minority after the conference. Luszczynski was the only exception. Mr. Dzierbicki was asked if he would characterize Bronson as someone who sought out extra work, and he replied “no” (Tr 685).
After Judge Bronson committed suicide, an investigative task force was formed. While executing a grand jury subpoena, Dennis G. Kapelanski, of the Michigan Attorney General’s Office, found exhibits i and J in the Lopatin, Miller law office (stipulation at Tr 1292-1293).
Exhibit I is an original, and J is a copy, of a memorandum which reads in part:
“MEMO
“TO: Albert Lopatin
“FROM: Monica Linkner
“RE: Edward Luszczynski v Henry Ford Hospital
“Albert, as you asked me to do on the way back from oral argument on Luszczynski, I have once again gone over the briefs and have done some reflecting on oral argument itself. It is really difficult for me to imagine that we would lose this appeal . . . Here are my thoughts on each of the issues.”
* * *
[Exhibits i and J.]
The memo continues in an informal tone and discusses the two issues presented in the appeal.
Exhibit K is a memorandum written in Judge Bronson’s hand (Tr 536, 539 [Rathke]). Judge Bronson gave it to Mr. Rathke and told him to incorporate it into the opinion. This was a unique request. (Tr 536.) The Bronson memo contains many similarities to the Linkner memo (exhibits I & j), as well as some verbiage directly from the Linkner memo. For example, in their respective discussions of “Issue i,” both memos refer to Moody v Pulte Homes, Inc, 423 Mich 150 [378 NW2d 319] (1985), and state that there the Supreme Court “emphasized the mandatory requirement of GCR 516.1 (now MCR 2.56[A][4]) [sic] requiring that the court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.” (See exhibits i, J, and K. )
At the hearing in this matter, Respondent testified that he attempted to advise the Court of Appeals panel in Luszczynski of two cases decided after Ms. Linker [sic] filed her brief:
“Q. And did you advise the court of those two cases?
“A. I attempted to hand them to Judge Bronson, who was the presiding judge.
“At that time he said, ‘We can’t take the time to read it now. Submit a memorandum in regard to what they stand for and I’ll see that the proper parties get a copy of it. ’ [Tr 468; emphasis added.]”
At pages 468-471 of the transcript respondent testified as follows:
“(1) he discussed the type of memo requested by Judge Bronson with Ms. Linkner on the way back from oral argument and ‘he left it for her to prepare a memo pursuant to what Judge Bronson had requested’ (Tr 468);
“(2) the Linkner memo is the memorandum she prepared pursuant to Judge Bronson’s request and her conversation with respondent (Tr 469);
“(3) he ‘looked at the memo . . . [and] said it was fine’ (Tr 469);
“(4) he ‘left it up to her to get it delivered’ or he ‘could have arranged for delivery of it to the Court of Appeals’ (Tr 469);
“(5) he expected the memo to be delivered to Judge Bronson directly (Tr 470);
“(6) no arrangements were made to have the memo delivered to opposing counsel because of Judge Bronson’s instructions (Tr 470).”
Neither Judge CLEMENTS nor Judge Gribbs had ever seen the Linkner memo (exhibits I & J) (Tr 1011, 1159). Mr. Rathke had no recollection of receiving anything from the parties after oral argument (Tr 543). It was not referenced in the Court of Appeals’ Docket (exhibit o). Respondent and his counsel stipulate that Judge Bronson had the Linkner memo (Tr 1363). Respondent’s testimony is consistent with all of the other evidence establishing that he did not file a copy of the memo with the Court clerk or serve it on Judge Gribbs, Judge Clements, or opposing counsel.
“Q. And what arrangements, if any, would be made to deliver it to opposing counsel?
“A. There wasn’t. He indicated that, ‘you get the memo to me and I’ll see that the proper parties get a copy of same.’
“Q. And, sir . . .
“A. (Interposing) That meant to me that whoever- was entitled to see the memo, he would see that they got it. And I was following his instructions, what he said at oral argument. [Tr 470; emphasis added.]”
This is consistent with Ms. Linkner’s testimony that she did not see a proof of service or transmittal letter in the file which would indicate that her memo was filed with the court or served on counsel or judges; she worked with the file quite a bit after oral argument, because there was a motion for costs, a motion for rehearing, and an application for leave to the Supreme Court (Tr 1257, 1259-1260; exhibit 0 [docket]).
When asked if he had called Judge Bronson between the time of oral argument and the time the Luszczynski panel issued its opinion, respondent testified: “Not that I recall. I don’t think I ever called him on the telephone” (Tr 473). He did, however, run into Judge Bronson at a party for Judge Jessica Cooper, but he doesn’t know when that was (Tr 473). And, he had lunch with Judge Bronson at some point to discuss Judge Bronson’s reelection (Tr 474). However, he did not know when that was. But, he testified: “I don’t think the case was before him. That case was not before him at that time.” (Tr 475.)
After respondent stepped down from the stand, Judge Bronson’s clerk, Robert Rathke, was called. He testified that he took a phone message from respondent during the time he was actually drafting the Luszczynski opinion, and thought it was “an amazing coincidence” (Tr 540, 545).
Mr. Rathke also identified exhibit L as containing Judge Bronson’s handwriting (Tr 541). Exhibit L is a “month at a glance” calendar for 1986. It was obtained “from Judge Bronson’s widow”); it contained a scrap of paper with respondent’s phone number on it (stipulation at Tr 1293-1294). On June 9, 1986 the calendar says, “12 noon—Albert for lunch.” After Mr. Rathke identified Judge Bronson’s handwriting and the Administrator had moved onto exhibit o (Judge Clements’ file), the panel chair elicited some stipulations to move the proofs along, including the stipulation from respondent’s counsel that respondent had lunch with Judge Bronson during the relevant period.
Exhibit O, Judge CLEMENTS’ file, contains a memo from Judge Bronson, dated June 12, 1986, to Judge Clements regarding Luszczynski. The memo reads in part: “Dear Marty, Enclosed is what I consider to be a careful and effective draft of an opinion reversing. ...”
C. SPECIFIC FINDING THAT JUDGE BRONSON DID NOT SAY “SUBMIT [A SUPPLEMENTAL MEMORANDUM] TO ME . . . AND I’LL SEE THAT THE PROPER PARTIES GET A COPY OF IT.”
We have carefully considered respondent’s testimony on the question whether Judge Bronson made a statement from the bench to the effect that respondent could serve a memorandum on him alone and that he would get it to the proper parties. Having done so, we must reject this testimony and reiterate our finding that respondent engaged in an improper ex parte communication.
There are several factual elements to respondent’s defense. First, we note what is not at issue. Respondent, in his closing argument and brief on remand, contends that there is no proof of an ex parte communication because the Administrator did not call opposing counsel as a witness in these proceedings. We reject this argument based on the testimony of respondent:
“Q. And what arrangements, if any, would be made to deliver it to opposing counsel?
“A. There wasn’t. He indicated that, ‘you get the memo to me and I’ll see that the proper parties get a copy of same.’
“Q. And sir . . .
“A. (Interposing) That meant to me that whoever was entitled to see the memo, he would see that they got it. And I was following his instructions, what he said at oral argument. [Tr 470; emphasis added.]”
Thus, the ex parte communication was established by more than circumstantial evidence. It was established by respondent’s admission—the admission which forms an integral part of the testimony, and defense, that the ex parte communication was authorized in open court.
A critical element of respondent’s defense or excuse is that respondent understood Judge Bronson’s statement to be authorization to file a document with Judge Bronson only because Judge Bronson stated that he would, among other things, serve it on respondent’s opponent. Another set of factual predicates crucial to the believability and coherence of respondent’s story is that the Linkner memo was not surreptitiously submitted without her knowledge to Judge Bronson, but rather was openly submitted to Judge Bronson pursuant to his directive—and as a result of a conversation on the way back from oral argument in which respondent told Ms. Linkner to prepare the memo in accordance with Judge Bronson’s instructions.
We find that Judge Bronson never said, “You get the memo to me and I’ll see that the proper parties get a copy of same,” for the following reasons:
1. respondent’s testimony was incredible on its face.
We recognize that judges and courts can have idiosyncracies. We can understand sending a post-oral argument brief directly to the panel. We might even accept the remote possibility that a presiding judge might say, “get it to me and I’ll get it to the panel” (and, depending on the circumstances, we might forgive the lawyer who thought this relieved her of filing the original with the clerk). However, we cannot understand why any judge would under these circumstances assume the responsibility of service on opposing parties. Nor can we understand how any lawyer in practice for more than a few months could believe he or she was relieved of this responsibility. We do not accept the notion that respondent would interpret a statement such as the one he claimed Bronson made as authorizing an ex parte submission.
2. respondent’s testimony was inconsistent with MS. linkner’s memo and her testimony
In our general findings on this count we summarize respondent’s testimony at pages 468-471 in six numbered paragraphs. We restate the first four here:
“(1) respondent discussed the type of memo requested by Bronson with Linkner on the way back from oral argument and ‘he left it for her to prepare a memo pursuant to what Judge Bronson had requested’ (Tr 468);
“(2) the Linkner memo is the memorandum she prepared pursuant to Bronson’s request and her conversation with respondent (Tr 469);
“(3) respondent ‘looked at the memo . . . [and] said it was fine’ (Tr 469);
“(4) he ‘left it up to her to get it delivered’ or he ‘could have arranged for the delivery of it to the Court of Appeals’ (Tr 469).”
With the exception of paragraph 4, these statements cannot be squared with Linkner’s testimony—even if one concedes that some loss of memory on her part would be normal.
Ms. Linkner testified that: (1) she did all of the appellate briefing an [sic] motion-writing in Luszczynski, and there were motions for costs and rehearing, as well as an appeal to the Supreme Court; (2) she would have probably done the supplemental brief if Bronson had ordered one; (3) she probably would have remembered if Bronson had ordered supplemental briefing; (4) if she had been asked to do a supplemental brief, it would not have been in the form of her memo to respondent (exhibits I & j); finally, (5) she confirmed her testimony in 1988—much closer to May 1986 than the time of this hearing—that she did not know why respondent wanted that memo.
Much of Ms. Linkner’s testimony is strong circumstantial evidence that Judge Bronson didn’t say anything about sup plemental briefs or memos. But, more important is her unequivocal testimony that if she- had been told to submit a memo for a judge or a court, it would not have been in the form of exhibit i/j.
And this makes perfect sense. We cannot look at the Linkner memo and give any credence to respondent’s testimony that it was prepared for filing with a court or judge, and that he reviewed it and okayed it for filing. Again, it is “To” Albert Lopatin, “From” Monica Linkner. It has the case name, but not in caption form and there isn’t a lower court or Court of Appeals case number to be found anywhere. It is clear from the content that, from Ms. Linkner’s perspective, the memo was never intended for filing anywhere except in a cabinet. The memo closed with, “If any questions, please advise. Monica.” There is no last name, no address, no phone number, no “p” number. It is not even signed.
a respondent’s testimony clashed with judge gribbs’.
Judge Gribbs did say that he didn’t remember much about oral argument in the case. But he also said that he thought he would remember if Bronson said what is claimed. He highlighted the usual procedures and that such a statement would be a great departure. Most important are the following unequivocal statements:
“(1) he has never heard any judge of the Court of Appeals direct a litigant to file something without serving the other side (Tr 1155); and,
“(2) he has never heard Judge Bronson instruct counsel to send supplemental briefs directly to Judge Bronson, as opposed to the usual method of filing (Tr 1165-1166).”
4. THE TESTIMONY OF RONALD DZIERBICKI IS CITED OUT OF CONTEXT BY RESPONDENT, AND, IN ANY EVENT, DOES NOT EXPLAIN OTHER CRITICAL EVIDENCE.
Mr. Dzierbicki testified, essentially, that if Judge Bronson had said something like respondent claimed it would have been so unusual that he would have heard about it. And, he could not imagine counsel practicing that way. Mr. Dzierbicki testified that Judge Bronson had occasionally said “get it to me and I’ll get it to the panel,” but Dzierbicki is unaware of Bronson ever excusing service on opposing counsel.
Even if Judge Bronson occasionally directed briefs to come to him, we do not believe that he agreed to serve counsel in this or any other case. Even more implausible is the claim that the Linkner memo was such a brief (see above).
5. respondent’s filing procedures.
Respondent suggested that he was very hands-off regarding the filing of this document with Judge Bronson. He testified, “we have people who do that.” His counsel elicited testimony from respondent’s secretary, Karen Jamieson, that respondent gives no specific instructions. He just says “file this.”
We have concluded that if things had proceeded in the ordinary course, the original would have been filed with the Court and copies would have gone to the other judges on the panel and to opposing counsel. In a firm of any size certain filing conventions or systems would be established. We feel it is safe to assume that a file clerk would be given standing instructions that the original is filed with the court. Accordingly, respondent or Ms. Linkner would have had to intervene in the normal filing process and direct the clerk to deliver (or mail) one or more copies of the memo directly to Judge Bronson, and to no one else, which is what happened. This is completely inconsistent with the theory argued by respondent’s counsel (see, e.g., Tr 1527-1528).
We direct the adb to explore the development of permanent Michigan standards for imposing lawyer sanctions. The ADB shall report its proposed Michigan standards to this Court within two years of the date of this opinion.
Alabama Standards for Imposing Lawyer Discipline, Preface; Florida Standards for Imposing Lawyer Sanctions, Preface; North Dakota Standards for Imposing Lawyer Sanctions, Note; Utah Standards for Imposing Lawyer Sanctions, Summary. California, in contrast, has adopted standards containing presumptive sanctions. Cal St B P, tit IV, Standards for Attorney Sanctions for Professional Misconduct.
See In re Mann, 853 P2d 1115, 1117 (Alas, 1993); In re Shannon, 179 Ariz 52, 71; 876 P2d 548 (1994); People v Fager, 938 P2d 138, 141 (Colo, 1997); Statewide Grievance Comm v Fountain, 56 Conn App 375, 381; 743 A2d 647 (2000); In re Maguire, 725 A2d 417, 423 (Del, 1999); In re Swindall, 266 Ga 553, 554; 468 SE2d 372 (1996); In re Quaid, 646 So 2d 343, 350 (La, 1994); Attorney Grievance Comm of Maryland v Sheridan, 357 Md 1, 28; 741 A2d 1143 (1999); Mississippi Bar v Land, 653 So 2d 899, 910 (Miss, 1994); Office of Disciplinary Counsel v Brown, 87 Ohio St 3d 316, 319-322; 720 NE2d 525 (1999); In re Huffman, 328 Or 567, 587; 983 P2d 534 (1999); In re Claggett, 544 NW2d 878, 881 (SD, 1996); In re Hunter, 163 Vt 599, 605; 656 A2d 203 (1994); In re Boelter, 139 Wash 2d 81, 99; 985 P2d 328 (1999).
Neal v Hollingsworth, 338 Ark 251, 263-265; 992 SW2d 771 (1999); In re Doherty, 142 NH 446, 450; 703 A2d 261 (1997); Lawyer Disciplinary Bd v Jarrell, 523 SE2d 552, 559 (W Va, 1999).
See Office of Disciplinary Counsel v Breiner, 89 Hawaii 167, 175; 969 P2d 1285 (1999); In re Burchett, 630 NE2d 205, 206 (Ind, 1994); In re Harris, 261 Kan 1063, 1076; 934 P2d 965 (1997); In re Luongo, 416 Mass 308, 311; 621 NE2d 681 (1993); In re Giberson, 581 NW2d 351, 355 (Minn, 1998); In re Weier, 994 SW2d 554, 559 (Mo, 1999); In re Carlton, 993 P2d 736, 738 (NM, 2000); In re Cutler, 227 AD2d 8, 10; 650 NYS2d 85 (1996); Oklahoma ex rel Oklahoma Bar Ass’n v O’Neal, 852 P2d 713, 715 (Okla, 1993).
See Dubin & Schwartz, Survey and analysis of Michigan’s disciplinary system for lawyers, 61 U Det J Urb L 1, 1-3 (1983), for a discussion of the history of attorney disciplinary proceedings in Michigan and the concerns that prompted this Court to create the ago and adb.
MCR 9.115(J) provides:
(1) The hearing panel must file a report on its decisions regarding the misconduct charges and, if applicable, the resulting discipline. The report must include a certified transcript, a summary of the evidence, pleadings, exhibits and briefs, and findings of fact. The discipline section of the report must also include a summary of all previous misconduct for which the respondent was disciplined or admonished.
(2) Upon a finding of misconduct, the hearing panel shall conduct a separate hearing to determine the appropriate discipline. The hearing on discipline shall be cortducted as soon after the finding of misconduct as is practicable and may be held immediately following the panel’s ruling that misconduct has been established.
(3) If the hearing panel finds that the charge of misconduct is established by a preponderance of the evidence, it must enter an order of discipline. The order shall take effect 21 days after it is served on the respondent unless the panel finds good cause for the order to take effect on a different date, in which event the panel’s decision must explain the reasons for ordering a different effective date, hi determining the discipline to be imposed, any and all relevant evidence of aggravation or mitigation shall be admissible, including previous admonitions and orders of discipline, and the previous placement of the respondent on contractual probation.
(4) If the hearing panel finds that the charge of misconduct is not established by a preponderance of the evidence, it must enter an order dismissing the complaint.
(5) The report and order must be signed by the panel chairperson and filed with the board and the administrator. A copy must be served on the parties as required by these rules.
MCR 9.117 governs the hearing procedure when the adb assigns a complaint to a master:
If the board assigns a complaint to a master, the master shall hold a public hearing on the complaint and receive evidence. To the extent that MCR 9.115 may be applied, it governs procedure before a master. After the hearing, the master shall prepare a report containing
(1) a brief statement of the proceedings,
(2) findings of fact, and
(3) conclusions of law.
The master shall file the report with a hearing panel designated by the board and serve a copy on the administrator and the respondent. Within 14 days after the report is filed, the administrator or the respondent may file objections to the report and a supporting brief. The panel must determine if the record supports the findings of fact and the conclusions of law and impose discipline, if warranted. Further proceedings are governed by MCR 9.118.
MCR 9.118(A) grants the grievance administrator, the complainant, and the respondent the right to petition the adb to review a hearing panel order. In response, the adb shall issue an order to show cause why it should not affirm tile hearing panel order. MCR 9.118(B). MCR 9.118(C), (D) govern the hearing before the adb and the form of the ADB’s decision. Under MCR 9.118(C),
(1) A hearing on the order to show cause must be heard by a subboard of at least 3 board members assigned by the chairperson. The board must make a final decision on consideration of the whole record, including a transcript of the presentation made to the subboard and the subboard’s recommendation. The respondent shall appear personally at the review hearing unless excused by the board. Failure to appear may result in denial of any relief sought by the respondent, or any other action allowable under MCR 9.118(D).
(2) If the board believes that additional testimony should be taken, it may refer the case to a hearing panel or a master. The panel or the master shall then take the additional testimony and make a supplemental report, including a transcript of the additional testimony, pleadings, exhibits, and briefs with the board. Notice of the filing of the supplemental report and a copy of the report must be served as an original report and order of a hearing panel.
MCR 9.118(D) governs the ADB decision:
After the hearing on the order to show cause, the board may affirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline. A discipline order is not effective until 21 days after it is served on the respondent unless the board finds good cause for the order to take effect earlier.
State Bar Grievance Administrator v Del Rio, 407 Mich 336, 350; 285 NW2d 277 (1979); see also Grievance Administrator v Deutch, 455 Mich 149, 166; 565 NW2d 369 (1997) (“attorney misconduct cases are fact-sensitive inquiries that turn on the unique circumstances of each case”).
See, e.g., Grievance Administrator v Rostash, 457 Mich 289, 298; 577 NW2d 452 (1998), and In re Grimes, 414 Mich 483, 490; 326 NW2d 380 (1982).
Although the adb, through its decisions, has articulated disciplinary ranges for some of the most common misconduct, hearing panel and adb decisions are not published. Adb decisions from October 1978 through the present are, however, now available on the adb website, www.adbmich.org, as well as on the Michigan Lawyers Weekly website (Michlaw.com/miadb.htm). Further, adb decisions from 1988 to the present are available in a computer software package available from the State Bar.
Our court rules authorize the adb to review the hearing panel’s decision de novo. MCR 9.118(D). This Court, in turn, has broad authority to change the adb disciplinary order. MCR 9.122(E). We nonetheless employ different standards of review depending on the nature of the issue raised by the parties. As always, we review questions of law de novo. See, e.g., Deutch, n 9 supra (considering whether hearing panels have the authority to dismiss disciplinary proceedings at an initial misconduct hearing when the Grievance Administrator provides proof of a violation of MCR 9.104[5]). In contrast, we review the adb finding of misconduct to determine whether proper evidentiary support exists on the whole record. Grimes, n 10 supra at 490. This standard is akin to the clearly erroneous standard we use in reviewing a trial court’s findings of fact in civil proceedings. See MCR 2.613(C). Finally, in practice, we grant some deference to the adb determination of the appropriate sanction because we will change the order only if the sanction imposed is inappropriate. Rostash, supra at 297. Use of the aba standards by the adb and hearing panels, however, may justify a more deferential standard for reviewing the adb sanction decision. In light of our decision to adopt the aba standards, we will consider amending MCR 9.122(E) to afford greater deference to the adb determination of the appropriate sanction for lawyer misconduct.
We caution the adb and hearing panels that our directive to follow the aba standards is not an instruction to abdicate their responsibility to exercise independent judgment. Where, for articulated reasons, the adb or a hearing panel determines that the aba standards do not adequately consider the effects of certain misconduct, do not accurately address the aggravating or mitigating circumstances of a particular case, or do not comport with the precedent of this Court or the adb, it is incumbent on the adb or the hearing panel to arrive at, and explain the basis for, a sanction or result that reflects this conclusion.
A discovery dispute that generated two applications for leave to appeal to this Court delayed the hearing in this matter.
The 1971 Code of Professional Responsibility and Canons govern this case because the acts underlying the allegations of misconduct occurred before the effective date of the Michigan Rules of Professional Conduct. DR 7-110(A) stated that “[a] lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal.”
DR 1-102(A)(5) provided that a lawyer shall not “[ejngage in conduct that is prejudicial to the administration of justice.”
MCR 9.104(1) provides that “conduct prejudicial to the proper administration of justice” is grounds for discipline.
DR 1-102(A) provided that a lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
DR 7-110(B) provided:
In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
(1) In the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(4) As otherwise authorized by law.
MCR 9.104(l)-(4) provide:
The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for disci pline, whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good morals;
(4) conduct that violates the standards or rules of professional responsibility adopted by the Supreme Court ....
The hearing panel found as follows:
The panel heard testimony from respondent, Judge Roman Gribbs, Judge Martin Clements, Monica Linkner, Ronald Dzierbicki, and Robert Rathke on this issue.
The panel finds, after hearing all testimony, that respondent argued the case of Luszczynski v Henry Ford Hospital, Court of Appeals #84686 in front of Court of Appeals Judge S. Jerome Bronson, Roman Gribbs, and Martin Clements. Respondent testified that Judge Bronson, in the interest of expediting oral arguments, asked respondent to brief two new cases which had been decided by the Supreme Court after briefs were filed in the Luszczynski case. Monica Linkner, an attorney in respondent’s law firm, prepared a written memorandum addressed to Albert Lopatin. In it, she recapped what had occurred at oral argument, and discussed the new Supreme Court cases which respondent had brought to the Court’s attention during orals.
Mr. Rathke testified that Judge Bronson gave him a handwritten memorandum to be used in drafting the Luszczynski opinion. Rathke testified that it was the only time Judge Bronson had ever given him any type of written document from which to draft an opinion.
Judge Bronson’s handwritten memorandum and the memorandum written by Linkner appear to be one in the same document. The language is almost identical and there is the same mistaken citation of a court rule appearing in both documents.
Testimony indicates that respondent’s memorandum was not properly served on the Court, the other panel judges or opposing counsel. There is no proof of service in the Court file, or in respondent’s file, and Judge Gribbs and Judge Clements both testified that they had never received the memorandum.
The panel finds that Mr. Lopatin caused a copy of the memorandum prepared by Linkner to be sent or otherwise communicated to Judge Bronson without proper notice to opposing counsel and the other panel members. Accordingly, the panel finds a violation of MCR 9.104(1-4) and Canons 1 and 7 of the ten applicable Code of Professional Responsibility, [DR 1-102(A)(1, 5, 6) and DR 7-110(B)].
The hearing panel’s complete findings regarding count m are attached to this opinion as an appendix.
Aba Standard 6.31(b) states that disbarment is generally appropriate when a lawyer “makes an ex parte communication with a judge or juror with intent to affect the outcome of the proceeding, and causes serious or potentially serious injury to a party, or causes significant or potentially significant interference with the outcome of the legal proceeding
Aba Standard 6.32 states that “[s]uspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.”
See MCR 9.106(2).
The “doctrine exists primarily to ‘maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.’ ” Looricchio v Evening News Ass’n, 438 Mich 84, 109; 476 NW2d 112 (1991), quoting Wright, Miller & Cooper, Federal Practice & Procedure, § 4478, p 788. It is premised on a need for finality of judgment and the want of jurisdiction of an appellate court to modify its judgment except on rehearing. Johnson v White, 430 Mich 47, 53; 420 NW2d 87 (1988).
The dissent erroneously analogizes this case to Johnson, n 26 supra. In Johnson, this Court’s denial of the application for leave to cross appeal had no effect on the application of the law of the case doctrine. Even if the plaintiff in Johnson had not applied for leave to cross appeal, the law of the case doctrine would have barred the Court of Appeals from revisiting the issue on remand because the Court had decided the issue in its ini tial opinion and the facts remained materially the same. CAF Investment Co, supra at 454. In this case, in contrast, the intermediate appellate tribunal, the adb, did not review the hearing panel decision to impose a forty-five-day suspension before this Court entered the order remanding this case. Moreover, to the extent that the adb’s initial decision to reprimand respondent could be construed as rejecting the options of suspension or disbarment, law of the case would not preclude the adb from revisiting those issues because, in light of the hearing panel’s additional findings and modification of the sanction, the facts are materially different. Id.
The Bronson memo drops one “the” and one right parenthesis, but is otherwise identical to the quoted language.
As to the lunch issue:
“[Panel Chair]: There are things here that I don’t think are in dispute.
“We obviously haven’t seen the two calendars that have been referred to. But my suggestion is that if you compare those and talk to counsel on the other side you might be able to agree.
“And Mr. Lopatin has testified that he may have had lunch once or twice during this period of time with Judge Bronson.
“Is that something that can be stipulated to?
“Mr. Miller: Sure.
“Mr. Cunningham: I believe his testimony was different.
“[Panel Chair]: Well, they’re willing to stipulate to it now.
“My notes indicate that there were contacts; once at a fundraiser for Jessica Cooper that may have been during that period of time. That’s something that with a little research you guys can stipulate to; two, that based on—and I’m assuming here—Ms calendar and Judge Bronson’s calendar, you can agree on when or if they had lunch. . . . [Tr 560-561.]”
Of course, the original would still have to be filed with the clerk.
Indeed, respondent’s theory presumes that his secretary or clerk have standing instructions of some sort. Otherwise, he would not be able to just say “file this.”
Linkner testified that she had no idea how the memo got to the Court of Appeals (Tr 1262), but that she is certain she did not arrange for service of the memo on Bronson, and that respondent did not instruct her to do so (Tr 1254). | [
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Markman, J.
Following a jury trial, defendant was convicted of first-degree felony murder, MCL 750.316(l)(b); MSA 28.548(l)(b), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; MSA 28.424(2). The Court of Appeals affirmed the trial court’s reversal of defendant’s convictions, agreeing that defendant had been denied the effective assistance of counsel. The Court of Appeals also found that the admission of testimony regarding statements made by defendant to a forensic psychologist in contemplation of interposing an insanity defense was error requiring reversal. We hold that any error stemming from the introduction of defendant’s statements to the forensic psychologist was harmless and that defendant was not denied his constitutional right to the effective assistance of counsel. Consequently, we reverse the judgment of the Court of Appeals.
i
Defendant’s convictions arose from events that occurred sometime around 10:30 P.M. on the night of November 29, 1993, when Steve Burge was shot , in the face and doused with gasoline at the front door of a residence he shared with Margo DeVita (now known as Margo McPherson) and her two children. Margo testified that she had temporarily cohabited with defendant on two prior occasions under circumstances that she described as platonic. However, during the second of these periods, which lasted about a month, defendant began making unwelcome sexual overtures, and personal items went missing from Margo’s bedroom. After an incident when defendant tried to imprison Margo in his house, she moved in with her mother until she was able to lease a unit in a duplex house. Steve, Margo’s boyfriend, later moved in with her. In the months before the killing, Margo observed defendant drive past this house on numerous occasions, and, once, defendant stopped in and offered to pay Margo’s rent if Steve would move out.
Margo testified that on the night of November 29, 1993, someone kicked the front door open while she was half-asleep on the couch and Steve was watching football on television. Margo ran to her children in another room, and later came out to find Steve stum bling back through the front door, dripping with gasoline and bleeding profusely from a gunshot wound to the cheek. Through the window, Margo saw a man of defendant’s build, wearing a mask and light colored surgical gloves, struggle with her neighbor, Danny Parenteau, and then run away. After Steve was transported to the hospital, Margo observed an unfamiliar hat with hair attached to it in her living room, a gas can in front of her house, and a mask near the gas can. She reported to the police her suspicions that defendant was the assailant.
Danny Parenteau testified that on the night in question, he was watching football on television when he heard a gunshot from the house across the street. Danny ran outside and observed Steve and another man struggling inside the front door of Steve’s house. Steve forced the other man out of the house, and, when Danny approached to assist, he noted that Steve was covered with blood. As Steve collapsed, he shoved the other man away. Danny realized that this other man, who had also fallen to the ground, was armed with a gun, so Danny seized this man’s wrist and called to his brother, Russell, for help. The man smelled of gasoline, was wearing white, see-through gloves, and fired off several shots that Danny was able to direct away from himself. Russell came to help, but took cover behind a tree when the assailant shot toward him. As this was occurring, Danny observed Steve get back up, while holding his throat, and make it through his front door before again collapsing.
Danny tried to drag or carry the armed man, but when Danny stumbled and lost his grip, he ran for cover for fear of being shot. The man was not wean ing a mask at this point and he ran to a car, which Danny recognized as one that he had observed cruise past Margo’s house on four or five occasions. Danny was able to identify defendant at a police lineup as the man with whom he had struggled. Russell Parenteau, who lived with Danny, corroborated his brother’s account and added that the assailant ran to a car that was parked next to the home of another neighbor, John Talarico.
John Talarico testified that he lived next door to Steve and Margo and that, on the night in question, he heard gunshots just after he got out of the shower, so he looked out his window and saw a gunman wrestle with Danny and shoot toward Russell. From a distance of fifty feet, John observed the gunman’s face and identified him as defendant. Defendant departed in a car that John recognized as one that he had observed cruise slowly by on several occasions, once with its lights out.
Donald Lumm, a neighbor who lived around the comer from Margo and Steve, testified that on the night of November 29, 1993, he was in his kitchen when he heard several shots. Donald then heard squealing tires and, through his kitchen window, saw a vehicle “take off really quick.” Donald identified a photograph of defendant’s car as the one he saw that night.
Steve died from what was determined to be a single gunshot wound to the right side of his jaw, with the bullet traveling down through his neck. From the scene, the police recovered: a white towel soaked in gasoline, a hat with a wig sewn to it, several .38 caliber bullet casings, a mask found between the sidewalk and curb, and a fingertip from a “rubber” glove. The front screen door was broken outward and covered with blood, but there was no visible damage to the interior door. There was also blood outside the house, around the door area and on the grass. A subsequent search of defendant’s house turned up a large quantity of the type of gloves used by meat packers. Hairs were retrieved from the mask and hat, which were later determined to be similar in all respects to a sample of defendant’s hair. Fingerprints recovered from tape attached to the mask were later determined to be those of defendant.
The police began staking out defendant’s house on the night of the killing, and defendant was stopped in his automobile and taken into custody at 7:30 A.M. the following morning. The officers detected a strong smell of gasoline from defendant’s vehicle and hat. After an attempted arraignment, where there was some discussion regarding count five in the multiple count warrant, defendant was overheard to make the following unsolicited statement: “They count five. They say I killed five people. I only kill one. Why do they count five now?”
Defendant, whose native language is Arabic, testified at trial through an interpreter, although he frequently answered questions in English. His testimony described his relationship with Margo, during the twelve days she first lived with him as that of a husband and wife, just as it was when she again stayed with him. Margo allegedly began stealing from defendant and only moved out the second time after defendant assured her that he would be her boyfriend and would come to visit her everyday and pay the rent. However, when defendant came over after working late one night, he found Margo in the company of “John” and “Don.” The three of them were drunk and Margo was wearing only a slip. After that, defendant stopped going to Margo’s house.
According to defendant, around 3:00 P.M. on the day of the incident, Margo came to defendant’s home and demanded that he sign over his house, and car to her. She also commanded him to give her all the money he had in the bank, and to vacate the house, taking only his clothes, but leaving the furniture. Defendant refused, so Margo took his car. She returned later, along with her children, in a different car, claiming that defendant’s car was broken and that Steve had taken it to get it fixed. Margo drove defendant to her house, and he played with Margo’s children while waiting for Steve to return with defendant’s car. Margo’s daughter brought a mask into the room and defendant and the children played with it.
The events that defendant next described are somewhat muddled by the circumstances that gave rise to the trial court and the Court of Appeals determinations that defendant was denied the effective assistance of counsel. Specifically, defense counsel failed to clarify who defendant was identifying as his story unfolded. Defendant mispronounced certain names, and the interpreter made certain incorrect translations of what defendant said. However, as it was told to the jury, somebody named “Cherry” arrived, then within ten minutes Steve came home and denied being in possession of defendant’s car. Margo then said that John had defendant’s car. Then John, Jim, and “Rose” (and apparently “Don”) entered the residence, with John and “Don” being armed with what the inteipreter described as “a small gunshot, black” and a shotgun. These men ordered defendant to pay a $3000 drug debt owed by Margo, and defendant tried to talk them into postponing payment until the next day. John ordered defendant to sign a piece of paper, but defendant crushed it and threw it back in John’s face.
The juiy heard that John drew his gun while Margo yelled “kill him outside.” Steve tried to grab John’s hand, and defendant began fistfighting with “Jimmy.” Defendant’s blows caused Jimmy to bleed and run away, so defendant then engaged “Rose” in a fight that began inside and continued outside on the concrete. Defendant heard a shot and then “Cherry” came out and said “John kill Steve.” Then John emerged from the house holding a black gun that had a nine-shot capacity. John ran “to Don Andrews,” then “Don” came out of the house and tried to hit defendant with his shotgun, so defendant began fighting “Don” and “Rose” simultaneously. Defendant disabled “Don” with a kick between the legs, then made his way down the street where he found his car and effected an escape.
Defendant then recounted that he went home and had a beer. Feeling hungry, he went out for a kabob, and stopped at a store. After returning home, he drank a second beer, then slept until it was time to get up for work. He was stopped and arrested on his way to work the next morning.
Although defendant did not raise insanity as a defense at trial, he was cross-examined, over a defense objection to inadequate foundation, regarding whether he gave a version of the relevant events to Dr. Mae Keller, a clinical psychologist who had interviewed him pursuant to a notice that he intended to interpose an insanity defense. Defendant was further questioned regarding a different version that he had supposedly given to Keller. Keller was then permitted to testify, over a defense objection on the basis of privilege, as a rebuttal witness that defendant described routine activities on the day and night in question, and that these activities did not include even being at Margo’s house.
Following defendant’s sentencing, the Court of Appeals granted his motion to remand for a Ginther hearing on defendant’s claim that he was denied the effective assistance of counsel. At that hearing, defendant testified that: “Cherry” was Steve’s girlfriend, “Jimmy” was Cherry’s brother and Margo’s boyfriend, “Don” was prosecution witness Danny Parenteau, “Rose” was prosecution witness Russell Parenteau, and “John” was prosecution witness John Talarico. Errors by the interpreter at trial were noted. Defendant had not said that John entered holding a “gunshot,” but had stated that John entered, then “Don” entered holding a small black machine gun. Also, defendant had not said that John was running “to Don Andrews,” but had said that John was running “to Don and Rose’s,” meaning that John ran toward the house of Danny and Russell.
Defendant’s trial counsel testified that he did not notice that defendant was saying “Rose” instead of “Russ” and “Don” instead of “Dan,” and that it was possible that he had become accustomed to his client’s accent. Further, defendant’s counsel conceded that from his first contact with defendant until the end, defendant made major adjustments in his story. Originally defendant claimed not to have been present at Margo’s on the night of the killing. The evolving events, as defendant claimed to remember them, formed the basis for the defense theory of the case.
The trial court found that defense counsel had been ineffective on the basis of a number of factors. The Court of Appeals affirmed a subsequent order granting a new trial on the basis of counsel’s failure to present defendant’s side of the story in clear terms, as well as the admission of the testimony of the forensic psychologist.
n
We first address the admission of testimony regarding statements made by defendant to a forensic psychologist in contemplation of interposing an insanity defense. The Legislature has provided:
Statements made by the defendant to personnel of the center for forensic psychiatry, to other qualified personnel, or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issue other than his or her mental illness or insanity at the time of the alleged offense. [MCL 768.20a(5); MSA 28.1043(1)(5).]
This is a clear expression by the Legislature that these statements cannot be admitted at trial except on the issue of insanity, and it is also clear that, under the precedent that the trial court was obligated to follow, no exception to this rule existed for impeachment. See People v Jacobs, 138 Mich App 273, 276-278; 360 NW2d 593 (1984). Hence, the admission of testimony regarding these statements was error, but the question remains whether this was error that now requires reversal.
Defense counsel objected to the testimony of the forensic examiner on the ground that the communication was privileged. The communication was, in fact, privileged from admission for any purpose other than defendant’s mental illness or insanity at the time of the alleged offense. MCL 768.20a(5); MSA 28.1043(1)(5); Jacobs, supra at 276-278. However, had the proper statutory provision and controlling case law been brought to the trial court’s attention, the trial court surely would not have admitted the now challenged statements and testimony. Hence, the trial court’s decision was nothing more than an erroneous evidentiary ruling at trial. Nonetheless, the dissent would bootstrap this mistake into constitutional error by asserting that the statutory scheme requiring defendant to cooperate with the examiner on pain of losing the insanity defense placed him in a coercive situation. That is, claims the dissent, defendant was forced to choose between his constitutional right to assert a substantial defense or to give up his constitutional privilege to be free from compelled self-incrimination. With all respect to the dissent, we fail to see when defendant was actually put to such a choice.
It is well settled that the right to assert a defense may permissibly be limited by “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence,” Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). This Court has previously recognized that limitations placed on raising the insanity defense, pursuant to the procedures established in MCL 768.20a; MSA 28.1043(1), do “not unconstitutionally infringe on a defendant’s right to present a defense.” People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984).
If the established rules of procedure found in MCL 768.20a; MSA 28.1043(1) do not impermissibly limit a defendant’s right to assert the insanity defense, it follows that no aspect of defendant’s decisions regarding: (1) providing notice of intent to raise the defense; (2) cooperating with the examiner; or (3) abandoning the insanity defense, was the product of impermissible coercion. The eventual erroneous ruling by the trial court, which occurred well after both the exami nation and defendant’s decision to abandon the insanity defense, could not have reasonably been anticipated by assessing the extant rules of procedure. If the mere possibility that a court will apply the law incorrectly gives rise to a justified reluctance to provide full disclosure to the examiner or to avail oneself of an available defense, then defendant’s right to present an insanity defense would have been equally infringed even if the trial court had later correctly refused to admit any testimony regarding his statements to the examiner. This is so because any coercion to defendant’s detriment was complete by the time the court ruled on this issue.
Likewise, we cannot accept the dissent’s position regarding the effect on future defendants of affirming defendant’s convictions. The dissent assumes that a failure to reverse defendant’s conviction will have a chilling effect on access to the insanity defense. The dissent reaches this conclusion despite our present conclusion that the admission of testimony regarding the forensic interview constituted error. Hence, its conclusion appears necessarily to be premised upon future disregard by the trial courts of this Court’s present holding.
The dissent also asserts that this error violated due process because defendant was lured into speaking with the forensic psychologist by a statutory promise that his statements would not be used against him at trial, and the admission of those statements broke that promise. We agree with the proposition that if a criminal defendant relies on a promise from the state and the state breaches that promise, the state must provide a remedy for any resulting due process violation. See, e.g., People v Gallego, 430 Mich 443; 424 NW2d 470 (1988). Fundamental notions of due process dictate that if the resulting breach contributes to a defendant’s conviction, reversal is warranted. See People v Wyngaard, 226 Mich App 681, 695; 575 NW2d 48 (1997) (Markman, J., concurring in part and dissenting in part). However, if every error in the application of a rule of evidence or criminal procedure was treated as a breach of a governmental promise, just as if it had been specifically made to an individual defendant as part of a plea bargain or to secure testimony, all trial errors would violate due process. While we are not oblivious to the similarity between this statute’s protection and a specific promise that a defendant’s statements will not be used against him, we conclude that the two are sufficiently distinguishable to justify a rejection of the proposition that every trial error effectively presents a constitutional violation. In any event, as we shall explain, our resolution of whether the error here rises to the level of a constitutional violation does not affect the outcome in this case.
Consequently, this is preserved nonconstitutional error, and our harmless error analysis entails the application of the rule this Court announced in People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). “The object of this inquiry is to determine if it affirmatively appears that the error asserted ‘undermine [s] the reliability of the verdict.’ ” Such error does not require reversal unless, in the context of the untainted evidence, “it is more probable than not that a different outcome would have resulted without the error.” Id.
The first step in determining whether this error was harmless is to assess its potential prejudice to defendant. The prosecutor, of course, introduced this evidence to impeach defendant’s credibility. To the extent that this was accomplished, it was achieved by the jury’s appreciation of a logical syllogism that goes something like this: (1) defendant lied to the forensic psychologist about the incidents in question; (2) this shows that defendant has a propensity for untruthfulness, particularly with regard to this incident; therefore, (3) the jury should not believe defendant’s trial testimony with regard to this incident. However, the prejudice of the tainted evidence cannot be measured in a vacuum. Rather it must be measured in context. By defendant’s own testimony, after being present at the killing of Steve Burge, he went home and did not call the police. He made no arrangements for his own personal security, but, rather, engaged in a number of routine activities such as going out to eat, stopping for groceries, getting a night’s sleep, and rising and going to work. Putting aside its limited believability, the best interpretation of this testimony that is consistent with defendant’s innocence is that defendant did not want to be drawn into the investigation of this killing and was going to pretend that he was not there. Consequently, there is very little additional prejudice to defendant from the jury learning that, at a subsequent point, he claimed that he was not present when Steve was killed. This is so because most of this prejudice was already present from defendant’s own untainted testimony, and defendant’s false statement to the forensic psychologist was consistent with the interpretation of defendant’s postkilling conduct that was the most favorable to him.
By contrast, the untainted evidence pointing to defendant’s guilt is overwhelming. In an unsolicited statement, defendant essentially admitted the crime, saying: “They count five. They say I killed five people. I only kill one. Why do they count five now?” Two eyewitnesses positively identified defendant as the assailant, and, by his own testimony, he was present when Steve was killed. Defendant claimed that he was the intended robbery or extortion victim of the real killers, but took no precautions for his safety, did not call the police, and engaged in routine behaviors immediately after the killing. Margo testified about a pattern of stalking by defendant that was corroborated by her neighbors. Defendant’s attempt to explain his frequent presence, by claiming that his promise to visit her everyday was the only way he could get Margo to move out of his house, defies common sense.
Defendant’s testimony is inconsistent with the physical evidence, while the testimony of Margo and her neighbors does not conflict. The fingertip of a rubber or latex glove found at the scene is consistent with Margo’s testimony that the masked assailant wore light colored surgical gloves, as well as the fact that there was a struggle during which Danny kept defendant from pointing his weapon at him. The possession by, and availability to, defendant of such gloves supports the prosecutor’s case. It is undisputed that Steve was not only shot in the jaw, but doused with gasoline. Defendant was arrested the next morning reeking of gasoline. The recoveiy of a hat with a wig sewn to it, along with a mask that had tape on it bearing defendant’s fingerprints, is consistent with the theory that defendant arrived at Margo’s house dressed in a manner calculated to conceal his identity. Defendant’s claim that Margo’s daughter brought the mask into the room and that defendant played with it, does not explain the wig-hat or why the mask was recovered by the police from the sidewalk in front of the house. Nor does anything in defendant’s account explain why he would calmly accompany Margo to her home, then bide his time in idle play with her children waiting for the return of his car, after Margo had supposedly demanded he give her his house, his furniture, and his money, and had stolen his car.
If someone named Cherry had come out of the house and said “John kill Steve,” that statement would have been inaccurate when made. Steve was alive and still conscious when the police arrived, and he remained alive for another twenty hours. It was decidedly convenient for defendant that Cherry would make this inaccurate statement, thus permitting defendant to be removed from the place of the killing, yet still be able to identify John as its perpetrator. Defendant’s story that Steve was shot inside the house while defendant was outside fighting others does not explain the large amount of blood found outside the house and on the broken exterior door. Defendant’s story that John emerged from the house carrying a gun that had a nine-shot capacity imputes knowledge to defendant that is unlikely under the circumstances that he recounted. Defendant’s claim to have prevailed in a fistfight with three men, two of whom were armed, is less than credible. Likewise, it appears to be a significant coincidence that defendant not only had his car keys with him, but was able to immediately locate his car when fleeing from armed assailants. By his account, his car had been taken from him earlier in the day and he was driven to Margo’s house in a different car.
On one side of the scale, we have the consistent testimony of several eyewitnesses, the physical evidence, and defendant’s unsolicited admission. On the other side, we have defendant’s version of events that would be unbelievable even if not contradicted. Given the damage that defendant’s own story did to his credibility, and the enormity of the untainted evidence, we conclude that any error stemming from the jury learning that defendant had, at some point, denied being at the scene to a psychologist was harmless. Defendant has not established that it is more probable than not that a different outcome would have resulted without the error.
In fact, the evidence in this case is so substantial that, even if we were to analyze this as constitutional error under a due process theory (e.g., that defendant was enticed to give up his privilege to be free from compelled self-incrimination and speak to the forensic examiner by the statutory assurance that his statements could not be used for the purpose for which they were ultimately admitted), we would, nevertheless, conclude that the error was harmless. It is clear to us that the prejudice from the improperly admitted evidence, in view of the untainted evidence, was harmless beyond a reasonable doubt.
ni
We next address the Court of Appeals holding that defendant was denied the effective assistance of counsel because his attorney failed to clarify his testimony so that it was presented in a way that was more comprehensible to the jury. Specifically, defendant contended, inter alia, that his trial counsel should have asked follow-up questions that would have clarified the action described by defendant and made it clear to the jury that the true offenders, as described by defendant, included all of the most damning of the prosecutor’s eyewitnesses.
For a defendant to establish a claim that he was denied his state or federal constitutional right to the effective assistance of counsel, he must show that his attorney’s representation fell below an objective standard of reasonableness and that this was so prejudicial to him that he was denied a fair trial. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). As for deficient performance, a defendant must overcome the strong presumption that his counsel’s action constituted sound trial strategy under the circumstances. People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). As for prejudice, a defendant must demonstrate “a reasonable prob ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different . . . ” Id. at 167. We conclude that counsel’s failure to elicit elaborative testimony from defendant was neither deficient nor prejudicial.
As defense counsel’s testimony at the Ginther hearing established, defendant’s story, as he claimed to remember it, evolved during the course of his representation from not having been at the scene of the crime, to being present, but not being the shooter. Defense counsel conceded that defendant’s latest version of events did not comport with the physical evidence. Under these circumstances, no reasonably competent attorney would have thought it advisable for defendant to relate his story in sufficient detail to enable its veracity to be checked by comparing it to the physical evidence or subjecting it to precise cross-examination.
The dissent states that, at the Ginther hearing, defense counsel “admitted having failed to prepare or review with defendant specific questions he would ask.” Post at 312. Actually, defense counsel denied failing to review with defendant the questions he would be asking, and only conceded that he “did not specifically write out the questions [he] was going to ask . . . Moreover, defense counsel testified that he visited defendant in jail a tremendous number of times to enlist defendant’s aid in preparing the defense. Defense counsel expressly stated, “we prepared [defendant] as best we could” and he estimated spending ten to twelve hours specifically preparing defendant to take the stand.
A defendant’s decision whether to testify on his own behalf is an integral element of trial strategy. For a variety of reasons, many defendants, under the advice of counsel, do not take the stand, presumably concluding that the advantages of doing so would be outweighed by the disadvantages. It is likely that a great many of those who do not take the stand would be less hesitant to do so if, like defendant, they could plausibly tell the jury that they did not commit the crime with which they are charged, while advancing an alternative exonerating theory in general and somewhat unintelligible terms, thus effectively precluding detailed cross-examination. Even if this was not counsel’s express plan, it would have been dangerously inept of him to intentionally provide defendant with the opportunity to offer more details such as the magazine capacity of John’s gun. The supposed language barrier in this instance provided defendant with a way for the jury to see him deny committing this crime, yet plausibly not let them hear his story in a manner in which its incredible nature was completely clear to them.
The dissent states that defense counsel did not testify that he thought defendant’s story was a fabrication and that defense counsel found that defendant’s story “made sense and rebutted the theory of the prosecution.” Post at 312. The closest that defense counsel’s testimony came to that proposition was when he stated:
Well, it’s troubling, you know, when you’re trying to prepare a defense and the client tells you one thing and the physical evidence clearly points in a different direction, and there are certain things you have to own, I mean, you have to bite the bullet when comes to certain things, but, ultimately, you know, what he told us seemed to make sense, some sense.
We cannot agree with the dissent’s characterization of this testimony in light of defense counsel’s acknowledgment that defendant made “major adjustments” in his story and that the theory of the defense was based on events of the evening as defendant ultimately “claimed to remember them.”
Moreover, finding that counsel was deficient presumes that, as of trial, defendant’s version of events was as developed as it was by the time of the Ginther hearing. Given counsel’s testimony about the evolving nature of defendant’s story, it is just as likely that, having sat through trial, defendant merely tried to cover as many details presented in the prosecutor’s case as possible, and he experienced trouble keeping his story and names straight. With the passage of time, and the assistance of a transcript, perhaps defendant was able to refine this story. This does not demonstrate that counsel was deficient at the time of trial for not knowing what defendant would later “remember.”
Finally, we fail to see how defense counsel's conduct could have been prejudicial to defendant, given not only the enormity of the evidence against defendant as discussed in part n, but also the fact that defendant’s clarified testimony (as elicited at the Ginther hearing) is hardly more believable than the somewhat garbled version presented at trial. It is not more believable that John was holding a machine gun than a shotgun, and, given that .38 caliber casings were found at the scene, defendant’s best alternative was to have the jury hear this weapon described as “a small gunshot, black.” The jury was not in possession of transcripts, so they would not necessarily have understood defendant’s mispronunciations in the same way as the transcriber (e.g., hearing “Rose” when defendant was referring to “Russ”). The defense theory was clear that a number of people who were present during the killing were trying to shift the blame to defendant. Under defendant’s version of events, these unclearly identified persons, out of necessity, would have included John Talarico, Danny Parenteau, and Russell Parenteau. Confusion by defendant about the exact identities of those trying to rob or extort him at gunpoint was consistent with his theory, and more believable than the potential “details” that defendant later demonstrated that he was capable of adding.
The Court of Appeals noted that defendant’s testimony offered the only direct rebuttal of the prosecutor’s theory. However, effective rebuttal is accomplished only if defendant’s testimony is believed. The problem with defendant’s clarified version is that it is so unbelievable that defendant was arguably better off letting the jury speculate about what he was really trying to say, and hoping the jurors would rely on defense counsel’s opening statement regarding what the facts would show. Consequently, defendant did not demonstrate that, by failing to clarify his testimony, his trial counsel’s performance fell below an objective standard of reasonableness and that this was so prejudicial that he was denied a fair trial. Rather, defendant’s trial was fundamentally fair and the verdict is reliable.
CONCLUSION
We hold that any error stemming from the admission of the testimony regarding statements given to a forensic psychologist by defendant in compliance -with MCL 768.20a; MSA 28.1043(1) was harmless. We also hold that defendant was not denied his right to the effective assistance of counsel on the basis of his counsel’s failure to ensure that his testimony about what occurred was presented to the jury in a different manner. Defense counsel’s performance was neither deficient nor prejudicial in this regard. Consequently, we reverse the judgment of the Court of Appeals and, because defendant raised issues in his cross appeal not addressed by the Court of Appeals, we remand this case to that Court for consideration of the unaddressed issues.
Weaver, C.J., and Taylor and Corrigan, JJ., concurred with Markman, J.
The jury convicted defendant on six counts: (i) second-degree murder, MCL 750.317; MSA 28.549, as a lesser included offense to a charge of first-degree, premeditated murder, MCL 750.316(l)(a); MSA 28.548(l)(a); (h) felony-firearm based on count i; (in) felony-murder based on arson or attempted arson; (iv) felony-firearm based on count rv; (v) felony-murder based on breaking and entering a dwelling with the intent to commit arson; and (vi) felony-firearm based on count v. The jury hung on two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, as well as two counts of felony-firearm based on those assault charges. At sentencing, the prosecutor elected to maintain the convictions on counts v and vi, and the trial court vacated the others.
Uncharacteristically, our recitation of the facts employs the first names of witnesses who were at or near the location of the shooting. This is necessary because the various parties’ first names are relevant to one of defendant’s claims.
Defendant worked as a meat cutter in a grocery store.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
At defendant’s preliminary examination, Margo testified that defendant had a relationship with a woman named either “Sheny” or “Cherry” Smith. At trial, Margo identified this person as Sherry. At the Ginther hearing, the prosecutor made an offer of proof that Janice Burge could testify that her son, Steve, did not have a relationship with anyone named “Cherry” and that Margo had been Steve’s girlfriend.
Legal insanity is an affirmative defense to a crime in Michigan. MCL 768.21a; MSA 28.1044(1). A defendant in a felony case who wishes to interpose an insanity defense, must serve written notice on the court and the prosecutor not less than thirty days before trial and submit to a court-ordered examination, relating to the claim of insanity, by personnel for the center for forensic psychiatry or other qualified personnel. MCL 768.20a(l) and (2); MSA 28.1043(1)(1) and (2). A defendant or the prosecutor may also obtain independent psychiatric examinations. MCL 768.20a(3); MSA 28.1043(1)(3). The failure by the defendant to fully cooperate in either the court-directed or independent examinations, bars the defendant from presenting testimony relating to insanity at trial. MCL 768.20a(4); MSA 28.1043(1)(4).
We express no opinion here on whether MCL 768.20a(5); MSA 28.1043(1)(5) requires a court to sit by while testimony known to the court to be perjury is introduced. We have previously stated that a defendant has “no right, constitutional or otherwise, to testify falsely . . . .” People v Adams, 430 Mich 679, 694; 425 NW2d 437 (1988).
See Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973); People v Whitfield, 425 Mich 116, 124, n 1; 388 NW2d 206 (1986); People v Hayes, 421 Mich 271, 278; 364 NW2d 635 (1984).
US Const, Am V; Const 1963, art 1, § 17.
People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999).
The dissent does not characterize defendant’s unsolicited statement as an admission. Bather, the dissent believes, given defendant’s poor command of the English language, that this could have been an expression of defendant’s incredulity at being charged with three counts of murder when only one man died. Post at 326-327. We find that to be a highly improbable interpretation of “I only ldll one.” We view it to be objectively more probable that reasonable triers of fact would interpret defendant’s statement as an expression of incredulity at being charged with what he thought were five murder counts after having only killed one person. This is particularly true in light of Margo’s testimony that defendant spoke and understood English reasonably well.
The dissent finds it reasonable that Margo “would not leave without assurances of [defendant’s] continued presence and her continued financial security.” Post at 325. We concede that it does not defy common sense for defendant allegedly to have agreed to onerous conditions in order to secure the departure from his house of an unwelcome thief. What more defies common sense is that defendant would adhere to such conditions after Margo had moved out and had established residence elsewhere.
The dissent latches onto an argument made by defense counsel at trial that, although Margo testified that the assailant kicked open her front door from the outside, the only damage was to the storm door, which was bent outward. Prom this, defense counsel argued that the door was damaged by someone trying to get out, and not by someone forcing their way in, and that this supported defendant’s version of events. However, Margo never testified that her interior door had been locked, there is no reason to presume that the doorknob was not turned before the kick was delivered, and Margo specifically stated on cross-examination that the door was not damaged when it was kicked open. Moreover, the fact that the exterior storm door was broken outward is consistent with Danny Parenteau’s testimony that he saw Steve fighting a man inside the front door of Steve’s house and that Steve forced the man out through that door.
The dissent discounts the overall implausibility of defendant’s testimony because, among other things: (1) a witness who saw someone shot in the face might have exclaimed that the person had been killed; (2) it is believable that defendant could have serendipitously found his car to effect an escape; and (3) defendant might have engaged in routine conduct after the killing out of shock, mental imbalance, or distrust for the police. However, we do not view these aspects of defendant’s story as conclusive evidence of his guilt. A brick is not a wall, and the credibility of defendant’s story cannot be measured by viewing its elements in isolation. Instead, we consider the entire panoply of improbable or highly coincidental elements in defendant’s testimony to be significant. This is particularly so in light of the more reasonable explanations that were offered by the prosecutor’s witnesses, which were consistent with the physical evidence.
Constitutional error is either structural and subject to automatic reversal, or it is nonstructural and requires reversal only if the improperly admitted evidence, in light of the properly admitted evidence, was not harmless beyond a reasonable doubt. Arizona v Fulminante, 499 US 279, 309-310; 111 S Ct 1246; 113 L Ed 2d 302 (1991); People v Anderson (After Remand), 446 Mich 392, 404-406; 621 NW2d 538 (1994). Even the admission of involuntary confessions, which was once considered to be structural error, is currently understood to be subject to harmless error analysis. Fulminante, supra at 308-310; People v Howard, 226 Mich App 528, 543; 575 NW2d 16 (1997). There is nothing about the error in this case that would compel a more rigorous test than that applied to coerced confessions.
It may well be that defense counsel’s failure to nail down the details of defendant’s story before trial was the only way that counsel could aid defendant in presenting his story within counsel’s ethical obligation not to knowingly offer evidence that counsel knows to be false. While a defendant may have the constitutional right to the effective assistance of counsel, this does not encompass the right to assistance of counsel in committing perjury. In fact, an attorney’s refusal to knowingly assist in the presentation of perjured testimony is not only consistent with his ethical obligations, but cannot be the basis of a claim of ineffective assistance of counsel. Nix v Whiteside, 475 US 157, 174-175; 106 S Ct 988; 89 L Ed 2d 123 (1986). See also United States v Grayson, 438 US 41, 54; 98 S Ct 2610; 57 L Ed 2d 582 (1978) (“Counsel ethically cannot assist his client in presenting what the attorney has reason to believe is false testimony”); Adams, n 7 supra, 430 Mich 694 (“there is no right, constitutional or otherwise, to testify falsely”); MRPC 3.3(a)(4) (“A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false”).
The dissent also suggests that defense counsel affirmatively asserted that it did not occur to him that clarification of defendant’s testimony was needed because counsel had become accustomed to defendant’s accent. In fact, defense counsel only conceded appellate counsel’s theory that it was possible that acclimation was the reason why he did not notice the mispronunciations.
The dissent does not accept that the prosecutor’s ability to cross-examine defendant was impaired by the fact that defendant’s direct testimony was not detailed. The prosecutor could possibly have exposed the weaknesses in defendant’s story by asking the clarifying questions that, according to the dissent, defense counsel should have asked. However, defense counsel was aware of the fact that defendant’s story was inconsistent with the physical evidence, whereas the prosecutor would have been on a fishing expedition. Although the prosecutor was not prohibited from clarifying defendant’s testimony, many experienced trial attorneys would agree that it is rarely sound practice to ask questions before the jury without first knowing the answer. Defense counsel may well have viewed the prosecutor as being reasonably competent when deciding on the merits of eliciting elaborative testimony from defendant.
In addition to Margo’s trial testimony that defendant understood and spoke English reasonably well, at the Ginther hearing, defense counsel testified: “when I first met with [defendant], he spoke to me in English, but I was always concerned that he didn’t understand the nuances of our language.”
The dissent claims that defense counsel’s decision not to clarify defendant’s version of events “allowed the prosecution to argue effectively that defendant’s testimony was a figment of his imagination, undermining his credibility in the eyes of the jury.” Post at 313. In fact, the prosecutor did ridicule defendant’s testimony as ludicrous and unintelligible. Although the prosecutor’s characterization of what the jury heard is valid, it is questionable whether defendant could have possibly fared better had the prosecutor and jury been privy to defendant’s “clarified version” at trial. The preliminary examination testimony reveals that Russell and Danny were watching Monday Night Football in the company of eight other friends and family members (including their mother, their sister, their sister’s boyfriend, and their sister’s children) when the first shot was heard. Would defendant have been better off if the prosecutor, having fully comprehended defendant’s version, called each of these individuals to testify in rebuttal that Danny and Russell were not at Margo’s when the first shot was heard? Would defendant have been better served if the clarified version had been presented and the prosecutor had noted in closing argument how impossible it would have been for the various members of this neighborhood to have conspired to frame defendant, including coming up with consistent stories and planting incriminating physical evidence, in the few minutes before the police arrived and while Steve was still conscious and speaking? As ludicrous and unintelligible as defendant’s testimony was, a more palatable alternative was not available to defense counsel.
The dissent misinterprets our position as arguing “that the reason defense counsel did not clarify his client’s testimony is because he believed it was fabricated.” Post at 312. Actually, we do not go so far as to presume that fact, but merely acknowledge that, when faced with a constantly evolving story from one’s client, a reasonably competent and ethical attorney might well elect to consciously maintain uncertainty with regard to his client’s explanation, and avoid highlighting details of that explanation that are inconsistent with the physical evidence or that are otherwise highly suggestive of the explanation’s falsity.
The dissent seeks our comment on the fact that the jury deliberated for two and a half days before convicting defendant on only six of the ten charges. To the dissent, this demonstrates that the jury was reluctant to convict defendant. The dissent further reasons that this means that the evidence against defendant on the counts of which he was convicted was not overwhelming, and that what the dissent perceives to be counsel’s errors were necessarily prejudicial. Post at 313-314, 327-328. We are not persuaded by the dissent’s reasoning. All that the record reveals is that, after two and a half days of deliberation, the jury informed the court that it had reached verdicts on the first six charges, but was deadlocked eleven to one, and ten to two on the charges of assault with intent to commit murder regarding Danny and Russell Parenteau, along with the concomitant charges of felony-firearm. After receiving the verdicts on the first six counts, the court declared a mistrial on the remaining charges.
We know of no sound method or good reason for attaching significance to the amount of time jurors spend deliberating. Perhaps they agreed on the first six charges in an hour and spent the rest of the time debating the counts on which they eventually could not reach consensus. Given that this jury must have rejected defendant’s version of events in order to convict him of the first six charges, if we were forced to speculate regarding the significance of the jury becoming deadlocked, we would most likely conclude that the jury could not agree on whether it had been proven that defendant had formed the specific intent to murder Danny and Russell Parenteau. Although this is admittedly speculation, which deserves no more credence than the dissent’s speculation, it exposes the error in the dissent’s determination that the jury was reluctant to convict defendant. Our present holding is not premised on overwhelming evidence of defendant’s intent to murder Danny and Russell, and there is nothing from which to conclude that the jury was reluctant to convict on the counts where it did so. Moreover, the limited success of achieving a mistrial on four counts could easily be viewed as a testament to the efficacy of counsel’s chosen strategy, rather than as evidence of deficient performance that was prejudicial to defendant.
The dissent concludes that “allow[ing] defendant’s convictions to stand malees a mockery of the law’s concern for a fair trial and damages public respect for the judicial process.” Post at 328. Respectfully, such hyperbole is hardly supported by a thorough review of the record. No trial is error free, and, in our judgment, “public respect” for the judicial process is justifiably diminished when criminal convictions are set aside on the basis of mistakes that do not truly prejudice the defendant or damage the integrity of the criminal justice system. We leave it to the public itself to determine which of the alternative opinions in this case is more genuinely “damaging of public respect” for the judicial process. | [
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Corrigan, J.
We granted the prosecution’s application for leave to appeal to decide whether the trial court had a duty to grant a continuance on its own motion in response to newly discovered evidence. We conclude that it did not, and that defendant is not otherwise entitled to a new trial on the basis of the alleged discovery violations. Accordingly, we vacate the judgment of the Court of Appeals, which reversed defendant’s jury trial conviction of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and remand for consideration of defendant’s remaining appellate issues.
I. FACTUAL BACKGROUND
Defendant lived with his girlfriend and her two-year-old son. Defendant and the young child were taking a bath together, on defendant’s suggestion, when the mother heard her son screaming. When she entered the bathroom, her son was crying and shaking. Neither defendant nor the child were dressed. Defendant explained that the boy fell and almost hit his head. When the mother noticed some blood between her son’s buttocks, she asked defendant to drive her and the child to the hospital. Defendant refused and suggested that they wait until the next day to see if the boy’s injuries improved.
The child’s mother then enlisted the aid of her second cousin, who picked them up and drove them to the hospital. When the cousin first arrived at the house she observed that the child’s bottom was swollen, bruised, and covered with dried blood. As they drove to the hospital, the child was saying “Chad butt.” He said the same thing at the hospital when he saw his grandmother. In the emergency room, Scott Randall, D.O., examined the boy. Dr. Randall observed swelling, redness, bruising, and two fissures, or tears, around the anus. Concerned that the child may have been the victim of sexual abuse, Dr. Randall obtained a “criminal sexual conduct kit” and contacted the local police department.
When questioned by the police immediately after the incident, defendant denied any improper sexual conduct with the boy. Defendant speculated that the child’s injuries may have been caused by falling onto the spout of the bathtub. In a written statement, defendant explained that the child slipped in the tub as he was standing up and attempting to put his toys away. A few months later, the police questioned defendant a second time. In his second police interview, defendant changed his story and explained that he had attempted to place his smallest finger into the child’s anus. When the officer opined that a penetration by just the tip of defendant’s finger was inconsistent with the boy’s injuries, defendant explained that he placed his finger into the child’s rectum up to his second knuckle and made a “c” motion.
Dr. Randall opined that the child’s injuries were not consistent with a fall or with the insertion of a finger, but that they were consistent with penetration by an adult penis. In collecting evidence for the criminal sexual conduct kit, Dr. Randall performed two dry swabs of the boy’s rectum. Tests of these dry swabs conducted at the Michigan State Police Laboratory revealed no evidence of semen. In addition to the dry swabs, Dr. Randall took two wet swabs. Dr. Randall explained that a wet swab, or “wet prep,” would be more effective than a dry swab for obtaining sperm from dry areas such as the rectum. When Dr. Randall later looked at the results of the wet prep under a microscope, he observed two sperm fragments.
Defendant did not testify or present any proofs. The jury found defendant guilty of first-degree criminal sexual conduct and the trial court sentenced defendant to a term of fifty to seventy-five years imprisonment.
II. DEFENDANT’S MOTION TO SUPPRESS
The issues before the Court involve Dr. Randall’s observation of sperm fragments in the wet swab sample taken from the victim. Before trial, Dr. Randall had not told anyone involved in the criminal investigation that he had observed sperm fragments under a microscope. Nor did he tell anyone that he had obtained a laboratory test on the wet swab sample.
Defendant filed a discovery request in which he sought material available under MCR 6.201, including exculpatory evidence, documents, reports produced by or for expert witnesses, descriptions of physical evidence to be introduced at trial, and the opportunity to inspect physical evidence. In response to this request, the prosecution furnished defendant with a copy of the emergency room report signed by Dr. Randall. The emergency room report contained a notation by Dr. Randall explaining that he had discussed the case with another physician who “suggested wet prep/ GC/ Chlamydia Culture and attemt [sic] for motile sperm slide which were obtained.” Also on the emergency room report, within a section entitled “present medications,” appeared the words “Wet prep, GC, Chlamydia Culture, Motile Sperm.” Although Dr. Randall had testified at defendant’s preliminary examination, neither the prosecution nor the defense questioned him about the meaning of the notations on the emergency room report or about whether he had observed any evidence of semen or sperm on the victim. This fact suggests that neither party paid particular attention to the “wet prep” and “motile sperm” notations on the emergency room report.
On the morning of the first day of defendant’s two-day trial, Dr. Randall informed the prosecutor, for the first time, that he had observed sperm fragments recovered from the victim. Dr. Randall and the prosecutor also reviewed the results of laboratory work that had been performed on the wet swab sample. Dr. Randall had seen the results of the wet swab laboratory report for the first time only three days earlier. As soon as the prosecutor learned of Dr. Randall’s observations of sperm, he immediately informed defense counsel. Until Dr. Randall’s disclosure, neither party had known of any evidence indicating the presence of sperm. Defense counsel conceded at trial and again at sentencing that the prosecutor had not been advised of the presence of sperm until the first day of trial.
At the beginning of the second day of trial, the parties informed the trial court of Dr. Randall’s disclosure, at which time defendant moved to suppress Dr. Randall’s proposed testimony regarding the sperm fragments. Defense counsel argued that it would be unfair to allow Dr. Randall to testify about the presence of sperm because defendant was not made aware of that evidence before trial. The trial court denied defendant’s motion to suppress, reasoning that defendant was put “on notice” of the possibility that Dr. Randall had recovered sperm from the victim by the notations on the emergency room report referencing “wet prep” and “motile sperm.” The trial court further explained that Dr. Randall had no duty to volunteer the information at the preliminary examination in the absence of a specific question, and that there was no evidence that Dr. Randall had answered any question falsely. Although neither party had actual notice before trial of the presence of sperm, neither requested a continuance on the record.
m. THE .COURT OF APPEALS OPINION
On appeal to the Court of Appeals, defendant argued that the trial court abused its discretion in denying his motion to suppress the evidence of sperm that neither party learned about until the first day of trial. Seeing the issue in a different light, the Court of Appeals reversed on the ground that the prosecutor committed specific discovery violations when it failed to make the wet swab laboratory report and the wet swab sample available to defendant immediately after Dr. Randall’s surprise disclosure. In reaching this conclusion, the Court of Appeals first rejected the trial court’s conclusion that the writing on the emergency room report put defendant “on notice” of the possible discovery of sperm. It explained that, when viewed in context, there was no reasonable way that the rather obscure words on the emergency report could have afforded defendant notice that evidence of sperm had been discovered. The Court of Appeals then con- eluded that the wet swab laboratory report was discoverable under MCR 6.201(A)(3), as a report prepared for an expert witness, and that the wet swab sample was discoverable under MCR 6.201(A)(6), as tangible physical evidence.
After finding the discovery violations, the Court of Appeals rejected the prosecutor’s argument that, in the absence of a specific request for a continuance, the trial court was excused from remedying the potential prejudice. The panel explained that, although the trial court was not obligated to exclude the evidence, some remedy, “such as a continuance and the opportunity to examine the evidence regarding the presence of sperm,” was required. The Court of Appeals next explained that defendant’s case was prejudiced by the discovery errors because they left him without an opportunity to “scientifically evaluate” the wet swabs, examine the laboratory report for inconsistencies, or to “intelligently” cross-examine Dr. Randall. In particular, the panel opined that defendant could not be expected to be prepared to meet Dr. Randall’s testimony on such short notice without access to the laboratory report or physical evidence itself. Finally, the Court of Appeals stated that the errors were not harmless.
IV. DISCOVERY ISSUES
The Court of Appeals found error in the prosecutor’s failure to make the wet swab laboratory report and the wet swab sample itself available to defendant immediately after Dr. Randall’s surprising trial-day disclosure regarding the presence of sperm. This conclusion was not warranted on the basis of defendant’s argument or the record on appeal.
Defendant did not argue in the trial court or in the Court of Appeals that the prosecution had violated MCR 6.201 by failing to turn over the wet swab laboratory report or wet swab sample. Instead, he argued only that the trial court should have suppressed Dr. Randall’s testimony regarding the sperm fragments because it came as a “surprise.” To the extent defendant complained of a discovery violation in the Court of Appeals, his argument focused on the “evidence of sperm” in general, rather than on the sample or laboratory report in particular. Defendant asserted that the prosecution had a duty to notify him of the evidence of sperm in a timely manner in order to allow him a fair chance to prepare his defense on the basis of full and accurate information. Conceding that the evidence of sperm was not technically “favorable” to him under Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), he nevertheless suggested that its “timely” disclosure might have somehow bolstered a theory of the defense. Defendant also contended that, at a minimum, the trial court “should have sua sponte ordered a continuance, in order to give the defense a reasonable opportunity to prepare to confront the late testimony.” Because defendant never cited MCR 6.201, and never asserted that the prosecution was specifically obliged to turn over the wet swab laboratory report or wet swab sample, the Court of Appeals significantly expanded defendant’s argument when it reversed his conviction on that basis.
More importantly, the record did not support the Court of Appeals “finding” that defendant was denied access to the wet swab laboratory report and the wet swab sample at any time after Dr. Randall’s disclosure. It is undisputed that neither party had actual notice of the evidence of sperm until the first day of trial. On that day, in court, Dr. Randall and the prosecutor “reviewed” the results of the wet swab laboratory test. The prosecutor then immediately advised defense counsel of the new information. Defendant’s only objection at trial, made the following day, went to his general lack of knowledge regarding the evidence of sperm before Dr. Randall’s disclosure. If there was a copy of the wet swab laboratory report in court, a question the Court of Appeals could not have answered with confidence on the basis of the record before it, there was no reason to believe that defense counsel did not have an equal opportunity to inspect it. The same can be said for the wet swab sample.
As the appellant below, defendant bore the burden of furnishing the reviewing court with a record to verify the factual basis of any argument upon which reversal was predicated. Petraszewsky v Keeth (On Remand), 201 Mich App 535, 540; 506 NW2d 890 (1993); cf. People v Lee, 391 Mich 618, 626-627; 218 NW2d 655 (1974); People v Winters, 225 Mich App 718, 729; 571 NW2d 764 (1997). In his brief below, defendant did not point to anything in the lower court record that would establish that the prosecutor failed to provide the items in question to defendant after Dr. Randall’s disclosure. Undoubtedly, this occurred in part because defendant never argued that the prosecutor erred in failing to provide these items. Defendant also did not seek to expand the record in this respect by requesting an evidentiary hearing. The record provided no factual basis upon which to conclude that the prosecutor had failed to make the wet swab laboratory report and the wet swab sample available to defendant immediately after Dr. Randall’s disclosure. Accordingly, the Court of Appeals erred in reversing defendant’s conviction on that basis.
Apart from the wet swab sample and the wet swab laboratory report, the only other “evidence of sperm” not disclosed to defendant before trial was Dr. Randall’s own personal observations. Clearly, this information was outside the scope of discovery. Because Dr. Randall did not make notes of his observations, they were not subject to mandatory disclosure under MCR 6.201(A)(3). Dr. Randall’s personal observations of sperm were not otherwise discoverable because evidence of sperm recovered from the victim was not “exculpatory” under MCR 6.201(B)(1), or “favorable to an accused” under Brady, supra.
V. THE DUTY TO SEEK A CONTINUANCE
Although the Court of Appeals erred in finding specific discovery violations in this case, the fact remains that neither defendant nor the prosecutor knew of the evidence of sperm until the morning of the first day of trial. Defendant might have learned of this evidence sooner if defense counsel had asked Dr. Randall more probing questions at the preliminary examination, or if the prosecutor had discovered the existence of the wet swab laboratory report before the first day of trial. Whatever the reason for defense counsel’s lack of knowledge before trial, it surely constituted reasonable grounds for seeking a continuance at trial. Of course, defense counsel may also have had sound reasons to avoid any delay. Defense counsel’s strategy at trial was to challenge Dr. Randall’s credibility by arguing that he lacked experience. The prosecutor argues that a delay would have allowed it to endorse and call the laboratory technicians who prepared the wet swab sample laboratory report. Testimony from the laboratory technicians confirming that the wet swab sample contained sperm fragments would have undermined defendant’s argument regarding Dr. Randall’s lack of experience. In any event, faced with the dilemma of Dr. Randall’s trial-day dis closure, defense counsel elected to seek suppression of the evidence on the ground that it came as a “surprise” to him, and not to seek a continuance.
The Court of Appeals conclusion that suppression of Dr. Randall’s testimony was unwarranted was correct. Because defendant failed to allege or establish a specific discovery violation, or any other sort of prosecutorial misconduct, the trial court lacked a basis upon which to punish the prosecutor by suppressing otherwise admissible evidence. Furthermore, even if defendant had established an inadvertent discovery violation, a continuance, had one been requested, would have alleviated any harm to defendant’s case by allowing both parties to prepare for the evidence of sperm without requiring the exclusion of relevant evidence. Under such circumstances, the more severe remedy of suppression would not have been appropriate. See People v Clark, 164 Mich App 224, 230; 416 NW2d 390 (1987).
We reject defendant’s alternative argument below that, in lieu of granting defendant’s motion to suppress, the trial court “should have sua sponte ordered a continuance, in order to give the defense a reasonable opportunity to prepare to confront the late testimony.” Although defense counsel had ample reason to seek a continuance at trial, he elected not to do so. The longstanding rule of this state is that, in the absence of a request for a continuance, a trial court should assume that a party does not desire a continuance. See People v Lee, 307 Mich 743, 750; 12 NW2d 418 (1943); People v Ranney, 153 Mich 293, 299; 116 NW 999 (1908); People v Kelly, 186 Mich App 524, 527; 465 NW2d 569 (1990); People v Kvam, 160 Mich App 189, 200; 408 NW2d 71 (1987); People v McLendon, 51 Mich App 543, 546; 215 NW2d 742 (1974); People v Lakin, 30 Mich App 441, 445; 186 NW2d 867 (1971). Given this clear rule, the trial court cannot be faulted for failing to grant a continuance on its own motion. This rule makes sense because (1) it acknowledges the fact that the parties may have strategic reasons for wishing to proceed, and (2) a contrary rule would place trial courts in the difficult position of having to order unrequested delays as a prophylactic measure against reversal.
VI. HARMLESS ERROR ANALYSIS
Even if Dr. Randall’s testimony regarding the presence of sperm fragments in the “wet prep” had been tainted by a prosecutorial failure to disclose the laboratory report or wet swab sample, or by the trial court’s failure to grant a continuance on its own motion, any such error would have been harmless. The applicable standard of harmless error review depends on whether the error in question was non-constitutional or constitutional in nature. People v Carines, 460 Mich 750, 773-774; 597 NW2d 130 (1999). There is no general constitutional right to discovery in a criminal case. People v Stanaway, 446 Mich 643, 664; 521 NW2d 557 (1994), citing Weatherford v Bursey, 429 US 545, 559; 97 S Ct 837; 51 L Ed 2d 30 (1977). Accordingly, a prosecutorial violation of MCR 6.201(A) based on a failure to disclose the laboratory report or wet swab sample would have been noncon stitutional in nature. Likewise, any error attributable to the trial court for failing to remedy a discovery violation by granting a continuance would also have been nonconstitutional in nature.
In order to overcome the presumption that a preserved nonconstitutional error is harmless, a defendant must persuade the reviewing court that it is more probable than not that the error in question was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). An error is deemed to have been “outcome determinative” if it undermined the reliability of the verdict. See People v Snyder, 462 Mich 38, 45; 609 NW2d 831 (2000), citing Lukity, supra at 495-496. In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence. See Lukity, supra at 495; People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). In this case, there was overwhelming evidence of defendant’s guilt apart from the evidence of sperm. The victim’s mother testified that defendant was the only person present with the victim when the injury occurred. The medical evidence showed that the victim’s injury was consistent with penetration, but not consistent with a fall. The most important evidence, however, was the fact that, after initially attempting to deflect blame away from himself, defendant admitted to the police that he engaged in an intentional digital penetration of the victim. This fact alone would support a conviction of the crime charged. Given the extremely strong evidence of defendant’s guilt and the dearth of evidence favorable to defendant, we are confident that the late discovery of the evidence of sperm did not undermine the reliability of the verdict.
For these reasons, we conclude that the Court of Appeals erred in reversing defendant’s convictions. We vacate the opinion of the Court of Appeals and remand to the Court of Appeals for consideration of defendant’s remaining appellate issues.
Weaver, C.J., and Taylor and Young, JJ., concurred with Corrigan, J.
It is not uncommon in the trial of a case for a witness, especially one new to the criminal justice system, to reveal information not previously disclosed. Before this case, Dr. Randall had never testified as a medical expert. Nothing in the record indicates that Dr. Randall’s late revelation was made in anything but good faith.
The contents of the wet swab laboratory report have never been made part of the record at trial or on appeal. Defendant does not suggest that the laboratory report did anything more than confirm the accuracy of Dr. Randall’s observations.
For instance, defendant suggested that, if he had been made aware of the presence of sperm before trial, then “he could have had an expert examine the alleged sperm specimen” to look for a dna match, or he could have “prepared to challenge the procedures under which any lab tests were performed.”
While acknowledging that, strictly speaking, the record does not verify that the prosecutor denied defendant access to the wet swab laboratoiy report on the first day of trial, our concurring and dissenting colleague suggests that “an inference can be drawn from the record that defense counsel never received the report.” Post at 768, n 2. We disagree that such an inference can be drawn from the fact that defense counsel never affirmatively acknowledged receiving the wet swab laboratory report. We also note that her quotation from the separate record is taken out of context. The discussion on that page involved the prosecutor’s argument that defendant was put “on notice” of the possible presence of sperm by the prosecution’s pretrial disclosure of the emergency room report. Defense counsel’s comments reveal only that the emergency room report in the trial judge’s hand was the same report that had been disclosed to defense counsel before trial. The record of this exchange has no bearing on the factual question whether defense counsel was denied access to the wet swab laboratory report on the first day of trial.
We reiterate that defendant did not argue to the Court of Appeals, and the Court of Appeals did not find, that the prosecutor breached a duty under MCR 6.201(A)(3) to disclose the existence of the wet swab laboratory report before his actual discovery of the existence of that report.
As our concurring and dissenting colleague notes, a violation of Brady, supra, would be an error of constitutional magnitude. We agree with her observation that no Brady violation could have occurred in this case because the evidence of sperm recovered from the victim was not “favorable to the accused.”
We note that the Court of Appeals conducted its harmless error analysis without the benefit of this Court’s opinion in Lukity, supra. | [
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Weaver, C.J.
Following a jury trial, defendant was convicted of first-degree (felony) murder, armed robbery, and possession of a firearm during the commission of a felony in the shooting death of a Detroit convenience store clerk. The issue before the Court is whether defendant’s convictions must be reversed because the trial court refused the jury’s request for the testimony of four witnesses, in violation of MCR 6.414(H).
Although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, we hold that this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the jury’s request and the court’s subsequent instruction to the jury. Thus, defendant waived his rights under the rule. This waiver extinguishes any error and precludes defendant from raising the issue on appeal.
i
On March 20, 1992, Nidhal Jarbo and her brother-in-law, Hani Naemi, were working at the family store, the Eight Mile Express. Defendant was a regular customer of the store. As Ms. Jarbo left the store to go to the bank, she observed the defendant outside the store with what appeared to be a gym bag. When she returned to the store about fifteen or twenty minutes later, the police were present; Hani Naemi had been shot dead in the cooler.
Police suspected defendant, but released him because there was not sufficient evidence to charge him with the crime. Shortly thereafter, defendant was imprisoned on an unrelated parole violation. While imprisoned in the Muskegon Correctional Facility, defendant shared a cell with Norman Mackin. Mr. Mackin testified that sometime in February 1993, defendant divulged to him his role in an unsolved Detroit murder. The details provided by Mr. Mackin were sufficient to permit the police to tie defendant to the murder of Mr. Naemi.
At trial, defendant’s theory was that, as defendant’s cellmate, Mr. Mackin had access to the grievance papers that defendant was drafting in an attempt to have the fact that he was a suspect in the Detroit murder removed from his record. Defendant alleged that these papers would have provided Mr. Mackin with enough information to fabricate a story implicat ing defendant. The jury rejected this theory and convicted defendant on all three counts.
Defendant appealed his convictions to the Court of Appeals, arguing, among other things, that the trial court had violated MCR 6.414(H) by refusing the jury’s request, received fifteen minutes into deliberations, for the testimony of four witnesses, including that of Mr. Mackin. The Court of Appeals agreed, concluding that the trial court’s response to the jury’s request had impermissibly foreclosed the possibility of having the testimony reviewed at a later time. The Court of Appeals then applied a harmless error analysis, finding that it could not conclude that the trial court’s error was harmless. Consequently, it reversed defendant’s convictions and remanded the case for a new trial.
Both parties appealed to this Court, which granted the prosecutor’s application for leave to appeal and denied defendant’s applications. 461 Mich 880 (1999).
ii
The court rule at issue in this case, MCR 6.414(H), states:
If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.
In the present case, about fifteen minutes after the jury began to deliberate and shortly before breaking for lunch, the jury sent out a note requesting “Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.” The following colloquy between the trial court and the attorneys ensued:
The Court: . . . Now, obviously what I will do when they come back is I will sit them down in the jury box and respond, as to Dale Collins’ testimony, Mackin’s testimony, Presley’s testimony and Rice’s testimony, as I indicated in the beginning, they are to rely on their collective memories, there’s no testimony they can read from.
The Court: And as to the pictures and illustrations that have been admitted into evidence, are they already in there?
Mr. Cox : They’re in the folder right there.
The Court: All right. So both counsel have no problem with that?
Mr. Cox: No.
The Court: The exhibits that have been admitted and they’re all in the folder.
Mr. Lar$on : Right here.
After returning from the lunch recess, the trial court once again discussed the matter with the attorneys outside the jury’s presence:
The Court: . . . Back on the record. Dealt with the note pretty much at lunch, prior to breaking for lunch. The court received a note at 12:50, right before it was time for the jurors to go to lunch, and we indicated we would bring them back at 2:00 and address the note. The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.
And what we decided prior to lunch, Counselors, all of us together I think, is that we would—all of the admitted exhibits had been placed in a folder which we will submit to the jury after the jury—the court.calls the jurors out and sits them in their seats and indicates to them that as to all of the testimony that they’ve requested, as I indicated in the beginning, there are no—the transcripts are not typed and will not be typed for some weeks and months to come. They must rely on their collective memories. Any input, any—anything else?
Mr. Larson: Satisfaction with that part of it, Judge.
The second part, may I go into that? They asked for illustrations and things of that nature.
The Court: M’hm.
Mr. Larson: You’re going to instruct them that other than the evidence that has been admitted—I don’t know if they’re requesting other notes or pictures.
The Court: Well, what I will say to them with regard to the request for the pictures and illustrations, all of the exhibits that have been admitted into evidence and have been placed into a folder and we’ll send them with you into the jury room. Is that all right?
Mr. Larson: That’s fine, yes.
The trial court then had the jury brought into the courtroom and instructed them as follows:
The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony. Let me indicate to you that, first of all, I’ll deal with the request for the pictures and illustrations. The counselors have placed all of the exhibits that have been admitted into evidence in a folder, and when you return to the jury room, you’ll be able to take all of the exhibits that have been admitted into evidence with you for your review as requested.
With regard to the remainder of the note, which again asks for various people’s testimony, again, that being Dale Collins, Mack [sic] and Presley and Rice’s testimony, one of the things the court explained to you in the beginning, that the transcripts will not be typed for some weeks and months way into the future and you must listen very carefully because you must rely on your collective memories to resolve any issues with regard to that!
So that is the court’s response to your question. You now may return to the jury room and resume your deliberations.
The prosecution concedes that the trial court’s instructions to the jury violated MCR 6.414(H). Howe ver, the prosecution argues that defendant waived the issue when defense counsel expressed satisfaction with the trial court’s refusal of the jury’s request and its subsequent instruction to the jury. We agree.
The rule that issues for appeal must be preserved in the record by notation of objection is a sound one. People v Carines, 460 Mich 750, 762-765; 597 NW2d 130 (1999). Counsel may not harbor error as an appellate parachute. People v Pollick, 448 Mich 376, 387; 531 NW2d 159 (1995), quoting People v Hardin, 421 Mich 296, 322-323; 365 NW2d 101 (1984). “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v Olano, 507 US 725, 732-733; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
In two recent cases with similar facts, the Court of Appeals has agreed with the argument advanced by the prosecution in the present case. In People v Fetterley, 229 Mich App 511, 518-519; 583 NW2d 199 (1998), the trial court denied the jury’s request for a transcript of the testimony of one of the witnesses. The court explained that it did not have a transcript and instructed the jury to remember the testimony as best it could. Both attorneys indicated that they had no objection to the trial court’s decision. Id., 519. Rejecting the defendant’s argument that this constituted an error requiring reversal pursuant to MCR 6.414(H), the Court of Appeals explained, “defense counsel expressly acquiesced to the court’s handling of the jury’s request. A defendant may not waive objection to an issue before the trial court and then raise it as an error” on appeal. Id., 520. The Court of Appeals made a similar conclusion in People v Crawford, 232 Mich App 608, 620; 591 NW2d 669 (1998), where, again, the matter was discussed between trial counsel and the trial court, and counsel agreed with respect to how the jury would be instructed.
When asked by the trial court in the present case for a response to its proposed instructions, defense counsel expressed satisfaction with the trial court’s decision to explain that the transcripts were not available and that the jury must rely on its collective memory. Because defense counsel approved the trial court’s response, defendant has waived this issue on appeal.
Waiver has been defined as “the ‘intentional relinquishment or abandonment of a known right.’ ” Carines, supra at 762, n 7, quoting Olano, supra at 733. It differs from forfeiture, which has been explained as “the failure to make the timely assertion of a right.” Id. “One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” United States v Griffin, 84 F3d 912, 924 (CA 7, 1996), citing Olano, supra at 733-734. Mere forfeiture, on the other hand, does not extinguish an “error.” Olano, supra at 733; Griffin, supra at 924-926.
It is the difference between waiver and forfeiture that makes the present case distinguishable from the cases of People v Howe, 392 Mich 670; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109; 240 NW2d 202 (1976). While the present case deals with waiver, Howe and Smith addressed situations in which the error was forfeited. Griffin provides a clear example of the effect of this difference. In Griffin, the court concluded that the defendant waived any objection to a jury instruction because his counsel affirmatively approved the instruction. Griffin, supra at 923-924. This approval extinguished any error. Id. However, counsel's approval of the instruction did not preclude the court from reviewing a codefendant’s challenge to the instruction. Codefendant’s counsel, rather than affirmatively approving the instruction, failed to object to the instruction. The failure to object qualified as a forfeiture, and the court reviewed the instruction for plain error. Id., 924-926.
Justice Kelly, in her dissent, ignores this crucial distinction. She characterizes the majority opinion as holding “that defense counsel’s failure to object when the judge announced her decision foreclosed reversal by this Court,” and she would analyze the issue under the standard for unpreserved, forfeited error. Post at 222, 224 (emphasis added). This is clearly incorrect. Defense counsel in the present case did not fail to object. Rather, counsel expressly approved the trial court’s response and subsequent instruction. This constitutes a waiver that extinguishes any error. Thus, this case does not concern unpreserved error where no timely objection was made.
Justice Cavanagh, in his dissent, would conclude that the error could not be waived. We disagree with this approach. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” Olano, supra at 733. It is presumed that waiver is available in “ ‘a broad array of
constitutional and statutory provisions’ . . . New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L Ed 2d 560 (2000), quoting United States v Mezzanatto, 513 US 196, 200; 115 S Ct 797; 120 L Ed 2d 697 (1995). While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel. Id., 528 US 114-115.
“Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.” As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Thus, decisions by counsel are generally given effect as to what arguments to pursue, . . . what evidentiary objections to raise, . . . and what agreements to conclude regarding the admission of evidence .... Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last. [Id. (citations omitted).]
A defendant does not have a right to have a jury rehear testimony. Rather, the decision whether to allow the jury to rehear testimony is discretionary and rests with the trial court. MCR 6.414(H); Howe, supra at 675. In our opinion, the decision whether to oppose the trial court’s refusal of the jury’s request for testimony is akin to an evidentiary decision. Because counsel has full authority to manage the con duct of the trial and to decide matters of trial strategy, we conclude that in this instance, waiver could be effected by the action of defense counsel. Hill, supra, 528 US 115; see also 3 LaFave, Israel & King, Criminal Procedure (2d ed), § 11.6, p 593.
In the present case, counsel clearly expressed satisfaction with the trial court’s decision to refuse the jury’s request and its subsequent instruction. This action effected a waiver. Because defendant waived, as opposed to forfeited, his rights under the rule, there is no “error” to review.
m
We conclude that, although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the request and its subsequent instruction to the jury. Defendant’s waiver of his rights under the rule has extinguished any error. Therefore, we reverse the judgment of the Court of Appeals and reinstate defendant’s convictions.
Taylor, Corrigan, Young, and Markman, JJ., concurred with Weaver, C.J.
Defendant was sentenced to imprisonment for natural life without the possibility of parole for the felony-murder conviction. He was also sentenced to the mandatory term of two years’ imprisonment on the felony-firearm conviction. His sentence of 20 to 40 years’ imprisonment on the underlying armed robbery conviction was vacated.
MCR 6.414(H) states:
If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.
At a subsequent Ginther hearing (see footnote 14) defense counsel explained that the grievance papers were not introduced into evidence because Mr. Mackin was able to testify regarding facts about the incident that were not contained in the grievance reports. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
In response to the jury’s request, the trial court explained that the transcripts would not be typed for weeks and instructed the jury to rely on their collective memories.
5 This rule is consistent with case law. See People v Howe, 392 Mich 670; 221 NW2d 350 (1974).
Collins, Presley, and Rice were three of nine police officers who testified.
7 Mr. Cox was the assistant prosecuting attorney.
8 Mr. Larson was defense counsel.
9 At the beginning of voir dire, the trial court had explained that the jurors must speak loudly and clearly so that the court reporter could take down everything that was being said. The trial court also gave the following cautionary instruction:
And even though [the court reporter’s] taking down what’s being said, ladies and gentlemen, you’re going to have to listen very carefully because you will not have transcripts to refer to during these proceedings. Those transcripts aren’t typed for some weeks and months into the future. So again, you’re going to have to listen very, very carefully during these proceedings.
While it is true that trial transcripts often are not prepared until well after trial, we caution against instructing the jury in this manner as such instruction forecloses to the jury the possibility of later reviewing the requested testimony, e.g., by having the court reporter read back the testimony, and consequently, violates the court rule. However, we also note that, given that the jury made the request for the testimony of four witnesses only fifteen minutes into deliberations, the trial court could have properly refused the request and instructed the jury to continue deliberat ing had it done so in a manner which did not foreclose the possibility of having the testimony reviewed at a later time.
Contrary to Justice Kelly’s assertion, our opinion does not contradict the principles established by the cases she cites.
First, the crucial distinction between waiver and forfeiture makes much of the case law on which she relies inapposite. People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), and People v Snow, 386 Mich 586; 194 NW2d 314 (1972), both concerned situations where counsel had failed to object, not situations in which counsel had affirmatively approved the trial court’s action. Moreover, both cases note that it is only in unusual circumstances that the Court will consider unpreserved error. Snow, supra at 591; Dorrikas, supra at 316-317. In People v Shirk, 383 Mich 180, 189-193; 174 NW2d 772 (1970), counsel actually preserved the error by objection.
People v Harrison, 386 Mich 269; 191 NW2d 371 (1971), involved the defendant’s constitutional right to a speedy trial. The defendant’s trial was adjourned on six separate occasions, including one occasion in which the trial was adjourned until the expiration of the defendant’s “appeal time” in another case. Id., 274 The defendant was advised by his attorney that the remaining charge against him would be dropped if he did not file an appeal from his other conviction. Id. Although the defendant failed to demand trial or move to have the charge against him dismissed, the Court allowed the issue to be considered because the trial court’s action served to chill the defendant’s exercise of his right to appeal. Id., 275-276. (Defendant had a right to appeal under the Michigan Constitution. See Const 1963, art 1, § 20.) The present case does not implicate similar constitutional rights.
Finally, People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975), concerned self-defense instructions. The Court did consider the erroneous instruction, despite the fact that counsel expressed satisfaction with the jury instruction. However, the instruction was relevant to one of the very elements required to be established to sustain the plea of self-defense: that the defendant must have had no way by which she could have retreated to a place of safety. The Court rejected this element and held that when an attack occurs in one’s home by an assailant who has a right to be on the premises, the assailed need not “retreat to the wall” before defending herself. Id., 121. The instruction given in the present case does not concern an element of the crime or an affirmative defense.
Justice Cavanagh also suggests that the trial court’s error was compounded when the trial court refused to permit the jurors to take notes. We observe that MCR 6.414(C) places the decision regarding note taking with the trial court and states in pertinent part:
The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes and that they should not permit note taking to interfere with their attentiveness. [Emphasis added.]
Many other states also treat this decision as a discretionary one. See generally 75B Am Jur 2d, Trial, §§ 1685-1688, pp 467-472; anno: Bight to have reporter’s notes read to jury, 50 ALR2d 176.
Defendant argues, and Justice Cavanagh agrees, that defense counsel’s acquiescence denied defendant his right to effective assistance of counsel. However, we point out that at the Ginther hearing, both defendant himself and his appellate counsel questioned defendant’s trial counsel about various claimed errors. At no point was there questioning directed to the issues surrounding the jury’s request to review testimony. Defendant, assisted by appellate counsel, had the opportunity at this hearing to raise any and all perceived errors of his trial counsel and chose not to address the issue of his counsel’s actions in response to the jury request to review certain testimony. This choice indicates that defendant and his appellate counsel did not believe that the waiver at trial constituted ineffective assistance of counsel.
Defendant’s failure to explore at the Ginther hearing trial counsel’s conduct concerning the trial court’s refusal to reread the requested testimony is strongly suggestive that trial counsel’s conduct was the product of trial strategy. Although defense counsel sought to attack Mackin’s credibility during trial, and the rereading of his testimony might have reinforced that defense strategy, it is also true that having the jury revisit Mackin’s testimony would reexpose the jury to his very damaging testimony. Thus, it is entirely understandable why trial counsel was not questioned about this issue at the Ginther hearing—the very place where one would otherwise have expected the issue of claimed ineffective assistance of counsel to have been thoroughly explored. | [
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48
] |
Cooley, J.
The defendant in error brought suit in ejectment as guardian of Arelia Kinney and Kittie L. Kinney, averring in her declaration that as-such guardian, on October 8, 1870, she was possessed of certain described real estate, “ to which said above-described real estate the said plaintiff as such guardian aforesaid claims the right of possession. And she also claims that the title to said lands is in the said Arelia Kinney and Kittie L. Kinney, her said wards, in fee-simple,” and that being so possessed the plaintiffs in error entered and unlawfully withhold, etc. To this declaration plea in bar was interposed, but on the trial the point was made •that tbe guardian .could not maintain ejectment in her own name but must sue in the name of the wards. The point was not sustained, and the guardian recovered.
As guardianship in this State is a matter of statutory regulation, common-law rules will afford little aid in determining "this question. It has been held that guardians in socage might bring ejectment in their own names; (Wade v. Baker Ld. Raym. 130; Rex v. Inhab. of Oakley 10 East 491; Byrne v. Van Hoesen 5 Johns. 66; Truss. v. Old 6 Rand. 556 ; Hughes' Minors’ Appeal 53 Penn. St. 500;) but this species of guardianship is not recognized in this State. Guardians for nurture it is clear have no such right; they have not even the right of possession. Anderson v. Darby 1 Nott & M. 369 ; May v. Calder 2 Mass. 55; Ross v. Cobb. 9 Yerg. 463; Magruder v. Peter 4 G. & J. 323. Guardians by appointment have the authority the statute confers.
By the statute the guardian has “ the care and management of the estate of the minor.” Oomp. L. § 4816. He is “to dispose of and manage all such estate and effects •according to law.” Id. § 4811. He is to “ pay all just debts due from the ward out of his personal estate and the income ■of his real estate, if .sufficient, and if not, then out of his real •estate, upon obtaining license for the sale thereof, and disposing of the same in the manner provided by law.” Id. § ■4830. He would have authority under this provision to make leases of the real estate during the minority, and to ■transfer the possession to the lessee. He is to “ appear for •and represent his ward, in all. legal suits and proceedings, unless where another person is appointed for that purpose as ¡guardian or next friend.” Id. § 4831. He may “ dispose of the personal estate of the ward,” (Id. § 4834); but except when licensed by the judge of probate to sell the real estate, •or to mortgage the same, (Id. § 4625), his power over it is limited to leasing it and to the reception of the rents and profits.
If ejectment were purely a possessory action there would be reason for holding that the guardian might sue in his own name. But in this State ejectment determines the title. The plaintiff in his declaration “ shall state* whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives, or the duration of such term.” Comp. L. § 6213. The verdict must also “ specify the estate or right which shall have been established on the trial, by the plaintiff in whose favor it shall be rendered.” It is plain that these provisions’ do not contemplate that one person shall sue in the right of another who has the legal title. There are many cases in which one may recover on showing a mere right to possession; but they are cases in which this right is evidence, as against the defendant, that the plaintiff has a legal estate of some description in the land: Gamble v. Horr 40 Mich. 561. A landlord, for example, may recover against his tenant, when the tenancy has expired, without making any other showing than that recognition of title which is always implied in tenancy; but this proves an existing estate until met by evidence that it has been terminated. Niles v. Ransford, 1 Mich. 338.
The suit being improperly planted, the judgment must be reversed with costs of this court. But the objection we have noticed ought to have been taken by demurrer, that the plaintiff might have gone out of court before the expense of preparation for trial had been incurred. And as the guardian is only a nominal party, and the title claimed by the wards is fully set out in the declaration, I think the court in its discretion might have permitted an amendment. The record will therefore be remanded to give opportunity for a motion now.
There was an objection to a variance in a deed between the names of Kenney and Kinney; but this is immaterial. It is, as they are commonly spoken, idem sonans.
The other Justices concurred. | [
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] |
Campbell, J.
Complainant, who is fthe wife of Nicholas "Wohlscheid and an heir at law of John Trierweiler, deceased, filed her bill in this case to avoid a guardian’s sale made by Bergratli to Koster, and a mortgage made by Koster to' Spitzley on forty acres of land in which she was interested as such heir.
The father died in 1868 leaving a widow, Elizabeth, and four minor children, being the complainant and the defendants Michael, Innocence, and Catherine, who are still infants. No administration was taken out on his estate, -which consisted of some personal property and one hundred and sixty acres of land. In 1869 the widow married defendant, John Koster, and Bergratli, who is her father, was appointed guardian of the children, and as such leased the land to Koster for nine years, on the terms of paying $95.50 annually as interest on a mortgage to Bergratli, and all taxes on the land, and supporting, clothing and schooling the children.
Bergratli claims that he owned a mortgage for $1000 on a part of this land, and a personal claim for $275 also for part of the purchase money of the same premises. This mortgage has not been produced, as it was cancelled and destroyed as hereinafter stated. There is, however, no proof of its date or precise terms, and no evidence as to its rate of interest, which it may be inferred was seven per cent., but this is merely inference. It does not appear whether this mortgage was recorded. Bergrath assigned this mortgage to Spitzley some years before the transactions complained of, and Koster had paid on it between five hundred and six hundred dollars of principal. "Whether this was paid to reduce it or as purchase money to buy it is disputed.
On the 16th day of February, 1878, Bergrath, who about that time sold his personal demand of $275 to Koster, at a discount, filed a petition in the circuit court for Clinton county in chancery, as guardian of all the minors, (including complainant, who had then been married some time), setting out the existence of the $1000 mortgage in Spitzley’s hands, and his own’ claim of $275, and that there was no personal property of which their father died seized, and that petitioners had no property except the land. It further set out that unless land enough was sold to pay Spitzley, he might foreclose and cut off their interest. It prayed for a sale to pay off both of those claims.
The proceeding was had without notice actual or otherwise to complainant or her husband, and a sale was ordered of forty acres, a part of which was included in the mortgage, and a part was not. Flow this particular parcel came to be selected does not appear, but it seems to have been determined on in some way among the parties concerned.
Bergrath reported a cash sale to Koster for $1275 and the expenses of the proceeding, and this sale was confirmed.
It is to be observed that the order of the court was not based on § 5185 of the Compiled Laws, which authorizes the sale of lands to purchase' or discharge incumbrances, but was made under the general statute which allows sales or other dispositions for certain specified reasons and “other peculiar reasons or circumstances.” The order gave no directions concerning the use of money when raised, and the sale confirmed was a cash sale.
Upon this confirmation no cash was paid to anybody, but ■ Koster gave a new ten per cent, mortgage to Spitzley for $450, and Spitzley handed over the old mortgage, which was burned. No release was given or recorded. Koster was treated as owner of all the remaining interest.
This bill was filed at once on discovering what had- been done, and within a little over a month from the order of confirmation, and less than a month after Koster got his- deed recorded.
The court below set aside the sale and the new mortgage, and declared the title clear and discharged of all incumbrances. Bergrath, Koster and Spitzley appeal.
There is no pretence of any right in Koster as a bona field purchaser, and neither he nor Spitzley claims in the answer any right as bona fide purchaser or incumbrancer, beyond! such rights as depend on the legality of the proceedings.
We are not entirely satisfied that Bergrath, at the time of these proceedings, was acting with a wilful design of wronging the children; but that the proceedings were such as operated fraudulently, and against their rights is clear beyond doubt.
When the petition was filed Bergrath had ceased to be guardian of complainant. She was married in February, 1877,. while the amendment of January 24, 1877, (Laws 1877, pp. 1, 2,) which provided that the marriage of a ward should not affect the guardianship as to property, was not given immediate effect, and therefore did not become of force until ninety days after May 22, 1877, when the legislature adjourned.
Bergrath’s claim of $275 which he sold to Koster had never been allowed and was not valid against the estate-of the infants. So far as the mortgage for $1000 is concerned, as already stated, we have no means of knowing its-terms, nor the circumstances of Koster’s payments to Spitzley. If it was a seven per cent, mortgage, the payment of' $95.50 a year should have reduced it very considerably, apart, from any other payments. It appears affirmatively that Koster, who was bound as a part of the rent of the land alone to pay this sum and to support the children, had personal, property belonging to Trierweiler’s estate which must have been of considerable value. We are very much inclined to-think that the money he paid Spitzley was money for which he was accountable to the estate. It appears distinctly that. Spitzley liad no idea of foreclosing, and all the circumstances are very suspicious as indicating something like absolute and intentional fraud. But as it was a legal fraud to use complainant’s name without authority, and to include a claim that was entirely invalid, and to make what was represented as a cash sale, when no cash was paid directly or indirectly beyond the new Spitzley mortgage which was a substitute to its extent, we need not look too closely into the motives of the parties.
We have some doubt whether under the general prayer of the bill it could be sustained as a bill to do more than set aside the guardian’s sale and the subsequent proceedings based on it. It was not disputed that there was once a mortgage on which something might possibly be due. That part of the decree which, after setting aside all of the irregular transactions, including the new Spitzley mortgage, declared the title to be free from all liens, was, we think, not within the issues framed by the pleadings, and may perhaps be wrong in fact — although upon this we are not assured. Being outside of the case made by the bill, and the proofs not being as full as they should be on either' side, we think the insertion of this clause in the decree must have been an oversight, unless it was meant to refer only to the guardian’s title. The language is capable of a wider application.
Upon the merits we think the decree was right, and it should be affirmed except as to the clause declaring the land free from all liens, and as to that it should be modified. As the chief controversy has been on the other questions, and as no defence was made which indicates a willingness on the part of any of the defendants to do justice, we think that this modification should not deprive complainant of her costs in this court.
We decide nothing as to the claims of Spitzley or Koster under the $1000 mortgage, and give no opinion how much, if any, of it can be treated as valid or in force at law or in equity.
The decree must be affirmed except as above modified, with costs of this court against Bergrath. Koster and Spitzley, and the record remanded to the court below for any necessary further proceedings under the decree as modified
The other Justices cocuurred. | [
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Marston, O. J.
Salley brought suit in justice’s court, declared upon the common counts and filed a bill of particulars. After judgment the case was appealed to the circuit, where judgment was rendered in favor of the plaintiff, and the defendant now asks for a reversal because of two alleged errors.
The plaintiff gave evidence tending to show possession of a farm belonging to the defendant under a lease, which was subsequently cancelled, that after the lease was cancelled the defendant told the plaintiff to go and put in fall wheat upon the farm, and that when harvested, he (plaintiff) should have his just and lawful share of it; that acting thereon he put in seven and a half acres of fall wheat, furnishing manure, seed, and ail the necessary labor in putting it in; that when the wheat was ready to harvest he went on to harvest it, when the defendant ordered him away, harvested and kept the wheat. He also gave evidence as to the quantity, value, and Ills share or interest therein.
This evidence was objected to' — 1. Because not admissible under the declaration; 2. Because the supposed agreement was void under the statute of frauds; and 3. Because the language of defendant on which the plaintiff relied was too uncertain and indefinite to constitute a contract between the parties.
In this court counsel have insisted that as there was no evidence given tending to show that defendant had converted the wheat into money or money’s worth, the plaintiff could not maintain asswmrpsit, and if he could he must have declared upon the special contract. If an action of assiomp sit could be maintained I can see no objections to a declaration and recovery upon tbe common counts. Tbe plaintiff in error relied upon Watson v. Sterner 25 Mich. 386, as preventing a recovery in this form of action where the property has not been converted into money. Tolan v. Hodgeboom, 38 Mich. 624, may also he referred to. In both of these cases no contract relations had ever existed between the parties for any purpose, and it was therefore very properly held that under the facts in those cases assumpsit could not be maintained. In this case, however, the evidence tended to show a valid agreement between the parties under which they became and were, if the testimony of the plaintiff was believed, tenants in common of the wheat, and thus the case was clearly brought within the ruling in Figuet v. Allison 12 Mich. 330, and Coe v. Wager 42 Mich. 52.
The plaintiff below having sought to impeach the reputation of the defendant for truth and veracity, one George McMillan was called as a witness on behalf of the latter, and having testified that he was acquainted with the defendant and had lived in the same neighborhood for twenty-five years, but was unable to say whether he knew his reputation for truth and veracity in the neighborhood, he was then asked by defendant’s counsel, “ Did you ever hear McLaughlin’s reputation for truth and veracity questioned?” This was objected to and the objection sustained. This was error as expressly decided in Lenox v. Fuller 39 Mich. 268, and for the reasons there given.
For this error the judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Per Curiam.
Defendant appeals by right his jury trial convictions of false pretenses, $1,000 or more but less than $20,000, MCL 750.218(4)(a); false pretenses, less than $200, MCL 750.218(2); two counts of common-law fraud, MCL 750.280; and two counts of larceny by conversion, $20,000 or more, MCL 750.362. Defendant was sentenced to concurrent terms of sixteen to sixty months’ imprisonment for the conviction of false pretenses, $1,000 to $20,000; ninety days in jail for the conviction of false pretenses less than $200; and 23 to 120 months’ imprisonment for the two convictions of common-law fraud and the two convictions of larceny by conversion. We affirm.
Defendant’s convictions stem from his operation of two political action committees (PACs) during the 2000 election campaign and recount. Defendant was the chief of staff of both Friends for a Democratic White House (Friends) and Swing States for a GOP White House (Swing States). Defendant also incorporated PAC Services, with the purpose of providing services to the PACs defendant had formed. Defendant solicited contributions through mailings. A contention at trial was that defendant’s mailing lists were stolen from the Federal Election Commission (FEC) disclosure statements of the 2000 presidential campaigns of both A1 Gore and George W Bush. These statements list the contributors to each campaign and appear on the FEC website, along with a warning that the lists are for informational purposes only and may not be used for commercial or solicitation purposes.
Defendant’s PACs collected about $700,000 in contributions. Three victims of defendant’s solicitation letters testified at trial. All testified that the solicitation letters they received implied an affiliation with either the Bush campaign or the Gore campaign. They also testified that they donated to the PAC that solicited them because the letter led them to believe that their contributions would go to either the Bush campaign or the Gore campaign. They also testified that they would not have given money to the PAC if they had known that the money was not going to either the Bush campaign or the Gore campaign. Defendant’s PACs did give money to Democratic and Republican causes, but checks they attempted to give to the Republican National Committee and the Gore campaign were returned, i.e., those entities refused to accept the donations.
Defendant first argues that there was insufficient evidence to sustain his convictions. We disagree. The standard of review for sufficiency of the evidence claims in criminal cases is “whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding” that all the elements of the crime were proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000). A reviewing court should not interfere with the jury’s role in determining credibility of witnesses and weighing the evidence. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended on other grounds 441 Mich 1201 (1992). The prosecution does not have to disprove the defendant’s theory of innocence. Nowack, supra at 400. Rather, the prosecution need only prove the elements of the crime beyond a reasonable doubt. Id. Additionally, “[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
In order to prove false pretenses, the prosecution must show (1) a false representation concerning an existing fact, (2) knowledge by the defendant that the representation is false, (3) use of the representation with an intent to deceive, and (4) detrimental reliance by the victim. People v Reigle, 223 Mich App 34, 37-38; 566 NW2d 21 (1997). We find that the prosecution presented sufficient evidence on each element to sustain defendant’s convictions for false pretenses. Defendant, through the solicitation letters, represented that he was affiliated with either the Bush campaign or the Gore campaign and the language in his letters implied that he knew the individuals to be past donors to the campaign. Defendant used the candidates’ names in his solicitation letters. Defendant’s later letters repre sented that he was affiliated with the recount effort of each campaign after the election. These representations were not true because defendant’s PACs were not affiliated with either party or its recount effort. It was also undisputed that defendant knew that these representations were false, because he knew that he was not affiliated with either political party’s candidate for president.
There was also evidence that defendant used the representations with an intent to deceive. A defendant’s intent to deceive can be inferred from the evidence, Reigle, supra at 39, and minimal circumstantial evidence is sufficient to prove a defendant’s intent, People v Guthrie, 262 Mich App 416, 419; 686 NW2d 767 (2004). There was evidence presented at the trial that defendant used the candidates’ names in his solicitation letters, knowing that this use was illegal. Defendant informed an investigator that he learned how to operate a PAC by reading the FEC guide. This guide clearly stated that it was not proper for a PAC to use a candidate’s name in its solicitations. There was also testimony from the counsel for the Republican National Committee that he sent defendant a cease-and-desist letter, informing him of his illegal and misleading use of Bush’s name in his solicitations. Evidence indicated that defendant mailed additional letters using Bush’s name after this letter. The circumstantial evidence presented at trial supported the prosecution’s theory that defendant used misrepresentations that he was affiliated with each political party with an intent to deceive potential donors into giving money to his PACs.
There was also detrimental reliance by the victims. Each victim testified that he or she donated money to one of defendant’s PACs. The victims also testified that they believed that the money was going to either the Bush campaign or the Gore campaign and that they relied on this in sending the donations. The victims also testified that they would not have sent in the donations if they had known that the money was not going to the respective campaigns. In addition, a victim testified that she sent a $200 donation to Friends and that her check was cashed. Another victim testified that he sent a check for $1,000 to Friends because he received the letter in the mail that asked him to assist Gore in his election campaign. And another victim testified that he wrote a check for $100 to Swing States and that check was ultimately cashed.
For these reasons, we find that there was sufficient evidence for the jury to find defendant guilty of false pretenses, $1,000 or more but less than $20,000, and false pretenses, less than $200.
Defendant also argues that there was insufficient evidence to find him guilty of two counts of common-law fraud because the Bush and Gore campaigns did not suffer any loss. We disagree. MCL 750.280 defines the crime as the commission “of any gross fraud or cheat at common law. . . .” Defendant’s convictions for common-law fraud were based on the losses suffered by the Bush and Gore campaigns as a result of defendant’s solicitation of Bush and Gore donors. Testimony at trial showed that defendant collected more than $700,000 in donations using the campaign lists of Bush and Gore contributors. There was expert testimony at trial that the repeated use of these lists decreased their value, resulting in the campaigns suffering a loss. There was also testimony from the victims that they believed their donations were going to the Bush campaign or the Gore campaign and that they would not have given to defen dant’s PACs if they had known that the money was not going to the respective campaign. It can be inferred from this that the campaigns suffered losses because the victims wanted their donations to go to the campaigns, but instead the money went where defendant saw fit. As such, we find that there was sufficient evidence to support defendant’s convictions for common-law fraud.
Defendant also argues that there was insufficient evidence to support his convictions of larceny by conversion because there was insufficient evidence that defendant intended to defraud anyone. We disagree. An element of larceny by conversion is that the defendant must, at the time the property is converted, intend to defraud or cheat the owner of the property. People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1976). There was evidence presented at the trial that supported the theory that defendant illegally used each campaign’s FEC disclosure of contributors. Swing States’ mailing list contained fictitious names used by the Bush campaign in its FEC disclosure, and Friends’ mailing list contained errors that matched errors made in the Gore campaign’s FEC filings. The FEC guide and website both contained warnings that these lists were not to be used for solicitation purposes. By using the lists for solicitation purposes, defendant defrauded the political parties by soliciting further contributions from past donors, while implying that his PACs were affiliated with the campaigns. This evidence of an intent to defraud was sufficient to support the jury verdict.
Defendant next argues that his convictions should be reversed because they are preempted by federal law. We disagree. Determination of whether state law is preempted by federal law is an issue of statutory construction and an issue of law that is reviewed de novo. See Westlake Transportation, Inc v Pub Service Comm, 255 Mich App 589, 595; 662 NW2d 784 (2003). Federal law may preempt state law in three general circumstances: (1) when Congress expressly states its intent to preempt state law, (2) when state law regulates conduct in an area that Congress intended to occupy exclusively, or (3) when the state law actually conflicts with the federal law. Wayne Co Bd of Comm’rs v Wayne Co Airport Auth, 253 Mich App 144, 197-198; 658 NW2d 804 (2002). There is a presumption against preemption, and courts will only find a state law preempted when the intent of Congress is clear and unequivocal. Id. at 198. When a state law concerns a legitimate exercise of a state’s police powers, a party claiming preemption must meet a heavy burden to establish a Supremacy Clause violation. People v Truong [After Remand), 218 Mich App 325, 332; 553 NW2d 692 (1996). The courts must balance the federal interest against the state’s traditional police-powers interest in prosecuting crimes. People v Hegedus, 432 Mich 598, 618; 443 NW2d 127 (1989).
Congress stated that the provisions of the Federal Election Campaign Act (FECA) “supersede and preempt any provision of State law with respect to election to Federal office.” 2 USC 453. However, federal courts have held that “ ‘courts have given section 453 a narrow preemptive effect in light of its legislative history.’ ” Karl Rove & Co v Thornburgh, 39 F3d 1273, 1280 (CA 5, 1994), quoting Stern v Gen Electric Co, 924 F2d 472, 475 n 3 (CA 2, 1991). Additionally, federal courts have held that Congress did not intend the criminal sanctions of the FECA to be a substitute for all other possible criminal sanctions. United States v Trie, 21 F Supp 2d 7, 19 (D DC, 1998), citing United States v Hopkins, 916 F2d 207, 218 (CA 5, 1990), United States v Curran, 20 F3d 560, 566 (CA 3, 1994), and United States v Oakar, 924 F Supp 232, 245 (D DC, 1996), rev’d in part on other grounds, 324 US App DC 104 (1997). Defendant was charged with and convicted of Michigan state-law crimes. These crimes are not specifically preempted by 2 USC 453. Defendant does not cite another portion of the federal statute that specifically preempts a state from pursuing criminal charges when the crimes are brought against a factual background that involves an election. There is also no conflict between state and federal law in this area. Defendant’s convictions for the crimes at issue were not barred by the FECA. Thus, we reject defendant’s federal-preemption argument.
Defendant next argues that the trial court erred by precluding him from presenting an expert witness at trial. We disagree. This Court reviews a trial court’s decision on the admissibility of evidence for an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). “An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made.” People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000).
The witness was to testify about viewing and printing information from a website, <http://www.tray.com>, that also contains the FEC disclosures. The information on that website was in a different form and did not contain the cautionary language against using the information for a commercial purpose. However, the witness viewed the website and made printouts from it in January or February 2001, which was after defendant had mailed the letters in October and Novem ber 2000. Thus, the trial court reasonably determined that this witness’s testimony was not relevant and did not abuse its discretion in excluding this evidence.
Defendant next argues that he was denied a fair trial when multiple witnesses testified about factual and legal conclusions. We disagree. Defendant did not preserve this issue before the trial court by objecting to the testimony on the basis that it involved legal or factual conclusions. People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003) (“[A]n objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground.”). Therefore, we review this issue for plain error affecting substantial rights. People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).
A witness is not permitted to testify on questions of law because it is the trial judge’s responsibility to find and interpret the law. People v Lyons, 93 Mich App 35, 45-46; 285 NW2d 788 (1979). One instance defendant cites was a witness explaining why he drafted a letter to Swing States and what the letter stated. Another instance was a witness reading from the FEC guide that had already been admitted into evidence. Neither instance involved improper testimony in the form of a legal conclusion. Regarding the factual conclusions defendant cites, neither instance involved testimony from a witness on the ultimate issue in the case, defendant’s guilt or innocence of the charges. However, even if this testimony did go directly to the ultimate issues, that would not make this testimony objectionable. MRE 704. Additionally, defendant was able to cross-examine each witness concerning the basis of the witness’s factual statements, and the jury was free to accept or reject the witness’s testimony. Therefore, we conclude that defendant has not established plain error with respect to this issue.
Defendant next argues that the restitution order entered by the trial court should be reversed. We disagree. We typically review a trial court’s award of restitution for an abuse of discretion. People v Newton, 257 Mich App 61, 68; 665 NW2d 504 (2003). The trial court ordered defendant to pay restitution in the amount of $708,187.50 (the amount the PACs took in) minus $172,558.99 (the amount that the Attorney General’s office seized before trial), or $535,628.51. Defendant argues that there was no evidence presented that the individuals who contributed to the PACs suffered any loss and that, of the money defendant collected, $127,000 went to political causes while the remainder was either seized by the Attorney General or went to operating costs.
Defendant was found guilty of using the Bush campaign’s and the Gore campaign’s mailing lists to collect the contributions to his PACs. The people who gave money to defendant’s PACs testified that they intended for the money to go to the Bush campaign or the Gore campaign. Therefore, defendant collected money that would have likely gone to either the Bush campaign or the Gore campaign, and the campaigns suffered the loss of donations. More importantly, the people who gave money to the PACs also suffered losses because defendant was found guilty of using misrepresentations to obtain the donations. The fact that defendant apparently ultimately donated some of the money he collected to other Democratic or Republican causes does not change the fact that defendant represented to the people who contributed to the PACs that the money would go to the Bush campaign or the Gore campaign or to their legal funds for the recount. None of the money ultimately went to these causes. Additionally, the fact that defendant evidently did not personally benefit to the extent of $536,628.51 does not make that amount an invalid amount of restitution. The amount of restitution should be the amount of loss attributable to defendant’s illegal activity. People v Lueth, 253 Mich App 670, 692; 660 NW2d 322 (2002). Therefore, the trial court did not abuse its discretion in determining the amount of restitution.
Defendant also argues that he should be resentenced on the basis of Blakely v Washington, 542 US 296, 303-304; 124 S Ct 2531; 159 L Ed 2d 403 (2004), and Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000). We disagree. The United States Supreme Court held that “[o]ther than the fact , of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, supra at 490. The Supreme Court recently reaffirmed this holding in United States v Booker, _ US _; 125 S Ct 738, 756; 160 L Ed 2d 621 (2005), and Blakely, supra at 301-302. However, in Blakely, the Court stated that the decision did not affect indeterminate sentencing schemes. Blakely, supra at 308-309.
Additionally, our Supreme Court in People v Claypool, 470 Mich 715, 731 n 14; 684 NW2d 278 (2004), stated that Blakely does not affect Michigan’s sentencing scheme because
Michigan, in contrast [to the sentencing scheme in Blakely], has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding).
This Court has concluded that it is bound by this statement by our Supreme Court that Blakely does not affect Michigan’s sentencing system. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004). As such, we must conclude that defendant’s Sixth Amendment right to a jury trial was not violated and Blakely does not require defendant to be resentenced.
Defendant also claims that he was entitled to a hearing on restitution. However, defendant’s attorney never made a request for an evidentiary hearing on restitution in the trial court, and defendant failed to provide any authority for his argument on this issue on appeal. Therefore we consider the issue to be waived. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).
Defendant also argues that the Legislature did not intend for offense variable 9 (OV 9), MCL 777.39, to include victims who suffered only financial injury, and that the trial court erred by determining that OV 9 should be scored at twenty-five points for defendant’s larceny-by-conversion conviction. We disagree. This Court has previously held that OV 9 includes victims of financial injury. People v Knowles, 256 Mich App 53, 62; 662 NW2d 824 (2003). Additionally, we find that the trial court did not err by scoring OV 9 at twenty-five points for the larceny-by-conversion conviction. Evidence presented at trial showed that more than six hundred people contributed to defendant’s two PACs as a result of defendant utilizing the campaigns’ FEC disclosure lists. We believe that each of these people is properly considered a victim of defendant’s criminal conduct in this case. The trial court can consider all evidence presented at the trial when calculating scores under the guidelines. People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993). We conclude that the trial court correctly scored OV 9 at twenty-five points.
Defendant next argues that his convictions violate his First Amendment rights of free speech and association. We disagree. We review constitutional issues de novo. People v Haynes, 256 Mich App 341, 345; 664 NW2d 225 (2003). Both the state and federal constitutions recognize the fundamental rights of free speech and expression and provide great protection for speech in the political arena. Treasurer of the Committee to Elect Gerald D Lostracco v Fox, 150 Mich App 617, 622-623; 389 NW2d 446 (1986). However, this protection is not absolute. Id. at 622. All the charges that defendant complains impinge on his First Amendment freedoms involve some sort of misrepresentation or fraud. This Court has held that even in the area of political speech, "[k]nowing misrepresentations are not constitutionally protected free speech.” Id. at 623. Defendant’s statements were not protected speech, and therefore defendant’s prosecution because of these statements did not run afoul of the First Amendment.
Defendant also argues that his right to freedom of association was violated by his convictions. Although the First Amendment includes a protected freedom of association, Griswold v Connecticut, 381 US 479, 482-483; 85 S Ct 1678; 14 L Ed 2d 510 (1965), defendant was not prosecuted for associating with a political party. Defendant was prosecuted for making false representations that his PACs were affiliated with the presidential campaigns in order to obtain contributions. Therefore, we conclude that defendant’s convictions did not abridge his right to freely associate.
Defendant also argues that his convictions for common-law fraud and larceny by conversion should be vacated because the statutes are unconstitutionally vague. Again, we disagree. Whether a statute is constitutional is a question of law that we review de novo. People v Piper, 223 Mich App 642, 645; 567 NW2d 483 (1997). Statutes are presumed to be constitutional and valid, and courts are to construe statutes as constitutional unless there is a clear showing of unconstitutionality. People v Hubbard (After Remand), 217 Mich App 459, 483-484; 552 NW2d 493 (1996). In People v Petrella, 424 Mich 221; 380 NW2d 11 (1985), our Supreme Court set forth the following test:
“A statute may be challenged for vagueness on the grounds that it
—is overbroad, impinging on First Amendment freedoms, or
—does not provide fair notice of the conduct proscribed, or
—is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.” [Id. at 253, quoting Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980).]
Defendant first argues that the statute on common-law fraud is overbroad. As discussed earlier, although political speech and expression are at the core of First Amendment protection, In re Chmura, 461 Mich 517, 532; 608 NW2d 31 (2000), “the First Amendment does not shield fraud,” and public deception is not protected speech, Illinois ex rel Madigan v Telemarketing Assoc, Inc, 538 US 600, 612; 123 S Ct 1829; 155 L Ed 2d 793 (2003). Any conviction for common-law fraud involves a finding of a “fraud or cheat,” which would .not be protected under the First Amendment. Therefore, the statute does not impinge on First Amendment freedoms and is not overbroad.
Defendant argues that both the statute on common-law fraud and the statute on larceny by conversion are vague and that an ordinary person must guess at their meanings. We disagree. “ ‘When presented with a vagueness challenge, we examine the entire text of the statute and give the words of the statute their ordinary meanings.’ ” People v Sands, 261 Mich App 158, 161; 680 NW2d 500 (2004), quoting People v Morey, 230 Mich App 152, 163; 583 NW2d 907 (1998), aff'd 461 Mich 325 (1999). Due process requires “that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Rose v Locke, 423 US 48, 50; 96 S Ct 243; 46 L Ed 2d 185 (1975).
Both the common-law fraud statute and the larceny-by-conversion statute provide sufficient warning of what is prohibited by the statute. Although the common-law fraud statute does not define the terms “gross fraud or cheat,” the common meaning of these terms would encompass defendant’s conduct in this case. “Fraud” is defined as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Black’s Law Dictionary (7th ed). “Cheat” is defined as “ [t]o defraud; to practice deception.” Id. “Gross” is defined as “flagrant and extreme. . . .” Random House Webster's College Dictionary (2000). Evidence presented at the trial showed that defendant used campaign lists from the Bush and Gore campaigns to solicit potential donors with letters implying an affiliation with the campaigns and candidates. Defendant solicited more than $700,000 using the campaign lists and misleading solicitation letters. We find that this clearly fits under a common definition of “gross fraud or cheat.”
The larceny-by-conversion statute also clearly applied to defendant’s conduct in this case. Defendant argues that a reasonable person would not have known that the FEC disclosure lists belonged to the candidates or campaigns and would have thought that the lists were in the public domain. However, a reasonable person would know that the lists came from the candidates or campaigns because the lists were disclosed to the FEC by the candidates or campaigns. Additionally, a reasonable person would know that the lists were not information in the public domain to be used however one saw fit because of the warning on the FEC website that the information may not be used for solicitation purposes. The evidence presented at trial showed that defendant did just that. Therefore, the larceny-by-conversion statute was not unconstitutionally vague as applied to defendant.
Defendant next argues that he was the victim of vindictive prosecution. We disagree. Vindictive prosecution occurs when a defendant is prosecuted for asserting a constitutional right. People v Ryan, 451 Mich 30, 35-36; 545 NW2d 612 (1996). Defendant argues that he was prosecuted for exercising his First Amendment rights of free speech and association. However, as discussed earlier, defendant was not engaged in constitutionally protected speech when he sent out his solicitation letters. Because his speech was not constitutionally protected, defendant’s prosecution based on the solicitation letters could not have been in retaliation for the exercise of a constitutional right. Defendant’s argument that he was vindictively prosecuted is without merit.
Defendant next argues that the order of restitution violated his protection against double jeopardy. We disagree. We review an unpreserved double jeopardy issue for plain error. People v Williams, 265 Mich App 68, 72; 692 NW2d 722 (2005). The Double Jeopardy Clause protects defendants from, among other things, multiple punishments for the same offense. People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). This protection “ensure[s] that the defendant’s total punishment will not exceed the scope of punishment provided by the Legislature.” People v Dillard, 246 Mich App 163, 165; 631 NW2d 755 (2001). In this case, it is clear that the trial court’s order of restitution was not in excess of the punishment intended by the Legislature. MCL 780.766(2) requires a court to order restitution “in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law .. ..” The trial court’s order of restitution did not violate the Double Jeopardy Clause.
Defendant finally argues that he was denied a fair trial because the two counts of larceny by conversion were not severed from the other counts. Defendant did not preserve this issue by raising it at the trial court level, and defendant fails to explain and provide authority for this argument on appeal. As such, we consider the issue to have been abandoned. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).
Affirmed.
Defendant is correct in arguing that false pretenses cannot be based on a misrepresentation of a future event. People v Cage, 410 Mich 401, 404; 301 NW2d 819 (1981). However, defendant made misrepresentation about an existing fact: that he was affiliated with both the Bush and Gore campaigns.
Defendant argues on appeal that the proposed testimony he offered at trial was expert testimony. However, there was no mention of the fact that this witness was an expert at the trial court level. | [
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Per Curiam.
Respondent appeals as of right the probate court’s order “that the proceeds of the sale of decedent’s real property by respondent are subject to a constructive trust for the benefit of decedent’s estate.” The probate court concluded that respondent, decedent’s daughter, breached her common-law fiduciary duty to decedent when, as attorney-in-fact, she conveyed decedent’s real property to herself at a time when decedent, who suffered from dementia, could not freely consent to the details of the transaction. The probate court also determined that the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., precluded respondent’s self-dealing when she was acting as decedent’s fiduciary. We affirm in part and vacate in part.
I. BREACH OF COMMON-LAW FIDUCIARY DUTY
In a prior appeal, respondent appealed the probate court’s ruling that respondent’s breach of her common-law fiduciary duty in conveying decedent’s property to herself created a constructive trust for the benefit of decedent’s estate. In re Cummin Estate, 258 Mich App 402; 671 NW2d 165 (2003). In that appeal, respondent asserted that (1) the probate court erred in holding that she had breached her common-law fiduciary duty by conveying decedent’s property to herself, (2) the probate court erred in permitting petitioner to raise the issue of undue influence for the first time in opening argument, and (3) the probate court erred in failing to grant a motion for directed verdict.
In addressing the first issue on appeal, whether the probate court erred in concluding that respondent breached her common-law fiduciary duty by transferring the property to herself despite decedent’s instructions that she do so, the lead opinion reviewed the probate court’s decision by applying the common-law principle that an agent may personally engage in a transaction with the principal with “ ‘ “consent of the principal after a full disclosure of the details of the transaction.” ’ ” Cummin, supra at 407-408, quoting In re Susser Estate, 254 Mich App 232, 234; 657 NW2d 147 (2002), quoting VanderWall v Midkiff, 166 Mich App 668, 678; 421 NW2d 263 (1988). Accordingly, the lead opinion stated that “the probate court erred as a matter of law in failing to acknowledge that an agent may engage in self-dealing if the principal consents and has knowledge of the details of the transaction.” Cummin, supra at 409. In keeping with this principle, the lead opinion determined that it was necessary to remand the case because the Court could not discern
whether the probate court concluded that decedent freely consented to the transaction. Although the probate court found credible respondent’s and her husband’s testimony that decedent wanted respondent to have the property, the probate court also found that that [sic] respondent acted in a manner “incongruous with an individual who was simply attempting to comply with her mother’s wishes.” Additionally, the probate court’s opinion referenced “changes in circumstances” that prohibited enforcing the transaction. We, however, find no evidence on the record that decedent revoked the power of attorney or changed her mind regard ing the disposition of the property after instructing respondent to transfer it. [Id. at 410.]
The lead opinion additionally stated that
the probate court erred as a matter of law by concluding that the passage of time and the change in decedent’s mental status affected respondent’s authority to transfer the property. The power of attorney that decedent executed was a durable power of attorney and, therefore, was still valid after decedent became incompetent. Accordingly, if decedent consented to the transaction with knowledge of its details, the timing of the transaction does not prevent its enforcement. [Id. at 409-410 (citations omitted).]
The lead opinion expressly concluded that given that the subject power of attorney was a durable power of attorney, “if decedent consented to the transaction with knowledge of its details, the timing of the transaction does not prevent its enforcement.” Id. at 410.
On remand, the probate court issued a written opinion stating:
Respondent and her husband testified at trial decedent had frequently requested respondent to transfer decedent’s real estate to herself. This Court finds respondent and her spouse’s testimony as to these requests, made prior to decedent’s admission into the nursing home, to be credible. However, respondent went on to testify her mother made similar requests after her admission to the care facility due to stroke-induced dementia. This testimony, in light of other testimony at trial which described decedent’s deteriorating mental condition, is not credible.....
On December 10, 1996, respondent assigned to herself decedent’s real property by quit claim deed, reserving in decedent a life estate. The deed was executed nearly two years after decedent began living in Tendercare, the care facility in Clare, Michigan. The transfer was made many months after decedent was no longer lucid. It is incongruent to suggest decedent was mentally capable to knowingly participate in the details concerning estate planning when she was obviously incompetent. She could not recognize close family members, couldn’t feed herself, and could not carry on conversations.
The court of appeals has opined that an agent may engage in self-dealing if the principal consents and has knowledge of the details of the transaction. The principal herein, decedent, could not have consented to this transfer. Nor did she, at the time, possess the necessary cognitive ability to possess knowledge of the transfer’s details....
This Court is fully cognizant that a durable power of attorney is valid after a principal becomes incompetent. But, when an attorney-in-fact employs a POA months, if not years after her principal has lost nearly all, if not all, of her mental abilities due to the onset of severe dementia, to enrich herself the transaction cannot stand. This decedent, at the time the deed was executed by respondent on December 10,1996, could not freely consent to anything let alone the conveyance of her real property. Simply stated she was totally incompetent and thus incapable of consenting to this transfer with full knowledge of its details. [Emphasis added.]
In this appeal, respondent argues that the probate court erred in its conclusion that respondent breached her fiduciary duty. “This Court reviews for clear error a trial court’s factual findings and reviews de novo questions of law, including issues of statutory construction.” Cummin, supra at 406; see also Thomas v New Baltimore, 254 Mich App 196, 201; 657 NW2d 530 (2002). The law of the case doctrine provides that “ ‘if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.’ ” Kalamazoo v Dep’t of Corrections (After Remand), 229 Mich App 132, 135; 580 NW2d 475 (1998), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). “Likewise, a trial court may not take any action on remand that is inconsistent with the judgment of the appellate court.” Kalamazoo, supra at 135.
The additional findings of fact made by the probate court on remand support the conclusion that respondent breached her fiduciary duty to decedent by transferring decedent’s property to herself when decedent, although she lucidly consented to the transfer generally, never consented to the details of the transfer and was incompetent at the time of the transfer to consent to the details. In the prior decision, the lead opinion stated that “if decedent consented to the transaction with knowledge of its details, the timing of the transaction does not prevent its enforcement.” Cummin, supra at 410. The lead opinion drew attention to the probate court’s reference to the decedent’s changed mental status and ruled that this change did not affect the durable power of attorney, nor could a change in mental status affect “respondent’s authority to transfer the property” if she had authority to make the transfer previous to the change. Id. at 409-410. Nonetheless, the lead opinion stated that it could not determine “whether the probate court concluded that decedent freely consented to the transaction.” Id. at 410. Thus, the Court ordered the probate court to clarify whether the decedent consented to the transfer with full knowledge of the details while she was competent because, if she did, respondent had authority to make the transfer even though decedent subsequently became incompetent. On remand, the probate court clarified that, while decedent consented to the transfer generally while she was competent, by the time the transaction took place, decedent was no longer competent and, therefore, could not comprehend the details of the transaction and could not freely consent to them. In other words, decedent was never apprised of the details of the transaction even though she did, before becoming incompetent, consent to a transfer generally. Therefore, we conclude that respondent breached her common-law fiduciary duty to decedent by transferring decedent’s property to herself when decedent was never apprised of the details of the transaction and, accordingly, never freely consented to them. Therefore, the probate court did not err in creating a constructive trust for the proceeds of the property for the benefit of the estate under the theory of common-law fiduciary duties.
II. SELF-DEALING UNDER THE EPIC
As a “wholly separate and independent basis” for setting aside the transfer, the probate court determined that MCL 700.1214 of the EPIC “necessitates setting aside respondent’s self-dealing.” Respondent argues that this was in error. Because we affirm the probate court’s order creating a constructive trust on the basis of the common-law fiduciary duty, it is not necessary for us to reach this issue. Nonetheless, we vacate this portion of the probate court’s ruling because it is in clear contravention of this Court’s prior law of the case.
Although not raised by either party in the first appeal, and despite reversing and remanding on the common-law fiduciary duty issue, the lead opinion stated that “MCL 700.1214 of EPIC prohibits self-dealing by fiduciaries, except in limited circumstances that are not present in this case.” Cummin, supra at 408. However, MCL 700.8101(2)(d) provides that EPIC “does not impair an accrued right or an action taken before [April 1, 2000,] in a proceeding.” The lead opinion stated that “because respondent’s accrued right as owner of the property would be impaired by invalidating the transaction or imposing a constructive trust, subsection 8101 (2) (d) precludes applying § 1214 to invalidate respondent’s transfer of property. See In re Smith Estate, 252 Mich App 120, 127-128; 651 NW2d 153 (2002).” Cummin, supra at 408 (emphasis added). Nonetheless, this Court remanded the case for further findings of fact and a ruling on the common-law fiduciary duty grounds. Thus, while the lead opinion determined that EPIC could not be applied to validate the transfer, it determined that the common-law breach of fiduciary duty could, if the facts supported it.
On remand, the probate court stated that it “could find no legal justification for hmiting the provisions of EPIC which precludes [sic] self-dealing by fiduciaries. Here, no vested or accrued rights exist.” Thus, the probate court’s ruling in regard to this issue clearly contravenes this Court’s prior law of the case. Therefore, we vacate this portion of the ruling.
Affirmed in part and vacated in part.
HOEKSTRA, P J. I concur in the result only.
Petitioner is decedent’s son and the personal representative of her estate.
Although it does not affect our decision in this appeal, we disagree with the lead opinion’s conclusion that respondent had accrued or vested rights in the property at issue before the EPIC took effect. We agree with Judge Schuette’s partial dissent that “the prohibition against self-dealing (MCL 700.1214) is not superseded by the application of MCL 700.8101(2)(d) because no accrued or vested right exists under the facts and circumstances of this case.” Cummin, supra at 411. In the first place, respondent never had any interest in the rental money that she collected before the property was transferred to her. Further, under the facts and circumstances of this case, Smith does not support the conclusion that respondent had accrued or vested rights in the property that she transferred to herself while acting as decedent’s fiduciary. Regardless, the lead opinion, though published, is not binding authority because the majority of judges reached a decision, but did not agree on the underlying reason and no point of law was established by the decision. People v Bender, 208 Mich App 221, 228-229; 527 NW2d 66 (1994). The concurring judges concurred in result only, with one judge specifically rejecting the lead opinion’s rationale. Therefore, that rationale is without precedential value. | [
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Per Curiam.
In this automobile negligence action, defendant Mecosta County Road Commission appeals as of right the trial court’s ruling that a Gradall hydraulic excavator is a motor vehicle for the purposes of the motor vehicle exception to governmental immunity found in MCL 691.1405. Plaintiffs Daniel J. and Beverly Wesche cross-appeal the trial court’s dismissal of Beverly Wesche’s loss-of-consortium claim. We affirm.
I. BASIC FACTS
It is undisputed that one afternoon in March 2000, Daniel Wesche stopped for a red traffic light at the intersection of State Street and Woodward Avenue in the city of Big Rapids. While he was stopped, the rear of his vehicle was struck by a Gradall XL 4100 driven by defendant’s employee. According to plaintiffs’ complaint, the impact caused serious injury to Daniel Wesche’s cervical spine. Plaintiffs filed a complaint against defendant alleging that Daniel Wesche suffered physical, mental, and emotional injury and economic damages. Beverly Wesche alleged that she suffered loss of consortium caused by her husband’s injuries.
II. THE GRADALL IS A MOTOR VEHICLE UNDER MCL 691.1405
Defendant argues that the trial court erred in ruling that the Gradall was a motor vehicle for the purposes of the motor vehicle exception to governmental immunity found in MCL 691.1405. We disagree. This Court reviews de novo decisions on summary disposition motions. Stanton v Battle Creek, 466 Mich 611, 614; 647 NW2d 508 (2002). This issue does not present an issue of statutory interpretation, but one of statutory application.
The governmental tort liability act, MCL 691.1401 et seq., provides that a governmental agency is immune from tort liability while engaging in a governmental function unless a specific exception applies. Governmental immunity is broad, and the five exceptions are narrowly drawn. Stanton, supra at 615. The motor vehicle exception to governmental immunity, MCL 691.1405, provides:
Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.
In Stanton, supra at 616, the Court determined that “[t]he motor vehicle exception does not define ‘motor vehicle.’ ” The Court rejected the contention, also suggested by defendant in this case, that the reference in MCL 691.1405 to the Michigan Vehicle Code, MCL 257.1 et seq., provided the definition of “motor vehicle” for the purposes of MCL 691.1405. Stanton, supra at 616. After determining that the term “motor vehicle” was not otherwise defined in the governmental tort liability act, the Court adopted a dictionary definition of the term “motor vehicle,” that being: “ ‘an automobile, truck, bus, or similar motor-driven conveyance.’ ” Id. at 618 (citation omitted). Applying this definition, the Court concluded that the forklift in that case was not a motor vehicle for the purposes of MCL 691.1405. The Court held: “A forklift — which is a piece of industrial construction equipment — is not similar to an automobile, truck, or bus.” Stanton, supra at 618 (emphasis in original).
Later, in Chandler v Muskegon Co, 467 Mich 315, 322; 652 NW2d 224 (2002), the Supreme Court held that the motor vehicle exception to governmental immunity did not apply when the plaintiff was injured by a bus parked in a maintenance facility. The Court held that the motor vehicle exception did not apply because the vehicle was not being “operated” when the injury occurred. Id.
In Regan v Washtenaw Co Bd of Co Rd Comm’rs (On Remand), 257 Mich App 39, 47-51; 667 NW2d 57 (2003), this Court held that a broom tractor and a tractor mower were motor vehicles for the purposes of MCL 691.1405. This Court reasoned that both vehicles are “motor-driven conveyances,” and rejected the suggestion that a motor vehicle must have transportation as a primary function in order to qualify as a motor vehicle under MCL 691.1405. Regan, supra at 47-48. This Court explained that a broom tractor and a tractor mower “are comparable to an automobile, bus, or truck,” and, like those vehicles, are “invariably connected to the roadways . ...” Id. at 48.
Applying these decisions to the case at hand, we conclude that the Gradall is a motor vehicle for the purposes of MCL 691.1405. The Gradall, a wheeled, motorized vehicle operated by a driver, generally resembles a truck and moves like a truck. The significant difference between it and a truck is that mounted on the back of the vehicle is a unit that operates a hydraulic excavation tool. Although defendant argues that the Gradall is not used primarily for transportation, none of the cases cited above requires the motor vehicle to be used primarily for transportation for MCL 691.1405 to apply. Moreover, when the Gradall is not being used for excavation, it can be driven along the roadways just like a truck and transports both its attached excavation unit and the driver. At the time of the accident in this case, the driver was returning the Gradall to defendant’s garage from the project site. The Gradall was being driven on a public roadway when it struck the rear of Daniel Wesche’s vehicle. Under these circumstances, we conclude that the trial court did not err in ruling that the Gradall is a motor vehicle for the purposes of MCL 691.1405.
III. MCL 691.1405 DOES NOT PROVIDE AN EXCEPTION TO GOVERNMENTAL IMMUNITY FOR LOSS-OF-CONSORTIUM CLAIMS
On cross-appeal, plaintiffs argue that the trial court erred in ruling that Beverly Wesche’s loss-of-consortium claim is barred by governmental immunity. We disagree and hold that loss-of-consortium claims are not included in the motor vehicle exception to governmental immunity found in MCL 691.1405. We review de novo issues of statutory interpretation. Stanton, supra at 614. The primary rule of statutory interpretation is that we are to effect the intent of the Legislature. To achieve this task, we must first examine the statute’s language. If the language is clear and unambiguous, we assume the Legislature intended its plain meaning, and the statute is enforced as written. Id. at 615.
Pursuant to MCL 691.1405, “Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle . ...” In this case, plaintiffs alleged:
As a result of the injuries and damages to Daniel John Wesche, his spouse, Beverly Wesche, has further been damaged by being denied the normal marital companionship and services from the date of Daniel’s physical injuries up to the present, with their being a reasonable likelihood/probability that some element of same will be permanent.
Loss of consortium is a separate cause of action; this has been the law in Michigan since at least 1960. Wessels v Garden Way, Inc, 263 Mich App 642, 648; 689 NW2d 526 (2004). However, “ ‘[a] claim of loss of consortium is derivative and recovery is contingent upon the injured spouse’s recovery of damages for the injury.’ ” Id., quoting Berryman v K Mart Corp, 193 Mich App 88, 94; 483 NW2d 642 (1992). Thus, loss-of-consortium claims do not encompass bodily injury or property damage, but other damages deriving from the spouse’s injury. None of the damages alleged by Beverly Wesche is bodily injury or property damage. Therefore, because the governmental immunity exception provided in MCL 691.1405 does not apply to Beverly Wesche’s loss-of-consortium claim, the trial court did not err in dismissing this claim.
Affirmed. | [
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] |
Per Curiam.
Defendant Charles William Parker III appeals by delayed leave granted his sentence following his plea of guilty of a probation violation. Parker was originally convicted of receiving and concealing stolen property with a value equal to or greater than $1,000, but less than $20,000/ and operating a motor vehicle while under the influence of intoxicating liquor (OUIL). Following the violation, the trial court sentenced Parker to two to five years’ imprisonment on each of his original convictions. We reverse and remand for resentencing. We decide this case without oral argument pursuant to MCR 7.214(E).
I. BASIC FACTS AND PROCEDURAL HISTORY
In November 2001, Parker pleaded guilty to one count each of receiving and concealing property with a value equaling or greater than $1,000, but less than $20,000, and OUIL. The trial court sentenced Parker to two years’ probation on the stolen property charge, with the nine months to be served in jail and credit for one hundred days. On the OUIL charge, the trial court sentenced Parker to ninety days in jail, and his driver’s license was suspended for one year. The trial court did not sentence Parker to probation on the OUIL charge.
On August 15, 2002, a bench warrant was issued for Parker. The bench warrant petition indicated that Parker had “involved himself in a new violation of law,” breaking and entering a vehicle and causing damage. On August 22, 2002, the trial court accepted Parker’s guilty plea. On September 25, 2002, the trial court sentenced Parker to two to five years’ imprisonment, with credit for 199 days, for each of the charges to which he pleaded guilty in 2001. Parker did not, at that time, raise the issue of the applicability of the legislative sentencing guidelines.
In December 2002, Parker moved for resentencing, pursuant to MCR 6.429(B)(3), and for entry of a corrected presentence investigation report (PSIR). Parker argued that resentencing was necessary because his sentence did not comply with the legislative sentencing guidelines. Also, Parker sought entry of a corrected PSIR to reflect the correct recommendation on the OUIL charge and Parker’s proper jail credit. Following a hearing, the trial court denied resentencing, but granted correction of the PSIR, except for the jail credit. We granted Parker’s delayed application for leave to appeal.
II. APPLICATION OF THE LEGISLATIVE SENTENCING GUIDELINES
A. OVERVIEW
1. THE JUDICIAL SENTENCING GUIDELINES
As noted in People v Hendrick, sentencing guidelines did not exist in Michigan before 1983. Trial courts therefore sentenced convicted offenders to a period within the statutory minimums and máximums for any given offense. In 1983, the Michigan Supreme Court developed a set of judicial sentencing guidelines. Importantly, these judicial sentencing guidelines were not applicable to a wide variety of offenses, including sentences imposed after probation violations. Had the judicial sentencing guidelines been in place when the trial court sentenced Parker for violating his probation, those sentencing guidelines would not have been applicable to that sentence, and Parker would have been unable to assert that the sentence the trial court imposed violated those judicial sentencing guidelines.
2. THE LEGISLATIVE SENTENCING GUIDELINES
Again as noted in Hendrick, in 1998 the Legislature enacted legislative sentencing guidelines that apply to certain enumerated felonies committed on or after January 1, 1999. The question presented in Hendrick was whether the legislative sentencing guidelines apply to sentences imposed after a probation violation. The trial court had held that they did not. The Hendrick panel reversed, holding that the statutory legislative guidelines apply to sentences imposed after a probation violation, stating:
Because defendant committed the felonies for which he was sentenced after January 1,1999, and the felonies were specifically identified as felonies subject to the legislative sentencing guidelines, the guidelines apply to sentencing following his probation violation. The language of MCL 769.34(2) is very clear and no exception to this legislative directive is found anywhere else in the legislative sentencing guidelines or the Code of Criminal Procedure. Thus, the legislative sentencing guidelines apply to all enumerated felonies committed on or after January 1, 1999, regardless of whether the sentence is imposed after a probation violation.
The Michigan Supreme Court affirmed this holding, specifically agreeing that “the language of MCL 769.34(2) is clear and lists no exceptions.”
3. ISSUE PRESENTED
There is no question that Parker committed the offenses for which he was originally convicted after January 1, 1999, and that the trial court sentenced him for his later probation violation after January 1, 1999. Therefore, the legislative sentencing guidelines clearly applied. However, the trial court sentenced Parker in late 2002, well before May of 2004 when this Court decided in Hendrick that the legislative sentencing guidelines applied to sentences imposed after a proba tion violation if the underlying crimes were committed after January 1, 1999. We must therefore decide whether this Court’s decision in Hendrick applies retroactively.
B. PRESERVATION OF THE ISSUE
As noted, Parker did not object at sentencing to the trial court’s failure to apply the legislative sentencing guidelines, but he did raise the issue in a proper motion for resentencing. A recent decision by this Court establishes that raising a challenge to the application of the sentencing guidelines for the first time in a motion for resentencing is adequate to preserve the issue for appellate review. In People v Mack, the defendant was convicted on one count of third-degree criminal sexual conduct (CSC III) and one count of assault with intent to commit criminal sexual conduct involving penetration (AWICSC). Following the convictions, the probation department prepared a PSIR that calculated a guidelines range for the CSC III count; however, the department failed to prepare a PSIR for the AWICSC count. When the trial court sentenced the defendant to fifteen to thirty years’ imprisonment for the AWICSC count, he failed to object at sentencing on the ground that the sentence was outside the appropriate guidelines range for his AWICSC conviction. Nevertheless, the defendant filed a timely motion for resentencing on the ground that the trial court erred by sentencing him outside the appropriate guidelines range for his AWICSC conviction.
For guidance regarding whether this issue was preserved, the Mack panel reviewed the Michigan Supreme Court’s opinion in People v Kimble. In Kimble, the Court held that “pursuant to [MCL 769.34(10)], a sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand.” The Mack panel concluded that, because the defendant had raised the issue in a motion for resentencing, it should be considered preserved, despite the defendant’s failure to raise the issue at sentencing.
Like the defendant in Mack, Parker contends that the legislative sentencing guidelines applied at his sentencing and that his sentence constituted an improper departure from those guidelines. Additionally, like the defendant in Mack, Parker made a proper motion for resentencing on this ground. These similarities indicate that Parker, by virtue of his proper motion for resentencing, preserved for appeal the issue of the trial court’s failure to apply the guidelines.
C. THE RETROACTIVITY OF HENDRICK
There is, however, a factor that clearly distinguishes Mack from this case. The legislative sentencing guidelines in Mack, as a matter of law, were applicable to the defendant’s conviction at the time he was sentenced. Here, this Court’s decision in Hendrick requiring sentencing courts to apply the legislative sentencing guidelines to probation violations was over a year away when the trial court sentenced Parker. We must therefore to evaluate the degree to which this Court’s holding in Hendrick was foreseeable at the time the trial court sentenced Parker for his probation violation. This question presents an issue of law subject to review de novo.
Generally, this Court’s decisions are fully retroactive. However, there are circumstances in which the decisions should only be applied prospectively. With respect to criminal matters, both the United States Supreme Court and the Michigan Supreme Court consider three factors to determine whether a law should be applied retroactively or prospectively: “(1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice.” Before applying these factors, however, the decision in question must satisfy a threshold criterion: namely, that “the decision clearly establish[es] a new principle of law[.]” More specifically, as the Michigan Supreme Court stated in Lindsey v Harper Hosp, “ [prospective application of a holding is appropriate when the holding overrules settled precedent or decides an ‘ “issue of first impression whose resolution was not clearly foreshadowed.” ’ ”
While it was settled precedent that the judicial sentencing guidelines were not applicable to sentences imposed after probation violations, the guidelines at issue here are the statutory sentencing guidelines. Thus, the “settled precedent” exception does not apply. This Court must therefore determine whether the Hendrick panel “decide[d] an ‘ “issue of first impression whose resolution was not clearly foreshadowed.” ’ ”
Hendrick was the first published decision of this Court to conclude that the legislative sentencing guidelines applied to sentences for probation violations, thus making it an issue of first impression. However, not all issues of first impression are limited to prospective application, only those “whose resolution was not clearly foreshadowed.” Our reading of Hendrick indicates that the pertinent rule that emerged was clearly foreshadowed by the legislative sentencing guidelines themselves. The Hendrick panel found that the guidelines contain “no conflict or ambiguity requiring statutory construction” because the language of MCL 769.34(2) is “very clear” that the legislative guidelines must apply to sentencing for the enumerated felonies following a probation violation. Similarly, the Michigan Supreme Court agreed that “the language of MCL 769.34(2) is clear and lists no exceptions.”
Considering the ease with which this Court reached its ruling in Hendrick, the absolute clarity of that ruling, and the consensus of this Court and the Michigan Supreme Court that the language of MCL 769.34(2) clearly compelled the result, we conclude that the language in MCL 769.34(2) and MCL 771.4 clearly foreshadowed the ruling in Hendrick. Therefore, the trial court here should have been able to foresee this Court’s decision to mandate the use of the legislative sentencing guidelines in determining sentences following probation violations. For that reason, under Adams and Lindsey, Hendrick applies retroactively.
D. APPLYING HENDRICK
Our conclusion that Hendrick applies retroactively compels the corollary conclusion that the trial court erred in failing to apply the legislative sentencing guidelines. As a result of its failure to apply the guidelines, the trial court gave Parker a sentence that departed from the guidelines without fulfilling its statutory obligation to state a substantial and compelling reason for that departure. Even if our review of the record revealed that, in our judgment, a substantial and compelling reason for departure existed, we cannot affirm Parker’s sentence on that basis. Instead, we “must remand the case to the trial court for resentencing or rearticulation.”
We note that Parker has served his minimum sentence and was paroled on March 9, 2004. However, we conclude that this appeal is not moot because Parker is scheduled to remain on parole until March 15, 2006, which imposes some continuing limitations on his freedom. Had Parker received an intermediate sanction, as he contends he should have, he might not he subject to any limitations at all. Because we are remanding for resentencing, we need not address Parker’s claim that double jeopardy was violated by not sentencing him under the legislative guidelines.
Reversed and remanded for resentencing under the legislative sentencing guidelines. We do not retain jurisdiction.
MCL 750.535(3)(a).
MCL 257.625(1)(a).
MCL 750.356a(3).
The charge or charges to which Parker pleaded guilty are unclear from the disposition document, but we assume from the circumstances of the case that Parker pleaded guilty of violating his probation.
MCL 777.1 et seq.
People v Hendrick, 261 Mich App 673, 676-677; 683 NW2d 218 (2004), aff'd in part and rev’d in part 472 Mich 555 (2005).
Id. at 677, citing People v Cotton, 209 Mich App 82, 83-84; 530 NW 2d 495 (1995).
Hendrick, supra at 677, citing MCL 777.1 et seq. and MCL 769.34(2).
Hendrick, supra at 675.
Id. at 676.
Id. at 675.
12 Id. at 679-680.
People v Hendrick, 472 Mich 555, 560; 697 NW2d 511 (2005).
People v Mack, 265 Mich App 122; 695 NW2d 342 (2005).
Id. at 123.
Id. at 124.
Id. at 124-126.
Id.
People v Kimble, 470 Mich 305; 684 NW2d 669 (2004).
Id. at 310 (emphasis supplied).
Mack, supra at 126.
There is the view that Parker was required to raise this issue at sentencing for this Court to consider it. However, this position appears irreconcilable not only with this Court’s position in Mack, but also with the Michigan Supreme Court’s holding in Kimble, which states that a defendant may appeal a sentence outside the guidelines range even if it was not preserved. See Kimble, supra at 310. We take this portion of Kimble to mean that this Court must review a sentence that falls outside the legislative sentencing guidelines; the only question is whether it should be reviewed under the standard for preserved or unpreserved error. See People v Carines, 460 Mich 750, 761-64, 774; 597 NW2d 130 (1999) (unpreserved issues are reviewed for plain error that affects a defendant’s substantial rights).
See People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998).
Adams v Dep’t of Transportation, 253 Mich App 431, 435; 655 NW2d 625 (2002).
Lincoln v Gen Motors Corp, 231 Mich App 262, 309; 586 NW2d 241 (1998) (Whitbeck, P.J., concurring), citing Tehan v United States ex rel Shott, 382 US 406; 86 S Ct 459; 15 L Ed 2d 453 (1966), Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), People v Hampton, 384 Mich 669, 674-679; 187 NW2d 404 (1971), Sexton, supra at 57 n 29, and People v Markham, 397 Mich 530, 534-535; 245 NW2d 41 (1976).
Lincoln, supra at 310 (Whitbeck, P.J., concurring).
Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997), quoting People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), quoting Chevron Oil Co v Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971).
Cotton, supra at 83-84.
Lindsey, supra at 68 (citations omitted).
Id. (citations and internal quotation marks omitted).
Hendrick, supra, 261 Mich App at 679 (emphasis supplied).
Hendrick, supra, 472 Mich at 560.
Hendrick, supra, 261 Mich App at 679-681.
See 769.34(3); People v Babcock, 469 Mich 247, 258; 666 NW2d 231 (2003).
Id.
Id. at 259.
See People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001); People v Rutledge, 250 Mich App 1, 11; 645 NW2d 333 (2002). | [
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Per Curiam.
This litigation arises out of an attempt by the leaders of three counties in the Metropolitan Detroit area, acting in concert with the mayor of the city of Detroit, to create a transit system entitled Detroit Area Regional Transportation Authority (DARTA) to serve the tri-county area. Plaintiff labor unions and individual plaintiff Leamon Wilson (plaintiffs) filed a complaint challenging the creation of DARTA. Plaintiffs named the corporate entities that comprised DARTA as defendants: the Regional Transit Coordinating Council (RTCC), an entity created by statute to collect funds and coordinate transit services; and Suburban Mobility Authority for Regional Transportation (SMART), the current operating transit system. Plaintiffs also named the leaders of the counties involved in the creation of DARTA, the Oakland County Executive, the Wayne County Executive, the chairperson of the Macomb County Board of Commissioners, and the mayor of the city of Detroit. After entertaining oral argument on the cross-motions for summary disposition on multiple occasions and after ordering supplemental briefing, the trial court essentially concluded that the RTCC did not have the authority to participate in DARTA and that any involvement with DARTA was effectively invalidated. However, the trial court declined the invitation to declare the entire DARTA agreement null and void. We affirm the trial court’s conclusion that the RTCC was not entitled to transfer its powers to DARTA, and we reverse the trial court’s conclusion that the DARTA agreement could be severed.
On January 12, 1989, the mayor of the city of Detroit, the chairperson of the Macomb County Board of Commissioners, the Oakland County Executive, and the Wayne County Executive adopted articles of incorporation for the Regional Transit Coordinating Council premised on the statutory authority found in MCL 124.404a. The articles of incorporation provided that the purposes of the RTCC were: (a) to establish and direct public transportation policy within its designated area; (b) to apply for and distribute grants; (c) to adopt transportation plans and coordinate service functions; and (d) to conduct all activities and exercise all powers authorized by the act. Article IV provided that each member of the RTCC shall have one vote in all matters before the council, and any action was to occur by unanimous vote of all four members. Additionally, a council member could not designate another representative to serve in his or her place on the council.
In the spring of 2003, the RTCC, SMART, and the city of Detroit proposed an interlocal and intergovernmental agreement designed to create DARTA, the Detroit Area Regional Transportation Authority, a Michigan public body corporate. The agreement proposed that the parties utilize existing constitutional and statutory law to establish more effective and efficient public transportation services. The agreement provided, in relevant part:
Under this agreement the Parties agree to transfer to DARTA such existing powers, duties, functions, responsibilities and authority possessed hy one or more of the Parties believed essential to the provision of quality public transportation services.
Under this agreement DARTA may not and shall not levy taxes and DARTA may not and shall not bind any unit of state, county, city, township or village government to any obligation without the express consent of the individual unit.
Although the articles of incorporation of the RTCC provided for four members, each receiving an individual vote to make unanimous decisions, the DARTA agreement modified the manner in which the authority’s board would operate. The DARTA agreement provided that additional board members would be appointed by the original four executives and would operate by majority vote. The authority’s board also was responsible for the selection and retention of a chief executive officer. Moreover, there was no indication that the RTCC would continue to exist upon execution of the DARTA agreement. This agreement provided that the RTCC would transfer “any other authority, powers, duties, functions and responsibilities of the RTCC necessary to implement this Agreement.”
Plaintiffs filed suit to preclude the transfer of authority by the RTCC to DARTA. It was alleged that defendant RTCC lacked the authority to enter into an inter-local agreement based on the Urban Cooperation Act (UCA), MCL 124.501 et seq., because the RTCC was not a public agency for the purposes of the UCA. Additionally, plaintiffs alleged that DARTA was not formed in compliance with the intergovernmental transfers of functions and responsibilities act (ITFRA), MCL 124.531 et seq., because the RTCC was not a political subdivision as contemplated by that statute. Because the transfer of authority of the RTCC was not appropriate, plaintiffs alleged that the RTCC could not trans fer its functions to DARTA. The trial court agreed and denied defendants’ motion for summary disposition. However, on the basis of severability provisions contained in the agreement, the trial court rejected plaintiffs’ further assertion that the entire DARTA agreement was null and void.
This litigation requires us to apply the rules of statutory construction, the standard for granting summary disposition, and the rules of contract construction. Issues of statutory construction present questions of law that are reviewed de novo. Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002). The goal of statutory construction is to discern and give effect to the intent of the Legislature by examining the most reliable evidence of its intent — the words of the statute. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). If the statutory language is unambiguous, appellate courts presume that the Legislature intended the plainly expressed meaning, and further judicial construction is neither permitted nor required. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). Under the plain meaning rule, “courts should give the ordinary and accepted meaning to the mandatory word ‘shall’ and the permissive word ‘may’ unless to do so would frustrate the legislative intent as evidenced by other statutory language or by reading the statute as a whole.” Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982). Michigan recognizes the maxim “expressio unius est exclusio alterius; that the express mention in a statute of one thing implies the exclusion of other similar things.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997). However, “this maxim is merely an aid to interpreting legislative intent and cannot govern if the result would defeat the clear legislative intent. . ..” Grand Rapids Employees Inde pendent Union v Grand Rapids, 235 Mich App 398, 406; 597 NW2d 284 (1999). The legislative history of an act may be examined “to ascertain the reason for the act and the meaning of its provisions.” DeVormer v DeVormer, 240 Mich App 601, 607; 618 NW2d 39 (2000). Legislative history is valuable when it evidences a legislative intent to repudiate a judicial construction or considers alternatives in statutory language. In re Certified Question (Kenneth Henes Special Projects v Continental Biomass Industries, Inc), 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). However, legislative history is afforded little significance when it is not an official view of the legislators and cannot be utilized to create an ambiguity where one does not otherwise exist. Id.
We review de novo summary disposition decisions. In re Capuzzi Estate, 470 Mich 399, 402; 684 NW2d 677 (2004). The moving party has the initial burden to support its claim for summary disposition under MCR 2.116(C)(7) or (10) by affidavits, depositions, admissions, or other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts to the nonmoving party to demonstrate that a genuine issue of disputed fact exists for trial. Id. To meet this burden, the nonmoving party must present documentary evidence establishing the existence of a material fact, and the motion is properly granted if this burden is not satisfied. Id. Affidavits, depositions, and documentary evidence offered in support of, and in opposition to, a dispositive motion shall be considered only to the extent that the content or substance would be admissible as evidence. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
The construction and interpretation of a contract presents a question of law that is reviewed de novo. Bandit Industries, Inc v Hobbs Int’l Inc (After Remand), 463 Mich 504, 511; 620 NW2d 531 (2001). The goal of contract construction is to determine and enforce the parties’ intent on the basis of the plain language of the contract itself. Old Kent Bank v Sobczak, 243 Mich App 57, 63; 620 NW2d 663 (2000). “ 'If the contract language is clear and unambiguous, its meaning presents a question of law’ ” for the courts to determine. UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 491; 579 NW2d 411 (1998) (citations deleted). Illegal portions of a contractual agreement may be severed. Stokes v Millen Roofing Co, 466 Mich 660, 666; 649 NW2d 371 (2002). However, in order to sever “the illegal portion, the illegal provision must not be central to the parties’ agreement.” Id. “If the agreements are interdependent and the parties would not have entered into one in the absence of the other, the contract will be regarded ... as entire and not divisible.” Id., quoting 3 Williston, Contracts (3d ed), § 532, p 765.
The Metropolitan Transportation Authorities Act of 1967 (MTAA), MCL 124.401 et seq., commences with the following title:
An act to create metropolitan transportation authorities; to define their powers and duties, including the creation of transportation districts; to provide for the withdrawal of counties from the authorities; to require the state to guarantee payment of certain claims against certain transportation authorities and to give the state a lien in satisfaction of payment, to permit the creation of certain councils; and to prescribe penalties and provide remedies.
MCL 124.402 sets forth the definitions to be applied:
As used in this act:
(a) “Authority” means an authority created by or pursuant to this act.
(b) “Board” means the governing and administrative body of an authority.
(c) “Chief executive officer” means, with respect to a city, the mayor of the city and, with respect to a county, either the county executive of the county or, for a county not having a county executive, the chairperson of the county board of commissioners.
(d) “Constituent unit” means each of the counties comprising a part of an authority or a council and each city having a population of 750,000 or more within such a county.
(e) “Council” means a regional transit coordinating council formed pursuant to section 4a.
(f) “Governor” means the governor of the state.
(g) “Metropolitan area” means an area conforming in general to a consolidated metropolitan statistical area as defined by the United States office of management and budget or 2 or more counties which form a generally recognized urban complex. However, for the purposes of this act, Lapeer county shall not be considered part of a consolidated metropolitan statistical area.
(h) “Public transportation facility” means all property, real and personal, public or private, so long as used or useful for general or special transportation service to the public, including, but not limited to, street railways, motor bus [sic], tramlines, subways, monorails, rail rapid transit, and the movement of people thereby together with tunnel, bridge, and parking facilities used in connection with these transportation services of the authority, but shall not include taxis, limousines, highways, ports, airports, charter or sightseeing services, or transportation which is exclusively used for school purposes.
MCL 124.403 sets forth the powers of authorities:
Authorities created under this act shall plan, acquire, construct, operate, maintain, replace, improve, extend and contract for public transportation facilities. An authority is a public benefit agency and instrumentality of the state with all the powers of a public corporation, for the purpose of planning, acquiring, constructing, operating, maintaining, improving and extending public transportation facili ties, and for controlling, operating, administering and exercising the franchise of such transportation facilities, if any, including charter operations as acquired.
MCL 124.404 provides for the establishment of authorities and withdrawal therefrom:
(1) Regional transportation authorities in major metropolitan areas of the state may be established as 1 or more contiguous counties elect by majority vote of the county boards of commissioners to establish or participate in an authority.
(2) A county which becomes a part of an authority created under this act may withdraw from the authority within 1 year after the county becomes a part of the authority by a resolution of withdrawal approved by a majority vote of the members elected to and serving on its county board of commissioners or may withdraw at any time after 1 year after the county becomes a part of the authority by a resolution of withdrawal approved by a 2/3 vote of the members elected to and serving on its county board of commissioners. However, if the county has an elected county executive pursuant to Act No. 139 of the Public Acts of 1973, as amended, being sections 45.551 to 45.573 of the Michigan Compiled Laws, the county executive may veto the resolution. A veto may be overridden by a 2/3 vote of the members elected to and serving on the county board of commissioners.
On the basis of the plain language of the statute, see Neal, supra, the Legislature, by enacting the MTAA, provided for the creation of metropolitan transportation authorities, entities designed to provide transportation to cooperating districts. Moreover, an authority created by MCL 124.403 was entitled to engage in all foundational elements required for operation of public transportation facilities. To establish a regional transportation authority, a majority vote of the county board(s) of commissioners as established by one or more contiguous counties would agree to participate in such an authority.
In the present case, a vote by a majority of the county boards of commissioners did not occur. Rather, this dispute is derived from the interpretation of MCL 124.404a. This statute provides for the creation of the RTCC, and sets forth its purpose as well as its rights, duties, and powers:
(1) The chief executive officer of each city having a population of 750,000 or more within a metropolitan area, of each county in which such a city is located, and of all other counties immediately contiguous to such a city shall form a corporation, subject to the limitations of this act, to be known as the regional transit coordinating council for the purpose of establishing and directing public transportation policy within a metropolitan area. The counties of Livingston, Monroe, St. Clair, and Washtenaw shall be collectively represented on the council by 1 member, without vote, from 1 of the counties and shall determine their representative member on the council in a manner to be determined by the counties. The county from which the representative member is to be selected shall rotate among the counties at least every 2 years and the member shall be a resident of the county from which the member is to be selected. If 1 or more of the counties of Livingston, Monroe, St. Clair, and Washtenaw withdraw from the authority, the member shall rotate between, and be selected from, the remaining counties.
(2) A council formed under this section shall be considered an authority organized pursuant to this act for the sole purpose of receiving transportation operating and capital assistance grants. A council may not exercise any rights, duties, or powers provided to an authority organized pursuant to this act except as is necessary to receive transportation operating and capital assistance grants.
(3) The council may adopt public transportation plans for its metropolitan area. The council shall coordinate service overlap, rates, routing, scheduling, and like functions between operators of public transportation. The council shall not have power to employ operating personnel, negotiate collective bargaining agreements with operating personnel, or own operating assets of a public transportation service within the metropolitan area.
(4) The articles of incorporation forming the council shall provide for the conduct of the affairs of the council, including provision for the appointment of a general secretary to the council and the allocation between the city and any authority representing the counties of any grants applied for by the council.
(5) The council shall be a “designated recipient” for purposes of the former federal urban mass transportation act of 1964, Public Law 88-365, and the regulations promulgated under that act, to apply for federal and state transportation operating and capital assistance grants, but the council may designate a city with a population of more than 750,000 and the authority representing the counties each as a subrecipient of federal and state transportation funds. To the extent required by the federal urban mass transportation act of 1964 and the regulations thereunder, the council and a city with a population over 750,000 and the authority representing the counties shall execute a supplemental agreement conferring on a city with a population over 750,000 and the authority representing the counties the right to receive and dispense grant funds and containing such other provisions as are required by federal law and regulation. The general secretary shall submit in a timely manner the council’s application for such funds to the responsible federal and state agencies. The application shall designate the distribution of all capital and operating funds which shall be paid directly to a city with a population over 750,000 and the authority representing the counties. If the council is the recipient, the general secretary, as soon as possible, but not more than 10 business days after receipt of the funds by the general secretary, shall remit to a city with a population over 750,000 and the authority representing the counties their designated distribution of the funds.
(6) The council shall act by a unanimous vote of its membership entitled to vote and shall meet regularly but not less than quarterly. A council member shall not designate another representative to serve in his or her place on the council.
(7) The business which the council may perform shall be conducted at a public meeting of the council held in compliance with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date, and place of the meeting shall be given in the manner required by the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(8) An advisory committee comprised of riders who are senior citizens or persons with disabilities, or both, and who live within the southeastern Michigan transportation authority shall be established and shall report their concerns to the council on a regularly scheduled basis.
(9) Before any state or federal funds are distributed to any of the eligible authorities or eligible governmental agencies coordinated by the council, a financial audit of the transit operations for the fiscal year immediately previous to the most recently completed fiscal year shall be provided to the state transportation department in accordance with section 10h(2) of 1951 PA 51, MCL 247.660h. The state transportation department may waive this requirement on a temporary basis. Each audit shall be in accordance with sections 6 to 13 of the uniform budgeting and accounting act, 1968 PA 2, MCL 141.426 to 141.433. Each financial audit shall also be in accordance with generally accepted accounting standards as promulgated by the United States general accounting office and shall satisfy federal regulations relating to federal grant compliance audit requirements. [MCL 124.404a (emphasis added).]
Thus, the MTAA provides that, to form a regional transit coordinating council, the chief executive officer of a city with a population of 750,000 or more shall form a corporation, subject to the limitations of the act, with counties immediately contiguous to the city. The corporation is to be known as the regional transit coordinat ing council or RTCC. MCL 124.404a. There is no dispute that the city of Detroit satisfies the population requirement, and there is no dispute regarding the contiguous counties participating in the RTCC.
The parties’ principal dispute arises' from the interpretation of MCL 124.404a(2) as read in conjunction with MCL 124.404a(3). MCL 124.404a(2) provides that the RTCC formed under this section “shall be considered an authority organized pursuant to this act for the sole purpose of receiving transportation operating and capital assistance grants. A council may not exercise any rights, duties, or powers provided to an authority organized pursuant to this act except as is necessary to receive transportation operating and capital assistance grants.”
Although MCL 124.404a(2) provides that the council may not exercise rights, duties, or powers provided to an authority, the subsection immediately following, MCL 124.404a(3), provides that the “council shall coordinate service overlap, rates, routing, scheduling, and like functions between operators of public transportation. The council shall not have the power to employ operating personnel, negotiate collective bargaining agreements with operating personnel, or own operating assets of a public transportation service within the metropolitan area.”
Plaintiffs alleged, and the trial court agreed, that defendants were limited by the language of MCL 124.404a(2). Therefore, the RTCC could not enter into the interlocal or intergovernmental agreement that created DARTA because it was only entitled to receive transportation operating and capital assistance grants. However, defendants asserted that the two subsections must be read in harmony because they appeared within the same statute, and the UCA and ITFRA provide the foundation for the RTCC’s participation in DARTA. We disagree.
“It is a well-established rule of statutory construction that provisions of a statute must be construed in light of the other provisions of the statute to carry out the apparent purpose of the Legislature.” Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993). The Legislature is presumed to be aware of existing law; therefore, we do not assume that the Legislature inadvertently omitted from one statute the language that is placed in another statute. Id. at 210. Provisions must be read in the context of the entire statute to produce a harmonious whole. Macomb Co Prosecuting Attorney v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001). Two statutes that relate to the same subject or share a common purpose are in pari materia and must be read together. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). The goal of the in pari materia rule is to give effect to the legislative purpose found in the harmonious statutes. Id. When two statutes lend themselves to a construction that avoids conflict, that construction should control. Id.
On the basis of the plain language of the MTAA, see Neal, supra, a contiguous county may establish a transportation authority upon majority vote of the county board of commissioners. MCL 124.404, and the authority is entitled to engage in activity designed to establish the facilities for operation of a transit system. MCL 124.403. However, in the context of the RTCC, where the council is comprised of chief executives who act on unanimous vote, MCL 124.404a(6), the council itself “shall be considered an authority pursuant to this act for the sole purpose of receiving transportation operating and capital assistance grants. A council may not exercise any rights, duties, or powers provided to an authority organized pursuant to this act except as is necessary to receive transportation operating and capital assistance grants.” MCL 124.404a(2). Thus, the authority given to a transportation body comprised of chief executives is severely limited to acting as a funding conduit.
Defendants cite the powers provided to the RTCC as set forth in MCL 124.404a(3). MCL 124.404a(3) provides:
The council may adopt public transportation plans for its metropolitan area. The council shall coordinate service overlap rates, routing, scheduling, and like functions between operators of public transportation. The council shall not have the power to employ operating personnel, negotiate collective bargaining agreements with operating personnel, or own operating assets of a public transportation service within the metropolitan area.
The plain language of MCL 124.404a(3) does not provide for the RTCC’s participation in DARTA. The Legislature, in enacting the MTAA, chose to provide different grants of authorization to entities that were created by the majority vote of a county board as opposed to the authorization granted to an entity formed on the basis of the unanimous vote of county executives. The RTCC, as adopted on the basis of the consent of county executives, is limited to acting as a funding conduit. Although it is given the additional option of adopting transportation plans, its function is to ensure that service is coordinated among operators of public trans portation. Thus, the plain language of the MTAA indicates that transportation plans that are adopted through the majority vote of a county board of commissioners are granted under authority with regard to the establishment of a transit system. MCL 124.404. However, in the context of an authority established by county executives, the authorization is limited. MCL 124.404a. The limitation on the power of the executives acts as a form of checks and balances.
Defendants allege that the RTCC may enter into the DARTA agreement on the basis of the UCA and ITFRA. We disagree. MCL 124.504 of the UCA provides for the joint exercise of powers by public agencies of this state for “any power, privilege, or authority that the agencies share in common and that each might exercise separately.” The RTCC lost its essence, if not its existence, by entering into DARTA. Pursuant to the DARTA agreement, the RTCC, a funding conduit and potentially merely a coordinator of a transportation plan, transferred its funding capacity to DARTA. DARTA then modified all the terms of the RTCC as provided in MCL 124.404a. The RTCC proceeded from an entity governed by four members acting unanimously to an eleven-member board that was appointed by RTCC members and that acted by quorum. Thus, DARTA eliminates the qualifications placed on the RTCC’s existence by statute and effectively allows it to act as a general authority as set forth in the MTAA. MCL 124.403, 124.404. Defendants cannot employ the UCA to alter the status of the RTCC from its limited authority. See Macomb Co Prosecuting Attorney, supra. The limited authority granted the RTCC implies a system of checks and balances by placing boundaries on the activities of the four members who must act unanimously. The transfer of authority from the RTCC to DARTA eliminates the checks and balances on the RTCC by lifting those limitations.
Moreover, ITFRA provides that two or more political subdivisions may enter into a contract that provides for “the transfer of functions or responsibilities.” MCL 124.532. The plain language of the statute provides for the transfer of functions or responsibilities, and it does not provide that the transfer of functions may encompass material changes or alteration of functions. Neal, supra; Farrington, supra. In the present case, the RTCC did not merely transfer its funding responsibilities and its limited decision-making power. The RTCC transferred its functions and materially altered the manner in which decisions would be made from four unanimous members to a quorum of appointees selected by the original RTCC board. Consequently, ITFRA cannot be utilized to assert that a mere transfer of the RTCC’s functions occurred. The plain language of the statute does not allow for material changes to the transfer of functions. Neal, supra.
Lastly, we conclude that the trial court erred in failing to declare the DARTA agreement null and void because of its severability provisions. To sever an illegal portion, the illegal provision must not be central to the parties’ agreement. Stokes, supra. In the present case, the addition of RTCC was central to the parties’ agreement. The RTCC transferred its fund-gathering authority to DARTA. However, the RTCC also changed the operating mechanism. The governing board was changed from four unanimously voting members to action based on a quorum of eleven members, many of whom were appointed by the original four board members. Because the RTCC board not only supplied the funding mechanism but also determined how DARTA would engage in decision making by a newly selected and expanded body, severability is inappropriate.
Affirmed in part and reversed in part. We do not retain jurisdiction.
Although plaintiff unions represented the employees of the Detroit transit system, known as D-DOT, Detroit Department of Transportation, plaintiff unions did not name D-DOT as a defendant.
There were additional allegations in the complaint. However, the parties agree that these challenges are the only two raised on appeal.
3 Blanket assertions regarding necessity do not entitle a party to summary disposition. Quinto, supra. Consequently, defendants’ argument, that the necessity requirement was established, is without merit.
The statute uses the permissive term “may” with regard to adoption of transportation plans. Thus, the RTCC is not obligated to adopt a transportation plan. See Browder, supra.
We assume, without deciding, that the entities executing the DARTA agreement qualify as public agencies of the state.
We assume, without deciding, that the political subdivision criterion is satisfied.
The challenge based on Const 1963, art 7, § 28 likewise fails because the statute allows transfers of the functions or powers that each could perform separately and does not provide for an expansion of power.
Our analysis is based on the plain language of the statutes at issue. Both parties argue over the import of the submission of the House Legislative Analysis Report addressing the effect of a statute reorganizing the Southeastern Michigan Transportation Authority (SEMTA) bus service. This report is unnecessary in light of the plain language of the statute, see Neal, supra, and is afforded little significance because it is not an official view of the legislators, see In re Certified Question, supra. | [
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ON REMAND
Before: WHITBECK, C.J., and WHITE and DONOFRIO, JJ.
White, J.
This case is before us on remand from the Supreme Court. Plaintiff brought this action for declaratory and injunctive relief, challenging the constitutionality of the prevailing wage act (PWA), MCL 408.551 et seq., as vague and as an unconstitutional delegation of legislative authority to private parties, specifically, unions and union contractors. The circuit court dismissed plaintiffs vagueness claim on defendants’ motions for summary disposition, and allowed the delegation of legislative authority claim to proceed to discovery. Defendants-intervenors were granted leave to file an interlocutory appeal of the latter ruling, and plaintiff cross-appealed as of right the dismissal of its vagueness claim.
Our initial opinion concluded that, because plaintiff had not alleged an “actual controversy,” it could not seek declaratory relief. Thus, we did not reach the merits of the constitutional challenges; we reversed the circuit court’s denial of summary disposition of the delegation of legislative authority claim and affirmed the dismissal of the vagueness claim. See Associated Builders & Contractors v Dep’t of Consumer & Industry Services Director (ABC I), unpublished opinion per curiam, issued August 5, 2003 (Docket No. 234037). Plaintiff applied for leave to appeal in the Supreme Court. After hearing oral arguments on plaintiffs application for leave, in lieu of granting leave to appeal, the Supreme Court reversed and remanded for reconsideration by this Court, stating:
We reverse the decision of the Court of Appeals and hold that plaintiff has presented an “actual controversy” so that plaintiff can seek declaratory relief under MCR 2.605. We do not address the substantive issue regarding the constitutionality of the PWA; instead, we remand to the Court of Appeals for reconsideration and resolution of the defendants’ appeal and plaintiffs cross-appeal on the merits. [Associated Builders & Contractors v Dep’t of Consumer & Industry Services Director, 472 Mich 117, 120; 693 NW2d 374 (2005) (ABC II).]
Having considered the merits of the appeal and cross-appeal, we conclude that the PWA does not unconstitutionally delegate legislative authority to private parties, and so we reverse the circuit court’s denial of summary disposition on that claim. In the cross-appeal, we conclude that the PWA is not unconstitutionally vague on its face or as applied, and affirm the circuit court’s dismissal of those claims, though for somewhat different reasons.
I. APPEAL
Defendants assert that plaintiffs challenge to the PWA as an unconstitutional delegation of legislative authority to private parties must fail because that precise claim was rejected by this Court in West Ottawa Pub Schools v Director, Dep’t of Labor, 107 Mich App 237; 309 NW2d 220 (1981).
This Court reviews de novo the circuit court’s denial of summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The constitutionality of a statute is a question of law this Court reviews de novo. Dep’t of State v MEA-NEA, 251 Mich App 110, 115-116; 650 NW2d 120 (2002). Legislation is presumed constitutional absent a clear showing to the contrary. Caterpillar Inc v Dep’t of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992). Statutes must be construed in a constitutional manner if possible. Id.
A. WEST OTTAWA
West Ottawa was an appeal of the circuit court’s declaratory judgment and permanent injunction precluding enforcement of the PWA on the ground that the act constituted an unlawful delegation of legislative power to private parties, i.e., unions. This Court reversed, stating:
Plaintiffs argue that, because the Department of Labor [now the Department of Consumer and Industry Services (CIS)] is statutorily required to set the prevailing wage rate at union rate, the Legislature has unconstitutionally delegated its power to a private party. We cannot agree.
Article 4, § 1, of the Michigan Constitution prohibits the delegation of “legislative power”. The Michigan doctrine of nondelegation has been expressed in terms of a “standards” test:
“ ‘There is no doubt that a legislative body may not delegate to another its lawmaking powers. It must promulgate, not abdicate. This is not to say, however, that a subordinate body or official may not be clothed with the authority to say when the law shall operate, or as to whom, or upon what occasion, provided, however that the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits.’ (Emphasis supplied.)” Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 458; 294 NW2d 68 (1980), quoting Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956).
The preciseness of the standards will vary in proportion to the degree to which the subject regulated requires constantly changing regulation. Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). As stated by the Court in G F Redmond & Co v Michigan Securities Comm, 222 Mich 1, 5; 192 NW 688 (1923):
“The power to carry out a legislative policy enacted into law under the police power may be delegated to an administrative board under quite general language, so long as the exact policy is clearly made apparent, and the administrative board may carry out in its action the policy declared and delegated * * *. This marks the line between arbitrary officiousness and the exercise of delegated power to carry out a designated policy under the police power.”
In Male v Ernest Renda Contracting Co, Inc, 122 NJ Super 526; 301 A2d 153 (1973), aff’d 64 NJ 199; 314 A2d 361 (1974), cert den 419 US 839; 95 S Ct 69; 42 L Ed 2d 66 (1974), the court reversed the trial court’s finding that the New Jersey prevailing wage act was unconstitutional as an unlawful delegation of legislative power to a private party. Under the New Jersey act, the Commissioner of Labor established the prevailing wages for state projects from collective bargaining agreements. The Commissioner did not adopt any further rules or regulations but took the collective bargaining agreement that covered the majority of the workers in the locality and used the wages in that agreement as the prevailing rate. In holding that the statute was not unconstitutional, the appellate court reasoned:
“We do not find that the act, or the Commissioner’s interpretation thereof, presents a problem of delegation of legislative power. As we view the act, the Commissioner has not been delegated power to perform a legislative function; rather, he has merely been granted the power, as a matter of legislative convenience, to determine a set of facts, i.e., the wage rates established under collective bargaining agreements in given circumstances. The Legislature has determined, for reasons set forth in section 1 of the act (NJSA 34:11-56.25), that the wages paid under collective bargaining agreements negotiated between labor unions representing a majority of the workmen engaged in the trade under collective bargaining agreements and their employers shall be the wages paid in the performance of public work. That public policy determination was for the Legislature. We find no constitutional bar thereto. To conclude, as the tried judge did, that under such a scheme ‘the public is not sufficiently protected against such arbitrary or self-motivated action on the part * * * of such private party to whom the legislative function has really been delegated,’ misses the point and actually constitutes a substitution of judicial judgment for that of the Legislature.” Male v Ernest Renda Contracting Co, supra, 533-534.
Accord, Kugler v Yocum, 69 Cal 2d 371; 71 Cal Rptr 687; 445 P2d 303 (1968), Union School Dist of Keene v Comm’r of Labor, 103 NH 512; 176 A2d 332 (1961), Baughn v Gorrell & Riley, 311 Ky 537; 224 SW2d 436 (1949), Metropolitan Water Dist of Southern California v Whitsett, 215 Cal 400; 10 P2d 751 (1932). [Contra,] Industrial Comm v C & D Pipeline, Inc, 125 Ariz 64; 607 P2d 383 (1980) [sic, 1979], Bradley v Casey, 415 Ill 576; 114 NE2d 681 (1953), Wagner v Milwaukee, 177 Wis 410; 188 NW 487 (1922).
While we recognize that there is a split of authority on this issue, we are persuaded that Male, supra, presents the better view. The Michigan Legislature has not delegated any legislative, policy-making authority to the Department of Labor. The Legislature has declared as the policy of this state that construction workers on public projects are to be paid the equivalent of the union wage in the locality. The Department of Labor’s determination of that prevailing wage does not amount to the setting of any state policy. The Department is merely authorized to implement what the Legislature has already declared to be the law in Michigan.
In our judgment, the basic premise of plaintiffs’ argument is invalid. Plaintiffs maintain that the prevailing wage statute is constitutionally defective because it delegates to the unions, or to the unions and contractor/employers together, the authority to determine the wage rate on state projects. The statute contains no such delegation. Rather, the statute expresses the policy that wages equal to union scale are to be paid to both union and nonunion workers on public construction projects. The Legislature did not confer on the unions and the contractor/employers the power to set the prevailing wage rate for public contracts. It merely adopted, as the critical standard to be used by the Department of Labor in determining prevailing wage [sic], the wage rate arrived at through a collective bargaining process which is completely unrelated to and independent of the prevailing wage statute. The purpose of collective bargaining is not to set the wage scale for public projects but rather to set the wage scale for all construction projects.
There is a vital distinction between conferring the power of making what is essentially a legislative determination on private parties and adopting what private parties do in an independent and unrelated enterprise. [West Ottawa, 107 Mich App at 242-246 (emphasis added).]
We conclude that West Ottawa is on point and we reject plaintiffs unlawful delegation challenge.
B. SUPPLEMENTAL BRIEFING AFTER REMAND
After the Supreme Court remanded this case to this Court, ABC II, 472 Mich at 129, this Court granted plaintiffs motion to file a supplemental brief. Defendants filed a response brief. Having reviewed the supplemental briefs after the remand, we conclude that plaintiffs arguments are largely addressed by our adoption of West Ottawa and that the remaining issues are without merit.
Plaintiffs supplemental brief draws this Court’s attention to J A Croson Co v J A Guy, Inc, 2003 NLRB LEXIS 328, a hearing referee’s decision issued on June 27, 2003, subsequent to J A Croson Co v J A Guy, Inc, 81 Ohio St 3d 346; 691 NE2d 655 (1998). Plaintiff asserts that
litigation of that Ohio state court case (Croson) has continued through the NLRB, the recent result of which calls into question whether or not job targeting programs are as protected as the Intervenors contend.
***
Now the Board [NLRB] has determined that valid arguments exist to warrant a finding that job targeting programs may be inimical to state prevailing wage projects as well.
The referee’s decision in J A Croson, 2003 NLRB LEXIS 328, is neither binding nor persuasive authority. The issue addressed therein has no bearing on a constitutional analysis of Michigan’s PWA. Specifically, the referee’s decision addressed a technical timing issue, i.e., in the event a state court suit is preempted by the NLRB’s exclusive jurisdiction, at what time does the state suit become an unfair labor practice in violation of the National Labor Relations Act (NLRA).
To the extent that plaintiffs supplemental brief asserts that job targeting is "a collusive practice [that] springs from the collective bargaining process... [and] is precisely the kind of practice that taints the collective bargaining process in relation to the PWA,” as noted in our initial opinion, we agree with the circuit court that plaintiff had acknowledged that job targeting or market recovery programs do not violate antitrust laws and may constitute protected concerted activity under the NLRA. Plaintiffs supplemental brief raises nothing to alter our original analysis.
We reverse the circuit court’s determination allowing discovery to proceed and order that summary disposition enter in defendants’ favor on the unconstitutional delegation of legislative authority challenge.
II. CROSS-APPEAL
On cross-appeal, plaintiff argues that the PWA is unconstitutionally vague, both on its face and in application. The circuit court dismissed plaintiffs vagueness challenges, and we affirm.
A. FACIAL CHALLENGE ON VAGUENESS GROUNDS
Generally, “[t]he party challenging the facial constitutionality of an act ‘must establish that no set of circumstances exists under which the [a]ct would be valid. The fact that the . . . [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient ....'" Straus v Governor, 459 Mich 526, 543; 592 NW2d 53 (1999), quoting United States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). “ ‘[Statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.’ ” BCBSM v Governor, 422 Mich 1, 93; 367 NW2d 1 (1985), quoting People v Howell, 396 Mich 16, 21; 238 NW2d 148 (1976).
A law that does not reach constitutionally protected conduct and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due process; however, to succeed, the complainant must demonstrate that the law is impermissibly vague in all of its applications. [16B Am Jur 2d, Constitutional Law, § 920, p 516, citing Village of Hoffman Estates v Flipside, Hoffman Estates, Inc, 455 US 489; 102 S Ct 1186; 71 L Ed 2d 362 (1982).]
In this case, because the PWA does not implicate constitutionally protected conduct, plaintiff may succeed in a facial vagueness challenge only if it demonstrates that the law is impermissibly vague in all its applications. Because plaintiff neither argues nor sup ports that the PWA is impermissibly vague in all its applications, its facial challenge on vagueness grounds fails.
B. "VAGUENESS AS APPLIED” CHALLENGE
“To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or required. The statute cannot use terms that require persons of ordinary intelligence to guess its meaning and differ about its application. A statute is sufficiently definite if its meaning can be fairly ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” [People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000), quoting People v Noble, 238 Mich App 647, 652; 608 NW2d 123 (1999).]
We reject plaintiffs “vagueness as applied” challenge because we agree with defendants that the misdemeanor provision of the act does not apply to a simple failure to pay according to the contract. Whether construed strictly as a criminal statute or broadly as a remedial statute, the words of the statute itself must control. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538, 545-546; 565 NW2d 828 (1997). The PWA makes it a misdemeanor to violate a provision of the act. MCL 408.557. The act requires the contractor to include prevailing wage provisions in a covered contract, MCL 408.552, and to post prevailing wage information at the construction site and keep accurate records of the actual wages paid, MCL 408.555. The act also authorizes the contracting agent to terminate a contractor’s right to proceed with any part of the contract for which prevailing wages are not, in fact, paid, and to complete the contract with another contractor at the original contractor’s expense. MCL 408.556. While the act contemplates that the contractor will pay the prevailing wage, and provides for the right to terminate the contract for failure to do so, it cannot, be said that the failure to pay the prevailing wage in and of itself constitutes a violation of the provisions of the act. Thus, we reject plaintiffs “vagueness as applied” challenge to the act because the challenge is based on an erroneous construction of the act.
C. SPECULATION ABOUT STANDARDS
Plaintiffs final argument on cross-appeal is that the circuit court clearly erred in dismissing its claim that the PWA is unconstitutionally vague both on its face and in its application because discovery would show that nonunion construction contractors subject to the act must routinely speculate about whether their pay and work practices on prevailing wage projects comport with those derived from convoluted, constantly evolving, and generally unavailable collective bargaining agreements and unwritten understandings between trade unions and union contractors.
We conclude that this issue need not be addressed. “A valid statute is not rendered unconstitutional on the basis of improper administration.” Council of Organi zations v Governor, 455 Mich 557, 570-571; 566 NW2d 208 (1997). The criticisms plaintiff articulates here of the PWA, even if true, would not render the entire act unconstitutional. Plaintiffs promise that discovery would show these problems exist is not helpful. The alleged problems plaintiffs members have with the PWA relate to the CIS’s administration of the act or should be addressed to the Legislature and do not affect the constitutionality of the act.
We affirm the dismissal of plaintiffs vagueness challenges and reverse the denial of summary disposition as to plaintiffs delegation challenge.
DONOFRIO, J., concurred.
1 The CIS is now named the Department of Labor and Economic Growth (DLEG).
Our adoption of West Ottawa notwithstanding, we acknowledge the validity of plaintiffs arguments that the CIS, now the DLEG, should refine its internal methods of gathering information from which it determines prevailing wage rates (e.g., so that if a two-tiered wage system has been negotiated, it is made known to the CIS and incorporated into its prevailing wage determination and the possibility of an arbitrary rate is thus foreclosed). However, plaintiffs complaints are properly addressed to the Legislature, not the courts, as the complaints center on the wisdom of tying prevailing wage rates under the PWA to collectively bargained agreements. “A valid statute is not rendered unconstitutional on the basis of improper administration.” Council of Organizations and Others for Ed about Parochiaid, Inc v Governor, 455 Mich 557, 570-571; 566 NW2d 208 (1997).
Plaintiffs supplemental brief asserts:
[T]he PWA constitutes an unlawful delegation of legislative authority because it requires the Michigan Department of Labor and Economic Growth (“DLEG”) to adopt in wholesale fashion the agreements of interested private third parties for setting wage rates under the law. The PWA grants authority to unions and unionized contractors to establish one set of high rates applicable to public works projects through their collective bargaining agreements, to which all contractors are bound on public construction projects, but does not constrain them from negotiating another set of lower and more market reflective rates for use on privately-funded projects. This “two-tier” rate system is negotiated with one eye fixed firmly on the PWA, because it provides safe harbor for the artificially high public works wage rates in an otherwise competitive marketplace. The collusive practice of job targeting— which springs from the collective bargaining process and effectively establishes a two-tier rate system — is precisely the kind of practice that taints the collective bargaining process in relation to the PWA. Because the rates negotiated for use on PWA projects are artificially high, and because they result from collusive bargaining to the detriment of the Michigan tax-paying public, and because the DLEG is powerless under the statutory scheme to prevent it, the PWA constitutes an unlawful delegation of legislative authority to private parties.
In J A Croson, 81 Ohio St 3d 346, an unsuccessfid bidder on two public projects brought suit against the successful bidder, alleging that by cooperating with the union to receive subsidies under a job targeting program, the successful bidder violated Ohio’s prevailing wage law. The Ohio Supreme Court held that the National Labor Relations Act, at § 29 USC 157, preempts the Ohio state prevailing wage regulations “to the extent that those provisions could be construed to restrain or inhibit the federally protected use of job targeting programs.” J A Croson, 81 Ohio St 3d at 358.
See ABC I, slip op at 11.
Defendants’ final argument in the principal appeal, that plaintiff failed to exhaust administrative remedies, was alluded to, but not squarely raised below, nor was it addressed by the circuit court. Thus we do not address it. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
7 Facial challenges are permitted in other limited contexts. For example, if the law challenged reaches a substantial amount of constitutionally protected conduct, i.e., where free speech or free association is affected, it may be facially challenged. See Kolender v Lawson, 461 US 352, 358 n 8; 103 S Ct 1855; 75 L Ed 2d 903 (1983).
In a supplemental authority brief filed during the pendency of the initial appeal to this Court, plaintiff cites People v Barton, 253 Mich App 601; 659 NW2d 654 (2002), and People v Boomer, 250 Mich App 534; 655 NW2d 255 (2002), as supporting its.position. Plaintiff is incorrect, as the statutes challenged in those cases affected First Amendment interests. The ordinance challenged in Barton prohibited “any indecent, insulting, immoral or obscene conduct in any public place.” 253 Mich App at 602. The Barton Court stated, “We note that defendant may challenge the ordinance as unconstitutionally vague on its face because it threatens First Amendment interests.” 253 Mich App at 605: The statute at issue in Boomer provided that “[a]ny person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall he guilty of a misdemeanor.” 250 Mich App at 536. The Boomer Court noted that the statute “impinges on First Amendment freedoms” in that it unquestionably “reaches constitutionally protected speech.” 250 Mich App at 541-542.
Nothing in Western Michigan Univ, argues to the contrary. The language relied on by defendants clearly states that the act requires that the contract contain certain provisions, and the issue presented here was not discussed. | [
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Cooley, J.
This case was sent to a znferee by the circuit oozu’t, and judgznent was given in favor of defendant on the referee’s report. The important facts in the case are the following:
For some tizne prior to June, 1879, and up to August of that year, plaintiff was a dealer in grain at Yerznontvillé in this State, and defendants were comznission brokers and members of the Boai’d of Trade of Detroit. As commission broker’s they had bought and sold for the plaintiff previous to the 30th of June, 1879, and made advances which were all settled on that day. On August 11,1879, plaintiff made a conditional sale of his bzzsiness to his brother Osmyn G-. StebbinsY The conditions were to be performed within a week thereafter’, but they were not performed, and at the end of the week plaintiff resumed his business and took possession of bis property, which in the meantime his brother had had and controlled. A few days before this the defendants had written the plaintiff, sohciting his shipments, and in reply they received the following letter:
“ Orrice or O. G. Stebbins,
Thornapple Yalley Mills,
And dealer in Grain, Feed, Land, Plaster, etc.
Vermontville, Mich., Aug. 11, 1879.
Messes. Walker, Sumner & Co.:
Your letter of the 4th of August was duly received at my stopping place, and by reason of my absence from home and general inattention to business lies unanswered. At tbe opening of the new crop trade .this season I did not think I should engage in active work at all at present; and as I am yet unable to labor, I do not know when I shall take hold again. I am now seriously contemplating a trip to Colorado. My brother is at work in a mild way in the wheat business, but he has so far seen fit to ship to another party, from whom he gets the same rebate as you offer. His initials are the same as my own, so that if you choose to correspond with him, the same direction will reach him as myself.
Thanking you for your efforts in my behalf,
I remain truly yours,
O. Gr. Stebbins.”
This letter was understood by defendants to mean that the plaintiff intended to remain out of business for a time, and that the brother Osmyn was then in the wheat business in Yermontville, and thereupon they addressed a letter to Osmyn, soliciting his business. They also wrote to the plaintiff informing him how they understood his letter, and that they had solicited his brother’s consignments. To this the plaintiff sent no reply, and until November 26th following defendants supposed the dealings with them in the name of O. Gr. Stebbins hereinafter mentioned were on behalf of Osmyn G-. Stebbins, and had no information and no reason to suspect the contrary. These dealings began after September 17th, on which day plaintiff left home for his health and remained absent until October 24th, leaving his brother Osmyn in charge of his business. "While he was gone Osmyn shipped to defendants five car loads of wheat in the name of O. Gr. Stebbins and for the plaintiff, but which defendants received, sold and accounted for, supposing it to be the .wheat of Osmyn himself. On these dealings a balance remained due to the defendants of $74.64. There was also sent to defendants a car load of wheat which was placed in the elevator, but by reason of some mistake, owing to a change of bookkeepers, was not credited to any one. This also belonged to the plaintiff. Early in November defendants also made a purchase of wheat, and also a sale of it which they supposed to be for Osmyn, but which was in reality on an order from plaintiff, on which they realized a profit of $307.50, and which left standing to the credit of O. Gr. Stebbins on their boohs $232.86.
Osmyn G. Stebbins left his brother’s employ November 5, 1879. On November 15th he telegraphed defendants from Jackson in the name of O. G. Stebbins, asking them to send him $700. Nfelying upon his personal credit they sent the money. At the same time he requested them to purchase for O. G. Stebbins 3000 bushels of wheat for January delivery. With this request they also complied.
On November 26th defendant Walker was at Yermontville, when he for the first time learned that plaintiff had resumed business, -and that all the wheat dealings previous to November 15th had been conducted by Osmyn as agent, not as principal. Plaintiff told Walker he had no interest in the purchase of November 15th, but would take it off defendants’ hands. This he could then have done at a profit of $150. Walker declined this offer, but said he would stand upon the purchase until he could realize $700 profit upon it, and then close it out. The wheat was afterwards sold, however, without profit. Afterwards plaintiff had other dealings with defendants which entitled them to claim from him $79.75. The car load which by mistake was not credited to any one, was sold by defendants in January following, and realized $452.79. The defendants claimed they were entitled to apply this and also the $232.86 which was in their hands to the credit of O. G. Stebbins, on November 15, 1879, as part payment of the $700, which Osmyn G. Stebbins obtained from them on that day. Plaintiff resisted this claim, and demanded from defendants the proceeds of all the wheat belonging to him which had been forwarded to and sold by them.
The circuit court gave judgment for the defendants, applying the $232.86 and $452.79 in accordance with their claim, and permitting them to recover the balance of $79.25 on subsequent dealings. This would leave a balance of $14.35 of the $700 still unpaid.
Was this judgment correct? We think it was. Defendants from August 14th to November 5th had been dealing with Osmyn G. Stebbins in the belief that he was principal in the business, induced to that belief by the letter and subsequent conduct of the plaintiff, and having no reason to think or suspect the contrary. Plaintiff knew that the manner in which the business was done and the corresj>ondence conducted, was calculated to lead the defendants to suppose that he had retired from the business, and Osmyn had become his successor. When Osmyn left his employment, no notice was given to defendants, and to all appearance the business continued as before. The defendants were therefore not in fault, and were chargeable with no negligence in assuming that Osmyn still continued to be the principal. He had forwarded several car loads of wheat to defendants in the name of O. G. Stebbins prior to November 5th, and received the proceeds in the name of O. G. Stebbins, and it is conceded that payment was properly made to him, though the wheat belonged to the plaintiff. Defendants supposed the wheat belonged to Osmyn, but it is conceded that if they had known the plaintiff was owner, the payment to Osmyn would have been a valid payment, because Osmyn was the plaintiff’s agent and doing business in the plaintiff’s name. But if a payment to Osmyn before November 5th was good, one after November 5th must have been equally good. Defendants had no notice of any change in the business, and in fact there had been none. The same person who had sent wheat to them, and who they supposed and had a right to suppose was the principal, requested of them an advance, and they made it. The referee reports that defendants relied, in making this advance, on the personal credit of Osmyn; but their reliance on his credit would not preclude their relying also on their lien upon the grain received from him. Liens on property are commonly accompanied by a personal responsibility, and the creditor is entitled to rely upon both.
The case in judgment is a plain case of estoppel. There has been negligence from which one of two parties must suffer, and the responsibility for this negligence justly and exclusively lies at the door of the plaintiff. If he were now to collect of defendants the sum they advanced to his brother while he was acting ostensibly as principal, they would be defrauded, and the plaintiff’s negligence would have furnished the opportunity, and the agent. The loss must therefore fall upon the plaintiff, though his intentions may have been entirely honest: Vanneter v. Grossman 42 Mich. 465. Nor has there been any failure here, as there was in Mawwell v. Bay Ciby Bridge Co. 41 Mich. 453, to find the facts from which the estoppel springs: they all appear in the referee’s report.
It is claimed that defendants waived the hen on the car load of wheat remaining in their hands when they were informed of plaintiff’s interest; but the record shows no express waiver, and no facts from which it must necessarily be implied. • They did indeed express a willingness to hold the January wheat until the rise in value should make good their loss; but there was no agreement to that effect, and if there had been, a desire to protect the plaintiff against loss might sufficiently account for it. They also declined plaintiff’s offer to take the January wheat off their hands, coupled as it evidently was in his mind with leaving them to lose the $700 advance; and for this they cannot be blamed. It was talked over between the parties that defendants should proceed to sell the car load of wheat then on hand; but if plaintiff expected defendants to waive any existing hen, and pay over to him the proceeds, he neither gave any consideration therefor, nor asked or obtained any promise to that effect. The defendants were therefore at liberty to stand upon their rights as they existed at the time they first learned that the business earned on with them by Osmyn in the name of O. G. Stebbins was really the business of the plaintiff.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Graves, J.
Eider sued Kern before a justice of tbe peace for the value of a beer wagon and the cause was appealed to the circuit court. On the evidence being closed the circuit judge directed a verdict for the defendant and the question is whether there was anything on which the ■ plaintiff was entitled to have the consideration of the jury. One Fahsnacht, the plaintiff’s stepfather, owned the wagon originally and finally sold it to Kern. Kern paid $5 in money and some twenty or twenty-five dollars in beer. When this trade was made Fahsnacht said nothing about any interest in Eider, and Kern swears that he supposed Fahsnacht owned the wagon and that he was selling exclusively on his own account. The claim set up by Eider is that some time prior to this bargain, the wagon was taken by one Crawford from Fahsnacht on a mortgage and sold and bid in by Crawford; that Eider’s mother held for his security a certain amount of his savings and requested him to authorize her to buy the wagon for him and pay therefor out of said moneys in her hands, and that he consented and the wagon was so purchased accordingly; that he subsequently authorized his stepfather Fahsnacht to sell the wagon for him and that Fahsnacht thereupon made the sale to Kern; that payment being delayed he called on Kern who informed him that he had the money on hand, but as he made the purchase of Fahsnacht and without notice that anybody else had any interest he would not pay any more until he was satisfied who was entitled to the money.
The claim on the part of Kern is that Fahsnacht was the real owner and that the claim of plaintiff is fraudulent. He also insists that shortly after his purchase he was garnished by a creditor of Fahsnacht and was adjudged liable for the entire amount back on the price of the wagon, and was compelled to pay and did pay the amount on the judgment against him as such garnishee. There was evidence tending to maintain each of these conflicting claims and the case presented a controversy of fact which it was not competent for the court to either decide or ignore. The plaintiff was entitled to have his version settled by the jury and the judge erred in taking the case from them. The reasoning in support of the ruling implies a right in the court to weigh the evidence; but we cannot suppose counsel to be serious in the invitation to listen to an argument of that sort.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Marston, C. T.
An information was filed against the respondent in the circuit court for the county of Shiawassee, charging him with having committed adultery with one Theresa Phoenix at the “ Clinton House, an hotel in the village of Ovid in Clinton county, within one hundred rods of the dividing line between said county of Clinton and said county of Shiawassee.” To this information the respondent pleaded guilty and was duly sentenced. The case is now brought here on writ of error, and the errors assigned are— First, that the complaint was not made by the wife of the respondent; secondly, that the information charged him with the commission of a crime in the county of Clinton; and third that an investigation, after plea and before sentence, was not made by the circuit judge as required the statute, Act 99 of the Session Laws of 1875.
The complaint was made by the husband of Theresa Phoenix, thus following the precedent adopted in Parsons v. People 21 Mich. 509, where the question was incidentally considered and the judgment affirmed. Our statute, section 7693, 2 Comp. Laws, in providing that “no prosecution for adultery shall be commenced but on the complaint of the husband or wife,” must be construed in connection with the first section of the same chapter, which declares that when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery and liable to the same punishment. If in such a case the complaint could not be made by the husband of the woman such unmarried man could not be prosecuted or punished, which certainly was not the intention. We are of opinion that the complaint was properly made under our statute.
As to the second error assigned. The statute in express terms authorizes the prosecution and punishment in either county of offences committed on the boundary or within one hundred rods of the dividing line between two counties. § 7808.
The return of the circuit judge to the writ of certiorari issued in this case, shows that he made investigation and became satisfied that the plea of guilty was made freely, with full knowledge of the nature of the accusation and without undue influence. He farther returns that such investigation was made in open court, and that according to his recollection the prosecuting attorney and at least one of the officers of the court were in the court-room at the time. The mere fact that the investigation was made in open court, and that such third parties were present, is not fatal. The statute does not in express terms require a private examination to be made, and although there may be eases, where owing to the tender years of the accused, or for other reasons apparent to the circuit judge, a private examination should be had/ yet we cannot hold such to be absolutely necessary. Henning v. People 40 Mich. 733; Edwards v. People, 39 Mich. 760.
We discover no error in the record and the judgment will stand affirmed.
The other Justices concurred. | [
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Cooley, J.
The assignments of error in this case are frivolous. The suit was brought upon a judgment rendered by a justice of the peace in the State of Illinois, and the transcript showed personal service and a personal appearance. The objections to a recovery upon the judgment there rendered are — Ewst, that no proof is given of the identity of the party now sued with the party sued in Illinois; and second, that the laws of Illinois are not put in evidence to show that the justice in that State had jurisdiction of the case. The first finds no support in Bennett v. Libhart 27 Mich. 489, to which our attention was called, for the name of the party sued here was identical with that of the party against whom the judgment was recovered,, which was not the case there. The second is answered by the statute, Comp. L. § 5933, which makes the transcript: properly certified sufficient evidence. No defect was pointed* out in the certificates here.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
July 6, 1878, Preston & Merriam entered into a written contract with John A. Taft and Amasa Wilder by which the latter agreed to place a shingle and siding mill on certain premises specified, and convert the pine timber thereon into shingles and short siding, for which said Taft & Wilder were to have three-fourths of said shingles and two-thirds of the siding. It was also agreed that Preston & Merriam should have the right of selling Taft & Wilder’s share of the shingles at market price in lots not to exceed two and one-half millions at a time, except one-tenth to be deliverable to Hayes & Webber as fast as cut, and that five cents per thousand should be allowed and paid for this service.
The contract further provided that whenever Taft & Wilder should deliver at .the railroad two hundred and fifty thousand shingles, Preston & Merriam should advance to them two dollars per thousand on stars and one dollar per • thousand on No. 1.
The arrangement was to continue for two years from October 10, 1878, unless in consequence of some default on the , part of Taft & Wilder, Preston & Merriam should elect to terminate it sooner. It is needless to refer to the other ■stipulations.
Taft & Wilder erected the mill and then bargained with Young to take the timber standing, cut and haul it to the mill and place it on the roll-way for thirty-five cents per thousand. .Young consequently became-a sub-contractor under Taft & Wilder for part of the service they had agreed to render. The transactions were not dependent but in contemplation of law entirely distinct. The duties and obligations pertaining to each were exclusive of the duties and •obligations of the others. The parties to one could hold ■each other to payment and performance without regard to the other, and neither contract could be impaired except by its own parties. All this may be supposed to have been well understood by the plaintiff and defendants.
Young went on under Ms contract with. Taft & Wilder until into February, at which time he had about 3800 logs in the mill yard. He had run up a debt to Merriam for feed and Taft & Wilder were owing Mm a larger sum. He complained of being'unable to obtain payment, and proceeded to call on Preston & Merriam in order to effect some arrangement, and tMs action depends on the transaction which then occurred. The interview was at Edmore. Taft ■& Wilder were neither present nor concurred in it. Preston & Merriam were both present and Preston’s son was also by. They agree as to what the arrangement was but contradict Young. There was no writing. As the case is presented it is necessary to confine attention to Young’s version.
He testifies that he told Preston-& Merriam he could -stock the mill no longer unless they paid him; that he could not work without money; that he claimed the logs as Ms until paid his thirty-five cents per thousand, and that, if they -did not pay him, he would take the logs to another mill, “ to get something out of themthat he asked if they could not pay him something on the amount already due him from Taft & Wilder; that Merriam then agreed to credit him on his individual account for the accrued indebtedness, and Preston agreed that, if he would go on and stock the mill for them, they would pay him the money on each lot of 371,000 shingles, provided he brought orders from Taft & Wilder; that with this understanding he went on and thereafter obtained orders from Taft & Wilder on Preston & Merriam and the latter continued to cash them until July; that he then went to see them to make a final settlement, and “ they claimed another bargain ” and refused to pay the residue of his demand. He also testifies that he had nothing to do with Taft & Wilder; that he did not work for them and was not to look to them for Ms pay.
This is nothing more than an explanation of what his purpose was and an expression of his own idea of the nature and effect of the transaction. It cannot control the legal operation of the undoubted facts. The orders were all drawn with direct reference to the liability of Preston & Merriam to Taft & Wilder under their written contract, and they all plainly and positively recognized that that contract continued pending and operative in favor of Taft & Wilder against Preston & Merriam, and their purport plainly negatived the idea of their being instruments to carry out a new original agreement between Young and plaintiffs in error for stocking the mill. No ordering by Taft & Wilder of the kind thus made use of and acted on by Young and plaintiffs in error would have been necessary or appropriate in respect to a distinct original agreement to which Taft & Wilder were not parties. These orders are of great force-as evidence of the actual construction which the parties themselves put on the transaction. It was only through them that Young obtained the money from plaintiffs in error' under the arrangement at Edmore, and it was on them alone as requests of Taft & Wilder to pay, and as vouchers against. Taft & Wilder, that the plaintiffs in error made payment. Preston & Merriam were not discharged from their liability to Taft & Wilder, and the extent of their undertaking to-Young was to pay him whenever by so doing the payment would apply on their liability to Taft & Wilder. They did not mean to be liable twice over for the same thing: once to-Taft & Wilder and again to Young, and they took pains to-avoid it. Their agreement with Young was not an original one ; but merely an undertaking to pay on the debt or obligation of Taft & Wilder as the latter should order: and hence it contemplated a novation in just so far as it should be actually carried out. In short the essential feature of the-arrangement was that Taft & Wilder were to be Young’s-debtors, and hence in a situation in which it would be practicable and appropriate for them to order the plaintiffs in error as their debtors to make payment to him.
Taking Young’s testimony in connection with the orders-which are not questioned, and it makes a case which admits of only one construction. The promise relied on is within the statute of frauds, and not enforceable for want of writing. Comp. L. § 4698, subd. 2. It was an undertaking to pay for Taft & Wilder. The version given by the defendants of the transaction at Edmore most manifestly entitled them to a verdict if believed. The court however refused a request to that effect, and submitted the case under instructions which authorized the verdiet in Young’s favor.
The judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J.
Mrs. Seaman, the defendant in error, commenced summary proceedings to recover possession of land, claiming the right of possession as tenant in dower, and guardian of her infant children. She was, at the time of her marriage to Mr. Seaman, widow of John W. Pardee, who had owned the land during his life. The defendant below claimed in his own testimony to have gone into possession under a verbal agreement of sale, for a price of six hundred dollars which was to be paid by payments of seventy dollars a year, but which, as he showed, had not been • paid except by some early payments about ten years ago. The testimony on the other side showed a mere tenancy at will, on rent which had become somewhat in arrears, and proof was made of a five or six months’ notice to quit, a promise by Moody to give up possession on the first of April, 1880, and a second notice of fourteen days before April 1. Judgment was given on appeal for the demandant.
The questions raised are all within a narrow compass, and need not be discussed separately throughout.
The form of the complaint is in compliance with the .statute, and within the rule of Bryan v. Smith 10 Mich. 229.
It is objected that Mrs. Seaman could not bring this proceeding before her dower was assigned. This might be true if she had represented no other interest, because the statute does not contemplate proceedings unless the demand-ants represent the entire interest. But it has not been doubted that tenants in common of the whole estate could join in such action. Under our present statutes a widow may bring ejectment for her undivided interest at once and without assignment, and is recognized as having a present possessory claim capable of enforcement. Proctor v. Bigelow 38 Mich. 282. In connection with the heirs at law there ■can be no doubt the whole possessory estate is represented. In this case it happens that she herself has the right of possession on behalf of the heirs, and there is no reason why, inasmuch as she thus represents for them and herself the whole title, she should not be allowed to vindicate the pos■session.
Neither is there any doubt of the right to bring this pro-ceding on either of the theories of the contending parties. The statute gives the right in case of breaches of land contracts as well as on leases. Comp. L. §6706. The respondent himself showed he was in default, and whether he was im as purchaser or lessee, he was in either case a tenant at will, and liable to be ousted on notice. Crane v. O'Reilley 8 Mich. 312. It was held also in. this case that such a tenan,t could waive notice.
In this case there was evidence of full notice, and further-evidence of a promise to surrender. Unless the fourteen-day notice was a waiver of any other right the case is open to no doubt. That notice was no more nor less than a notice-to leave at the time previously required and agreed on. It does not occur to us in what way a repetition of the same-demand is inconsistent with the demand.
It is also claimed that section 21 [of Chapter 123] of theKevised Statutes of 1846, which prohibited proceedings in certain cases after three years’ possession, is still in force. That section is obscure, and if wé had occasion to consider it, might require some attention. But in 1867 it was included in a statute substituting certain sections named for-the existing sections of the old law. Laws 1867, Act 94. Probably the identity of language was an error. But in 1869 (Laws 1869, p. 197) several new sections were substituted for former ones, and the law of 1867 was expressly repealed.. We think there can be no doubt that the intention of this-statute was to repeal all of the sections included in the statute of 1867, and therefore section 21 ceased to have any further force, and the statutes must be read without it.
No questions appear in the cause which are not covered, by what has been already said.
The judgment must be affirmed with costs.
The other Justices concurred.
COMPLAINT.
To Harry F. Chipman, Esq., Circuit Court Commissioner, Wayne County, Michigan.
The complaint of Harriet A. Seaman of said county of Wayne, respectfully shows that Abraham Moody is in possession of the following -described lands and tenements, situated in the town of Dearborn, in said county of Wayne and State of Michigan, to wit: * « « [description -omitted] « * * « That Harriet A. Seaman is the landlord of said premises, and said Abraliam Moody is the tenant under her.
That said Abraham Moody holds said premises unlawfully, and against the rights of the said Harriet A. Seaman, and that the said Harriet A. Seaman is entitled to the possession of the same in her own right and as guardian of the minor heirs of John W. Pardee, deceased.
Wherefore, this complainant prays that proceedings according to the statute in such case made and provided, may be taken against said Abraham Moody, and that the possession of said premises may be restored to said Harriet A. Seaman.
Hattie A. Seaman. | [
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Cooley, J.
To an understanding of this case a brief summary of the facts is essential.
Under certain legislative acts purporting to empower the city of Port Huron to grant municipal aid to the Port Huron Lake Michigan Bailroad, the city subscribed a large sum to the stock of the company engaged in building that road, and issued bonds for the amount of the subscription. These bonds were negotiable, and soon passed from the railroad company into the hands of purchasers.
Subsequently to these issues, in the case of People v. Township Board of Salem 20 Mich. 452, this court decided that it was incompetent under the Constitution of the State to pass acts empowering municipalities to grant aid to railroads. Notwithstanding that decision the municipalities which had issued bonds in conformity with the invalid legislation, generally recognized their obligation to provide payment, and proceeded to do so without dissent on the part of their people. In some cases suits were brought in the federal courts and recovery had. In some other cases suits were brought in the State courts and judgments allowed to pass by default or on confession. In Port Huron the controlling sentiment seems to have favored the payment, without question, of the bonds the city had issued, and some of them were put into judgment in State and federal courts without contest. In January, 1815, the city attorney was instructed by a vote of'the common council to confess judgment in all suits brought upon the bonds. ’
I think we are agreed that the question of the original validity of the bonds which have been' put in judgment is now wholly unimportant. The good faith of the city authorities in suffering the judgments to be taken is not impugned, and they stand unquestioned. We are, therefore, excused from any discussion of some of the points made.
The charter of the city was revised in the year 1869. One section of the revision is as follows: “No loan, bond, or other evidence of debt not expressly authorized by this act, or by any act hereby continued in force, shall be made or issued by the common council or any officer of the corporation; provided, however, that the common council may issue new bonds for the refunding of bonds and evidences of debt already issued, and the proper officer of the corporation may draw and issue orders on the treasury for the necessary and current expenses of the city.” Laws of 1869, vol. 3, p. 1554.
Under the assumed authority of this provision of the charter, the common council in October, 1874, voted to sell eight per cent, bonds, at a price not below par, for the payment of judgments on railroad aid bonds, and proposals for the bonds were invited by public notices. In the following month the interest offered was increased to ten per cent., and proposals were then received and bonds issued from time to time to the amount in all of $80,000 and upwards. The money received for these bonds was paid into the .city treasury, and was used to satisfy judgments rendered upon the railroad aid bonds.
The charter of the city was again revised in 1877, and the following are the provisions which bear upon the issue-of bonds:
“The common council shall with the approval of the board of estimates also have power to provide money for the water fund, the sewer fund, the school building fund, the public building fund, and the bridge fund, by borrowing upon the faith and credit of said city, and upon the best terms that can be made, such sums of money as shall be-deemed necessary and expedient, and to issue the bonds of' the city therefor, but said bonds shall not be negotiated at less than their par value or bear interest to exceed seven per centum. * * *
“Bonds issued under the preceding section shall be respectively denominated ‘ water bonds of the city of Fort Huron,’ ‘ sewer bonds of the city of Port Huron,’ school building bonds of the city of Port Huron,’ ‘public building bonds of the city of Port Huron,’and‘bridge bonds of the city of Port Huron,’ and shall be regularly dated and numbered in the order of their issue, shall be for sums not less than one hundred dollars each, and shall be payable in not less than ten or more than thirty years from date; shall be issued under the seal of the corporation, signed by the mayor and clerk, and countersigned by the controller.. The controller shall keep an accurate record of said bonds, and of the class of indebtedness to which they belong, the number, date, and amount of each bond, its rate of interest,, when and where the same is payable, and the person to-whom it is issued. The proceeds of said bonds shall be paid into the city treasury and be credited to the funds for which the bonds were issued, and be applied exclusively to the purposes for which said funds are constituted by this act.
“No loan, bond, or other evidence of debt not expressly authorized by this act or any act hereby continued in force, shall be made or issued by the common council or any board or officer of the corporation: provided, however, That the common council, subject to the approval of the board of estimates, may issue new bonds for the refunding of bonds- and evidences of indebtedness already issued, subject to all the limitations and regulations contained in the two preceding sections: And provided further, That the controller may draw and issue orders on the treasurer for the necessary and current expenses of the city and of the several boards, as the same may be allowed by the common council.” Local Acts 1877, pp. 229-230.
It was after this revision that the bond whose validity is-questioned in this suit was issued. It was issued as a refunding bond, and the proceeds applied to the satisfaction of judgments rendered upon railroad aid bonds previously outstanding.
It is insisted that the charter as thus revised does not authorize the issue of refunding bonds for the railroad aid indebtedness, but that on the contrary the issue of new bonds is restricted to the refunding of those issued for the several purposes which are here specified. The new bonds, it is said, are to be issued, “ subject to all the limitations and regulations contained in the two preceding sections;” and those sections name four classes of bonds, not including the railroad aid bonds, and require the moneys raised on each class of bonds to be credited to the fund for which the bonds were issued, and to be applied exclusively to the purposes for which such fund is constituted.
This argument is sound if the view is correct which is taken of the third section above quoted, that it restricts the power of refunding to the bonds before particularly specified. But in terms it contains no such restriction: the words are as general as possible, and cover “bonds and evidences of indebtedness ” without limitation. If there were nothing further in the section, it would seem clear that the intent was to confer an unrestricted power. But the power is restricted in this: that the refunding bonds must be issued “ subject to all the limitations and regulations contained in the two preceding sections.” What are these ? It seems to me there should be no question on this point. The bonds must not be sold below par; they must not bear more than seven per cent, interest; they must be payable in not less than ten nor more than thirty years; and then there are further directions to ensure an orderly issue and a perfect record. These are limitations and regulations proper to be imposed on the issue of any bonds, and they were wisely imposed here. But if the purpose was to restrict the issue of refunding bonds to the indebtedness pertaining to the particular funds named, it is reasonable to conclude that this would have been done in terms. The language granting power to refund is general, and the restraining proviso is fully satisfied by applying it to the particulars which have been specified. There 'is no apparent reason for extending it by construction, and no reason is suggested for supposing the Legislature intended to preclude the city from refunding its aid bonds. The legislative sentiment was not adverse to their payment. On the contrary there was then in existence a legislative act passed two years previously expressly empowering the several municipalities to levy taxes for the payment of railroad aid bonds previously issued by them, and the legislative intent that they should be paid was unquestionable. We should naturally expect, therefore, that any legislation for the refunding of existing indebtedness would be sufficiently general to include such bonds: and when we discover that which is apparently general, we are not invited by the circumstances to any narrow interpretation on the supposition that such was the legislative intent. All apparent reasons point in the opposite direction.
But it is also said that refunding bonds may be issued only for the refunding of “ bonds and evidences of indebtedness already issued;” and a judgment is not an evidence of indebtedness issued. A judgment is the act of a court;, but the refunding provision intends the obligations which the city itself has issued as evidence of its indebtedness, the bonds, notes, etc., and this view is strengthened by the following section — § 12, p. 231 — which provides that “ All bonds and evidences of debt, when refunded, shall be can-celled and destroyed by the treasurer in the presence of the controller and a special committee of the common council appointed for that purpose. He shall record and keep an accurate description of all, bonds and evidences of debt thus cancelled and destroyed.” A judgment, it is said, cannot be thus cancelled and destroyed.
This view of the statute is an after-thought on the part of the city authorities. It seems never to have occurred to them until after the refunding bonds had been issued and sold, and judgments paid from the proceeds. The point is now made, when its effect, if sustained, is to defeat obligations for which full value has been given, after the city has appropriated the avails. It is to be assumed that the city officers when they paid the judgments, found some method of cancelling and destroying them. The point is therefore absolutely without equity, and is entitled to such consideration only as a just construction of the statue will compel us to give it.
This view of the statute is also very narrow and technical. It comes from a strict and narrow interpretation of words,, such as persons are accustomed to resort to when they would assign plausible reasons for circumventing a statute without expressly antagonizing it. It is easy to say that a judgment is not an evidence of indebtedness issued; but it is just as easy to say the contrary, and with quite as good reason. A judgment is not only an evidence of indebtedness, but it is of the highest and -most conclusive nature. And there is no straining of language in saying that the judgment is issued. The word is not the most appropriate, but we know that persons who are not critical in the use of language ■sometimes speak of a court having issued its judgment. And what difficulty there can be in cancelling and destroying a judgment I do not understand. The utterance of the judge pronouncing it cannot be destroyed; the book in which it is entered is to be preserved as a perpetual record; but the judgment as an evidence of indebtedness is cancelled when it is paid and receipted, and if the ■discharge is entered upon the record, as is customary, it is •an effectual destruction. If the treasurer cannot do this in person, he can cause it to be done. The statute does not indicate any particular method of destruction: the method must be suited to the case.
It is not very agreeable for a court to be thus invited to a critical examination of words to defeat an obligation which has been issued and paid for under an opposite interpretation. The case under such circumstances ought to be too clear for doubt or question; it ought to be so plain that at first blush we feel compelled to say that the parties receiving the obligation ought to have known it was issued without authority and in fraud of the law, and are therefore fairly chargeable with fault in receiving it. If the true •construction of the law is in doubt, the city ought to be held to the view its own authorities took of it when borrowing money under it, especially as nothing was involved in the original action but the mere change in the form of a •city debt.
There is a principle of law that municipal powers are to be strictly interpreted; and it is a just and wise rule. Municipalities are to take nothing from the general sovereignty except what is expressly granted. But when a power is conferred which in its exercise concerns only the munidpality, and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view to narrowing its construction. If the parties •concerned have adopted a particular construction not manifestly erroneous, and which wrongs no one, and the State is dn no manner concerned, the construction ought to stand. That is good sense, and it is the application, of correct principles in municipal affairs.
It is worthy of note as having possible bearing on the legislative intent, that the alternative to issuing refunding bonds must have been the levy of taxes to make immediate payment of the judgments; and this must have operated oppressively and perhaps brought disaster upon the city.
I think the judgment should be affirmed.
Marston, C. J. and Campbell, J. concurred.
Graves, J. I concur in the result. | [
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Cooley, J.
This is a bill to foreclose a mortgage given by the defendant John B. Blackmer and his wife to the. complainant, bearing date February 1Y, 1869, and recorded in March following. Stephen W. Duncombe as administrator of the estate of Hezekiah Selleck deceased, is joined as a defendant under the general allegation that said Selleck was a subsequent encumbrancer. No contest is made respecting tbe mortgage held by complainant, and the litigation has-concerned the Selleck mortgage exclusively. That mort-. gage bears date January 13, 1868, but was neither acknowledged nor recorded until after the recording of the Mattesonmortgage. It is claimed by Duncombe, however, that theSelleck mortgage was made and delivered at the time of its date, and that complainant, through Milo D. Matteson his-agent, was notified of its existence when the mortgage in suit was taken.
The points contested in this case are — First, whether. theSelleck mortgage was. made and delivered before the Matte-son mortgage; second, whether Milo D. Matteson was the agent of complainant in taking the mortgage now in suit; and third, whether,’ if he was agent, he had notice of the-existence of the Selleck mortgage when negotiating for and receiving the other.
On the first point the testimony of the mortgagor is positive that the Selleck mortgage was given when it bears date. On the evidence there seems to be no^ ground for questioning the fact of its being then made, upon a consideration of money previously loaned. What is disputed is, that it was-then delivered. Blackmer testifies that it was handed to a notary to take into the country, where he resided, in order to-have his wife sign and acknowledge it, but that this was delayed a long time, until finally it became necessary to employ another. Complainant’s counsel insists that there is no evidence of the delivery of this mortgage until the time-of acknowledgment; and it is true that Blackmer does not expressly testify that he delivered it. He however testifies-in general terms to giving the mortgage to Selleck in January, 1868, and as neither party saw fit to question him respecting the particulars of delivery, this must be deemed sufficient. An attempt is made to overcome his testimony by that of one Coneley, who swears to having been told by Selleck in 1869 or 1810 that Blackmer had given him a mortgage, but never acknowledged nor delivered it “until the other mortgage was given and put on record.” It is a very suspicious circumstance that the witness never mentioned this conversation to any one in the life-time of Selleck, nor until after this suit had been pending for seven years, nor until Milo D. Matteson called upon him just before he was sworn to ascertain if he was possessed of valuable information. Why Matteson should direct the inquiry to him does not appear. Ooneley lived five or six miles from Selleck in the life-time of the latter, and no circumstance is stated that would have been likely to make him the confidant of Selleck. We do not place much reliance on this evidence, especially as Matte-son appeal’s to have a mortgage on the lands of the witness. We do not think it overcomes the testimony of Blackmer.
That Milo D. Matteson was not the agent of complainant in taking the mortgage in suit is sworn to positively by him, but nevertheless we think his testimony establishes the fact. The complainant is his father, and Milo swears that he was his father’s agent in the business of loaning money until a short time before this mortgage was taken. His father was boarding him for what service he rendered, and he refused to work longer without better compensation. Nevertheless he took up the work again almost immediately after this mortgage was taken; so that he was indisputably the agent just before and just after the transaction. In this transaction he claims to have been agent for Mr. Blackmer in obtaining a loan for him; but giving full effect to all his statements of fact, it is perfectly evident he was agent for-his father in this matter as much as at other times. It may be that he was not under pay at the time; but if so he performed a voluntary service of which his father accepted the benefit. Milo took upon himself the whole negotiation, decided upon the security, satisfied himself resq>ecting the title, attended to the execution of the papers, received the money from his father and paid it over to Blackmer; in short did everything there wa,s for an agent to_ do in the matter, and as much as any agent could ever have done in a similar negotiation. Complainant never appeared in the transaction at all, except as he handed over the money to Milo; and it is idle for Milo to testify that under such cir cumstances he was agent for Blackmer. It is true he succeeded in extorting from Blackmer a large bonus; but that has been altogether too common a procedure for the agents of money lenders to have significance on this question.
On the question of notice of the other mortgage Blackmer and Milo D. Matteson contradict each other. Complainant insists that Milo’s testimony is most credible, because the value of the land at the time was scarcely sufficient to secure both debts. This is a circumstance deserving' attention; but it is not conclusive. Blackmer gave a note with the mortgage, and it does not appear he was considered irresponsible. Milo says Blackmer “ had a good many pieces, of land: he. was land-poor.” By this is generally understood that a man has a great deal of unproductive land, and perhaps is obliged to borrow money to pay taxes; but a man “land-poor” may be largely responsible. It is noticeable-that this record shows no negotiation in respect to the land to be pledged; and we find nothing to indicate that the personal responsibility was not considered the chief reliance. But without discussing the evidence it is sufficient to say that the circuit judge found a preponderance of' testimony in favor of the notice; and we are not satisfied that he was-in error. The decree, which postponed the mortgage of complainant to that given to Selleck, will therefore be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Haynes brought suit in St. Clair county against Thomas and Sarah E. Munn and James J. Boyce as-joint makers of a promissory note which Thomas and Sarah were alleged to have signed as partners under the name of Munn & Co. Service was made on Boyce and Sarah E. Munn on the 24th and 25th of July, 1879, and proof filed July 26th. On. the 26th of July service was made on Thomas Munn in Bay City. Subsequently, on the 10th of' January, 1880, the sheriff of St. Clair who served the declaration in his own county, was allowed to amend his return by dating it July 24, 1879, and stating he could not find Thomas Munn in his bailiwick. This amendment is however of no importance, as the other defendants were served before Thomas, and if this return was not filed before January, 1881, it is difficult to see how it is any better than the other, if the facts in it should have been of record before service on Thomas Munn. ,
Sarah Munn defended and put in the general issue with an affidavit that she never executed the note and was not a member of the firm. The other defendants were defaulted. On the 9th of September, 1879, the default was made absolute, and an order entered for assessment by the clerk. On the 25th of October plaintiff by leave of court amended his declaration by striking out the name of Sarah E. Munn. The amendment was not made in fact, and the order is confined to this permission. On the same day the clerk assessed the damages, and the court gave judgment. Thomas Munn brings error.
The errors relate to the service of process, and the discontinuance.
We have no doubt service of declaration may be made by private persons. Such has been the practice here, and in New York. Graham’s Practice, 459. ¥e are' also of opinion that inasmuch as service was actually had on the other defendants before Thomas Munn was served, the service on him was valid, and it may be presumed the return was made when he was served, as it bears date then and the service in St. Clair was earlier.
But we think that the discontinuance as against a party charged as a joint promisor could not properly be made so as to bind him by this judgment. It leaves the ease to stand on the allegation of an entirely different contract from that on which he was defaulted.
A plaintiff cannot sue a person solely on a joint contract and proceed to judgment on it, without giving him a right to plead non-joinder in abatement if he chooses. This right of pleading in abatement is an absolute right, and is considered in law as a valuable one. Upon a joint judgment'in contract there are mutual rights as well as mutual obligations.
Upon a declaration setting up a joint obligation there can be no recovery unless a joint debt is proved, and failure to prove a claim against one is as fatal as failure against all.' 1 Chi-tty’s Pleading, 35, 36. This doctrine has been uniformly recognized.
In Candee v. Clark 2 Mich. 255, it was held there could be no discontinuance against one of two joint debtors. In Wetherwax v. Paine id. 555, it was held that garnishee proceedings against less than all joint debtors were absolutely void, and no bar to a subsequent suit against all. In Winslow v. Herrick 9 Mich. 380, it was held a joint and several demand could not be sued on as the joint obligation of less than all, and a discontinuance as to the parties not defaulted was held to invalidate a judgment against those defaulted. The same doctrine is illustrated in Mace v. Page 33 Mich. 38; Larkin v. Butterfield 29 Mich. 254; Wellover v. Soule 30 Mich. 481; Lee v. Bolles 20 Mich. 46; Ballou v. Mill 23 Mich. 60; Cruikshank v. Gardner 2 Hill 333.
It is only where the contract was actually made by ah the parties, but one was either incompetent to make it as from infancy or other disability, or has been since discharged by something which is not a discharge of the rest — as bankruptcy, limitation, or the like — that such discontinuance is available and allowable. Hartness v. Thompson 5 Johns. 160; Reading v. Beardsley 41 Mich. 123; Anderson v. Robinson 38 Mich. 407; Taylor v. Dansby 42 Mich. 82.
The default having been taken as a default on a charge of joint liability with Sarah Munn, was no admission of any other liability, and the discontinuance changed the issue without giving plaintiff in error a chance to be heard on the new form of the charge.
The judgment was erroneous and must be reversed with costs as to Thomas Munn. Boyce has severed and does not complain here.
Graves, J.
Thomas Munn, Sarah E. Munn and James J. Boyce were made joint defendants and charged as joint promisors, and according to the common law no recovery was possible except on proof or admission of the same joint promise which was averred. The plaintiff could not shift his ground and say that Sarah E. Munn was not after all a joint promisor, and thereupon drop her by nol. pros, and proceed against the other two. 1 Chitty’s Pl. 50, 51, 52; Gould’s Pl., ch. 4, §§ 115, 116. And according to the same' doctrine the only effect of the suffering default by Munn and Boyce was their admission of the same promise the-plaintiff would have been bound to prove against them in case they had pleaded a general traverse to the declaration, and hence a promise by them jointly with Sarah E. Munn. Sheehy v. Mandeville 7 Cranch 208. Their admission of that cause of action was not convertible by election of the plaintiff into an admission of another unlike it on which found judgment. They were bound by what they admitted, but were not liable to be held on a distinct ground which had neither been set up nor admitted. Before/being made answerable for a new promise they were entitled to their day in court with opportunity to offer such defense as they chose. No court could have any right to assume that they had no defense and so arbitrarily deny them the chance to-say for themselves whether they had or not. It would be contrary to first principles and in derogation of “ due process of law.”.
There had been neither adjudication nor proof that Sarah E. Munn was either not a joint promisor or that she was personally exempt from liability. They could not be legally denied opportunity to plead her non-joinder by the ex parte' act of the plaintiff. But the striking her out without any admission or decision that she was not jointly liable, and going to judgment against them on nothing else than their admission of having undertaken jointly with her as alleged, deprived them of that right. Moreover it involved the founding of judgment on a fallacious basis — the basis of' being a joint undertaking of the thr'ee defendants and no personal exemption of either, and the conclusion of law, a judgment against two and the acquittal of the third. Had the action been originally against the two alone they could have pleaded the non-joinder of the third, and their omission to plead it would have been a waiver entitling the plaintiff" to recover against them alone. But there has been no waiver. No chance to plead non-joinder has been given, and no one can be said to waive the exercise of an election who is denied opportunity.
The rule permitting a discontinuance as to some of the defendants in certain cases (Bule 71) is based on subd. 8 of § 4912, Comp. L. p. 1502, and the statute measures the scope of its application where it says it may be allowed “when it can be done consistently with justice.” Yawkey v. Richardson 9 Mich. 529. The regulation appears to accord with one-in the English common-law procedure act, (2 Chitty Pl. 269,) and it is probably not unlike a provision in the practice act of Massachusetts. Bliss v. Bliss 12 Met. 266.
In the early cases of Winslow v. Herrick 9 Mich. 380, and YawJcey v. Richa/rdson, supra, this court so construed the rule as to restrict its application and prevent it from being used except for the purpose of obviating mere technical objections, and the court in Massachusetts seems to have taken the same view. Bliss v. Bliss, supra. And according to the principle of these cases the practice below was wrong. The English courts appeal’ to have given a wider application to this statute; but still not wide enough to sustain this judgment. In Greaves v. Humphreys and another an attorney sued' two on an alleged joint retainer, and one suffered default. At the trial of the issue joined by the other the evidence proved a separate retainer, and the plaintiff moved to amend by striking out the defendant who had’ suffered default. The judge doubted the right, but concluded to allow it, and the court in banc (Q. B.) sustained the ruling and observed that the case stood as though the-defaulted party had never been in. 30 E. L. & E. 256.
Here it was the defaulted defendant who was dropped, and the change was only made when it was regularly ascertained that there was no joint promise and that the defendant pleading and going to trial was individually liable.
In Johnson v. Goslett (C. P.) the cause was for money had and received, against seven defendants. One of the number-named Johns allowed judgment to go by default. On the- trial with the others it became a question whether two of their number could be held at all, and the plaintiff proposed to strike out their names, but this was objected to on behalf of their associates, on the ground that the defendant Johns had suffered default. The questions were brought before the full court and it was decided that the amendment was admissible. The court thought the two defendants were liable with the rest, and therefore that the amendment was uncalled for; but as a court of error would not have power to allow it and the case was to be carried there, the amendment was made. 37 E. L. & E. 308.
According to the report of this case the court seems to have thought that the default of Johns would not prevent a discontinuance as to some of the others who defended. But it would seem that the proof was full to show that Johns was jointly liable with all the others except the two, and there seems to have been no complaint on the part of Johns. The report does not show that any question was raised concerning his right or the effect of his default as an admission. In the case at bar the plaintiff no doubt had the right to amend by striking out the female defendant. But the proper practice was to serve the amended declaration on the defaulted defendants and give them opportunity to contest the right to proceed against them alone.
I think the result stated by my brother Campbell is correct.
Marston, C. J. and Cooley, J. We concur in the result. | [
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] |
Cooley, J.
This is an appeal in chancery. From the record it appears that the appeal is taken from a decree entered in pursuance of the following stipulation which is signed by the solicitors: “ It is hereby stipulated and agreed by and between the solicitors in above entitled cause: 1st. That as the jurisdiction of this court is in doubt, and for the purpose of settling said jurisdiction in the Supreme Court, the demurrer of defendant Andrew Perrin to the bill of complaint may be sustained by the court, and the bill dismissed without prejudice and without costs of any kind to either party; and said complainant agrees to appeal said suit for the purpose above set forth, and upon the conditions hereinafter stated. 2d. That in appealing said suit to the Supreme Court, each party agrees to pay their own costs, and that no costs will be taxed by either party for any costs made by him by reason of said appeal. 3d. It is agreed that, this stipulation may be filed with the court in lieu of the appeal bond required by the statute in chancery appeals, and to operate and have the same effect as such bond.”
Appeals bring np for review some action of the court below which is complained of as erroneous. In this case there has been no such action. The chancery court has performed no judicial act whatever, except what is implied in permitting a consent order to be entered. But neither party can complain of a consent order, for the error in it, if there is any, is their own, and not the error of the court. It follows that there is nothing to appeal from, and the ease must be dismissed and the record remanded.
The other Justices concurred. | [
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Marston, C. J.
There was no error in sustaining the objection made to the question asked the witness Fecht on cross-examination. Bissell v. Starr 32 Mich. 299.
Tbe court very properly denied defendant, during tbe trial, tbe privilege of tben interposing tbe plea of tbe statute of limitations in defence of tbe plaintiffs claim. To bave permitted tliis under the circumstances would bave been gross injustice to tbe plaintiff
There was evidence tending to show that Marx bad collected this money. Tbe case was fairly submitted and tbe judgment must be affirmed with costs.
Tbe other Justices concurred. | [
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] |
Marston, C. J.
The plaintiff in error acting as sheriff, under and by virtue of an attachment against Lorenzo JBovee levied upon a “saw, pulley and belt or equalizing saw arbor.” Some time afterwards the defendant therein, Bovee, executed and delivered a bond to the sheriff, signed -by defendants herein as sureties. A judgment having been recovered in the attachment suit, and execution issued thereon, the sheriff made proper demand for the above property, but not receiving the same and being unable to find property of the defendant, the execution was by him returned unsatisfied. This action was then commenced against the sureties upon-the bond.
The court charged the jury that the sheriff must have taken such possession or control of the property under the writ of attachment that he would have the right to take or remove it to any other place, and such possession or control he must under the law have given to defendant Bovee or his agents, upon his, the sheriff’s, receipt of the bond; that Bovee or his agents should then have the same right to remove the property peaceably as the sheriff would have had if the bond were not given; that there being no testimony in the case tending to show that such a possession was given by the sheriff, a verdict of no cause of action should be returned.
From the evidence it appeared on the trial below, that the attachment debtor had put this property into the mill building, and under the charge of one Kingsley; that while in use it had been under Kingsley’s control, but for some time previous to the seizure had not been in use. At the time the sheriff seized the property under his writ it was fastened to the building by bolts, and no attempt was then or after-wards made by the sheriff to remove the same. Third parties were in possession of the building but it does not appear that they were using or offered to use this property or interfere with the officer’s claim thereto.
I now quote from the record an account of what took place as to a delivery by the sheriff on receipt of the' bond : “ The counsel for the plaintiff further to maintain and prove the issue on his part, called George English who, being duly sworn, testified, that at the time of the seizure-of the saw pully and belt under the writ of attachment, he-was a resident of the village of Alma; that he was a deputy sheriff of said county; that the ' day after the property was. taken he was placed by the sheriff in possession of the same at Pollasky’s mill in Alma, and was in possession when the bond in question was given; that at that time he received from the sheriff an order to surrender his possession to Bovee; that one James A. Hough, an agent of Lorenzo'J. Bovee, brought the sheriff’s order; that he went to Pollasky’s mill with Hough and Lewis A. Kelsey, another agent of' Bovee; that he walked into the mill with Mr. Hough and up to the machinery in question 'and put his hand on it and said: There it is; I release all our claim on it; you take it;’ and he, Hough, commenced to take it off the floor. I then stepped back towards the door. While Hough was at. work on the machinery Simon Messenger came into the mill and forbade his removing the same. That afterwards Hough wanted me to remove the machinery from the mill but I told him one delivery was enough and did nothing more-about the matter.”
There was evidence corroborative of the above, and also-evidence that efforts were made afterwards to remove the property by Hough, which was prevented by Messenger, Pollasky and perhaps others. This evidence tended to prove-that the sheriff had by virtue of the writ of attachment seized and taken possession of the property in question, and although he did not remove the property, he placed his deputy in charge of it, so that it was certainly under his custody and control under the writ. He certainly was not bound, in order to make good or retain his levy, to detach and remove the property from the building or place in which he found it. The bond in question also recognized and recited the fact that the sheriff had by virtue of his writ seized and attached this property “ and which the said George L. Patch now holds in his possession,” — so that the defendants in this case recognized the fact of the sheriff’s levy and possession under his writ at the time they gave this bond, and it might now, were it material, admit of some doubt whether they could now deny the recitals in their bond.
We are also of opinion that this evidence tended to show a delivery of the property by the sheriff to the attachment debtor’s agents. The sheriff certainly relinquished all his rights to the property, and the statutory bond having been delivered to him, he could no longer control the property. He could not then detach and remove the property from the mill, and he could not give others a right he himself did not possess. He surrendered to the defendant his possession, and the fact that immediately thereafter, or at some subsequent period, third parties, for whose acts the sheriff was in no way responsible prevented a removal of the property, would not render nugatory the bond he had received. The sheriff did have a possession that would have enabled him, if retained, to have sold this property under any execution afterwards issued in the attachment case, and this right he surrendered to Bovee’s agents on receipt of the bond, and the sureties therein cannot now place him in any worse position than he occupied at the time the bond was given. The case should have been submitted to the jury under proper instructions and the judgment must therefore be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell. J.
This is a certiorari to review proceedings to remove plaintiff from his office as school director of school district Number 3.
The case made by the affidavit, if admitted, would have-shown very arbitrary and irregular action, lacking nearly all the elements necessary to valid measures. But the' return, while it shows much irregularity, also shows a waiver of the- preliminary objections, and leaves much less to be considered.
The statute, which we have had before us in the case of Town Board of Hamtramck v. Holihan ante p. 127, undoubtedly contemplates that no steps shall be taken until the action of the proper authorities has been invoked by complaint of some definite violation of duty. But in the case before us the return, which must govern us in our action, shows that plaintiff admitted the various charges set up against him at the meeting of the town board, and expressly desired the board to act upon them without further delay. Under these circumstances, he cannot now complain that they took a serious view of charges, which would be made serious or otherwise by proof of all the attendant facts, which he did not require to be given.
The successive changes in this statutory regulation for the removal of school officers show a desire on the part of the Legislature to enlarge the powers of the town board, and to make their action final, unless brought up for review within a very short period. See Comp. L. 1857, § 2377; Comp. L. 1871, § 3695 ; Sess. L. 1872, p. 88. Ve are bound, therefore, to assume that they regard the harmony of the district as of great importance, and do not favor any objections to removals from office that are not substantial and mischievous. The action of local boards may no doubt be unfair, and had for purposes of intrigue or oppression. But such is not the legislative presumption.
The charges in the present case, seem, from their peculiar connection, to indicate that plaintiff was obstinately indisposed to make things pleasant for the teacher of the district and the school in his charge. He is charged with refusing to sign the contract, refusing to accept and file it, refusing to draw orders for the teacher’s pay during the currency of the contract and failure to supply some necessary school house supplies.
The last and what he claims to be the only charge of illegal conduct is not, standing alone, very important, but might be made so by the motive which induced it. If done because of an obstinate desire to avoid making tbe school work go on pleasantly, it wonld indicate a state of things which would clearly tend to destroy plaintiffs official usefulness. It is therefore properly enough considered with the Other charges.
It is claimed, however, that there is no rule of law requiring plaintiff to do any of those things. He certainly is not bound to sign the contract. He is, however, bound to file it, and its filing is important for the district, as furnishing necessary evidence. He also claims that the teacher’s contract only required payment at the end of the term, the language being “ on or before ” March 6, 1881.
This may be so, as a matter of strict interpretation, should the teacher be compelled to sue for his pay. But the compensation is rated in the contract by the month. It appears that it was understood between the teacher and a majority of the board that it should be paid monthly, and such is a common and convenient usage. If the plaintiff saw fit to refuse payment according to this understanding and against the views of the school board, we are not prepared to say it might not be regarded, if wilful and proceeding from some motive beyond a desire to do his duty, as an abuse deserving censure. Nothing is more likely to injure schools than meanness and unfairness in dealing with teachers.
There were some distinct violations of duty, and there were other acts, which, whether unlawful or not, had a tendency to show a bad motive in the rest. We have no means of judging whether the plaintiff is wronged or is in fault. He chose to submit the matter without proof, and we cannot say the conclusion of the board was unfounded.
The writ must be quashed with costs.
The other Justices concurred. | [
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] |
Marston, O. J.
The action in this case was teoyer. The ■ defendants purchased the logs in question from Sheridan & Hamilton, who cut them upon plaintiff’s lands, and who were unquestionably trespassers in so doing. They, Shei’idan & Hamilton, made no claim or pretence of having cut the logs under circumstances tending even to show good faith on their part. Sheridan & Hamilton sold the logs to defendants, afloat in Black creek. It was claimed, and we . shall so assume, that defendants in making the purchase acted in entire good faith; they, afterwards run the logs \ into Elat river and there sold them at an advanced price. The material question relates to the rule laid down as to the proper measure of damages. The court charged the jury in substance, that if the defendants in purchasing these logs acted in good faith, the rule would be either the value of the logs where they were cut on the ground, with the addition of any profit there might be in handling them and bringing them to Flat river, or the value at Flat River deducting the cost of bringing them there.
We are of opinion that the facts in this case did not warrant the charge as thus given These defendants purchased from trespassers, and if they acted in good faith in so doing, all" they conld ask would be protection in what they should expend in money or labor thereon thereafter. A jfersoiri however in purchasing personal property runs his risk as to the title he is acquiring, and if he is unfortunate enough to purchase from a trespasser or one who has no title and can give none, he must suffer the loss or look to his vendor. To hold otherwise would be to give the trespassers the benefit of their own wrong, contrary to all the authorities. If these defendants had only made a partial payment for the logs under their contract of purchase, and the plaintiff herein was limited in his recovery to the value of the logs when first severed from the land, then defendants would be the gainers; they would have the benefit of the trespasser’s labor, and yet the latter could not maintain an action to recover the amount thereof5 or the balance of the contract price. The conversion by these defendants took place when they first took charge or control over these logs in Black creek, and they should respohd in damages according to the value at that time. The same reasons do not exist in this’ case to protect these defendants that did in Winchester v. Graig 33 Mich. 210, and Wetherbee v. Geeen 22 Mich. 311.
There are very many cases where the value of the timber standing, or when first severed from the soil, would be but] nominal, and to give willful trespassers, or those to whom they may sell, the benefit of any increased value put upon it by the original wrong-doer, and confine the owner to the nominal value, would but encourage the commission of acts of trespass, and tend to make purchasers at least careless as to the title they were acquiring. It is easy for any one' to claim that he has purchased property in entire good faith, and very difficult in many cases to establish the contrary, and if one claiming to be such, is protected to the extent of the increased value he may have in good faith added to the property, this is all he can fairly claim under the law. This rule in effect was held in Isle Royale Minting Co. v. Hertin, 37 Mich. 332, and much that was there said is equally applicable in the present case. We have not overlooked the case relied upon, among others cited, of Railway Co. v. Hutchins 32 Ohio St. 584. We have heretofore had occasion to examine the many cases there cited, and they do not lead us to any conclusion other than the one here arrived at.
¥e are of opinion that the judgment should be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Campbell, J.
The bill in this cause is filed in aid of an execution against Julia A. Jacobs and two other judgment debtors, to set aside a conveyance from her to Albert H. Jacobs, as fraudulent and voluntary. The deed was made August 28, 1877, and the judgment was rendered in a suit subsequently commenced on a suretyship undertaking made in 1878.
The deed would undoubtedly be void as against complain ant, unless made good by equities in favor of the grantee. Those equities are set up and agreed upon as follows:
Julia Jacobs was widow of Benjamin F. Jacobs, who died many years ago, leaving as his heirs at law eight children, including Albert. After his death a mortgage which existed on this land, of which he died seized, was foreclosed in chancery, and the estate was bid off by "Wilder D. Foster, for the benefit of the widow and heirs. It was subsequently agreed among them that the property should be conveyed by Foster to some one of the family for the benefit of Albert, who was an invalid, and the title that Mrs. Jacobs conveyed to him had been received by her to carry out the arrangement. We omit some particulars amplifying the arrangements.
There is no evidence given, and no admission, of any actual fraud, and the whole case depends on the claim that the conveyance was voluntary.
It can hardly be doubted that these facts create an equity in Albert which was prior to any supposed equities of complainant.
But it is claimed that no agreement is made out that he could have enforced, under the statute of frauds. This position cannot be taken under the record. When arrangements are set up and admitted, which do not appear as alleged to have been lacking in any legal formalities, it must be assumed that they are legal, and could have been proved if not admitted. It is moreover highly probable that whether dependent on writings or not, the arrangements were such that if violated they might have warranted proceedings to vindicate them as against actual or constructive fraud. And inasmuch as they were carried into execution and ceased to be executory, before complainant brought suit at law, it is very questionable how far previous informalities could have been set up against the deed.
"Upon the whole case we think complainant has no right to disturb the deed. The decree must be reversed and the bill dismissed, with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
This is a bill filed by a large number of persons whose lots have been bid in by Bay City under a sewer assessment to have the sales set aside as illegal. The ground of illegality is that the sewer itself was not authorized to be built, nor the assessments authorized to be made in the manner adopted.
Without going at length into the questions presented, we are met at the outset by a difficulty which we cannot overlook. We do not find any warrant for any such joinder of grievances. The city now occupies the same position which would be occupied by any other tax purchaser who might choose to bid off all of these parcels. Each complainant would have against him a single separate grievance, but it would not in law be a common grievance, merely because it was similar in its nature to the grievances of others. The assertion of his title against one would be by a separate action, and his action of ejectment could not implead any persons not interested in the parcel it involved. Matters in which there is no common interest on the one side or the other are not allowed to be litigated jointly; and while there are some classes of cases where the community of interest is not as plain as in others, we do not think they go far enough to warrant this suit.
The joinder of several parties similarly interested in resisting a common aggressor was originally allowed, to save multiplying litigation, to settle once and finally the matter in contention. It was at first strictly confined to cases where the act complained of, if done, or continued, would affect every one in the same way, and would affect all, if any. It Avas applied in questions of commons in pasturage, fisheries, and similar interests, and in questions of tithes, which were asserted over certain districts. It was extended on the same grounds to frauds or wrongs by corporate agents against the interests of corporators, public and private. It was finally applied to restrain taxes and assessments, in which the inhabitants of localities taxed, ox* the owners of land in .assessment districts, were sought to be charged for a common burden. There is no doubt that in some of these cases the mle may have been extended somewhat beyond the line first laid down. But in all of the cases which have been well considered, thex’e has been one cause of grievance which at the time of filing the bill involved some aggressive action in which all of the parties complaining were involved in precisely the same way. And we have held distinctly that in .such actions, if any person set up grievances not of the same common nature with those of the rest, the bill could not be maintained. Kerr v. Lansing 17 Mich. 34. See also Miller v. Grandy 13 Mich. 540 and Scofield v. Lansing 17 Mich. 437; Youngblood v. Sexton 32 Mich. 406.
In the present case it may be doubted whether the complainants could have joined in a suit to enjoin the assessment, however illegal. The chief objection underlying the whole theory of the bill is that the assessment was not and could not lawfully be made upon any general and uniform system of apportionment; but that each lot should be assessed, not an aliquot part of a general charge, but so much as it was separately benefited by the work. It is very evident that each complainant is interested in enlarging the responsibilities of the rest and in diminishing his own. Instead of a community of interest their interests ai’e hostile.
But when the assessment has been enforced by sale, we can see no reason why one purchaser should differ fx’om another’, or why the purchase of several lots should be regarded as a common wrong to the several lot-owners. He is not after his purchase capable of doing any act which can operate as a common grievance. Each act in the enforcement of his title is an independent and several injury, if it is a wrong at all, and no lot-owner is hurt by the wrong done to his neighbor. It would be like the exclusion of a person from a common or fishery, on personal grounds, and not on a denial of the general right. No joinder of complaints could be allowed in such cases.
We think Bay City cannot be sued in this way, and that if any lot-owner has an equitable grievance against the sale of his lot actually made, he must sue for it separately.
The decree must be reversed with costs and bill dismissed.
Cooley and Graves, JJ. concurred.
Marston, C. J., being a resident tax-payer of Bay City, did not sit in this case. | [
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7
] |
Campbell, J.
Plaintiff, who was a brakeman on the railroad of which defendant was receiver, sues for an injury which he received by having an arm crushed while coupling cars. The accident is shown to have happened while plaintiff was attempting to couple two cars which had been brought loaded to Monroe by another road, and the occasion of it is said to have been the loosening and leaning down of the dead-woods of one car which was rather lower than the other, whereby as the two came together the dead-woods of the lower car went partially under those of the higher one and caught plaintiff’s arm. The accident happened at night, when plaintiff’s train was somewhat behind time'and hurried. It appeared that at Monroe, as at- other railroad junctions, the various roads had their own inspectors to examine cars brought in by or to be attached to their trains, and that this car was not reported as dangerous by either of the inspectors, of the road that brought it to Monroe or of the road on which plaintiff was employed.
The circuit court for the county of Saginaw, after hearing all the evidence, directed a verdict for defendant. No argument was made on the right to sue defendant as receiver, and the case has been treated as presenting no questions but those relating to negligence and its effect. And the only question under this head seems to be whether plaintiff as a person under employment can sue his employer, for the negligence of the persons who are claimed to have been in fault for not making a thorough inspection.
While there may be other matters that may be open to remark, we do not think' that we. can.properly consider, as .against the plaintiff, any other question.
The case has been very thoroughly presented, but after careful reflection we cannot see any principles involved in it which have not been so fully passed upon by our previous decisions as to render renewed discussion superfluous.
The statutes of this State make it the duty of every railroad to receive and forward cars of other roads impartially and diligently. This does not require the transfer of cars unfit for passage. But it does require that no unnecessary delays or hindrances shall be interposed, and that all precautions against the use of improper cars shall be adopted with reference to reasonable dispatch. It appears by this case, and we are bound to know as part of the general knowledge of the business community, that the. railroads of the country conduct their inspections under a generally understood system which all persons so employed on the roads as to be interested are presumed to understand. It further appeal’s that the road now in question employed the usual servants for that purpose, and there is nothing to indicate that there was any negligence in their employment or retention.
We cannot conceive any good reason for holding that the risk of occasional errors on the part of such persons is not one of those risks which naturally attend the shifting of cars from one road to another, and which consequently every brakeman or other person employed in handling them incurs as a part of his employment. There is no difference in the nature of the danger, or in the quality of the inspector’s employment, between the ease of shifting cars belonging to other roads and cars belonging to the same road. Defects in both lead ,to the same results, and the methods of examining both are identical. Where a car has been damaged by some injury which has escaped notice, it cannot fairly be said that employers ignorant of it, who have taken all usual and reasonable precautions against it, are any more to blame in the one case than in the other. The duty of the inspectors passing the cars from road to road is of no different nature from that of other persons who have similar duties of vigilance. Conductors and brakemen have similar precautions to exercise in their respective callings, and the safety of such employees may be affected in numerous ways by neglect of careful scrutiny. They are in the strictest sense fellow servants whose acts are not independent in such a sense as to separate them from each other in the line of dangers. When a brakeman handles any car, he knows there is at least a possibility that he may be injured, unless he examines it carefully. It may not always be legal negligence in him to rely with some assurance on the accuracy of the persons who should have examined it befoi’e it comes to him. But he is bound to know that omissions of such care are possible, and are dangerous if they occur. And he is also bound to know, as all men know, that it is impossible for employers to completely guard against it.
As we have frequently held, in accordance with what we conceive to be the legal rule, such actions as the present are based on actual negligence of the defendant sued or of some representative who is held in law to personate him. And in such a business as requires the employment of a multitude of persons beyond the possible constant supervision of either the ultimate or representative principal, there can be no negligence without the failure to use such precautions in choosing agents and guarding against perils as diligent prudence and foresight require. When the principal has done all that can be reasonably required of him to prevent risks to his servants, he has done all that he owes them.
In the present case he appears beyond dispute to have done all this, and if the inspectors committed an error, or were guilty of negligence, he is not to blame for it. The work done is to be done at all hours and at every place where there are railroad connections with other roads. It is not a duty of management or general supervision but a task for which nothing is required but fidelity, and mechanical knowledge of a comparatively limited kind. It is such work as would seldom be delegated to an officer of extensive responsibility who has other interests to look after. But, whatever be its quality, it was in this case not claimed to have been placed in wrong hands. Nothing more could be asked of the employer.
The questions bearing on these duties and liabilities have been passed upon in several cases, which under different circumstances illustrate the samp general rules. Mich. Cent. R. R. Co. v. Leahey 10 Mich. 199; Davis v. D. & M. R. R. Co. 20 Mich. 105; Mich. Cent. R. R. Co. v. Dolan 32 Mich. 510; Fort Wayne J. & Sag. R. R. Co. v. Gildersleeve 33 Mich. 133; Botsford v. M. C. R. R. Co. id. 256; Chicago & M. W. Rw. Co. v. Bayfield 37 Mich. 205; G. R. & I. R. R. Co. v. Huntley 38 Mich. 537; M. C. R. R. Co. v. Austin 40 Mich. 247; Day v. Toledo, C. S. & D. Rw. Co. 42 Mich. 523; Quincy Mining Co. v. Kitts id. 34; Mich. Cent. R. R. Co. v. Smithson 45 Mich. 212.
We do not tbink it necessary, in view of our own decisions, to review tbe cases elsewhere, wbicb are not all consistent or harmonious. Tbe court below undoubtedly relied •on tbe rulings of our own reports, and there is no error in bis decision.
The judgment must be affirmed with costs.
Tbe other Justices concurred. | [
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Graves, J.
The circumstances of this controversy are as follows: In October, 1818, the defendant [Lovely] sold the plaintiff [Kellogg] on credit, a mare, buggy and harness for the agreed price of $250, and the plaintiff gave his note together with a mortgage on the property for the entire sum.
The mare was with foal and about the first of June following she dropped the colt. " On the first of July the mortgage became due, and Kellogg failing to pay, Lovely proceeded to take the property. There was no dispute about his right to take the mare, buggy and harness, but the parties appear to have differed about the colt. Lovely maintained that the mortgage applied to it and gave him the same right to the colt that it did to the mare, but Kellogg contested this claim and contended that .the colt being the offspring of the mare was his property and not having been born when the mare was purchased and the mortgage given was not subject to the mortgage.
The colt had not been weaned and was running with the mare, and when Lovely drove her off the colt followed. Lovely soon afterwards proceeded to sell the whole property, the colt included, under the mortgage, and we gather from the case that it was bought in by him through an agent. The whole sum for which the property was struck off was $116, and shortly afterwards Kellogg paid the remainder of the debt. He then instituted replevin against Lovely, before a justice of the peace, to obtain the colt, and it was seized on the writ and delivered into his possession. The justice .entered a nonsuit against him, and Lovely waiving return of the colt the value was assessed at $55, for which Lovely took judgment. An appeal was made and the circuit court reduced the assessment to $30 and awarded Kellogg $18 costs, and extinguished the former by applying an equal amount of the latter by way of set-off. Thereupon Kellogg-sold the colt and brought this action of trespass, counting on the transaction when Lovely took the mare on the mortgage. The justice gave judgment in Kellogg’s favor for the value of the colt, and Lovely appealed. The circuit judge ruled that there was no evidence of trespass and ordered a verdict for Lovely. It is not certain that the circuit judge was correct in the reason on which he proceeded. But whether he was so or not is unimportant unless the result was wrong.
The fundamental question in the case relates to the effect on the legal-ownership of the colt, of the sale of the mare to Kellogg and the mortgage hack.
In respect to tame and domestic animals the general rule is well understood, that “ the brood belongs to the owner of the dam or mother ” (2 Bl. Com. 390), but there are many oases in which the rule is qualified in its application. It has been held and may be true in special cases that where the female is hired for'a time limited and has increase during the term, the hirer will be entitled to it and not the general ■owner: 2 Kent 361; Edwards on Bailments § 403; Puctnam v. Wyley 8 Johns. 432; Concklin v. Havens 12 Johns. 314; Hanson v. Millett 55 Me. 184; Stewart v. Ball 33 Mo. 154. And so too it was decided in Linnendoll v. Terfmne, that a foal obtained under an agreement by which the owner •of the mare arranged with another person that if he would put her to horse and pay the expense he should have the foal, became the property of such person. 14 Johns. 222.
It is also laid down by Judge Story that where a thing is pledged its natural increase as accessory is also pledged, and he gives by way of illustration the case where a flock of sheep are pledged, and observes that the young afterwards born, are. also pledged. Bailments, § 292; and see Domat, part 1, book 3, tit. 1, § 1, art. Y; Kaufm. Mackeldey, book 1, ,§ 26Y. In Iowa and Kentucky, and probably in other States, it has been decided that the young of animals under mort.gage are subject to the mortgage (Forman v. Proctor 9 B. Mon. 124; Thorpe v. Cowles — Iowa —;) and no cases to the contrary have been discovered. Perhaps these last •decisions may have originated in the doctrine that the mortgagee of chattels is the legal owner; and the courts may have considered that "in holding the young of mortgaged animals to be subject to the mortgage, they were only applying the general rule which assigns the increase to the owner of the mother. But it is useless to speculate on the subject.
The case before the court belongs to a peculiar and exceptional class, and it may be disposed of without bringing into question the general doctrine. . As previously stated, the mare was carrying her colt when Lovely sold her, and the plaintiff, not paying anything whatever, gave back at the same moment a chattel mortgage for the entire price. There was no interval of time between the sale and mortgage. Each took effect at the same instant. The whole was substantially one transaction. Now it is a rule of natural justice that one who has gotten the property of another ought not, as between them, to be allowed to keep any part of its present natural incidents or accessories without payment^ and that the party entitled should have the right to regard the whole as being subject to his claim. The one ought not to suffer loss, nor the other effect a gain, through a mere shuffle, and whatever fairly belongs to the thing in question, as the young the dam is carrying belongs to her, ought to be as fully bound as the thing itself, unless indeed there are circumstances which imply a different intention.
It is not unreasonable to construe the acts of these parties by these principles and to consider that when Lovely sold the mare without receiving anything down, and Kellogg gave back the mortgage for the whole purchase price to be due before the colt, according to the ordinary course of things, would be old enough to be separated from the mare, it operated as well to hold the colt as to hold the mare herself. The intendment is a fair and just one that the security was to be so far beneficial to Lovely as to preserve to him the right to claim at the maturity of the mortgage the same property he would have had in case he had made no sale. According to this view there was the same right to the colt as to the mare,- and the act of seizure sued for was not a trespass.
The result ordered by the circuit judge was therefore correct, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The circuit judge passed on the evidence in this cause and reached the conclusion that complainant’s application for divorce was fully sustained. ¥e have carefully examined the testimony and find it very conflicting, and no doubt different tribunals on looking at it as it appears on paper might come to opposite determinations. And such might be the case after rejecting the depositions of Mrs. Oorrie. It would be a waste of time to write out a discussion of the facts. The view we take is that the bias of the evidence is not such as to justify overruling the court of original jurisdiction.
The decree is affirmed with costs.
The other Justices concurred. | [
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] |
Marston, C. J.
We can discover no valid objection to the question ashed the witness Rothfuss, the plaintiff, as set forth in the first assignment of error. The plaintiff could properly be interrogated as to each and every conversation he had with the defendant regarding the transaction in controversy. Especially is this so in the present case where it was claimed, and evidently not without reason, that the defendant was endeavoring to deceive the plaintiff and prevent him from having any interview with his debtor.
The second assignment of error relates to the refusaL of the court to instruct the jury according to the defendant’s request. This was fully covered in the instructions given. In substance the instructions given were that if the plaintiff at the time the payment referred to was made, knew that the interest due upon his mortgage had been paid, and that his instructions to the defendant Schmemann were to fore close because of non-payment of the principal, under such circumstances he could not recover back the balance paid by him for services in the foreclosure. The court also instructed the jury, and very properly, that if the plaintiff in this case was informed by Schmemann that the interest had not been paid him, when in fact it had, and Schmemann was thereupon instructed “if this interest is not paid,go on and foreclose,” and the mortgage was foreclosed not because of nonpayment of interest, that for such services payment made might be recovered back, if made in ignorance of the facts. Indeed, a pretty clear case is required to enable a party to retain the profits derived from his own wrongful and deceitful act.
The judgment will be affirmed with costs, and an additional allowance of thirty dollars will be made the defendant in error for the damages sustained by him in consequence of the delay in bringing this case here; the errors assigned being considered frivolous.
The other Justices concurred. | [
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Per Curiam.
In this case the only question involved is as to the proper amount of damages which should be awarded for the taking of the property of the Railroad for highway purposes. The statute has provided for an appeal from the Highway Commissioner to the Township Board. It must be presumed that if the commissioner refused to consider the proper elements of damage, the board would hare done justice on the appeal. We think the case should have been appealed, and as no sufficient reason appears why that remedy was not resorted to, we see no ground for permitting the certiorari to stand, and it must be dismissed as improvidently granted. | [
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Marston, C. J.
The plaintiff in error sued the defendant, in an action of trespass, for acts done in entering into possession and putting crops in upon certain lands in the year 1876. At the time the alleged trespass was committed the title to the lands was and had been in Edwin E. Goetchins, and the defendant Sanborn went into possession, under a lease from Edwin. The plaintiff claimed that under a previous oral agreement made between himself and his son Edwin, he, the plaintiff, upon making certain payments for the benefit of Edwin, was to receive from Edwin a deed of this land; that from the time of such agreement they, father and son, had worked the land together for their mutual benefit; that he, the plaintiff, had made the payments-agreed upon, and had taken actual possession of this land in-April, 1876, a month before the alleged trespass, filed his-bill in June, 1876, for specific performance of the oral agreement and obtained a decree in January, 1879; and he further claimed, that his title, by virtue of the chancery decree, related back to the time of the trespass complained of and thus enabled him to maintain the action.
The possession taken by the plaintiff in April, 1876, was to go upon the land with a team and plow a few hours-This certainly was no ouster of Edwin, and there is nothing-in the record in this case, tending to show such a part performance of the oral agreement as would have entitled the complainant to a specific performance; but that perhaps is-of but little importance in the present controversy.
The plaintiff herein had neither the legal title to, nor the actual possession of, the premises in 1876. Edwin was then the holder of the legal title, and had not only the constructive but actual possession of the premises. His possession was legal and he had an undoubted right to cultivate the-soil, and this right he could give to' another. No action could have been maintained against Edwin, in trespass, and his tenant is in no worse position. What was a legal act then could not be made illegal, by the doctrine of relation, which is to promote justice and prevent wrongs and not to-create them.
Hpon no possible theory was the plaintiff entitled to recover, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
This controversy concerns the right to an organ. The defendant in error took the instrument on replevin and recovered. Prior to October 19,1876, one Roe Stephens owned the organ and left it with Charles F. Col-well at London, Ontario, to be disposed of, and he, at the date mentioned, leased it to one Abel Scott, who was to be allowed to purchase on certain terms. The title was not to pass without payment of the purchase price. Scott has never paid anything, and prior to this suit the property and right of possession were in Stephens.
Scott removed the property to Port Huron and the plaintiff in error derived her claim through him. Stephens assigned his right to Farrington, who thereby became entitled to have the organ unless Stephens’ right was cut off by his bankruptcy, so that nothing passed from him to Farrington, and it is claimed by plaintiff in error that the evidence shows that this was the ease, and in support of this view reliance is placed on the order found in the record by which Stephens was adjudged a bankrupt on the sixth of October, 1877. But there is nothing in tiffs order to militate against the right claimed 'by Farrington, since he may have been the trustee in bankruptcy and have become entitled in that character. And all question on the subject is removed because it appears by the oral evidence, which was not objected to, that Farrington was in fact such trustee and hence vested with the right which Stephens held.
The objections now insisted on to certain parts of tbe depositions of Colwell, Raymond and Dyer have no force and do not require comment.
This disposes of tbe case and requires an affirmance of tbe judgment witb costs.
Tbe other Justices concurred. | [
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Marston, C. J.
The charter of Detroit provides that certain resolutions, etc., of the common council before taking effect shall be presented by the clerk to the mayor, who, if he approves the same, shall write thereon his approval with the date thereof. If he does not approve, he shall return such resolution to the common council with his objections in writing, and if he neglects to approve or return the same at the next regular meeting after it shall have been presented to him by the clerk, the same shall go into effect.
"We are clearly of opinion that the mayor has until the first regular meeting of the common council, after the clerk has presented to him such a resolution, to approve or disapprove of the same. The clerk by withholding the resolution over a regular meeting after its passage by the council cannot thereby deprive the mayor of his right or make it effective, nor does it matter what length of time may intervene between the date of its passage and presentation, and the next regular meeting. The mayor has the full period in which to exercise the power conferred upon him.
In case of a vacancy in the office of mayor or of his being unable to perform the duties of his office by reason of sickness, absence from the city, or other cause, the president of the common council shall be acting mayor, vested with all the powers and authorized to perform all the duties of the mayor during such vacancy or the period of such inability. It is not claimed that there was a vacancy, but that the mayor was absent from the city, and therefore that the acting mayor had authority an the premises.
It appears that this resolution was passed by the common council on May 28th; that on the 29th day of May it was by the clerk presented to the president of the common council, who, as acting mayor, signed the same; that on the afternoon of the same day the mayor, who was absent from the State on the 28th and forenoon of the 29th, returned and addressed a communication to the common council returning to them this resolution with his objections, and that the next regular meeting was held on June 4th. It also appears that the clei-k and president were both informed that the mayor would return to and be in Detroit on the afternoon of the 29th in time to act upon this resolution before the time for the next regular meeting.
Was this such an absence from the city as would authorize the president to approve of this resolution as acting mayor ? • We are clearly of opinion that it was not. It is not sufficient to justify the president in acting, that the mayor is absent from tbe city. If it were his stepping beyond the corporate limita for never so short a period would confer upon the president power to act — a construction which would be so productive of mischief that it could not be supposed to have been so intended by the Legislature. It is only when the mayor is unable to perform the duties of his office by reason of absence from the city that the president can act. The absence in this case would not disable him from performing his duties, as he had until the next meeting of the council, and the president of the council could not anticipate a disability that did not in fact exist, and by a hasty approval of a resolution, deprive the mayor of his right to consider the same.
Under recent legislation we do not deem it proper to discuss some of the other questions raised, and as at present advised it will not be necessary to render any judgment in the case.
The other Justices concurred. | [
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] |
Campbell, J.
The controversy in this case arises out of a claim for a patent heater, which was sold to Clark on a contract which contained this provision: “ If on trial of 30 days the machine is satisfactory, or does what is claimed for it, will pay 15 dollars per inch diameter of my engine. The machine to be your property until paid for according to agreement as follows: Cash $210, four months from attaching.” This clause gave rise to the dispute.
There is a great deal of evidence on both sides and quite contradictory, but no complaint is made of admission or rejection. The case is brought up on the charges.
It is first claimed that under this contract Clark could reject the heater if not satisfactory to him, whether it met the warranty or not. This we think was not what the con tract required. That very clearly binds him to pay, whether satisfied or not, if the machine did what was claimed for it.
Upon the remainder of the charges we think there was no error. There was certainly evidence which was for the jury to act upon if they believed it, that Rice had complied with his contract, and in the conflict the facts were for them to decide.
The same remark will apply to the refusal to charge that certain changes and repairs were evidence of bad order in January. This was controverted by witnesses.
All of the defendant’s other charges were given except one which was we think substantially given in another, which held that unless the conditions were all fully and strictly performed there was no sale. The charge not given was less extensive and less favorable. This instruction, with others in the same direction, made it impossible for plaintiff to recover unless the jury found there was no default whatever.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
In this case, which is a proceeding to condemn lands for a railroad, the original notice was served on a person who was in no way connected with Dunlap, and who had gone on to his premises for the purpose of having service made on him so as to bind Dunlap. The service was clearly illegal and known to be so by the representatives of the railroad who procured his action, and there was no jurisdiction to appoint commissioners of appraisal. The proceedings should not have been confirmed.
It is objected that certiorari is an improper remedy, and that resort should have been had to an appeal. While it is true that certiorari should not be favored where any other remedy is adequate, yet it will undoubtedly lie for want of jurisdiction. But in cases involving the interference with important works, the writ ought not to be allowed unless .applied for as soon as practicable. The time for appeal is limited to twenty days, and we shall not feel disposed to sustain a certiorari granted after a longer time, unless under circumstances clearly explaining and accounting for the delay. In the present case it was granted at once and no> want of diligence existed.
The proceedings must be quashed as to plaintiff in certiorari with costs of this court and of the proceedings below..
The other Justices concurred. | [
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] |
Boyles, J.
The issue in this case arises out of a garnishee proceeding between the plaintiff and Edwin R. Crosby, doing business as Advance Electric Supply Company, as an interpleaded defendant.
Plaintiff started suit against Earl C. Morse, individually, and doing business as E. C. Morse & Company, and at tbe same time caused a garnishee summons to be issued and served upon Floyd J. Skidmore, individually, and Floyd J. Skidmore and Stanley J. Skidmore, copartners, doing business as F. J. Skidmore & Son, as garnishee defendants. The principal defendant did not deny the debt, and judgment was ultimately entered against Earl C. Morse in the principal suit.
The garnishee suit against the Skidmore concern proceeded through the several stages of interrogatories, second garnishee summons and answer, and issue joined. In this suit, the Skidmore concern, as garnishee defendant, finally disclosed the following situation: The Skidmore concern had a general contract to erect a Kroger store building and had contracted with E. C. Morse & Company for the latter to do the electrical work on this building; subsequent to making this contract and at about the time Morse actually began work, and before the garnishee summons was served, the Skidmore concern had accepted an assignment of all money due Morse on the Kroger store joh in favor of Edwin R. Crosby, doing business as the Advance Electric Supply Company. This assignment was as follows:
“486 W. Michigan Ave.,
“Battle Creek, Michigan.
“August 12, 1939.
“F. J. Skidmore & Son,
“52 Capitol Avenue, S.W.,
“Battle Creek, Michigan.
“Gentlemen:
“For value received, we, E. C. Morse & Company, do hereby assign to the Advance Electric Supply Company, 1102 N. Saginaw Street, Flint, Michigan, any and all money dne ns on the Kroger store job covered by your job order No. 409 (this being the building owned by Glen Cross).
“E. C. Morse & Company.
“E. C. Morse.
“ (Earl C. Morse.)
“Accepted as above:
“F. J. Skidmore & Son,
“By F. J. Skidmore. (Sgd.) ”
It was shown in the garnishee proceedings that the Skidmore concern owed Morse practically nothing at the time the assignment was executed and accepted; but that the Skidmore concern, when the final garnishee summons was served, owed either Morse or Edwin B. Crosby, doing business as the Advance Electric Supply Company, $725.91, but that this money would not be due until the job was completed. Edwin R. Crosby, doing business as the Advance Electric Supply Company, was thereupon interpleaded as a defendant; the Skidmore concern paid the money into court and was released from further liability. The issue in the case now stands between the plaintiff and Edwin B. Crosby, doing business as the Advance Electric Supply Company. Issue was joined between them in the trial court and came on for hearing. The court below found that the plaintiff was entitled to the money, and the Advance Electric Supply Company appeals.
The sole question before us is, what is the legal effect of the assignment? Plaintiff claims this assignment operates only to assign those moneys, if any, that were due and owing from the Skidmore concern to Morse at the time the assignment from Morse to the Advance Electric Supply Company was executed and accepted by the Skidmore con cern. The Advance Electric Supply Company claims that this assignment is ambiguous and open to construction, and should be construed to mean not only the money due and owing at the time of its execution, but also to include all money to become due and owing thereafter from the Skidmore concern to Morse on the Kroger store job. If this contention is upheld, the money deposited in court belongs to Crosby, doing business as the Advance Electric Supply Company, the interpleaded defendant and appellant.
The issue narrows down to whether the assignment, dated August 12, 1939, of “any and all money due us on the Kroger store job” is limited to “money now due,” or does it mean “any and all money due us or to become due usf” The precise question has not been before this court.
The assignment in question was prepared by the agent of defendant Crosby. If it can be said that it is susceptible of two constructions by reason of doubt or uncertainty, the assignment is to be construed most strictly against the interpleaded defendant in whose behalf it was prepared. It is an elementary rule of construction that, in case of doubt, the instrument is to be strictly construed against the party by whose agent it was drafted. 6 C. J. S. p. 1138; 17 C. J. S. p. 751; Marks-Fiske-Zeiger Co. v. American Bushings Corp., 250 Mich. 583; Olsen v. Fry, 234 Mich. 233. A contract is to be construed, as to its imperfections and ambiguities, most strongly against the agents who drew it and are responsible therefor. Hanley v. Porter, 238 Mich. 617.
‘ ‘ Due ’ ’ means owed or owing to. The word ‘ ‘ due ’ ’ is often used to signify the present existence of a debt, although to be paid thereafter. An affidavit annexed to a chattel mortgage stating that a certain sum was “due” is not defective, the money being owed at the time although payable in the future. Metropolitan Store & Saloon Fixture Co. v. Albrecht, 70 N. J. Law, 149 (56 Atl. 237). The word “due,” in its larger sense, is often used to cover liabilities matured or unmatured, or as importing an existing obligation, whether the time of payment has arrived or not. Pope v. Matthews, 125 Ga. 341 (54 S. E. 152), citing People v. Vail, 6 Abb. N. C. (N. Y.) 206; United States v. State Bank of North Carolina, 6 Pet. (31 U. S.) 29 (8 L. Ed. 308); Sand-Blast File-Sharpening Co. v. Parsons, 54 Conn. 310 (7 Atl. 716); Scudder v. Coryell, 10 N. J. Law, 340. The word “due” is defined as owed, owing, owing and unpaid, remaining unpaid, an indebtedness. Sather Banking Co. v. Arthur R. Briggs Co., 138 Cal. 724 (72 Pac. 352); Crocker-Woolworth Nat’l Bank of San Francisco v. Carle, 133 Cal. 409 (65 Pac. 951). The term “due” signifies a debt or a state of indebtedness. It does not include contingencies which may ripen into an absolute indebtedness upon the future performance of contract obligations. An instrument assigning “all our interest in warrants or vouchers due us from said county” was held not to include money subsequently earned by the assignor. Ryan v. Douglas County, 47 Neb. 9 (66 N. W. 30).
In the above case, as in the ease at bar, no work had been performed on the contract at the time of the assignment, and, therefore, nothing was due at that time. The fund which was the subject of garnishment and there claimed by the interpleaded defendant was the result of labor and materials furnished subsequent to the assignment. It had no actual existence on the date of assignment and the court held that it was not “due,” therefore, not within the meaning of the assignment.
Where the subject of an equitable assignment is money to be earned in the future, either as wages or by the performance of a contract, the assignment does not become operative until something has become payable under the contract. Aetna Trust & Savings Co. v. Nackenhorst, 188 Ind. 621 (122 N. E. 421, 123 N. E. 353, 125 N. E. 213).
“An omission or mistake is not an ambiguity. Parol evidence under the guise of a claimed latent ambiguity is not permissible to vary, add to or con-, tradict the plainly expressed terms of this writing or to substitute a different contract for it to show an intention or purpose not therein expressed. The principles 'of law applicable to the situation here are concisely summed up, with citation of abundant sustaining authority, in the following texts:
“ ‘The rule that where an ambiguity is created by parol it may be removed by parol, was never intended to violate the rule that a writing shall not be contradicted or explained by inferior testimony.' 22 C. J. p. 1194. * * *
“Plaintiff’s contention that the practical construction put upon this franchise contract by the parties themselves is controlling against the strict construction now contended for, is necessarily predicated upon the proposition that the writing is open to construction in the particular claimed, for practical interpretation by the parties can only be regarded where the contract is of doubtful or ambiguous meaning. Extraneous evidence is not allowable to interpret a writing which has no need of interpretation.
“ ‘If clear and free from ambiguity, the intention shown upon its face if written must be followed, though contrary to the practical interpretation of the parties, and even if such practical construction has been acquiesced in for a long period of time.’ 2 Page on Contracts (1905), § 1126.
“ ‘Before any appeal can be made to practical construction, it must appear that the meaning is doubtful. ’ Fairbank v. United States, 181 U. S. 283, 311 (21 Sup. Ct. 648, 45 L. Ed. 862).” Township of Zilwaukee v. Railway Co., 213 Mich. 61, 71, 72.
“Whatever may be the inaccuracy of expression or the inaptness of the words used in an instrument in a legal view, if the intention of the parties can be clearly discovered, the court will give effect to it and construe the words accordingly. It must not be supposed, however, that an attempt is made to ascertain the actual mental processes of the parties to a particular contract. The law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest. It is not within the function of the judiciary to look outside of the instrument to get at the intention of the parties and then carry out that intention regardless of whether the instrument contains language sufficient to express it; but their sole duty is to find out what was meant by the language of the instrument.” 12 Am. Jur. pp. 746-748.
The question before us is as to the legal effect of the words used in the assignment, rather than a question of construction or interpretation of a contract. The words themselves are not ambiguous or uncertain. We must look for the intent of the parties in the words used in the instrument. This court does not have the right to make a different contract for the parties or to look to extrinsic testimony to determine their intent when the words used by them are clear and unambiguous and have a definite meaning. The fact that no money was actually due at the time of the assignment does not permit us to enlarge or change the meaning of the words used by the parties. If we were permitted to glean from the mind of the assignor his actual intent when the assignment was made, we might find that Morse did not intend to assign to Crosby all of the money that the Skidmore concern would owe him for his entire electrical job. Under the construction claimed by defendant, Morse' himself would receive no money whatever out of the job, it would all go to Crosby. It is not for this court to determine that such was tbe meaning of the assignment, in view of the express language used therein.
We find no merit in the other question argued by appellant.
Judgment affirmed, with costs.
Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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Bushnell, J.
Plaintiff, Benjamin F. Walter, became the owner of the east half of the southwest quarter of section 17, township 6 north, range 8 east in Atlas township, Genesee county, Michigan, in 1873, and of the east half of the northwest quarter of the same section in 1890 or 1892. These parcels are hereinafter designated as the south and north eighties, respectively. Plaintiff was married in 1872, and his wife died in 1919. They held title to the 160 acres jointly as tenants by the entireties. Plaintiff has lived upon this property since 1872. Plaintiff became 85 years old on May 21, 1939. Defendant Frank Walter, born in 1873, is the eldest of plaintiff’s nine children. He became 21 years old in 1894 and, at the time of the trial of this case, he was 66 years old. He stayed at home and helped his father until his marriage at the age of 30 in 1903.
In 1930 plaintiff sold the north eighty to his son, Claude, and on October 8th of that same year executed and delivered to his son, Frank, a second mortgage on the south eighty to secure a note in the sum of $1,000. He had previously given a mortgage in 1927 on the south eighty to the Northwestern Mutual Life Insurance Company to secure a note in the sum of $2,000. This first mortgage was purchased by defendant Frank Walter after its time of payment had been extended by the insurance company in 1933, and there is a small balance yet due upon it. Plaintiff says in his brief that foreclosure proceedings have been instituted by Frank on this first mortgage. However, the first mortgage is not involved in the present litigation.
After defendant began foreclosure proceedings on his second mortgage but prior to the date of foreclosure sale, plaintiff filed his bill seeking cancellation on the ground that this mortgage had been fraudulently secured. 'In support of this claim plaintiff testified that Frank represented to him that he had an interest in the farm through inheritance from his mother. Plaintiff said that defendant — ‘‘came out there and said his mother had a claim in it, and by G-od, he was going to have it, that is about the way he worded it. I said ‘ Frank, I don’t know about that.’ Well, he did; he had had counsel-on it, he knew just exactly what he was doing. I said I never had any counsel and did not know anything at all about it. ”
It is defendant’s contention that the mortgage was security for a note in payment of an agreed sum representing his wages for work performed after he became 21 years of age. Plaintiff denied that Frank did any work on the farm after 1903, and said that, after Frank became 21, he operated a hay presser and bean thresher and was paid for it. Plaintiff said that, although he had loaned Frank money, Frank never claimed that he had any money coming for services rendered, and always repaid these loans; that on one occasion he bought some bonds from Frank and on another sold him a horse which he afterward repurchased from him at an auction sale.
The testimony of the father is corroborated by that of his daughter, Ida M. Mitchell, who is now 63 years old and who left the farm when she was 22 years old. She described Frank’s unsuccessful efforts to persuade her to join with him in an attempt to obtain from the father a share of their mother’s interest in the farm. Mrs. Mitchell’s husband testified to the same effect. Clarence Walter, another son of plaintiff, now 52 years old, who left home when he was married at the age of 21, testified in a like manner, as did a disinterested witness who was boarding at the Mitchell home in 1938. None of these witnesses had ever heard Frank claim that he had any unpaid wages due him.
Defendant categorically denied all that plaintiff and his witnesses said. He insisted that the $1,000 note was in settlement of a disputed claim for services rendered his father between the years 1894 and 1903. He admitted that his father had made mortgage payments and said they had been credited on the first mortgage which he had purchased from the Northwestern Mutual Life Insurance Company. Frank’s wife testified that she heard several conversations between plaintiff and her husband “in reference to his having worked for his father and having some money coming.” She insisted that the conversations between the parties resulted in a computation of $1,536, and that they finally agreed upon $1,000.
The trial judge filed a written opinion in which he concluded that the contention of defendant that the $1,000 note was given in settlement of his claim for services rendered his father after he became 21 years of age was an afterthought. The trial judge sáid that “the evidence shows very clearly that the defendant went to his sister and tried to get her to go in with him in an attempt to get the father to give him notes or securities for what he claimed was their interest in the property on account of the mother’s estate. He also states that he did not know the property was joint until after the suit was brought. Taking these facts into consideration, with the fact that several business transactions had been had before and no claim made for wages, the Court is satisfied that plaintiff gave this note and mortgage solely on account of the wrongful claim of the defendant, Frank Walter, that the plaintiff ivas liable to him on account of money which the mother had had, and that there was absolutely no consideration for this note and mortgage. ’ ’
Defendant appeals from a decree cancelling the note and discharging the second mortgage.
The testimony is convincing that the $1,000 note and second mortgage were obtained by the defendant through fraudulent representations, that he had an interest in his father’s farm by way of inheritance from his mother. There is, of course, no such interest because his mother held title with his father by the entireties and, upon her death, her interest passed to her husband as the survivor.
Transactions like those in the instant case are regarded by courts of equity with suspicion and are scrutinized with vigilance. Guinon v. Guinon, 184 Mich. 56.
Plaintiff’s ground for cancellation of the second mortgage is a claimed fraudulent misrepresentation of a matter of law. Mistakes of law are not usually a ground for equitable relief when standing alone.
“But where a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, or estates, and enters into some transaction, the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or estates, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.” Renard v. Clink, 91 Mich. 1, 3, and authorities cited at page 3 (30 Am. St. Rep. 458).
See, also, those annotated in 75 A. L. R. 896 et seq.
In Tompkins v. Hollister, 60 Mich. 470, 480, the court said:
“Where one relies upon another, and has a right so to rely, and the person relied upon omits to state a most material legal consideration within his knowledge, of which the other is ignorant, affecting his rights, and the person thus ignorant acts under this misplaced confidence and is misled by it, a court of equity will afford relief, especially if such action is to the advantage of the person whose advice is taken, even though no fraud was intended.” See authorities there cited.
Equity will not aid an avaricious, 66-year-old, active, aggressive son to deprive his 85-year-old father of his home under the circumstances disclosed in this case. Platt v. Platzki, 277 Mich. 700. See, also, Williams v. Williams, 198 Mich. 1, and authorities cited in Beattie v. Bower, 290 Mich. 517, p. 526 et seq.
The decree is affirmed, with costs to appellee.
Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest and Butzel, JJ., concurred. | [
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] |
Wiest, J.
The bill herein was filed by plaintiff to set aside deeds she executed and delivered to defendants in January, 1936. The parties were once great friends. In 1934, plaintiff, then 78 years of age and without near relatives, was living alone in a house' she owned in the city of Lansing and suggested to defendants, whom she had known for 40 years, that they come to live with and help care for her. The agreement was verbal and indefinite but defendants complied with the request. Matters were satisfactory and so agreeable to plaintiff that in January, 1936, at her own volition, she executed a will making defendants her sole devisees. She so informed defendant Alton J. Phelps and, upon his suggestion that it would avoid expense incident to passage of title by will, she at once executed the deeds in suit, conveying to defendants all her real estate consisting of two houses and lots of the assessed value of $7,000, and a vendor’s title to another parcel, upon which there was due $1,000, and received a life lease. Claiming that thereafter she was neglected, plaintiff left the home to live with others and filed a previous bill, September 18, 1939, of like import as the present bill, to set the deeds aside. September 26,1939, the parties, aided by their respective attorneys, reached an amicable adjustment of grievances and of their mutual rights in the premises and signed and sealed a written agreement to such effect. That agreement confirmed the deeds, with a life estate in plaintiff; provided that plaintiff should be entitled to the payments on the land contract to the amount of $15 per month, and that defendants pay all taxes on the two dwelling houses during the life time of plaintiff, to the end that she might have the income from said parcels for her own benefit during her life time; and contained some minor provisions. Thereupon the attorneys for the parties filed a stipulation reciting an amicable adjustment had been reached and for dismissal of the cause. Upon filing such stipulation the court entered an order, on September 30, 1939, dismissing the bill, without costs to either party. November 30, 1939, plaintiff, by present counsel, filed the instant bill, with like allegations as the former bill and, without averring any ground for setting the mentioned adjustment aside, asked for the same relief as in the former bill. Proofs were taken in open court and the bill was dismissed. Plaintiff prosecutes review by appeal.
The record has been examined and no reason found for disturbing the decree.
The testimony of plaintiff at the hearing, when she was 84 years old, disclosed an alert mentality and a sharp tongue.
The deeds were the voluntary acts of plaintiff. She was mentally competent. It is an instance, on the part of plaintiff, of change of mind and of attorneys.
The law favors an amicable adjustment of matters in suit and, when so made and not impeached for fraud, bars renewal of composed litigation.
The claim of want of consideration for the mutual agreement is without merit.
We said in Mayor v. Sanders, 286 Mich. 45, 50:
“It is a principle well established that the compromise and settlement of an asserted claim involved in legal controversy, be it never so doubtful, constitutes a sufficient consideration for the settlement, and for any obligations given by one party to the other in consideration of such settlement.”
See, also, Weed v. Terry, 2 Doug. (Mich.) 344 (45 Am. Dec. 257); Van Dyke v. Davis, 2 Mich. 144; Gates v. Shutts, 7 Mich. 127; Bull v. Hepworth, 159 Mich. 662; Hewett Grocery Co. v. Biddle Purchasing Co., 289 Mich. 225.
The decree is affirmed, with costs to defendants.
Sharpe, C. J. and Bushnell, Boyles, Chandler, North, McAllister, and Butzel, JJ., concurred. | [
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Sharpe, C. J.
Plaintiff filed a petition for man-damns against the circuit judge of Macomb county directing him to enter an order directing the clerk of the circuit court to enter judgment of nonsuit with costs of the motion to plaintiff.
The facts upon which this petition is based may be found in Slowke v. Altermatt, 293 Mich. 360. In that case we held that the trial judge was in error in denying plaintiff’s motion for a nonsuit and said (p. 364):
“Neither in the circuit court nor in this court is any point made of plaintiff’s failure to pay or tender payment of costs up to the time of making his motion, and hence it is not for consideration on this appeal. ’ ’
When our opinion was filed, the lower court refused to enter an order of nonsuit with costs of this motion to plaintiff, hut did enter an order of non-suit of plaintiff herein conditioned on payment of costs of defendant to be taxed as of the date of original trial and original motion.
The sole question in this case is the right of plaintiff to have nonsuit without payment of costs. This question is governed by Court Rule No. 38 (1933) as amended, effective January 1, 1939, which reads as follows:
“Plaintiff may at any time, upon notice to the defendant or his attorney, and on payment of costs, discontinue his suit by order filed in the court, except where recoupment or set-off is asserted by the defendant; and except where a defendant shall have entered upon his defense in open court, unless with the consent of the defendant.”
The purpose of this rule is to reimburse a defendant for costs when he has been put to expense in preparing for trial, and then, because of a non-suit, he must again be put to the expense of preparing for trial of the same case. In our opinion the payment of costs is a condition to the entry of a voluntary order of nonsuit after a trial has been started.
At the time plaintiff made the original motion for nonsuit, defendants, under the rule above referred to, were entitled to the payment of their legitimate costs as a condition to the entry of the order. Our opinion in 293 Mich. 360 was not intended to violate, nor did it violate, the above-mentioned rule. The order for nonsuit may be entered only upon compliance with the conditions mentioned in the rule.
The writ is denied, with costs of this appeal to defendants.
Bushnell, Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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Sharpe, J.
This is an appeal from a final decree dismissing a bill of complaint filed by plaintiff to review, vacate, and set aside an order made by the Michigan public utilities commission in respect to intrastate toll rates charged by the Michigan Bell Telephone Company within this State.
On March 24, 1938, the Michigan public utilities commission, upon its own motion, undertook consideration of the message toll charges of the telephone company rendered within the State; and instituted an investigation concerning reported unreasonable, excessive and unjust rates imposed upon the public for toll service between various Michigan points, which charges were reported to be discriminatory when compared with interstate message toll rates maintained between Michigan and out-of-State points by the Michigan Bell Telephone Company and the American Telephone & Telegraph Company.
The commission issued an order directed to the Michigan Bell Telephone Company to show cause why the commission should not enter an order requiring the company to cease from the collection of unjust charges for intrastate toll message service and reduce its intrastate message toll rate schedule to the same basis and measure as provided in the interstate toll-rate schedule. The order recited that the telephone company was required by the provisions of Act No. 206, Pub. Acts 1913, as amended, to collect and enforce for services rendered only such charges as would be reasonable and just; and that the telephone company was prohibited from charging, collecting, or receiving from any person or persons greater or less compensation for any service rendered than it charges, demands, collects or receives from any other person for rendering, furnishing or performing for him or them a like or contemporaneous service.
Upon the issuance of the above order, the telephone company filed an answer denying that such discrimination existed and averred that the commission was without jurisdiction in the premises; that the rates for intrastate toll telephone service were just and reasonable; that the commission in 1920 and 1936 had established reasonable rates for exchange and toll services; and that in the proceedings of June 1, 1926, and July 1, 1936, all the property of the company devoted to the rendition of intrastate telephone service within the State of Michigan and all its services therein were considered as a unit for the purpose of rate making and any action on the part of the commission in reducing rates and charges for intrastate telephone service without a consideration of the necessity of affording the telephone company an opportunity to earn a compensatory return on its entire property is a denial of due process of law.
The commission held a hearing commencing April 26, 1938, at which time the telephone company offered no testimony in respect to its revenue nor did it offer evidence to sustain the theory that a substantial reduction of its intrastate toll rates would lead to confiscation of its property without due process of law.
On June 27, 1938, the commission entered the following order:
‘ ‘ Therefore, it is ordered that—
‘ ‘ 1. Effective 12:01 a.m. August 1,1938, the intrastate toll message rates of the Michigan Bell Telephone Company, including station-to-station and person-to-person, both day, night and Sunday rates. and report charges be reduced to the same rate level charged and established by the said American Telephone & Telegraph Company and Michigan Bell Telephone Company under their established rate and mileage schedule for message toll telephone service interstate from and to points within Michigan limits for similar'classes of service.
“2. Within a reasonable period following receipt of the certified copy of this order, but not later than July 20,1938, the Michigan Bell Telephone Company shall make and file with this commission its telephone tariff modifications to comply with this order.
“3. This commission hereby specifically reserves unto itself jurisdiction of this matter and the right to make such other or further order or orders herein as shall be deemed necessary and advisable.”
The reasons and grounds for entering of the above order as stated in the opinion of the commission are as follows:
“The Michigan Bell Telephone Company, hereinafter called the ‘Bell,’ is engaged in the conduct of telephone business in the State of Michigan, as a corporation organized under the laws of this State, with a capital stock of 1,250,000 shares of which 1,249,900 shares at least, are owned by the American Telephone & Telegraph Company, a corporation organized under the laws of the State of New York, having its principal headquarters at 195 Broadway, New York City, New York, which company is hereinafter designated ‘Long Lines Company.’ The latter actually has the direct control of the Bell through the foregoing stock ownership, and, as heretofore determined by the Michigan Supreme Court in People, ex rel. Attorney General, v. Michigan Bell Telephone Company, 246 Mich. 198 (P. U. R. 1929B, 455; P. U. R. 1929E, 27), the Bell is so organized and controlled by the Long Lines Company as to constitute the Bell the mere instrumentality or agent or adjunct of the Long Lines Company so that the separate existence of the two corporate entities must be ignored and the two corporations considered, for regulatory purposes, as but a single company.”
Additional finding of facts as stated in the opinion are as follows:
“(a) The Michigan Bell Telephone Company is the mere adjunct, instrumentality and device of the American Telephone & Telegraph Company, a New York corporation, by which latter substantially all of the Bell Company’s capital stock is entirely owned, and its business and affairs wholly dominated and controlled, and that said companies together constitute but a single telephone utility, which is subject in its intrastate business and functions within Michigan to the regulatory control of this commission.
“(b) That said utility in rendering and furnishing an intrastate toll message telephone service within the State of Michigan furnishes a service which is like and contemporaneous to that furnished by said utility in the interstate transmission of telephone long distance messages to and from points within Michigan limits, for which intrastate service said utility charges, demands, collects and receives from its patrons a greater rate of compensation than charged, demanded, collected or received from patrons for such interstate toll message service.
“(c) Said utility in its continued practice of charging different and higher rates for toll message service over distances of more than 42 miles within the State of Michigan than charged for comparable distances between points in Michigan and points in other States is an unreasonable and unjust discrimination under the provisions of Act No. 206, Pub. Acts 1913, as amended; that said practice is unduly prejudicial to patrons utilizing intrastate message service and unduly preferential to patrons utilizing-interstate message service to the extent that said intrastate message tolls exceed or may exceed message toll rates constructed on the same basis as the interstate message tolls for the same or comparable distances. ’ ’
On July 7, 1938, the Michigan Bell Telephone Company filed its bill of complaint in the circuit court of Ingham county, in chancery, to review, vacate and. set aside the commission’s order as not being in accordance with the law or just rig-hts of plaintiff. It is the claim of the telephone company that the order of June 27,1938, is without competent evidence to support it, is contrary to the evidence produced, arbitrary, and denies to plaintiff due process of law in violation of the 14th amendment to the Constitution of the United States.
Upon the filing of plaintiff’s bill of complaint, the trial court ordered defendant commission to show-cause why an interlocutory injunction should not issue, and on July 15, 1938, a writ was issued, restraining and enjoining the commission from taking any proceeding to enforce the order of the commission entered June 27,1938.
The trial court rendered an opinion in which he stated:
“Essentially, the proceeding was an inquiry into the intrastate toll charges of the plaintiff company; and the conclusions of the commission were predicated on the record as made, rather than on any alleged failure of the plaintiff to make the showing, in terms, indicated by the initial order. * * * The order actually goes far beyond the matter of alleged discrimination and in substance and effect it should be regarded as one for the fixing of intrastate toll rates. It will be noted that plaintiff was not merely required to obviate the alleged discrimination but rather was directed to place its intrastate schedules on the same basis as that pertaining to its interstate business, for similar classes of service. * # &
“In the proceeding here involved the commission determined that the two services rendered by plaintiff, that is, the interstate and the intrastate, were and are subject to similar considerations as to details and costs of operation. It was assumed that the interstate charges were reasonable, such assumption or conclusion being predicated on the fact that they had been duly established by the Federal communications commission and acquiesced, or concurred, in by plaintiff. As a practical proposition I do not understand that any claim is made on behalf of plaintiff that the interstate rates as so fixed are not reasonable. It is insisted that the commission was in error in deciding, on the basis of the showing made before it, that the two branches of the service may properly be said to be furnished under substantially identical conditions. I am brought to the conclusion, however, that the proofs reasonably support this determination. There may be some significance in the fact that in 1926, and prior thereto, the rate schedules in the intrastate and interstate rested on the same basis.
“I do not think it can be said that the commission, in proceeding on the theory suggested, acted wholly without authority. The decision of the Supreme Court in Illinois Commerce Commission v. United States, 292 U. S. 474 (54 Sup. Ct. 783, 78 L. Ed. 1371), must be regarded as establishing that such method is, under some circumstances, permissible. Defendant, and its predecessor, obviously concluded that the record in this case presented a situation justifying its acceptance. Whether the basis for the conclusion reached was less satisfactory than would have been presented by following the customary method observed in rate-making proceedings need not be specifically determined. The plaintiff herein had the right, before the commission and on the trial in this court, to offer such proofs as it desired. It has not elected, however, to supply any basis for an affirmative conclusion but relies on the claim that the commission was without jurisdiction to take action on the proofs submitted in connection with the commission’s theory. It occurs to me that plaintiff is in somewhat the same position as was the railroad company in Detroit & Mackinac R. Co. v. Michigan Railroad Commission, 171 Mich. 335.
“Under the provisions of the statute pertaining to the matter of appeal, the burden rests on the plaintiff of establishing by clear and satisfactory evidence that the order by which it claims to have been aggrieved is unlawful or unreasonable. As before suggested, I am brought to the conclusion that it cannot be said, as counsel for plaintiff insist, that the commission acted wholly without jurisdiction to make the order and that it is for that reason unlawful. No attempt has been made to establish that it actually is confiscatory in the sense that it would deprive the plaintiff of a proper return on the value of its property devoted to the service. On the record as made it must be said that plaintiff has not established, with the requisite degree of certainty, its right to the relief sought.”
'A decree was entered in conformity with the trial court’s opinion.
Plaintiff appeals and contends that the order of June 27, 1938, should be set aside because:
(1) If the order be regarded as made solely in the exercise of the power to remove discrimination it is (a) beyond the power conferred on the commission by the Michigan statute which power is limited to elimination of discrimination pertaining to intrastate operations solely; (b) inclusive of rates which are not competitive and hence discrimination cannot exist in respect thereof.
(2) "Whether the order is regarded as made in the exercise of the power to remove discrimination or to make rates by comparison or both it is (a) arbitrary and unreasonable in excluding in substance from any real consideration the many facts and circumstances as to the dissimilarities in the rendering of interstate service and intrastate service and hence in violation of section 1 of the 14th amendment to the Constitution of the United States; (b) without substantial testimony to support it inasmuch as the evidence showing many and weighty dissimilarities of conditions is not conflicting and there is no countervailing evidence and hence the order exceeds the authority of the commission under the Michigan statutes which is to hear evidence and act thereon and is violative of the due process of the 14th amendment to the Constitution of the United States; (c) not made “with reference exclusively to what is just and reasonable as between the carrier and the public in respect of domestic business ’ ’ but takes the interstate business into consideration as well and hence is violative of the 14th amendment to the Constitution of the United States; (d) a sudden shift or departure from the basis heretofore consistently and continuously adopted and pursued by defendant commission in the regulation of the business and rates of plaintiff treating all business in Michigan as a whole and fixing intrastate toll rates to produce more than the intended return from the intrastate business as a whole and the exchange rates correspondingly less and hence is violative of the due process clause of the 14th amendment to the Constitution of the United States.
It is contended on the part of the commission that the legislature possesses sovereign power to fix rates for public utilities and to prevent unjust discrimination in rates charged; that such legislative power has been expressly delegated to the commission, a fact-finding body; that under the proceedings taken by the commission the .telephone company was afforded a full opportunity to a hearing and later a judicial review of those proceedings; that the rate established is not so low as to amount to confiscation of the telephone company’s property; and that the findings of the commission are supported by competent evidence.
In our opinion the principal question involved in this case is to determine whether the findings of the commission are supported by competent evidence.
The sections of the so-called telephone act (Act No. 206, Pub. Acts 1913, being 2 Comp. Laws 1929, §11700 et seq. [Stat. Ann. § 22.1441 et seq.]) applicable to the present problem are as follows:
“Sec. 3. All persons, copartnerships or corporations doing a telephone business within this State are required to furnish reasonably adequate service and facilities for the use of their lines by the public. All charges made for any service rendered, furnished, or performed, or to be rendered, furnished or performed within the State by any telephone company shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful; and the commission shall have power to make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service or facility; and it shall likewise prescribe the standard of construction and equipment that shall be maintained by any person, copartnership or corporation maintaining a physical connection between the lines and facilities of any such person, copartnership or corporation, and the lines and facilities of any other person, copartnership or corporation.
“Sec. 4. If any.telephone company doing business within this State shall directly or indirectly by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person, copartnership or corporation a greater or less compensation for any service rendered, furnished or performed than it charges, demands, collects or receives from any other person or persons, copartnership or corporation for rendering, furnishing or performing for him or them a like contemporaneous service, such telephone company shall be guilty of unjust discrimination which is hereby prohibited and declared to be unlawful. * * *
“Seo. 5. It shall be unlawful for any telephone corporation doing business within this State to make or give any preference or advantage to any person, copartnership, corporation or locality or subject any person, copartnership, corporation or locality to any prejudice or disadvantage in any respect whatever. * * *
“Seo. 11. The commission shall, acting upon its own motion * * * have authority to hear and determine all complaints against the practices, rates, tolls, rentals or charges * * * by persons, co pártnerships or corporations within the terms of this act. * * *
“Sec. 14. Any telephone company or other party in interest, being dissatisfied with any final order of the commission made in any proceeding under this act, may within thirty days from the issuance of such order and notice thereof, commence an action in the circuit court in chancery against the commission as defendant to vacate and set aside any such order on the ground that * * * the rate or rates, charges, joint rate or rates fixed are unlawful or unreasonable. * * *
“Sec. 18. In all actions under this section the burden of proof shall be upon the complainant to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable as the case may be.”
Under section 18, supra, the burden of proof is upon the telephone company to show that the order of the commission is unlawful and unreasonable. In our opinion the commission was only required to determine upon competent evidence that the rates charged for intrastate toll service were excessive or discriminatory and it could limit its inquiry to that particular branch of the service, providing evidence was adduced to sustain its findings.
At the hearing before the commission, nearly all the evidence introduced by the telephone company related to differences in the rendition of interstate and intrastate service. It introduced evidence tending to show that in 1937 the average revenue per message from interstate business was $1.555 and from intrastate business $.318; that approximately 80 per cent, of the Michigan Bell Telephone Company’s intrastate business is between termini less than 42 miles apart; that but one and one-half per cent, of the Long Lines interstate business is under 42 miles; that during this same period the average rate miles per message were 228 miles for interstate messages and 30.9 miles for intrastate messages; that the charges for station-to-station day messages of three minutes duration transmitted these distances are $.90 in the case of the interstate and $.30 in the case of the intrastate; that the duration of the call on interstate messages is greater than that of intrastate messages; and that these are factors which enter into the revenue derived from a given schedule of rates.
It was also shown by the telephone company that, the use made of the circuit is an important factor in determining a rate schedule; that during the year 1937 the Long Lines handled 54,000,000 messages entailing 223,368,000 minutes of conversation time, while during the same period the Michigan Bell Telephone Company transmitted 27,000,000 messages, both intrastate and interstate, involving 81,-540,000 minutes of conversation; that the circuit cost per mile is not the same for the interstate circuits as for the intrastate circuits because as the size of circuit groups increase, the cost per circuit tends to decrease; and that the revenue of the Long Lines from “other than telephone uses” is $14,851,013 as against $74,334,314 from telephone uses, while that of the Michigan Bell Telephone Company for the same period is $170,037 as against $7,754,827.
Evidence was introduced upon the part of the commission by a telephone engineer employed by the commission; a toll traffic supervisor, a telephone transmission engineer, a telephone revenue engineer and an auditor employed by the telephone company; and several telephone patrons as well as an exhibit of the comparable rates which shows that the interstate and intrastate rates are the same up to and including 42 miles of service and that from then on the intrastate rates are consistently higher,
A recent case of much, importance is that of Bell Telephone Co. v. Pennsylvania Public Utility Commission, 135 Pa. Super. 218 (5 Atl. [2d] 410), dismissed on appeal 309 U. S. 30 (60 Sup. Ct. 411, 84 L. Ed. 563). That case involved an appeal by the telephone company from an order of the Pennsylvania public utility commission directing it to revise its intrastate toll rates for distances 'exceeding 36 miles so as to conform to the rates charged by the American Telephone & Telegraph Company which was a user of the Pennsylvania Bell Telephone Company’s facilities for service over comparable distances in interstate service. The facts in the above case are almost identical to the facts involved in the case at bar. There was almost identical evidence to support the finding of similarity between the interstate and intrastate service in the two cases. It consisted in a showing that for the use of the same facilities, the customer who uses them in intrastate toll service must pay more than the customer who uses them in interstate toll service. The court said (135 Pa. Sup. 235, 236):
“If the interstate rates are themselves just and reasonable and are not below the fair and reasonable rate demandable for the service, by reason of some special circumstance such as was present in the Eubank Case, it is hard to see how there can be any discrimination against interstate traffic and in favor of intrastate traffic by an order of a State commission directing intrastate rates to conform to interstate rates. * * *
“We must assume, in the absence of all proof to the contrary, that the rates so established by the American Company and approved by the Federal communications commission are just, fair and reasonable to the utilities as well as to the public. * * *
“Nor is the order invalid because it is not alternative in form, directing appellant either to raise its interstate rates or lower its intrastate rates, to conform. * * *
“If an unjust and unreasonable discrimination against intrastate service exists, which can be corrected only by a reduction of the intrastate rates to conform with the just and reasonable rates established for interstate service, the public utility commission has the power to order it.”
As we examine the facts in the case at bar, it is apparent that plaintiff, in making a comparison of the various items that go towards the making of rates, compares the whole nation-wide business of the Long Lines to the intrastate business of the Michigan Bell Telephone Company, while the comparison the commission made was between the interstate business (jointly conducted by the Michigan Bell Telephone Company and the Long Lines to and from points within Michigan limits) and the intrastate business conducted by the Michigan Bell Telephone Company. The fact that the volume, use of economical appliances, density of traffic, et cetera, of the Long Lines are different from the same factors in the Michigan Bell Telephone Company business does not meet a claim that the interstate business of the Michigan Bell Telephone Company is rendered under the same conditions as the intrastate business of the Michigan Bell Telephone Company. In its showing, the plaintiff does not show that the advantages possessed by the Long Lines are beneficial to the Michigan Bell Telephone Company. In our opinion plaintiff has failed to show any substantial difference between the interstate business of the Michigan Bell Telephone Company (conducted jointly with the Long Lines) and its intrastate business.
Plaintiff cites the case of Smith v. Illinois Bell Telephone Company, 282 U. S. 133 (51 Sup. Ct. 65, 75 L. Ed. 255), to show that the only proper basis of any rate order is a determination of the value of the property used in the intrastate business, segregated from the property used in the interstate business. Such a basis is proper when confiscation is charged, as was held in that case, but in the case at bar there is no charge of confiscation, hence the case is not controlling on the issues involved here.
In our opinion, the findings of the commission are supported by competent evidence. Upon review of such an order, the order will stand if there is substantial evidence supporting the conclusions of the commission. See City of Detroit v. Michigan Railroad Commission, 209 Mich. 395 (P. U. R. 1920 D, 867). We must assume that the rates established by the Federal communications commission for interstate tolls are fair and reasonable. In the case at bar evidence was produced which had a tendency to show that the telephone company charges higher tolls within the State than it requires for the same service interstate, with the use of the same facilities and for comparable distance. For example, the air distance from Detroit to Niles, Michigan, is 171 Miles and the toll for a long distance call from Detroit to Niles is $1 (initial period charge), while the air distance from Detroit to South Bend, Indiana, is 173 miles and the rate is 75 cents.
Mr. Joseph Bell, toll traffic supervisor of the telephone company, testified as follows:
“Mr. Pugh: The fact is that in the schedule of rates adopted by the A. T. & T., and the schedule adopted by the Michigan Bell Telephone Company, there is a differential in the charge made for the same mileage between interstate and intrastate calls?
“Mr. Bell: Yes, sir.
“Mr. Pugh: Although the same facilities may be used?
“Mr. Bell: Yes, sir.
“Mr. Pugh: In placing the messages over exactly the same facilities ?
“Mr. Bell: Yes.
“Mr. Pugh: On intrastate calls and interstate calls ?
“Mr. Bell: Yes. * * *
‘ ‘ Q. But essentially, the service of hauling a message from Clare to Detroit, whether that message be continued onward over the Long Lines to Toledo, is essentially the same sort of service as would have been the operation of hauling a message from Clare to Detroit for termination in Detroit, is it not, as far as the characteristics of the service performed, and the facilities used, and the results obtained are concerned?
“A. Yes.
“Q. For which the Michigan Bell Telephone-Company in one instance charges a higher rate if the entire call is completed within the State than it would if the call were to extend beyond the State ?
.“A. So it would appear, yes, sir.”
It is next urged that the change of method in rate fixing, adopted by the commission, was so radical as to deny to plaintiff “procedural due process of law.” Act No. 206, Pub. Acts 1913, empowers and expressly authorizes the commission to inquire into the reasonableness of rates charged by the telephone company for any class of its service. In the case at bar, the telephone company was served with an order which informed it of the nature of the complaint made concerning its tolls for intrastate long distance service. It was accorded a hearing before the commission, and when the commission entered an order establishing a new rate schedule plaintiff appealed in the manner provided .by statute. Under such circumstances there was no denial of. due process of law.
Upon review in the circuit court, the burden rests upon the telephone company to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable. The trial court found that the. commission’s order should be regarded as one for the fixing of intrastate toll rates. The trial court also determined that the telephone company had not established its right to any relief in a chancery court. The record sustains and we are in accord with such a finding.
The decree of the trial court is affirmed, with costs to defendant.
Bushnell, Chandler, North, McAllister, and Wiest, JJ., concurred with Sharpe, C. J.
The powers and duties of the Michigan public utilities commission were transferred to the Michigan public service commission by Act No. 3, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 11017-1 et seq., Stat. Ann. 1940 Cum. Supp. §22.13 [1] et seq.), and the utilities commission abolished, effective February 15, 1939.—Re-porter.
See 2 Comp. Laws 1929, §8 11700-11725 (Stat. Ann. 88 22.1441-22.1466 ).—Reporter.
Louisville & N. R. Co. v. Eubank, 184 U. S. 27 (22 Sup. Ct. 277, 46 L. Ed. 416).—Reporter. | [
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Boyles, J.
The decision in this matter rests mainly in the facts and circumstances, a detailed statement of which is necessary. In 1931, the defendant and appellant, H. Irving Walker, was administrator of the estate of Thomas B. Winter, deceased, then in course of probate in the probate court for Montcalm county. The heirs-at-law entered into an agreement with Anna E. Winter, widow of the deceased (plaintiff and appellee herein), which was designated as an “Agreement among heirs and authorization to administer,” and filed with the court. The record does not show satisfactorily whether it was approved by the court, although the subsequent proceedings indicate its approval. Defendant does not appear as a party to the agreement and did not sign it as a party. However, it bears the following indorsement:
“I, H. Irving Walker, administrator of said estate, do hereby approve the foregoing agreement and believe it to be for the best interests of said estate in all respects.
“Dated May 18, 1931.
“H. Irving Walker
“Administrator of the estate.”
This agreement provided in substance that, the heirs desiring to make suitable provision for the sustenance and comfort of the widow during hei lifetime, she should receive $100 per month during her lifetime “payable from the said estate, by the administrator thereof, who is hereby so authorized.” It provided that the widow also was to have the life use of certain real estate as her domicile; the “estate” and the “administrator” were authorized and instructed to convey certain real estate, and other real estate was to be set aside by the administrator “as long as said estate continues in probate,” and the income therefrom kept in a separate fund. This fund was to be used (1) to pay the widow the aforesaid $100 per month; and (2) for the upkeep of the buildings on the premises. The administrator was to keep a separate account as to this income fund. The heirs were to have the right to sell this real estate and reinvest the proceeds to provide said income fund. The administrator was directed to keep the property insured, the premiums, together with the upkeep and maintenance, to be paid out of the “income fund.”
Defendant, as administrator, filed annual accounts of his administration in the probate court although he did not account separately for the ‘ ‘ income fund. ’ ’ It was included in the general accounting. The gross income was not sufficient to pay the widow $100 per month and maintain the upkeep, repairs, insurance, and administration expenses. In 1937, the widow had coming a sum variously claimed to be around $1,000. From contradictory statements in the record and briefs, we gather that early in 1938 the administrator filed his resignation with the court, together with a final account. In it he accounted for his entire handling of the estate matters, including the administration of the separate property claimed to be set aside for the income fund from which the widow was to be paid. This account was heard by the probate court and, after some amendments were permitted, the account was allowed by the court as the final account of the administrator. The administrator’s resignation was accepted, a sue cessor appointed and qualified to administer the estate, and defendant herein discharged. This apparently occurred sometime in May or June, 1938. At the time when the final account was heard and allowed, the defendant (administrator) signed the following statement which was filed with the court:
“In the Matter of the Estate of Thomas B. Winter, Deceased.
“In consideration of the renouncement and waiver of any and all claims or alleged claims against me as administrator of said estate, or personally by said estate, and/or the heirs thereof, and/or any person interested therein, and upon the further consideration herein set forth, I do hereby expressly release any and all claim that I have or allege myself to have against said estate by way of services therefor as administrator thereof, and/or advances thereto, particularly hereby waiving claim for services and advances as set forth in my final account as administrator heretofore filed.
“And as further consideration for said release, I consent and agree that said final account shall be allowed as is, excepting that there shall be stricken therefrom any and all items of charges in my favor for services rendered as administrator, or advances made.
“That is to say, that said final account shall be allowed in full as.the same was filed, excepting that in allowing said account, said court shall strike therefrom the items of charges by myself for services as administrator and advancements by me made.
“The filing of this release by me shall constitute and be and the same now is authority to said court to allow said account with said above-mentioned items and only said above-mentioned items stricken therefrom.
“This release is not intended to and does not in any way affect the matter of any accounting in connection with my obligations or services to or for the trust of Mrs. Thomas B.'(Anna) Winter, as determined under order of said court, dated June 25, 1931, in this proceeding.
“In witness whereof, I have hereunto set my hand and seal this 26th day of April, A. D. 1938.
“H. I. Walker.”
The matter thus stood until February, 1939, when Anna E. Winter, the widow, filed a rather unusual petition in the probate court. It purports to be a petition for citation of the defendant herein to show cause why he should not “file an accounting of the trust created by the agreement” hereinbefore referred to, and “why he should not pay this petitioner the sum of $1,145.” The probate court entered an order to the effect that the balance due the widow was an obligation of the estate and not that of Mr. Walker, that he did not profit and had fully accounted for his administration and, therefore, Mrs. Winter could hold only the estate for the payment and mus.t look to the estate. Plaintiff herein, Mrs. Winter, appealed this decision to the circuit court.
This appeal in the circuit court seems to have progressed on the theory that it was a bill for an accounting between the widow and the defendant individually, in which plaintiff asked for a “judgment” against the defendant for the amount plaintiff had not received from his administration of the estate. The defendant, at various stages of the proceedings in the circuit court, moved that the estate itself be made a party and that the succeeding administrator be joined, claiming that the estate and not he should be held liable. The circuit judge, at various times during the many continuances, stated that the estate should be brought in, but this was not done. The defendant finally filed an accounting in the circuit court, which was in substance and effect practically the same as the account filed and allowed in the probate court. Defendant claimed he had fully accounted for his entire administration, including administration of the property from which the widow was to be paid $100 per month. At the conclusion of the proceedings in circuit court, a judgment was entered against the defendant, variously called an order, a judgment, and (as directed by the circuit judge) an “amended decree.” In substance, it provided that the defendant owed the 'plaintiff $700.88 and ordered that the matter be certified back to the probate court for further proceedings to enforce and collect the same. From this, the defendant appeals.
The proceedings cannot be considered as an accounting of defendant’s receipts and disbursements and general handling of his administration of the estate. Such an accounting had long since been filed and allowed and not appealed from. It is not claimed on behalf of plaintiff that defendant had not made a complete accounting of his administration, or that defendant had in any way withheld proceeds or profited personally from the administration. It is quite apparent that defendant had already accounted in probate court for the income from the separate property which was to be used in part to pay plaintiff the $100 per month. Plaintiff claims that she should have received these monthly payments before any of the income could be used for insurance, upkeep, maintenance, or administration expenses. Obviously this claim is based upon the agreement between the widow and the heirs-at-law, although neither the heirs-at-law nor the estate were made a party in the present suit. This can be considered only as an attempt to have the probate court take jurisdiction of a personal matter between the plaintiff herein and the defendant herein, not in his capacity as administrator, but individually; and this, without joining the other parties in interest. It is the duty of an administrator to keep property insured, maintain upkeep, and pay administration expenses. The probate court is a court of limited jurisdiction. While it has ample jurisdiction over estates and the administration thereof, the probate court has no original jurisdiction such as is sought to be invoked in this proceeding. The plaintiff herein expressly refused to proceed against the estate or against the administrator as such.
If this record discloses any liability to plaintiff, it is a liability of the estate of Thomas B. Winter, with the probability that plaintiff herein might demand an accounting from both the estate and the other heirs-at-law. The estate is still pending in probate court and has sufficient funds from which to pay plaintiff the balance of the $100 per month agreed upon. Defendant herein has fully accounted; he owes no further liability to plaintiff. His accounting has become res judicata insofar as this proceeding is concerned and it cannot be attacked in a proceeding of this nature.
Plaintiff further claims that defendant is liable on the theory that the agreement between the other heirs-at-law and the widow was a “third-party beneficiary agreement” within the meaning of Act No. 296, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 14063-1 el seq., Stat. Ann. 1940 Cum. Supp. § 26.1231 et seq.). Considerable confusion is evident in the record as to whether plaintiff intended to rely upon the original agreement made in 1931 (exhibit 1), or the statement signed by the defendant in 1938, waiving compensation, in closing his administration (exhibit 3). However, plaintiff’s brief makes it plain that this claim is based upon exhibit 3, the statement signed by defendant April 26, 1938, hereinbefore quoted in full. That part of the same which plaintiff now relies upon as a “third-party beneficiary agreement” is as follows:
“This release is not intended to and does not in any way affect the matter of any accounting in connection with my obligations or services to or for the trust of Mrs. Thomas B. (Anna) Winter, as determined under order of said court, dated June 25, 1931, in this proceeding.”
The pertinent provisions of Act No. 296, Pub. Acts 1937, upon which plaintiff relies are as follows:
“An act to establish the rights of a person other than a promisee for whose benefit a contract has been made. * * *
“Section 1. Any person for whose benefit a promise is made by way of contract, as hereinafter defined, shall have the same right to enforce said promise that he would have had if the said promise had been made directly to him as the promisee.
“Sec. 2. A promise shall be construed to have been made for the benefit of a person whenever the promisor of said promise has undertaken to give or to do or to refrain from doing something directly to or for said person.”
The obvious weakness of plaintiff’s position is that the statement relied upon does not contain or imply a promise, and one is necessary to invoke the benefit of Act No. 296. Exhibit 3 neither purports to evidence a former obligation nor create a new one; neither can it be construed as a promise to pay an existing obligation of defendant, assuming there was one. On the contrary, the language in the first paragraph of the statement indicates an understanding that defendant was released from any further claims against him personally, by any of the heirs-at-law (of whom the widow was one), in considera tion of Ms -waiving Ms compensation. At the most, the statement can be considered only as a mere acknowledgment that if Anna E. Winter had any proper right of accounting from the defendant (which he did not admit), the “release” should not affect that right. We conclude from the record that no such right existed as against the defendant, and certainly no such right was created by exhibit 3. It is more reasonable to consider that the reservation of plaintiff’s rights, if any, was intended to protect her claim against the estate, rather than against Walker individually. It is generally conceded in the present proceeding that plaintiff has an existing right against the estate.
Judgment is reversed and the case remanded for entry of judgment for defendant, with costs, but without prejudice to further right, if any, of the plaintiff as against the estate of Thomas B. Winter, deceased, or his heirs-at-law.
Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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Bushnell, J.
Defendant Proteau was charged with fraudulently and feloniously disposing of and converting to bis own use personal property of tbe value of $29.58. At bis arraignment before a justice of tbe peace be entered a plea of not guilty to the charge of embezzlement and several days later was released under personal bond. At the trial a motion was made to amend the complaint and warrant to include counts of larceny and obtaining money under false pretenses. Over the objection of the defendant this motion to amend was granted by the justice, whereupon the defendant withdrew his plea of not guilty and stood mute. Defendant then moved to quash the warrant on the ground that it was not properly signed and to dismiss on the theory that, when defendant was arrested, the officer did not have the warrant in his possession. These motions were denied and, after trial before a jury, defendant was convicted and sentenced to serve a term of 90 days in the county jail. A writ of certiorari was granted by the circuit court to which the justice made a return.
At the hearing in the circuit court, defendant complained that the return of the justice was insufficient and incorrect. The court subsequently entered an order requiring the justice to “amend and make further return to all the matters specified in the affidavit of Roy F. Andes attached to and from which said writ of certiorari issued.” The record shows that a number of days elapsed before the hearing was resumed, at which time defendant informed the court that, although several of the questions raised in his affidavit for writ of certiorari had been eliminated, he supposed the remaining questions would be answered by an amended return as previously ordered. The court then informed counsel that the justice had requested information by telephone from the court as to the amendments desired. The circuit judge stated that the request of defendant’s counsel for an amended return was too general and did not contain sufficient specific details on which an amended return could be made and, without allowing further argument, said that, after review of all the records filed, the court could not see “any sufficient reason for disturbing the judgment,” and dismissed the proceedings.
The various questions raised by appellant may be summarized as follows:
1. Was defendant entitled to a new trial because of the claimed prejudicial remarks of the prosecutor?
2. Should defendant’s motion to quash the warrant have been granted because the officer did not have the warrant in his possession when he arrested the defendant?
3. Was improper testimony admitted as to defendant’s reputation?
4. Was the return of the justice of the peace sufficient under the statute? (3 Comp. Laws 1929, § 17462 [Stat. Ann. § 28.1229].)
5. Was the court justified in refusing to require the justice to comply with the order for an amended return?
The claimed improper remarks of the prosecuting attorney had to do with a separate charge of malicious destruction of property then pending against the defendant. The return of the justice of the peace shows that defendant’s motion for mistrial on this ground was denied because, prior to the statement by the prosecutor, defendant’s attorney had referred to this other charge in the presence of the jury, and it was subsequently discussed by both sides in their argument to the jury. We are not informed as to the exact language used, except by general statements in the affidavit of defendant’s counsel. We are limited to such information as we have from the return. People v. Hobson, 48 Mich. 27, and Henika v. Brown, 155 Mich. 559. The return does not indicate that the justice abused his discretion in denying defentant’s motion for mistrial.
By statutory authorization, a peace officer may, without a warrant, arrest a person when he has been authoritatively advised that a warrant has been issued. 3 Comp. Laws 1929, § 17149 (Stat. Ann. § 28.874). A new, section of the criminal code now specifically provides that:
“Where an arrest is made under a warrant, it shall not be necessary for the arresting officer personally to have the warrant in his possession but such officer must, if possible, inform the person arrested that there is a warrant for his arrest and, after the arrest is made, shall show such person said warrant if required, as soon as practicable.” 3 Comp. Laws 1929, § 17152 (Stat. Ann. § 28.877).
For a general discussion of the law of arrest by Professor John B. Waite, see 29 Michigan Law Review, p. 448.
The complaint .in the instant case was filed April 24, 1939. A warrant was issued upon the recommendation of the prosecutor and defendant, was arrested the same day. When he was arrested, defendant asked the deputy sheriff if he had a warrant in his possession and was informed that he did not but that it was in the sheriff’s office. Defendant did not see the warrant until he was lodged in the Ma-comb county jail on the same day. The record shows a compliance with the provisions of the statutes, supra.
Defendant complains of the alleged improper admission of testimony offered in rebuttal by the people as to defendant’s reputation. The minutes of the justice show-that defendant was sworn as a witness in his own behalf and that he was later called as a witness by the people. They also show that Frank Strohm and Edgar I. Moses were sworn for the people. The return of the justice says:
“I do further certify and return that a motion was made by the attorney for the defendant to strike from the record testimony introduced by the people’s witnesses Frank Strohm and Edgar I. Moses and that such motion was denied for the reason that these witnesses testified not as to the character of the defendant but [were?] used as impeachment witnesses and testified as to his general reputation as to truth and veracity in the neighborhood in which he resided, that these witnesses attacked only his creditability and not his reputation.”
In People v. Etter, 72 Mich. 175, the court said:
“When a person is convicted of a criminal offense before a justice of the peace, and conceives that injustice has been done him, he has a choice of two remedies — he may appeal to the circuit court, where a retrial will be had upon the merits; or he may remove the conviction into the circuit court by writ of certiorari. If he chooses the latter remedy, he elects to rely upon such return as he may be able to obtain from the justice, and he can claim no error that is not shown by the return.”
Defendant relied on certiorari and we are bound by the return.
We have examined the record presented which does not contain a transcript of the testimony taken before the justice, there being only a summary of the proceedings noted by the justice on the back of the warrant and the further statement made by the justice in his return to the writ. Defendant’s counsel filed a lengthy affidavit in support of his application for writ of certiorari in which he summarized the testimony and the circumstances constituting the errors of which he complained. We cannot review the matter upon the affidavit of counsel and are bound by the return which we find is in accord with statutory requirements. 3 Comp. Laws 1929, § 17462 (Stat. Ann. § 28.1229).
3 Comp. Laws 1929, § 17464 (Stat. Ann. § 28.1231), provides that: “The circuit court shall have power to compel a return or an amended or further return to all writs of certiorari issued under the provisions of this act.” See Tiffany’s Justice Guide (10th Ed.), § 561.
Such an order was issued by the circuit court, but the justice did not file an amended return. Upon inquiry into that situation the circuit judge, in effect, vacated the order by refusing to require an amended return and by dismissing the certiorari proceedings under circumstances hereinbefore related.
As was said in Mann v. Tyler, 56 Mich. 564:
“The return as actually made by the justice shows no ground of error on which, in our opinion, we should be warranted in reversing his judgment. If it is reversed, therefore, it must be either because the circuit court refused to require a further return, or upon the grounds alleged or suggested in the last assignment of error.
“We do not think we can reverse it because further return was not ordered. Considerable latitude must be left to discretion in such matters. This Court would be utterly unable to perform its functions and clear its docket, if matters of practice at the circuits were subject to review here. We say nothing, now, of a case of gross and palpable abuse of discretion, which we cannot say appears in this case.
“The last assignment of error, it will be seen, attacks the return, and suggests that a different state of facts exists from that shown by it. It may be that this is true. But in suing out the writ of certiorari the party elects to rely upon such return as he is able to obtain, and he can claim no errors as grounds of reversal that are not shown by it. People v. Hobson, 48 Mich. 27; Rawson v. McElvaine, 49 Mich. 194. An argument that seems to render probable that an error exists, which the return does not show, is of no avail whatever.
“Certiorari, in cases which stand upon facts, is a remedy not favorable to justice, because it may set aside a righteous judgment upon errors more technical than substantial. For this reason intendments should be against error on doubtful facts; not in favor of it. The remedy more conducive to justice manifestly is an appeal. We have explained this in other cases to which we now refer. Ritter v. Daniels, 47 Mich. 617; Howell v. Shepard, 48 Mich. 472; Erie Preserving Co. v. Witherspoon, 49 Mich. 377; Whitbeck v. Common Council of Hudson, 50 Mich. 86; Wilkinson v. Williams, 51 Mich. 155.”
In the instant case the circuit judge concluded that the return as .originally made by the justice was sufficient. This conclusion was not an abuse of discretion
3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096), provides:
“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this State in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. ’ ’
Our examination of the entire cause requires affirmance. The judgment is affirmed.
Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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] |
North, J.
This is an appeal from an order of the circuit judge appointing a receiver pending suit.
Plaintiffs filed a bill in chancery seeking correction or reformation of the terms of a land contract in which they are vendees and also that the contract be held to be a mortgage. Defendants, vendors in the contract, answered, denied plaintiffs’ right to the relief sought, and filed a cross bill asking foreclosure of the land contract and appointment of a receiver. After the cause was at issue, the circuit judge, on defendants ’ petition, appointed a receiver, and this appeal followed. Appellants claim that such appointment of a receiver, under the circumstances of the case, was in violation of law and that in making the order of appointment the circuit judge was guilty of an abuse of discretion.
Defendants’ cross bill containing the allegations hereinafter noted was under oath. Plaintiffs answered the cross bill, but their answer was not under oath. While on the hearing of defendants’ petition for receiver no sworn testimony was taken, still statements of facts were made by attorneys and the parties were heard at length on the record before' the court. Defendants’ cross bill under oath afforded a competent basis for détermination of defendants’ petition. Court Rule No. 23, § 7 (1933).
In their cross bill defendants allege default by plaintiffs in payment of money due defendants as vendors in the land contract, and, under the acceleration provision of the contract, defendants elected to declare the full contract' price of $16,609.30 due. Further, defendants allege nonpayment by plaintiffs of taxes, failure to make necessary repairs, use of the property for illegal and immoral purposes, in consequence of which padlock proceedings were threatened, and maintenance of a public nuisance on the premises; all of which defendants allege resulted in impairment of their security and constituted waste. Further, that the property is subject to'a prior mortgage lien and defendants require payment of contract instalments to meet the mortgage payments and prevent foreclosure; and defendants allege “all these facts were understood by plaintiffs” when they entered into the contract.
It also appears from this record'that the property covered by the land contract is income property producing substantially $1,100 per month. And it may be further noted that plaintiffs as contract vendees are entitled to possession under their contract only while not in default.
The order appointing the receiver should not be vacated unless it clearly appears the circuit judge was guilty of an abuse of discretion. See Rolfe v. Burnham, 110 Mich. 660, 664, in which we said: “We cannot interfere with the action of the court [appointing a receiver] unless there has been a clear abuse of discretion.”
The allegations of defendants’ sworn cross bill were not met in court either by oral testimony or a countershowing of any kind under oath. On such a record we should not and do not hold that the order appointing the receiver was in violation of law or that it exceeded the bounds of discretion vested in the trial judge.
The order entered in the circuit court is affirmed, with costs to appellees.
Bush nell, Boyles, Chandler, McAllister, Wiest, and Butzel, JJ., concurred with North, J.' | [
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Chandler, J.
(dissenting). In the spring of 1938, defendant and her mother contemplated an automobile trip to Florida and invited plaintiff, a friend of many years, to accompany them. Plaintiff accepted and stated that if she went she would pay half of the expenses. However, nothing definite was decided as to the percentage she would contribute. Defendant testified that she intended that plaintiff would pay “about a third.”
In the State of Virginia and on their return from the trip, an accident occurred in which plaintiff was injured, resulting in this suit for damages. As to the facts surrounding the happening of the event, it appears that defendant became drowsy after driving for many hours and that it had been suggested to her that she stop and refresh herself, but she refused to do so. The car left the pavement, which, at the point in question, was four inches above the level of the shoulder of the road. In attempting to return to the traveled portion of the road, defendant lost control of the car, which went to the left side of the center line, struck an approaching vehicle and later overturned. The trial court found that defendant was negligent, which finding is fully supported by the record.
The trial court further found that plaintiff was not a gratuitous guest and that, therefore, she was entitled to recover upon a showing of ordinary negligence. Upon appeal, it is claimed by defendant that plaintiff was not a “passenger” in the sense that she was a passenger for hire but that she was a gratuitous guest, not entitled to recover for injuries received as a result of ordinary negligence.
It has long been the common-law rule of the State of Virginia that a gratuitous guest could not recover damages from the driver of the vehicle in which he was riding for the latter’s ordinary negligence, the doctrine recently having been incorporated in the statutes of that State. See Virginia Code of 1930, Michie, 1938 Supp. §2154(232) ; Wright v. Osborne, 175 Va. 442 (9 S. E. [2d] 452). The Virginia statute is substantially the same as that in effect in this State. See 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).
During the trip, plaintiff, defendant, and her mother, each placed money in a purse which they referred to as the “company’s purse.” Therefrom, the expenses of the trip were paid as demanded. To the time of the accident, it appears that approximately $80 had been placed in the purse, of which amount plaintiff had contributed about $30. A few dollars remained therein when the accident occurred.
In finding that plaintiff was not a gratuitous guest but a passenger for hire, the trial court relied on and stated that the case was controlled by Poole v. Kelley, 162 Va. 279 (173 S. E. 537); and Gale v. Wilber, 163 Va. 211 (175 S. E. 739).
As far as facts are concerned, neither case is in point with the one before us. In the Gale Case, the court said that a higher degree of care was required if plaintiff therein was a “passenger,” which indicated that a contractual relationship existed. However, upon the particular facts, the plaintiff was held to have been a gratuitous guest. In the Poole Case, without finding it necessary to decide the status of the plaintiff, the Virginia court said (p. 295):
“Whenever transportation is for the pecuniary benefit of the defendant, this fact, when established, takes the case out of the category of gratuitous transactions. Foley v. McDonald, 283 Mass. 96 (185 N. E. 926).”
' The point at issue is controlled by the law of the State where the tort occurred. Eskovitz v. Berger, 276 Mich. 536; Meyer v. Weimaster, 278 Mich. 370; Kaiser v. North, 292 Mich. 49. However, no case has been found wherein the Virginia law has been developed on facts in point with the instant case. Many such cases have been decided by the courts of other jurisdictions, with varying results, the outcome of some apparently being based upon a con-, struction of a particular “guest” statute, and the others controlled by a consideration of the relationship of the parties and the occasion which gave rise to the furnishing of the transportation. We do not purport in this opinion to give an extensive review of the authorities.
As a guide, we do have the expression of the Virginia court that a contractual relationship resulting in a pecuniary benefit to the defendant will remove the plaintiff from the category of a gratuitous guest and permit recovery for injuries sustained as a result of the defendant’s ordinary negligence. Poole v. Kelley, supra, and Gale v. Wilber, supra.
In McCann v. Hoffman, 9 Cal. (2d) 279 (70 Pac. [2d] 909), there was no specific agreement that the plaintiff should share the expenses of the trip but a tacit understanding was present that a contribution would be made. The court stated that where the trip was for no- other purpose than the exchange of social amenities the plaintiff was a gratuitous guest, despite the tacit agreement to contribute to the expense. Other California cases wherein the plaintiff was denied recovery are Rogers v. Vreeland, 16 Cal. App. (2d) 364 (60 Pac. [2d] 585); Starkweather v. Hession, 23 Cal. App. (2d) 336 (73 Pac. [2d] 247); Stephen v. Spaulding, 32 Cal. App. (2d) 326 (89 Pac. [2d] 683).
In Smith v. Clute, 277 N. Y. 407, 413, 414 (14 N. E. [2d] 455), the court said:
£ ‘ The question whether sharing expenses of an. automobile trip results in such benefit to the owner or operator as to take a passenger out of the purview of a guest statute has been before the courts in a number of cases. Where there is no fixed understanding or agreement for sharing expenses, but merely a likelihood or a general statement by the passenger that he will pay his share, it is not sufficient, * * * and this court has so held in affirming a dismissal of a complaint where the Connecticut guest statute was involved (Master v. Horowitz, 237 App. Div. 237 [261 N. Y. Supp. 722], affirmed 262 N. Y. 609 [188 N. E. 86]). On the other hand, where there is a definite agreement, as in the case at bar, a number of States have permitted recovery for ordinary negligence, holding the passenger who contributed toward the expenses was not a guest within the purview of the statute. * * * As Mr. Justice Stern of the Pennsylvania supreme court pointed out,
“ ‘Had plaintiffs.not made their agreement to share the expenses, defendant himself would have been obliged to pay for all the gasoline and oil consumed, and since the presence of plaintiffs in the automobile did not add in any way to the cost of operation of the ear, the money furnished by plaintiffs was a clear contribution, a net saving,. to defendant, reducing the amount which he would have been required to expend had he been transporting plaintiffs gratuitously. > ”
A similar position has been assumed by the Massachusetts court in Haines v. Chereskie, 301 Mass. 112 (16 N. E. [2d] 680), which is distinguishable from Askowith v. Massell, 260 Mass. 202 (156 N. E. 875), on the ground that a definite agreement in advance existed in regard to the sharing of expenses.
We do not apprehend that a further discussion of authorities would be of assistance in resolving this question. The Virginia court has definitely indicated that a passenger for hire indicates the existence of a contractual relationship and the conferring of a pecuniary benefit upon the defendant. We believe the elements necessary to place plaintiff in that status were present in this case.
Defendant furnished the car, and all expenses, including gas, oil, rooms and meals, were paid from the “company purse.” Although the exact percentage plaintiff was to contribute was not specifically agreed upon in advance, it is clear that it was understood that she was to pay either one-half or one-third of the expenses. As a matter of fact, she had contributed in excess of one-third to the fund at the time of the accident. We believe that the necessary contractual relationship existed, and it is apparent that defendant received a pecuniary benefit. Plaintiff was not a gratuitous guest and defendant’s negligence was sufficient to create liability.
Defendant relies on Morgan v. Tourangeau, 259 Mich. 598, but in that case there was no agreement in advance relative to the sharing of expenses.
We do not intend in holding as we have on this point to adopt a rule that would make every person a passenger for hire who had agreed to buy some gasoline or oil, no matter how small the amount might be, and thus open the door for wholesale evasion of the so-called “guest acts.” Consideration must be given in each case to determine if the defendant sought to be charged did receive an actual pecuniary benefit based upon an agreement entered into in good faith.
It is also urged that the parties were engaged in a joint adventure and that this bars recovery. To have a joint adventure, there must exist an express or implied agreement for joint control and operation of the vehicle. Miles v. Rose, 162 Va. 572 (175 S. E. 230). The trial court found that this element was missing and his finding has ample support in the record.
No other questions of importance are raised which it is necessary that we discuss.
The judgment should be affirmed, with costs to appellee.
Sharpe, C. J., and McAllister, J., concurred with Chandler, J.
Chap. 285, 1938 Acts of Assembly.—Reporter.
From Kerstetter v. Elfman, 327 Pa. 17, 20 (192 Atl. 663).—. Reporter. | [
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Sharpe, C. J.
The Lapeer Farmers Mutual Fire Insurance Association was incorporated in 1871. In 1932, it had $8,182,669 of fire insurance in force. It operated in Lapeer and adjacent counties and was last incorporated in 1931 under the provisions of Act No. 256, Pub. Acts 1917, as amended, being 3 Comp. Laws 1929, §§ 12592-12621, which is part 4, chap. 4, of the insurance code.
In September, 1935, the attorney general on the relation of the commissioner of insurance of the State of Michigan filed a bill of complaint in Ingham county, the purpose of which was to secure the appointment of a receiver “to take possession of, collect and receive all of the property, chose in action, equitable interests and effects of said defendant company.” On September 17, 1935, the defendant insurance company filed an appearance and answer by which it admitted that it “is in a very bad way financially and that it should not go along any longer as an insurance company.” The above appearance and answer was signed by Claude Sleeman, secretary and treasurer and successor of William E. Ivory, who had acted in that capacity from April 1, 1927, to May 28, 1935,
On September 17, 1935, the commissioner of insurance was appointed statutory receiver of the insurance company and on September 30, 1935, William G. Simpson, deputy insurance commissioner, was appointed receiver and was ordered to: “cause an accounting to be had of all transactions here in the company, or any person connected therewith in any capacity, is involved, and to report his findings to this court as to all matters involved in said receivership.”
February 28, 1936, William E. Ivory filed a claim for the lump sum of $5,703.65 “for salary and fees as secretary-treasurer of the Lapeer Farmers Mutual Fire Ins. Assn, as O.K. by the board of directors for the years 1981-1935 inclusive. Policy No. 3769 with interest at 5 per cent as specified in the minutes of the association.” This was later itemized to include interest and increased the claim for such years to $5,858.77. On April 27, 1936, an “order filing time of hearing on claims” was filed. On June 1, 1936, one Eena Eice filed an objection to the Ivory claim. On July 21, 1937, Earl West and others, appellants herein, filed a petition for continuance on the hearing on claims and objections to the Ivory claim, claiming that Ivory is heavily indebted to the association by reason of maladministration of his office as secretary and treasurer.
This claim was investigated by the receiver and he recommended that it be allowed in the sum of $5,095.13. On October 21, 1937, the trial court allowed the claim as recommended by the receiver, subject to the following condition:
“It appearing that a claim having been filed by the receiver against said William E. Ivory and the Michigan Surety Company, his bondsman, that no money be paid by the receiver upon said claim until further order of this court.”
After the allowance of the above claim, Earl West and others filed a motion for rehearing which was denied; they appeal.
It is urged by William E. Ivory, appellee, that the order allowing his claim is not a final order and hence not appealable.
In Commissioner of Insurance v. Lloyds Insurance Co. of America, Inc., 287 Mich. 599, 607, we said:
“Appeal from a chancery decree or order is a statutory right, 3 Comp. Laws 1929, § 15508 (Stat. Ann. § 27.2608); an appeal of right is proper only from a final judgment or order, In re Widening Woodward Avenue, 265 Mich. 87; the right to appeal is determined not by the form of the order or decree, but by its effect, Perrin v. Lepper, 72 Mich. 454. In Equitable Trust Co. v. Bankers Trust Co., 268 Mich. 394, we held that if the order might finally dispose of a portion of the subject matter in controversy, it is a final order and leave to appeal need not be obtained.”
The order in this case is final as it determines the claimant’s right to compensation for his services, as secretary-treasurer of the insurance company. The effect of the proviso is to delay payment of the amount. It does not affect the right to pay. It merely postpones its realization.
Appellants urge that claimant is not entitled to compensation for services because of his mismanagement and maladministration of his office as secretary-treasurer of the company. It is the generally accepted rule that an officer may forfeit all right to compensation because of fraud, misconduct, or gross neglect in the management of the corporation or in the performance of his duties. 5 Fletcher, Cyclopedia of Corporations (Perm. Ed.), § 2145, p. 462. The basis for this doctrine is the relationship between the corporate officer and the corporation. It has been placed on the grounds of agency (Hinkley v. Sagemiller, 191 Wis. 512 [210 N. W. 839]), or that a corporate officer occupies a position analogous to that of a trustee (Eaton v. Robinson, 19 R. I. 146 [31 Atl. 1058, 29 L. R. A. 100]), but the cases where this principle has been applied to deny a corporate officer his salary have usually been tainted with bad faith (Backus v. Finkelstein, 23 Fed. [2d] 357; Flint River Pecan Co. v. Fry [C. C. A.], 29 Fed. [2d] 457).
It appears to be undisputed that Ivory as secretary-treasurer of the company did not keep its books and records in a proper manner; that he did not make a proper record of policy membership; that he did not have the assessment roll completed at the time of the audit; that he did not make a strenuous effort to collect unpaid assessments; that lie violated the provisions of the charter of the corporation; and that he failed to report and account for all moneys collected.
"We realize that it would serve no useful purpose to detail the many shortcomings of Mr. Ivory in connection with his services as secretary-treasurer of the insurance company and we also realize that some of the responsibility must be shared by the board of directors. But as secretary-treasurer, Ivory was the moving spirit in the business of the company and it was his duty to keep accurate records of all company transactions as well as to make proper reports to his board of directors and to file proper reports with the insurance commissioner. The record is replete with testimony that the affairs of the company were grossly mismanaged; and that' this mismanagement was directly caused by reason of the fact that Mr. Ivory was secretary-treasurer of the company over a period of years.
Mr. Ivory has filed a claim in which he seeks compensation for four years salary at $600 per year, for collection fees during this period of $2,446.61, for fees incident to increases and decreases of insurance of $398.95, and interest on unpaid balances in the sum of $613.21.
The record does not satisfy us that any part of the above claim should be allowed. The evidence is overwhelming that there was gross neglect of duty in the management of the affairs of the insurance company; and that Mr. Ivory was largely responsible for such mismanagement.
It follows that the decree of the trial court is reversed and the claim disallowed in its entirety. Appellants may recover costs.
Bushnell, Boyles, Chandler, North, McAllister, Wiest, and Butzel JJ., concurred.
See Stat. Ann. §§ 24.442-24.471.—Reporter. | [
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Chandler, J.
The Plymouth Cooperage Company was organized under the laws of this State some time during the early part of the year 1934 for the purpose of engaging in the business of the manufacture of beer barrels. H. Armin Weil and Harry Freshman were the promoters, Mr. "Weil and members of his family being the principal stockholders.
The Plymouth Company acquired the assets of the Wolverine Wood Products, Inc., of Ann Arbor, moved the same to Plymouth and engaged in the business of the manufacture of beer barrels and the sale of its capital stock.
The business was far from profitable and stock sales moved very slowly. Messrs. Weil and Freshman conceived the idea that the manufacture of whisky barrels offered a more lucrative field for the business of the company, but the Plymouth plant was not suitable for that purpose. They procured some orders for whisky barrels and temporarily arranged for the manufacture of the same in Paducah, Ky. The promoters finally found a cooperage plant at Cleveland, Ohio, owned by one Welti, which they considered suitable for .the business of the company. They ascertained that the plant could be purchased for $18,000, but that the conditioning and equipment of the same to meet their requirements would necessitate an additional expenditure of several thousand dollars. They then realized that more capital would be required than could be obtained under, the original authorization of the securities commission, and in the latter part of 1935 application was made to the commission for authority to sell an additional $100,000 of .the capital stock of the Plymouth Company. On January 28, 1936, an order was entered by the commission validating the issue of 100,000 shares of additional stock at $1 per share to net the corporation not less than 850 per share, which order, among other provi sions, contained the following: “that no stock shall be issued for promotion or other intangibles without first securing the approval of this commission.” No subsequent order was ever approved by the commission.
The law firm of McLeod, Fixel & Fixel, of which defendants Arthur E. Fixel and Rowland W. Fixel are members, were attorneys for the Plymouth Cooperage Company from October, 1934, through the years 1935 and 1936, Arthur handling the business for his firm until March, 1936, when Rowland took charge of its affairs because of other business and engagements occupying the time and attention of Arthur. Arthur in person represented the corporation in securing the order of the securities commission validating the last stock issue.
Arthur Fixel learned from Mr. Weil around the first of March, 1936, that the Cleveland plant could be purchased for $18,000 on the following terms: $8,000 in cash and a first mortgage on the plant for $10,000 payable in five years. Mr. Arthur Fixel testified:
“Weil then made the statement that the situation was getting to the point where they would have to do something, and he asked me if I didn’t have parties of my acquaintance who could acquire this plant and put the Plymouth Cooperage Corporation in there, either on a lease basis or a land contract basis without an immediate down payment on a deferred basis. Mr. Freshman stated to me in Mr. Weil’s presence, he said we could afford to .give somebody 15,000 shares of our stock who would buy the plant and sell it to us that way on a deferred basis so we could get in there and manufacture our orders.”
On or about March 12, 1936, Mr. Rowland Fixel went to Cleveland with Mr. Weil and further negotiations were had with Welti, the owner of the Cleve land plant, on a rental basis. However, these came to naught. Mr. Welti refused to consider any proposition other than an out and out sale for $18,000, $8,000 cash and a five-year purchase-money mortgage for the balance. Upon his return to Detroit, Rowland advised Arthur of what had transpired at the Cleveland conference.
The record discloses that Arthur Fixel contacted several business acquaintances endeavoring to find one who would advance the sum of $8,000 cash to enable the corporation to acquire the Cleveland plant, but without success until he contacted defendant William Hoehn who agreed to contribute $4,000 of the cash necessary for the purchase. It was then that Rowland and Arthur Fixel and their brother William, as trustees of the estate of Bertha Fixel, deceased, undertook and agreed to contribute the other $4,000 of the cash necessary to apply on the purchase price.
At the time of the transaction hereafter detailed, Rowland W. Fixel executed a declaration of trust to defendant Hoehn setting forth that his only interest in the property acquired from Welti was as trustee for said Hoehn and, as a part of the same transaction, defendant Hoehn executed a declaration of trust declaring himself to be holding said property in equal shares for himself and the estate of Bertha Fixel, deceased. These mutual declarations were evidently made prior to the time that Rowland Fixel went to Cleveland to consummate the deal with Welti.
On or about April 2, 1936, Welti conveyed the legal title of the Cleveland property to Rowland W.' Fixel, “trustee,” and was paid $8,000 in cash and received back from Mr. Fixel a purchase money mortgage for the sum of $10,000, payment of which was later guaranteed by the Plymouth company. Mr. Rowland Fixel then entered into a contract with the Plymouth company by which he agreed to sell to it the property in question for the total purchase price of $35,000, $10,000 to be paid in cash, $10,000 by the assumption of the purchase-money mortgage, and the remaining $15,000 within one year of the date of the contract, either in cash, or in stock at par, at the option of the vendor. $2,000 was repaid to the trustee, and in July of the same year this option was exercised by the “trustee” and stock was taken in lieu of cash. This 15,000 shares of stock was distributed as follows: 4,500 to the defendant Hoehn, 4,500 to the estate of Bertha Fixel and the remaining 6,000 shares was transferred to one Edlin whom the record discloses was under contract with the company to sell 60,000 shares of its stock, and who demanded and received from Rowland, “trustee,” and Hoehn the transfer of this stock. However, it does not appear from the record that either Mr. Hoehn, the estate of Bertha Fixel, or Rowland W. Fixel, “trustee,” received any consideration whatever for the transfer of this stock, or what, if any, disposition ever was made by said Edlin of said stock; neither does the record disclose that said Edlin ever made any transfer of his stock, and we therefore do not consider Edlin’s connection with the corporation, or any of the defendants, as of any importance as said stock is now of no value. In this connection it might be said that both Edlin and Weil were at the time of the hearing of this cause under indictment in the Federal court because of irregularities in their conduct in connection with affairs of the company.
Defendant Hoehn has never disposed of any of his stock and still holds the entire 4,500 shares. The estate of Bertha Fixel has disposed of 4,000 shares and realized upon the sale thereof the sum of $1,457.72. These sales of stock on the part of the Bertha Fixel estate took place in November and December, 1936, and January, 1937. The record discloses that the testamentary trustees of the estate of Bertha Fixel and Mr. Hoehn agreed with the officers of the corporation not to offer for sale any of their stock for four or five months, so that there might not be any interference with the sale of the treasury stock of the company. There - is nothing in the record to indicate that the sale of this 4,000 shares of stock by the Bertha Fixel estate in any way interfered with the sales of stock that the corporation was undertaking to make, as only 154,000 shares of stock, in addition to the 15,000 shares issued to the Fixels and IToehn, was issued out of an authorization of 177,000 shares.
On December 17, 1936, defendant Rowland W. Fixel as “trustee” and the Plymouth Cooperage Corporation as lessors leased the Cleveland plant to one G-reen, and rentals as appears from the record have been collected by the trustee in bankruptcy in the amount of $1,228.62.
On March 12, 1937, involuntary proceedings were commenced against the Plymouth company in the United States district court for the eastern district of Michigan under section 77B of the national bankruptcy act (11 USCA, §' 207), one Rosenburg being first appointed temporary trustee and being succeeded as permanent trustee by the plaintiff in the instant case. Reorganization proceedings having failed, on June 28, 1937, the bankruptcy court made an order to liquidate the estate. Under an order of the bankruptcy court, the plaintiff herein sold the personal property in the Cleveland plant, realizing therefrom the sum of $450.
Op. April 11, 1938, the instant suit was commenced, by direction of the bankruptcy court, in "Wayne county circuit court in chancery by the trustee, making Rowland "W. Fixel, individually; Rowland W. Fixel, Arthur E. Fixel, and William A. Fixel, testamentary trustees of the estate of Bertha Fixel, deceased; William H. Hoehn; H. Armin Weil, and Harry Freshman, defendants. Neither Weil nor Freshman were ever served with process in this suit. The bill of complaint alleged fraudulent conduct on the part of defendants Fixels, Weil and Freshman, and alleged that defendant Hoehn had notice of the fraudulent character of the transaction by which the Fixels, as testamentary trustees of their mother’s estate, and himself were to receive 15,000 shares of the stock of the Plymouth company as a bonus or profit for the furnishing of $8,000 towards the purchase price of the Cleveland plant. It is plaintiff’s claim that the firm of McLeod, Fixel & Fixel, with whom defendants Rowland and Arthur Fixel were connected, were attorneys for the Plymouth company during the time the transactions above related were going on; that they occupied a fiduciary relation toward the company; and that no full and complete disclosure of all the facts connected with 'this transaction was ever made to the corporation or to the stockholders thereof; that the transaction was one that was improper to be carried on between attorney and client; that said attorneys well knew of the provision of the order of the securities commission limiting the sale of the stock for certain purposes, and fixing a minimum sum for which said stock should be sold; that the defendants Fixel and Hoehn must be held as trustees ex maleficio for all damages sustained by the company growing out of the transaction. The plaintiff contends that these damages are to be computed as follows: Defendants are to be credited with $8,000 which they contributed, and are to be charged with $15,000 as the cash value of the stock which was transferred to them in July, 1936.
On the other hand the defendants contend that their dealing with the company in connection with the transaction in which the Cleveland plant was acquired was a business deal conducted at arm’s length between them and the company. They deny that there was any fraud or overrreaching on their part and assert that they are entitled to a lien upon the Cleveland property next after the purchase-money mortgage for the amount of $8,000, which they advanced for the corporation, plus interest thereon, and alsq claim the right to recover from plaintiff as trustee in bankruptcy the sum of $450, which was received by him on the sale of the personal property referred to, which they claim was a part of their security in this transaction. They deny that they should be charged in any way with the proceeds of the stock which they have sold and deny that the transaction either can be or should be cancelled and set aside.
It was upon these conflicting claims that the ease was submitted to the trial judge.
The trial judge made findings of fact and conclusions of law. He found that the relation of Rowland and Arthur Fixel to the affairs of the company was clearly that of attorney and client; that the issuance of $15,000 of treasury stock in connection with the transaction hereinbefore detailed was .never called to the attention of the securities commission, and concluded that if it had been, it would never have been approved by that commission. The court found that the connection of defendants "Weil and Freshman with the transaction and subsequent false entries in the books of the corporation disclosed that a distinct fraud was perpetrated upon the company by them, but that the defendants Fixel were not connected therewith, but as a conclusion of law determined that the Fixels must be charged with all the legal consequences which flow from the circumstances of the contract and its wording, and from the order of the securities commission; that they are chargeable with the consequences of the conclusion that the transaction was not in accordance with the terms of the order of the securities commission, and that the transaction was one which should not be sanctioned by a court of equity.
The trial court determined that the contract in question could not be cancelled by said court because of its ratification by the acts of the corporation and the trustees in bankruptcy, saying:
“There have been two trustees, one under that section of the Federal statutes known as 77-B, and one under the general bankruptcy law. Both have been in possession of the property, have asserted the right to sell personal property covered by the contract in question, and have received considerable sums by way of rental of a part of the premises covered thereby. Both have appeared in the Federal court in bankruptcy, asking the direction of that court to sell both the personal property and the real estate under the authority of the district court for the eastern district of Michigan, southern division, in bankruptcy, free and clear of any and all claims and liens other than the lien of the purchase-money mortgage given back to Welti at the time of the original purchase. This course of conduct of the trustee, acting under the authority of the Federal court, conclusively establishes a ratification of the contract, and conclusively prevents and estops the plaintiff in this case from claiming any cancellation thereof.”
Relative to plaintiff’s contention on the question of damages, the trial court said:
“The plaintiff in the case claims the right to charge the defendants $15,000 for 15,000 shares of stock at par because those 15,000 shares of stock were taken in lieu of a cash claim for $15,000. The plaintiff claims the right to do this on the basis that the corporation was damaged to an amount of $15,000 when its treasury stock was issued. This claim does not seem to be sustained. In the first place the true theory upon which such proceedings should rest is that where one acting under a fiduciary capacity profits unjustly out of his fiduciary relationship that unjust enrichment should be taken away from him and his beneficiary should receive the benefit thereof, whatever that benefit has been. That theory does not proceed upon compensation for damages inflicted or sustained but it does proceed truly and correctly upon a trust principle and that is that a trustee shall not be permitted to profit or benefit by derelictions in his duty as trustee. Under the theory of damage the argument of the plaintiff would result in a rather anomalous position. If the stock had gone to a value of $2 per share and the corporation had been a success, the only recovery that could be made by the corporation in such a case would be $1 per share, which is all that the company was entitled to gain out of the sale of its treasury stock. Therefore, the trustees would be charged with $15,000 and they would be allowed to retain $15,000 for their own enrichment which they wrongfully obtained as the fruits of a violation of their duties in a fiduciary capacity. Such a conclusion as that is distinctly contrary to the rules of morality and also to the rules of law as I understand them. Under such circumstances if the stock were still retained by the fiduciary a decree would certainly be rendered by any court of equity cancelling the stock in their hands and ordering its return to the treasury of the corporation, regardless of what its value might be. It must be concluded that the basis of a decree in such a matter is properly the unjust enrichment which has been gained and not the damage which has been suffered. If recovery were to be based upon damage, it is conceivable that even though there is great enrichment of a fiduciary there might not be any damage to the beneficiary. In such a case the fiduciary would be allowed to retain whatever he has enriched himself by and the beneficiary would not be allowed to cancel the transaction.
“Furthermore, it is not perceived in this case that there is any basis for figuring any loss on the part of the corporation. It has not lost the sale of any of its treasury stock open for sale, because at the time when the sale ceased there was still a considerable amount of authorized treasury stock unsold. The contention of the plaintiff in this regard cannot be sustained.”
The court below then solved the issues involved in this case as follows:
“As already stated, there can be no cancellation. The relation of vendor and vendee still exists as between Rowland Fixel, trustee, and the company. The estate of Bertha Fixel and "William Hoehn have $8,000 in cash which is invested in the property. They are entitled to the return of this $8,000 cash, which can be returned to them only by a decree declaring that they have a lien upon the land in Ohio which is subsequent to the lien of the purchase-money mortgage but is ahead of any claim in behalf of the trustee in bankruptcy. The contract still being in existence, they are entitled under its terms to the benefit of interest upon the $8,000, with which they must be credited. The estate of Bertha Fixel must be charged with $1,457.72 as the proceeds of the sale of stock which was transferred to that estate. The stock in the hands of the defendant William Hoehn, 4,500 shares, must be cancelled. The evidence in the case shows that 6,000 shares of stock were transferred to Edlin and he is not a party defendant to this proceeding. Therefore, nothing can be done in the way of cancelling the stock in his hands. If he ever comes before any court and if the question ever becomes of any importance, then it is probable that that stock would also be subject to cancellation in his hands. It cannot be done by a decree in this case, however.
“The claim is made that the rentals received by the trustee in bankruptcy should be properly credited to Fixel, trustee. This cannot be done in view of the fact that interest is allowed upon the $8,000 of the unpaid purchase price under the contract. The vendee in the contract has at all times been entitled to the possession of the land until proper steps have been taken to foreclose the contract. * * * As long as the relationship of vendor and vendee continued and the right to possession of the property was not legally changed, the vendor is entitled to insist upon the unpaid part of the purchase price, and the vendee is entitled to the use of the property and the collection of the rentals.”
A decree was entered in accordance with the foregoing findings and conclusion reached by the trial court, from which decree all parties appeal.
The trial court in the opinion filed in addition to the findings hereinbefore enumerated determined that the $450 received by the plaintiff from the sale of personal property, that was a part of the Cleveland plant, was a part of defendants’ security and that Rowland W. Fixel, trustee, was entitled to receive said sum to apply on the amount of indebtedness due from the bankrupt to him. However, in the decree finally entered in said cause, no provision was made for the disposition of this money so received.
The plaintiff contends:
1. That the trial court was in error in holding that the plaintiff was estopped from claiming a cancellation of the contract in question because the acts of the corporation and trustees clearly showed a ratification thereof.
Being in accord with the determination of this question by the circuit judge, as well as the views thereon expressed by him as hereinbefore quoted, we adopt his opinion on this question as determinative of the issue here presented by plaintiff. The rule is quite uniform that one who seeks rescission of a contract must first place the other party in statu quo. If this cannot be done, the court will grant relief by cancellation only where the clearest and strongest equity imperatively demands it. The facts in the instant case do not create any demand for the invocation of such doctrine.
As a general rule a defrauded party who delays and accepts the benefits of a contract cannot thereafter rescind, his remedy being an action for damages.
Plaintiff further contends:
2. That the trial court erred in failing and refus-, ing to charge defendants with the par value and/or full value as of the date of transfer of the treasury stock of the company taken by defendants upon the exercise of the option contained in the land contract.
We are not in accord with plaintiff’s position. The only theory on which such a determination could be made would be that plaintiff had sustained damages to an amount equal to the par or market value of the so-called bonus stock at the time of the transfer of the same to defendants. Damages are compensatory only. From the record it clearly appears that had this stock remained in the treasury of the corporation, it was valueless because there still remained at the time of the bankruptcy several thousand shares of validated unissued stock, which the corporation had been unable to sell. It further appears that defendants had kept their agreement with officers of the corporation not to offer their stock for sale for more than five months and had not, therefore, in any way, interfered with the sale of the stock of the company corporation.
Plaintiff urges:
3. That the trial court erred in holding that the plaintiff trustee in bankruptcy must pay to Fixel, trustee, the sum of $450 realized on the sale of the personal property held under order of the Federal court.
While the court made the finding here complained of, it was not incorporated in the decree. This subject will be discussed later herein.
Cross appellants contend in their statement of questions involved that the court was in error in holding that the deal by which defendant Rowland W. Fixel, trustee, acquired title to the Cleveland plant and in turn sold the same to the Plymouth Company by reason of the attorney and client relationship was not a good faith transaction and was in violation of the order of the Michigan securities commission and could not therefore be sustained by a court of. equity.
The trial judge on this phase of the case found:
“The conclusion is too obvious that the commission would never have authorized that contract when even a moment’s consideration is given to the terms of the transaction. Property can be bought and is bought for $18,000. It is immediately resold to the company for $35,000, all of which can be required to be paid within not more than one year from the date of the making of the Contract. A profit of 185 per cent, is provided for in 12 months on the deal. The attorneys for the corporation are on one end of that transaction. It cannot be, held that such a transaction can be entered into between the attorneys for the corporation, subject to the jurisdiction of the securities commission, under such cir cumstances as to permit it to be regarded as a good-faith transaction entered into with full knowledge of all of the parties interested in the affairs of the company. This conclusion is further fortified by the fact that there is nothing in the records of the meetings of the board of directors to indicate that the original purchase price of the property was $18,000.”
This conclusion of the trial judge has our approval. See Oviatt v. Smith, 226 Mich. 253.
In dealings between attorney and client of this nature, we hold that the burden is upon the attorney to show full information and freedom from restraint on the part of the client and, if he cannot produce evidence which puts the transaction beyond reasonable controversy, it will be set aside and he will be regarded as trustee for his client. This burden has not been met by defendants Fixel, the attorneys, and Rowland W. Fixel must be regarded and treated as trustee for the Plymouth company.
The record here does not disclose that the board of directors of the Plymouth corporation had any information from President Weil or attorney Fixel that the original purchase price of the Cleveland plant was $18,000. The record also discloses that the issuance of 15,000 shares of bonus stock to defendants was clearly in violation of the order of the Michigan securities commission, which fact was known to the attorneys who represented the corporation at the time the second issue of stock was validated by the commission.
Cross appellants also insist that the court erred in not requiring, by its decree, the plaintiff to account to them for the sum of $450 received from the sale of personal property in the Cleveland plant.
As hereinbefore noted the trial judge found that this property was a part of defendants’ security and that said sum should be accounted for by plaintiff to defendants to apply on plaintiff’s indebtedness to them. The decree as finally entered did not require any accounting from the plaintiff for said amount. No reason appears in the record as to why the court’s finding in this respect was not made a part of the decree. However, we conclude that the reason therefor was because of the provisions of the bankruptcy act, which gives the bankruptcy court power to sell only the estate of the bankrupt. We call attention to 8 C. J. S. p. 1037, § 310.
“All that the trustee is authorized to sell is the bankrupt’s right or interest in particular property, and he cannot guarantee the extent of such right nor will the court pronounce on it in advance. Where a bankruptcy court finds assets in its hands, which are claimed by a third party, it has the right, therefore, without disposing of the question of title to sell the bankrupt’s interest therein, leaving the purchaser of such interest and the adverse claimant to contest their rights elsewhere.”
We hold that the trial court was correct in not incorporating in the final decree any requirement by the plaintiff to account to defendants for the amount received by him from the sale of personal property.
Other issues raised by cross appellants have either been discussed by us in this opinion or by the trial court in the quotations from his opinion set forth herein, which meet with our approval and are made a part of this opinion.
The decree entered in this case is affirmed.
Following the suggestion of the trial court, who made no award of costs, excepting for the entry fee and decree fee, no costs will be awarded on this appeal.
Sharpe, C. J., and Bushnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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Bushnell, J.
This action arises out of an intersection collision between an automobile that was being driven southerly on the Vassar-Caro road on August 14, 1939, about 8:15 o ’clock in the morning, by the late Herbert P. Orr, and a Chevrolet dump truck that was being driven westerly on M-46 by claimant Theodore Rugenstein. Orr and his wife were killed, Rugenstein was injured, and his truck was damaged.
There is some dispute in the record as to the number of stop signs at the intersection. A disinterested witness said that there were stop signs on the west, north, and south corners but none on the east. The sheriff of Tuscola county, who testified for Rugenstein, said there were four stop signs at the intersection, one facing each way.
Rugenstein first saw the Orr car when he was about 95 feet from the point of collision, Orr being then about 300 or 400 feet north of the intersection and “going fast.” Claimant says that he relied on the stop sign, slowed up a little, and decided it was safe to proceed. At the time of the impact, his rear wheels were across the center line of the intersec tion. Rugenstein cannot see out of bis left eye and, after observing traffic from the north, turned his head so that he could look to the south, and he did not see the Orr car again until just an instant before he was hit.
Plaintiff presented his claim to the Orr estate and it was allowed. The estate appealed to the circuit court, where the matter was submitted to the jury. After a verdict by the jury, judgment was entered in the sum of $1,012.50.
Under these circumstances, should the trial judge have directed a verdict for the estate on the ground that plaintiff was guilty of contributory negligence as a. matter of law?
“One can rely on the right of way and may assume that another will obey the law and observe such right unless circumstances indicate to the contrary. But he must always exercise that degree of care and caution that a reasonably prudent and careful person would exercise under the same or similar circumstances.” Rhoades v. Finn, 288 Mich. 262, 265.
Rugenstein was proceeding on a through highway. He had a right to assume that Orr would obey the statute which required him to come to a full stop before entering M-46. See 1 Comp. Laws 1929, § 4715 (Stat. Ann. § 9.1583), and Weil v. Longyear, 263 Mich. 22. The speed of the two vehicles as they approached the intersection, the testimony of the witnesses, the inhibition of the statute just cited, and the unquestioned negligence of Orr produce a state of facts upon which reasonable men may fairly arrive at different conclusions. The issue of fact thus presented makes the matter of Rugenstein’s contributory negligence a question for the jury. Pulford v. Mouw, 279 Mich. 376, and authorities cited at page 382.
Appellant contends that reversal is demanded because of the court’s admitted error in asking a witness a question involving facts equally within the knowledge of the deceased. The court asked plaintiff if the Orr car stopped before it came onto M-46, and plaintiff answered, “It did not.” Even if this testimony were eliminated from the case, this fact was established by the testimony of a disinterested witness. Moreover, in the statement of facts in appellant’s brief we find the admission that: “It is apparent that neither- car stopped for the intersection.” The question put by the judge, although erroneous, does not constitute reversible error.
In the statement of questions involved, appellant asks: “Was the charge of the court to the jury a fair statement of the law as applying to the undisputed facts'?”
Defendant estate did not complain about the court’s charge in its motion for new trial and limited its assignments of error to the court’s failure to give certain requested charges. In spite of this, certain alleged specific defects in the charge are discussed at length in appellant’s brief. Under the rulings of this court, such a question, raised for the first time in defendant’s brief, will not be considered. Thomson v. Brandt, 249 Mich. 127. See, also, Anderson v. Lynch, 232 Mich. 276, and Garton v. Powers, 252 Mich. 442.
The judgment is affirmed, with costs to appellee.
Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.
See 3 Comp. Laws 1929, §14219 (Stat. Ann. § 27.914).—Re-PORTER. | [
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Wiest, J.
The bill herein was filed under the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, §13903 et seq. [Stat. Ann. §27.501 et seq.]), to obtain a decree declaratory of the rights of plaintiff under Act No. 94, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 3663-41 et seq., Stat. Ann. 1940 Cum. Supp. §7.555 [1] et seq.), commonly known as the “use tax act.” It is agreed that the facts are fully stated in J. B. Simpson, Inc., v. O’Hara, 277 Mich. 55, where we held plaintiff’s sales in Chicago did not come within Act No. 167, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 3663-1 et seq., Stat. Ann. § 7.521 et seq.), known as the “sales tax act.”
Briefly stated, plaintiff operates a merchant tailoring establishment in Chicago, Illinois, takes orders in this State, from residents, for clothes, fills such orders in Chicago and, upon delivery there to an interstate carrier, title thereto is vested, by agreement, in the purchaser. The circuit court held the sales and delivery so made did not require plaintiff to collect and pay the tax under the use tax act. Defendants appeal.
The use tax act in section 2, subd. (d), states:
“‘Seller’ means the person from whom a purchase is made and includes every person engaged in this State or elsewhere in the business of selling tangible personal property for storage, use, or other consumption in this State.”
Section 5 of the act provides:
“Every seller of tangible personal property for storage, use or other consumption in this State, engaged in the business of selling at retail in this State, shall, within thirty days after the effective date of this act, register with the board and give the name and address of each agent operating in this State, the location of any and all distribution or sales houses or offices, or other places of business in this State and snch other information as the board may require with respect to matters pertinent to the enforcement of this act: Provided, That it shall not be necessary for a seller, holding a license obtained pursuant to the provisions of act number one hundred sixty-seven of the public acts of nineteen hundred thirty-three, as amended, to register with the board as provided in this act. Every such seller shall collect the tax imposed by this act from the consumer and the board may, by rule or regulation, authorize any other seller to collect such tax from the consumer, and such rule or regulation shall require that each such seller shall register with the board in such form as may be therein provided.”
A definition of words and phrases in an act carries no force unless employed in the enactment and cannot be considered in the present instance for the quoted enactment, by its specific terms, only applies to sellers of “tangible personal property for storage, use or other consumption in this State, engaged in the business of selling at retail in this State,” and this is manifested by the required registration of such persons under the act, unless registered under the sales tax act.
Plaintiff did not so register.
In the former case, J. B. Simpson, Inc., v. O’Hara, supra, we held, in effect, that plaintiff was not required to register under the sales tax act for sales made by it were not made in Michigan but in Illinois and, being interstate commerce, cannot be taxed by the State of Michigan.
Plaintiff’s sales in Chicago are not subject to the use tax any more than to the sales tax, and it was not required to register. The remedy of the State under the use tax act, if any, is against the consumers.
Section 7 of the act provides:
“Each consumer storing, using or otherwise consuming in this State tangible personal property-purchased for such purpose or purposes shall be liable for the tax imposed by this act, and such liability shall not be extinguished until the tax has been paid to the board. The payment to the board of the tax, interest and any penalty assessed by the board shall relieve the seller, who sold the property with regard to the storing, use or other consumption on which the tax was paid from the payment of the amount of the tax which he may be required under this act to collect from the purchaser.”
Sanction of the claim made by the State would make plaintiff a collector of a tax, in behalf of the State, upon merchandise, manufactured, sold and, in the course of interstate commerce, delivered in Chicago for carriage to owners thereof in the State of Michigan, and such cannot be done, for the lawmaking arm of the legislature, and much less that •of mere administrative officials, cannot reach into another State and mandate persons there to so serve. The use tax act does not accomplish any such thing.
Considering our holding in the sales tax case in connection with this opinion the decree in the circuit court, restraining’ defendants from exacting the asserted use tax from plaintiff, is affirmed.
We find no occasion to touch upon the constitutionality of the act and, as there was none necessary in the circuit court, the part of the decree below holding the act constitutional is eliminated and the question left without decision to await a proper setting’.
The tax paid by plaintiff and impounded by order of the circuit court will be released to plaintiff as owner thereof.
A public question being involved, no costs are awarded.
After the above was written and submitted to the justices for consideration, the supreme court of the United States, on February 17th, handed down opinions in Nelson v. Sears, Roebuck & Co., 312 U. S. 359 (61 Sup. Ct. 586, 85 L. Ed. 888, 132 A. L. R. 475), and Nelson v. Montgomery Ward & Co., 312 U. S. 373 (61 Sup. Ct. 593, 85 L. Ed. 897), reversing the holding of the supreme court of Iowa that the use tax of that State was in violation of the Federal Constitution as applied to mail order business conducted between customers in Iowa and the mail order houses of defendants located outside of Iowa. In those cases defendants were authorized to do business in the State of Iowa and maintained retail stores therein with sales subject to the State sales tax, and it was held, as the use tax was complementary to the sales tax, to which defendants had subjected themselves, that all sales made by defendants in Iowa, whether out of stock on hand in Iowa or out of stock elsewhere and coming to rest in the State of Iowa, brought the sales under order and shipment within the use tax. Such is not the case at bar.
Here the plaintiff made no sales in this State subject to the sales tax. J. B. Simpson, Inc., v. O’Hara, supra. See, also, Montgomery Ward & Co. v. Fry, 277 Mich. 260. Merchandise was purchased by residents of Michigan from plaintiff in Illinois, with title passed in that state to the purchaser under express contract consummated in the State of Illinois. Plaintiff did not maintain retail stores nor sell merchandise at retail in this State, and such fact brings the case within the following exception noted in Nelson v. Sears, Roebuck & Co., supra:
“Respondent, however, insists that' the duty of tax collection placed on it constitutes a regulation of and substantial burden upon interstate commerce and results in an impairment of tbe free flow of sueb commerce. It points to tbe fact that in its mail order business it is in competition with out-of-State mail order bouses wbicb need not and do not collect tbe tax on tbeir Iowa sales. But those other concerns are not doing business in tbe State as foreign corporations. Hence, unlike respondent, they are not receiving benefits from Iowa for wbicb it has tbe power to exact a price.”
Along this line see Montgomery Ward & Co. v. Fry, supra.
In tbe case at bar tbe State seeks to impose a burden on interstate commerce not in any manner connected with intrastate commerce, and this may not be done. Plaintiff needed no authorization to do business in tbe course of interstate commerce in this State, and leave to do business in this State, unless an intrastate business is carried on and tbe intrastate and interstate businesses become associated, does not subject interstate commerce to any State-imposed burden.
Under tbe mentioned Federal decisions, a foreign corporation doing business within this State, subject to the' sales tax, is liable for tbe use tax upon goods shipped into tbe State to residents as, in such case, tbe use tax is complementary as associated with tbe sales tax and not considered a burden upon what would otherwise be interstate commerce. Tbe business here involved, upon which the State seeks to sustain the use tax, is the very business which we held, in J. B. Simpson, Inc., v. O’Hara, supra, was not subject to tbe sales tax, and upon that point that decision is res judicata. So disassociated, tbe business is strictly interstate commerce upon wbicb tbe State may not impose tbe burden of tbe use tax or compel plaintiff to collect the same.
Sharpe, C. J., and Chandler, and McAllister, JJ., concurred with Wiest, J. | [
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] |
Boyles, J.
This is an appeal from a decree dismissing plaintiff’s bill of complaint on motion by defendant. The questions involved -are the same as those in McClure v. Rex Oil & Gas Co., ante, 255. We adopt the opinion therein as controlling of the instant case.
The decree entered herein is vacated and the cause remanded for further proceedings in accordance herewith. Costs to appellant.
Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Bittzel, JJ., concurred. | [
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] |
Wiest, J.
Separate actions by husband and wife to recover damages for personal injuries received in a collision between their automobile and a truck were tried together to a jury, with verdicts and judgments for defendant.
Motions for new trials were denied and plaintiffs review by appeal.
When the cases were called for trial, and jurors were not present, counsel for defendant conceded that their client was, to some extent, insured by the General Accident Fire & Life Assurance Corporation, Ltd., with its foreign office in Perth, Scotland, and its office in this country at Philadelphia, Pennsylvania.
Counsel for plaintiffs requested the court, upon voir dire examination of the jurors,' to inquire:
“Whether or not any one of them were engaged or are engaged in the insurance business; whether any of them are stockholders of an insurance company; or are agents of any insurance company, or have been agents of any insurance company.”
The trial court asked the jurors whether any of them were stockholders in a corporation or agents, or employees, for and employed by a corporation, and questioned each juror as to his or her occupation.
Plaintiffs exercised no challenges and announced satisfaction with the jury.
Counsel for plaintiffs contend that the mentioned examination of the jurors was not sufficient to cover the questions upon which inquiry should have been made.
We find no merit in the point. The subject was handled in a dignified manner by the court, and further inquiry along the line requested by counsel for plaintiffs would have emphasized the fact that defendant carried accident insurance and have constituted error, of which defendant might complain.
Plaintiffs cite Fedorinchik v. Stewart, 289 Mich. 436. That case must not be wrested from its setting of a mutual insurance company, with thousands of local members, wherein the insured are also the insurers and, as such, directly ' interested in the financial affairs of the company. Such was not the instant case.
Plaintiffs claimed that, as they were driving westward over an 18-foot paved highway, they saw defendant’s truck coming toward them on their side of the pavement and, in order to avoid a collision, turned their car to the other side; the truck then turned into the path of their car and the collision followed.
Defendant claims the truck was at all times on its proper side of the pavement and when the driver of the truck saw plaintiffs ’ car coming, weaving and skidding on the pavement directly toward the truck, the driver of the truck turned toward the right of the pavement and, while still upon the berm at the side of the pavement, plaintiffs ’ car struck the truck.
These versions as to how the collision happened and evidence in support thereof were submitted to the jury and verdicts found for defendant. The cause of the collision under the evidence was a question of fact for the jury.
At the trial plaintiffs sought to show that the truck, at the time of the collision, on account of its weight, was being driven at a speed in violation of the uniform motor vehicle act, as amended. 1 Comp. Laws 1929, § 4693 et seq., as amended (see Comp. Laws Supp. 1940, § 4693 et seq., Stat. Ann. and Stat. Ann. 1940 Cum. Supp. § 9.1561 et seq.). On the ground that no such violation was averred in the declarations the court excluded the proffered proof.
Plaintiffs claim that it was not necessary to plead the law and violations thereof inasmuch as the declarations alleged it was the duty of the defendant’s driver to:
“Drive and operate said motor vehicle on the highway aforesaid at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and not to drive the said vehicle upon the highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *
“Yet notwithstanding his duty to control and operate the said motor vehicle in accordance with the statutes of the State of Michigan and the rules of the common law so as to avoid injury to the plaintiff, the said defendant caused the said vehicle to be driven forward in a wanton, reckless, careless and negligent manner to and against the automobile in which plaintiff was riding.”
In Anderson v. Matt, 223 Mich. 534, 540, we said:
“"While plaintiff’s declaration did not by number or name make reference to the statute regarding the limit of speed within which automobiles may be driven, its allegations made plain that wantonly exceeding the statutory speed limit was a ground of negligence relied upon. A formal reference to the statute would not make that claim clearer and is not required where the declaration contains the averments necessary to bring the case within the statute, of which courts are required to take judicial notice. ’ ’
But counsel for defendant contend, and in the instant case the trial judge so held, that Court Rule No. 19, § 2 (1933), adopted after the decision in the Anderson Case, relative to the form and contents of declarations, rendered that decision inapplicable in cases subsequently brought. That section provides :
“Where a breach of statutory duty is alleged, the statute shall be cited in connection with such allegation. ’ ’ ■
The manifest purpose of that rule is to prevent surprise, and it in no way nullifies the common-sense holding in the Anderson Case. No surprise was, or could have been, claimed here.
The court was in error in excluding the statutory provisions and evidence of violations thereof.
For this error the judgments are reversed and new trials granted, with costs to plaintiffs.
Sharpe, C. J., and Btjshnell, Chandler, and Mc-Allister, jj., concurred with Wiest, J. | [
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McAllister, J.
On January 21, 1936, Anna Wawrzyniak executed an instrument in the form of a warranty deed conveying her home in the city of Detroit to Aloysius, her son, and Clara, his wife. The instrument contained the following clause:
“This deed is made with the understanding that the same is not to take effect or be enforced until the death of the grantor and upon the death of the grantor is to take effect and at that time to vest in the said grantee the absolute title in fee simple of the property above described, conditioned however that the grantee shall properly house, clothe and feed grantor and upon her death to furnish her with a suitable and Christian burial. In the event of a violation of any of these conditions, this instrument shall become null and void. The grantee shall forfeit all right or title to said property and all interest therein shall revert without notice to the grantor her heirs and assigns. ’ ’
It further recited that it was signed by Anna Wawrzyniak in the presence of Cass Piotrowski and Michael Wawrzyniak, and was signed by these parties as witnesses. On July 7, 1939, Mrs. Wawrzyniak died. Thereafter, an instrument dated January 19, 1934, was filed in the probate court for Wayne county and petition was made for its allowance as her last will and testament. The instrument was ordered to be admitted to probate, but the order was subsequently set aside on the filing of the aforementioned deed in probate court and the petition for its allowance as a will. John and Edward Wawrzyniak then filed, notice of contest and the instrument and proceedings thereon were duly certified to the Wayne county circuit court.
On the hearing, it was held by the circuit court that the instrument, in form a deed, was a will; that the conditions of clothing, feeding, and housing-grantor therein mentioned were fully carried out; and the court adjudged that the instrument should be admitted to probate. Contestants appealed, claiming that the instrument was not a testamentary disposition of decedent’s property; that there was no proof of revocation of the earlier will; and that the court erred in refusing to permit the prior will to be received in evidence.
An instrument, in form a deed, to take effect after the death of the testator, is entitled to probate as a will, if executed with the formalities of a will, as prescribed by statute. Lautenshlager v. Lautenshlager, 80 Mich. 285; Lincoln v. Felt, 132 Mich. 49; In re Fowle’s Estate, 292 Mich. 500; In re Broffee’s Estate, 206 Mich. 107.
Contestants claim that the burden of proof was upon proponents to prove “soundness of mind and capacity” on the part of the testator at the time she executed the deed. But the presumption is that the testator has mental capacity, and the burden of proof is upon a party assailing- such capacity. In re Curtis’ Estate, 197 Mich. 473; In re Paul’s Estate, 289 Mich. 452; 3 Comp. Laws 1929, §14212 (Stat. Ann. §27.907).
A subsequent will revokes a prior inconsistent will by implication. In re Reycraft’s Estate, 260 Mich. 40. Section 13486 of 3 Comp. Laws 1929 (Stat. Ann. § 26.1069), provides for revocation of a will “by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will.” The contest in this case is not based upon some items, inconsequential in amount or value, mentioned in the prior alleged will, and not included in the will admitted to probate. The entire estate of decedent, with such exceptions, was disposed of in the last will. It was not error to exclude from the evidence the first will.
Judgment affirmed, with costs to proponents.
Sharpe, C. J., and Bushnell, Boyles, Chandler, North, Wiest, and Butzel, JJ., concurred.
Repealed, but reenacted as Act No. 288, chap. 2, § 9, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2[9], Stat. Ann. 1940 Cum. Supp. § 27.3178[79]).—Reporter. | [
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McAllister, J.
Prior to November 22, 1928, James II. Robinson, of Lansing, was the owner of five certificates of stock aggregating 2,100 shares of the Duplex Truck Company, a Michigan corporation. For a considerable period of time plaintiff had been interested in certain real-estate developments with Don J. Robson and Nevin Sturgeon, who were engaged in the real-estate business. Shortly before the above-mentioned date, plaintiff turned over to Robson & Sturgeon the said certificates of stock, indorsed in blank. The purpose for which these certificates were given and the understanding of the parties with reference thereto form one of the vital issues in this case.
Plaintiff claims that the stock was loaned to Robson & Sturgeon for the purpose of enabling them to secure a loan to be used by them as their' contribution to the real-estate investment; and that the stock was thereafter to be returned to plaintiff. The interveners claim that the stock was transferred to Robson & Sturgeon in order to make a loan for the benefit of plaintiff; and that the proceeds were to be part of plaintiff’s contribution to the real-estate venture. The determination of this question is important, because the controversy raises the issue of the rights of third parties, claimed to be bona fide purchasers; and, if plaintiff had parted with his title to the stock at the time of the transfer to Rob son & Sturgeon, it would affect his right to prevail in this suit, as a recital of further facts will make clear.
Whatever the purpose of the transfer, Robson used the stock to secure a loan of $3,500. To do this, he induced a stockbroker in Detroit to borrow this sum from a bank and to turn the money over to him. The way in which this money was secured is important to an understanding of the case.
The stockbroker, on November 22, 1928, gave his personal note for $3,500 to the Metropolitan Industrial Bank of Detroit. The bank, however, required that it be secured for the loan. This security took the form of a bond of indemnity, furnished to the bank by the General Casualty & Surety Company. As security for giving the bond to the bank, the surety company received the 2,100 shares of stock which plaintiff had given to Robson and Sturgeon.
On June 14, 1929, $1,400 having been paid on the note up to that time, the surety company paid the bank $2,100 and some accumulated interest on the note; and received from the bank the broker’s note which it continued to hold together with the shares of stock which had been deposited to secure it for the giving of the bond of indemnity to the bank. At this time, then, the situation was that the bank had no further connection with the transaction; and the surety company held the stock and the broker’s note in the amount of $2,100. Robson & Sturgeon had received the $3,500. Plaintiff had no knowledge of where the stock was; and the broker who had made the loan from the bank for the benefit of Robson and Sturgeon was still liable on his note.
While the surety company was holding the note of the broker and the stock as security, the broker became insolvent, and a receiver was appointed. Thereafter, all of the assets and liabilities of the surety company, including the note and stock in question, were taken over by another surety company — the General Indemnity Corporation of America, a New York corporation. This latter corporation, too, afterward became insolvent and was placed in receivership, under the supervision of the insurance department of the State of New York, which came into possession of the shares of stock in question, together with the other assets of the insolvent surety company.
During all of this time the stock stood in the name of plaintiff on the books of the Duplex Truck Company. In 1937 and 1938, plaintiff became rather insistent on finding out from Sturgeon where the stock was. Sturgeon worked in Lansing, which was the home of plaintiff, and Robson lived in Detroit. Upon being repeatedly requested by plaintiff, Sturgeon on several occasions tried to find out from Robson where the stock was; and Sturgeon testified that Robson told him that it was somewhere down East, but that he did not know where, and might be able to find out later. Not being able to find out where the stock was, plaintiff, on December 22, 1938, filed an affidavit with the Duplex Truck Company, setting forth that the certificates of stock had been “lost, stolen, destroyed, or mislaid, sometime during the past six or seven years, and that despite his every effort to locate same, he is unable to find them;” and, thereafter, upon plaintiff’s filing an indemnity bond in the amount of $12,000 to protect the company, the corporation issued duplicate certificates of stock to him.
On February 13,1939, Robson began to communicate with the New York insurance department in an effort to secure the stock, and on June 7, 1939, he wrote the department a letter in which he stated, among other matters:
“I thought it would be a good thing to give you the circumstances as to how this block of stock came into your possession and possibly you could advise me as to my correct procedure.
“Early in 1929 I borrowed a small amount of money from a brokerage firm, H. S. Robinson Company, of Detroit, and gave this stock as collateral. * * *
‘ ‘ This stock was given me, at the time I made the loan, by a friend of mine, J. H. Robinson, no relation or connection of H. S. Robinson. We have allowed the matter to drift until now that the stock has been located. I feel that it is my place to recover it and return it to him.”
Finally, after several letters and personal interviews between Robson and the officer of the New York insurance department in charge of the matter, the sum of $3,412.50 was agreed upon for the exchange of the stock to Robson, and the insurance department forwarded the stock to a Detroit bank with draft attached for the above amount, which Robson paid, receiving the stock on September 25,1939. The certificates which Robson received were the identical certificates indorsed in blank by plaintiff which had been used by Robson to obtain the loan of $3,500 approximately 11 years before.
Upon receipt of the certificates, Robson sent them to the Duplex Truck Company with instructions to have them transferred to his name on the corporate records; but was then informed that the stock stood in the name of plaintiff and that duplicate certificates had been issued to him covering the stock that Robson had sent.
On learning of the situation, plaintiff filed his bill of complaint in the circuit court for the county of Ingham, joining Robson, Sturgeon, and the Duplex Truck Company as defendants, and asking a decree declaring him to be the owner of the stock.
Later, other parties made claim to the stock. Marie Dill and Rudolph Stonisch filed bills in Wayne county, and Roy J. McCornac filed a bill in Oakland county, all claiming to be bona fide purchasers from Robson, alleging that they had furnished the money to him in order to purchase the stock from the New York insurance department or had advanced money or property to purchase it from Robson. They asked that they be decreed the owners thereof, and that the plaintiff be required to transfer his certificates for the stock to them as owners. Subsequently, these bills were dismissed on stipulation with the original parties to the suit that the plaintiffs in the subsequent suits be permitted to intervene in the present proceeding and file answers and cross bills, which was done. On the hearing of the issues, plaintiff was decreed to be the owner of the stock, and the interveners appeal.
The trial court held that plaintiff had not parted with title at the time he entered into the agreement with Robson & Sturgeon, giving them the stock to hypothecate; that inasmuch as title remained in him, he remained the owner throughout the various transactions, subject to the lien for the loan being repaid; that when the stock was secured by Robson from the New York insurance department, this lien was paid; that Robson was not the owner of the stock; that the interveners purchased the stock from Robson, but that it was never delivered to them; that bona fide purchasers of stock, indorsed in blank, do not secure title thereto except upon delivery to them of such stock; and that the interveners had a complete remedy at law against Robson for his failure to deliver the stock which he sold them.
Did plaintiff part with title to the stock when he indorsed it in blank and turned it over to Robson & Sturgeon? This was a question of fact. Although the stock was given to these parties in November, 1928, the receipt therefor was not given by Robson & Sturgeon to plaintiff until January 29, 1929, and recites:
“Received of James H. Robinson of Lansing, Mich., 2,100 shares of Duplex Truck Company stock to be used as collateral on a loan, the proceeds of which together with $5,000 in cash, receipt of which is hereby acknowledged, are to be used to acquire the property known as the Bridgedale subdivision in Essex County, Ontario. This purchase is to cover the contract running to Geo. A. Erskine and the first mortgage held by Mr. Haskins of Pontiac, Mich.
“When this property is acquired by deed, the whole parcel, approximating 417 lots and $11,400 in lot contracts, is to be sold at the best available price and the moneys put up by James H. Robinson, Nevin Sturgeon and Don J. Robson are to be returned to them pro rata and the profits over and above this are to be divided one-third apiece to James H. Robinson, Nevin Sturgeon and Don J. Robson.”
This receipt, as will appear, is not conclusive as to the claims of plaintiff or those of Robson and the interveners. It was given subsequent to the delivery of the stock to Robson, and can be interpreted in various ways.
Was plaintiff’s investment in the Bridgedale project to be $5,000 in cash, together with the stock at its cash value? Or was the stock loaned to Robson & Sturgeon for the purpose of securing a loan of money to carry out some other transaction, or for use in their business — and to be later repaid by them, and the stock returned to plaintiff? Or was plaintiff’s investment in the real estate to be only $5,000, and the stock loaned to Robson & Sturgeon in order that they could borrow to contribute their share of the speculation and thereafter pay the loan, redeem their pledge, and return the stock to plaintiff? With several of the above contentions, the receipt is not inconsistent. Furthermore, it was given after the stock was turned over by Robinson; and all of these parties disagree as to the purpose for which the stock was to be used at the time when it was turned over to Robson & Sturgeon.
Plaintiff claimed that the stock was to be pledged for a loan of money to use in the Bridgedale subdivision venture, in which the three parties were interested; and that Robson & Sturgeon were to repay the money loaned and return the stock to plaintiff. Plaintiff further testified that the money secured by the pledge of the stock never went into the Bridgedale venture, and that he does not know what became of it.
Defendant Sturgeon testified that it was his understanding that the stock was to be used to borrow a sum of money for Robson & Sturgeon and that, when such loan was repaid, the stock was to be returned to plaintiff; that Robson & Sturgeon received $3,500 on the loan, using the stock as collateral, and afterward disbursed this money for their personal expenses.
In his amended answer, Robson claims that the transfer of stock was made to him from Robinson in exchange for treasury stock in the Emerson Park Land Company, a corporation in which the parties were interested — or as a loan of the money received from a pledge of the stock to the said company; that afterward it was learned that the Bridgedale subdivision was for sale and plaintiff, Robson, and Sturgeon agreed that the subdivision should be bought and resold to the Emerson company; and that the three parties would divide the profits on such sale,; that, in order to purchase the subdivision, plaintiff advanced $5,000 and it was agreed that the stock, which was previously pledged as collateral for the loan for money received which was to be for the benefit of the Emerson company, would be included in the receipt “in order to show a greater price as the down payment.”
On the trial Robson testified that the stock was received from Robinson for a payment in another real estate venture in which the three parties were interested, and which was called the Emerson Park Land Company; and that Robson used the stock to borrow $3,500 for this project “because this payment had to be made by the 1st, and on the 1st of September we took the money over and paid it.” He further testified that, although the receipt given by him and Sturgeon to Robinson stated that the stock was to be used as collateral for a loan of money to be paid out in acquiring the Bridgedale subdivision, it was not, in fact, so intended; that the stock had been given to him by Robinson some months before the receipt was given, for the purpose of securing money to pay on the Emerson property, which, in fact, was done.
This contrariety of testimony as to the understanding of the parties regarding the intended use of the stock and what was actually done with the proceeds secured by reason of its use as a pledge is here pertinent only on the determination of whether plaintiff parted with title at the time he turned it over to Robson and Sturgeon.
The transactions of the parties are somewhat shrouded and indistinct. . Complicated real-estate, corporate, and banking deálings, with shreds of ambiguous records, or unaccompanied by written evidence, the length of time that had elapsed between the transactions and the date of the suit, all of these contribute to cloud the actions and purposes of the parties. But from this obscurity, there sometimes emerges a guiding point of evidence from which to ascertain the intentions of the parties at that remote period.
Perhaps the most significant portion of the evidence which can be considered as supporting plaintiff’s claim that the stock was only loaned to Robson & Sturgeon — in keeping with Sturgeon’s testimony that the stock was to be returned to plaintiff — is Robson’s testimony, his statement to the New York insurance department, and his personal liability in the pledge transaction. First, he testified that the stock “was loaned to me.” It is true he claimed that he was under no duty to pay the loan or return the stock, but he revealed on cross-examination that he had given his own note to the broker, securing the loan on the stock — “backing it up.” Further, in his letter to the New York insurance department, in negotiations to secure the stock, Robson stated: ‘ ‘ This stock was given me * * * by a friend of mine, J. H. Robinson. * * * We have allowed the matter to drift until now that the stock has been located. I feel that it is my place to recover it and return it to him. ’ ’ His only explanation of this statement was: ‘ ‘ That was only to request the stock, bill it at a decent price.”
We are mindful of the fact that Sturgeon was a witness friendly to plaintiff; that he was indebted to him; that he did not file an answer or contest the suit; and that his testimony was admittedly uncertain in many respects, due to the fact, as he stated, that the transaction had occurred many years prior to the trial. But on a careful examination of the record, we are in accord with the finding of the trial court that the preponderance of the evidence showed that plaintiff merely agreed to permit his stock to be used for a loan, and that the obligation rested upon Robson to obtain the release of the stock as collateral and return it to plaintiff.
Robson and Sturgeon have not appealed from the decree of the trial court. The interveners claimed that Robson was their broker and that, acting as their agent and using their money or property, he secured the stock on their behalf, and that the delivery to him constituted delivery to them. They further claimed that, if Robson was not their agent, they were bona fide purchasers from him, and that there was a delivery of the stock indorsed in blank to them. Further, they contend that, if they are not to be held bona fide purchasers, they are entitled to an equitable lien on the stock for the money and property advanced by them; that plaintiff abandoned the stock, and that he is guilty of laches.
Robson testified that, while he had acted in other transactions for the interveners as broker, he was, in reference to the stock here in controversy, acting as a principal. Although the testimony of the interveners is not conclusive or definite on this question, nevertheless in her answer, cross bill, and reply, intervener Dill claims that she purchased the stock from Robson and paid him for it; and it is stipulated that the other interveners also founded their claim upon a purchase of the stock from Robson. Under these facts, we agree with the contention of counsel for plaintiff that Robson did not act in this transaction as an agent for the interveners.
Were the interveners bona fide purchasers of the stock, and was delivery thereof made to them?
The uniform stock transfer act (2 Comp. Laws 1929, § 9520 and § 9524 [Stat. Ann. §19.331 and § 19.335]), insofar as here pertinent, provides:
“Sec. 1. Title to a certificate and to the shares represented thereby can be transferred only,
(a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby. * * *
“Seo. 5. The delivery of a certificate to transfer title in accordance with the provisions of section one, is effectual, * # * though made by one having no right of possession and having no authority from the owner of the certificate or from the person purporting to transfer the title.”
A blank indorsement of a stock certificate empowers the possessor thereof to pass title by delivery to one who is a purchaser within the statute. Peckinpaugh v. H. W. Noble & Co., 238 Mich. 464 (52 A. L. R. 941). The title passes to a good-faith purchaser by delivery. Was there a delivery of the stock by Robson to the interveners?
Intervener McCornac advanced $3,412 to Robson to pay for 1,500 shares of stock, according to his agreement with Robson. The stock was divided into five certificates, four for 500 shares each, and one, for 100 shares. Robson advised McCornac by telephone that the stock had been received by him; but it was never delivered to McCornac. If Robson had delivered three certificates for 500 shares each to him, McCornac would have had title. Instead, Robson sent the certificates to the Duplex Truck Company for transfer to his own name. There was no delivery of the stock to McCornac.
Intervener Stonisch paid for 200 shares and saw the stock in Robson’s office; but it consisted only of certificates of 500 shares and 100 shares. He could not have had delivery of any of these certificates for his purchase of 200 shares.
Intervener Dill testified that she paid for 400 shares, and that the stock was handed to her to examine in Robson’s office. None of the certificates corresponded to her purchase of 400 shares; and they conld not have been delivered to her for the purchase price she paid. None of the stock was ever delivered to any of the interveners. It was forwarded by Robson to the company to be’ transferred to himself; and it can be said that there was neither actual nor constructive delivery to the interveners.
The agreement between the interveners and Robson was an executory contract for the sale of stock of the Duplex Truck Company. As the trial court observed, the contract can be fulfilled by the delivery, to such interveners, of any such stock that may be purchased in the open market; and, therefore, the court concluded that these interveners had a full, adequate, and complete remedy at law against Robson.
In their argument, however, the interveners found their claim to equitable relief on the ground that Robson is insolvent. This they base upon an allegation in plaintiff’s bill, which was denied by Robson in his answer. No proof was introduced on the point.
"With reference to the claim that plaintiff abandoned his stock, we are cited to no authority thereon. Plaintiff always had the right to pay the lien. Cases are also cited by the interveners holding that the purchase of stock from a pledgee, who had exceeded his authority in selling, gives the right of subrogation to such purchaser of any rights said pledgee may have had. These cases are not applicable here.
The interveners were not misled by any action, or inaction, of plaintiff. The lapse of time during which the lien continued did not prejudice them; they had no knowledge as to whether the lien had been in existence 30 days or during the entire period since the stock had been pledged. Plaintiff remained the owner of the stock until it was delivered to a bona fide purchaser; and, under the circumstances of this case, cannot be said to be guilty of laches giving intefveners the right to the stock.
The'trial court, on entry of a decree for plaintiff, allowed plaintiff and the Duplex Truck Company to tax, as costs, attorney fees in the amount of $30 against each of the interveners, the said costs to be equally divided between plaintiff and the com'pany. In chancery cases, where not otherwise provided by law, such allowances are discretionary. 3 Comp. Laws 1929, § 15435 (Stat. Ann. § 27.2524).
Decree affirmed, with costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, Chandler, North, Wiest, and Butzel, JJ., concurred. | [
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Butzel, J.
College street runs north and south in the city of Battle Creek and extends into Champion street at the south, where it ends. Champion street runs northwest and southeast. The northeast corner of College and Champion streets forms a 110-degree angle. Both streets are approximately 29% feet wide, and neither street is a stop street. The entire district is built up with substantial residences and buildings. Parking is allowed on both sides of Champion street.
At 7:30 in the morning of December 6,1939, plaintiff’s motorcycle collided with a car driven by defendant at the northeast intersection of these streets. As a result of the collision, plaintiff suffered serious injuries and in the present suit he recovered a verdict of $3,000 for the damages suffered. Defendant appeals.
At the time of the accident, automobiles were parked on both sides of Champion street to within a short distance of College street. Because of a large house situated on the northeast corner of the intersection, neither defendant or plaintiff was able to see the other until immediately prior to the col lision. Plaintiff was traveling west on Champion street and defendant, having come south on College street, was attempting to turn left on Champion street at the time of the accident. Plaintiff testified that he was operating his motorcycle at a speed of 18 to 20 miles per hour from the middle of the block until just prior to the collision. As he approached the intersection of College and Champion streets his view to the right was cut off by the house on the northeast corner and also by cars parked along the north curb of Champion street. Plaintiff said that he was opposite the last parked car before the intersection when he first saw defendant’s car, which at that time was at the north curb of Champion street. At this moment, plaintiff testified that he was 24 feet away from defendant’s car and 17 feet away from the point of collision. Defendant, driving on the east side of College street, cut the corner in commencing to turn left on Champion street, came to a stop and then proceeded at an angle into Champion street about the length of his car, when he came to a full stop with his right front wheel on the center line of Champion street just before plaintiff’s motorcycle struck his car.
Plaintiff contends that he was faced with a sudden emergency and that he did not have time either to turn his motorcycle or stop in order to avoid a collision. He attempted to throw his motorcycle on its side, allowing it to slide into defendant’s car and leave him sitting on the pavement. However, the maneuver was unsuccessful, and plaintiff was thrown against the left front portion of defendant’s car, suffering a broken leg when the heavy motorcycle fell on him.
The principal question is whether plaintiff was guilty of contributory negligence as a matter of law. The testimony disclosed that defendant’s car was stopped at the time of the collision; that defendant had entered the intersection first; that defendant approached from plaintiff’s right, thus having the right of way; that defendant had cnt the corner and was on the wrong side of the intersection in executing the left turn; and that both parties were acquainted with the neighborhood and that particular intersection. Plaintiff states in his brief that a reaction time of three-fourths of a second would carry him 19.8 feet at 18 miles per hour and at least 20 additional feet would be required before he would be able to bring his motorcycle to a stop according to his own testimony. He therefore required a fraction under 40 feet to come to a stop when he first saw defendant 24 feet away. Piad defendant been on the proper side of College street, his automobile would have been 12 or 13 feet further west. According to plaintiff’s testimony, plaintiff would not have been able to stop his motorcycle in time to avert a collision, but plaintiff claimed that he would have been able to turn up College street and avoid the accident if defendant had been on the proper side of College street. Defendant made a motion for directed verdict at the conclusion of plaintiff’s proofs and at the conclusion of all proofs; moved for judgment non obstante veredicto after the jury returned a verdict for plaintiff, and also made a motion for a new trial. Although hesitant, the trial court denied defendant’s motion for a directed verdict and allowed the case to go to the jury. While the case presents a very close question, we hold that the trial court should have granted defendant’s motion for a directed verdict.
The testimony viewed in its most favorable light for plaintiff fails to establish plaintiff’s freedom from contributory negligence. It is undoubtedly true that plaintiff was confronted with a sudden emergency and that his acts subsequent to his dis covery of the danger should not be judged by ordinary standards of due care, but we do not feel that plaintiff has established the fact that the emergency was not brought about by his own negligence, in approaching the intersection at such a speed that he did not have the necessary control over his motorcycle. As stated by this court in the recent case of Plaskett v. Van Buren County Road Commission, 295 Mich. 54, 59:
“If we consider that the view of the intersection is obscured, then it is the duty of drivers in approaching the intersection to use such care under the circumstances as would be required by an ordinarily prudent person.”
According to plaintiff’s testimony in the present case, he continued at the same rate of speed as he approached the intersection despite the fact that he was familiar with the vicinity and knew, or should have known, that his view would be obstructed. See Hekman Biscuit Co. v. Commercial Credit Co., 291 Mich. 156; Ehrke v. Danek, 288 Mich. 498.
Each automobile accident case of necessity depends upon the facts of the individual case. We feel upon an examination of the record in the present case in a light most favorable to plaintiff that he failed to prove freedom from negligence and that he was guilty of contributory negligence upon his own showing, leaving no question of fact for the jury.
Decision of the trial court is reversed with instructions to enter judgment for defendant. Defendant is awarded costs in both courts.
Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred. | [
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] |
Chandler, J.
This is an appeal by the American Mutual Liability Insurance Company from a judgment of no cause of action against the defendant Hanna, Zabriskie & Daron Company. The cause was heard upon a stipulated set of facts and upon the testimony of Mr. Hanna of defendant company.
On October 24, 1935, the Hanna company by written agreement entered into a joint adventure with the Washington Construction Company, one of the defendants herein, for construction of a grade separation project in New York State. In August of 1935, the Washington Construction Company had obtained and entered into a contract for this work and was in need of financial assistance. The Hanna company was appealed to to supply the necessary finances to complete the construction and provide certain equipment for that purpose. The Washington company was to have charge of the actual construction work. The contract in question between the Washington and Hanna companies provided for the furnishing of finances by the Hanna company for which the Washington company was to give its notes, and also provided for the furnishing of certain equipment by the first-named company. A clause in the contract provided that such contract should be construed according to the laws of the State of Michigan. The work to be performed under the construction contract by the Washington company was on Staten Island and, after the date of the written contract between the two defendants herein, Mr. Hanna, president of the Hanna company, and a Mr. White, president of the Washington company, were in New York where the construction was under way, and Mr. Hanna testified that the following oral agreement was then made between himself and Mr. White: “I said * * * to Mr. White: ‘I think we have got to have an understanding that the acts of the Washington Construction Company, or any agreements or commitments that you may make, will not be binding upon Hanna, Zabriskie & Daron, or in any way obligate them under those agreements. ’ And Mr. White agreed that that was perfectly reasonable and acceded to that demand. * * * Mr. White agreed that that was reasonable, but he came right back and demanded that if we wanted that concession on the part of the Washington Construction Company, that they in turn should be in a like manner protected against any obligation which Hanna, Zabriskie & Daron might undertake as being binding upon the Washington Construction Company, and I agreed to that, because that only seemed reasonable. ’ ’
Mr. Hanna was the only witness sworn upon the trial of the case. A stipulation of facts was entered and filed to the effect that the Washington Construction Company was indebted to plaintiff in the sum of $4,105.58 with interest at the rate of 5 per cent, per annum from September 25, 1937, and judgment was entered against said Washington Construction Company. It was further stipulated that if there was any liability on the part of the defendant Hanna company, it would be in the amount of $3,216.44 with interest from the above date. We quote what we consider the essential portion of the stipulation of facts as bearing upon the questions hereinafter to be determined:
“III
“All the contracts for insurance with plaintiff, upon which plaintiff sues in this case, as well as all insurance policies, or indorsements, renewals, riders, or modifications thereon and thereof, issued by plaintiff in pursuance of said contracts of insurance, sued upon herein, were contracted for and written in the name of defendant Washington Construction Company only, and commencing January 25, 1938, plaintiff made written demands upon the defendant, Hanna, Zabrislrie & Daron, as well as the defendant, Washington Construction Company, Inc., for the payment of the premiums on the insurance past due on the insurance contracts sued upon herein.
“IV
“At the times when said contracts of insurance sued upon by plaintiff in this case were entered into by and between plaintiff and defendant Washington Construction Company, plaintiff did not know of any alleged joint venture, or other relation, between said defendants with reference to any construction work, or of any interest of defendant Hanna, Zabriskie & Daron in the said contract for construction work of defendant Washington Construction Company with McElroy & Kerwin, Inc., or the work being performed thereunder by defendant Washington Construction Company.
“V
“All accounts, records, monthly billings, statements, and other written demands by plaintiff, carried, issued, forwarded and delivered, for premiums on insurance due, current or delinquent, on insurance contracts, sued upon by plaintiff herein, were in the name of defendant Washington Construction Company as debtor, solely and personally.
“VI
“At the time the contracts for insurance herein sued upon by plaintiff, were made by plaintiff with defendant, Washington Construction Company, Inc., and at all times thereafter, defendant Hanna, Zabriskie & Daron in no way represented, nor held out, to plaintiff, said defendant Washington Construction Company, Inc., as agent in any respect or otherwise, for said defendant Hanna, Zabriskie & Daron, or as having any authority, express or implied, to bind Hanna, Zabriskie & Daron, personally, on any contracts entered into by defendant Washington Construction Company, Inc., personally, with plaintiff except as such agency may or may not exist by operation of law under the terms and conditions of the contract between defendant Washington Construction Company, Inc., and the defendant Hanna, Zabriskie & Daron, and knowledge of which contract plaintiff did not acquire until on or about January 25, 1938.
“VII
“The contract for construction work by and between Washington Construction Company and McElroy & Kerwin, Inc., required the procurement of the compensation insurance and public liability insurance supplied by the plaintiff in this case and contracted for by 'said Washington Construction Company, upon which policies this suit for premiums is being brought.”
The stipulated conclusions of law provided that the contract for insurance entered into between the plaintiff and defendant Washington Construction Company is a New York contract and was performed in the State of New York, and that the relation of defendants Washington company and Hanna company was that of joint adventure.
The agreed questions of fact to be determined were stipulated as follows:
“I
“Was there an agreement by and between the two defendants, Washington Construction Company and Hanna, Zabriskie & Daron, with reference to the performance of the construction contract of defendant Washington Construction Company with McElroy & Kerwin, Inc., on the B. & O. Staten Island job, that neither of said defendants would enter into any contracts or obligations looking to binding the other said defendants personally without that other said defendant’s agreement or consent to such obligation?
“H
“Did defendant Washington Construction Company obtain the specific consent or agreement of defendant Hanna, Zabriskie & Daron to obligate or bind defendant Hanna, Zabriskie &' Daron personally on any contract for insurance to and with plaintiff American Mutual Liability Insurance Company?”
The trial court found, as a matter of fact:
“The proofs in the case then consist of a stipulation of facts and the undisputed testimony of Harvey Hanna. From these proofs it becomes apparent to the court that the two defendant companies entered upon a joint venture covering one particular project, and with a well-defined limitation upon the right of either to bind the other by reason of obligations entered into without the knowledge of the other.”
The agreed questions of law to be determined by the court were stipulated as follows:
“I
“Is the obligation of defendant Hanna, Zabriskie & Daron to plaintiff herein, to be determined by the laws of the State of Michigan or the laws of the State of New York?
“II
“If the agreement set forth in question 1 of the stipulated questions of fact herein did exist, is the plaintiff bound or barred thereby, and is defendant Hanna, Zabriskie & Daron absolved from liability herein?
“III
“If the agreement set forth in question 1 of the stipulated question of fact herein did exist and is held to be binding upon the plaintiff, still, assuming that the type of insurance furnished and sued upon by plaintiff was contemplated by all parties and necessary by the law of New York, did defendant Hanna, Zabriskie & Daron thereby impliedly consent and agree in advance that the defendant Washington Construction Company had authority to bind defendant Hanna, Zabriskie & Daron personally on the obligations of indebtedness for said insurance with the plaintiff?”
As we view the instant case the controlling question of law on the Hanna company’s liability is as follows: Can one who is a member of a joint adventure, but who is unknown to be such at the time by a third person, who enters into a contract with another member individually, be rendered liable thereunder if the contracting member in making such contract exceeded his authority or had no power to bind his associates thereby? The first question raised by the appellant is whether the law of New York or the law of Michigan should be applied. The result would undoubtedly be the same in either jurisdiction, but since the agreement limiting the liability was made in New York and was to have effect there, it is our view that the law of New York must govern. The trial court entertained similar views.
In many ways a joint venture is similar to a partnership. However, it must be remembered that they are separate and distinct legal relationships. The law does not attach the same legal consequences to them. Because there is a joint adventure, it does not necessarily follow that there is a mutual agency even as to third parties. It was held in Wrenn v. Moskin, 226 App. Div. 563 (235 N. Y. Supp. 405), that there is no authority for one joint adventurer to act as the agent of the other in the absence of an agreement, express or implied.
In the instant case, there was an express agreement made in the State of New York restricting authority and liability, hence the Hanna company cannot be said to have given its implied consent and there was no claim that there was any express authority. This case is very similar to that of Etzcorn v. Levy, 159 N. Y. Supp. 801, where it was held that a third party was bound by an agreement between two joint adventurers restricting the authority of either to bind the other within the scope of the business, the relationship being unknown, when the third party executed the contract. From a reading of the New York cases, it becomes clear that the restrictive agreement is valid and the Hanna company is not bound on contracts of insurance made by the Washington company wherein the Washington company alone was given the security incident to such contracts of insurance, and we have no hesitancy in declaring that under the circumstances of the instant case, if the Michigan law was applied, the result would be the same. We here have a case wherein the plaintiff was dealing with the Washington company alone; it had no knowledge that the two defendants were engaged in a joint enterprise or joint adventure; what their agreement was relative to a division of the profits, if any; what their restrictions were, if any, as to liability. The Hanna company so far as plaintiff was concerned was an entire stranger in all of its dealings with the insured.
Appellant cites many cases in support of its contention that the law of joint adventure is governed by the same rules as that of partnership. However, we fail to find any cases among the numerous ones cited by it where such liability has been imposed in a case where the facts are at all similar to those in the instant case. It was always in those cases where the parties were known by the third party to be joined together in a joint enterprise or adventure, and where they were known to be acting to achieve a common end.
Appellant further contends that inasmuch as the type of insurance sold by it to the Washington company was required to be furnished by the laws of the State of New York that the Hanna company thereby impliedly consented and agreed that the defendant Washington Construction Company had authority to bind it personally on the obligation for premiums for said insurance with the plaintiff.
This question was before the trial court who made the following determination:
1 ‘ Plaintiff further insists that because public liability and workmen’s compensation insurance was required by the statute of New York, there was implied authority in the Washington Construction Company to procure such insurance in the name of both defendants as joint adventurers. The statute, however, makes no mention as to who must pay for such insurance. That obligation rests entirely in private contract. The statute, as a matter of public policy, merely requires that certain protective insurance be in existence. The cost of such insurance may be placed wherever the parties by agreement wish to place it. The statute raises no implication that both defendants, in the face of an agreement otherwise, were to be responsible for such insurance premiums.”
We adopt the opinion of the trial judge as determinative of this question raised by appellant.
Appellant also contends that defendant Hanna company as a coadvénturer with the Washington Construction Company consented, agreed to, ratified, and obligated itself on tbe contract of insurance entered into between the Washington company and the plaintiff.
The trial court specifically found, which finding is supported by the record, that there was a definite agreement between the defendants by which the authority of either company to bind the other by commitments made by either without the consent of the other was clearly negatived. A careful review of the record discloses no conduct by the Hanna company, the effect of which would ratify the obligation incurred by the Washington company to the plaintiff, unless it might be said that the Hanna company, by the indorsement of checks which were payable to the plaintiff for insurance obtained by the Washington company, bound itself to assume and pay the premiums on all insurance contracts involved in the construction of the Staten Island job which were incurred by the Washington company to plaintiff. If the plaintiff had had knowledge of the original contract between the two defendants at the time it extended credit to the Washington company, and had no knowledge of the restrictive agreement later entered into by said defendants, there might be some merit to the claim of appellant that appellee had become obligated by such conduct, and the court might be justified in holding that this had constituted a ratification by appellee. However, the plaintiff at the time the obligation was incurred, and for many months thereafter, had no knowledge of any contractual relationship between the two defendants or that the Hanna company was in any way interested, and extended credit solely to the Washington company. Both of the defendants were well aware of the latter agreement between themselves which expressly limited the liability of the Hanna company as a coadventurer with, the Washington company, and treated the indebtedness for insurance as an obligation of the latter company.
Under the original contract between these two defendants the Hanna company agreed to provide and supply the necessary finance and credit to the Washington company for the completion of its contract with McElroy-Kerwin, Inc. The Hanna company was also to provide the major equipment, tools and machinery for carrying on the construction work. The Washington company was to open an account in the Manufacturers National Bank of Detroit with money furnished by the Hanna company as an advancement, and said Hanna company was to further advance moneys by the deposit in said Washington Construction Company’s Detroit bank account as moneys were needed by said Washington company, for which sums of money the Washington company was to deliver to the Hanna company its promissory note in the usual form, which notes were to be paid and canceled out of the funds of the Washington company which were, to be received by the Hanna company pursuant to an assignment by the Washington company to it of all sums of money becoming due on the McElroy-Kerwin contract. True, the contract further provided that all checks drawn by the Washington company on said account should be indorsed by the Hanna company or one of its officers or agents. Under these circumstances it cannot be said that the Hanna company in permitting the Washington company to pay some of its personal obligations out of this fund thereby became liable for any balance due on such individual obligation of the Washington company. The contract between these two defendants contemplated an eventual accounting between them. We cannot therefore find anything in the conduct of the Hanna company that would give to the Washington company any implied authority to obligate the Hanna company in violation of the express agreement between the defendants limiting the authority of either to obligate the other for any personal obligations.
We find that the trial judge was not in error in entering a judgment against the Washington Construction Company in favor of the plaintiff and dismissing plaintiff’s suit as to the Hanna company. Judgment is affirmed, with costs to the Hanna company, appellee, against appellant.
Sharpe, C. J., and Btishnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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