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Moore, J.
Defendant was convicted of negligent homicide. On the 4th day of October, 1924, defendant, who was 17 years of age and a high school student in Muskegon high school, in company with three other students started for Grand Haven. The defendant was driving a Reo car. They came in collision with a Ford touring car going in the same direction, which was being driven by Mr. Field. As a result of the accident, Mr. Field died. The case is in this court on exceptions before sentence.
There are four groups of assignments of error discussed, but we shall refer only to those growing out of the charge of the court, as the others if well taken are not likely to occur again.
Counsel says that the court charged the jury as a matter of fact that Mr. Field was driving in a careful and prudent manner, and quote as follows from the charge:
“If you find beyond a reasonable doubt from the evidence in this case that the respondent was negligent in and about the driving of the Reo car, and that this negligence resulted in his striking the Ford car, and that resulted in the death of Mr. Field who was driving his Ford in a careful and prudent manner, then even though you may find that respondent was not driving at an immoderate rate of speed, still he would be guilty of the offense here charged against him.”
The language quoted is somewhat ambiguous, but if read in connection with the rest of the charge we do not think it can be said the jury were misled.
The following language is criticized:
“In this State it is provided by law that no person shall operate a motor vehicle upon a public highway at a rate of speed that is greater than is reasonable and proper, having regard to the traffic and the use of the highway, or so as to endanger the life and limb of any person or the safety of any property; and shall not in any event, while upon any highway, run at a higher rate of speed than 35 miles an hour; and if you find from the evidence in this ease and beyond a reasonable doubt that at the time of this accident the respondent, Ralph Dougherty, was operating this motor vehicle upon the public highway at a rate of speed that was greater than was then and there reasonable and proper, having regard to the traffic and the use of the highway, or so as to endanger the life and limb of "any person or the safety of any property, or was driving his car at that time at a rate of speed greater than 35 miles an hour, then he is guilty of negligence as a matter of law, and if such negligence caused the death of Mr. Field, while Mr. Field was driving his car in a careful and prudent manner, then the respondent is guilty of the crime here charged against him.”
Section 3 of Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [4]), reads:
“In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.”
We think the court erred in his charge.
The conviction is reversed and a new trial ordered.
McDonald, C. J., and Clark, Bird, Sharpe. Steer®, Fellows, and Wiest, JJ„, concurred. | [
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Clark, J.
Defendant, appealing, complains, not of divorce granted on her cross-bill, but of the decreed division of the property. In the evidence supporting the charges and counter-charges, we find no equities affecting the question before us. The children, 19, 17, and 14 years old, are with the mother. Plaintiff, a soldier of Russia in its war with Japan, was wounded, resulting, years later, in the loss of a leg. He has a cobbler’s shop in Detroit where he has earned about $35 per week. Defendant received and saved his earnings. She worked and earned some money, but their properties were acquired largely from funds supplied by him. They have an equity of $4,000 in a four-family dwelling on Division street in Detroit on which the deferred installments on the contract purchase price aggregate about $9,000, and an equity of $500 in a lot in Royal Oak on which the aggregate of such deferred installments is about $1,000. It may be inferred that he has cobbler’s tools and equipment and that they have household goods and furniture. They have lived in one of the flats, renting the other three. The lot is not productive.
In granting divorce, the trial court gave defendant the choice of the three following, quoting from brief:
“(a.) That the Division street property and the lot be given to the defendant and that defendant pay fifteen hundred ($1,500.00) dollars within ninety (90) days, four hundred ($400.00) dollars being the attorney fees of the plaintiff, one hundred ($100.00) dollars for receiver fees and one thousand ($1,000.00) dollars to the plaintiff.
“(b) That all the property be turned over to the plaintiff, that the plaintiff pay four hundred ($400.00) dollars to his attorneys, one 'hundred ($100.00) dollars to the receiver and thirty-five hundred ($3,500.00) dollars to defendant and appellant. * * *
“(g) That defendant be given the flat on Division street and that plaintiff be giveni the lot in Royal Oak and that defendant pay plaintiff eleven hundred seventy-five ($1,175.00) dollars, four hundred ($400.00) dollars to apply on his attorney’s fees and one hundred ($100.00) dollars to the receiver.”
Ordinarily the decree, on such facts, could be sustained, but a point is made by defendant which, equitably, requires modification. She urges, we think with good reason, the difficulty and burden of procuring funds on such security to pay plaintiff that she might retain the property under either (a.) or (c), and she wants to keep the flats, and should be permitted to do so, that she may have a 'home for herself and children, and that she may receive the rents and thus pay the deferred installments of the purchase price. Alimony against plaintiff is waived.
Defendant is here given the Division street property, and, as between the parties, will assume the payment of the remainder of the purchase price. She will also have the household goods and furniture. Plaintiff is awarded the Royal Oak lot, he, as between the parties, to pay remainder of the purchase price, and his cobbler’s business, tools and equipment. Order or orders for alimony or expense money are canceled. The receiver’s bill of $100 will be paid by the party at whose instance he was appointed, if by consent then by both parties equally, with lien to secure payment. Each side is to pay its own costs and attorneys’ fees.
So modified, the decree is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Plaintiff declared on a promissory note for $700 and had judgment in a trial without a jury. Defendants bring error. The record shows no request for written findings of fact and law and none were filed. There is nothing we can review. It was held in Robbins v. Simons Sales Co., 218 Mich. 569, quoting syllabus:
“In an action tried before the court without a jury, where there was no request for written findings of fact and law and none were filed, under the statute (3 Comp. Laws 1915, § 12586) and the rule (Circuit
Court Rule No. 45), the record presents no question which the Supreme Court can review on a writ of error.”
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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] |
Moore, J.
This is an action brought by plaintiff to recover damages for the breach of a trust agreement, executed by plaintiff as party of the first part, and by the defendants. Said contract is dated June 14, 1921. At the conclusion of plaintiff’s proofs, defendants made a motion for directed verdict, which was taken under advisement by the court. After the testimony was all in the case was. submitted to the jury which rendered a verdict for plaintiff for $30,000. This was on May 4, 1923. On May 11, 1923, all of the defendants except C. R. Voorhies, who made no defense at all to the suit, filed a motion for judgment notwithstanding the verdict, Which was duly argued and submitted on May 17, 1923. On October 12, 1923, the court rendered its opinion granting said motion, and judgment was accordingly entered for defendants on October 18, 1923.
We quote from the brief:
“The plaintiff relies upon seven assignments of error, but the questions raised thereby may be grouped and discussed as follows:
“(1) Under the proofs there was an issue of fact for the consideration of the jury, and the defendants’ motion for judgment non obstante should have been denied; and
“(2) The court was without jurisdiction to grant defendants’ motion for judgment notwithstanding the verdict.”
The counsel for defendants criticize the statement of facts made by the plaintiff and call attention in detail to corrections which they claim should be made. They also say that the statement of facts in the opinion of the trial judge, made when the judgment was entered, is a correct statement of the facts. We have read every word of the voluminous record and think the statement of facts by the trial judge is fully justified by the record. We quote as follows:
“This is an action brought by plaintiff against all of the named defendants to recover damages for the alleged breach of a certain contract between the parties, dated June 14, 1921.
“It is the claim of the plaintiff that at the time of the execution of the contract he was the owner of a machine shop in the city of Detroit, which was a going concern and of considerable value. It is his claim that the defendants disregarded the terms of the contract herein referred to, and wrongfully sold his business and dissipated his assets. The issue having been submitted to a jury, a verdict was returned against all of the defendants in the sum of thirty thousand dollars ($30,000).
“At the close of plaintiff’s proofs, on behalf of all of the defendants except Voorhies, a motion was made for a direction of a verdict of no cause of action, and at the close of all of the proofs, the motion was renewed. The court reserved its decision upon both the motion and the renewal thereof, pending the submission of the case to the jury, as provided by statute.
“Following the verdict of the jury, on behalf of all of the defendants except Voorhies, a motion was made that judgment of no cause of action be entered, notwithstanding the verdict. An alternative motion was likewise submitted on behalf of the same defendants praying for a new trial. This motion was based upon 14 different reasons, but we do not deem it necessary to mention at this time any other than the first two, namely, that the verdict was contrary to the overwhelming weight of the evidence, and that the verdict was excessive.
“It appears from the evidence that in 1917 plaintiff opened a small machine shop, with an invested capital of approximately $600. Through the efforts of an associate in the business, one Avery by name, one Van Wie was induced in 1918 to become a partner of Cullen, investing a total of $3,000 in the business. In 1919 Van Wie sold his one-half interest in the business to Cullen for $6,500, the major part of the consideration being represented by notes secured by a chattel mortgage upon the business.
“After Van Wie sold out, Cullen became interested in the manufacture of a truck jack and gradually converted his ’business from a machine shop to a jack manufacturing business. The new venture proved to be a complete failure and by the early part of 1921, Cullen found himself in acute financial difficulties. He was forced to let go most of his employees; he was unable to meet the Van Wie notes as they matured; other creditors were pressing their claims, and finally his landlord served notice to quit for nonpayment of rent.
“It clearly appears from the evidence that Cullen’s financial difficulties began as early as 1920, and in order to secure funds to keep the business going, he conceived the plan of drawing fraudulent trade acceptances upon an employee, and upon a neighbor. These trade acceptances amounted in all to approximately $10,000, and were discounted by plaintiff with defendant the Peoples State Bank.
“About this time Cullen also borrowed from defendant Voorhies the sum of $2,800, and in the spring of 1921, when it is very apparent that it became evident to Cullen that he was hopelessly insolvent, he executed a note to Voorhies in the sum of $14,800, secured by a chattel mortgage which was duly filed of record.
“It is quite clear from the testimony, both of Cullen and Voorhies, that this mortgage was conceived in fraud. The testimony upon this point, both of Cullen and Voorhies, is so replete with obviously false statements, which it is unnecessary to review here, that no reasonable person could come to any other conclusion but that the testimony upon this point both of Cullen and Voorhies was given for the purpose of working a fraud upon the other defendants and leads the court to the opinion that the testimony neither of Cullen nor of Voorhies can be believed unless verified by other trustworthy witnesses.
“The story of the withdrawal of the $12,000 by Voorhies, the turning over of this to Cullen, and then the payment of it by the latter to his brother, carries within itself evidence of its falsity and of the plan of Cullen, with the assistance of Voorhies, to defraud his creditors. Shortly after the execution of the Voorhies mortgage, and after the notice to quit had been served, Cullen and Voorhies consulted Mr. Edward McCarthy, a reputable member of the Detroit bar, concerning Cullen’s financial affairs. Cullen gave to Mr. McCarthy a financial statement showing assets of $15,000 and liabilities in excess of $40,000. It afterwards developed that the statement greatly over-estimated the assets. A creditors’ meeting was thereupon called, and it was agreed that Cullen should turn over his business to a group of trustees, an extension of time was to be given by Cullen, and he was to act under the trustees as foreman or in some other such capacity. This agreement was reduced to writing, and it is for the alleged breach of it that this action was brought. As a condition of the trust agreement, it was required that the Voorhies mortgage be released. Nothing was done, however, regarding the VanWie mortgage, as its existence was not learned of by the trustees until a considerable time later.
“Under the new arrangement, the business became even less profitable than it had been, and as sufficient money was not taken in even to pay the rent, Cullen was evicted in the fall. The trustees had advanced money to pay the back rent, but declined to advance funds to pay the rent accruing after the trust agreement.
“After the machinery and other materials were put in storage following the eviction, meetings of the creditors and trustees were called at which consideration was given to the question of selling this machinery and material. Voorhies was present at the meetings and Cullen was in an adjoining room. The testimony of Mr. McCarthy and Mr. Jones, also a reputable lawyer, to the effect that Cullen was continually kept advised upon these meetings, is convincing.
“A plan was devised whereby, with money advanced by one of the creditors, Voorhies was to bid $1,900 for the stock and machinery. This plan was then changed so that the bid was to be made by the Baird Machinery Company, who were then to enter into contract to sell the machinery, etc., to Voorhies for $1,900, plus the amount of Cullen’s open accounts with that concern. The construction of a shop was begun by Cullen and Voorhies in the rear of Cullen’s house. The court is of the opinion that Cullen well knew of all of the matters in connection with the sale of the machinery, and assented thereto, and had some interest with Voorhies in the purchase.
“From the evidence given by Cullen’s former bookkeeper, based upon his account books, it appeared that each year that Cullen was in.business, a loss resulted. Neither the books nor the annual statements in them were made for litigation, and the court is of the opinion that the testimony of Avery, based upon an incomplete review of the books, should have carried no weight as against the evidence of the books themselves.
“Were this only a motion for a new trial the court would feel constrained to set aside the verdict and grant a new trial, as the court is of the opinion that the verdict was against the great weight of the evidence, and was excessive. Because of my opinion that Cullen knew and assented to all of the material acts of the trustees, and that the business at the time of the sale had no net value whatsoever, and as it always had been a losing business, the amount of the verdict was out of all proportion to any damage that Cullen might have suffered, even though the trustees did not observe the terms of the trust agreement.
“The court is of the opinion, however, that the verdict of the jury should be set aside, and that judgment should be entered in favor of the defendants, notwithstanding the verdict, for the reason that there was no competent evidence that the trustees violated the terms of the trust agreement, and that there was no obligation upon them to pay out of their own funds continuing expenses or indefinitely maintaining the shop. Cullen was guilty of fraud in withholding from the trustees and creditors the fact that the machinery was covered by the Van Wie chattel mortgage, therefore, there was no obligation upon the trustees to pay their money into this business to keep it going when Van Wie by the terms of his mortgage, then in default, might have taken the machinery covered by it whenever he saw fit. The trust agreement was made on the assumption that Cullen’s license to manufacture the jacks was a valuable asset, and inasmuch as it was shown by the proofs that this license had been terminated, the failure of Cullen to disclose this fact to the trustees amounted in the opinion of the court, to fraud sufficient to vitiate the trust agreement.
“We are of the opinion, too, even though it be a question of fact as to whether or not Cullen was aware of the plan for selling the business, that his later acquiescing in it, amounted to an estoppel which prevents him from claiming that such conduct was a breach of the contract.
“The testimony is undisputed to the effect that an insolvent business that was losing and always had lost money was of no value. The books of the business show that this was the true state of affairs. Therefore, there would be no basis upon which to estimate damages, even though there was a breach of the contract.
“For the foregoing reasons, the verdict will be set aside, and judgment be entered of no cause of action.
“Inasmuch as the rights and obligations of defendant Voorhies are on the same basis as of the remaining defendants, judgment will run in his favor also, notwithstanding the fact that he did not join the remaining defendants in the motion herein considered.
“Joseph A. Moynihan,
“Circuit Judge.
“October 11, 1928.”
It may be well to quote some of the testimony. Mrs. Barr, who was at one time the bookkeeper of the plaintiff, was called by him as a witness. She testified that two of the books of original entries were missing. We quote some of her cross-examination:
“Q. So that this shows all the income that the business made before charging off expenses?
“A. Yes, sir.
“Q. Was $23,671.16?
“A. Yes, sir.
“Q. And that total expenses to be charged against that were $23,908.77?
“A. Yes, sir.
“Q. Well, then, that would indicate a loss of about $130 on the year, wouldn’t it — $23,908.77—$23,671-just figuring briefly from that what would be the net loss for the year?
“A. $237.61 loss.
“Q. Loss for the year 1918. Now was there any such account kept for 1919, do you know? What does this mean, which was a similar journal entry for 1919, indicate as a profit or loss of the business?
“A. I will have to take the same figures again, $2,085.93.
“Q. Those are the profits?
“A. No.
“Q. That is the- loss or gain?
“A. Loss.
“Q. $2,085.93 loss for 1919. Now let us see 1920. Here you are. Now figure out what the result was in 1920, if you please?
“A. $3,900.11.”
There is no competent testimony in the case that shows any different result. A witness was introduced by the plaintiff who had made an examination of the books and testified to a profit in three years of $30,320. On the cross-examination the following developed:
“She (Mrs. Barr) shows a footing of $60,600. There is a difference of $28,000 in accounts receivable according to the footing. If her footing is right and my footing is wrong, then the proofs that I have showed there are decreased $28,000, if that is true. Assuming that her addition is correct and mine incorrect, that would diminish the profits $28,000. If I were to charge the full amount of salary that is credited to salary account as distinguished from my charge of only cash, that makes a difference of $3,000 more and $3,000 and $28,000 of course, makes $31,000, so that those two items alone, if her figures are correct, wipe out all the profits shown by me and my accounting.
“Mr. Welsh: Mr. Avery, in order to determine whether those books are correct, what would you have to do to determine that point?
“A. Well, you would have to take a balance off first to see that the items were entered under the correct account and a double entry was made of an equal amount on each side, that is all; that would tell you. Then you would have to» trace back each account — each item to the original vouchers — the original entry in the original entry book.
“I have not had all those books and I have not made a trial balance. I have not checked it back to the original source. So far as these books are concerned, I cannot swear that they are not correct and true. The figures that I have taken and used in my computations were taken from these books. I took them for what they were worth. I have not checked back to see whether these figures which I have used are correct in the method of taking a trial balance and checking back the original voucher, I do not know then that the figures which I have taken and used are true and correct. I could not swear that they are true and correct. Therefore my computation so far as I go, depends entirely upon figures which I am not ready under oath to say are correct. I do not know anything about whether they are or not.”
Based upon the direct testimony of this witness the following question was put to a witness called by the plaintiff as an expert:
“Mr. Bowles: The evidence shows it was a general machine shop up to the month of October, 1920, at which time the general machine business was discontinued and a transition was made from machine work —the general machine work which was dropped, and. the business was turned over to be devoted to the manufacture of a certain jack, but that up to the first-of September, 1920, the net earnings were $30,320.23.. Now, Mr. Rogers, basing your opinion upon the facts which I have given you, and your experience as a business man in the city of Detroit, what would you say was the value of that business as a going concern ? * * *
“A. A business of that kind should be worth ten times its actual net earnings over an average of three years from the time — that is, the value three years prior to the time the valuation is to be taken.
“Q. Well, the average net earnings here would be slightly more than $10,000 a year, then what would be your judgment as to the valuation of the business as a going concern?
“A. It would be worth ten times that amount or approximately, whatever the odd figures would be over a hundred thousand dollars.”
On the cross-examination he testified in part as follows:
“Q. Suppose this business described by Mr. Bowles during the year 1918, and I want to call your attention particularly to the year as relates to the general business condition of the thing — during the year 1918, it lost $237; during the year 1919, it lost $2,085, the managing owner being paid a salary of $2,400— credited with a salary of $2,400, and that year it lost $2,085 — in 1920, the main owner being credited with a salary of $2,400 a year, it lost $3,900. * * ■ * That in 1921 it showed even greater losses in proportion than those I have related — would you say the business was worth anything? * * *
“(Question repeated), leaving out the year 1921— suppose this business described to you by Mr. Bowles during the year 1918 and I call your attention particularly to the year as relating to the general business condition of the thing — during the year 1918, it lost $237 during the year 1919, it lost $2,085, the managing owner being credited with a salary of $2,400, and that year it lost $2,085; in 1921, the main owner being credited with a salary of $2,400 a year, it lost $3,900 so that for the three years, 1918, that is the year of the war, 1919, the year following the war and 1920, there was three continuous years of losses — that the business was started in the fall of 1917, and never from the time it was started sold (showed) a profit?
“A. If you actually showed a loss you would have no particular value as a going concern other than the fact that the machinery was there ready to be operated —the fact that it was all assembled and ready to go.
“Q. But a business that had never made any money over a period of over three years is not worth much as a going concern, is it?
“A. No, sir. * * *
“It would have no value whatever as a going concern if there was a showing of a continued loss. * * * I say that the value of a business which was losing money would be only such as the machinery therein placed would be reasonably worth, less the debts.”
Redirect-examination. by Mr. Bowles:
“Q. So that the business would be just as valuable that was run at a.loss every year as one that was making a profit every year, provided you eliminated your debts at the end of any particular period you wanted to take it over?
“A. No, sir, it would not be.
“Q. So that the business that has been for three years losing money every year would be just as. valuable to you to take it over now, if the debts would be forgotten, as a business that had been making money for three years and you took it over?
“A. No, sir. There is a big'difference between a profitable business and an .unprofitable business.' The debts are a big factor in determining the value of a business as a going concern, because the value of the business as a going concern means the value based upon the probability that it will earn money. If all the experience in the business had been that it would lose money, I would not take such a business as a gift and operate it unless I could see that by changing the management it could be made to make money. If I could manage it more efficiently than it had been managed and I could show a profit, I would be willing to buy it, otherwise I would not want it for nothing, if it had to be operated at a loss. So the fact that debts had 'been piling up has a distinct determining influence in getting, at its value, outside of the debts themselves.”
All the other testimony as to values offered by the plaintiff turned out the same way. We think it clear from the record that each of the motions for a directed verdict on the part of the defendants should have been granted.
The question remains, Was the court without jurisdiction to grant defendants’ motion for judgment? We again quote from the brief:
“It is our claim that the procedure followed by defendants in the trial did not bring the case within the purview of Act No. 217 of the Public Acts of 1915 (3 Comp. Laws, 1915, § 14568 et seq.), and even if the case did come within the purview of said act, the court lost jurisdiction to enter judgment non obstante for the reason that under Rule 44, the decision of the court should have been rendered before the conclusion of the next ensuing term after the verdict was rendered.
“In the first place, to bring the ease under said act, it is necessary that a request for directed verdict be made at the close of the testimony, and unless so made, .the court certainly would have no jurisdiction, in any event, to enter judgment under said act contrary to the verdict. The statute provides as follows:
“ ‘Section 1. Hereafter in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, reciuest the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case.’
“Inasmuch as no motion was made by the defendants for a directed verdict at the close of the testimony, we do not see how it can be here claimed that the court had any jurisdiction to enter judgment notwithstanding the verdict under the provisions of said act.
“Irrespective of the procedure followed by defendants at the trial of the case, however, the court certainly lost jurisdiction to enter judgment for the defendants, notwithstanding the verdict, after the lapse of nearly five months following the argument and submission of defendants’ motion for that purpose. If such an order was to be entered by the trial court, under the provisions of Rule 44, it had to be entered before the conclusion of the next ensuing term of court, and when this was not done, we submit that the trial court lost jurisdiction to' make any such order, and the plaintiff was entitled to enter judgment on his verdict. This court, we believe, will take judicial notice of the fact that in the Wayne circuit court, each month constitutes a term of court.”
The statement of the trial judge in that portion of his opinion which we have quoted where he says:
“At the close of plaintiff’s proofs, on behalf of all of the defendants except Voorhies, a motion was made for a direction of a verdict of no cause of action, and at the close of all of the proofs, the motion was renewed. The court reserved its decision upon both the motion and the renewal thereof, pending the submission of the case to the jury, as provided by statute.”
disposes of the suggestion of counsel about the statute.
Does Circuit Court Rule No. 44 invalidate the judgment? The motion for judgment was promptly-made. It was not the fault of counsel or client that it was not promptly decided. In most circuit courts there are but four terms each year. We may take judicial notice that in Wayne county the terms are but one month apart, and that the trial judges are, as a rule, very busy. The purpose of the rule was to encourage the speedy ending of litigation, and we think it should be construed in such a way as to bring about that result, instead of requiring a long case to be tried all over again, when the result must be the same.
The judgment is affirmed, with costs to the appellees.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Wiest, J., did not sit. | [
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Fellows, J.
(after stating the fads). There are numerous assignments of error but we think but one phase of the ease need be considered. That the provisions of the Michigan standard form of policy which we have quoted are valid and enforceable is not questioned. Plaintiff, however, claims that the statement to his agent by Garessi and the statement of Fischer to his attorney amounted to a denial of liability by the company, hence a waiver of proof of loss, and the trial judge so held. But waiver, in order to bind the company, must be by the company through its officers or agents acting within the sphere of their authority. If the agents who attempt to speak for the company bear no authority from the company, either express or implied or by holding out, their acts beyond their authority do not bind the company. That the general rules of agency apply to insurance cases has been pointed out by this court on numerous occasions. We pass without comment the fact that the talk with Fischer did not occur until several months after the date fixed in the policy for filing proofs of loss. Fischer was the local agent and Garessi was one of his employees. Neither of them so far as this record discloses had authority either general or special to adjust losses.
The holding of the learned trial judge that the local agent of an insurance company who has authority to solicit business, write and issue policies and collect premiums, may for his company waive the clauses of the policy above quoted, is in conflict with at least two cases in this court. The equities of the plaintiff in the case of Barry & Finan Lumber Co. v. Insurance Co., 136 Mich. 42, were there noted; they were much stronger than in the instant case. In that case the local agents had stated that they were authorized to adjust the loss, but this court recognizing the well settled rule that an agent's authority may not be proven by his statements held that authority to adjust the loss had not been established, and held (we quote from the syllabus):
“The statements and acts of a local agent of a fire insurance company, authorized to receive proposals for insurance and countersign and deliver policies, cannot be received to show that he was authorized to adjust losses for the company, or had power to waive a provision of the policy requiring action to be commenced within 12 months from the time of the loss.”
Mr. Justice Hooker, who wrote for the court, reviewed the authorities at length. This case was followed in Fisk v. Insurance Co., 198 Mich. 270. These two cases must be taken as settling that authority of a local agent to solicit business, write and issue policies of insurance and collect premiums, does not carry with, it authority to adjust the loss. The authorities relied upon by plaintiff are not to the contrary. Plaintiff’s counsel cited upon this branch of the case the following: Improved Match Co. v. Insurance Co., 122 Mich. 256; O’Brien v. Insurance Co., 52 Mich. 131; Young v. Insurance Co., 92 Mich. 68; Morgan v. Insurance Co., 130 Mich. 427; Bird v. Insurance Co., 218 Mich. 266; Fisk v. Insurance Co., 192 Mich. 243; Popa v. Insurance Co., 192 Mich. 237; Johnson v. Insurance. Co., 224 Mich. 493. An examination of these cases discloses that they do not present the question now before us. In the Match Company and Johnson Cases, the denial of liability was by the company itself. In all the other cases, six in number, the waiver was by the adjuster of the company. Manifestly an agent authorized to adjust the loss carries not only the authority to adjust the amount to be paid but also carries as a part of and incidental to such power the authority to refuse any payment at all, to deny liability. His denial of liability is the denial of liability for his principal and waives proof of loss. But a local agent, authorized only to write insurance, having, no authority to adjust the loss, does not carry with him the power incidental to and a part of the authority to adjust. Having this in mind, it will be seen that our holdings are in no way inconsistent.
As the material facts are not in dispute and a new trial would be of no avail to plaintiff, one will not be ■granted.
Judgment reversed.
Clark, Sharpe, Steere, and Wiest, JJ., concurred with Fellows, J. | [
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Bird, J.
Plaintiff is a co-operative marketing association, composed of 300 members. It does business at Falmouth, where it has three large warehouses. Falmouth is situate on one of defendant’s branch lines, and has only one railway. In the fall of 1922 plaintiff could not get cars, as agreed, to move to market the potatoes it had purchased, and brought this suit to recover its damage. The jury awarded plaintiff $15,379.59.
Falmouth and vicinity appears to be engaged largely in potato raising, and for several years plaintiff has purchased and shipped large quantities to market over defendant’s line. In August, 1922, the station agent of defendant at Falmouth inquired of plaintiff as to the prospects of the crop for that year and he was told it was about the same as 1920 and 1921. He was told that plaintiff would need 150 cars, beginning with the 1st of October. The station agent said his line could furnish the usual number of cars, and that it would furnish them. Later when the bins in their warehouses were filled with potatoes they hesitated about filling their alleys, but finally did so, relying upon the express promise of the agent to furnish cars promptly to empty them. When the time came for furnishing the cars only a few of the number promised were delivered, resulting in a great loss to the plaintiff. Plaintiff’s declaration counted upon this express promise of the station agent. There was also a count based upon defendant’s common-law and statutory duty to furnish equipment, and one count based upon its common-law duty and rule of distribution without discrimination.
The defendant insisted that, under its pro rata rule for the distribution of cars, Falmouth received its full quota, and that it could not deliver more to them without discriminating against other shippers; that it was likewise prevented from delivering to it all of the cars plaintiff needed because it demanded refrigerator cars, and owing to strike conditions and congestion of traffic and the use of said refrigerator cars by other railroads it was unable to furnish the number demanded. And it further insisted in its defense that it was prevented from furnishing more cars by reason of the depth of the snow on its branch line.
At the conclusion of the evidence the trial court was requested by defendant to charge:
“I charge you that plaintiff admits that cause of the damage to the potatoes was the placing of potatoes in the alleys of its warehouse, but claims that it placed the potatoes in the alleys relying on an express promise of the defendant to furnish cars. I further charge you that if such an express promise was made by defendant it was illegal and plaintiff had no right to rely thereon, and your verdict must be no cause of action.”
This was denied and the jury were instructed that:
“If you find that such an agreement was made for cars as claimed by the plaintiff, then the inability of the defendant to furnish such cars, due to car shortage, or an unusual demand for cars which the defendant could not have reasonably foreseen, or being unable to furnish cars because of an unusual, sudden and unexpected press of business, or because of snow and ice on its tracks, or on account of strikes, would constitute no defense to such a promise absolute and unconditional in its character.”
The court’s refusal of this request raises the important question in the case. Plaintiff insists that the case is controlled by Eastern Railway Co. v. Littlefield, 237 U. S. 140 (35 Sup. Ct. 489). In this case the plaintiff was a dealer in cattle. In Majr he advised the station agent that he would need 200 cars in September and October, and he would like to have them delivered in lots of 50. When the time came for delivery the company failed to deliver the cars, and the 3,900 head of cattle had to be driven back 100 miles to the ranch at a great loss. The defense sought to avoid responsibility by showing there was an unusual demand for transportation facilities, and that it could not furnish the cars without discriminating against other shippers. Mr. Justice Lamar, in determining the question, said in part:
“But whatever may be the rights and remedies of the parties and the jurisdiction of the commission in such cases, it is certain that the defendants’ answer does not meet the issue nor set out facts which would constitute a defense against the cause of action alleged in the plaintiffs’ pleading. For the answer indicates that the ear shortage was known to the carriers when the plaintiffs demanded cars to be furnished in September and October. There is no allegation that in May the carrier objected that the demand was unreasonable in the time that it was made or in the number of cars that were demanded. Nor was there any claim that the want of equipment was brought to the_ attention of the cattle company, or that it was notified that conditions were such as to make it impossible for the carriers to agree to furnish cars at the time and place designated. If such information had then been given to the shipper, or promptly upon subsequent discovery that the defendants would be unable to supply the cars, a different question would have arisen. But where, without fault on its part, a carrier is unable to perform a service due and demanded, it must promptly notify the shipper of its inability, otherwise the reception of goods without such notice will estop the carrier from setting up what would otherwise have been a sufficient excuse for refusing to accept the goods or for delay in shipment after they had been received. The evidence is not set out in the record and there are no findings of fact, but the verdict of the jury must be construed to mean that the evidence sustained the material allegations of the complaint and showed that the defendants had negligently failed to furnish cars promised.
“Thus construed, it appears that the plaintiff in May gave the carriers notice that it would need 200 cars in the following September and October to be used in the shipment of cattle from Texas to Missouri. The offer was accepted and a statement was made that the cars would be on hand at the time and place named. Relying thereon the cattle company drove its herd a long distance across the country and at great expense kept .them at the station until definitely notified that they could not be shipped for several weeks. In the meantime great expense had accrued, the market was lost and the cattle had to be driven 100 miles back to the ranch.
“The liability of the carriers under these facts, and in the absence of a showing of new facts establishing an excuse, became fixed when the cattle were tendered for shipment and the carrier failed to furnish the facilities • needed. That liability cannot now be avoided by proof that the failure to furnish cars was occasioned by a shortage for which the carriers may not have been responsible but as to which they failed to give timely notice to the shipper.
“The question as to whether at common law these railroads were liable as forwarders of freight to be delivered to connecting carriers outside the State; and whether the railways were so associated as to make them jointly and severally liable are matters concluded by the decision of the supreme court of Texas. There is no merit in the Federal question relied on and the writ of error is dismissed.”
On the other hand the defendant relies upon Davis v. Cornwell, 264 U. S. 560 (44 Sup. Ct. 410). In this case an express contract to furnish cars was relied upon for a recovery. It was shown that Cornwell ordered of the station agent empty cars to be ready October 2, 1918, for loading with cattle to be transported in interstate commerce. It was held that the contract provided for a special privilege in violation of the interstate commerce act, and could not be sustained. Mr. Justice Brandéis, who delivered the opinion, said, in part:
“Whether, under the interstate commerce act as amended, the express promise to furnish cars was valid is the only question requiring decision.
“The transportation service to be performed was that of common carrier under published tariffs, not a special service under a special contract, as in Chicago, etc., R. Co. v. Maucher, 248 U. S. 359 (39 Sup. Ct. 108). The agent’s promise that the cars would be available on the day named was introduced to establish an absolute obligation to supply the cars, not as evidence that the shipper had given due notice of the time when the cars would be needed, or as evidence that the carrier had not made reasonable efforts to supply the ears. The obligation of the common carrier implied in the tariff is to use diligence to provide, upon reasonable notice, cars for loading at the time desired. A contract to furnish cars on a day certain imposes a greater obligation than that implied in the tariff. For, under the contract, proof of due diligence would not excuse failure to perform.
“Chicago, etc., R. Co. v. Kirby, 225 U. S. 155 (32 Sup. Ct. 648, Ann. Cas. 1914A, 501), settled that a special contract to transport a car by a particular train, or on a particular day, is illegal, when not provided for in the tariff. That the thing contracted for in this case was a service preliminary to the loading is not a difference of legal significance. The contract to supply cars for loading on a day named provides for a special advantage to the particular shipper, as much as a contract to expedite the cars when loaded. It was not necessary to prove that a preference resulted in fact. The assumption by the carrier of the additional obligation was necessarily a preference. The objection is not only lack of authority in the station agent. The paramount requirement that tariff provisions be strictly adhered to, so that shippers may receive equal treatment, presents an insuperable obstacle to recovery.”
The facts in the first case cited are very similar to those in this case, but it will be noticed in that case no express contract was relied upon. The plaintiff disclosed his needs to the agent and the agent said he would furnish the cars. The' defense which the company sought to make was not overruled because of an express promise to furnish cars, but because, after the railway found it could not deliver them, as promised, it did not notify the plaintiff. Plaintiff in this ease would have been in the identical position that plaintiff in that case was in 'had it eliminated the count on the express contract. It was shown in the present case that the station agent was advised of plaintiff’s needs, and the agent promised to furnish the cars, and did not notify the plaintiff when it learned that it could not do so. Plaintiff was permitted to recover in the first case cited because the defendant was notified of plaintiff’s needs, and promised to supply them, and was estopped to show that it had used due diligence when the cattle were tendered for shipment. No recovery was had upon express contract. •
The second case cited by defendant was based wholly upon an express contract to deliver cars on a certain date. Here we have the question passed on whether a carrier can make a contract which may not be avoided by a showing of due diligence on its part. This opinion does not mince the matter. It holds squarely that an express provision to deliver a car for loading on a particular day could not be enforced because it is a special privilege. If it were held that it could be enforced it would be in collision with the interstate commerce act which seeks to enforce tariff provisions and provide equal treatment for all shippers. It is quite evident that either the contract or the interstate commerce act must give way. If railroads were excused from following the provisions of the interstate .commerce act by a contract which they had made in violation of the act, the act would have little force in enforcing tariff provisions and equal opportunity for all shippers. Inasmuch as congress has sole power over interstate shipments it is paramount and its authority must be recognized. Our conclusion is that the request proffered by defendant should have been given, and the court’s refusal is reversible error.
As a retrial will doubtless take place, another question raised by defendant should be noticed. On the question of damages the trial court permitted plaintiff to show there was no market for the potatoes at Falmouth and to show the price at Cadillac, its nearest market. Defendant says the market price at Falmouth should govern. We have held that where there was no market price at the point of shipment, recourse might be had to the nearest market. Piowaty v. Sheldon, 167 Mich. 227 (Ann. Cas. 1913A, 610) ; Saginaw Milling Co. v. Schram, 198 Mich. 773; 8 R. C. L. p. 489. Or the jury might have considered its actual value. Close v. Railroad Co., 169 Mich. 392. In this case we think it was proper to show what the market price was at Cadillac, that being the nearest market. This rule of damages appears to be in accord with Richey & Gilbert Co. v. Railway Co., 110 Minn. 347 (125 N. W. 897), whiehl the defendant cites as the proper rule of damages in such cases. We think the court made no error in this respect.
For the error pointed out the casé will be reversed and a new trial granted. ' Defendant will recover its costs in this court.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
East Street Christian Reformed Church, of Grand Rapids, Michigan, is a corporation (3 Comp. Laws 1915, § 11030 et seq.). It is one of the church bodies which comprise the denomination known as the Christian Reformed Church of America. The form of church government is presbyterial. The local governing body of the church is the consistory, being the deacons and the elders and the minister, if there be one. Next above the consistory is the classis, which is made up of delegates sent from the churches in a certain district. The classis having jurisdiction of the East Street church is known as Classis Grand Rapids East. The supreme governing body of the denomination is the synod, made up of delegates sent by the classes. The synod meets every two years.
We quote from the testimony of Rev. Henry Beets, stated clerk of the synod:
“In these various bodies * * * we have a certain standard of confession which we speak of as our forms of unity, namely, the Belgie or Netherlands Confession of 37 articles, the Heidelberg Catechism, divided into fifty-two Lord’s days, and the five Canons of Dordrecht. Synod is the supreme body of our church when it comes to interpreting confessional standards and it is the final body of our church. I would use a parallel: like our Michigan Supreme Court interprets our State Constitution, so our synod is empowered to interpret our standards.
“So far synod has not written any new confessional standards. Once that synod interprets new confessional standards, it then becomes the duty of all members of good standing in our church to regulate themselves in doctrine and in life to them. These interpretations have the same binding force as the standards themselves which have not been interpreted unless a man can prove that the findings are not correctly stated, but this is to be determined by the synod, but when the synod has once spoken and determined those findings, that becomes final.
“The interpretations of the standards by synod make them a part of our standards and we have to regulate ourselves according to them. This applies to the ministers and consistories of all our churches.”
And from the articles of association:
“The fundamental principles of the proposed organization which shall in all cases be in conformity to the faith and constitution or form of government as adopted by the synod of the Christian Reformed Church of America in the year A. D. eighteen hundred ninety-six, and any amendments or additions thereto as shall have been adopted and may hereafter be adopted by the synod of said church.”
By the church order, ministers, deacons and elders are required to subscribe to the forms of unity. Among certain members of the denomination there began to be discussion and, later, controversy, respecting the doctrine of common grace, the defendant Rev. Herman Hoeksema, minister of the East Street church, taking a prominent part in it. Some members of his church, gave to him and to the consistory a protest in writing against his utterances in this respect. In the course of time, the matter first raised here by such protest found its way to the synod for interpretation and a finding respecting the soundness of the minister’s utterances as measured by the forms of unity. The speaking of the synod is colored somewhat by its kindly effort to lead the minister from controversy back to harmony, but it, on this record, defined with certainty, in three points or paragraphs, the doctrine of common grace, and its interpretation is contrary to the views entertained by the minister. The synod attempted no discipline, as it might or might not do, beyond. admonition and counsel. The session ended. The minister returned to his church. The controversy was renewed. The minister advanced his views unchanged, using pulpit, platform and press. That his views are in direct conflict with the synod’s interpretation on the subject he admits, with becoming frankness and candor. Schism followed, a majority of the members, deacons and elders standing with the minister, a minority, some of them censured and denied communion by the consistory, remaining .loyal, as they say, to the society itself. The minister and his followers held, and continue to hold, the church property valued at $100,000 and more.
The matter came before the classis. Hearing, protest, advice, request, accomplished little or nothing, the consistory being unmoved in its loyalty to the minister. Finally, after hearing, the classis ordered the minister and the consistory deposed, for the reason stated, and directed the organization of a consistory by and among the minority faction. A place of worship was secured temporarily, and a consistory was formed. Plaintiffs are its members. They claim to be the duly constituted consistory of the church, and to be entitled to the possession and control of the church property, and that defendants, the minister, deacons and elders, have been duly and legally removed from their offices.
Defendants contend that they have not been legally deposed from their respective offices, and that they are entitled to function in their respective capacities and to possess and control the church property, and it is claimed, too, that an appeal has been taken to the synod from the decision of the classis and that in the meantime proceedings are stayed.
Plaintiffs, by bill, seek usual relief, including injunction, restoration of the church property and accounting. Plaintiffs had decree. Defendants have appealed.
Whether the decision of the classis, excluding defendants, was prudent or imprudent, right or wrong, we hake no right to inquire. Nor will we undertake to determine whether the decision was in accordance with the canon law of the church, except in so far as it may 'be necessary to do soi in determining whether the classis had jurisdiction of the matter, whether the act is that of the society itself. Borgman v. Bultema, 218 Mich. 684.
There are two principal questions for determination:
(1) Did the classis have jurisdiction to make the decision?
(2) Granting, for the purposes of this opinion only, that defendants had right of appeal, and that it has been claimed, does the claiming of appeal operate to stay execution of the decision of the classis?
From a study of the record and briefs, a perusal of the long and carefully prepared opinion of the trial judge, a reading of Borgman v. Bultema, supra, a like case, which arose within the same denomination, we conclude that the following are correct expositions of applicable church law:
Rev. Henry Beets, a clergyman of the denomination, at one time secretary of its missions, had attended general synods in Holland, editor of the weekly organ of the church in America, author of church histories, and since 1902 stated clerk of the synod, testified:
“Herman Hoeksema is obligated to comply with the three points because synod laid down these three points as our official doctrinal interpretation. * * *
“After synod has spoken and Herman Hoeksema says that he disagrees with the three points, he then becomes subject to discipline. * * *
“Under our church law, that order (of classis) went into effect immediately. With reference to the claim of Herman Hoeksema that he has taken an appeal and that the consistory has taken an appeal from the decision of classis in the session of December, 1924, wherein he was suspended, it is his claim that during the pendency of this appeal to the synod,, he has a right to exercise the office of minister and: the consistory has a right to exercise its office, I deny that they have such rights because the formula of subscription says that until a decision made upon such an appeal, we are to acquiesce in! the determination and judgment already passed. We agree to that when we are ordained or when we go into a new classis or when we become a local pastor. If a man could, during his appeal, do as he pleases, that would be inviting anarchy and chaos. * * *
“The order of suspension made by classis in December took effect immediately and from that time on Herman Hoeksema had no power or authority to act as minister in any of the Christian Reformed Churches nor had his consistory any power to so act, pending an appeal to synod.”
Rev. Idzerd VanDellen, a clergyman of the denomination, author of books, including an exposition of the church order, several times president and vice-president of the synod, testified:
“After Herman Hoeksema and others had started the publication of the Standard! Bearer and that together with other statements on the part of Herman Hoeksema caused another protest to be submitted to the classis, and classis made an order suspending Herman Hoeksema and determining that the ecclesi astical relationship of the consistory had been broken off, it then became the duty, immediately upon the making of the order, of the consistory and Herman Hoeksema to submit to the decision of the classis. There is nothing in our church order that when a decision is made by classis suspending a minister and finding that the ecclesiastical relationship is broken upon the part of the consistory, that the consistory and. minister can continue to function as such officers in a church pending an appeal to synod. The reason for this is that they promised in signing the formula of subscription to acquiesce in the decision of the classis and other bodies, even pending their appeal.”
Dr. Samuel Volbeda, educated at Free University of Amsterdam and at Calvin College, now and for 11 years teacher of theology in Calvin College, and occupying the chair of church history and missions, testified: •
“Rev. Hoeksema could not lawfully in our church make statements that he could not subscribe to the three points and that he did not agree with synod and that the synod of 1924 was wrong and the synod of 1618 and 1619 was correct, after synod had spoken on these matters. Such statements indicate that Rev. Hoeksema is disloyal to the church body. * * *
“After decision is made by the classis and an appeal is taken to the synod by one of the parties, during the meantime that party is required to submit to the decision. After classis on December 12, 1924, made an order suspending Herman Hoeksema and declaring that the' consistory had broken its ecclesiastical relationship with the church, it then became the duty of Herman Hoeksema and his consistory to abide by the decision of classis. It became the duty of Herman Hoeksema to at once cease activities in that church as its minister and for the consistory to do the same. In our church organization there is no such a thing as a stay of proceedings after an order is once made by classis which would permit Herman Hoeksema to continue on and act as the minister of that church.”
Prof. Clarence Bouma, “a professor of systematic theology at the seminary of the Christian Reformed Church, * * * graduate of the Calvin College and Theological Seminary of Grand Rapids, Michigan, Princeton Theological Seminary, Princeton University, Harvard University,” testified:
“Synod, in passing upon these three points, made an interpretation of the confessional standards and after this interpretation it became the duty of all members of the Christian Reformed Church to submit to them ipso facto. * * *
“If the Rev. Hoeksema does not submit to these interpretations, he lays himself open to be deposed in the proper way.”
The decision of the trial judge is that the classis had jurisdiction to act, did act, that defendants were bound by its decision, and without right of stay of proceedings. We agree with him. Question (1) is answered in the affirmative, question (2) in- the negative.
Again we call attention to the rule of Fuchs v. Meisel, 102 Mich. 357 (32 L. R. A. 92), quoted in Borgman Case:
“In the freedom of conscience and the right to worship allowed in this country, the defendants and the members of this church undoubtedly possessed the right to withdraw from it, with or without reason. But they could not take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who choose to remain in the church, and who represent the regular church organization. If complainants maintain the allegations of their bill, — that they represent the regularly organized body of the church, and are its regular appointees, — they are entitled to- the relief prayed.”
The decree further provides:
“It is further ordered, adjudged and decreed that defendants pay to the plaintiffs herein as damages for the wrongful detention and possession of said church property, the sum of one hundred ninety-two ($192.00) dollars per week, commencing on the 31st day of December, 1924, and continuing so long as defendants shall occupy and possess said church property, and that plaintiffs may have execution against these defendants for the collection of said damages.”
This feature of the decree must rest on evidence received of fair rental value of the property. If defendants wrongfully have held possession of the property, who, if any one, may ask recovery of damages on the measure of rental value? Clearly, it must be the corporation itself, East Street Christian Reformed Church. It has power to sue (3 Comp. Laws 1915, §’ 11034). Plaintiffs filed this bill individually, alleging in a paragraph that they are the consistory of the church. The corporation is not a party. But it is, on this point, the real party in interest, and is the proper and necessary party to such recovery. 14A C. J. p. 798. Whether any such recovery can be had, it is unnecessary to determine, and we do not determine.
Other questions have been considered, but require no discussion.
So modified, the decree is affirmed. Defendants will have costs in this court.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, J., concurred. | [
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] |
McDonald, C. J.
The defendants ask review by certiorari of an order of the industrial accident commission awarding compensation to the plaintiff for wages and medical expenses. Levi D. Hadsell was injured on August 9, 1923, while in the employ of the Van Burén County Telephone Company of South Haven, Michigan. His injuries were thought to be slight and on the 13th of August, 1923, he resumed his employment and continued thereat until November 28, 1923. From that time until July 1, 1924, he was totally disabled, because of sciatica, which he claims is traceable to the injury he received in the accident. On August 22,1923, the Van Burén County Telephone Company reported the accident as noneompensable, giving the nature and cause as a knee sprain received in an automobile collision. On April 5, 1924, it reported a compensable accident, in which the nature and extent of the injury were stated as follows:
“Sprained knee. . Was off duty until August 13, 1923, when he reported for work. About November 30, 1923, he became sick, apparently with sciatic rheumatism and took treatment several weeks (off duty). After a number of months the doctor now says the accident is the cause of the present disability. This new phase has been reported to the insurance company.”
On April 12, 1924, plaintiff gave notice to the Van Burén County Telephone Company of claim for compensation in which he stated the nature of the injury as “a misplacement in the back.” A denial of liability on the ground that “the injured did not receive the injury or back condition of which he claims as result of the accident occurring on August 9th of last year,” was filed with the commission. The plain tiff thereupon made application for adjustment of his claim. The subsequent proceedings resulted in an order by the commission awarding compensation at the rate of $14 per week for total disability from February 1, 1924, to July 1, 1924, amounting to $294, and medical expenses amounting to $98.
The defendants say that there is error in this award and assign as the principal reason therefor that the claim for compensation was not made within six months from the time of the accident as required by section 15 of part 2 of the workmen’s compensation act (Comp. Laws Supp. 1922, § 5445).
There is a proviso to this section of the statute which reads as follows:
“Provided, however, That in all cases in which the employer has been given notice of.the injury, or has notice or knowledge of the same, within three months after happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee.” * * *
The claim for compensation was not filed until April 12, 1924, eight months after the accident. It is the defendants’ contention that the actual injury developed and made itself apparent within the six months’ period following the accident and that the plaintiff’s claim should have been filed during that time. The six-month period elapsed on the 9th day of February, 1924. The plaintiff contends that the actual injury did not develop and make itself apparent until the latter part of March, 1924, and that he had three months from that time in which to make his claim for compensation. The commission found that the actual injury did not develop and make itself apparent until after six months from the time of the accident, and that therefore the claim for compensation was seasonably made. The question is whether there is any evidence to support such a finding.
The plaintiff was injured in an automobile accident on the 9th of August, 1923. He testified that the doctor treated his knee and though his back hurt some he resumed work after three days. His back kept getting worse. He says that the pain ran through his hips and legs, that though he continued to work for three months, he “was in awful misery all along,” and that by November 28, 1923, it had become so painful that he was forced to cease working. The doctor diagnosed his trouble as “sciatica.” But he did not respond to any treatment and was advised to have an X-ray taken. This was done on the 2d of February, 1924. The picture showed a condition that led the doctors to believe that his sciatica was caused by the injuries received in the accident. So that by the 2d day of February, 1924, the actual injury had fully developed and was apparent to the injured. He testified:
“Q. When did you first learn that your back was injured?
“A. Why — injured? I knew when I had the X-ray. I knew my back hurt me, but I didn’t know what was the matter.
“Q. And about when was that X-ray?
“A. The 2d of February. * * *
“Q. Previous to the time you saw the X-ray picture you had no idea at all as to what the back condition might have come from?
A. No, I didn’t know, of course, until that showed up.
“Q. But since you saw the picture you were sure then that it came from your accident on August 9th.
“A. That was the only accident I had had.”
We have quoted all of the testimony to be found in the record on this question. It shows that the actual injury developed and made itself apparent to the plaintiff during the six-month period immediately following the accident. In view of this undisputed fact, and it further appearing that the plaintiff was not prevented from filing his claim by reason of physical or mental incapacity, and that the employer filed a report with the commission as required by the provisions of the statute, it must be held that the claim for compensation was not seasonably made, because it was not filed within six months following the accident. We find no evidence in the record to support the conclusion of the commission.
In this view of the case it is not necessary to discuss other questions argued in the briefs.
The award is reversed, with costs to the defendants.
Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. Moore, J., did not sit. | [
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] |
Clark, J.
Defendants A. W. Birkholz, his wife Maria, and their son Arthur N., owned 380 acres of farm land, on which were buildings, stock, implements and tools. Part of the land was owned by the son, part by the wife and part by the husband and wife. They advertised for a tenant. Plaintiff, a young married man, an agriculturist, taught and trained, lived in Minnesota. He answered the advertisement. He met the Birkholz men. A lease on shares was prepared and signed by the three men on June 16, 1917. Plaintiff learned later of the interest of Mrs. Birkholz. The writing contained an undertaking to sell and to purchase “an undivided one-half interest in” the stock, implements and tools, on which plaintiff as purchaser paid $1,000 down, remainder
“........five hundred dollars on or before June 16, 1919, and the sum of one thousand dollars or more on the 16th day of June, in each year thereafter until the entire sum of sixty-six hundred and fifty-six dollars is paid in full; with interest.” * * *
The lease was “for the term of one year from and including the 16th day of June, A. D. 1917,” and we quote:
“This agreement may be continued from year to year at the pleasure of the parties hereto, but may be terminated at the expiration of any year by either party giving to the other three months’ notice in writing of his wish to have the same end.”
The lease provides for the appointment of arbitrators to settle disputes, that
“The party of the first part agrees to recompense the party of the second part for any unexhausted improvements which said second party may make at his own expense during the term of this lease.”
and
“At the expiration of this lease (unless it shall be renewed) or if it be sooner terminated, the parties hereby agree that all jointly owned property shall be disposed of to the best possible advantage, or divided in such a manner as may be voluntarily agreed upon, or as determined by a board of arbitrators herein-above provided for.”
' Contrary to the language of the lease, defendants were permitted to live in the main farm dwelling. Plaintiff, his wife, and the employees, lived in the tenant house. Trouble, dispute, unpleasantness soon arose, due, as plaintiff says, to malicious meddling of defendants, and, as defendants say, to plaintiff’s inattention and indifference to duty. Crops were not as hoped for. Corn of large ácreage was frosted. Defendants had testimony that plaintiff sought to sell to them his interest in the personal property and under the lease, which plaintiff denied. Plaintiff's wife expected to be confined. In her condition she desired to avoid unpleasantness and she wanted to be near her mother who lived in Minnesota. About September 15th, plaintiff, with his wife, and taking household goods, went to Minnesota, leaving his employees in charge of and working the farm. He gave to defendants the following writing:
“Sept. 14, 1917.
“Birkholz Stock Farm.
“Mr. A. W. Birkholz, and
“Mr. A. N. Birkholz.
“Sirs: I am leaving tomorrow and have given Mr. Ed. Williams full charge of the farm in my absence-, although I am still handling the place and he will run the place according to my instructions. I wish to notify you to not interfere in any way with my men in carrying on the farm operations according to instructions. If you wish to consult anyone concerning the operations of the farm, you should confer with me. In case you wish to use any of the personal property or stock, you must get permission before taking same.
“Very truly yours,
“A. A. McPheeters.
“P. S. All communications will reach me addressed to Northfield, Minn. A. A. McP. (B. J. McP.)”
That plaintiff then intended a temporary absence is not controverted by the record. His wife’s illness occurred about three months later. Within five days after said September 15th, defendants repossessed and re-entered the premises by force, to the exclusion of plaintiff and his employees, and they also took the personal property.
Plaintiff’s declaration is in five counts, quoting from defendants’ brief:
“The first count charges forcible eviction from the premises under section 13376 of the Compiled Laws of 1915, of this State.
“The second count-charges a conspiracy by the defendants to cheat and defraud the plaintiff.
“The third count makes the same allegation of facts as do the former counts, but alleges that there was an oral agreement or contract separate from the written lease.
“The fourth count is in trover for the conversion of personal property. Alleged that the plaintiff was the owner of a half interest therein.
“The fifth count is the common counts in assumpsit.”
We quote sections 13229 and 13376, 3 Comp. Laws 1915:
“(13229) Section 1. No person shall make any entry into lands, tenements or other possessions, but in cases where entry is given by law; and, in such cases, he shall not enter with force, but only in a peaceable manner.”
“(13376) Sec. 19. If any person shall be ejected or put out of any lands or tenements in a forcible and unlawful manner, or being put out, be afterwards held and kept out by force, he shall be entitled to maintain an action therefor, and shall recover therein three times the amount of damages assessed by the jury or a justice of the peace in the cases provided by law.”
Late in the trial the court eliminated all but the first and fourth counts and he submitted the case under such counts. Under the first count plaintiff had verdict for $1,412, and under the fourth count verdict for $1,650. The damages assessed by the jury under the first count were trebled, making the result $4,236, and judgment was entered for a total of $5,886. Both sides assign error.
Plaintiff contends that the court erred in instructing the jury that the lease was for but one year. The writing, as quoted, says that the term is one year. But plaintiff argues that other provisions, stated or set forth above, particularly that relating to the purchase of the personal property, require a holding that the term was more than one year. Construction of the lease, if it was open to construction, was for the court. He was right, clearly. The language fixing a definite term is not modified by the other provisions. And that the parties might, at their pleasure, continue the lease beyond one year does not, of itself, warrant a holding that the term was so enlarged.
Defendants say that plaintiff abandoned the premises, and that therefore they had a right to reenter, citing cases. There is no evidence of abandonment. They also insist that plaintiff’s putting Williams in charge during his absence was in effect an assignment, breaching a covenant on the subject. There was. no assigning and no evidence of it. Vincent v. Crane, 134 Mich. 700.
Mrs. Birkholz did not sign the lease. That she is estopped to assert her interest to defeat it is established. Plaintiff was entitled on the facts to a peremptory instruction that she was bound by the lease. That the court, out of an abundance of caution, left the question to the jury, as he did, defendants may not complain.
There was evidence pro and con that Mrs. Birkholz aided and abetted in the eviction of plaintiff. Whether she did or not was properly submitted to the jury, as preliminary to holding her liable in damages.
After closing of proofs, in a colloquy between court and counsel, the court expressed the opinion that it had been established that plaintiff had been evicted in a forcible and unlawful manner, but he said:
“As long as the question of damages must be sub mitted to the jury anyway, and the question of the liability of Mrs. Birkholz, I think I will submit the question to the jury.”
He did. Plaintiff was entitled to a peremptory instruction. Forcible entry is defined in Chylowski v. Steinberg, 193 Mich. 547. Defendants will not be heard to complain of submitting the question to the jury.
Defendants say:
“The lease was a personal contract, that is, it was to be performed by the plaintiff in person. * * * We insist that when the plaintiff left the premises and' attempted to put another man in his place to conduct the farm, that he lost all rights to the possession thereof.” * * *
We find in the writing no express covenant or promise of the plaintiff that he would give all his time and attention to the business. He did promise to take full charge of the farm, and to furnish necessary labor. There are other covenants relating chiefly to husbandry.
A lease on shares is a personal contract. Randall v. Chubb, 46 Mich. 311 (41 Am. Rep. 165). In any event that plaintiff was to give the business his personal attention may be said to be an implied covenant. But granting, as contended, that plaintiff so expressly covenanted and promised, and granting too that his putting Williams in charge and his leaving and his absence constituted a breach of the covenant, defendants acquired thereby no right to forfeit the lease, and no right to re-enter.
The lease contains no condition that a breach by plaintiff of any or all of the covenants would give defendants the right to terminate the tenancy. The common method in drafting leases is to gather some or all of the covenants, by reference, into a condition subsequent, an agreement by the parties, that a breach by the tenant of any or all of the covenants on his part shall give the landlord the right to terminate the tenancy by means and in a manner usually indicated. The lease contains no such condition. The defendants here had no right to forfeit, or to re-enter and repossess the premises, because of a breach of the covenant in question, whether express or implied. See Pickard v. Kleis, 56 Mich. 604, where covenant and condition are distinguished. See, also, Hanaw v. Bailey, 83 Mich. 24 (9 L. R. A. 801); Somers v. Loose, 127 Mich. 77; Wakefield v. Mining Co., 85 Mich. 605; Hough v. Brown, 104 Mich. 109; 1 Underhill on Landlord and Tenant, p. 620; 2 Tiffany on Landlord and Tenant, p. 1366; 36 C. J. p. 598.
This holding is not affected by the statute relating to summary proceedings to recover the possession of lands. 3 Comp. Laws 1915, § 13240 et seq.; Pickard v. Kleis, supra; Langley v. Ross, 55 Mich. 163.
An exception to the general rule that a breach of a covenant does not of itself give the landlord the right to terminate the tenant’s interest may have been made by bench law in this jurisdiction in case of an assignment by the lessee without consent of the lessor. Wray-Austin Machinery Co. v. Flower, 140 Mich. 452 (but see note 2 Tiffany on Landlord and Tenant, 1365, and 1 Underhill on Landlord and Tenant, 622); and particularly if the lessee is a share tenant. Lewis v. Sheldon, 103 Mich. 102; Randall v. Chubb, supra.
If defendants when so taking the land had had a right to possession of it a different question would be presented. . McIntyre v. Murphy, 153 Mich. 342 (15 Ann. Cas. 802).
The only point made against trebling the damages under the first count is that no case of forcible and unlawful eviction was made out. That matter has been disposed of, and we are not called upon therefore to consider further such damages.
We find no prejudicial error in the charge under the fourth count, and we agree with the trial court in holding the verdict thereon to be neither excessive nor against the great weight of the evidence.
Nothing will be gained by discussion of other questions. They have been considered.
Judgment affirmed but without costs to either party.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., did not sit. | [
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Stone, C. J.
This case is here on certiorari to review the action of the Industrial Accident Board in setting aside a compensation agreement and awarding additional compensation to the employee. On September 26, 1913, the claimant was working in the shop of the Detroit Forging Company. While, taking steel ¡sockets out of a box or tray, a steel sliver entered the third finger of the right hand near the second joint. It is admitted that this was an accident arising out of, and in the course of, his employment. The wound became infected', and claimant was totally disabled for .about 10 weeks. The fingers, hand, and entire arm were swollen, and as the swelling and infection subsided, they caused adhesion of muscles and tendons of the right hand, which prevented the entire closing or bending of the fingers. We shall refer later to the testimony relating to the labor performed by claimant after the accident. On the 26th of December, 1913, an agreement calling for compensation upon the basis of one-fifth of the loss of the four fingers of the right hand, that is, calling for 20 weeks’ compensation, was signed by the claimant and the Globe Indemnity Company and forwarded to the Industrial Accident Board, which refused to approve the same unless 10 weeks more were added to compensate claimant for the time he was disabled from performing any' work, on account of said injury. On January 26, 1914, another agreement was signed by said claimant and said indemnity company, by which said claimant was to receive, as full compensation, $9 per week for 20 weeks, on the basis of one-fifth of the loss of four fingers of the right hand, and in addition 10 more weeks at $9 per week for the time the claimant was unable to do any work on account of said injury. The last-named agreement was duly approved by the Industrial Accident Board on January 29, 1914, and the whole of said 30 weeks of compensation was promptly paid to claimant. At the time claimant was injured, his average weekly earnings were $18. After the payment of 30 weeks’ compensation, claimant made demand upon respondent for payment to him of additional compensation for said injury, and respondent disclaimed liability for further or additional compensation. On June 24, 1914, claimant filed a sworn petition with the Industrial Accident Board, praying that his agreement aforesaid of January 26, 1914, be set aside, and that further compensation for the above injury be awarded him. In said petition, said claimant, among other things, stated :
“(3) That by reason of the injuries to his right hand and right arm, your petitioner is unable to follow his occupation of that of polisher, and is unable to earn said wages of $18 per week, but, on the contrary, at the present time and for some time past has been unable to earn any wages whatsoever. That your petitioner is unable to make use of said right hand and arm, and he avers that the injuries to said right hand and right arm will be permanent, and that he will be deprived of the use of said right hand and arm for and during the remainder of his natural life. >
“(4) Your petitioner further avers that on or about the 26th day of January, 1914, at the request and relying upon the representations of the Globe Indemnity Company, he then and there signed a certain al leged agreement in regard to compensation, reference to which agreement is hereby had, and which said agreement is now on file in this cause.
“(5) Your petitioner further avers that before signing said agreement, he then and there asked the representative of said Globe Insurance Company that if his said injuries, as aforesaid, continued for a longer period than anticipated, or became permanent, if petitioner would be entitled to additional compensation; that said Globe Indemnity Company, through its said representative, then and there informed your petitioner that if his injuries were more serious than fit first anticipated, your petitioner would receive compensation until he would have the use of said right hand and arm, as provided for under the so-called compensation-law; that said representative further stated that said agreement so to be executed was merely preliminary, and not binding upon your petitioner if said injuries continued for a longer time than contemplated by the agreement and became permanent; that said representative further stated that in such event, the Industrial Accident Board would reopen and set aside said agreement and give your petitioner such additional compensation as would properly compensate your petitioner for his injuries so sustained; that your petitioner, relying upon such various representations and believing them to be true, then and there signed said alleged agreement in regard to compensation.”
On September 15, 1914, testimony was taken by deposition in support of, and in opposition to, said petition. Said claimant and his wife (the latter testifying that she was present when said agreement was made) gave testimony tending to support the claim set forth in the petition relating to the statements made by the representative of said indemnity company at the time said agreement was signed.
E. T. Pocklington, the adjuster who made the alleged settlement with claimant, testified in part as follows:
“Q. State whether or not you said anything to him about his hand. I think he has admitted that you did ■ — being permanently injured at that time.
“A. Yes; that was the basis upon which we made the settlement. First, I started him out on the loss-time basis, paying him $9 a week, just simply because of the fact that he was disabled, and not acknowledging any permanent disability. The reason I did that was because at first Dr. Blain told me he thought there might not be any permanent disability, and that is customary anyway with all where we make payments under the compensation law, and I paid him along for probably 8 weeks, when the doctor told me that there was a permanent injury; there would be a permanent stiffening.
“Q. Of what, the fingers?
“A. Of the- fingers, partial stiffening, and this reply of the doctor was. made to my inquiry because I had decided myself, seeing the hand week after week, it was permanent, so I took it up with the doctor, and he said it would be permanent, and over the telephone he told me a fifth would be a fair percentage upon which to base the loss of function; and the next time Mr. Carpenter came in I told him that there wasn’t any question at all but what his injury was permanent. I said, Tt may get a little better; there may be some improvement, but nevertheless it will never be like it was before, and the only thing we can do is to adjust the loss on the basis of the present condition.’ ‘Now,’ I says to Mr. Carpenter, ‘if you had lost all of those fingers, you would be entitled to compensation for 100 weeks,’ and I explained that as he has already attempted to explain it, giving him the number of weeks for each finger, ‘but now,’ I said, ‘you haven’t lost all, there is considerable amount of use left,’ I says, ‘Is it half as bad as though you had lost all?’ and he admitted that it wasn’t; was quite vehement in his denial; and I said, ‘Is it a quarter as bad?’ No, it wasn’t a quarter as bad. ‘Well,’ I said, ‘Isn’t it about, or wouldn’t it be about, one-tenth part as bad?’ And Mr. Carpenter allowed that it would be about a tenth, and then I said: ‘If I allow you twice as much, or a fifth, you will be satisfied,’ and he was perfectly satisfied ; that is the way that Mr. Carpenter and I talked the matter over. It was strictly on the basis of a .permanent disability, and based on the present con dition of the hand, and then at that time, the condition at that time, and so far as his future trouble is concerned, I told him. He asked me: Tf the hand gets stiff so I cannot do anything with it, what can I do then? And I said,-‘If you should lose the hand, the entire usefulness of the hand, you will get paid for the hand. The board will see that you get paid.’ I was very particular to impress upon his mind, at the time of signing the agreement, that was an agreement between us. I am very particular to see that every one who signs an agreement or settlement understand what they are signing.”
From the evidence produced before the board, it found the facts to be in substance as follows:
(a) That on December 26, 1913, when the claimant and Mr. Pocklington came to an understanding or agreement that the amount of said claimant’s injuries would be one-fifth of the loss of the four fingers of said right hand, said right hand was then in a splint, and that it was impossible for either party, at that time, to fully know whether there would be any permanent stiffness of the fingers or hand, or the extent of claimant's injuries, but both parties expected said injuries would be permanent to some extent, but to what extent was not then known.
(&) That on January 26, 1914, when the last agreement between the parties was signed, it was then expected by Mr. Pocklington, adjuster, that the injuries sustained by claimant were permanent, and he so informed the said claimant, and that said settlement agreement was signed by claimant upon the understanding and basis that the injuries he had received did not, and would not, amount to more than one-fifth the loss of the four fingers of the right hand, and if it afterwards developed that the injuries were more serious, the claimant would have the right to petition the board for further compensation.
(c) The board found, as a matter of fact, that the injury sustained by claimant was permanent, and affected the use of the entire hand; that the condition of claimant’s hand had improved since January 26, 1914; that, however, claimant had lost 60 per cent, of thé normal use of said right hand.
(d) That the evidence disclosed that on account of this injury the average weekly earnings of the claimant, from the time he was able to return to work, had been greatly decreased, and that he was, and would be, unable in the future to do metal grinding and polishing (the work which he was engaged in when injured), or other skilled work requiring the full use of both hands, and that as to common labor, he would be partially incapacitated, all on account of his injuries, and the permanent nature thereof.
(e) That the then condition of claimant’s hand and arm, and his resulting disability, were due to the injury received by him September 26, 1913.
Thereafter the said board entered an order, in writing, granting the prayer of claimant, and adjudging that he was entitled to receive and recover from the said respondent, in addition to all sums theretofore received by him, compensation for 60 weeks at the rate of $9 per week; that the portion of such compensation as had accrued from the time of the stopping of payments to said claimant'should be due and payable on the date of said order, the remainder thereof to be paid weekly in weekly payments, in accordance with the provisions of the workmen’s compensation law, the amount thus awarded to be in full of all claims of said applicant against said respondents. Thereafter the appellant filed a motion for a rehearing, contending that the award and order of the board granted compensation on the basis of a certain percentage of the loss of the hand or arm, which loss- of use was less than total loss of use of same, and that this basis was erroneous, which motion was denied.
The said board further stated, in its return to the writ, that there was no claim made upon the hearing of the matter that Mr. Pocklington, adjuster for the Globe Indemnity Company, intended to act fraudulently.
As a finding of law, said board found that under the facts in the case the applicant was, as matter of law, entitled to 60 weeks’ additional compensation.
The assignments of error are as follows:
(1) In holding that the agreement with regard to compensation was not final and binding upon claimant.
(2) In basing the award on a partial loss of four-fingers of the right hand, and not on one-half the difference between claimant’s average weekly wages before the injury, and the average weekly wages which he was and is able to earn after the injury.
(3) In basing the award on a partial or percentage loss of a hand instead of on the extent of disability, viz., one-half the difference between claimant’s average weekly wages before the injury and the average weekly wages which he was and is able to earn after the injury.
(4) In basing the award on a partial or percentage loss of the right arm, and not on one-half the difference between claimant’s average weekly wages before the injury and the average weekly wages which'he was, and is, able to earn after the injury.
(5) In determining and ordering respondent to pay to claimant the sum of $540, in addition to the amount already paid, as further compensation for the accident and injury to claimant.
The- following request was made by counsel for respondent and appellant at the hearing to settle the return to the writ herein:
(1) That the return state and show upon what clause and provision of Act No. 10, Extra Session 1912, the award arrived at by the board, in this case was determined and based.
(2) That the basis of the award be shown in the return to the writ. Which request the board refused, for the reason that the finding of law máde by it, and set forth in the return, is sufficiently definite.
Counsel for appellant state that there are but two general questions presented in the case:
(1) Did the board err in setting aside the settlement agreement of January 26, 1914?
(2) Was the award based on a percentage loss of the right hand?
1. Upon the first point counsel rely principally upon section 5 of part 2 of the act (2 Comp. Laws 1915, § 5458). They concede that such an agreement as the statute contemplates mayjbe set aside for fraud, mistake, or undue influence. In our opinion the statute contemplates an. agreement and settlement made without contingency or condition, and not one based upon a possible or probable event that may render it inoperative. An agreement and settlement, based on the strength of such a condition or contingency, is not such as the statute contemplates. Here, according to the testimony of the adjuster, Pocklington, the settlement was based upon the understanding that if claimant’s hand got worse so that he should lose the usefulness of the hand, the board would see that he got paid for it. The testimony of the claimant and his wife went much farther, and was to the effect that if the hand and fingers did not get better, he could put the matter before the board, and that the agreement would not be binding, or final. It does not meet the question to say that Mr. Pocklington did not intend to act fraudulently. The material question is, What was the effect of what he said? Ordinarily one cannot successfully ask for affirmative relief on the bare ground that he was either ignorant of the law, or mistaken as to what it prescribed. But it is now well settled that this rule is not invariably to be applied. In many cases where injustice would be done by its enforcement, this has been avoided by declaring that a mistake as to the existence of certain particular rights, though caused by an erroneous idea as to the legal effect of an instrument, or as to the duties or obligations created by an agreement, was really a mistake of fact, and not strictly one of law, and so did not constitute an insuperable bar to relief. Reggio v. Warren (207 Mass. 525, 93 N. E. 805, 32 L. R, A. [N. S.] 340), as reported in 20 Am. & Eng. Ann. Cas. 1244, and cases cited in note. The rule is that a release' may be rescinded for a mutual mistake of law. Kirchner v. Sewing Machine Co., 135 N. Y. 182, 189 (31 N. E. 1104). ” Whether placed upon the ground of constructive fraud, or mistake of fact as well as of law, the law forbids that a party who, with full knowledge of the ignorance of the other contracting party, has not only encouraged that ignorance, but has knowingly deceived and led that other into a mistaken conception of his legal rights, should shield himself behind the doctrine that a mere mistake of law affords no ground for relief^ We think that, placing its action upon either ground, the board did not err in acting, notwithstanding the so-called settlement agreement. ''
2. The remaining assignments of error may be considered together. It should'be stated that the order of the board was made before the opinion of this court in Hirschkorn v. Desk Co., 184 Mich. 239 (150 N. W. 851), was rendered. That case has been followed by Cline v. Studebaker Corporation, 189 Mich. 514 (155 N. W. 519). Those cases hold that as the act (section 10, pt. 2 [2 Comp. Laws 1915, § 5440]) under the schedule of specific indemnity provides compensation only for the loss of an eye, an award cannot be arrived at upon a basis of a partial loss of the same. We think that this principle, and the reasoning of the cases, apply as well in the case of an injury to a hand as to an eye. Although there is no special finding upon the point, it is evident from the language used by the board that it made its allowance under the schedule of fixed liabilities contained in the above-cited section, instead of under the first clause of that section, which is as follows:
“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury, and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury.”
It was our first impression that the amount awarded was no greater than could have been given, by the evidence, under the clause above quoted, and that appellant had not been injured in the amount of the award. A more careful examination of the evidence leads us to doubt the correctness of that impression.
Under the practice as stated in Andrejwski v. Coal Co., 182 Mich. 298 (148 N. W. 684), and Finn v. Railway, 190 Mich. 112 (155 N. W. 721), the order of the said Industrial Accident Board is therefore reversed, and the case hereby remanded for such further hearing therein before said board as the parties may desire.
Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit. | [
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Fellows, J.
On October 14, 1920, plaintiffs purchased on land contracts two lots in Doxtator Center subdivision in Dearborn township, Wayne county, of the Dearborn Beal Homes Company, a Michigan corporation. Charles H. Doxtator was secretary of the company, its sales manager and had active charge of its affairs. Payments on the contracts were made to him. Defendant Potter was president of the company but does not appear to have been active at that time. Along in the fall of 1922, the officers of the company seem to have discovered that Doxtator was not dealing fairly with the company and defendant Ding-man was made secretary and treasurer. It is claimed that Doxtator had appropriated the company’s money to his own use and a suit was instituted against him for an accounting. A mortgage for $20,000 on the subdivision had been foreclosed and the company was in a bad way financially. At this point defendant Potter seems to have taken charge of the affairs of the company. It is said he had about $18,000 invested in the company although neither he nor defendant Dingman were sworn as witnesses in the case. Meetings were called of stockholders and purchasers but plaintiffs deny receiving any notice of such meetings or of any knowledge on their part of the affairs of the company. They did receive notice not to make further payments to Doxtator and in December wrote defendant Potter asking for information as to whom payments should be made. The following day defendant Potter instructed defendant Dingman to notify contract holders to make payments to him and to urge the payments each month. Pursuant to this direction Dingman wrote plaintiffs: “Replying to your letter of the 12th inst. addressed to Dr. Willis A. Potter/’ and notifying them to make payments to him. Thereafter they made their payments to Dingman until the final payment was due. This they tendered and asked for their deed which was refused.
On May 10, 1923, defendant Potter obtained from the mortgagees who had bid in the premises on the foreclosure sale an option to purchase them for $22,500 on terms, if they were not redeemed from the foreclosure. After the period of redemption had expired Potter exercised his option and the premises were deeded to him. The deed was not placed on record and plaintiffs had no knowledge of it; they continued their payments as before. The day after Potter received the deed he sold the premises to defendant Watson on contract for $50,000. The record fairly discloses that the arrangement to purchase arid the purchase of the property from the mortgagees was for the purpose of protecting defendant Potter and other stockholders of the defunct company and others who put money into the new enterprise. All others appear to have been eliminated and the property was later deeded to a so-called common-law trust. To complete the statement of facts it should be said that before Potter received his deed, the company had ceased t& function. The exact day does not appear but the oral testimony is that the secretary of State suspended its corporate powers for failure to pay taxes and the testimony of the attorney for Potter is that he made a trip to Lansing on this subject along in April, so that the corporation was not functioning later than some time in the spring of 1928. After plaintiffs had tendered their final payments and a deed had been refused them they learned the situation and filed this bill, claiming defendant Watson was not a good-faith purchaser and asked for specific performance or in the alternative for a money decree. The testimony is convincing that Watson was a bona fide purchaser and in this court counsel for plaintiffs so concede. Plaintiffs appeal from a decree denying them all relief.
In the briefs there is considerable discussion of the duties of corporation officers and directors and whether trust relations exist in the instant case. We need not discuss these questions at length. It should be noted, however, that the claim is advanced on behalf of defendant Potter that he tried to obtain money to redeem the premises but was unsuccessful; he does not testify to what efforts he made, and it is passing strange that he was unable to make arrangements to take care of a $20,000 mortgage but was able to find a customer for the land for much over twice that sum the day after he acquired title. The effect of the manipulations of this property was to “freeze out” everyone except the stockholders and others who went into the new deal and it was no doubt so intended.
Plaintiffs had been notified to make no more payments on their contract to Doxtator. They asked Potter to whom payments should foe made. He instructed Dingman to answer the letter and direct that payments be made to him, Dingman. Literally the act of giving the notice was performed by Dingman but it was given by direction of Potter and was his act. He then knew that the mortgage had been foreclosed and unless redeemed the company would lose its title. Plaintiffs had no knowledge of this. Months after the company had gone out of existence and after Potter had received his deed, which he withheld from record, plaintiffs continued to pay to Ding- man on Potter’s instructions their monthly payments, and the money so received' by Dingman was used, it is claimed, to pay the expenses of a company no longer in existence. Upon the well recognized principles of equitable estoppel, Potter is estopped from now asserting that the conditions he led plaintiffs to believe existed did not in fact exist. It is not necessary for us to hold, and we do not hold, that the acts of Potter before he acquired title would alone estop him, but after he secured and held the unrecorded deed he permitted plaintiffs month by month to make their payments, knowing, as he must have known, that they were making them in the belief that they were being paid to the representative of the holder of the legal title. Under all the facts, we think Potter is equitably estopped from making the defense he now seeks to make.
In 1 Story’s Equity Jurisprudence (14th Ed.), § 514, it is said:
“In many cases a man may innocently be silent; for, as has often been observed, ‘Aliud est tacere, aliud celareBut in other cases a man is bound to speak out; and his very silence becomes as expressive as if he had openly consented to what is said or done, and had become a party to the transaction. Thus if a man having a title to an estate which is offered for sale, and knowing his title, stands by and encourages the sale or does not forbid it, thereby another person is induced to purchase the estate under the supposition that the title is good, the former, so standing by and being silent, will be bound by the sale; and neither he nor his privies will be at liberty to dispute the validity of the.purchase.”
In Wendell v. Van Rensselaer, 1 Johns. Ch. (N. Y.) 344, it was said by Chancellor Kent:
“There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares, that if one man, knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.”
The rule is thus stated in Trustees, etc., of Brookhaven v. Smith, 118 N. Y. 634 (23 N. E. 1002) :
“The general rule deduced from all the authorities is that if one is induced to purchase land by the acts or representations of another designed to influence his conduct, and creating a reasonable belief on his part under which he acts that he is thereby acquiring a valid title to the same, the. party who thus has influenced him is estopped from setting up his own title, existing at the time of the purchase, against that of the purchaser.”
And in Faxton v. Faxon, 28 Mich. 159, this court said:
“There is no rule more necessary to enforce good faith than that which compels a person to abstain from enforcing claims which he has induced others to suppose he would not rely on. The rule does not rest upon the assumption that he has obtained any personal gain or advantage, but on the fact that he had induced others to act in such a manner that they will be seriously prejudiced if he is allowed to fail in carrying out what he has encouraged them to expect.”
See, also, Beaupland v. McKeen, 28 Pa. St. 124 (70 Am. Dec. 115) ; Saunderson v. Ballance, 55 N. C. 322 (67 Am. Dec. 218); Guffey v. O’Reiley, 88 Mo. 418 (57 Am. Rep. 424); Dickerson v. Colgrove, 100 U. S. 578.
The vendor in a land contract holds the legal title, but he holds it in trust for the vendee. One who pur* chases the land from the vendor with knowledge of the vendee’s rights and thereafter accepts payments from the vendee, assumes the contract and may be required to specifically perform it. Love joy v. Potter, 60 Mich. 95. Under the facts we have stated and the rules we have called attention to, defendant Potter did not by the circuitous route pursued by him acquire any better title as against these plaintiffs in a court of equity than he would have acquired had he purchased directly from the vendor. If he were now the owner, they would be entitled to a decree for specific performance, and if Watson had purchased with knowledge of the facts, decree for specific performance could be had against him. In other words, plaintiffs have made a case for specific performance but the acts of defendant Potter make such relief inappropriate. Under these circumstances, it is not claimed that a money decree can not be pronounced. Marussa v. Temerowski, 204 Mich. 271.
But it is said plaintiffs accepted discounts on advance payments made by them and do not come into equity with clean hands. There is no hint in the testimony that they knew or had any reason to suspect that Doxtator was not fully accounting to the company. He was selected by the company, not by the plaintiffs. The discount of land contracts for cash is such a common practice as to cause little ground for suspicion. Plaintiffs, of course, should only recover the actual cash paid by them, with interest, but the fact that the company selected a dishonest agent who allowed larger discounts than he was authorized to do does not defeat plaintiffs’ right to be heard in a court of equity.
A decree will be entered in conformity with this opinion. Plaintiffs will recover costs of both courts against defendant Potter. Defendant Watson will recover costs of the circuit.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. Clark, J., did not sit. | [
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Sharpe, J.
Plaintiff’s declaration sets forth in separate counts two causes of action. He sought to recover money paid by him to defendant in the purchase of two separate and distinct lots of stock, the sales of which were alleged! to be in violation of section 11945 et seq., 3 Comp. Laws 1915, commonly called the blue sky law. At the conclusion of the proof, both parties moved for a directed verdict. Decision was reserved and the issues submitted to the jury, with instructions to return a finding as to each of plaintiff’s claims. Their finding is thus stated in the record:
“The jury returned a verdict for plaintiff for the amount of the Butter-Flake stock, $525, plus interest at 5 per cent, from April 11, 1921, to date, making a total of $621.25, and a verdict of no cause for action for the Auto-Vend stock of June 6, 1921.”
Plaintiff thereafter moved for judgment non obstante veredicto as to the claim disallowed by the jury. The trial court filed an opinion denying this motion. The following entry (omitting the titles, etc.) was made in the court journal on December 30, 1924:
“The plaintiff in the above entitled cause having filed a motion for judgment non obstante veredicto and having moved the court to enter a judgment in his behalf for the sum of ten hundred and fifty dollars with interest from June 6, 1921, the same being the amount paid by the plaintiff for the capital stock of the Auto-Vend Company, and the said motion having come on for hearing, and after'hearing argument of counsel for the respective parties, the motion of the plaintiff for judgment non obstante veredicto for the sum of ten hundred and fifty dollars with interest from June 6, 1921, is hereby denied, with costs to defendant hereby taxed at the sum of five dollars.
“It is further ordered and adjudged that judgment be entered on the verdict for the plaintiff Carl Lewis against the defendant Chester Bricker for the sum of six hundred twenty-one and 25/100 dollars, nunc pro tunc as of December 29, 1924.”
Writs of error, were taken out by both parties. Plaintiff seeks to review the action of the court in denying his motion for judgment. Defendant assigns error in the denial of his motion for a directed verdict.
The defendant did not file a bond to stay proceedings. On May 28, 1925, plaintiff caused a writ of execution to be issued on the judgment entered in his favor. Levy was made thereunder. On May 29th, the defendant paid the amount of the judgment, including the costs as taxed, to the officer, and secured a receipt in satisfaction thereof. Soon thereafter, he filed a motion in this court to dismiss plaintiff’s writ of error, for the reason that the judgment sought to be reviewed by him had been satisfied. Plaintiff theretofore had filed a motion to dismiss defendant’s writ of error, for reasons not important to state, as defendant concedes that it should be dismissed, the judgment having been satisfied. The record being in this court, and the cause having been noticed for hearing at the June term, both motions were held until the submission of the case.
Under our practice, a writ of error will issue only to review a final judgment. Such a judgment was entered for plaintiff for the amount found in his favor by the jury. The writ of error issued at his behest brings that judgment before us for review. It has since been satisfied by payment. As a matter of fact, plaintiff did not seek to review that judgment. A reading of the journal entry discloses that no judg ment was rendered as to plaintiff's second claim. The jury had found against him as to this, and the only determination of thei court was a denial of his motion for judgment notwithstanding the verdict. Such denial may not be reviewed by writ of error. Bancroft v. Board of Regents, 192 Mich. 168.
In order that the practice in cases such as this may be harmonized with the statute, we have this day adopted Circuit Court Rule No. 70, a copy of which will appear in the margin.
It follows that both writs of error will be dismissed, without costs to either party.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.
Circuit Court Rule No. 70.
Where separate and distinct causes of action are joined in actions at law, under the provisions of section 12309, 3 Comp. Laws 1915, the court may, at the request of counsel for either party, direct the jury to bring in separate verdicts upon the several counts; upon which verdicts separate judgments shall be entered.
In but one of such judgment entries shall costs be allowed. If the plaintiff recover on any of such causes of action for an amount and under circumstances entitling him to costs under the provisions of the statute relating thereto, he shall have judgment therefor; otherwise, costs shall be adjudged in favor of the defendant. | [
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Wiest, J.
This case involves the same issues decided in Packard Motor Car Co. v. City of Detroit, ante, 245, and the opinion therein decides this case.
Judgment reversed and a trial granted, with costs to plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Bird, J.
(dissenting). Defendant insured the life of John Davis for $10,000, and made plaintiff the beneficiary. John Davis died about a year after the insurance was taken out. Plaintiff delivered the policy to Fixel & Fixel, attorneys in Detroit, and requested them to collect it. They made the proofs of death and delivered them to the defendant and demanded payment. When the matter was ready to close nearly six months later Fixel & Fixel sent plaintiff to the office of the representative of the company. It is her claim that the representative of the company told her he had some money for her on account, and that the balance would be paid in 30 or 60 days. She was paid $6,898.70, and she signed what turned out to be a compromise settlement receipt. She was a Russian and could neither read nor write the English language. Her claim is the receipt was not read to her.
It was the claim of Mr. Arthur Fixel, who had the matter in charge, that the company made the defense that Mr. Davis had been refused insurance in another company, and that he represented in his application that he had not been refused. Mr. Fixel was impressed with this defense and compromised the claim.
Complaint is made because the court did not direct a verdict for defendant. We think the court was in no error in refusing to dispose of the case as a question of law. It was a clear cut question of fact. If she was right she was entitled to a judgment for the balance due on the policy. If the company was right she was not entitled to anything.
Complaint is also made that if she was displeased with the settlement and wanted to rescind the settlement she should have returned the money which was paid her before commencing suit. Counsel ignores her position. She disclaims any compromise settlement was made. Her claim is that she was paid $6,898.70 on a $10,000 policy, with the promise that the balance would be paid within 30 or 60 days. Under her theory of the case she was not bound to tender back what had been paid her before bringing suit for the balance.
But it is said at all events the verdict was against the great weight of the evidence. It was a question of her word against the word of the representative of the company and Arthur Fixel. She says she never heard anything about a settlement; that Arthur Fixel never told her that the company was refusing to pay; that Mr. Fixel said he was investigating the policy, and it would take a little time to do that. Mr. Fixel, of course, tells a different story. The difference in their stories makes the issue of fact.
There are some side issues which throw some light on the transaction. A short time after the matter was placed in the hands of Mr. Fixel he obtained a loan for her from one Grosberg of $5,000 for six months. When she paid it she was charged nothing for interest, but was charged $550 as a bonus. Mr. Grosberg was a close friend and business associate of Mr. Fixel,- if not a client. It occurs to us if the company was making the defense that Mr. Fixel said it was, that Mr. Fixel would not have advised his friend and business associate to make the loan and take an assignment of the insurance policy as security.
The claim that Mr. Davis had been refused insurance by another company appears to be somewhat precarious and rests upon an admission of Mrs. Davis, which she testifies she never made.
Attention might be called to other matters, but we think it is useless to discuss them, as it was purely a question of fact for the jury. They saw the parties and heard them testify, and we think there was ample testimony to arrive at the verdict they did.
The judgment should be affirmed.
McDonald, C. J., and Moore, J., concurred with Bird, J.
Clark, J.
The life insurance policy for $10,000 was issued March 29, 1921. Mr. Davis died November 30, 1921. Of the premium for the first year there remained unpaid $101.30. Plaintiff beneficiary consulted Arthur E. Fixel, an attorney, and left with him the claim for adjustment. Plaintiff disclaims, knowledge of the fact, but it was the contention of defendant, as stated to Mr. Fixel, that the policy could be avoided because of a misstatement of material fact in the application and that the defendant would deny liability. Mr. Fixel was impressed that there was merit in defendant’s contention. But after negotiation a settlement of $7,000 was agreed upon by Mr. Fixel and the defendant. A settlement receipt was prepared, and it was signed by plaintiff in the office of defendant’s agent in Detroit. Both Mr. Fixel and the agent testified that the matter was explained to and approved by the plaintiff. Seven thousand dollars less the unpaid premium, was paid and accepted. Later plaintiff brought thjs suit in assumpsit. The theory of the declaration is that the $7,000 was a part payment and that defendant promised to pay the remaining $3,000 later and has not done it. There is no averment of fraud, deceit or conspiracy. Her case rests on her naked statement in support of the theory of her declaration. The testimony of Mr. Fixel, the testimony of the agent, the documentary evidence, the circumstances, are against her claim.
The verdict is against the great weight of the evidence.
Judgment reversed; new trial granted; costs to abide the result.
Sharpe, Steere, Fellows, and Wiest, JJ., concurred with Clark, J. | [
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Clark, J.
Complaint on oath was made on October 30, 1923. It charged defendant with a sale of spirituous and intoxicating liquor on October 17, 1923. Examination was on November 1, 1923. Defendant was committed for trial. Information was filed November 5, 1923. Before a jury was sworn, and on March 20, 1924, defendant filed a motion to quash, the denial of which presents the main question, which is, that there was no evidence before the committing magistrate of when the sale was made and that, therefore, he had no right to commit.
A witness at the examination testified of purchasing the liquor on October 17th, but did not state the year. The record does not show that this matter was called to the attention of the magistrate by motion to dismiss, request, objection, or otherwise. The question was raised for the first time by the motion in the circuit court. Technical nicety would have been served by evidence of the date in full. But defendant was not misled. The sworn complaint gave the date. She was prejudiced in none of her rights. Justice requires that defendant should not be permitted to raise this question first in the circuit court. People v. Hare, 57 Mich. 505; People v. Dowd, 44 Mich. 488; People v. Brott, 163 Mich. 150, including separate opinion of Mr. Justice Blair.
We do not follow counsel in urging that there is the same infirmity of evidence at the trial. The principal witness testified at the trial on August 12, 1924:
“I knew the respondent from about the first of October, 1923. She lived in the city of Grand Haven on the north side of Washington street west of Second street above a millinery store.
“Q. Were you at her place in October?
“A. Yes, about the 17th of October.
(Objection.)
(Witness continuing): “I was at respondent’s home just shortly before dinner. I purchased a pint of moonshine whisky.” * * *
If this testimony is not directly to the point that the sale was on October 17, 1923, it is capable, reasonably, of that inference. The witness knew defendant from about October 1, 1923. No other October intervened between that time and the trial. Clearly the witness when he said “October 17th” meant October 17, 1923. See People v. Perry, ante, 483.
The verdict is supported sufficiently by evidence.
Affirmed. Remanded for judgment.
McDonald, C. J., and Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred with Clark, J. | [
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Bird, J.
In January, 1924, defendants were the owners of a house and lot situate at 414 East Williams street, in the city of Ann Arbor. On the 28th day of that month they entered into a contract with plaintiff for the sale and conveyance of it to her for a consideration of $10,000, to be paid as follows: One thousand dollars when the contract was signed, $3,000 on July 1, 1924, at which time defendants were to give plaintiff a warranty deed and plaintiff was to execute a mortgage on the same for the balance of the purchase price. Before plaintiff executed the contract she visited the premises and inspected them. Later the contract was executed by the parties, and the $1,000 payment was made. Plaintiff returned to her home in the State of Illinois, but returned to Ann Arbor in March, 1924. At that visit she claims she learned that false representations had been made to her in three particulars: (a.) That there was a basement under the entire house, whereas it was under only one-quarter of it. (b) That the house contained two bath rooms when, in fact, it contained only one. (c) That there was no incumbrance on the premises, whereas the adjoining neighbor on the east had an easement over the lot to his garage. The record does not show that she made any protest at that time to defendants. Plaintiff returned to Ann Arbor again on July 1st and paid the $3,000 provided by the contract, and demanded a warranty deed. The deed and mortgage were executed as stipulated and on July 29th she filed this equity suit charging defendants with making false statements in regard to the property and demanding damages, and prayed that whatever should be found her due the same should be indorsed on the note and mortgage, and she also prayed that defendants might be temporarily enjoined from selling or disposing of said mortgage and note. Defendants denied marking any false representations concerning said premises, and offered to take back the property, release the mortgage and refund the payment made, and compensate her for improvements made, but plaintiff would not accept their proposition. At the conclusion of the hearing the chancellor awarded plaintiff the sum of $1,550 as damages, and ordered the same indorsed on the mortgage and note.
Passing over the question whether a case of fraud was made out, but assuming that it was, as she claims, we think she has estopped 'herself from making that claim in a court of equity. She was fully cognizant for some time before she made the $3,000 payment that she had been defrauded, and yet she made the payment and demanded a deed, and gave a mortgage upon the premises for the balance of the purchase price. In other words, she carried out the contract to the letter and insisted that defendants should perform. Afterwards, and before the hearing, she paid the interest on the mortgage. We think that when she performed, and demanded performance of the other party to the contract, that she thereby waived the fraud, if there were any. The contract was executory, and if she was induced to make it by false and fraudulent representations she was under no legal obligations to carry it out. By carrying it out she ratified the contract, and she cannot now be heard in a court of equity to complain of an injury she brought upon herself. The rule is clearly stated by 12 R. C. L. p. 413, where it is said:
“It is generally held, that one who is induced by fraud to enter into a contract, and who, on discovery of the fraud while the contract remains wholly ex-ecutory, nevertheless executes it on his part, or requires performance on the part of the other party, thereby waives the fraud and cannot subsequently maintain an action for damages therefor. Reasons given for this rule are that in such cases the fraud is really consummated and the damages incurred by such performance, and that to permit a recovery thereafter would virtually be to allow a recovery for self-inflicted injuries, and to permit the complaining party to. speculate upon the other’s fraud. It is deemed to be the duty of the defrauded party on discovering the fraud to elect whether he will perform or rescind. If he elects to perform, he thereby, in effect, makes a new contract, and to permit him under those circumstances to recover for a fraud would be to do violence to every rule upon which compensatory damages are allowed. The rule is not changed by the fact that the person guilty of the fraud insists on performance, and that the defrauded party intends to perform and then sue to recover the loss growing out of performance.”
The rule is analyzed in Kingman & Co. v. Stoddard, 85 Fed. 740, where it is said in part:
“The contract, being against conscience because of the fraud, is not obligatory upon him, if he shall so elect; but if, when fully informed of the fraud, he voluntarily confirms, ratifies, and performs and exacts performance of the contract, he condones the fraud, and such ratification, like the ratification of the unauthorized act of an agent, - relates to the time of the contract, confirming it from its date and purging it of fraud. With respect to an executory contract, one may not, after knowledge of the fraud, continue to carry it out, exacting performance from the other party to it, receive its benefits, and still pursue an action for deceit; and this because continued execution with knowledge of the fraud signifies the ratification of a contract voidable for fraud and condones the fraud. For example, if one, by the imposition of fraudulent practices, has been induced to- purchase goods, and, after their receipt, discovers the fraud, he may rescind, or may affirm and have his. action for the deceit. But if, before delivery of the goods, he has discovered the fraud, he may not then accept the goods, and still have an action for deceit. He had sustained no injury prior to the discovery of the fraud. He was under no legal obligation to execute a contract imposed upon him through fraud. Fraud without damage, fallen or inevitable, is not actionable. The loss arises from his acceptance of the goods. This being done with knowledge of the fraud, he has voluntarily brought upon himself the injury. Volenti non fit injuria. With respect to' an executory contract voidable by reason of fraud, the defrauded party, with knowledge of the deceit practiced upon him, may not play fast and loose. He cannot approbate and reprobate. He must deal with the contract and with the wrongdoer at arm’s length. He may not, with knowledge of the fraud, speculate upon the advantages or disadvantages of the contract, receiving its benefits, and, at the same time, repudiate its obligations. Grymes v. Sanders, 93 U. S. 55, 62; McLean v. Clapp, 141 U. S. 429 (12 Sup. Ct. 29). Fraud is not actionable when the defrauded party, before performance and after knowledge of the fraud, voluntarily ratifies and exacts performance of the contract by the other party thereto.”
The rule is elaborated in Simon v. Goodyear Metallic Rubber Shoe Co., 44 C. C. A. 612, 105 Fed. 573 (52 L. R. A. 745). See, also, Gilmer, v. Ware, 19 Ala. 252; McDonough v. Williams, 77 Ark. 261 (92 S. W. 783, 7 Ann. Cas. 276, 8 L. R. A. [N. S.] 452, note); Saratoga, etc., R. Co. v. Row, 24 Wend. (N. Y.) 74.
But plaintiff says that the contract was only partially executory and, therefore, this rule does not apply. Reading again from the paragraph in R. C. L., heretofore quoted, it says:
“The rule has been extended to cases where the contract was not wholly executory. Thus, it has been held that if the fraud is discovered after partial performance a continuance of performance is a waiver of the right to recover damages for the fraud, and that the action cannot be saved after such voluntary performance, to the extent of the damage sustained by partial performance before full knowledge of the deceit;” citing Simon v. Goodyear Metallic Rubber Shoe Co., supra.
Counsel' also says that When the contract was executed the right to recover damages was reserved and, therefore, he is entitled to maintain the action: This contention is also- answered in Simon v. Goodyear Metallic Rubber Shoe Co., supra, as follows:
“The fact that the defendant insisted upon performance, and that the plaintiff intended to perform, and then sue to recover the loss growing out of performance, cannot alter the principle. The plaintiff was under no legal compulsion to go on. What he subsequently did was in execution of the contract. The deliberate execution of it was an adoption of it with knowledge of the deceit, and in contradiction of his purpose to sue for deceit practiced in its procurement. He cannot save his right to sue for the fraud by notice that he will do so if he perform and exact performance with full knowledge of the facts which rendered performance nonobligatory.”
See, also, 12 R. C. L. 414.
The application of this rule will prevent plaintiff from proceeding to' collect damages for any fraudulent statements that may have been made to induce her to enter into the contract. By performing the contract with a full knowledge of the fraud and by her insistence that defendants perform she has waived her right to recover for the fraud.
There is a question of jurisdiction raised and discussed in the briefs. There is also the question whether that part of the decree ordering an indorsement of damages upon the note and mortgage is permissible under our practice, unless it extinguishes the entire mortgage and note. It will be unnecessary, however, to discuss these questions, in view of the conclusion we have reached on the main question.
The decree is reversed, with costs to defendants.
McDonald, C. J., and Claek, Shaepe, Mooee, Steeee, Fellows, and Wiest, JJ., concurred. | [
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] |
WlEST, J.
June 8, 1907, defendant was the owner of 80 acres of land in Leelanau county, upon which he had conducted logging operations in connection with timber on other tracts. That day he conveyed the land to James and Ellen Earns, by warranty deed, taking back a so-called bill of sale of the timber thereon, executed under seal by James Earns and witnessed by Ellen Earns and another. This conveyance was recorded in the miscellaneous records of Leelanau county and recited that James Earns:
* * * “has bargained and sold, and by tñese presents does grant and convey,” to David H. Day, “his executors, administrators or assigns, all the following goods and chattels, to wit: All of the timber standing, lying or being on,” the lands that day conveyed by Day to Earns, “with privilege to enter upon said lands at any time to remove the same, also the use of the camps now on said lands. And it is further agreed that should said party of the first part (Earns) desire to clear up any of said land upon proper notice to party of second part (Day) giving one winter’s time to do same, he (Day) will remove timber from such lands, but only as land is actually wanted for clearing, belonging to me, (Earns) and now in my possession at Empire township. To have and to hold, the same unto said party of the second part, his executors, administrators and assigns, forever. And the said party of the first part, for his heirs, executors and administrators does covenant and agree to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale hereby made of said property, goods and chattels hereby made, unto the said party of the second part, his executors, administrators and assigns, against all and every person or persons whatsoever.”
Mr. Earns took possession of the land, using the 80 acres for pasture, never gave notice of desire to clear up any portion thereof, and at all times treated the sale of the timber in force, until January 21, 1924, when he and his wife deeded the premises to John. A. Wade, plaintiff herein, for $1,000, by quitclaim- deed, without mention of the timber rights of defendant. Plaintiff, at the time of his purchase, knew of the timber sale by Karns to defendant, and had in his possession a certified copy of the record thereof from the office of the register of deeds. This bill was filed to enjoin defendant from removing the timber on the land, and, upon hearing, a decree was granted, finding defendant had only a reasonable time in which to remove the timber, that such time had elapsed, and the right to remove was lost, and the so-called sale was but a license, revoked by deed of the premises to plaintiff. We think the so-called bill of sale was something' more than a mere license, and was not revocable by mere lapse of time, inaction by Mr. Day, or by deed by Mr. and Mrs. Karns to plaintiff.
The evidence shows that the deed to Karns and wife, and the bill of sale of the timber, constituted a single transaction, and the timber was in reality reserved and reduced the purchase price of the land.. This being so, the conveyance did not require the signature of Mrs. Karns. We think the writing a conveyance of the timber, rather than a mere license to remove it. While overtechnical niceties will not be indulged, in considering conveyances of standing timber, when prepared by laymen, we may not close our eyes to apt terms employed to express the intention of the parties. We find terms employed, consistent with a conveyance of realty, and beyond the terms of a mere license. This conveyance fastened rights to the realty to the extent of carrying out its provisions. It will be found, upon an examination of cases of sales of standing timber, that the intention of the parties largely determines the question of whether there is a license, or a grant attaching to the realty. If the contract is made in contemplation of the timber being cut immediately, or the then condition of the timber is what is sold, and a reasonable time for the removal is agreed upon or implied under the circumstances, then the deal relates to personalty. But when the immediate severance of the timber from the land is not contemplated, and right to let it grow remains until the land is wanted for agricultural purposes and notice to remove is given, the conveyance deals with rights in realty. Every word in this conveyance imports an absolute vesting of title to the timber in defendant and negatives a conditional sale or mere license. The sole condition in the conveyance relates to the duty to remove the timber upon notice, and this shows the right to let the same remain and grow until the land was wanted for agricultural purposes. The parties to the conveyance contemplated timber growth and the advantage thereof to defendant. Live young trees are quite apt to grow bigger, and the actual growth made from year to year by the timber on this land was apparent to any one interested. It is said it would be in-, equitable to permit the trees to occupy the land for 17 years and then with their accumulated growth be removed. A sufficient answer to this is found in the conveyance in the provision for removal upon notice, “in one winter’s time.” It was within the power of the owner of the land to end the timben occupation thereof, and there cannot be substituted therefor the rule requiring removal within a reasonable time. If the owner of the land did not care to avail himself of the means provided in the instrument for securing the removal of the timber, and free his land from the imposed burden, time alone will not work the result for him, and he may not invoke the rule requiring removal within a reasonable time. Such rule cannot be invoked when the conveyance carries its own yardstick on the subject. The owner could not wait until the timber had acquired 17 years’ growth and then be heard to say it is inequitable to hold the conveyance still in force, for this ignores the remedy, at the landowner’s command throughout all the inter- veiling years, to prevent the very inequity now-asserted.
When was there to be severance of the timber from the land? Upon notice, “with one winter’s time thereafter.” What was to be severed? This is answered by the stipulation in the conveyance that the land should be actually wanted for clearing. If the owner wanted to clear the land, then he certainly did not expect to have all young trees left thereon. Time for removal of the timber was specified in the conveyance, by the provision for removal upon notice, and then only covering the land actually wanted for clearing. This manifests an intention to let the timber remain, at the option of the purchaser, until the notice provided for was given, and forbids the finding of an intention to have removal made within a reasonable time without notice. We have examined the decisions relative to timber sales, find no case with a conveyance just like this one, have discovered the futility of trying to fit one timber sale decision to another set of facts, and find we can do no more than apply general and well-established principles of law to the case at bar. We cite a decision we have found helpful.
In Hicks v. Phillips, 146 Ky. 805 (142 S. W. 394, 47 L. R. A. [N. S.] 878), there was a reservation in a deed of the timber “on the left-hand side of the road leading from Montieello, Kentucky, to the Francis line, at present owned by William Thornton, also all the rails made, and cut timber for rails or other purposes, lying on said land.”
A bill was filed to restrain entry to remove the timber; it was claimed that:
* * * “no time being fixed in the reservation for removing the timber, it should in law, equity and good conscience have been removed in a reasonable time; that more than 37 years had elapsed since the timber was reserved, during which time appellees had suffered their claim to lie dormant and unasserted up until about four years before the filing of the petition; that such length of time was unreasonable; that having failed to cut and remove the timber within a reasonable time, their claim was stale, and they should not now be permitted to do so.”
In holding there was no- loss of timber rights the court reviewed cases on the subject, including two from this State (Martin v. Cook, 102 Mich. 267; Wait v. Baldwin, 60 Mich. 622 [1 Am. St. Rep. 551]), pointed out the distinction between a license to remove timber and a conveyance of timber in the nature of realty, stated the limitations of the rule requiring removal within a reasonable time, and answered some other claims advanced in the suit at bar.
We quote the following from the opinion:
“On the whole we think the correct rule is laid down in Patterson v. Graham, 164 Pa. 234 (30 Atl. 247), where it was held that one may buy growing timber with no intention of manufacturing it, and may hold it just as he might buy and hold the land, if he so frame his contract; but that where the parties intend that the timber shall be severed from the land, and no time is fixed therefor, the law implies that the grantee will remove it within a reasonable time. So, too, the vendor of land may wish to reserve the timber thereon, not with a view of cutting it and removing it, but with a view of its ultimate enhancement in value when proper transportation facilities afford him a market. If so, he should be permitted to contract accordingly. But it is insisted that this will impose a heavy burden on the vendee of the land by defeating for an indefinite period of time the culture and improvement of the soil. If so, it will be a burden that he knowingly and voluntarily assumes.”
If the timber is now worth the estimate placed on it by Mr. Earns, then plaintiff, in buying the land, paid nothing for the timber thereon. Plaintiff paid $1,000 for the 80 acres of land, worth, according to Mr. Earns, that amount without the timber, and worth, with the timber, $8,000. Of course, this is not decisive of legal rights, but it does puncture the claim of great inequity featured by plaintiff if defendant is not barred from taking the timber. Under the circumstances we do not notice any outstanding or appealing equities in behalf of plaintiff. Plaintiff purchased with full knowledge of the conveyance, and, under quitclaim deed from Karns and wife, acquired no greater rights than they had to give. He knew that Karns had covenanted with defendant to defend the sale “against all and every person or persons whatsoever.”
Mr. Karns had it within his power to require the removal of the timber at any time upon giving the notice specified in the conveyance. This he did not give, but let the matter run along without questioning the defendant’s rights, and his testimony shows he respected such rights up to the time of sale to plaintiff. Plaintiff evidently calculated he could defeat defendant’s claim of ownership of the standing timber, and, if successful, could profit to the extent of about $7,000. Plaintiff is versed in real estate deals, and values, and timber estimates, and bought with his eyes open, and if he has overlooked rights he is bound to respect he has no one to blame but himself. We. are of the opinion that the learned circuit judge was in error in his holdings.
The decree in the circuit is reversed and one will be entered here dismissing the bill, with costs against plaintiff.
Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred with Wiest, J. McDonald, C. J., did not sit. | [
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Steers, J.
This action was brought to recover damages for injuries sustained in an automobile accident which occurred about 8:15 in the evening of August 3, 1922, on trunk line highway M-15 between the villages of Daggett and Talbot in Menominee county, Michigan. Plaintiff was riding with her husband in an automobile which he was driving north. They both saw a car approaching them from the north some distance away. It was then night-fall and both cars had their headlights turned on. As they approached each other plaintiff’s husband dimmed his headlights and turned on his spotlight, slowing down to about 15 miles an hour as they testify, driving on the right-hand side of the road and watching ahead. The car approaching them from the north did not dim its lights. So proceeding, the car which plaintiff’s husband was driving ran into the rear of a horse-drawn lumber wagon loaded with 16 steel rails which carried no light and was also going north on the right-hand side of the road. The front wheel and fender of plaintiff’s car struck the rear axle and left rear wheel of the wagon which extended into the traveled portion of the highway. Neither plaintiff nor her husband saw the wagon until they collided with it. The collision “broke the reach of the wagon and four spokes of the left rear wheel, denting the tire and rim of the wheel.” The driver of the wagon testified that he shouted a warning twice to the people in the car behind him, it was then about a quarter after eight, “wasn’t dark and it wasn’t light,” their car and the one then approaching him from the opposite direction were the first he saw with lights turned on, he was sitting on the left side of his wagon between the front and rear wheels watching and intending to give notice by shouting when they came along, which he did as the car following him drew near. Plaintiff’s husband testified that just after the accident the driver of the wagon said he had “hollered” at him twice, to which he replied, “I didn’t hear you, you didn’t have any light, and I could see nothing.”
Plaintiff was the only person injured by the accident. She was sitting on the right-hand side of the front seat beside her husband. That she was seriously and painfully hurt is not disputed. Just how serious and permanent her injuries were was an issue of fact. She testified of the accident in part as follows:
“As we drove along we were talking and I was looking ahead. I saw a car coming from the north with its lights on. As this car came along Mr. Holsaple turned on the spotlight and dimmed his headlights. I am sure he wasn’t running over 15 miles per hour. When my husband’s car collided with the wagon I was thrown up in the comer of the car and got struck just above my eyes, and my nose, and my right side struck the comer :of the car. My nose and three ribs were broken and my jaw hurt. After the accident my husband took me to Daggett, to Dr. Landsborough.”
It was conceded at commencement of the trial that the county of Menominee maintained a county poor farm at Talbot in charge of its superintendents of the poor, that the driver of the horse-drawn wagon was an employee there acting under their direction in drawing the load of rails from Wallace to Talbot. No question was raised concerning the pleadings or that the action was not planted against the proper def endant. At conclusion of the testimony, on motion of defendant’s counsel, the court directed a verdict for the defense,. followed by judgment, on the ground of contributory negligence of plaintiff’s husband as shown by his own testimony and the undisputed facts attending the accident.
Plaintiff’s' claim of negligence is based on defendant’s violation of Act No. 126, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4865 [7]), requiring horse-drawn vehicles traveling trunk line highways to display a proper light “from an hour after sunset to one hour before sunrise.” It is undisputed that no light was displayed from defendant’s horse-drawn vehicle at the time of the accident. Contributory negligence is a proper defense even if defendant was violating the statute (Deal v. Snyder, 203 Mich. 273).
Plaintiff was sitting in the front seat of their auto on the right of her husband who sat nearest the center of the road and was driving. They were talking as they drove along. Both testified they were looking ahead and watching the road. They were driving on a long, straight stretch of highway. Both testified they saw the on-coming lighted car far away and watched it approach. Both testified they did not hear the warning call of the driver of the wagon just ahead of them on their side of the road going in the same direction, nor see it until they struck it. The excuse given by each for not sooner seeing it was that the bright lights of the automobile coming from the north blinded them. There is nothing in the record to show that the approaching automobile at any time changed its lights or did anything to take them by surprise.
Plaintiff’s husband who was driving their car testified:
“I saw this car from the north a half mile away. It was a straight view. The first thing I did when I saw it was to turn on my spotlight and dim my headlights, as soon as the light shone strong enough to bother me any. With my headlights on bright I could see between 200 and 300 feet. With my spotlight and the dimmers on I could see 150 to 200 feet. With my dimmers on I was going not to exceed 15 miles, and after putting the dimmers on I slowed down. Traveling at 15 miles an hour, I could bring my car to a stop in 10 or 15 feet by using both brakes.
“Q. Where were you when you first saw the wagon?
“A. Well, I didn’t see the wagon until I hit it. * * *
“Q. When the light from the car coming from the north first blinded you, how far were you south of the wagon?
“A. Oh, I should judge 100 feet or so.”
With his lights as they were and at the speed he was going he could see ahead 150 or 200 feet and could bring his car to a stop in 10 or 15 feet. He estimated he was 100 feet away from the wagon when the bright lights of the other ear first bothered or blinded him. Even if he was but 15 or 20 feet away he could have stopped and avoided the accident. The law is—
“well settled that it is negligence as a matter of law to drive an automobile along a public highway in the dark at such speed that' it cannot be stopped within the distance that objects can be seen ahead of it.” Spencer v. Taylor, 219 Mich. 110, citing numerous decisions.
Vide, also, Gleason v. Lowe, ante, 300.
If as he claims the driver was confused or blinded by the bright lights of the other car so he could not see, it was his duty to stop or slacken his speed to safety.
“If his vision was obscured by the glaring lights of the approaching car, it was his duty to slacken his speed and have his car under such control that he might stop it immediately if necessary.” Budnick v. Peterson, 215 Mich. 678.
This is the general rule. In West Construction Co. v. White, 130 Tenn. 520 (172 S. W. 301), where the collision occurred between 1 and 2 o’clock in the morning it was said:
“If the lights on the automobile would disclose obstructions only ten yards away, it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than ten yards and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen.”
In Pietsch v. McCarthy, 159 Wis. 251 (150 N. W. 482), a case closely analogous in facts to the instant one, the court said and held as follows:
“The plaintiff testified that he was proceeding at a rate of speed of from ten to thirteen miles an hour; that his vision was so dazzled by headlights of automobiles coming in the opposite direction that he could not see the wagon ahead of him; and that in this situation he proceeded a distance of 100 feet without slacking his speed until he bumped into the wagon, which he did not see until he struck it. It seems clear under these facts that he was guilty of contributory negligence as a matter of law under the decision of this court in Lauson v. Fond du Lac, 141 Wis. 57 (123 N. W. 629, 25 L. R. A. [N. S.] 40, 135 Am. St. Rep. 30).”
In directing a verdict for defendant, the trial court held that plaintiff as a voluntary passenger riding with her husband was chargeable with any negligence committed by him which contributed to the accident resulting in her injury. Recognizing former decisions of this court supporting the holding of the trial court on that subject, plaintiff’s counsel has assigned error thereon and urges in a well prepared brief, with abundant citation of supporting decisions from other jurisdictions, that this court should overrule those former decisions and apply the doctrine of non-imputable negligence to this ease. The rule applied by the trial court has obtained in this jurisdiction through a long line of decisions for over half a century. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Mullen v. City of Owosso, 100 Mich. 103 (23 L. R. A. 693, 43 Am. St. Rep. 436); Kneeshaw v. Railway, 169 Mich. 697; Fike v. Railroad Co., 174 Mich. 167; Colborne v. Railway, 177 Mich. 139; Granger v. Farrant, 179 Mich. 19 (51 L. R. A. [N. S.] 453); Lake v. Township of Springville, 187 Mich. 305; Jewell v. Rogers Township, 208 Mich. 318; Pilch v. Yellow Taxicab Co., 225 Mich. 484; West v. Railroad, 229 Mich. 590. This court is not prepared to add anything touching that contention to what was said in Mullen v. City of Owosso and Colborne v. Railway, supra.
The judgment will stand affirmed.'
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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] |
MOOSE, J.
Arnold. Cooper was engaged in selling building materials under the name of A. & W. Cooper Company. The bill of complaint is filed to establish a lien for materials that went into the construction of the Cinderella Theatre. Charles M. Ross had the contract for the construction of the building from a certain date, at which time some construction work had'been done. Waive S. Ross is the wife of Charles M. Ross. The other defendants who are appellees were joined because material furnished by them, or work done by them entered into the construction of the building. The Cinderella Theatre Company was having the building erected for its own use. The Federal Discount Corporation furnished money to Charles M. Ross to finance him in his work of construction. He gave to it three mortgages. The case was tried in open court; the trial judge stating that the trial, including the arguments, took upwards of 30 days. The judge found that Mr. Ross breached his contract and misappropriated funds, and that the damage because of his wrongful acts excluded any set-off of claim he had against the theatre company, or against its premises, and made a decree accordingly. Mr. Ross has not appealed. The court gave a lien in the sum of §6,780 to the Lewis-Hall Iron Works; for $323.85 to the United Fuel & Supply Company; for $3,900 to Den Braven and Belisle. Since the case came into this court a stipulation has been filed that this amount may be reduced to $3,750, and as modified toay be affirmed. The decree also gives a lien for $16,333.17 to Arnold Cooper; for $1,850.40 to Zacks and Lerner. Reference will be made later to the claim of the Federal Discount Corporation.
At this juncture it may be well to give a brief history of the salient features of the case. The theatre company had become the owners of contracts for the purchase of land at the corner of Jefferson avenue and Coplin avenue in the city of Detroit. The company commenced to build thereon a theatre building. After expending some money it became financially embarrassed and was unable to go on with the work. At this time the situation at the premises is stated by the theatre company to be as follows:
“I also stated that we had put in the excavating, that the mason work was up to grade, the proscenium steel arch was in position, other steel was on the premises, and also brick and stone was on the premises, that is for the level up to the grade and sash up to the next floor.”
There had at this time been paid upon the land contracts, and expended upon the building by the theatre company, $75,549. Mr. Ross had represented that he could finance the enterprise, and to enable him to do so it was arranged that the grantors in the land contracts should make deeds directly to him and he would give a contract back to the theatre company. This was done and in one of the deeds appears the following:
“Ensealing and delivery of these presents they are well seized of the above granted premises in fee simple; that they are free from all incumbrances whatever, except those, if any, which may have arisen through the acts or omissions of the Cinderella Theatre Company, Inc., or its successors since July 21, 1921.”
And in the other deed is the following:
“That they are free from all incumbrances whatever except such as may have been placed on said land by the act of the parties of the second part, their representatives, agents, or attorneys, and such as have accrued or become a lien since August 1, 1921.”
It was agreed that Mr. Ross might place a mortgage or mortgages on the property to the amount of $150,000, and there were provisions made for the assumption of these mortgages by the theatre company when the property was deeded by Mr. Ross to the theatre company. We do not deem it necessary to state more in detail about this contract.
Mr. Ross entered upon the work and placed three mortgages with the discount company. We quote from the decree as to these mortgages:
“That Charles M. Ross and Waive S. Ross, his wife, executed to the Federal Discount Corporation, a Delaware corporation, defendant and cross-plaintiff herein, three mortgages and the principal amounts of the mortgages together with the actual credit given by reason of said mortgages are as follows:
Actual
Dated. Recorded. Liber Page. Amount. Credit
Given.
May 5,1922 May 10,1922 1132 324 $75,000 $59,185.00
May 12,1922 June 30,1922 1132 587 58,375 50,444.82
Aug. 26,1922 Sept. 11,1922 1102 103 5,500
* * * “That the Federal Discount Corporation had notice and knowledge of the right, title and interest of the Cinderella Theatre Company, Inc., in the premises prior to the taking or making of any mortgage loan by it (the Federal Discount Corporation) to Charles M. Ross, and that the Federal Discount Corporation was fully advised of the contractual obligations existing between the Cinderella Theatre Com pany, Inc., and Charles M. Ross prior to the making of any mortgage loans or advances on the mortgage loans. * * *
“That the court finds that the so-called bonus for service to be rendered as claimed by the Federal Discount Corporation in the amount of $23,695.08 was founded upon the consideration of services to be performed and formed the consideration from which the so-called bonus. was paid or to be paid; that, in the testimony of this case there was such a failure or lack of consideration within the meaning of the law that this item cannot be allowed and must be deducted from the claimed mortgage lien of the Federal Discount Corporation. * * *
“The third mortgage, so-called, dated August 26, 1922, recorded September 11, 1922, liber 1102, page 103, for $5,500, the court finds and determines that under the weight of the testimony, this mortgage was given by Charles M. Ross and Waive S. Ross, his wife, to the Federal Discount Corporation for the purpose of procuring a personal loan of money by Ross and the proceeds of the mortgage were not used for the payment of labor or material bills for the erection and construction of the building on the premises, and this item of $5,500 must be eliminated from any mortgage lien of Federal Discount Corporation.
“That the valid charges after deducting the various items for which the Federal Discount Corporation is entitled to a mortgage lien, is $96,048.07, together with interest at 5% from the date of the disbursement of various items, as shown by its books of accounts and checks, which item has been computed from the day of its advance to the first day of January, 1924, and is $6,909.50, making a total mortgage Men, which should be decreed to the Federal Discount Corporation, of $102,957.57.”
The Federal Discount Corporation claims the so-called bonus was for services and proper discount and interest charges, and should have been allowed. It makes a further claim that will be referred to later.
It is the claim of the theatre company that the amount decreed to the discount company is too large by about $8,000, and that interest should not com menee from the date of the advancements but should commence from the date of the decree.
The discount company claims, and we quote from the brief:
“(1) The contract between the Federal Discount Corporation and Charles M. Ross is founded upon a good and valid consideration, the services have been performed, and the payment of the fee of $23,695.08 is not usurious.
“The item of $23,695.08 paid by Mr. Ross from the proceeds of these mortgages to the Federal Discount Corporation is a financing charge for services rendered in connection with the loan, over and above the regular interest rate. * * *
“(2) If the payment of the said $23,695.08 were usurious no one but the defendant Ross can avail himself of this defense, nor could any one but Ross raise the question of a failure of consideration.
“On January 28th, Cinderella Theatre Company made a contract with Ross which provided in its terms that this! real estate should be conveyed to Ross as the legal owner. On May 9th, pursuant to this agreement, the land was so conveyed to Ross as the legal owner, and in the presence of and with the consent of the Cinderella Theatre Company. Under this state of facts, after the title had been once conveyed to Charles M. Ross by agreement with or consent of the Cinderella Theatre Company, it then and there had no interest, legal or equitable, in this property, and Charles M. Ross was, then and there, not a trustee of this title, but was the legal owner of it and had a right to use it and deal with it as he would use his own, and the Cinderella Theatre Company could not limit Charles M. Ross in the exercise of the prerogatives of legal ownership of this land, no matter what it had provided for in its building contract of January 28th. Such a contract might give it an action against Charles M. Ross for breach of the contract, but would not give it any action which would affect the title to the land nor upon any theory that Ross was' holding the title as trustee for it or for its beneficial interest. This doctrine of resulting trust was abolished by statute in the early history of this State:
“ ‘When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall rest in the person named as the alienee in such conveyance.’ * * * S Comp. Laws 1915, § 11571, and cases cited under this statute.
“It therefore follows that Ross had a right to deal with this property as the legal owner of it and had a right to make contract respecting it, and that the Cinderella Theatre Company was a stranger, both legally and equitably, to such contracts as were made by Ross in connection with the property, and it cannot be held to say, nor to contend, that it was either legally or equitably interested in any contracts which Ross made by virtue of his legal ownership in the land. Therefore when Ross made his financing contract with the Federal Discount Corporation under date of May 5, 1922, which provided for two mortgages upon this piece of property, and provided for the financing charge between himself and the Federal Discount Corporation, he made a contract independent and separate from the Cinderella Theatre Company and one in which it had no interest, legally or equitably. The only nights it could possibly have under the circumstances would be the right of action against Ross on his contract. Under this state of facts the Cinderella Theatre Company was not legally or equitably interested in the financing contract between Ross and the Federal Discount Corporation. It was a stranger to it at that time and must remain a stranger to it.
“It therefore follows that if this contract were to be treated as usurious, no one could raise that defense except Ross, himself, and he has not done so. The defense is a purely personal one and cannot be pleaded by strangers to the contract.”
We will take up the first of these contentions: It is claimed the discount company rendered valuable service in the way of supervision, and that the services so rendered was a valid consideration. This supervision did not prevent its payment of a plumbing bill of $10,000 -to a concern that did not do a day's work or furnish a dollar’s worth of material for the theatre company. Nor did it prevent the payment of an item of $3,000 for stone, none of which went into the building. This supervision was not such as to prevent the placing of a lien by Mr. Ross of $5,500 which was created for the exclusive benefit of Mr. Ross, and did not benefit the theatre company in the least. The services rendered could not by any stretch of the imagination be regarded as worth the thousands of dollars withheld. The mortgages ran but for six months and drew 7 per cent, interest. A careful reading of this voluminous record satisfies us that the charge is an attempt to evade the usury statute (2 Comp. Laws 1915, §§ 5997, 5998, and cases cited in the notes thereto), and that it ought not to stand.
Can the theatre company raise the question of usury? Before the discount company made its loan one of its officers visited the premises. The theatre company was then in possession. The amount of work that had then been done has already been described. There was a sign on the premises stating that the theatre company was erecting the building. We quote:
“We came into possession of the property on or about May 14, 1921, and we have been in possession of it ever since. The office on the property had a sign on ‘Cinderella Theatre Office,’ and the office was located at the northeast corner of the property between the curb and the west wall of the building, and there was a sign upon the property which read something to this effect: ‘On this site will be erected the Cinderella Theatre Building, seating 2,000 people, stores and offices. For information apply to the Cinderella Theatre Company, Inc., 1216 Book Building/ giving the telephone number and a list of the officers’ names. Inside the office we had a desk, chairs, stationery and we used the office for the purpose of conducting all our business in connection with the building of the theatre there on the premises.”
Mr. Ross testified that he showed his contract with the theatre company to the president of the discount company before the loan was made. We quote some of the testimony of the president of the discount company:
“Q. This loan was to be of an approximate amount, how much was it to be for?
“A. It was at different times for different amounts; it was a construction loan.
“Q. It was a construction loan, the proceeds of the loan to be used for what purpose?
“A. Building of the building and paying any expense connected therewith.”
It is impossible to read this record without reaching the conclusion that the discount company knew the relations between Mr. Ross and the theatre company. It knew that the theatre company expected to take the property back and to assume the payment of any valid mortgages that had been placed by Mr. Ross, and that this assumption of the mortgages would be part of the purchase price. Under the record as made the theatre company had as good a right to make the defense of usury as Mr. Ross would have had. Cobe v. Summers, 143 Mich. 117; Dalton v. Weber, 203 Mich. 455; Umphrey v. Auger, 208 Mich. 276.
As to the claim of the theatre company that interest should commence at the date of the decree instead of at the date of the advancements: In considering this claim it must be remembered that an appeal is made to the equity court to relieve the theatre company from the payment of the face value of the mortgages. The trial judge allowed nothing to the discount company except for money advanced, which found its way into the building through material furnished or labor done. It is a familiar doctrine that one who seeks equity must do equity. The theatre company has the benefit of the advancements and should pay legal interest from the date of these advancements. See Vandervelde v. Wilson, 176 Mich. at p. 191.
As to the claim that the mortgage should be further reduced, we think it is not shown that the discount company should be held for these items.
The theatre company objects to the allowance made to Mr. Cooper and to Zacks and Lerner.
We quote from the brief:
“Cooper filed two claims of lien with the register of deeds for Wayne county, the first on October 24, 1922, for $18,147.97, which lien is on R. pp. 607, 608. This lien was released on November 10, 1923, by the defendant theatre company filing an affidavit pursuant to the statute and procuring from the Wayne county clerk a mechanic’s lien certificate releasing lien No. 25132. ' On November 8, 1922, the plaintiff filed its second claim of lien for $18,147.97, without releasing the first lien filed, thus incumbering the defendant theatre company’s property in the amount of $36,925.94. Upon the hearing and trial of the cause and on December 13, 1923, the court over objection of the defendant theatre company, permitted the plaintiff to amend its bill of complaint and attach thereto the lien which was filed on November 8, 1922, and foreclose that lien instead of the lien filed October 24, 1922, and foreclose the lien filed November 8, 1922.
“The court by decree decreed a lien to the plaintiff of $16,333.17, with interest at 5% from September 9, 1922, and further decreed a lien in favor of Zacks and Lerner in the amount of $1,850.40, which was filed on October 31, 1922, and provided that amount decreed to Zacks and Lerner should be paid to plaintiff.
“Zacks and Lerner abandoned the work which they were doing under their contract' previous to putting on the roof. * * *
“The plaintiff Cooper was not entitled to payment for materials delivered until the roof was on as per the written memorandum and contract.”
In this connection we quote from the record. Mr. Cooper is the witness:
“By Mr. Routier: Q. I want to ask you, you filed a lien on the 24th day of October for $18,147.97, did you not?
“A. Yes.
“Q. You also filed another lien on the 8th day of November, 1922, for $18,147.97?
“A. Yes.
“Q. Do you claim one or two liens against the premises?
“A. One.
“Q. One lien. How was it that you filed your lien on the 24th day of October for that amount and then without releasing it filed another lien on the 8th of November, if you know?
“Mr. Schueler: We filed the lien, your honor, please.
“Mr. Routier: Just a minute. I am asking him.
“Mr. Schueler: I filed them for the company. There was a mistake in the first jurat and I corrected it in the account.
“Q. You don’t know anything about that?
“A. I knew there was a mistake.”
Mr. Zacks is the witness:
“We have filed a lien against the property for $28,893.47. In our lien is included A. & W. Cooper for $18,147.97.
“Counsel for the defendant theatre company concedes the regularity of the proceedings of Zacks and Lerner with reference to the filing and serving of the claim of lien and the filing of the cross-bill to enforce the said lien, but does not concede that a lien should be decreed in the amount claimed.
“Q. So your lien should be reduced by that much if a lien is decreed in favor of Cooper?
“A. Yes, sir.
“Q. You did not complete the work, did you?
“A. No, sir.”
The record shows that Mr. Eoss was no better to the materialmen and the labor men than he was to the theatre company. The record shows beyond question that Mr. Cooper furnished material that went into the building of the value found by the trial judge, and that he had not been paid for it. We think the filing of the two liens by Mr. Cooper was fully explained, and the filing of the Zacks and Lerner lien that included the. Cooper material cured any defect if there was any.
As to the claim that Mr. Cooper was not to be paid until the roof was on: When this arrangement was made everybody expected that Ross would complete the building, at the latest by September. He never did complete it,.but the roof was on before the trial judge allowed the lien. We think the decree as to the Cooper lien and the Zacks and Lerner lien should be affirmed. As the theatre company and the discount company both appealed, neither will be allowed costs of this court. As the Den Braven and Belisle lien has been modified by agreement, of counsel, it will stand modified and affirmed, without costs in this court. As to the other liens, the appellees will recover costs.
The other claims of counsel have been considered but will not be discussed.
Except as stated, the decree of the court below is affirmed.
McDonald, C. J., and Bird, Sharpe, and Steere, JJ., concurred. Clark and Fellows, JJ., concurred in the result. Wiest, J., did not sit. | [
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] |
Bird, J.
This litigation grows out of a dispute between the parties ¡as to where a certain line fence should be located. . Complainants own the east half of the northeast quarter of section 11 in the township .of Porter, Van Burén county. Defendant Harris owns the east 20 acres of the northwest quarter of the northeast quarter, and the defendants Turner own the remainder of the west half of the northeast quarter. The division fence between these two 80’s prior to the year 1887 was a rail fence of many years’ standing. Some time in the year 1887 one Farrow, a tenant of complainant, and Munger, who was then the owner of the Harris land, agreed to and did erect, beginning at the highway fence on the north, 40 rods of straight rail fence between the Harris land and complainants’. In doing so, they deflected it to the east on complainants’ land so that when it joined the road fence on the north it was'8 feet and 10 inches east of the point where the old rail fence joined it. This resulted in adding a triangular piece of land to the Harris farm. As to the reason for deflecting the line the parties are in conflict. Complainants insist that the object of it was to avoid an old hedgerow and stone piles, and that it was agreed that it should be set back' on the old line the following spring; while defendants claim it was deflected for the purpose of straightening it, and that nothing was said about placing it back on the line of the old fence. This fence remained there until 1894, when Bly, who was Munger’s grantee, removed it, or a portion of it, because of its decayed condition. It is claimed, but disputed, that since 1894 no fence was erected in its stead until 1912. Complainants assert that they have worked the land up to the line of the old rail fence; whereas defendants maintain that they have worked the land up to the line of the old straight rail fence. In 1912 Miss Harris erected a wire fence on the line of the old straight rail fence, and in her absence complainants moved it onto the line of the old rail fence. Defendant Harris then tore it down to await the settlement of the true line. Complainants filed this bill to restrain what they assert were repeated trespasses, and the bill contains a prayer for a decree defining the line between them, and further to have the title to the disputed piece of land quieted in them. At the hearing the claim of the defense was that the fence was set over by agreement of Munger and Farrow in 1887, for the purpose of straightening it, and that thereafter it was acquiesced in by both parties, and that the fence remained there until 1894, and since that time defendant Harris and her grantors have had possession thereof, have tilled the same, and all the while asserted title thereto.
The defendants in the trial court denied the right of complainants to relief, on the ground that- they did not have possession of the disputed strip at the time of commencing suit. They have'raised the same question in this court. The testimony- tends to show that defendant Harris had possession of said disputed strip at the time she built her wire fence in 1912. The complainants appear to have had possession for a short interval after they moved the wire fence which defendant Harris had erected. But it appears that at the time of the commencement of the suit defendant Harris had removed the fence and regained possession of the land in dispute. Inasmuch as defendant Harris claims title to the land in dispute, and appears to have had possession thereof when the suit was started, and for some time prior thereto, we are of the opinion that defendants’ position is well taken, and that the question of title is one which should be settled by a suit iq ejectment. Seymour v. Rood, 121 Mich. 173 (79 N. W. 1100); Tinker v. Piper, 149 Mich. 335 (112 N. W. 913).
The decree will be reversed, and the bill of complaint dismissed, without prejudice to complainants to settle the controversy by a suit in ejectment. Defendants will recover their costs in both courts.
Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred.
The late Justice McAlvay took no part in this decision. | [
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Ostrander, J.
There is a dam in the river Raisin, near Deerfield, in this State, owned and maintained by defendants. In the year 1906 it was an old structure, and the owners, in October of that year, began the construction of a new dam just above the old one. Complainants filed the bill in this cause, charging that defendants proposed to build the new dam higher than the old dam, in which case their lands would be over-" flowed, drainage thereof interfered with, and proper and usual cultivation prevented. Relief by injunction was asked for. Issue was joined, and after a hearing and after a supplemental bill had been filed, which set up that the new dam had been built higher than the old one, and its effects upon complainants’ lands, the court dismissed the original bill. Upon appeal the decree was reversed. Long v. Schroeder, 162 Mich. 690 (127 N. W. 811). In the opinion filed in that case we said:
“It is apparent from the facts which have been stated that the complainants admit, and the defendants assert, a prescriptive right. They do not assert that their predecessors in ownership of the mill, or that they themselves, ever acquired the right to flow the lands of upper proprietors in any different manner or to any greater extent than they were or would be overflowed by the dam in the condition it was when the bill was filed. The only difference between them, on this point, is that complainants charge a constant and long-maintained interruption to the flow of water caused by the old dam, while the defendants say that the old dam has settled, from which it is inferred, necessarily, that the interruption to the flow has not been constant, and the overflow of lands caused thereby has been variable. It may be said that defendants-concede, iii the answer, that if the new dam should be built higher than the old dam was as it was originally constructed, complainants would have a grievance which, if properly presented, a court of equity ought to relieve. We are of opinion, also, that the matter set up in the answer concludes defendants from claiming the right to maintain a dam any higher than the old dam was at the time the bill was filed. We are convinced that the new dam is higher than the old dam was at the time the bill was filed. In other words, we measure the-rights of defendants as against those of complainants by the interruption to the flow of water caused by the old dam as it was when the suit was begun.”
We also said:
“We are, however, in some doubt concerning the precise terms which ought to be incorporated in a mandatory injunction. Unless counsel can agree about the precise dimensions to which the new dam should be reduced or the precise dimensions of the reduction which should be made in its height to make it correspond, substantially, to the height of the old dam, the record must be remanded, for this purpose, to the court below.”
No agreement being reached, the record was remanded, and there has been a further hearing, with the result that a mandatory injunction was granted requiring defendants to—
“within 90 days of the date of this decree, lower or caused to be lowered, that portion of the new dam between the ‘spillway’ and the flume, as above set forth, a uniform distance of 10 inches from its present height.”
Defendants have appealed.
As when the cause was here before, so now, the question presented is one of fact. Upon this record, as upon the former record, mere vertical height of the new dam, in feet and inches, is not necessarily controlling. The learned trial judge, in an opinion filed in the cause, having in mind the controlling test where, as here, a prescriptive right of flowage is involved, found:
“That the new dam, excluding the weir and the flume, is 10 inches higher than the old dam was at the time of filing complainants’ bill, measured by the extent of the interruption to the flow of water in the river, caused by the old dam as it existed when the suit was begun.”
There is abundant testimony supporting this finding, as to the force and effect of which testimony we agree with the court below.
The decree is affirmed, with costs to appellees.
Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit. | [
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] |
Moore, J.
These are actions of ejectment brought by appellants, as the heirs of their father, Shepard L. Howard, claiming title to an undivided one-quarter interest in property described in their declarations. The cases were tried as one before the judge without a jury. He gave judgment for the defendants. The case is brought into this court by writ of error.
All the parties trace title through Cyrus Howard, the grandfather of the plaintiffs, who died intestate in March, 1856, leaving the following children: Nancy D. Clark, Hepsibah P. Manning, Caroline P. Porter, Abbie A. Patrick, Edgar Howard, William B. Howard, Francis A. Howard and Shepard L. Howard. Shepard L. Howard is the father of the plaintiffs.
On May 17, 1872, Francis A. Howard executed and delivered a paper, the material parts of which are as follows:
“This indenture, made the 17th day of May in the year of our Lord one thousand eight hundred and seventy-two, between Francis A. Howard, of Sutter Creek, Amador county, California, of the first part, and Shepard L. Howard of the township of Dearborn, county of Wayne, State of Michigan, of the second part witnesseth:
“That the said party of the first part for and in consideration of the sum of one dollar to him in ha,nd paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, doth by these presents grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part and to his heirs and assigns forever. (Then follows the description of the premises.)
“And it is provided that the said party of the second part shall not sell the above described lands and premises, but that after his deceas'e the above described lands and premises shall descend to the heirs of the aforesaid Shepard L. Howard. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold, the said lands and premises, to the said party of the second part and to his heirs and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever.
“In witness whereof the said party of the first part hath hereunto set his hand and seal the year and day first above written.
“Francis A. Howard (Seal).”
The following paper was also executed and delivered:
“This indenture made the 17th day of May, in the year of our Lord one thousand eight hundred and seventy-two, between Abbie A. Patrick, of the township of Dearborn, county of Wayne, State of Michigan, of the first part, and Shepard L. Howard of the place aforesaid, of the second part, witnesseth:
“That the said party of the first part, for and in consideration of the sum of one dollar to her in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, doth by these presents grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part, and to his heirs and assigns forever. (Then follows the description of the premises.)
“And it is hereby provided and the intention of this conveyance is declared to be that the said party of the second part shall have the use and possession only of the premises above conveyed, but not the power or right to sell the same, and after his decease the said bargained land and premises shall descend to the heirs of the aforesaid Shepard L. Howard, together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. To have and to hold, the said land and premises as described to said party of the second part and to his heirs and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever.
“In witness whereof, the said party of the first part hath hereunto set her hand and seal the day and year first above written.
(Signed) “Abbie A. Patrick. (Seal).”
October 4, 1889, Edgar Howard, his wife, N. A. Howard, Shepard L. Howard, his wife, Mrs. Irene Howard, Abbie A. Patrick, Hepsibah P. Manning, Caroline P. Porter, Nancy D. Clark, Frank M. Howard, Geraldine N. Booth, made a warranty deed of the property to Joseph A. Patrick. September 26, 1890, William A. Howard, heir at law of Cyrus Howard, who did not join in the foregoing warranty deed with the other heirs, conveyed all of his right, title and interest in and to said lands to Joseph A. Patrick. Defendants claim title by mesne conveyances from the said grantee, Joseph A. Patrick, to all of his property including the one quarter interest now claimed by the plaintiffs. Shepard L. Howard died August 25, 1918.
It is the claim of the plaintiffs that the two quitclaim deeds of Francis A. Howard and Abbie A. Patrick to Shepard L. Howard dated May 17, 1872, conveyed to Shepard L. Howard a life estate only of the interest of the grantors, and that he could convey nothing more, and when Shepard L. Howard joined in the warranty deed of October 4, 1889, he did what he had no right to do; counsel citing section 11690, 3 Comp. Laws 1915; 18 C. J. p. 318, and other authorities.
It is the claim of the appellees that the two quitclaim deeds conveyed a title in fee simple; counsel citing Smith v. Smith, 71 Mich. 633, and Meacham v. Blaess, 141 Mich. 258.
The situation would seem to be a peculiar one. If the quitclaim deeds of May 17, 1872, conveyed, to Shepard L. Howard only a life estate, then Abbie A. Patrick and Frank A. Howard must have retained their interest in said land subject to such life estate. It would seem to follow that when they and Shepard L. Howard all joined in the warranty deed of October 4, 1889, that the giving of said warranty deed would convey all the interest possessed by Abbie A. Patrick, Frank M. Howard and Shepard L. Howard.
We find no reversible error.
The judgment is affirmed, with costs to the appellees.
Bird, J., concurred with Moore, J. Steere and Fellows, JJ., concurred in the result.
Sharpe, J.
(for reversal). In my opinion, the fact that Abbie A. Patrick, Frank A. Howard and Shepard L. Howard joined in the warranty deed of October 4, 1889, to Joseph A. Patrick is not decisive of plaintiffs’ rights. It is plaintiffs’ claim that the quitclaim deeds executed by Abbie A. Patrick and Frank A. Howard to Shepard L. Howard on May 17, 1872, set out at length in the opinion of Mr. Justice Moore, conveyed a life estate to Shepard L. Howard, with remainder over to his heirs; that plaintiffs are the heirs of Shepard L. Howard, and that their rights are in no way affected by the conveyance made on October 4, 1889. If their claim in the first respect be well founded, the latter would seem to follow as a matter of law.
Counsel agree “that the primary object in construing the deed is to arrive at the intention of the parties.” The extraneous circumstances, if helpful, may be considered. A printed form of quitclaim deed was used in preparing the deed from Francis A. Howard. The description and all additional matter were written in ink. That from Abbie A. Patrick was entirely in writing. There is nothing to indicate by whom they were prepared. The inference, I think, may be fairly drawn that neither of them was prepared by an attorney or other person who had any knowledge of the legal effect to be given to the language of a conveyance. The person who drew the deed from Abbie A. Patrick evidently copied the wording of the ordinary form of quitclaim deed then in use.
At the time these deeds were executed, the word “heirs,” or its equivalent, was essential to pass an estate of inheritance. Lyon v. Hyler, 136 Mich. 76. For that reason it was inserted in the forms prepared by publishers for use by conveyancers. Had the words “to his heirs and assigns” been omitted from the granting and habendum clauses, a life estate only would have been conveyed. Having in mind the fact that these words were a part of the printed form, let us examine that which was inserted, other than by filling the blank spaces therein. The scrivener may have erred in not striking out the words quoted, but there can be no probability that he erred in that which he wrote into the instruments which was unnecessary to fill out the form as printed. He was then following the instructions which had been given him by the grantor. That so written into the deed made by Howard reads:
“And it is provided that the said party of the second part shall not sell the above described lands and premises, but that after his decease the above described lands and premises shall descend to the heirs of the aforesaid Shepard L. Howard.”
I can but construe this as an awkward and inappropriate manner of saying that Shepard shall have the use of the premises during his lifetime, with remainder over to his heirs. The prohibition against selling can, and I think should, be construed to apply to a fee simple interest, and not to his life interest. Shepard at that time had children, and the word “heirs” was clearly intended to apply to them.
The provision in the Abbie A. Patrick deed still more clearly shows the intent. It reads:
“And it is hereby provided and the intention of this conveyance is declared to be that the said party of the second part shall have the use and possession only of the premises above conveyed, but not the power or right to sell the same, and after his decease the said bargained land and premises shall descend to the heirs of the aforesaid Shepard L. Howard.”
It will be noticed that the language in both deeds, above quoted, immediately follows the description, and forms a part of the granting clause.
In seeking to reach the intent of the grantors, we may take into consideration the fact that they were here conveying to their brother the interest they had acquired in this property as heirs of their father. It was not a matter of purchase and sale. It was doubtless for this reason.that the form of quitclaim instead of warranty deed was used.
I cannot read these deeds as an entirety, having in mind the extraneous circumstances above stated, without reaching the conclusion that the intent of the grantors to convey a life estate to their brother, with remainder over to his heirs, is clearly shown.
It seems useless to cite authorities to sustain this view. Any effort to harmonize the holdings of this or other courts, where somewhat similar questions were presented, will but lead to confusion. All, however, seem to agree that such a construction should be had as will give effect to the intention of the parties, and that such intention, if it' can be ascertained, should not be defeated by a strict technical construction of the form of the conveyance adopted.
Neither of the counsel cite our holdings construing somewhat similar provisions in 'wills. It may well be said that they are not applicable. In a deed it would seem that the parts inserted in writing in the printed form have received the special attention of the person executing it. In a will, which is all written, this presumption could not well be said to apply to any one provision more than another.
One other question must be considered. Defendants urge that plaintiffs are barred from recovery by the statute of limitations. Shepard L. Howard did not die until August 25, 1918. Plaintiffs, were not entitled to entry and possession until that time. In Lowry v. Lyle, 226 Mich. 676, it was held (quoting from the syllabus):
“Adverse possession by or under the life tenant did not commence to run against the remaindermen until their right of entry and possession accrued at the death of the life tenant.”
The judgments in each of the cases should be reversed, with costs to appellants, and new trials granted.
McDonald, C. J., and Clark and Wiest, JJ., concurred with Sharpe, J. | [
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Sharpe, J.
On February 18, 1919, C. J. McElheny entered into a contract with Abner M. Moon, the then drain commissioner of Cass county, wherein he agreed to construct what, is known as the Onen & McCoy drain and complete it on or before July 1, 1919, for the sum of $16,684. It also appears that he did some work in constructing and repairing bridges over the drain, the price or value of which does not clearly appear. The contract work was completed by McElheny, though not within the time fixed, and accepted by the commissioner. No question is raised as to the character of the work performed. It clearly appears that Moon issued'orders on the drain fund to McElheny in excess of the sums due him, the amount of such excess being in dispute.
The estimated cost of the drain was $23,766.56. This was spread on the property in an assessment district fixed by the commissioner. This district included the city of Dowagiac, upon which one-tenth of the assessment was levied. Its collection was enjoined by the circuit court of Cass county. The sums collected were turned over to the treasurer of the county. He has paid out of this fund $8,500 on contract orders and $2,136 on bridge orders. The board of supervisors directed that no other orders be paid, and the balance of the money in the fund has been appropriated by the board and used for other purposes.
The plaintiffs are the holders for value of contract orders for $10,960, and bridge orders for $1,745, drawn by the commissioner on said fund to the order of McElheny. Payment thereof was demanded of the treasurer, and refused. They petitioned the circuit court for a mandamus, commanding the defendant, the present drain commissioner of the county, to spread an additional tax on the assessment district to pay such, orders. They here review by certiorari an order dismissing their petition.
The taxpayers in the assessment district cannot be required to pay any more than the actual cost of the drain. This would, of course, include the necessary bridge work and the expense incident to the proceeding. It may be more or less than the estimated cost thereof. If more, it may be collected under the provision in 1 Comp. Laws 1915, § 4913, construed by this court in Nash v. Robinson, 226 Mich. 146-148. It may include the shortage, owing to the collection of the tax levied on the property in the city of Dowagiac having been enjoined. But, until the amount which may legally be reassessed has been determined, the defendant is under no legal obligation to make an additional assessment. The taxpayers cannot be required to again pay the amount of the fund which it is claimed has been used for other purposes by order of the board of supervisors.
In our opinion, the plaintiffs have mistaken their remedy. Mandamus will only issue against, a public official in such cases to compel the performance of a clear legal duty. We are impressed that, if plaintiffs have a remedy, it is by bill in equity, in which an accounting may be had as to the amount yet legally due .for service performed by McElheny under his contract and for bridge work, the cost of the drain determined, the amount of the reassessment fixed, the action of the board of supervisors in using for other purposes a part of the money collected, and of the treasurer in permitting it to be drawn out, considered, and a determination had as to the ratable share of the then balance of the moneys in the fund to which the plaintiffs and any others who may hold orders issued against the fund are entitled. In such a proceeding, all those in any way interested, or whose action, official or otherwise, will be affected by the decree, should be made parties.
The writ of certiorari is dismissed, without prejudice, with costs to defendant.
McDonald, C. J., and Clark, Bird, Steere, Fellows, and Wiest, JJ., concurred. Moore, J., did not sit. | [
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] |
Bird, J.
This is an action of ejectment. Plaintiff had verdict at the hands of the jury. Defendants assign error.
The facts appear to be that plaintiff, Perry Austin, purchased, in 1906, a lot on the north side of Walled Lake, in Oakland county. There is a public highway which skirts around the north end of the lake at this point, and it is so situate that it leaves a narrow strip of land between the highway and the high water mark. The south line of plaintiff’s lot extended only to this highway, but when he took possession of his lot he also took possession of the narrow strip between the highway and the water. His claim is that his acts, conduct and claims have been such during the intervening time of 16 years that he has acquired title to the same by adverse possession.
Beside the description of this parcel the declaration contained the description of another parcel, a narrow strip of land on the east side of plaintiff’s lot, which he claimed the defendant, McLa-in, had wrongfully taken possession of. During the progress of the trial it was disclosed by Mr. McLain, upon cross-examination, that he did not claim to own this strip of land on the north side of the highway, as described in the declaration. The concession eliminated this description, and left the contest on the narrow strip on the south side of the highway.
McLain owned the lot immediately adjoining the plaintiff’s lot on the east. Soon after purchasing it, in 1920, he lost his house by fire, and he built two cottages on the lot on the north side of the highway and one cottage and a garage on the land south of the highway. In doing this he located the house and garage so far west that they were partially upon plaintiff’s land, as is claimed. Plaintiff made a demand that he remove them. He refused, and this lawsuit resulted.
The survey shows that if the east line of plaintiff’s lot were projected to the water’s edge, a portion of defendant’s cottage and garage was on plaintiffs land. There cannot be much question about this line. Plaintiff and McLain’s predecessor renewed the fence several years ago, and from the testimony it appears that that fence has existed about 85 years, and has been recognized by McLain’s grantors as the true line. McLain’s lot until recently was described on the south by the highway, but in recent conveyances it has been extended to the water. As a matter of fact he has no record title of any value of that portion lying between the highway and the water.
Defendant’s principal claim is that the court should have directed a verdict for the defendant. He asserts that the proofs are not sufficient to submit to a jury. The proofs show that plaintiff, at the time of taking possession of his lot on the north side of the highway, or soon after, took possession of the narrow strip on the south side of the highway; that he cleaned up the shore, mowed the grass and weeds each year, set out trees, trimmed them, cut up trees that had blown down, built a dock, and paid the taxes. He did these things under a claim of ownership. No one interfered with his possession for 16 years. We think, under these circumstances, the court was well within its authority in submitting to the jury the question as to whether plaintiff had acquired title to the same by adverse possession.
Counsel further complain that under the verdict of the jury they are not advised how much of the narrow strip lying between the highway and the water was owned by plaintiff. Plaintiff’s counsel suggests that he is not concerned in how much plaintiff owns, that it is enough for him to know that his house and garage in part are on plaintiff’s land. The declaration describes the land in controversy and the proofs in the case apply to all that part of the land in front of his lot. We think there should be no trouble about this. The trial court submitted the question of fact to the jury in a very lucid charge, and the jury have found for plaintiff, and defendant must be content with the finding.
The judgment is affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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WlEST, J.
Defendant owned a dwelling house in the city of Flint. In February, 1918, plaintiff found the house vacant, took possession without consulting-the owner, and started to keep boarders and roomers. She soon learned the name of the agent of the owner and paid rent. This brought about the relation of landlord and tenant although no lease or other agreement was made. In December, Í919, she was cleaning some rooms on the second floor above the basement, went out on a rear porch, 18 feet above the ground, to empty a dustpan of soot, placed a hand on the porch rail to steady herself and tossed out the soot. The railing gave way and she fell to the ground, receiving serious and permanent injury. She brought this suit in tort against the owner, claiming he knew, or should have known, of the dangerous condition of the porch railing and did! not repair the same. At the conclusion of the proofs the trial judge entered judgment for defendant, evidently basing decision upon the cases of Burtis v. Davison, 199 Mich. 14, and Kuyk v. Green, 219 Mich. 423. Plaintiff is here by writ of error.
The declaration appears to plant right of action upon breach of duty, arising out of contract relations, and upon fraudulent concealment of the condition of the premises, although there is also a general allegation of duty on the part of the owner to keep the premises in repair and of his failure to do so. Plaintiff invokes the following provision of the State housing law: “Every dwelling and all the parts thereof shall be kept in good repair by the owner.” * * * Act No. 167, Pub. Acts 1917, § 71 (Comp. Laws Supp. 1922, § 5180 [73]). This law, in force in cities having a population of 10,000 or more, abrogates the common-law rule stated in Fisher v. Thirkell, 21 Mich. 1 (4 Am. Rep. 422), and Petz v. Voigt Brewery Co., 116 Mich. 418.
Plaintiff was a trespasser when she moved in the house, but, when she paid rent to defendant’s agent, she became his tenant. Plaintiff could not maintain an action of tort for breach of any contract duty resting upon defendant, for she had no such contract with him and, if there had been a contract requiring defendant to keep the premises in repair, a breach thereof would not admit of an action of tort. Defendant did not induce plaintiff to rent the premises by fraudulent representations or by any concealment of the defective condition complained of, for she went into possession without the knowledge of the owner. If plaintiff has any right to recover damages in an action of tort it is because the statute of 1917 required defendant to keep the premises in repair. This, of course, imports that the need of repair in fact existed, was known to defendant, or his agent having charge of the premises, or should have been known had reasonable supervision been exercised in obedience to the statutory mandate and of neglect thereafter to make repair. Such a right of action is bottomed upon negligence arising out of a failure to perform a duty imposed by statute. The duty in such a case is ultra contract, and as soon as there is a tenant in possession of the premises, the statute fixes the duty of the owner, and for failure to obey he is negligent per se, and if such negligence is the proximate cause of injury to the tenant he is liable in damages in an action of tort.
We do not pass upon the effect of the statute in case of contract with reference to repairs. The question here presented was not raised in the Kuyk Case, and the statute was not in force at the time of the accident involved in the Burtis Case.
In behalf of defendant it is said the housing law is a penal statute and cannot be invoked by plaintiff as a basis for exacting civil accountability from defendant. The statute imposes a specific duty, and if the negligent failure to perform such duty is the proximate cause of an accident to the tenant civil accountability may be exacted of the owner.
We do not pass upon the question of whether the declaration, by reference, should plead the statutory duty, as the point is not argued or raised upon this record. This record does not show that the housing law was mentioned at the trial. The declaration does not mention the statute. The trial judge, in directing a verdict for defendant, made no mention of the statute. The plaintiff, in this court, urges right of action by virtue of the statute, and defendant denies any such right, but does not make the claim that the point is here raised for the first time.
We think the learned circuit judge was in error in directing a verdict in favor of the defendant, and the judgment is reversed and a new trial granted, with costs to plaintiff.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Fellows, J.
This case has been here before and will be found reported in Freeman v. Millen, 225 Mich. 271. The facts and claims of the parties are there stated and need not be here detailed. We there held that the verdict of the jury as to the items involved in the sale of the house in Ann Arbor was not so clearly against the weight of the evidence as to justify a reversal on that ground, but that the testimony showing plaintiff’s employment as an attorney to go to Chicago, the services performed by him and their value, and the amount of his expenses were not disputed by any competent testimony and, therefore, the verdict disallowing such claims was against the undisputed and overwhelming weight of the evidence and for that réason reversed the case and sent it back for a new trial. Another trial has been had, the third one, resulting in a verdict for defendants in a small amount upon their claim of settoff. On the present trial defendant Homer C. Millen was sworn and denied that he authorized plaintiff to perform the professional services or incur the expense incident to the Chicago trips. There are a large number of assignments of error but in the main plaintiff’s contention is that he was entitled to a directed verdict for some or all of his claims and that the verdict is against the overwhelming weight of the evidence. We do not, however, overlook any of the assignments of error but need not take up each one separately.
After the case was remanded plaintiff moved to refer the case to a referee under the provisions of the judicature act (3 Comp. Laws 1915, § 12639 et seq.). This motion was denied, and quite properly so. Defendants objected to the order; there had been two jury trials, presumptively upon a proper demand, and the case did not involve the examination of long mutual accounts. It is true that plaintiff amended his bill of particulars by setting up in detail his account for services and expenses preceding the deal for the Ann Arbor property, having in his original bill of particulars set up the items charged for after that date. But no claim was made by defendants that the items appearing in the amendment were not performed or expended, the sole defense to them being that a full and complete settlement was had when the Ann Arbor property was purchased. , An instrument signed by all the parties was produced containing the following provision:
“Whereas, Homer C. and May Millen have just purchased house and lot of A. F. Freeman, Ann Arbor, Mich., known as No. 1108 Hill street, of said city of Ann Arbor, and that on account thereof all matters of account or differences heretofore existing between said Homer C. and May Millen and A. F. Freeman' of every name and character, have been paid and adjusted and on account of the consideration purchase price of said house and lot being paid this receipt is entered into by each of the parties in duplicate to constitute a receipt in full and whereby each by their signatures ‘pass receipts’ to each other and all done in friendly, amicable adjustment of all said matters of accounts up to date.”
The issues were not complicated and the case clearly one for a jury.
We do not discover any prejudicial error in the admission or rejection of testimony. Plaintiff was allowed a wide latitude in the introduction of testimony and this required some liberality in the admission of defendants’ testimony to meet the case made. The trial judge gave all of plaintiff’s requests he was entitled to and it is quite possible that some which were given went further in plaintiff’s favor than they should have gone, but plaintiff can not complain of this. The charge is criticized aliundi that it was so involved as not to be readily understood by the jury, but in the main it consisted of the giving of plaintiff’s requests. Plaintiff was not entitled to a directed verdict nor to judgment non obstante veredicto; upon every material question in the case the testimony of the parties was in direct and irreconcilable conflict.
Upon the important question in the case, i. e., the condition of the contract when it was signed, the present record is more favorable to defendants than when the case was here before; it contains the testimony of Homer C. Millen corroborative of that of his wife that their duplicate contract was. in the same condition when signed as when presented in court and that they understood from plaintiff that his duplicate was the same as theirs when they signed it. Plaintiff, as upon the other trial, was corroborated by the opinion of his handwriting expert. We then held that upon this branch of the case the verdict was not against the clear weight of the evidence and upon the present record we adhere to such holding.
But it is insisted by plaintiff that notwithstanding the testimony of Homer C. Millen that he did not employ plaintiff to make the trips to Chicago which appears in this record but which was not in the record when the case was here before, we should upon this branch of the case hold that the verdict was against the clear weight of the evidence. Upon the other record not only was plaintiff’s testimony undisputed but it was corroborated by the surrounding circumstances; as we pointed out defendants were vitally interested in the deal with Thompson; if it went through it meant a sale of their stock. It is now pointed out in corroboration of the testimony of defendant Homer C. Millen that plaintiff was also vitally interested in the deal going through, that it also meant the sale of his stock for upwards of $7,000; it is also pointed out that plaintiff was then in the employ of Thompson and on one of the trips made a settlement with him and received $235, and that the final contract made by him with Thompson was so disadvantageous to defendants that they repudiated it in its entirety. In Pachuczynski v. Railway, 202 Mich. 594, where the question before the court was whether the verdict was against the clear weight of the evidence, this court said:
“But in the determination of the question in this court, it must be borne in mind that this court is not the trier of the facts. We cannot invade the province of the jury. It must also be kept in mind that the trial judge heard and saw the witnesses, was in a position to judge of their credibility, and their mental capacity; that the presumption that he correctly measured them must be considered, and that we may not set aside a verdict unless it is manifestly against the clear weight of the evidence.”
Plaintiff is in this court as a litigant and his testimony must be measured by the same yardstick as is used to measure the testimony of other litigants. As so measured we can not say that the verdict is manifestly against the clear weight of the evidence.
The judgment must be affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Steere, J.
Plaintiff’s husband, Volney F. Wilcox, met his death on November 29, 1928, through being caught in a gravel slide while in performance of his duties as a superintendent on a road construction contract in Lapeer county upon which defendant Wilcox Brothers, a partnership, was engaged. Wilcox Brothers carried accident insurance with the defendant Southern Surety Company under the employers" liability law. Plaintiff filed a claim for compensation for her husband’s death with the commission of the-department of labor and industry, and on hearing-before a deputy commissioner she was awarded the maximum death compensation under the act of $14. per week for 300 weeks and $200 for funeral expenses, which was affirmed on appeal to the full commission. The defendant insurance company seeks review and reversal of said award by certiorari.
Appellant’s most serious contention is that deceased was not an employee in contemplation of the act because he was not receiving wages irrespective of profits, and therefore not protected by its policy. The facts are little in dispute. It was shown that in August, 1923, the copartnership of Wilcox Brothers-consisted of the three brothers, Frank P. Wilcox, Asa N. Wilcox and Volney F. Wilcox. Frank and Volney Wilcox were the active members of the partnership in their road building and had been associated together in that business for practically three years. Asa went into partnership with them in August, 1923. He took no active part in the construction work. Frank said his special benefit to the partnership was “the use of his name in getting this particular job.”’ Asa testified he was a “silent partner,” his brothers had lived at his house during that time and the three of them went over the business together while the work was in progress. He mentioned his greatest responsibility as arising “when I had to get money— had to get out and hustle for it.”
About October 12, 1923, the Southern Surety Company issued a policy insuring the Wilcox Brothers against liability in connection with their road work imposed upon them by the workmen’s compensation law, using their standard form of policy which was on file with and had been approved by the department of labor and industry.
Paragraph 2 of section 7 of part 1 of the workmen’s compensation law, as amended (Act No. 173, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 5429]), provides :
“Every person in the service of another, under any contract of hire, express or implied, including aliens (including working members of partnerships, receiving wages irrespective of profits from such), and also including minors who are legally permitted to work under the laws of the State, who, for the purpose of this act, shall be considered the same and have the same power to contract as adult employees.”
Appellant’s attorney stated, “I know the man was killed by reasonable certainty while engaged upon his duties as foreman for Wilcox Brothers.” Frank Wilcox testified that deceased acted as a foreman and superintendent of construction of the grade, and in his own absence superintended the whole thing. He was allowed $50 per week as compensation for his services. That the agreement between them was witness and deceased could each draw for their services $50 a week while the contract was being performed. If either drew more than that amount it would be charged against him as an overdraft for wages and if he drew less he would receive credit for it when the profits would! be divided, but they had made no profits up to the time of his brother’s death although he thought they did later. Asa Wilcox, who was not a working partner for wages, testified that deceased gave all of his time to the work, the agreement was that the two brothers were to have $50 per week “for salary” to do as they pleased with, that they drew as their necessities required but he did not think each man drew that much on an average as there had been no profits; that he himself procured the insurance policy from the surety company and gave them an estimate of the pay-roll for the period, including in it the wages of his brothers. Frank Wilcox testified that he made up the pay-roll figures for appellant as a basis of the policy and paid “for that premium.” There was ample evidential support for the commission’s finding that deceased was a working member of the partnership receiving wages irrespective of profits.
It is further contended for appellant that deceased
“by his own act took himself without the terms of the compensation act * * * by causing the insurance policy by which his copartnership was insured by the Southern Surety Company to be so drawn as to eliminate himself from its coverage.”
This claim is based on the testimony of a clerk of appellant’s casualty department in its branch office at Detroit and a letter written by her. She testified it was her duty to carry on correspondence with insured regarding policies in her department, that she at one time had some discussion with Volney Wilcox relative to the matter and later wrote them a letter. No reply was received to it by appellant. It is admittedly the letter Frank Wilcox testified he found opened amongst some papers after Volney’s death. It is as follows:
“November 1st, 1923.
“Wilcox Brothers,
“Imlay City, Michigan.
“Attention of Volney Wilcox.
“Sir: Re Compensation Insurance Policy No. VU-017853. We are inclosing herewith indorsement to be attached to your compensation policy above referred to. You undoubtedly will recall that we took this matter up with you while in the office recently when you advised us that it was your desire to cover the employees only.
“Very truly yours,
“Vice-President.”
The inclosure with the letter is as follows:
“Indorsement effective October 12,1923. Not valid unless indorsed by duly authorized agent. It is hereby understood and- agreed that the copartners named in below mentioned policy, are excluded from the coverage thereunder, subject otherwise to> all conditions,, agreements and limitations of the policy as written except as herein specifically provided.”
Attached to it and forming part of policy No. UC-017853. Issued by the Southern Surety Company to Wilcox Bros, of Imlay City, Michigan. Indorsed, Detroit, Michigan,' this 1st day of November, 1923. Southern Surety Company, Detroit branch.. Authorized agent, C. C. Cobb, President. We find no evidence that this indorsement ever was in fact attached to the Wilcox Brothers’ policy or of anything-said or done in regard to it by any member of the firm before deceased’s death beyond the fact that the letter inclosing it had been received and apparently opened by him. From his receipt of this so-called indorsement, or rider to be attached to the policy after it had been issued, and letter stating that while in appellant’s office he had advised them “it was your desire to cover the employees only,” and the fact no reply was received, it is claimed that deceased “had elected to not come under the provisions of the said workmen’s compensation act.”
Appellant’s ' universal workmen’s compensation policy contains the following:
“It is agreed that all of the provisions of each workman’s compensation law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compen sation or other benefits for any personal injury or death covered by this policy, while this policy shall remain in force.”
It obligates the insurer to:
“Pay promptly to any person entitled thereto, under the workmen’s compensaton law and in the manner therein provided, the entire amount of any sum due, and all instalments thereof as they become due. * * * To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.”
Section 3, Part 4 of the compensation law (2 Comp. Laws 1915, § 5475) provides as follows:
“Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of this act, and provisions thereof inconsistent with this act shall be void.” * * *
Attached to and forming part of the policy, as stated over the signature of appellant’s president, is a so-termed “Indorsement — universal compensation policy —Michigan,” citing the Michigan workmen’s compensation act with its various amendments and first saying:
“Insofar as the Michigan workmen’s compensation law as above cited and defined applies to any injury or death covered by the policy to which this indorsement is attached, such policy is amended in accordance with the terms of this indorsement.”
Several pages of the terms of that indorsement follow, providing amongst other things:
I
“(f) That it will file with the industrial accident board, at Lansing, Michigan, at least ten days before the taking effect of any termination or cancellation of this contract or policy, a notice giving the date at which it is proposed to terminate or cancel this contract or policy; and that any termination of this policy shall not be effective as far as the employees of the insured covered therebjr are concerned until ten days after such notice of such proposed termination or cancellation is received by the said industrial accident board;
“(g) That all the provisions of this contract, if any, which are not in harmony with this paragraph are to be construed as modified hereby, and all conditions and limitations in said policy, if any, conflicting herewith are hereby made null and void.”
The retroactive indorsement upon which appellant relies excluding all copartners from coverage, while not a totai termination or cancellation of the policy, canceled and terminated all rights of working partners for unconditional wages, materially altering the contract. The following conclusion of the commission is not without merit:
“The indorsement providing that members of the copartnership, who were receiving wages irrespective of profits, shall not be covered by the said policy is purely an attempt on the part of the respondent insurer to have the employer attempt to waive and abridge a portion of the law, which it had accepted, and under the indorsement last above quoted becomes clearly null and void, said policy agreeing, as above stated, to cover all employees.”
On this record taken in its entirety we conclude there is evidence to support the commission’s finding of facts and, with it as a basis, we find no error of law in its award, which will stand affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
The primary purpose of this bill, contingent on which supplemental relief is asked, is to set aside a quitclaim deed given by complainant to defendant Constanty Zyskowski on January 27, 1908, of the N. E. % of the N. W. % of section 23 in township 43 north of range 35 west, located near Iron River, in Iron county, Mich., on the ground that the same was obtained by fraud and without sufficient consideration; the contention being over mineral rights which .had been excepted in a previous deed of the same property.
Private ownership of this. 40 began with one Honey well, who held title to it and an adjoining 80 acres under a patent from the United States government dated May 4, 1891. He sold the entire 120 acres in 1895 to complainant, who stated that he believed he paid Honeywell $300 for it, by assigning to him an interest-bearing certificate of deposit for that amount in the Marquette County Savings Bank, or some bank in Calumet. A canceled certificate of deposit for $200 issued by the Marquette County Savings Bank to complainant and indorsed by him to Honeywell was subsequently identified and introduced in evidence. The conveyance of the 120 acres from Honeywell to complainant bears date July 17, 1895; the stated consideration therefor being “one dollar and other valuable considerations.”
On August 9, 1895, complainant sold the 40 acres in question to defendant Constanty Zyskowski for the sum of $275, conveying the same by warranty deed on that date, “with the mineral rights excepted and reserved.” On October 14, 1895, he sold the remaining 80 acres of his purchase from Honeywell to Joseph Konwinski, of Iron River, for $550, giving a warranty deed therefor without any reservations. On August 21, 1907, defendant Constanty Zyskowski gave an option for a mining lease of this 40 acres to defendant Gleason, who, with others, had formed a pool for the purpose of taking such options and exploring the lands covered by them for iron ore. On January 27, 1908, complainant, then of New Kensington borough, Pa., gave a quitclaim deed of this 40 acres, without reservations, to Constanty Zyskowski, for an expressed consideration of $25, which was recorded on February 10, 1908. On June 27, 1908, Constanty Zyskowski and Rosalie, his wife, conveyed by warranty deed- an undivided one-fourth of the mineral rights in said 40 to their son, defendant Zygmunt Zyskowski.
Defendant Gleason, with others of the pool which he had formed, organized the D. Gleason Exploration & Mining Company, to which corporation the option taken in the name of D. Gleason was assigned. On February 20, 1909, defendants. Constanty Zyskowski and Rosalie, his wife, together with defendants. Zygmunt Zyskowski and Laura, his wife, executed and delivered to the D. Gleason Exploration & Mining Company a mining lease according to the terms of the option previously given. On March 1, 1909, the Gleason Exploration & Mining Company agreed to pay to defendants Frank Jackson and Molly Erickson each 1^2 cent royalty upon each ton of ore mined and shipped from this 40 acres, and on June 1, 1910, said Exploration & Mining Company sublet the premises for mining purposes to defendant Davidson Ore Mining Company, under which sublease the last-named company developed and is operating an iron mine upon said property.
Complainant is a native of Russian Poland, and came to the United States when 23 years of age. He studied for the priesthood, receiving his education both in Europe and the United States. About a year after his arrival in America he was ordained a priest of the Catholic Church at Marquette, Mich.
Defendants Constanty Zyskowski and his wife, Rosalie, were also born in Russian Poland, are without education, having never received any schooling, and neither of them can read or write either in Polish or English. About 30 years before this litigation arose they emigrated from Poland with five young children, coming directly to Iron River, where they settled and resided continuously, except for a few months spent in Northern Wisconsin, until 1911, when they moved to Racine, Wis. Constanty’s life work was that of a common laborer in the woods, upon the railroad, and at other unskilled employment. He was 73 years of age at the time of the trial. ' Rosalie thought she “must be about 60 years old.”
After complainant’s ordination to the priesthood he was successively in charge of different Catholic churches in the north country, at Ironwood, Menominee, Eagle Harbor, and Red Jacket, covering a period of 3 or 4 years prior to his being sent to Iron River in' 1895 on a temporary mission, where he remained for a short time, and during the summer of that year he was transferred to Iron River in charge of the Polish Catholic parish of that place. The Zyskowskis were of the Catholic faith and parishioners under him while he was stationed there. It was while stationed at Iron River that complainant bought the 120 acres of land from Honeywell and sold the 40 in question to Constanty Zyskowski.
. The issue as offered by the pleadings and presented by the proofs of the contending parties is correctly and clearly stated in the opinion of the trial court as follows:
“The substance of the complainant’s claim is that his original bargain with Constanty Zyskowski contemplated the reservation by him of the ores and minerals and the conveyance to Zyskowski of the surface estate only; that in carrying out the bargain as it was understood by both parties the clause reserving the ores and minerals to the complainant was necessarily and properly inserted in the warranty deed and was known to both parties to be therein when the deed was delivered to ■ Zyskowski; that the quitclaim deed was executed and delivered by the complainant without consideration and in complete ignorance of the fact that the land had any mineral value; that the execution and delivery of the quitclaim deed was solicited by Constanty Zyskowski and by members of his family under his direction; that when he and members of his family solicited the execution of the quitclaim deed, he and they actually knew the land had mineral value, and that he and they not only failed to disclose that fact, but falsely and fraudulently represented the land had no mineral value; that, when he took the option for a mining lease of the property on behalf of him self and the other members of the Gleason pool, the defendant Michael Gleason had actual, as well as constructive, notice of complainant’s ownership of the minerals; that he knew also of the alleged fraudulent methods pursued by the Zyskowskis to obtain the quitclaim deed, and that all the members of the Gleason pool are, and the corporation organized by them 'is, through Michael Gleason, chargeable with like knowledge. * * *
“The substance of defendant’s claim is that the bargain between complainant and Constanty Zyskowski -contemplated the conveyance to" the latter of the fee of the land; that at, or before, the execution of the quitclaim deed, Constanty Zyskowski did not, nor did any person who, under his direction, or in his behalf applied to the complainant to execute the quitclaim deed, know the land was, in fact, valuable for mineral, or represent to the complainant, it had no mineral value; and that the inclusion of the mineral exception in the warranty deed was due to a mistake, to correct which the quitclaim deed was executed; but that if the complainant caused the mineral exception to be written in the deed, or, knowing it was in the deed, delivered the same without notice thereof to the Zyskowskis, it was in violation of the agreement between the parties and constituted a fraud. upon the rights of the Zyskowskis.”
This controversy in all its aspects turns on pure • questions of fact. By the two conveyances complainant gave defendant Constanty Zyskowski, the legal title in fee simple absolute passed to and rests in the latter, subject only to the mining lease he subsequently gave. Prima facie the deeds establish his ownership. As they read, there can be no question touching their meaning, force, and effect. In any event, defendant Gleason and the Gleason Exploration & Mining Company held their lease by an unimpeachable, as to them, record title, unless it be shown they were in privity with Zyskowski in fraudulently obtaining from complainant the quitclaim deed which he now seeks to have set aside; and whether they were innocent lessees would also be a pure question of fact, when reached, with burden of proof resting on complainant.
Complainant’s theory and claim is that from the time he purchased the land of Honeywell in 1895 he held title to and was the owner of all mineral rights in it until 1908 (which presumptively and on the face of the records is true), and, although he by the latter ■deed perfected prima facie a complete legal title in Zyskowski, he was induced to do so by false representations, and therefore, as between the two, retained all' equitable title to the mineral rights; that the quitclaim •deed was voidable as to him, and should be set aside because obtained by fraud, which presumptively and on the face of the records is not true, and therefore the burden of proving - the fraud rests upon him.
Complainant only remained at Iron River during the summer of 1895, and it is quite evident that during his short pastorate in that parish he was active in temporal as well as spiritual affairs. He talked with his parishioners and others about land matters, stated he was going to buy land and bring in Polish people to settle upon it, endeavored unsuccessfully to purchase several pieces of land from different parties, took a Polander named. Drozdowski, who had brought his daughter from Interior to Iron River for her first communion, around the country in a rig to look at different places, trying to sell him a farm, and offered to sell land to others. From what he was shown to have said and done in that direction defendants’ counsel contended that he acted as an agent in securing this 40 for Constanty, and was by reason of acting in such capacity precluded from reserving to himself in the transfer of which he had charge title to mineral rights in the property. Whatever random talk might have been indulged in, we fail to find any sufficient proof of an agency. Regardless of what he said, all that complainant actually did in real estate while located at Iron River was. to buy Honeywell’s 120-acre homestead for $800 and sell it to a couple of his parishiohers for $825. Constanty says of the matter:
“I stated to him I would like to buy a 40 somewhere, if I could. * * * He said, ‘Don’t buy anywhere; I will buy for you’; * * * that he has lands. * * * He showed it me first — he called me first and showed me it and sold it to me. * * * He did not sell it to me honestly.”
As to the actual bargain of purchase and sale upon which the minds of the parties met and from which the warranty deed with a mineral reservation resulted, the testimony of the contracting parties, who alone have first knowledge, is in direct conflict. Complainant upon his direct examination went into the subject of his mineral reservation and testified positively that Constanty solicited complainant to sell him the 40, which he said he wanted to buy for agricultural use, to raise crops upon, and for a home in his old age; that complainant was reluctant to sell it, but finally told him, “I will, sell you but the surface, and I'will reserve the mineral rights,” and Constanty said “he hardly thought there were any mineral rights,” to which complainant replied, “Well, if you want to take the surface, all right, and, if not, I don’t care to sell it.” On the other hand, Constanty testified positively that he just bought the land, and understood he was buying the whole title; that complainant never said anything about keeping an interest in the land or reserving any mineral rights, and had told him, “Don’t buy from the English people, because they will cheat you,” and witness did not consult any one else, but relied upon complainant to do everything necessary, because he was a Polish priest, and “made a bargain with me, and he said, ‘You will have a remembrance after me’ ”; that he paid the money about two weeks before he got his deed, which complainant attended to and had prepared for him, and looked after the title and taxes, “and did it all for me,” bringing the deed to Constanty at his home, and “told me not to show it to any one, only lay it aside or put it away; * * * don’t show it to anybody, because I have done this thing for you well, or right”; that he gave it to his wife, who put it away, and he knew nothing of any defect or mineral reservation in it until some 13 years later when a Mr. Jabkson came to him and he gave an option to Mr. Gleason. About that time the fact that there was a mineral reservation in the deed by which he held title was asserted, which he at first denied, and the deed which his wife, Rosalie, had put away in a trunk at the time complainant delivered it to them, in 1895, was hunted up, when it dawned upon Constanty that the Father was right when he said, “You keep this, and you will have a remembrance after me.” He then went with the daughter to consult Mr. Lott, an attorney, who assured them there was a reservation in the deed, hnd verified it as of record by consulting the register 'of deeds, advising them “to hunt up Father Mtynarczyk,” which was subsequently done, and the quitclaim deed in question obtained from him.
Although iron ore had been discovered in the vicinity of Iron River before 1905, and there were a few mines in that locality, no discoveries of ore are shown to have been made near the Honeywell homstead, and little, if. any, value appears to have been attached to the mineral rights in it by any of these parties. Honeywell, who had occupied it as a homestead for a number .of years, sold his entire interest in it to complainant for $300. Zyskowski stated he was buying the 40 for a farm, and would not have attached any additional value to it on account of mineral possibilities. Complainant stated that there was no outcropping on the surface of the 120 acres, and nothing to indicate a difference in the 40’s, and he thought in a general way they were alike. In reply to the question why he reserved the mineral rights in the deed of this 40 he simply said, “I wanted to.” Ashed why he put a mineral reservation in Zyskowski’s deed and left it out of Konwinski’s deed, he answered “Because I thought while I was at Iron River — and at the time of Konwinski’s deed I was at Grand Marais.” ,It was shown that he had unsuccessfully tried to sell this 40 in its entirety for $275 to a merchant of Iron River named Kelly shortly before he sold it to Constanty, and that not long after Constanty bought it he sold the other 80 acres .without any reservation' to Konwinski at the same price per 40 as he had sold to Constanty.
Some light is thrown on just why and how he came to insert the mineral reservation in the Constanty deed by the testimony of Kelly, who had refused to buy the 40 at the same price it was sold to Constanty. Kelly had lived at Iron River since 1882, and was then running a general store there in partnership with his brother Patrick. Honeywell was a customer at their store, and at a previous time when he had some trouble under a charge of setting out poison for cattle the Kellys became bondsmen for him, indemnified by a mortgage for $600 on his 120-acre homestead, which had not been discharged when Honeywell sold it. Kelly states that he first met complainant in church, and afterwards became acquainted with him; that, knowing complainant had tried to buy several other pieces of land about which they had talked, Kelly told him of the Honeywell homestead, and complainant bought it; that the first agreement was supposed to be $450, but later the price was cut to $300, and complainant came into their store one evening with a release of their mortgage which he asked them to sign, and in answer to some questions about the deal said, “I.will pay whatever you want; you sign it and your brother”; that his brother then refused, and later com plainant came into the store again with Honeywell, who owed them a bill of $68.02, which complainant promised to bring the money to pay that evening, and Kelly executed a release of the mortgage, but complainant did not come and pay the money as promised, and Kelly went to see him about it, when he offered to sell Kelly the 40 in question for. $275, which was refused, and Kelly then made a proposition that he would take the mineral rights in the three 40’s for the bill against Honeywell, but complainant told him he had sold the two other 40’s, and Kelly finally agreed to take the mineral rights of this 40 for the bill, because it was all he could get; that he then knew nothing about Zyskowski’s purchasing the land, and tried once or twice to get complainant to carry out his agreement to give him the mineral rights in it; that in a conversation between them when a justice of the peace named McRae was. present complainant asked how mineral rights could be reserved, which Kelly explained to him as best he could, and McRae (who drew the deed to Constanty) also explained it, but complainant left Iron River without ever giving Kelly the mineral rights or otherwise paying the Honeywell bill as he had promised. McRae died over a decade before this case was heard.
If this reservation was inserted in the deed surreptitiously, in violation of Constanty’s contract of purchase, and without his knowledge, it would be a fraud upon his rights whatever the object or circumstances were. It may be conceded that in making this purchase Constanty did not, so far as shown, take particular cognizance of the subject of mineral rights and values, and it is plain that then all counted them of little value when thought of. But, if he tells the truth, that no exceptions or reservations were mentioned, and he bought the land as men usually buy property, either real or personal, when nothing is excepted, and no especial qualifications or reservations are embodied in the agreement, such purchase was presumptively and by common understanding a purchase of the property in its entirety. Apparently acting on the thought which his conversations with Kelly and McRae suggested, complainant had the exception inserted, possibly with a then intent to make good his promise to Kelly, but, if it was surreptitious, unknown to Constanty, as he claims, and contrary to their agreement, it was palpably fraudulent.
This brings us to the question of his obligations in that transaction under the facts as shown and the relations which existed between him and Zyskowski. It is a general rule, as contended by counsel for defendants, that “only clear and convincing evidence can overcome the presumption that the written contract contains the ultimate agreement of the parties in consummation of their previous negotiations,” and that the ..burden of proof rests upon the party seeking to avoid the provisions of a written agreement on the ground of fraud, but an important qualification is recognized where confidential relations of the nature shown here exist and the parties are not on an equality. When such relations appear, it devolves upon the party accused of fraud to sustain his equitable rights by demonstrating that the relation was not abused. Manifestly these parties were not standing on a basis of equality nor dealing at arm’s length. Complainant was the pastor and father confessor of the Zyskowskis, and particularly had their confidence as such by ties of race, language, and religious faith in him as their spiritual adviser. They were uneducated and inexperienced foreigners, of the type which progresses slowly when transplanted to a new country, and from necessity or inclination clings to native language, customs, and habits of thought. At the time of this hearing Constanty Zyskowski and his wife, although they had lived in this country 30 years, were, apparently in intelligence and thought, much as when they came. They claimed to be, and were recognized by the court, as yet unable to understand or speak the English language, and testified through a.n interpreter. Complainant was an educated clergyman who had pursued his preparatory studies in two countries, and at the time of the hearing spoke nine different languages, including Chinese and Japanese, which he had acquired since leaving Iron River. While there he was in close and friendly relations with the Zyskowskis by reason of nationality and religion. He visited at their home, drank beer with Constanty, was supplied with eggs and milk by the wife, assured them that he would guard their interests, both temporal and spiritual, and cautioned them against people of other nationality. That they implicitly trusted and relied upon him seems established beyond question.
While perhaps slightly overdrawn as to the noble qualities of the Zyskowski family and the distance complainant had at that time traveled over the globe, we think the record sustains in its essentials the following statements and conclusions of the learned circuit judge who heard the ease:
“Constanty and Rosalie, his wife, were unlettered and inexperienced, but good, honest, hard-working, God-loving people, and the complainant was of their nationality and a Catholic priest. To show their implicit confidence in and absolute reliance upon the complainant nothing more need be said. It is inconceivable that these uneducated and inexperienced people dealt on a basis of equality with the complainant, who spent many years in school and college in Europe and America; who traveled over half the globe; who spoke nine languages; whose business experience and capacity was by no means ordinary, and, above all, was the pastor of their church and their confessor. It is impossible to believe they dealt with him with any feeling but that of respect, trust, and confidence, and it is equally impossible to believe the complainant could have entered upon and conducted the transaction without fully appreciating the relations of the parties, and that the Zyskowskis relied on him and him alone to see that what they bought and paid for was secured to them; and when he said to them, ‘I will buy for you; I am your priest; I will not cheat you,’ the burden should be on him, and not on them, to show what the transaction was; and, knowing they could not read, much less appreciate the effect of the language of the deed, and having said to them, ‘Lay this deed away; don’t show it to any one, because I have done this thing well, or right,’ the burden should be on him, when the deed is finally brought to light, to show it conveyed all that the Zyskowskis bought and paid for. In re Hartlerode’s Estate, 183 Mich. 51 (148 N. W. 774) ; Finegan v. Theisen, 92 Mich. 173 (52 N. W. 619); Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); Lockwood v. Lockwood, 124 Mich. 627 (83 N. W. 613).”
Fiduciary relations are not limited to technical, legal relations of agency, trusteeship, etc., from which they necessarily arise as a legal presumption, but outside of legal relations they may be shown to exist as a matter of fact, where special confidence and personal dependence for guidance is shown on one side with resulting superiority, influence, and control on the other. Where such confidence has been reposed and betrayed and such influence acquired and abused, equity will intervene to relieve. Thomas v. Whitney, 186 Ill. 225 (57 N. E. 808).
If the disposition of this case rested alone on the events at Iron River and turned more exclusively on the bare conflicting testimony of complainant and Constanty as to what transpired between them, although the confidential relations shown would demand close scrutiny, it would present a different aspect and give rise to greater misgivings, for the record indicates that the stake involved is a strain on the veracity of the interested parties; but subsequent events tend strongly to confirm Constanty’s version of the original agreement.
After leaving Iron River complainant changed his skies often, lived in many places, traveled in many countries, and saw the customs of many men, during which time he engaged in various activities foreign to and some at variance with his profession. After leaving Grand Marais he traveled for about a year in South America and Europe, returning to Detour, Mich., where he was in charge of a Polish parish for a time, when he again left Michigan. Since then he traveled about a year in China and Japan, and resided at different times in Chicago, Ill., Latrobe, New Kensington, and Pittsburg, Pa., New Brighton, Conn., Utica, N. Y., and Cleveland, Ohio, part of the time occupied in his clerical calling, and at other times engaged in other things. During these years he is not shown to have given any attention to this property, either to ascertain whether developments made since he left indicated any ore in its vicinity, or to learn if taxes were being kept up, or what the prospects were. It had apparently passed from his field of consciousness until an appeal was made to him by Zyskowski about 13 years later for a quitclaim deed to perfect his title to it. Complainant’s first reply, so far as shown, was an assurance that he claimed nothing and would give a quitclaim deed if desired, which he later did. He now makes the charge that this deed was obtained by fraud, and his case rests solely upon the recollection and veracity of himself and a Miss Kaszubowski, his secretary, as to the contents of certain letters written to him at least seven years before the trial of the case, none of which had been preserved or were produced. His testimony as to the false representations, contained in those letters is flatly denied by Constanty and those who wrote for him. They produce supporting letters from him; he none from them.
Just when correspondence on the subject began between these parties is somewhat in dispute. It was apparently some time in 1906 or 1907, and the witnesses agree in testifying to quite a number of letters being exchanged. Complainant testified that he replied to some of Zyskowski’s letters, and some he did not pay any attention to. Those from complainant preserved and produced by defendants (seven in number) are in Polish for the most part, though some English is used, and are without date, although supplemental written evidence of the dates of two of them appears. English translations were introduced in connection with the originals, conceded to be correct in the main, though the translators differed as to the exact significance of a few words or expressions of minor importance. - Four of these letters were written before the quitclaim deed was given. They are evidently a broken part of the correspondence, and the •order in which they were sent is a matter of inference. 'They are as follows:
'“Mister ZyskowsM:
“ Do not be afraid. . I will not trouble you nor will my heirs. If necessary I will give you a quitclaim deed to that. What else is new with you and how are the Poles getting along?
“Well wishing, Rev. Anzelm.”
’*Mister Zyskowski:
“In answer-to your letter for papers, I hereby state that they are not necessary, because neither I nor my heirs will demand anything from you. This letter you may keep and use as evidence.
“Sincerely yours, Father Mtynarczyk.”
Miss Kaszubowski, on cross-examination by defendants’ counsel, identified this letter as written by her from Buffalo, under general instructions from complainant, and commented, when questioned by complainant’s counsel, on the absence of any heading of place or date. A slip was later produced which Zyg munt Zyskowski testified he had cut from the top of the letter, to get the address in order to reply to it, which she identified and translated as follows:
“530 Wilson Street, Buffalo, N. Y.
“July 20, 1907.
“Father Zyskowski:
“You send to that lawyer T. Kennedy in Pittsburg your original deed and about two blanks quitclaim deed and he will fix that right.
■ “Those shysters 'in Iron River that made out the deed, of course don’t understand anything, and you. will again have trouble. Before a deed is placed on record it must first be examined by a good lawyer.
“If you wish I will sign that old stuff that you sent, me.
“Well wishing, Rev. Anzelm.
“I am laying sick in a hospital.”
“Father Zyskowski:
“Why don’t you want to send the original deed with description to the lawyer, so that he could look it over whether everything is in good order?
“I took him for the purpose that everything should be done well, so that you will not place any blame on me any more.
“Well wishing, Rev. A. Mtynarczyk,
“Phoenixville, Pa., R. F. D. No. 3.”
On the back of the letter is the following:
“In this deed, it ought to be inserted that I do quitclaim all mineral rights. Do you understand?”
In this letter, otherwise in Polish, the words “inserted that I do quitclaim all mineral rights” were written in English.
Complainant states that he first learned of a mine being opened on this land while he was a pastor at Utica, through a notice in a Polish paper published in Milwaukee which was called to his attention by an. associate. This was said to be in 1909. The three, remaining letters in evidence were evidently written subsequently, and contain no charge of misrepresenta tion or fraudulent inducement. It is urged that this should not be imputed against him, as they were only for the purpose of trying by friendly advice and persuasion to obtain some recognition of what he had done for the Zyskowskis and compensation for the same. One of these letters states that an attorney at Crystal Falls had written him two times about the Honeywell property, stating that abundant rich deposits of iron ore had been discovered upon it, advising as follows:
“And therefore hang well together, men [or stick well together, fellows], so’that some one will not cheat you. Surely if anything should come up, then please let me know, and I will yet defend you.
“You and Konwinski be prudent. Don’t let anybody take advantage of you. The lawyer bases his claim on the fact that Honeywell’s wife did not sign the deed tó me. But where could one search for her? I am giving him absolutely no information. I am your well wisher. I wish -you good health and all success.
“Rev. Anselm.
“I inclose envelope with address.”
An envelope produced in evidence and identified as the one in which this letter was received bore the postmark, “Utica, N. Y. Nov. 25, 1909.”
“Mr. ZyshowsTd:
“I heard there was some awful fortunes in this land. The lawyers in Crystal Falls are after me to take it away from you some way. Let me know about all this. If you have taken much money, then offer me something out of it too, because if the attorneys will give you trouble, then I will not defend you. Well wishing,
“Rev. Anselm.
“I inclose envelope for reply.”
On July 6, 1910, Joseph Zyskowski, Constanty’s son, received an undated letter from complainant in part as follows:
“Your kind letter received and contents carefully noted. I wish your papa would.have such good heart and give me something out of his fortune. All that he got through me. I’d pray for him in my holy sacrifice of mass. * * * How is your father and mother? They must be an old people. I know them- well to be a good sort of people, and I remember your sister. _ I pray for her soul. How is getting along Mr. Konwinski? He must be well off. * * *
“Sincerely yours, Rev. A. Mtynarczyk.'”
Aside from the one written by his secretary, complainant admitted all these letters were in his handwriting.
The undisputed evidence shows complainant did not act upon hasty impulse in executing this quitclaim deed. He testified that a desultory correspondence about it had been going on for over a year. He was fully advised from the start that the claimed defect in his original conveyance which he was asked to remedy was the mineral reservation. He had abundant time to investigate to his satisfaction and took the matter to his lawyer before he acted.
In extenuation of his failure to appreciate fully what he was doing, and lack of business precaution in thus allowing himself to be inveigled into signing the deed, complainant explained on his direct examination that Nhe was then under great mental stress by reason of a criminal prosecution pending against him in which he was convicted, but had appealed to the supreme court of Pennsylvania. It was during the time this case was pending in the supreme court that he traveled in the Orient, and he states that he was in Canada when the appeal was decided in his favor. The subject thus opened by complainant was pursued in cross-examination by defendant’s counsel with some tenacity, eliciting derogatory admissions, in the light of which his statement that he was never suspended from the priesthood taxes credulity. While the facts thus disclosed, which it is unnecessary to detail, have, as complainant’s counsel contend, no direct bearing upon the issue, and would be inadmissible were complainant not a witness, yet, having voluntarily offered himself as a witness to establish his case, the cross-examination was legitimate as bearing upon his credibility, and we cannot agree with the contention of his counsel that the facts shown should be wholly disregarded because unduly emphasized and unfairly dwelt upon by opposing counsel. They have no place here except for the one purpose of impeachment, and, of course, can only be considered in that connection in the usual manner impeaching facts are regarded in weighing a witness’ testimony.
To review the evidence further would unduly extend this opinion. A careful'reading of this record leads inevitably, we think, to the conclusion that the most satisfactory proof and safest ground disclosed is the written evidence, by which we find title to the property in controversy stands without exception or reservation in defendants, sustained by the written assurance of complainant that neither he nor his heirs will demand anything, and that he will, as he did, give a quitclaim deed to put the title where we find it.
Complainant has not overcome by clear and convincing evidence the presumption that the quitclaim deed which he deliberately executed to perfect Constanty’s record title contains the agreement of the parties, understandingly made in consummation of previous negotiations.
The decree is affirmed, with costs to defendants.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. | [
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Kuhn, J.
The defendant and appellant- Walsh was sued, jointly with the defendant Williams, by the plaintiff for damages resulting from the sale of worthless stock, the purchase of which, it is claimed, was induced by false representations. It is charged in the declaration that the defendant Williams made the representations as the agent of Walsh, who knew of their falsity and received the proceeds of the sales. The jury found the defendant Walsh guilty, and the defendant Williams not guilty.
It is the.claim of the plaintiff, and he presents evidence tending to prove, that Williams made numerous representations as to facts concerning the organization, backing, and condition of two corporations which Walsh had promoted; and it does not seem to be disputed that if these representations were made, as claimed, they were untrue. The defendant Williams, on the other hand, denies that he made any of them, and asserts that he did' not know the facts concerning the inner workings of the companies, did not know about the matters concerning which he is charged to have made fraudulent representations, and, further, that he did not tell the plaintiff anything except what he was told by the officers of the corporations and what was contained in the prospectuses or literature which he handed and explained to the plaintiff.
The defendant and appellant Walsh seeks a review of the judgment entered on several grounds, which may be summarized as follows:
(1) There was no competent evidence to show that the defendant Williams was acting as the agent of Walsh, in making these sales.
(2) The court erred in admitting certain evidence in the support of the plaintiff’s claim.
(3) The verdict was clearly contradictory, and should not be allowed to stand, because, if Walsh was guilty as charged, the defendant Williams also was guilty.
With reference to the question of agency, it was the defendants’ theory that Williams was the agent of the United Bankers’ Corporation and its successor, the Continental Bankers’ Corporation, the two corporations which were organized by Walsh. As evidence of this, there was introduced a written contract of agency signed by Williams and Anger, who was the stock sales manager of the United Bankers’ Corporation, which contract constituted Williams the agent of the corporation to sell stock. There were business cards of Williams introduced, introducing him as agent or special representative of the corporation. Also, it was shown that subscriptions were taken in the name of the corporation.
On the other hand, the plaintiff showed in support of his theory that Williams was the agent of Walsh, that according to the testimony of Williams he was employed by Walsh, that Walsh had charge of the stock selling and induced Williams to sign the contract, and that he received his instructions from Walsh and reported to him. The principal evidence in support of the plaintiff’s claim that Williams was acting as the agent of Walsh was a ledger showing accounts or items of stock sales in the United Bankers’ Corporation, including the sale of stock to the plaintiff, which were mixed up with the personal items of Walsh. There was also introduced a copy of a copy of the official minutes of the corporation, showing that at a meeting of the United Bankers’ Corporation on January 3, 1911, all the stock of the corporation, save 400 shares issued to Frederick W. Park, who was a director and legal counsel for the corporation, and Director Car-hart, was set off to Walsh in exchange for 6,500 shares in the Metropolitan State Bank of Detroit. The admissibility of this evidence we will discuss later, but, if true, the sale to the plaintiff must have been out of the stock set off to Walsh. It was therefore a legitimate inference, which the jury might draw from this testimony, that Williams was selling stock in the United Bankers’ Corporation which belonged to Walsh, and was therefore working for Walsh, and not for the corporation. There was also testimony to show that, after the plaintiff’s subscription had been taken, the United Bankers’ Corporation drew its draft on the plaintiff in favor of S. Francis Walsh & Co., and it was indorsed by Walsh for Walsh & Co., and finally cashed by the Metropolitan State Bank. , *
We are of the .opinion that in view of the financial manipulations which Walsh carried on with these two corporations and the Metropolitan State Bank, and the inevitable conclusion that Walsh was the real actor in all these financial and stock selling transactions, there was sufficient evidence, circumstantial though it was, to warrant the jury in finding that Williams was substantially acting as the agent for Walsh, though ostensibly the agent of the corporations.
The propriety of admitting the exhibit above referred to, which tended to show that at the meeting of January 3, 1911, all the stock in the United Bankers’ Corporation save 400 shares was set off to Walsh, was questioned by a proper assignment of error, on the groupd that it was not the best evidence of what occurred at that meeting because the official minute book of the corporation was in court.' This official minute book contained between pages 2 and 3 a typewritten manuscript showing the proceedings at the first meet ings of the stockholders and directors of the United Bankers’ Corporation. It appears therefrom that the stockholders authorized the issuance of $2,996,000 of stock by the corporation, to buy $650,000 of the stock of the Metropolitan State Bank, and the board of directors authorized a committee, of which the defendant Walsh was a member, to investigate and accept the offer from the owner of the bank stock, and issue in exchange stock of the corporation in the above amount. The owner of the bank stock appears to be L. R. Walsh, the wife of the defendant Walsh; but there is no contention but that she held the stock simply for convenience in her name, and that it was really the property of Walsh.
On pages 5 and 6 of the minute book is the record of the minutes of a meeting of the board of directors at which “the committee reports the inadvisability of purchasing this stock from L. R. Walsh and paying therefor $2,996,000 in stock of this company.” Pages 7 to 14 of'the minute book contain by-laws of the corporation, and pages 15 to the end contain minutes of other meetings from April 4th on.
Exhibit 1 to the deposition of Mr. Park was a copy of a copy which Park had had made of all the minutes Of the stockholders’ and directors’ meetings that appear in the corporation books. The office of the corporation was in the suite occupied by Mr. Park in New York City. Park’s testimony showed that the first copy was compared twice with the original minutes, and was produced at the taking of the deposition. According to this exhibit, it was made to appear that at the meeting of January 8, 1911, the committee reported not the inadvisability, but the advisability, of the purchase of the bank stock and paying therefor $2,996,000; and that the secretary was ordered to take such action; and, further, that “the stock being deliv ered to the secretary, it was moved and supported that $2,996,000 of the capital stock of this corporation be issued to the order of L. R. Walsh.”
It is unquestionably true that, if no other facts were made to appear questioning the correctness and genuineness of the original minute book, Exhibit 1 would be inadmissible to contradict it; for, when the original is still in existence and can be compared with a copy taken from a copy of the original, the latter is not admissible. 2 Elliott on Evidence, § 1483; 2 Wigmore on Evidence, § 1274. In order to show that the original minutes were not genuine, the plaintiff produced as a witness one Betzoldt, who claimed to be an experienced typewriter operator, and also had business relations with the counsel for the plaintiff. It was his claim that an examination of the official minute book showed that page 5 of the book had been written by a different operator on a different typewriter than page 6, as indicated by the alleged differences in type, in margining, in punctuation, in capitalizing, and in the watermarks on the paper. Upon this testimony the plaintiff makes his claim that the page had been fraudulently inserted, and that therefore the original record of the proceedings of this meeting had at least been partly destroyed or lost, and that the original record of this particular action of the board, the true nature of which is of importance in this dispute, was not in existence, at least so far as this case was concerned. Under these conditions, it is claimed that a copy of a copy of the original is admissible. Expert testimony was introduced on the part of the defendant against the testimony of Betzoldt.
We think that the testimony of the witness Betzoldt was properly received, and that its credibility was for the jury to determine. 17 Cyc. p. 189; 2 Elliott on Evidence, §§ 1101, 1102. The court instructed the jury with reference thereto as follows:
“You are instructed that the minute book, Exhibit 17, containing the minutes of the meetings of the stockholders and directors of the United Bankers’ Corporation, is the best evidence of what occurred at those meetings, and, unless you find that the minutes as recorded in said book have been fraudulently altered or changed, you are instructed that you should disregard any evidence relative to any alleged meetings or any proceedings or actions at any meetings which are not thus recorded in said minute book.”
If more specific instructions were desired as to the credibility of the witness a request should have been preferred. We find no error in the admission of this evidence.
We are of the opinion that no claim can be made with reference to the prospectuses as being the basis of false representations, upon this record. They were, not printed in the record, and the defendant in his statement of facts declares that they contain no representations of existing facts, but only expressions of intentions or opinions, and this statement is not amended or excepted to in the plaintiff’s brief. Under Supreme Court Rule 40, we will accept the statement with reference thereto in appellant’s brief.
The jury, having found defendant Walsh guilty, must have come to the conclusion that the representations, were made by Williams. But it appears from the testimony of the defendant Williams himself that he did. not know the facts which it is claimed and alleged that he represented as true. So that it cannot be claimed that he made the representations innocently* believing them to be true, and was therefore not guilty of participation in the fraud. For it is the law that* if one makes false representations of facts which he does not know to be true and does not know anything about, he is guilty of bad faith, and cannot escape the consequences Of making false representations of existing facts. 14 Am. & Eng. Enc. Law (2d Ed.), p. 97; Beebe v. Knapp, 28 Mich. 53, 76; Holcomb v. Noble, 69 Mich. 396 (37 N. W. 497).
The court instructed the jury with reference thereto as follows:
“There are two defendants in the case. It is possible in this case to find one of the defendants guilty and the other not guilty. The form of ypur verdict, if you find for the plaintiff, will be guilty, fixing the damages. You may find, as I said, one defendant not guilty and the other guilty.”
This is clearly an erroneous instruction, under the law and the facts in this case; for, if Walsh was guilty because of the fraudulent representations made in his behalf by Williams, it necessarily follows that Williams, also, was guilty.
Considerable discussion is had in the briefs of counsel concerning the effect of the acquittal of one joint tort-feasor upon the liability of the other. The rather contradictory state of the law with reference thereto is reviewed by the annotator in 9 L. R. A. (N. S.) at page 880. In Gulf, etc., R. Co. v. James, 73 Tex. 12 (10 S. W. 744, 15 Am. St. Rep. 743), the plaintiff sued the company and its general manager and his clerk for damages growing out of an arrest and malicious prosecution for perjury in a personal injury suit against the railroad company. The verdict was against the company and in favor of,the other defendants. The court upheld the verdict, admitting that it was inconsistent and contradictory, but saying:
“In actions growing out of that class of torts characterized by the existence of a wrongful intent as distinguished from torts arising from negligence, the rule is recognized as just which compels each of the wrongdoers, when sued, to bear and assume the responsibility of all. The injured party may sue one, any number, or all chargeable with the tort, and it is no defense if one is sued that the others are not required to share his responsibility; nor where all are sued would it be any defense that one only is- made to assume the liability for the acts of all. The reason is that there can be no contribution as between them. Cooley on Torts, § 138.”
The supreme court of Iowa, in White v. Text-Book Co., 150 Iowa, 27 (129 N. W. 338), does not follow the Texas rule. The plaintiff, a former employee of the defendant company, was prosecuted by its superintendent, Crane, with the company’s authorization, for embezzlement, and arrested, but was released upon making a payment, and the criminal prosecution was dismissed. He sued the company and Crane for malicious prosecution. The verdict was in Crane’s favor but against the company, which had acted solely through him, having advised him to consult an attorney and be guided by the attorney’s advice. The court said that since Crane was the sole agent in the matter, and the corporation could act only through its agents— “the jury must have concluded that neither had probable cause. * * * Nor could the company have been found to have been actuated by malice, unless Crane also was actuated by the same bad motive. * * * Manifestly, the verdict in finding for one defendant and against the other was fundamentally contradictory and was necessarily erroneous as to one or the other. No one can tell which. If the verdict in favor of Crane was conclusive as to the company, as is contended, then that against the company was conclusive as against Crane. The verdict, in view of the facts, is so anomalous and uncertain that a new trial should have been ordered.”
In a number of cases, several of which were cited by counsel for the defendant, verdicts against the master, acquitting the servant, in joint actions founded solely on the servant’s negligence, the master being absent, have been held to be self-contradictory and bad. Indiana Nitroglycerine, etc., Co. v. Glass Co., 165 Ind. 361 (75 N. E. 649); Hayes v. Telephone Co., 218 Ill. 414 (75 N. E. 1003, 2 L. R. A. [N. S.] 764); McGinnis v. Railway Co., 200 Mo. 347 (98 S. W. 590, 9 L. R. A. [N. S.] 880, 118 Am. St. Rep. 661, 9 Am. & Eng. Ann. Cas. 656); Morris v. Improvement Co., 53 Wash. 451 (102 Pac. 402); Southern R. Co. v. Harbin, 135 Ga. 122 (68 S. E. 1103, 30 L. R. A. [N. S.] 404, and note, 21 Am. & Eng. Ann. Cas. 1011); Childress v. Railroad Co., 182 Ind. 251 (105 N. E. 467); Young v. Rohrbough, 86 Neb. 279 (125 N. W. 513). See, contra, Bedenbaugh v. Railway, 69 S. C. 1 (48 S. E. 53) ; Illinois Central R. Co. v. Murphy; 123 Ky. 789 (97 S. W. 729, 11 L. R. A. [N. S.] 352); Moore v. Railroad Corporation, 4 Gray (Mass.), 465 (64 Am. Dec. 83); Texas, etc., R. Co. v. Huber (Tex. Civ. App.), 95 S. W. 569.
In the instant case, however, it must be clear that the erroneous charge of the court led the jury to acquit the defendant Williams and at the same time find against the defendant Walsh. We are not of the opinion that it can be said that this error in the charge was not prejudiciál, for the conclusion is irresistible that the very facts necessary to be found to hold Walsh are negatived by the finding that Williams was not guilty. It is impossible to state on what theory the jury reached their determination.
For this reason, the judgment must be reversed, and a new trial granted.
Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Kuhn, J.
The accident which gave rise to this litigation occurred on June 28, 1913, on Michigan avenue, in the township of Dearborn, Wayne county. Michigan avenue is paved with concrete at this point, and lying immediately north of the concreted way, parallel thereto, and about three feet distant therefrom, is the track of the defendant railway company. Both the highway and the track are straight for a considerable distance east and west of the scene of the accident. The plaintiff was riding with her mother, Caroline Walter, who was driving a horse and a light market wagon, going in a westerly direction on the north side of the concreted highway. Approaching from the west, at a very rapid rate of speed, and likewise on the north side of the concreted way, was an automobile which, as it came toward the rig, was directly in front of it, and continued to proceed thus until within a few feet of it, when it swung suddenly to the south, and past. The manner of this approach, or the passing, or both, caused the horse to take fright and precipitately turn toward and proceed upon the defendant’s track. At this time one of the defendant’s freight cars was approaching from the west at a rate of speed estimated to be from 35 to 40 miles an hour, and although the plaintiff’s mother tried to get the horse back off the track, it was struck and killed by the car, and both women were thrown from the wagon and injured. The plaintiff brought suit, and on the'trial in the court below the jury rendered a verdict for the plaintiff in the sum of $600, upon which judgment followed. It was the claim of the plaintiff on the trial that the case, on the evidence, was one for the jury as to whether the motorman used reasonable diligence in an attempt to stop the car in time to avert a collision, and by her declaration gross negligence was charged. It is the claim of the defendant that on the evidence no issue was presented to submit to the jury, and that it affirmatively. appeared that the motorman kept a perfect lookout, made every humanly possible effort to stop the car and that the proximate cause of the plaintiff’s injury was the negligent approach of the automobile which frightened the horse and caused it unexpectedly to go upon the track. A motion for a new trial was made and denied, exceptions were taken, and the cause was removed to this court on error.
The plaintiff’s counsel served a subpoena on the motorman, and he was put on the stand in support of the plaintiff’s case. After he had been asked a few preliminary questions, plaintiff’s counsel announced that the witness was called under Act No. 307, Pub, Acts 1909 (3 Comp. Laws 1915, § 12554), and defend ant’s counsel claim that the right to examine the witness by virtue of the act in question was waived because of the failure to make the announcement of the claim to examine under the provisions of the act, either before or at the time the witness was put upon the stand. The questions that had been asked at the time the announcement was made by counsel were simply preliminary questions, and the main facts- involved in the controversy had not been gone into. We do not think there is any merit in the contention that the failure to sooner announce the claim to the benefit of the statute constituted a waiver of such benefit, though undoubtedly the better practice would be for counsel to make such announcement at the time the witness takes the' stand and is sworn.
The motorman testified that when he first saw the horse turn on the track, it was between 300 and 400 feet away, and that he immediately shut off the power and applied the brakes, which were in good working order, but did not use sand nor reverse his motor. He claimed that what he did was all that could be done to bring his car to a stop in the shortest possible distance, under the conditions which prevailed that day, and that the car went about 100 feet after it struck the horse before he brought it to a stop. He further testified that at the rate the car was going (between 35' and 40 miles an hour) he was able to stop the car within 400 feet.
The plaintiff’s mother testified that when the horse got on the track she judged the car was between 700 and 800 feet-away. She was also asked the following question: “From the time you saw the street car up to the tiriie it hit your horse, did it slacken its speed at all?” and made answer, “Never.” This answer was objected to on the ground that it was not shown that the witness had any opportunity of observing. The witness did not attempt to testify as to the rate of speed of the car, but simply stated that the car did not slacken its, speed. In our opinion, it is not necessary for a reasonably intelligent person to show any particular qualification to testify that a car did not slacken its speed, which under ordinary circumstances is not a difficult matter to determine. It can be argued with force that her attention would have been rather directed to the horse, which she was trying to get off the track, and that she could not have given much time to observing the approach of the car. But she testified that she did, and the value of her testimony, under all the circumstances, was for the jury to determine.
If the jury accepted the testimony of the plaintiff’s mother rather than the testimony of the motorman, it seems clear that the motorman, under his own testimony as to the distance in which he could stop the car under the conditions prevailing, could have effected a stop in time to avoid collision. The learned trial judge, in denying a motion for a new trial, said:
“This collision occurred on a track at a point where a clear and unobstructed view could be had for a distance practically as far as the eye can see along a highway.^ There was nothing to prevent the motorman having a view of the horse from the moment it entered upon the street railway tracks. If then a space of 700 to 800 feet intervened from the place where the horse jumped upon the tracks, and the position occupied by the car at that precise moment, the question arises, does the record, as it now stands, show that the motorman could, and should, have brought his car to a stop within that distance in time to have avoided a' collision? Giving him the benefit of the maximum distance which he says his car traveled before he could effect a stop by using all means at his command so to do, there remains a space of at least about 150 feet which might have been utilized in the endeavor to stop the car, and which would appear not to have been availed of if the plaintiff’s theory is accepted.”
In Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592), we approved the following rule as to gross negligence:
“It is gross negligence where the wrongdoer, by the exercise of the most ordinary care, should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury. Baldwin on Personal Injuries, § 138. Gross negligence, therefore, may be: (a) A deliberately wilful act; (6) an act so reckless as to be akin to wilful, and therefore presumed dn law to be wilful; (c) a failure to exercise ordinary care to prevent injur^ to another, after his peril is, or should have been, discovered in the exercise of ordinary care. Such failure to exercise ordinary care to prevent injury is so reckless that the law presumes it to be wilful; wilfulness or deliberate intent may be inferred from all of the circumstances.”
We think that the facts clearly presented a question for the jury, under the authorities. Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); McClellan v. Railway Co., 105 Mich. 101 (62 N. W. 1025); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139) ; Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703) ; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673) ; Boettcher v. Railway Co., 131 Mich. 296 (91 N. W. 125); Bedell v. Railway, 131 Mich. 668 (92 N. W. 349); McVean v. Railway, 138 Mich. 263 (101 N. W. 527) ; Ablard v. Railway, 139 Mich. 248 (102 N. W. 741); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719) ; Good Roads Construction Co. v. Railway Co., 178 Mich. 1 (138 N. W. 320) ; Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931); Huff v. Traction Co., 186 Mich. 88 (152 N. W. 936); Millette v. Railway, 186 Mich. 634 (153 N. W. 10).
It is also claimed that a verdict should have been directed because the negligence of the defendant was not the proximate cause of the plaintiff’s injury. In this case the defendant’s alleged negligence consisted of the failure of its motorman to make a seasonable and proper effort to stop the car after the plaintiff’s perilous position was or should have been discovered. In Stoll v. Laubengayer, 174 Mich. 701, 706 (140 N. W. 534), we quoted with approval from Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884) :
“When a particular consequence results from a wrong, it may be said that the wrong is the proximate cause of that consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a cause. If such cause intervenes, it may be said that the wrong of the defendant , is too remote to be made the basis of an action. It is in such a case a condition and not a cause.”
It is clear that in the instant case the alleged negligence of the defendant’s motorman intervened between the scaring of the plaintiff’s horse by the automobile and the injury, and must therefore be said to have been.properly denominated the cause of the accident.
An examination of the charge of the court shows that the theories of the parties were, clearly presented to the jury, with proper instruction as to the law, and we are not' convinced that there was any error committed. We are also convinced that there was sufficient evidence to sustain the verdict, and that it was not error for the court to deny the motion for a new trial, made on the ground that the verdict was contrary to the weight of the evidence.
Judgment is affirmed.
Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Steere, J.
Plaintiffs were copartners engaged in general merchandising in the village of Perry, Shiawassee county, where they ran a store located in the so-called “Brown building,” which was destroyed, ‘with its contents, on July 6, 1913, by a fire claimed to have been originally ignited by sparks emitted from an engine of defendant. This fire, which spread to and destroyed numerous other buildings, started in the roof of an elevator building located between 30 and 40 feet south of defendant’s tracks, which ran northeasterly and southwesterly through the village. The elevator was 80 feet long east and west, parallel with the track, 24% feet wide, about 45 feet high “to the first hip,” above which the fire started in the north side of the roof “about four feet from the ridge.” Sheds, a black smith shop, and other buildings were in its immediate vicinity, with more buildings comparatively near them. Plaintiff’s store was about 360 feet to the southeast of it. The fire started early in the afternoon and burned rapidly, soon spreading to adjacent buildings. The weather was warm and dry, with a high wind blowing from the northwest, occasionally shifting to the north. The elevator was not running, and plaintiffs’ testimony tended to show that no buildings near by contained fire that day.
Defendant’s road was double-tracked through Perry; the northerly track being for west-bound trains, and the southerly for east-bound. Shortly before the fire was discovered an extra train consisting of five baggage cars and two passenger coaches, carrying a carnival company, passed through Perry at about 1:40 p. m., standard time, east-bound on the south track* running about 35 miles an hour, drawn by engine 2297* and making no stop between Lansing and Durand.. While much testimony was introduced upon the question of whether or not the fire was started by sparks escaping from defendant’s engine No. 2297, and that issue was sharply contested in the trial court, defendant’s counsel concedes that plaintiffs’ proofs made it an issue of fact for the jury, under Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 210 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033); Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578). But it is urged defendant’s testimony showed conclusively that the engine was fully equipped with machinery, smokestack, screen, fire box, etc.,,in good order, and was properly run, operated, and managed at the time and place when and where it is charged with setting the fire, as required and specified in the exonerating proviso of section 6295, 2 Comp. Laws (2 Comp. Laws 1915, § 8305), with no conflicting testimony in the case which rises to the dignity of evidence.
The errors relied on and argued by defendant are in substance that the court should have directed a verdict in its favor, as requested, because the undisputed evidence showed that engine 2297 was in good order, properly equipped and managed at the time of the fire, in full compliance with the statute; that plaintiffs’ attorney was permitted, against objection and exception, to comment upon and argue to the jury as an evidential fact defendant’s failure to produce for inspection the screen used in said engine at the time of the fire, and to argue to the jury (as stated in ^defendant’s brief):
'“That if a screen in an engine will emit a spark that will carry vitality sufficient to ignite a building .along the right of way of the Grand Trunk Railway, then there is no security for property along the railroad in the State of Michigan or in the United States.”
The exact language of counsel as found on the page •of the record referred to in that connection is:
“If it is true that that screen will emit a spark, that ‘small screen in an engine will emit a spark that will carry vitality sufficient to ignite buildings along the railway of the Grand Trunk system, then, gentlemen of the jury, there is no security for any property along the rights of way of any railroad in the State of Michigan or in the United States.”
This was said while arguing to the jury that, if the netting or screen used to prevent the escape of sparks from the smokestack of the engine was actually whole and in good order, sparks could not escape of sufficient size and vitality to ignite the elevator roof at the distance it was from the passing engine. Continuing the argument by permission of the court against repeated exceptions to this line of argument, plaintiffs’ counsel further said in part:
“If that is true, these little villages along their right of way would be nothing but smoldering heaps of ruins. * * * It is the only conclusion that can be reached; * * * my brother is wrong; they are wrong in their premises. I say to you again that no sparks can be emitted from that screen, if it is in proper condition, and carry with it vitality sufficient to ignite a building 50 feet away.”
We are not prepared to hold that this was illegitimate argument, if the question whether the engine was properly equipped and in good order was an issue for the jury. Defendant’s chief argument and first assignment of error are directed against the ruling of the trial court that it was, and the propriety of the argument stands or falls with that assignment, the essence of which is that defendant’s testimony showed conclusively, and without any competent controverting evidence, that all excusing provisions of the statute under which this action is brought had been fully complied with by defendant.
The provision of the statute in question, “that such railroad company shall not be held liable if it prove to the satisfaction of the court or jury that such fire originated from fire by engines whose machinery, smokestack or fire boxes were in good order and properly managed,” shifts the presumption of nonnegligence to that of negligence, and puts upon defendant the burden of showing affirmatively that the fire originating from its engine was not negligently set. Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205).
To sustain this burden defendant introduced evidence that the engine claimed to have set the fire was. properly equipped and managed, and that an engine under such conditions would sometimes emit sparks and set fires as far or farther than charged in this case. The evidence upon the latter proposition was in its nature expert testimony, given by master mechanics, locomotive engineers, etc., from observation and experience in such matters. In denial of this plaintiff introduced the testimony of a locomotive engineer of 38 years’ experience, who had been chief of the Brotherhood of American Engineers, and had run engines drawing all classes.of trains under varying conditions. He testified upon the subject at length, and gave the opinion, from his observation and experience, that under the conditions of this case, as stated to him from the testimony, the fire could not have been set by sparks from defendant’s engine if the screen was in good condition. Clearly his testimony was competent, and raised an issue of fact upon that question, under Potter v. Railway Co., supra; Close v. Railroad Co., 169 Mich. 392, 403 (135 N. W. 346), and Union Ice Co. v. Railway Co., supra.
To avoid liability for a fire set by its engine it was incumbent upon defendant to show to the “satisfaction of the court or jury” both that it was in good order and that it was properly managed at the time. The management was a matter peculiarly within the knowledge of the engineer and fireman. The engineer testified in part that he was 25 years of age, with about 2y% years’ experience as a locomotive engineer; had no regular run, but worked mostly on freight trains in defendant’s employ as an extra engineer, to run when the regular men- laid off; did not think he had run this engine before; did not know its size or length, nor the length of its flues, nor size of its diaphragm, smoke box, or screen; did not notice that anything was wrong with the netting, or that the engine was throwing sparks; did not remember when the fireman last fired before reaching Perry, or whether he had the door -of the fire box open as they passed through there; had no recollection about it, except that the wind was blowing from the north; nothing out of the ordinary occurred to attract his attention; the engine worked well, so far as he knew it was properly fired, and he handled it in a proper manner. The fireman testified, among other things,’’that he was 24 years old, had about 3% years’ experience as a fireman, fired this engine in the usual manner, and put in a fire when it was necessary; did not remember what kind of coal he was using, nor whether he had the door of the fire box open when they passed through Perry or not; did not remember “anything about it,” but it was the rule not to fire in passing through towns, to keep from “throwing sparks and setting bridges afire, and buildings, and stockyards”; did not know they threw sparks that day, nor- of the fire at Perry until their return trip; knew nothing about the front end of this engine, and observed nothing out of the ordinary in the way it was handled. The conductor and brakeman, who usually ran on freight trains, testified they were back in the train, and unable to tell how the engine worked, or the manner it was operated, except that they observed nothing unusual in that particular and did not know of it throwing sparks. This extra train crew was made up of men accustomed to running freight trains, the engineer was operating an engine he had not run before. Whatever their general competency, when their testimony is considered in connection with all other proofs of surrounding circumstances and conditions, the conclusion is unavoidable that whether this engine was affirmatively shown by defendant to have been properly managed at the time it passed the ele- ' vator at Perry was a question of fact to be determined by the jury, rather than of law to be decided by the court.
Plaintiff also produced two witnesses, who gave evidence to the effect that upon the same trip this engine set fire to a meadow near the track some six or seven miles to the west of Perry as it approached the village, and but a short time before fire was discovered in the roof of the elevator. Evidence that a particular engine had recently caused fires in other places by escaping sparks is competent, as tending to show defective condition or construction, and, when so nearly contemporaneous, even improper management. Hoyt v. Jeffers, 30 Mich. 181; Ireland v. Railroad Co., 79 Mich. 163, 165 (44 N. W. 426); Hagan v. Railroad Co., supra; Ainsworth v. Hover, 162 Mich. 135, 137 (127 N. W. 325); Close v. Railroad Co., 169 Mich. 392, 403 (135 N. W. 346); Slossen v. Railway Co., 60 Iowa, 215 (14 N. W. 244); West v. Railway Co., 77 Iowa, 654 (35 N. W. 479, 42 N. W. 512) ; Steele v. Railway Co. 74 Cal. 323 (15 Pac. 851).
It is fairly manifest from the setting of this case that the available evidence for plaintiff as to condition and operation of this engine were necessarily circumstantial, while the direct was in control' of and available to defendant. The jury had the unquestioned right to weigh both, and determine the value of each. They had the right to find that the admissible circumstantial evidence relative to a fact in dispute was more convincing and outweighed the direct testimony of witnesses as to such fact. It is not for the court' to weigh such evidence or pass upon the credibility of witnesses. The law does not define the weight to be given to such evidence; but where a material issue is raised by direct or circumstantial evidence, either or both, the whole matter comes within the scope and province of the jury.
Counsel for defendant urges that under the overwhelming and conclusive evidence introduced by it a verdict should have been directed for defendant, by authority of Dolph v. Railway, 149 Mich. 278 (112 N. W. 981), which is said to be directly in point and con trolling here. This court said in that case, speaking through Justice Grant:
“We do not think that the statute of Michigan makes an issue of fact that must, under all circumstances, be left to the jury. When the railroad company has established by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury.”
This was illustrated by supposititious cases readily distinguishable from the instant case, and it was further stated:
“If different conclusions can be drawn from conceded facts, or if the facts are in dispute, the question belongs to the jury.”
And this concluding general rule, which is plainly applicable to the evidence in this case, is again clearly stated in Clark v. Railway, supra, as follows:
“If upon the whole case there is room for inference, based upon evidence, that equipment was defective, or that management was improper, the case is for the jury.”
While, as has been often said, no two cases are exactly alike in all details of fact and circumstance, we find nothing in this case which makes inapplicable the rules of law which have been more than once announced in construing the statute involved, and which are amply discussed in the cases herein referred to.
Upon the defense much testimony was introduced as to the condition, kind, and use made of the spark arrester or screen in the engine at the time of the fire, and a sample like the netting used, or type, was produced in court. It was shown that the engine had been overhauled and new netting put in about three months before the fire, and that immediately after the fire the engine was' inspected by several qualified employees of defendant, who testified that it was in thorough repair and good condition, including the netting. A model was introduced, from which witnesses explained and illustrated where and how the netting was installed, and how it was inspected, including the use of a gauge to ascertain if the openings through the screen retained the standard size. The screen in the model was represented by a piece of gauze. It was shown that the screens used in that type of engine were made of No. 10 double crimped wire with a 2%x 2 y% mesh, fastened in by bolts and easily removed. Defendant’s shop foreman testified that smokestacks were renewed quite frequently. “We put in a new screen or netting.” This netting was bought in rolls from the Buffalo Wire Cloth Company, and in putting in a new screen the employees would unroll what was required, shape it to fit the front end, and put it in. The amount of testimony devoted by the defense to this subject- upon the trial and the promptness with which it was investigated after the fire indicate that defendant was alive to the importance of the condition of this netting. There was foundation in the evidence for plaintiff to claim that it would be neither expensive nor difficult for defendant to have preserved this primary evidence in its then condition and produced the screen as an exhibit upon the trial. It was not produced.
Under the circumstances of this case, and the character of defendant’s testimony relative to the screen, it was not reversible error for the trial court to permit counsel to comment on its nonproduction. It has frequently been held that argument concerning the withholding or failure to produce apparently available and competent evidence upon a material issue is not objectionable. Williams v. Railway Co., 102 Mich. 537, 542 (61 N. W. 52); Huntsman v. Nichols, 116 Mass. 521, 526; Chambers v. Greenwood, 68 N. C. 274; Newton’s Adm’x v. Car Sprinkler Co., 87 Vt. 546 (90 Atl. 583); Concord Land, etc., Co. v. Clough, 70 N. H. 627 (47 Atl. 704).
The judgment is affirmed.
Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit. | [
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McDonald, C. J.
The plaintiff seeks a writ of mandamus to compel the vacation of an order granting a motion to dismiss an appeal from the allowance of the will of George W. Goodall, deceased, by the probate court of Wayne county. The plaintiff is an heir at law of Mr. Goodall, who died July 16, 1924. No will was found. Twelve days after his death one Nellie Heise appeared in the probate court with a carbon copy 'of an instrument which she claimed was his last will and testament, and in which she was named the residuary legatee. She petitioned for the probate of this instrument and requested that Charles E. Gregory, a resident of Jackson, Michigan, be appointed administrator. On the 27th day of August, 1924, the probate court entered an order allowing the alleged carbon copy as the last will and testament of George W. Goodall, and appointing Charles E. Gregory as administrator. From this order Benjamin F. Emerson appealed to the circuit court. Nellie Heise moved to dismiss the appeal for the reason that there had been no service of notice upon any of the adverse parties and no bond given to the adverse parties as required by the statute. The appeal was dismissed and the appellant asks for a writ of mandamus to compel the circuit judge to vacate his order.
The following provisions of the statute are applicable and govern the proceedings on appeal from an order of the probate court:
Section 14145, 3 Comp. Laws 1915. The appealing party must file his claim of appeal, giving reasons therefor, with the probate judge within 20 days from the date of the order appealed from. Section 14152. With the notice of appeal he must file a bond running to the adverse party. Section 14153. He must give notice of such appeal to the adverse party with his reasons therefor, in such manner as the probate court shall direct, within 15 days from the date of the order directing the manner of service unless the adverse party shall in writing waive such notice.
The objections to the proceedings taken by the appellant are that the bond filed with his claim of' appeal was to the administrator and that his notice of appeal was served upon the administrator and not upon any of the adverse parties. The question is whether the administrator is an adverse party within the meaning of the statute. The administrator is not interested in this litigation. He is not interested in any litigation which does not tend to deplete the estate. Except as provided in Act No. 281, Pub. Acts 1923, his only business is to conserve the estate while the real parties in interest fight out the question of will or no will. His duties and status pending a will contest are thoroughly discussed in Stover v. Wayne Probate Judge, 219 Mich. 569, and In re Doty’s Estate, 231 Mich. 115. It is not necessary to discuss the question further. The administrator was not an adverse party. The bond to him and service upon him alone of the notice of appeal did not give the circuit court jurisdiction in the matter of the appeal. We have no discretion in enforcing the mandatory provisions of the statute. The circuit judge correctly disposed of the motion.
The writ is denied, with costs.
Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., did not siti | [
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Ostrander, J.
(after stating the facts). It is the! general rule that whenever the wrongful act of one person results • in liability being imposed on another, the latter may have indemnity from the person actually guilty of the wrong. The exception to the rule is that as between actual tort-feasors the law will not enforce contribution or indemnity. The rule of the exception, one of public policy, has not generally been extended by courts. Public policy demands that two or more j wrongdoers shall be left as to each other where their! joint offense leaves them. It does not require that con-1 sequences of the wrong of one person shall be visited, without indemnity, upon others, not particeps criminis,\ or in pari delicto. In his work on Torts (1st Ed.), pp. 144, 145, Judge Cooley, in stating the same principle, says:
“As under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons, thus singled out, and compelled to bear the loss, whether the others who were equally liable may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of Ips own wrong-doing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.”
The rule has been many times, and almost universally, applied in favor of municipal corporations called upon on account of some violation of the statutory duty to keep highways fit for travel to pay persons injured upon the highways, by excavations, obstructions, traps, and nuisances placed therein by third persons. In such cases, usually, the liability of the municipality to the injured person is predicated of omission to remedy a defective condition, and of the actual wrongdoer to the municipality of his actual wrongdoing. Thus in Inhabitants of Woburn v. Railroad Corporation, 109 Mass. 283, the defendant, to allow a person to move a building over the street, took down one of the posts supporting its warning sign, leaving a considerable hole in the highway, which remained during the period, some three weeks, that was required to move the building in sections. A traveler on the highway fell into the hole and was injured. He recovered a judgment against the municipality, which paid it and sued the railroad company for indemnity. See, also, City of Boston v. Coon, 175 Mass. 283 (56 N. E. 287); City of Holyoke v. Hadley Co., 174 Mass. 424 (54 N. E. 889); City of Lowell v. Glidden, 159 Mass. 317 (34 N. E. 459); Inhabitants of Swansey v. Chace, 16 Gray (Mass.), 303; Inhabitants of Lowell v. Railroad Corporation, 23 Pick. (Mass.) 24 (34 Am. Dec. 33) ; Mooney v. Light Co., 185 Mass. 547 (70 N. E. 933); Trustees of Canandaigua v. Foster, 156 N. Y. 354 (50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575); Baltimore, etc., R. Co. v. Howard County, 113 Md. 404 (77 Atl. 930) ; City of Seattle v. Improvement Co., 47 Wash. 22 (91 Pac. 255, 125 Am. St. Rep. 884, 14 Am. & Eng. Ann. Cas. 1045), s. c., with notes, 12 L. R. A. (N. S.) 949; City of Wabasha v. Southworth, 54 Minn. 79 (55 N. W. 818); Robertson v. City of Paducah, 146 Ky. 188 (142 S. W. 370); s. c., with notes, 40 L. R. A. (N. S.) 1153; Gridley v. City of Bloomington, 68 Ill. 47; Durant v. Palmer, 29 N. J. Law, 544; City of Chicago v. Robbins, 2 Black (67 U. S.), 418; Bailey v. Bussing, 28 Conn. 455; 3 Dillon, Municipal Corporations, § 1035, and notes; Catterlin v. City of Frankfort, 79 Ind. 547 (41 Am. Rep. 627); McNaughton v. City of Elkhart, 85 Ind. 384; Brown v. Town of Louisburg, 126 N. C. 701 (36 S. E. 166, 78 Am. St. Rep. 677); City of Raleigh v. Railroad Co., 129 N. C. 265 (40 S. E. 2) ; City of Grand Forks v. Paulsness, 19 N. D. 293 (123 N. W. 878), s. c., with notes, 40 L. R. A. (N. S.) 1158; City of San Antonio v. Smith, 94 Tex. 266 (59 S. W. 1109).
It is evident, I think, that the learned trial judge, called upon to apply a rule, considered only the relations of the several parties, involved as defendants in the two actions, to the injured man, and did not consider their relations to each other. And he may have been misled by the concluding portion of the opinion rendered in McRae v. Township of Hart, in which the right to recover against all defendants in that action is affirmed. The injured man, McRae, might havel brought his action against either the township, the| Gurneys, who owned the mill and maintained the race] and bridge, or Noret. Each of them owed him a duty.| He joined as defendants the Gurneys and the township. As between the Gurneys and the township, the latter had the right, under the statute, to repair the bridge and charge the cost to the Gurneys. But the act of Noret in removing the bridge railings and substituting others, creating a nuisance in the highway, was what involved the township and the Gurneys, who omitted, it seems, to repair a condition created by Noret.
The declaration fairly states a case of unlawful and unwarranted interference by defendant with a lawful and safe structure — a bridge — in the highway, and what resulted therefrom. It is not legally infirm for any of the reasons set out in the demurrer. The defenses open to defendant are indicated in City of Lan sing v. Railroad Co., 129 Mich. 403 (89 N. W. 54), Grant v. Maslen, 151 Mich. 466 (115 N. W. 472, 16 L. R. A. [N. S.] 910), and Grand Rapids Lumber Co. v. Blair, 190 Mich. 518 (157 N. W. 29).
The judgment is reversed, with costs to plaintiff in error.
Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Person, J.
(after stating the facts). Whether or not the complainant succeeded in showing such damages as would have entitled him to compensation in a proper proceeding, in our opinion, under the facts in this case, the court below had no jurisdiction of the matter. Though the complainant claims that the ship ceased navigation on December 3d, laid up for the winter opposite his premises, and became subject to a lien for wharfage under the statute, the facts clearly show that she did not actually go into winter quarters until after she had discharged her cargo on January 10th. Until then she awaited her turn for unloading, with the rest of the fleet, and as a carrier her employment did not cease until then. If a ship is engaged in the maritime business while unloading, a fortiori she is so engaged while waiting to unload. See Leathers v. Blessing, 105 U. S. 626; The Main, 51 Fed. 954, 957 (2 C. C. A. 569). In the case of The Murphy Tugs (D. C.), 28 Fed. 429, 432, in which a statutory lien for wharfage was refused, the vessel had laid up for the winter, and the decision is therefore not in point, in view of our conclusion that the Millinokett had not yet laid up. In The Pulaski (D. C.), 33 Fed. 383, while it was said that the contract would be adjudged to be a maritime if the storage were a mere incident of transportation (as it was here), the ship was adjudged to be not engaged in navigation because “the contract is primarily for storage, and the transportation is a mere contingency, possible or probable, in the future.”
In The Richard Winslow (D. C.), 67 Fed. 259, the bill of lading provided for free storage in the vessel until April 1st, at the shipper’s option, and the vessel was moored at the wharf at the shipper’s direction, where she remained during the winter in charge of a shipkeeper. The court found that the vessel had been “converted into a mere winter storehouse for the corn,” but the general rule was stated to be that the liability of carriers, as such, “terminates with the service of transportation, after a reasonable time and opportunity for the consignee to accept and remove them.” What is a reasonable time may be open to doubt, but it is not charged here, nor do we think, that in view of the number of vessels waiting to unload, the Millinokett was converted into a warehouse by the elapsing of 37 days from the time she dropped anchor until she was unloaded.
We are satisfied that this is an action in rem to enforce a lien against a vessel engaged at the time in maritime service, and may be brought only in the admiralty courts of the United States. Where the lien sought to be enforced is one against a vessel engaged in nonmaritime service, the State court has assumed jurisdiction, under this statute, of proceedings in rem to enforce it. See City of Erie v. Canfield, 27 Mich. 479; People’s Ice Co. v. Steamer Excelsior, 43 Mich. 336 (5 N. W. 398); McCarthy v. Circuit Judge, 118 Mich. 363 (76 N. W. 756); Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84, 93 (105 N. W. 527, 113 Am. St. Rep. 566).
The judgment of the lower court dismissing the complaint filed by the complainant is hereby affirmed, with costs to the defendant.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. | [
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J. H. Gillis, P. J.
The subject matter of this suit is an indemnity agreement executed by the parties in January of 1958. Suit was brought on the agreement by Samuel Solomon, counterplaintiff and indemnitee under the agreement, against Jack Lieber man, counterdefendant and indemnitor. Trial was to the court, sitting without a jury.
Testimony at trial established that in 1957 Solomon, Lieberman, and another formed the Florida Investment Corporation (hereafter FIC) for the purpose of acquiring a leasehold interest in an office building located in Fort Lauderdale, Florida. In order to obtain a local department store as tenant, FIC contracted to purchase a leasehold interest in a nearby corner lot to provide adequate parking for the department store’s customers. The owner of the corner lot, Harvey Holding Company, was willing to lease the lot to FIC on condition that Solomon obligate himself personally to perform the terms of the lease. Solomon acquiesced and signed an agreement which reads in part:
“This guarantee shall be a continuing guarantee during the term hereof; and in the event of failure to pay or to perform the terms of said lease agreement by the said FIC, Inc., the undersigned will pay and perform the same in accordance with the terms of said agreement.”
At the same time, Solomon obtained from his fellow incorporators, including Lieberman, an agreement to indemnify him for all sums paid by reason of his personal guarantee under the Harvey lease. The indemnity agreement reads in part:
“Whereas, it is the purpose of this agreement to indemnify first party [Solomon] for any liability, loss, expense, including reasonable attorney fees, that first party may sustain or incur by reason of the guaranty hereto attached # * * .
“It is, therefore, agreed as follows: Second party [Lieberman] agrees to pay to first party 40% * * * of all liability, loss and expense, including reasonable attorney fees in defending or prosecuting any suit, action, or other proceeding, or in obtaining or attempting to obtain a release from liability incurred by first party by reason of, or in connection with or in respect of the aforesaid guaranty * * # . Second * * * partly] covenant[s] that [he] will reimburse first party for or pay over to first party within the limitations of the percentage aforesaid all sums of money which first party shall pay or become liable to pay by reason of any of the foregoing and will make such payment to first party as soon as first party shall become liable therefor, whether or not first party shall have paid out such sums or any part thereof.” (Emphasis supplied.)
According to Solomon’s undisputed testimony at trial, when the above agreements were executed, FIC was insolvent. Solomon’s testimony tended to show that, as rents and other obligations under the Harvey lease fell due, it was agreed between Solomon and Lieberman that Solomon would personally fund FIC under his guarantee and that Lieberman, under the indemnification agreement, would reimburse Solomon for the amounts paid. On direct examination, Solomon testified:
. “Q. Mr. Solomon, you here this morning testified that you were an officer of the FIC Corporation, is that correct?
“A. Yes.
“Q. Now, did you testify what Mr. Lieberman’s position was ?
“A. He was the president.
“Q. Ok. Now, how did you become aware, or did you become aware when FIC incurred debts and obligations under its contracts?
“A. Well, we had a Mr. Chase as the manager of the Sweet Building. * * * And he would notify me that we needed money for this, or the rents, or taxes, and so forth.
“Q. And they would be sent to you, sir?
“A. Yes.
“Q. All right. Now, when these hills came due, what did you do with them?
“A. I immediately ’phoned Mr. Lieberman and advised him.
4E, JZ. ju
“Q. Now, acting, sir, in your capacity as an officer contacting Mr. Lieberman as an officer, did you decide as officers of the corporation what to do with regard to these debts?
“A. Yes.
“Q. And what was the decision between you?
“A. The decision was that we would send them a check.
“Q. Send who a check?
“A. Send the FIC a check.
“Q. And what arrangements were made to get the money? How was that done?
^
“A. Mr. Lieberman would ask me to either send my check, or he would send his check to me for the— to the FIC.
“Q. Mr. Solomon, so the court doesn’t get upset if we are redundant, there was no money in FIC?
“A. That is right.
#J¿. 4¿. W
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“Q. All right. Now, if you didn’t have money what did you do to get the money to pay the bills? How did you go about it?
“A. I first called Mr. Lieberman.
“Q. I got that already. What did you do next?
“A. And Mr. Lieberman said to go ahead and pay it.
“Q. Who should pay it?
“A. That I should pay it.
“Q. In what capacity?
“A. Under the guarantee, — ”
Further testimony established that as Solomon advanced funds to FIC for payment of rents due under the Harvey lease, he received corporate promissory notes from FIC for the amounts advanced.
In 1961, FIC was declared insolvent and the properties involved were returned to their respective owners. Shortly thereafter, Solomon demanded of Lieberman that he pay, according to the indemnification agreement, his proportionate share of the sums advanced to FIC by Solomon. This Lieberman refused to do. Solomon then filed the instant counterclaim. From a judgment entered in Solomon’s favor, counterdefendant Lieberman appeals.
On appeal, defendant Lieberman presents five issues. We shall discuss only two of defendant’s contentions, since those remaining are raised for the first time on appeal. We are not obliged to consider questions neither raised nor passed upon by the trial court. See Gordon Grossman Building Company v. Elliott (1969), 382 Mich 596, 602, and cases therein cited; Haggerty v. MacGregor (1968), 9 Mich App 671; Huhn v. Davis (1969), 18 Mich App 440, 449.
Defendant Lieberman contends that since FIC fully performed its obligations under the Harvey lease, Solomon’s personal guarantee never went into effect. As a result, Lieberman suggests that his obligation under the indemnity agreement remained dormant. This position, however, cannot be sustained in light of the trial court’s express findings of fact.
In his written opinion, the trial judge found that “in actual point of fact the FIC Company did not make any payments on the rent, but merely acted as a conduit or funnel between Solomon and the landlord, Harvey Holding Company”. The trial court also found that Solomon’s advances to FIC were made pursuant to his personal guarantee. Since Solomon’s testimony, quoted supra, amply supports these findings, we have no right to disturb them here. GCR 1963, 517.1; McDaniels v. Schroeder (1968), 9 Mich App 444; Haggerty v. MacGregor, supra; Hickey v. Kaser (1969), 20 Mich App 296. Moreover, the record supports the conclusion reached by the trial court that both Solomon and Lieberman recognized FIC had no assets and that it was unable to make payments under the lease on its own account. This situation prompted Solomon to advance funds to FIC in order to avoid FIC’s default under the lease. According to Solomon’s undisputed testimony, Lieberman agreed to this procedure. Under these circumstances, we agree with the trial court’s conclusion that Lieberman remained liable on the indemnity agreement.
That Solomon was not compelled by judgment to pay FIC’s obligation under the Harvey lease is of no legal effect.
“[A] person legally liable for damages who is entitled to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. The fact of voluntary payment does not negative the right to indemnity, since a person confronted with an obligation that he cannot legally resist is not obliged to wait to be sued and to lose a reasonable opportunity for compromise.” 41 Am Jur 2d, Indemnity, § 33, p 723. (Emphasis supplied.)
The record here reveals that Solomon’s liability for rents due under the Harvey lease was clear; no defenses were available. See 42 CJS, Indemnity, § 14(2), p 590. Moreover, by its express terms, the indemnity agreement obligates Lieberman to pay over to Solomon “all sums of money which [Solomon] shall pay”, in addition to sums which Solomon shall “become liable to pay” by reason of the guarantee. (Emphasis supplied.)
Defendant next contends that since Solomon accepted FIC’s promissory notes for the sums advanced, Solomon suffered no actual loss — a prerequisite to recovery on the indemnity agreement. Defendant relies on Richards v. F. C. Matthews & Co. (1931), 256 Mich 159. In Richards, it was held that an indemnitee cannot recover on the agreement in the absence of proof of actual damages:
“It was incumbent upon the plaintiff to give sufficient data, facts, and circumstances from which the jury might find the actual loss, if there was one. The burden of proof to establish the loss was upon plaintiff.” 256 Mich at 164.
This case is not Richards, however; for it is evident from the record that Solomon proved an actual loss to the satisfaction of the trier. The trial judge found that the notes in question were worthless; that FIC was defunct; and that Solomon had not been paid on any of the promissory obligations. Again, record testimony supports these findings and we cannot disturb them. Unlike the situation in Richards, plaintiff here sustained his burden of proof.
Furthermore, that Solomon accepted the notes in question did not constitute payment for the sums advanced in the absence of an understanding that they were taken as such. See People, for use of P. Koenig Goal Co., v. Davis (1926), 237 Mich 165, 166, and cases therein cited; Stadler v. Ciprian (1933), 265 Mich 252, 261, 262; Furlong v. Manufacturers National Bank of Detroit (1938), 285 Mich 517, 520; Mundhenk v. Liverpool & London & Globe Insurance Co., Ltd. (1945), 311 Mich 571, 577. The trial judge found that “the testimony did not indicate any such agreement in this instance.” Our review of the record leads us to the same conclusion. Accordingly, defendant Lieberman failed to establish payment as a defense. See In re Dunneback’s Estate (1942), 302 Mich 73, 77.
The judgment of the trial court is affirmed, with costs to appellee.
All concurred. | [
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Fitzgerald, J.
This appeal arises out of an automobile accident which occurred on December 14, 1964, in Sterling Township. The original action was commenced by the filing of summons and complaint on November 28, 1967. Copies of the summons and complaint were placed in the hands of George Moore, a constable of the municipal court for the City of Roseville, for immediate service upon the defendants Academy Asphalt Paving Company and Kenneth Earl Hollon.
Attempts to effectuate service of process upon defendants were unsuccessful and continued up to March 7, 1968. Plaintiffs apparently were unable to ascertain the whereabouts of defendant Hollon and therefore he was never served with process. In the case of the corporate defendant, in spite of the fact that the location of its offices was known, Constable Moore was unable to gain access to the premises to serve anyone, nor was he successful in attempts to serve any of the officers, directors, or resident agent.
On March 8, 1968, pursuant to an order of the Macomb County Circuit Court for substituted service, Moore posted a copy of the pleadings on the door of the corporate defendant’s place of business. Shortly thereafter, defendant filed a motion for accelerated judgment, the basis of which was the running of the statute of limitations. The motion for accelerated judgment was granted on February 3,1969.
The sole issue raised on this appeal is whether Constable Moore was an “officer” as contemplated by MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856) so as to toll the statute of limitations for an additional 90-day period. The provision of the statute with which we are concerned provides:
“The statutes of limitations are tolled when
# * *
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” (Emphasis supplied.)
In their argument, plaintiffs cite the revised judicature act for the proposition that constables are expressly recognized as court officers. They also contend that a constable may serve any process or order lawfully directed to him in any township in his county. Defendant, while recognizing the fact that George Moore had been designated a constable by the City of Roseville, claims that such a designation is a misnomer. Defendant argues that the powers and duties of a constable as defined by the Roseville City Charter include those conferred by law upon constables in townships as well as the specific power to serve processes issued for violations of city ordinances. In view of the fact that the 1963 Michigan Constitution omits the office of township constable as a constitutional office, defendant contends that George Moore possesses no powers except those specifically conferred upon him by the Eoseville City Charter. It argues that in view of these limitations, the power and authority granted Moore in his capacity as a constable by the city charter is much too limited to qualify him as an “officer” under the tolling statute.
In reviewing this matter, the Court is cognizant of the fact that only one reported Michigan decision has as yet enumerated those individuals within the classification of “officer” and, specifically, no case has addressed itself to whether a constable is an “officer” within the meaning of the statute, supra. An examination of the committee comments following the statute states:
“It should also be noted that in order to secure the benefits of subsection (3), a copy of the summons and complaint must be placed in the hands of an ‘officer/ and not just any person of suitable age and discretion.” (Emphasis supplied.)
In Constantini v. Hofer (1967), 5 Mich App 597, this Court reviewed an accelerated judgment based on the running of the statute of limitations covering tort actions. It was held that delivery of a copy of the summons and complaint to an attorney for service did not toll the statute since an attorney is not an “officer” within the meaning of the tolling statute. In Salmanovitz v. Dexter-Davison Markets, Inc. (1969), 17 Mich App 390, this Court held that a bailiff is empowered to serve processes received from a circuit court commissioner and in this capacity he may be considered an officer for the pur pose of tolling the statute of limitations for 90 days. Hence, in summation of the above, while it has been determined that bailiffs, when serving processes of circuit court commissioners, fit into the statutory class designated as “officer,” it is known that attorneys and just any person of suitable age and discretion do not.
An examination of case law discloses that over the years constables have acted primarily as local peace officers, ministerial officers of justice courts, and bailiffs of courts of record. Traditionally, service of process has been among the duties performed by these township officers. White v. Board of Supervisors of Manistee County (1895), 105 Mich 608; People v. Smith (1861), 9 Mich 193; Allor v. Board of Auditors of the County of Wayne (1880), 43 Mich 76. Also, in Scully v. Vander Giessen (1966), 4 Mich App 493, this Court, although addressing itself to a case arising under the prior Court Rule No 13, § 1 (1945), which was superseded by MCLA § 600-.5856 (Stat Ann 1962 Rev § 27A.5856), treated a constable as an “officer” for purposes of serving process and tolling the statute of limitations.
The township officers’ act contains language which provides recognition of constables and their function as process server. In MCLA § 41.83 (Stat Ann 1961 Rev § 5.75), it is stated that:
“Any constable may serve any writ, process, or order lawfully directed to him, in any township in his county.”
Again, in MCLA § 600.584 (Stat Ann 1962 Rev § 27A.584), the Revised Judicature Act gives recognition to the fact that a constable may possess the power to serve process by stating:
“The sheriff, his deputies, and any coroner or constable having the power to perform such duty may require suitable aid in (a) serving process * # *
While Const 1963, art 7, § 18, eliminated constables as constitutional officers, this does not in itself eliminate the traditional powers of their office. Apart from the constitutional deletion, we find no specific evidence of legislative intent to exclude constables from their traditional duty as servers of process. The statutory provisions which authorize constables to serve process, and provisions for receiving assistance in their duties, have not been repealed and are still in effect. In addition, the statute with which we are concerned requires an “officer” for purposes of tolling the statute and no mention is made of a “constitutional officer”.
In view of the authorities mentioned above, we find that Constable Moore was an “officer” as contemplated by MCLA § 600.5856 (Stat, Ann 1962 Rev § 27A.5856) so as to toll the statute of limitations.
Parenthetically, we might point out that it is a common practice in jurisdictions throughout the state to bestow the additional designation of “deputy sheriff” upon local constables. While the record makes no reference to Mr. Moore’s status on this particular point, we cannot help but observe that had the requisite deputization taken place, the whole problem would not have occurred.
Reversed and remanded. Costs to appellants.
All concurred. | [
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Per Curiam.
The defendant in this matter was tried in recorder’s court, city of Detroit. He waived his right to jury trial and was found guilty of robbery armed. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). His motion for a new trial was denied; from this defendant appeals.
On appeal, defendant contends that there was insufficient evidence to substantiate the verdict. We disagree.
The complaining witness was with the defendant from 20 to 25 minutes, in a well-lighted room, and saw him in various positions. The defendant was identified by photograph before trial and at trial by the witness.
Furthermore, defendant was later identified when he attempted to cash a blank check, which had been stolen from the complaining witness. Defendant alleged that he had found the check.
We find that the evidence presented to the trier of fact, if believed, was sufficient to sustain the conviction. People v. Price (1969), 17 Mich App 605.
Conviction affirmed. | [
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O’Hara, J.
The issue raised by this appeal is the admissibility in evidence at trial of a blackjack found by arresting officers who were lawfully in the defendant’s home to serve upon him a criminal warrant charging conspiracy to extort.
It is basically the position of the state that a blackjack was found while the police were searching for offensive weapons, a permissible incident of a valid arrest. It is the defendant’s position that the search exceeded permissible bounds, and was in reality a device to make an unrestricted search of his home without a search warrant. The blackjack was hanging from a hook in a downstairs clothes closet. It was the officer’s testimony that he was able to see a shotgun in the closet and that when he went in to remove it, he saw the blackjack. Other officers had already served the arrest warrant. The defendant was upstairs with the officers who accompanied him to his bedroom to change from pajamas to street clothes. There were six or seven officers in the arrest party including state police, city police and internal revenue agents.
The need of law enforcement officers for protection against armed resistance to arrest is of national concern. We would not be understood to place any judicial restriction upon their right of self-protection.
In this case, however, the further search of the premises after the warrant was served and the accused was under arrest cannot be justified on the ground of concern for the officers’ safety as pointed out by the trial judge.
“The testimony in this record made it most clear to the court that they (the officers) were in no way apprehensive lest the defendant escape or inflict any injury on any of them.”
We agree in part with these additional forthright findings of the trial judge:
“The officers testified that they had reliable information that offensive weapons were located in the precise location in which they were found sometime prior to the time the arrest party left the church parking lot. A magistrate was available to them and did issue a search warrant for business premises of the defendant less than six hours prior to his arrest. It can reasonably be inferred that a search warrant could have been obtained prior to the arrest based upon the information possessed by the officers. However, these officers preferred to conduct a search which, had it not turned up the weapons, would have been a clear violation of an individual’s sacred constitutional right to be secure in his own home.” (Emphasis supplied.)
However, we must disagree with his legal conclusion that the “search * # * had it not turned up the weapons would have been a clear violation of an individual’s sacred constitutional right to be secure in his own home”.
We know of no constitutional doctrine, judicially approved, which permits the validation of an illegal search on the basis of the results it obtains.
The evidence illegally obtained should not have been admitted, and the motion to suppress should have been granted.
The quoted factual findings of the trial judge, which are supported by the record, distinguish this case from People v. Vito Giacalone (1970), 23 Mich App 163, and precludes application of that decision to the case at bar.
Reversed and remanded.
All concurred. | [
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] |
Larnard, J.
Leo Gibson does business as Leo Gibson Mobile Home Sales with his principal place of business in Warren, Michigan. The defendants are a co-partnership operating a mobile home park in Warren. On or about July 1, 1964, defendants were engaged in the business of developing and constructing a mobile home park. Plaintiff alleges that in conjunction therewith, he was approached by the defendants and told that in order for the defendants to obtain an PHA-insured mortgage loan, the defendants would need to show that a number of mobile home lots were in demand and had been reserved. The defendants requested plaintiff to deposit checks with them to indicate the reservation of lots and that upon approval of the loan defendants would return these checks to plaintiff. In accordance with these requests plaintiff deposited with the defendants ten checks, each in the amount of $86. The back of these checks contained the designation “lot reservation”. On September 23, 1964, defendants, contrary to the agreement with plaintiff, cashed these checks and used the funds for their own benefit.
Plaintiff also alleges that in the conduct of his business, he sold mobile homes to customers who desired to move these homes onto defendants’ mobile home park. The defendants refused to allow plaintiff to move the homes into the park unless the plaintiff would post a $100 performance bond for each trailer to be moved in. The performance bond was to insure the proper installation by plaintiff of the trailers. The plaintiff moved in 27 mobile homes, and paid defendants the sum of $2,700. This amount was paid to defendants by means of 27 individual checks drawn by plaintiff for the sum of $100 each. Each of the 27 checks contained either the notation “Performance Bond” or “Performance Bond to Be Returned When Trailer is Set Up.” According to plaintiff, these moneys were to be a performance bond and were to be returned upon proper installation of the homes. The defendants, however, cashed the 27 checks, converted the $2,700 of plaintiff’s money and refused to return such money.
It is defendants’ contention that the ten checks for $86 each, represented, as indicated on the checks, deposits to guarantee lot reservations for plaintiff’s customers. It is also the defendants’ contention that the $100 charge was not a performance bond, but rather an admission fee.
The trial judge, sitting without a jury, found in favor of defendants on the basis that plaintiff had failed to meet its burden of proof. From this determination, plaintiff claimed his appeal.
This appeal presents essentially a question of whether the evidence supports the verdict. It is made somewhat difficult because of the failure of the trial judge to provide a sufficient finding of facts. The record discloses that there was sufficient evi dence to support the trial court’s determination that the payment of the $86 checks was for the purpose of securing lot reservations, and we find that the judgment of the trial court on this issue was not clearly erroneous. As this Court said in Cook v. Weinberger Builders, Inc. (1969), 19 Mich App 475, 476:
“The findings of fact by the trial court * * * are not clearly erroneous, GOB 1963, 517.1, and, in fact, are supported by the record. This requires affirmance of that part of the judgment.”
The more difficult question is the portion of the trial court opinion dismissing plaintiff’s cause of action for return of the $2,700 represented by the 27 $100 checks.
The record indicates that the trial court’s opinion was somewhat influenced by the fact that the plaintiff continued to give money to the defendants even after some of the $100 checks had been cashed by defendants and returned to the plaintiff by the drawee bank, and in general continued to do business with the defendants.
It must be remembered that plaintiff’s theory as to why these 27 checks were given was that they were to serve as a performance bond to secure proper installation of the individual trailers. Merely having possession of the checks did not provide adequate security to defendants, for prior to negotiation by defendants, the plaintiff could have issued stop orders on any or all of the checks issued, thus rendering the checks worthless as security for proper performance in setting up the trailers. It was therefore not contrary to, or inconsistent with, the restricted nature of the “performance bond fund” provided by the checks, for defendants to cash the 27 checks. However, this fact does not alter the written expressed purpose appearing on the reverse of the checks. The proceeds of the cashed checks continue to be impressed with their original character, i.e. “performance bond fund”. It was therefore not unreasonable for plaintiff to continue to issue checks on the assurance by defendants that the $100, not necessarily in the form of the original check, would be returned to him.
It was also not inconsistent for the plaintiff to continue to do business with defendants generally even though there were vacancies in other trailer parks and the defendants owed him money. It must be observed from the testimony at trial that the customers of the plaintiff, and not the plaintiff, were the persons who made the decision as to where they desired the trailer to be located.
The record shows the existence of persuasive evidence which supports plaintiff’s theory that the checks were to be “performance bonds” rather than entrance fees as alleged by defendants, and were to be returned upon proper set up of the individual trailers.
Testimony of the plaintiff, Leo Gibson, disclosed the following:
“Q. You were in Louisville?
“A. I called him and said, ‘look, what is going on,’ because he wasn’t moving the trailers unless I gave him a check for $100 with each trailer. I said, ‘What is it for?’ He said, ‘It is a performance bond.’
“Q. He told you this over the telephone?
“A. He said, ‘You get those trailers in and set them up. Probably not everything is checked out. You will get your $100 back.’ I said, ‘Okay, Lou.’ ”
and further in the record:
“Q. You called your secretary?
“A. I called her and told her, ‘Miss Sherman, you write a check for $100 for each trailer we put in and write on the back, ‘Performance Bond. Money to be returned when work completed satisfactorily’ ”.
The record further shows the testimony of Helen E. Sherman, the secretary and office manager regarding the issuance of the twenty-seven $100 checks as follows:
“Q. I want to show you plaintiff’s exhibit 2 which is a packet of 27 checks each in the amount of $100 made out to Lafayette Place, and ask you if you can identify those?
“A. Yes.
“Q. I think there is one or two checks in there that was signed by Leo Gibson himself, but the balance can you identify your signature ?
“A. Yes.
“Q. Signed for Leo Gibson?
“A. Right.
“Q. You made out those checks? You recall making out those checks ?
“A. Yes.
“Q. And the endorsement contained on the back of those checks, did you place that endorsement there?
“A. Yes, I did.
“Q. Some of the endorsements read, ‘Performance Bond’, and some of them, ‘Performance Bond to be returned when trailer is set up?’
“A. Yes.
“Q. That is your handwriting?
“A. Yes.
“Q. That was placed on them at the time you wrote the check?
“A. Yes.
“Q. Or some subsequent time?
“A. No.
“Q. You gave these checks out. What did you do with the checks?
“A. These checks I gave to the driver when he takes the coach to the park.
“Q. This is a man that takes it over and sets it up?
“A. Yes.
“Q. Is he employed by you or Mr. Gibson?
“A. Yes.
“Q. So you gave him a check and he would take the coach over and he would give a check to Lafayette Place ?
“A. Yes, because they won’t let the coach in until they have the checks, all parks.
“Q. And the endorsements that were placed upon both of these checks, that is ‘Lot Reservation’ and ‘Performance Bond,’ was that placed there at the request of Mr. Gibson?
“A. Yes.
“Q. Did he give you the wording to put on?
“A. Yes.”
Additional testimony by Mr. Paul J. Mapes, who was an employee of the defendants during the period when the $100 checks were received by the defendants, appears in the record as follows:
“Q. Going to the second count of the plaintiff’s complaint wherein he alleged the $2,700 performance bonds that were given to Mr. Deziel, did you ever have occasion to discuss this, that these checks that Mr. Gibson had given to Mr. Deziel, or did you overhear a conversation?
“A. No. To start with—
“Mr. Wendt (interposing): If his answer is no, that takes care of it.
“A. I will retract it.
“Mr. Wendt: Sir, you let the Judge—
“The Court (interposing): Let us find out what this is all about. I am interested.
“A. To start with, the $100 came as a surprise to myself as well as the dealers. It did not come up until the trailers started to move in in January of 1964. And Mr. Deziel told me to charge every mobile home that came in $100. Whoever brought the trailer in had to pay the $100 bond and it was to be a performance bond.
“Q. Did he tell you specifically that it was to be a performance bond?
“A. Yes. He told me myself because I was not to allow a trailer on this property without collecting $100.
“Q. You were managing the property?
“A. Yes. After a mobile home was put on the site and set up, to my satisfaction, the $100 was supposed to be returned.
“Q. This is what Mr. Deziel told you?
“A. That is correct. It was only to guarantee that the setup would be complete because, if it was not to our satisfaction, I was to make the repairs and that they were going to deduct it from the $100.
“Q. What happened next?
“A. Well, the next week, Mr. Deziel said that he wasn’t going to be giving the money back.
“Q. Beg your pardon?
“A. Mr. Deziel said he wouldn’t be returning the money.
“Q. He wouldn’t be returning the money?
“A. Eight, because I had occasion to ask him for a hundred dollar check to return to people when they asked me.
“Mr. Gibson was not the only dealer. There must have been at least fifteen different organizations putting mobile homes into Lafayette Place. And some of them wanted their money back.
“Q. And you were told by Mr. Deziel to refuse to return the money?
“A. That’s right.
“Q. To your knowledge, did anybody get their $100 back?
“A. Only one person that I know of.
“Q. And who was that one person?
“A. Jim O’Brien from O’Brien’s Mobile Home Service. He gave him $100 cash because he was not aware of the fact he had to pay it. In fact, he had to borrow part of it off the customer that he brought the home in for. And when he finished that day, he asked me for the money and I couldn’t give it to him. I had to ask Mr. Deziel and he authorized the return of it.
“Q. Did you ever overhear any other conversation, or were you ever a part of a conversation regarding any other conversation regarding these performance bonds ?
“A. Well, there was — Can you give that more?
“Q. I do not know what your answer is going to be. Did you ever have any other conversation?
“A. Well, it came up, it started out that these performance bonds were to be returned when everything was set. And then later, the dealers weren’t told this, but he told me that they would not be returned. We would still continue to collect it, but it would not be returned because they were going to keep the money.”
The record discloses that the only evidence introduced to support the defendants’ theory that the $100 checks were “entrance fees” rather than “performance bonds” was the testimony offered by Louis Deziel, the defendant. The defendants’ refusal to refund was a unilateral breach of the agreement.
Our review of the factual aspects of the nature of the twenty-seven $100 checks has been to review the record herein for the purpose of determining whether the judgment rendered by the trial court was clearly against the preponderance of the evidence.
After a careful review of the record before us on this appeal, and recognizing the firmly-established rule that preponderance of the evidence may not be determined solely by the number of witnesses, but by the greater weight of all the evidence, including opportunity for knowledg eand information possessed, we reach the conclusion that the judgment entered herein on the issue of the twenty-seven $100 checks was contrary to the preponderance of the evidence.
We therefore affirm the trial court on the finding no cause of action was shown on the ten $86 checks, but we find judgment for the plaintiff in the amount of $2,700.
Affirmed in part, reversed in part. No costs to either party.
All concurred. | [
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Larnard, J.
The appellees filed an action for breach of express warranty, breach of implied warranty of fitness for purpose and for misrepresentation against appellant from whom they had purchased a new home. This action for damages was heard by the Washtenaw circuit court and jury and judgment was given for appellees in the amount of $3,500. Appellant’s motions for new trial and for judgment notwithstanding the verdict were denied and this appeal has been taken from the judgment and denial of post-trial motions.
In August of 1959, appellees entered into a sales agreement with appellant for the purchase of a new home in Ann Arbor, Michigan, which was to be constructed by the appellant. One of the pertinent features of construction to be included in the home was a cement tile roof which was supplied by Anza Industries of America, Inc., and carried a warranty against leaks due to failure of the tile or its installation for the life of the building. The brochures used by appellant in promoting the sales of its homes contained a description of the lifetime roof.
Shortly after appellees had taken possession of the home, the first rainstorm occurred and the roof leaked causing damage to the ceilings of the house. Numerous attempts to cure the leaking roof by appellant apparently failed to stop the leakage with the further result that paint will not adhere to the ceiling where the wetness occurred.
Appellant claims that the trial court erred in denying its motion for directed verdict. The motion for directed verdict is based primarily on three theories.
The first theory relied upon by appellant is that the written express lifetime warranty of the roof was made solely by the manufacturers of the roof, to-wit: Anza Industries of America, Inc., and not by appellant. The written warranty covering the tile roof was admitted as plaintiffs’ exhibit 3, and contains a brief statement describing the extent of the warranty. The express warranty covering the tile roof appears to be clearly that of Anza Industries of America, Inc., and not that of appellant. The fact that appellant’s name also appears on the face of the warranty does not alter the import of the entire document as being that of Anza and not of appellant. There were, however, certain factual questions presented by appellees at trial, including appellant’s position as a co-signer of the express warranty, statements made by appellant’s agents to appellees regarding the existence of the express warranty on the roof, and questions regarding stock ownership of Anza Industries by appellant, sufficient to allow the question of the existence of an express warranty by the defendant to go to the jury rather than requiring a directed verdict at the close of the proofs by appellant and appellees.
The second theory upon which appellant bases its claim of error for denial of its motion for directed verdict is that the doctrine of implied warranty is not applicable to the sale of real property. The precise issue raised by this case, as to whether the doctrine of caveat emptor continues to apply to the purchase of real property, has not before been presented to a Michigan appellate court and comes before us as a matter of first impression. It therefore becomes incumbent upon us to not only review the trend and status of the law in other jurisdictions, but to carefully consider the basic underlying logic and equities presented by this question.
The substitution of the doctrine of implied warranty of fitness for that of caveat emptor in the field of personal property has been firmly imbedded in our jurisprudence since the Uniform Sales Act and the recent adoption of the Uniform Commercial Code. Until recently, however, the doctrine of caveat emptor has continued to be almost universally applied to the sale of real property, see 78 ALR2d 446 (Annotation). However, in the past ten years, eight states have moved away from the theory of caveat emptor and have adopted some form of implied warranty in the sale of new family dwelling houses. See Wawak v. Stewart (1970), — Ark — (449 SW2d 922); Carpenter v. Donohoe (1964), 154 Colo 78 (388 P2d 399); Bethlahmy v. Bechtel (1966), 91 Idaho 55 (415 P2d 698); Schipper v. Levitt & Sons (1965), 44 NJ 70 (207 A2d 314); Waggoner v. Midwestern Development, Inc. (1967), 83 SD 57 (154 NW2d 803); Humber v. Morton (Tex 1968), 426 SW 2d 554; Rothberg v. Olenik (1970), — Vt— (262 A2d 461); House v. Thornton (1969), 76 Wash 2d 428 (457 P2d 199). The states who have joined the vanguard in interring the ancient doctrine have recognized that in many cases, especially where there are large developments involved, the individual buyer is not on an equal footing and is not in a position to bargain at arm’s length with the builder-vendor. The individual purchaser of a newly constructed home is no more able or competent to inspect for latent defects or to protect himself than is the buyer of a mass-produced automobile.
Beginning in 1952, a host of law review articles predicted the trend which the law was bound to take in doing away with the illogical distinctions between purchasers of personal property and the purchasers of new residential real property. See Dunham, Vendor’s Obligation as to Fitness of Land for a Particular Purpose, 37 Minn L Rev 108 (1952); Bear-man, Caveat Emptor in Sales of Realty — Recent Assaults upon the Rule, 14 Vanderbilt L Rev 541 (1961); Haskell, The Case for an Implied Warranty of Quality in Sales of Real Property, 53 Georgetown L Jour 633 (1965); Robert, The Case of the Unwary Home Buyer; The Housing Merchant Did It, 52 Cornell L Q 835 (1967).
As suggested in the 1963 edition of Williston regarding the recent trend:
“It would be much better if this enlightened approach were generally adopted with respect to the sale of new houses for it would tend to discourage much of the sloppy work and jerry-building that has become perceptible over the years.” 7 Williston, Contracts (3d Ed), § 926 A, p 802.
In the case of Humber v. Morton (Tex, 1968), 426 SW2d 554, 561, the Texas Supreme Court held in its decision adopting the doctrine of implied warranty of fitness to sale of a new home that:
“If at one time the rule of caveat emptor had application to the sale of a new house by a vendor- builder, that time is now past. The decisions and legal writings herein referred to afford numerous examples and situations illustrating the harshness and injustice of the rule when applied to the sale of new houses by a builder-vendor, and we need not repeat them here. Obviously, the ordinary purchaser is not in a position to ascertain when there is a defect in a chimney flue, or vent of a heating apparatus, or whether the plumbing work covered by a concrete slab foundation is faulty.
“The caveat emptor rule as applied to new houses is an anachronism patently out of harmony with modern home buying practices. It does a disservice not only to the ordinary prudent purchaser but to the industry itself by lending encouragement to the unscrupulous, fly-by-night operator and purveyor of shoddy work.”
The reasoning set forth in the opinion of the New Jersey Supreme Court in Schipper v. Levitt & Sons (1965), 44 NJ 70, 91 (207 A2d 314, 325, 326), although involving a personal injury, captures the underlying rationale of the trend toward adopting a doctrine of implied warranty of fitness of purpose to the purchase of a new home by stating that:
“When a vendee buys a development house from an advertised model, as in a Levitt or in a comparable project, he clearly relies on the skill of the developer and on its implied representation that the house will be erected in reasonably workmanlike manner and will be reasonably fit for habitation. He has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial, and his opportunity for obtaining meaningful protective changes in the conveyancing documents prepared by the builder vendor is negligible. If there is improper construction such as defective heating system or a defective ceiling, stairway and the like, the well-being of the vendee and others is endangered and serious injury is foreseeable. The public interest dictates that if such injury does result from defective construction, its cost should be borne by the responsible developer who created the danger and who is in the better economic position to bear the loss rather than by the injured party who justifiably relied on the developer’s skill and implied representation.”
This Court is aware of the potential argument that an innovation such as this should be left to the Legislature, but we find the doctrine of caveat emptor to be a common law court-imposed doctrine and not that of the Legislature. In a case involving a similar fact situation, a court reasoned that:
“As might be expected, we have been presented with the timeworn, threadbare argument that a court is legislating whenever it modifies common-law rules to achieve justice in the light of modern economic and technological advances. That same argument was doubtless made in a famous case that parallels this one: MacPherson v. Buick Motor Co. (1916), 217 NY 382 (111 NE 1050). There the court, with respect to the sale of automobiles, abolished a requirement of privity of contract that was just as firmly embedded in the common law as is the rule that we are now re-examining. Yet the doctrine of the MacPherson case is now accepted as commonplace throughout the nation. We have no doubt that the modification of the rule of caveat emptor that we are now considering will be accepted with like unanimity within a few years.” Wawak v. Stewart (1970), — Ark — (449 SW2d 922, 925).
Our decision today on the issue of implied warranty of fitness is necessarily limited to the facts of this case and is therefore extended only to the purchase of new residential dwelling houses, whether they are purchased prior to construction, during construction, or are purchased after the dwelling has been constructed but is yet unoccupied.
In Carpenter v. Donohoe (1964), 154 Colo 78 (388 P2d 399), that court said:
“That a different rule should apply to the purchaser of a house which is near completion than would apply to one who purchases a new house seems incongruous. To say that the former may rely on an implied warranty and the latter cannot is recognizing a distinction without a reasonable basis for it, see Bearman, Caveat Emptor in Sales of Realty — Recent Assaults Upon the Rule (1960), 14 Vanderbilt L Rev 541.
Our extension of an implied warranty of fitness for purpose intended to new residential dwelling houses is in no way affected by MCLA § 565.5 (Stat Ann 1970 Rev § 26.524) upon which appellant relies, since appellees have not alleged that the implied warranty arises from the conveyance of real estate, but from the sales agreement entered into between the appellees and appellant. Such executory contracts are specifically excluded from the definition of “conveyance” by MCLA § 565.35 (Stat Ann 1970 Rev § 26.552), thereby rendering the import of MCLA § 565.5 (Stat Ann 1970 Rev § 26.524) inapplicable to the particular facts of this case.
Appellant’s third basis for alleging error in the denial of its motion for directed verdict is that the six-year statute of limitations for actions to recover damages for breach of contract which runs from the date the claim first accrues as provided in MCLA § 600.5833 (Stat Ann 1962 Rev § 27A.5833), bars appellees’ claim which was initiated more than six years after the first leak in the roof occurred.
We find that this position is not in accord with the Michigan rule as to when actions accrue for breach of warranty. In Felt v. Reynolds Rotary Fruit Evaporating Company (1884), 52 Mich 602, our Supreme Court, in a case involving a newly purchased evaporating machine, held that a cause of action did not accrue until after the parties had a reasonable opportunity to determine whether the machine could fulfil the conditions of the warranty. The case of Heath v. Moncrieff Furnace Co. (1931), 200 NC 377 (156 SE 920, 75 ALR 1082), applied the doctrine of Felt v. Reynolds to facts more analogous to those here presented. In that case, involving an action for breach of warranty on a furnace installed in an apartment building, it was held that the statute of limitations did not begin running until the date at which, after attempts to remedy defects in the furnace had failed, it was finally determined that it would not satisfy the terms of the warranty. In the annotation following the case (75 ALR 1086, 1087), it is said, citing Felt v. Reynolds and like decisions :
“According to the weight of authority it seems that the statute of limitations is tolled so long as the vendor insists that the defects in the article sold can he repaired and is attempting to do so.”
In a similar case involving a leaking roof, a court held that a cause of action for breach of warranty involving roofing materials accrued when the true condition of the roofing was discovered by the plaintiff, and the court intimated that this did not necessarily mean the date that the roof first began to leak, Cunningham v. Frontier Lumber Co. (Tex Civ, 1922), 245 SW 270.
We therefore find that the appellees commenced their action within a reasonable time after it was determined that repairs would not correct the leaking roof and that the commencement of the action was therefore well within the statutory time period.
Appellant complains of the excessive amount of damages awarded; of the trial court’s permitting appellees to show evidence of appellant’s stock ownership in Anza Industries of America, Inc.; and of the trial court’s refusal to admit appellant’s exhibit 5. The record shows however, that there is substantial evidence to support the findings on damages, and as to the second and third points, the trial court properly exercised its discretion as to the admission and exclusion of evidence.
Affirmed. Costs to appellees.
All concurred. | [
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] |
Holbrook, P. J.
This case involves two successive income protection policies issued in 1961 and 1963, respectively, by plaintiff, The Travelers Insurance Company, a Connecticut corporation, hereinafter referred to as Travelers, to defendant, Daniel E. Carey. In December, 1963, defendant filed a claim for benefits under the 1963 policy and thereafter Travelers, on the basis of false and material misrepresentations contained in defendant’s policy application, brought suit in Kent County Circuit Court January 28, 1965, seeking (1) rescission of the 1963 policy and (2) a permanent injunction restraining defendant from proceeding to enforce said policy of insurance. Defendant Carey filed a cross-complaint seeking (1) damages for failure of Travelers to pay benefits under the 1963 policy; (2) reformation of the 1963 policy application and enforcement of said policy; or (3) enforcement of the 1961 policy and recovery of accrued benefits as therein provided.
Trial in the present action proceeded before the late Honorable Claude Vander Ploeg but was not decided prior to his untimely death. Defendant brings this appeal from the decision and judgment in favor of Travelers, entered by the Honorable John H. Vander Wal, to whom the case was assigned for decision on the record.
In 1961 defendant Carey made application with Travelers Insurance Company for disability insurance. Travelers’ agent, Wendell Smith, recorded on the application form defendant Carey’s answers to the questions therein contained. Pursuant to the application as completed, Travelers issued to defendant, effective October 1, 1961, an Executive and Professional Income Protection policy, number' NCD (3)-27, providing for a monthly benefit in the amount of $150, payable during any period of “total disability”, defined as “inability of the insured to engage in any and every occupation or employment for wage or profit for which he is qualified or may reasonably become qualified”, caused by “sickness” or “injuries” as defined in the policy. Coverage to the insured was for a term of six months, renewable at the option of the insured upon payment of the premiums. Premium payments were made quarterly by defendant Carey under the 1961 policy, the last quarterly premium being paid for the quarter ending December 31, 1962. Prior to January 1, 1963, Mr. Smith informed defendant Carey of the impending availability of a more comprehensive policy of disability insurance. Defendant, after conferring with Mr. Smith, on January 25, 1963, applied for a new disability policy increasing coverage to $250 per month to replace the 1961 policy. Defendant Carey, in accordance with Travelers’ standard procedure, on January 30, 1963, returned the 1961 policy to its agent, Mr. Smith, who then dated the 1963 policy application as previously subscribed by defendant. The premium was paid by defendant and a new policy, number NCD(3)-244, was issued effective February 1, 1963. Mr. Smith testified that he tried to see to it that defendant Carey would be continuously insured for disability.
The first quarterly premium on the 1963 policy was $43.50; however, defendant paid $50.51, and it was understood between the agent and defendant that the excess amount was for the premium on the 1961 policy for the month of January, 1963.
The 1961 and 1963 disability insurance policies issued to defendant were identical except that the 1963 policy required larger premium payments, and provided for an increased monthly benefit and lifetime indemnity for total disability. Both policies required a waiting period, consisting of the first 28 days of any period of total disability, after which payments would commence. In addition, each policy contained an exclusionary clause which stated in part:
“[N]o payment shall be made for or on account of, any loss which is caused by or results from # # #
“'(1) sickness or disease or physical condition which manifests itself prior to 14 days after the policy date, or injuries occurring prior to the policy date. (This exclusion is subject to the policy provision captioned ‘Incontestable’); * * * ”
• Under the heading “Incontestable” each policy contained the following clause:
“(a) After this policy has been in force for a period of two years during the lifetime of the insured (excluding any period during which the insured is disabled), it shall become incontestable as to the statements contained in the application.”
The record shows that, at the time defendant Carey made claim for total disability benefits under the 1963 policy in December, 1963, be had, under the 1961 policy, certain vested valuable interests, by reason of its having been issued effective October 1, 1961, vis.: the expiration of the periods during which Travelers could assert (1) the 14-day exclusionary clause and (2) the 2-year incontestable clause.
The testimony revealed that it was Travelers’ agent, Mr. Smith, who suggested to defendant that he replace his coverage under the 1961 policy with that of an entirely new policy, without discussing with defendant the possible disadvantages to him from so doing. Mr. Smith testified in part: •
“Q. But there was no discussion between you and Mr. Carey about any lapse of coverage if he surrendered this policy, and took another policy?
“A. I don’t recall any such conversation with him.
“Q. Did you discuss with him at all, at the time of taking his application for this policy, that his incontestable period under the policy would start to run all over again?
“A. No, sir. In fact, I might have said the opposite.
# # #
“Q. And, according to plan and design, then, there was no time when Carey was not insured, as far as you were concerned, under one or the other of the Travelers policies ?
“A. That is true, with the possible exception of this 14 days.
*.y. .y.
“Q. Did you explain to Carey if he got sick during that 14-day period, he would not have any insurance ? “A. I don’t recall it.
# # #
“Q. If the old policy had simply stayed in force, that is the 1961 policy for $150 a month, there would not have been any 14-day delay in February, 1963, would there ?
“A. That is true.
* * #
“Q. Now, wouldn’t you say, as a man skilled and experienced in insurance, that if Carey gave up a policy that had a 2-year incontestable period on it, at a time when 15 months of that period had expired, that he was giving up a valuable right?
“A. Yes, he would be.
* * #
“Q..You did recite on the (1963) application, the policy, Exhibit No 1, was a replacement?
# # #
“A. Yes, there is a question in all of these applications as to replacements of any policies, and this application answer was that this replaced the previous policy.” (Emphasis supplied.)
The 1963 policy was a replacement for that issued to defendant Carey in 1961. It is clear from the record that the 1963 policy in fact encompassed the first policy within its terms, since the 1963 policy provided coverage of $150 per month, as did the 1961 policy and, additionally, provided $100 per month increased coverage over the 1961 policy, for a total of $250 in monthly benefits. Travelers’ agent chose to write a new policy for defendant Carey in 1963 although the company could have allowed defendant to retain the 1961 policy.with the vested rights which had accrued to him under that policy, while issuing, in addition thereto, the second policy with monthly benefits of $100.
Defendant’s counsel conceded that certain of the answers given by defendant in the 1963 policy application were inaccurate. Both parties agreed, however, that no fraud or moral turpitude on the part of defendant was in issue but, rather, that the misstatements by defendant while not intentionally made to deceive, were material and affected Travelers’ acceptance of the risk and the hazard assumed by issuing the 1963 policy. Defendant asserts that while Travelers was, upon the basis of such false statements, entitled to rescission of the 1963 policy, pursuant to CLS 1961, § 500.2218 (Stat Ann 1970 Cum Supp § 24.12218), that upon rescission of the 1963 policy the 1961 policy was still operative.
The issue to be determined is restated as follows:
Where the insurer issued to the insured two successive income protection insurance policies, the second replacing the first, and thereafter obtained rescission of the second policy, is the insured entitled to the benefits and terms of the first policy under the law of restitution which considers the first contract as being operative and not extinguished?
The trial court made the following conclusions of law:
“1. That Travelers is entitled to rescission of the 1963 policy, Exhibit 1.
“2. That in connection with rescission of said policy, Travelers is obliged to restore its insured, Daniel E. Carey, only to the benefits that the insurance company received up to that time, namely: the payment of the premiums and interest thereon.
“3. That rescission does not restore to Daniel E. Carey the 1961 policy.
“4. Due to the conclusion of law set forth above in paragraph number 3, it is unnecessary for the Court to decide what effect a restoration of the 1961 policy would have in relation to the two-year incontestable clause. However, if the 1961 policy was restored by reason of the rescission, the Court would hold that rescission is of in [sic] ab initio, namely January 31, 1963, and the same applies to the insurance company restoring their rights to their two-year incontestable clause which still had nine months to run.”
Travelers, in support of the ruling of the trial court, asserts that, while a party seeking rescission of a contract must return, or offer to return, what it has received under the rescinded contract, citing 5 Williston, Contracts (Rev ed), § 1530, p 4292, Travelers received only premiums under the 1963 policy, as the trial court held; that Travelers is not required, as a condition of rescission, to restore to defendant the 1961 policy; that if the 1961 policy is to be reinstated, its incontestable clause must likewise be reinstated since, as the trial court found, the clause had several months yet to run at the time of issuance of the replacement policy February 1, 1963; and further, that the 1961 policy must then be declared rescinded for the claimed misrepresentations contained in the 1961 policy application.
The general rules governing the law of rescission are stated in 17A CJS, Contracts, § 440, pp 551, 552:
“Generally speaking, rescission abrogates the contract not partially but completely, from the beginning, for all purposes; and, after a binding election to rescind, a party cannot insist on rights thereunder, but each of the parties is returned to his previously existing rights. So, where a contract which annuls or modifies another is rescinded, the party may resort to his rights under the original contract(Emphasis supplied).
The rules applicable to rescission of contracts in Michigan are dealt with in (1) the case of Wall v. Zynda (1938) 283 Mich 260, 264, wherein the court adopted the following statement from 1 Black on Rescission and Cancellation (2d ed), § 1, pp 3, 4:
“ ‘To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning; that is, not merely to release the parties from further obligation to each other in respect to the subject of the contract, but to annul the contract and restore the parties to the relative positions which they would have occupied if no such contract had ever been made. Rescission necessarily involves a repudiation of the contract and a refusal of the moving party to be further bound by it. But this by itself would constitute no more than a breach of the contract or a refusal of performance, while the idea of rescission involves the additional and distinguishing element of a restoration of the status quo.’ ”;
and (2) Schimke v. Scott (1960), 361 Mich 654, which involved a single contract.
We gain further light on the subject from the case of Indiana Flooring Co. v. Grand Rapids Trust Co. (CA6, 1927), 20 F2d 63 at page 65 wherein the court stated:
“It is undoubtedly the law that, if a void or voidable contract is substituted for a valid preexisting obligation and the substituted contract is later rescinded, because void or voidable, the preexisting valid contract is restored, as if nothing had happened.”
Under the facts in this case, defendant would be entitled to credit on the 1961 policy premiums for that money paid to Travelers on the rescinded 1963 contract.
The incontestable clause in the 1961 contract was inserted therein as required by law. This provision is not frowned upon by the courts nor is it contrary to public policy. It provides for a definite date after which a policy of insurance cannot be contested, fixes the rights of the parties and permits the collection of benefits without expensive litigation. After this period has expired, the legal rights under the policy of the insured should be protected against attack by the insurer. This we conclude is guaranteed by the contract and approved by the public policy of our state.
We find support for our ruling on the law in the case of Spellman v. Ruhde (1965), 28 Wis 2d 599 (137 NW2d 425), cited by defendant. In Spellman, as in the present case, the parties entered into two successive agreements, the latter of which was rescinded, the parties agreeing that rescission was properly granted. The Wisconsin Supreme Court stated at pp 603, 604:
“He [the plaintiff] argues that the 1964 agreement was a novation, which completely extinguished the previous agreement. Rather than a novation, however, it appears that this was a new contract which was intended to replace the 1963 agreement and, had it been valid, would have discharged the obligations of the earlier contract. Since this agreement in 1964 has been found to be a nullity # * ¿Tte rights under the 1963 agreement have not been extinguished.
“As this court has previously said:
“ ‘To rescind a contract is to annul the contract and restore the parties to their relative positions which they would have occupied if no such contract had ever been made.’ First Wisconsin National Bank v. Pedley (1932), 208 Wis 628, 635 (242 NW 512, 514). Generally, see 17A CJS Contracts §440, p 552/ and 17 Am Jur 2d, Contracts § 516, p 1002.
“Another standard textbook on the subject has stated the general rule to be:
“ ‘* * * the substituted contract may itself be voidable for fraud, infancy, or other reasons; and if the power of avoidance is exercised, the avoided contract is nullified both as an executory contract and as a discharge. The prior claim then becomes again enforceable.’ 6 Corbin on Contracts, § 1293, p 196.
“The trial court properly concluded that the 1963 agreement must be considered viable upon the demise of the 1964 agreement.” (Emphasis supplied).
As we interpret Spellman, supra, and apply its holding to the facts in the instant case, the 1963 policy, having been rescinded, is a nullity, and the 1961 policy was not extinguished and its terms continued to operate including the running of the two-year incontestable period.
Equity cases are reviewed de novo, and we do not generally reverse or modify, unless convinced that we would have had to reach another result had we occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578; Socha v. Socha (1966), 5 Mich App 404; and Georges v. Ballard (1969), 20 Mich App 554. We are persuaded that had we occupied the position of the trial court in the instant case that we would have been required to reach a different result.
Reversed and remanded for further proceedings to determine whether defendant qualifies for disability benefits under the 1961 policy, with costs to defendant. | [
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Per Curiam.
Plaintiff and defendant entered into an agreement for the sale of plaintiff’s patent rights in a catch-basin cleaner. Among other considerations, defendant agreed to pay plaintiff in the event of a Canadian sale of the rights, 12-1/2% of the net proceeds up to the amount of $12,500. A supplemental agreement provided that plaintiff was to receive $10,000 at the rate of $150 per month in the event that no Canadian sale was consummated. Upon such a sale, however, the parties would resort to the original formula clause.
When the basin cleaner proved less productive than originally anticipated, defendant was able to obtain only $1,000 for the Canadian rights, thus entitling plaintiff to $125 under the formula clause. Defendant in its letter to plaintiff stated:
“At the present time I have a legitimate buyer for all Canadian rights for $1000 cash. This amount is satisfactory to the remaining interest holders. Thus, you are entitled to $125, payment in full, in settlement of all claims against me under the terms of our present agreement. This figure, of course, is the gross figure and from this must be deducted your appropriate share of costs for this transaction.
“However, because this figure is so much less than you and I anticipated, the conditions as you represented them to me have been greatly altered and different. Because I realize this figure is low, I am willing to allow the original calculations to remain effective except that there will be no monthly payment due you until the machine is more satisfactorily developed and we can sell Canadian rights at a much higher figure.
“Thus, you have one of two choices. One: you can accept the $125 minus expenses immediately, or two: modify the original agreement so that you can get 12-1/2% of the net sales when and if a better deal is consummated. This, I assure you, will be attempted most strenuously when we have a machine developed that is of satisfactory functional and sales appeal.”
This letter was answered by the plaintiff’s attorney July 27, 1964, prior to the expiration of the time in which defendant could sell the patent rights for Canada. It is stated therein as follows:
“It is my understanding that by work on your part and that of your agents that a new design has been worked out for the machine and that a considerable amount of your own funds have been expended in developing- the machine and that now it seems quite likely that a machine can be built that should work out for the best interests of all parties concerned including- the interest of my client.
“I am therefore authorizing you to forbear any payments due soon under the agreement with Mr. Liscomb for the consideration that you will use due diligence in the developing of the machine and placing same on the market. I agree that you have a valid offer for the Canadian rights but ask that you do not sell same and use diligence as presently planned on your part that eventually same may be sold if decided to do so at a much better price than your present offer.
“Before sending this letter to you I am sending-same to Mr. Liscomb that it is my advice that the below approval and consent should be executed by himself and returned to this office so that I can then forward same to your office.”
The said letter was approved and consented to by the plaintiff by affixing his signature thereto.
The supplemental agreement specifically provided that it would be inoperative provided the Canadian patent rights were sold prior to six months from the 28th day of January, 1964, or the 28th day of July, 1964. In any event, if there was a sale of such rights then the original agreement would control and plaintiff would be entitled to 12-1/2% of the amount received from such sale. Defendant made arrangements to sell the Canadian patent rights for $1,000 on July 20, 1964, and plaintiff agreed that this was a bona fide offer, and thus permissible unless both parties agreed that the sale would not take place. Plaintiff requested that the sale not take place but that a sale be deferred with the hope that a higher price could be obtained.
The trial court found that plaintiff had indeed agreed to revert to the formula clause in hopes of obtaining a higher price for the Canadian rights at a later date. There was ample evidence to support this conclusion by the trial judge. We will not disturb this finding of fact. Barnes v. Beck (1957), 348 Mich 286; Merrill v. Shumway (1962), 367 Mich 14. Reversal on this ground is afforded only when “crucial proof has been overlooked or ignored”. Northwest Auto Company v. Mulligan Lincoln-Mercury, Inc. (1957), 348 Mich 279, 284.
Plaintiff raises a second issue on appeal: “Should a term be implied in the agreements that, to be accepted, an offer for the Canadian patent rights must be reasonable?”
Plaintiff’s second issue was not raised at any point during the course of the lower court proceedings. It will not be considered for the first time on appeal. Baker Construction, Inc. v. Chris Nelson & Son, Inc. (1965), 1 Mich App 450; Young v. Morrall (1960), 359 Mich 180.
Affirmed. Costs to defendant.
To pay to Liseomb 12-1/2 per cent of the net proceeds of the sale of Canadian patent rights and/or royalties, not to exceed $12,500; said sum if paid from royalty, to be paid at the rate of 50 per cent of Twinwood’s net share of said royalty. Nothing in this paragraph shall be construed to place any obligation on Twinwood to initiate or complete the sale of Canadian rights.
Supplemental Agreement.
As a further consideration, Twinwood shall pay to Liseomb the sum of $10,000 at the rate of $150 per month commencing six months from date hereof if no Canadian sale of patent rights and/or royalties is consummated as contemplated by paragraph 5 on page 3 of the agreement dated October 30, 1963 under the heading “Twinwood Agrees,”
Provided, however, that if said Canadian patent rights are conveyed or Canadian royalties received by Twinwood, then in such event, Twinwood shall receive credit for all of said payments and the terms of the said paragraph 5 shall come into full force and effect. Nothing herein contained shall obligate Twinwood beyond the terms of said original agreement dated October 30, 1963, if a Canadian transaction is consummated. | [
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] |
Y. J. Brennan, J.
On December 23,1968, defendant Thomas Irwin, while in the presence of counsel, pleaded guilty in the Genesee County Circuit Court to a charge of carrying a concealed weapon. MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). The court conducted a full examination under GCR 1963, 785.3 (2) and accepted the plea. On February 3, 1969, before sentencing, the defendant moved to withdraw his plea, alleging (1) that it was induced by a police officer’s promise to have other outstanding charges dropped, and (2) that there “might be legal defenses based on violation of his right against unreasonable search and seizure and possibly other constitutional rights.” The “other constitutional rights” were never specified. An evidentiary hearing was held on the first allegation and the motion was denied. Defendant appeals as of right.
Defendant contends that the court based its ruling on his failure to assert his innocence in the affidavits filed in support of the motion and that the court was therefore in error. People v. Zaleski (1965), 375 Mich 71. The first part of his contention is not supported by the record. Although the court did mention the defendant’s failure t^ assert his innocence, it did so only in passing. The court instead based its ruling on its finding that no promises had been made, a finding entered after the court had heard testimony from both sides, and well supported by the record.
The claim of illegal search and seizure was apparently abandoned at the evidentiary hearing. The defendant renews his claim on appeal, however, and asserts that it entitles him to withdraw his plea. We disagree. Our Court has recently held that a plea of guilty tendered freely, understanding^ and voluntarily while in the presence of counsel waives a claim of illegally-gained confession. People v. Temple (1970), 23 Mich App 651. The same may be said of a claim of illegal search and seizure. People v. Harvey (1970), 24 Mich App 363. See, also, Hughes v. United States (CA 8, 1967), 371 F2d 694; Benton v. United States (CA 9, 1965), 352 F2d 59; Harris v. United States (CA 9, 1964), 338 F2d 75, Mahler v. United States (CA 10, 1964), 333 F2d 472.
The withdrawal of a plea of guilty before sentencing is not of right but within the sound discretion of the court. People v. Zaleski, supra; People v. Whitmer (1969), 16 Mich App 703. We find no abuse of that discretion.
The order denying the motion to withdraw the plea is affirmed.
All concurred. | [
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Per Curiam.
While walking home from work, around 1:30 a.m., December 14, 1968, Eugene Spangler was attacked and robbed of approximately $25 by a Negro man wearing a green jacket and a parka hood. Defendant Rohne Miller was convicted of the crime (unarmed robbery ) after a trial by jury in the Wayne County Circuit Court. He appeals as of right.
Defendant’s principal contention is that his guilt cannot be reasonably inferred from the facts proven, and, therefore, he was not proven guilty beyond a reasonable doubt. From a review of the record, we conclude that this contention is without merit.
Eugene Spangler testified that although he was unable to discern his assailant’s facial features, he was “positively certain” the jacket worn by the defendant at the time of arrest was the jacket worn by his assailant. Spangler also testified, for reasons soon to become apparent, that he found a brown cloth glove lying on the ground immediately after his assailant fled. According to an eyewitness who saw the robbery from his front porch, some 35 feet away, the assailant was a Negro of substantially the same height and weight as the defendant, wearing a green jacket and a parka hood, with a dark-colored glove on his left hand but none on his right. The eyewitness telephoned the assailant’s description to the police. According to the arresting officers, the defendant was arrested on a nearby street some 20 minutes later and at the time was wearing a green jacket with a hooded jacket underneath. A nylon stocking and $22 were found in his pocket; Spangler’s wallet was found about 10 feet away. The arresting officers also testified that after taking the defendant to the station house they found the mate to the glove dropped by the assailant stuck in the crevice of the rear seat of the squad car, and that the defendant’s shoe fit perfectly into an impression left in the grass at the scene of the crime.
Although the evidence of gmilt is circumstantial, it is nevertheless sufficient to sustain the jury’s verdict. People v. Stoneman (1967), 7 Mich App 65. We find no error.
Defendant’s second contention — that the trial court erred in declining to give a proposed instruction dealing with the permissible limits of inferences and circumstantial proof — is equally without merit and requires no discussion. The instruction that was given clearly and fairly stated the law.
Affirmed.
MCLA § 750.530 (Stat Ann 1954 Rev §28.798). | [
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Bronson, J.
Decedent, John W. Parker, died September 1, 1964, survived by his wife, Myrtle; two children lay their marriage, Frank D. Parker and Marion Joan Maurer; a son by a former marriage, Norman L. Parker; and a stepdaughter, Dorothea Squiers, Myrtle’s daughter by a former marriage.
On October 23, 1964, decedent’s last will was admitted to probate in Wayne County. The will contains two paragraphs which are the subject of this litigation.
Paragraph IY provides:
“I give, devise, and bequeath outright and absolutely to my beloved wife, Myrtle Parker, if she shall survive me, such portion of my estate which, when added to all other property included in the amount allowed as the marital deduction, shall result in an amount equal to one-half of my adjusted gross estate as defined by the internal revenue laws of the United States effective at the time of my death and as determined for Federal estate tax purposes.”
Paragraph V provides:
“I give, devise, and bequeath to my children, Norman L. Parker, Frank I). Parker, Marion Joan Maurer, and Dorothea Squiers (the daughter of my wife by previous marriage), share and share alike, the undivided one-half of my estate remaining after such portion of my estate passing to my wife, Myrtle Parker, under this my will has been computed and determined, namely, all the rest, residue, and remainder of my estate, real, personal, and mixed, and wherever situate, after allowance or payment therefrom of all inheritance, estate, and succession taxes and charges of every description as provided in paragraph II hereof to have and to hold absolutely unto themselves.”
On August 30, 1967, the co-executors, Norman L. Parker and Dorothea Squiers, petitioned the probate court for construction of the will because of a disagreement among the heirs as to the legal effect of the above paragraphs on the distribution of assets. The daughters contended that the paragraphs constituted a general pecuniary bequest to the widow of a fixed dollar amount, computed in accordance with the formula. Mrs. Parker and the sons contended that the paragraphs constituted an undivided fractional residuary bequest to the widow of a portion of the residuary assets of the probate estate, computed in accordance with the formula.
On November 17, 1967, the probate judge entered an order construing paragraphs IV and V according to defendants’ contention, i.e., that the will left a fractional residuary bequest to the widow. The probate judge denied admission into evidence of certain depositions going to the circumstances present .at the time testator executed the will. Deponents were decedent’s attorney who drafted the will, his accountant, and a family friend.
Plaintiff appealed to circuit court. Defendants cross-appealed as to that part of the order denying admission of depositions into evidence. The Wayne County Circuit Court affirmed the prohate court, holding that the widow should receive one-half of decedent’s probate estate. The circuit court held it proper to consider evidence of testator’s circumstances at the time of execution of the will and did admit certain depositions and testimony on the point.
Plaintiff appeals to this Court by application for leave to appeal as required by MCLA § 600.308 (Stat Ann 1970 Cum Supp § 27A.308) and GCR 1963, 801.3(1) and GCR 1963, 806.1, as amended February 13, 1969, effective immediately (381 Mich lxxvii and lxxviii).
Paragraphs IV and V of decedent’s will are bequests designed to take advantage of the marital deduction allowed by Federal estate tax laws.
Volume 34 Am Jur 2d, 1970 Federal Taxation, § 8683, p 797, comments on the deduction and the draftsman’s devices utilized to achieve it.
“Because of the importance of the marital deduction in reducing estate taxes, it is frequently the testator’s wish to take maximum advantage of it. Changes in composition or fluctuations in value of the estate’s property make it difficult to determine in advance the maximum deductible amount (50% of the adjusted gross estate) but no more or no less. The use of formula bequests, expressed in terms of the maximum marital deduction for estate tax purposes or 50% of the adjusted gross estate, is designed to overcome this difficulty by assuring the maximum deduction regardless of changes which take place in the estate’s assets.
“There are two main types of formula bequests: (1) pecuniary bequest which is phrased in terms of an amount equal to the maximum marital deduction after reduction by the value of other property passing either under or outside the will which qualifies for the marital deduction, and (2) the fraction of the residue bequest which is phrased in terms of that fractional share of the residue of the estate which will result in the maximum marital deduction when added to other qualifying interests passing both under or outside the will. The fraction of the residue bequest is also phrased in terms of a numerator equaling the maximum marital deduction less other qualifying interests and a denominator equal to the residuary estate.
“The fractional share of the residue formula bequest permits the widow to share in any appreciation in the value of property between date of death and the date of distribution. The pecuniary bequest may or may not.”
Decedent’s estate consisted primarily of 36,400 shares of Parker Majestic Co., formerly Majestic Tool & Manufacturing Co. Defendants, decedent’s wife and sons, owned the remaining 3,600 shares. The estate at death also included a marital home owned by the entireties, $50,000 life insurance payable to decedent’s estate and a $7,500 life insurance policy payable to his wife.
The stock proved to be the source of controversy. In a scholarly and concise opinion, Wayne County Circuit Judge Montante explained the dispute as follows:
“Whether the interest of the widow is pecuniary or fractional is important, because of the marked increase in value of decedent’s estate’s assets during probate. If pecuniary — that is to say, a fixed dollar amount — the bequest will be unaffected by fluctuation of asset values during probate. If the bequest is fractional — that is to say, a percentage of the decedent’s property on the date of distribution — the widow’s interest will be affected by appreciation or depreciation of asset values during probate. In this case the problem is of considerable importance, because of the benefit to the widow in the one instance and the loss to her on a finding otherwise.” Opinion of court, pp 6, 7.
The case principally relied upon by plaintiff to support her contention that the testator intended a pecuniary legacy, i. e., one having1 a fixed dollar amount, is In re Estate of Kantner (1958), 50 NJ Super 582 (143 A2d 243). That case contains a preliminary comment helpful to an understanding of the present controversy:
“Under the Federal Revenue Act of 1948, § 361 [citation omitted], a method of substantial reduction of federal estate taxes was afforded, now commonly referred to as the marital tax deduction. In substance, this allows as a deduction from the estate of the decedent an amount equal to the value of any interest in property which passes or has passed from the decedent to the wife, but not exceeding 50% of the adjusted gross estate. Included in the qualifying 50% is, inter alia, property jointly owned and passing to the wife by survivorship and the proceeds of insurance on the life of the decedent payable to the wife. Since the adoption of the marital tax deduction provisions there has been a wealth of technical literature dealing with the subject and with ways and means of using the deduction in the drafting of wills to minimize Federal estate taxes not only on the estate of the principal decedent but also on the prospective estate of the surviving spouse. * # *
“All of the literature recognizes that there are two principal types of testamentary disposition for effectuating the marital deduction, the ‘pecuniary type formula’ and the ‘residue formula.’ '* * * The advantage of the ‘formula’ gifts was that they were worded so as, by definition, to fix an amount exactly equal to the maximum (or a percentage thereof, where desired) allowable deduction. The prime advantage of the formula gift, where worded to grant the full 50% of adjusted gross estate, is that while it accomplishes the maximum deduction for purposes of the federal estate tax on the estate of the primary decedent, it also minimizes the prospective estate tax on the estate of the surviving spouse when she (or he) dies, by keeping the gift to her as low as possible consistent with obtaining the maximum saving on the estate of the primary decedent.” 143 A2d at 246, 247.
Cases construing marital deduction clauses emphasize the particular words and phrases used in order to determine whether the testator or settlor intended a pecuniary legacy of a fixed sum or a fractional residuary bequest. Thus, “portion” or “portion of my estate” have been held to indicate an intention to create a fractional bequest. In re Nicholai's Estate (1962), 232 Or 105 (373 P2d 967, 969). Similarly, “part” demonstrates creation of a fractional interest. Matter of Bing (1960), 23 Misc 2d 326 (200 NYS2d 913). On the other hand, the phrases, “a portion of my estate” and “so much of my estate” were held to establish pecuniary legacies of fixed dollar amounts in In re Estate of Kantner, supra, and In re Althouse’s Estate (1961), 404 Pa 412 (172 A2d 146). The use of the word “amount” is said to characterize a pecuniary bequest and the phrase “fractional share” obviously suggests a fraction of the residue bequest. 34 Am Jur 2d, 1970 Federal Taxation, § 8683, p 797.
In addition, the placement of the residuary clause, first or after the marital deduction clause, is sometimes considered significant. In re Estate of Kantner, supra, considered it important that the marital deduction clause preceded the clause setting up the residuary estate.
However, the “words and phrases” test is not a satisfactory one. As noted, the phrase “portion of nay estate” was held to establish a pecuniary bequest in Kantner, supra, and a fractional bequest in Nicholai’s Estate, supra. Moreover, the particular words and phrases appear in differently worded clauses and must be construed in the context of the particular clause under consideration.
In the present case, decedent’s will uses words and phrases suggestive of each type of bequest. The one leading indication in decedent’s will of an intention to create a fractional share of the residue bequest is his reference in paragraph V to “the undivided one-half of my estate remaining after such portion of my estate passing to my wife * * * has been computed and determined.” This language certainly supports defendants’ contention that decedent intended a simple division of one-half of his estate to go to his wife and the other one-half to go to his children. That language was persuasive in the lower court’s decision.
Only because of the testator’s intention as indicated by Ms reference to “the undivided one-half of my estate” can it be said that the trial court correctly construed the disputed paragraphs of the will. Otherwise, the will admits of either construction.
Judge Montante in his opinion stated:
“In order to determine testator’s true intention, paragraphs IV and V must be read together. Appellants contend we may look only to the ‘four corners’ of the will and nothing more. Appellees say that the testator’s circumstances and property at the time of the execution of his will must be considered in determining which of two possible constructions was intended by the testator. We agreed with appellees’ contention and thus permitted testimony and exhibits to be received during’ the trial, over appellants’ strenuous objections.
“Were appellants’ objections valid, and should all of the testimony and exhibits have been excluded from consideration in rendering the court’s decision construing will?
“As previously pointed out, appellants’ cited case of Kantner holds admissible ‘circumstances attendant’ execution of will. We have, therefore, recognition even in the cases cited by appellants that it is proper to consider evidence dehors will.
“As early as 1879, the Supreme Court of Michigan, in Tuxbury v. French, 41 Mich 7, had occasion to remark:
“ ‘* * * The general principle is not to be overlooked that the words of a testator, like those of other persons, naturally refer to the circumstances about him at the time, and that in order to have his outlook and all reasonable means of explanation of his words, not in addition or contradiction to them, but to disclose his use of them, a knowledge of these circumstances is essential.’ (p 11)
“ ‘The case presented is one which calls for extrinsic matter to explain what is written; not to alter or destroy it. It is not an occasion offered to witnesses to insert something the testator left out or to cut out something he put in. What is called for is that the court shall be placed in the situation the testator occupied when he made the will, and in that situation of advantage read the words as written, and then interpret and apply them, unless there is such an uncertainty that the law is fairly baffled.’ (p 12)
“Where there is obscurity or ambiguity in the language so that the intent of the testator becomes doubtful, it is proper, therefore, to permit extrinsic evidence to discover the testator’s intent — In re Warmbier’s Estate [1933], 262 Mich 160 — and to consider the particular bequest in question as well as the language of the entire will, ‘together with circumstances surrounding the testator at the time it was executed, including his relation to the legatees’ — Morrow v. Detroit Trust Company [1951], 330 Mich 635, 645. Accord: Mills v. Butler [1961], 364 Mich 422; and the recent cases of In re Charlton Estate [1968], 9 Mich App 625, and In re Willey Estate [1967], 9 Mich App 245; and In re Wilson Estate [1962], 367 Mich 143 (Sturges v. Brown).
“Neither Lee v. Gaylord [1927], 239 Mich 274, nor Detroit Wabeek Bank & Trust Company v. City of Adrian [1957], 349 Mich 136, cited by appellants, rejects the view that evidence dehors the will is admissible, as long as it is only to explain the circumstances surrounding the making of the will in order to explain the terms actually used in the will. In Lee, supra, the court quoted from Waldron v. Waldron [1881], 45 Mich 350, as follows:
“ ‘ “Oral evidence cannot be introduced to explain the intent, except as it may bring before the court such circumstances surrounding the making of the will as may be necessary to an understanding of the terms employed. The evidence of the scrivener as to statements made to him preliminary to the draw ing of the will must, therefore, be rejected. To act upon these would be to frame a new will for the testator, based upon an intent which we should reach upon parol evidence, but which she failed to express in legal form.” ’ (Emphasis supplied.)”
The circuit judge therefore felt that it was necessary to view the will in the light of surrounding conditions at the time the will was made in order to understand and therefore fully implement the testator’s intentions. Taking such circumstances into consideration, the circuit court held that:
“[I]t is clear to us that the testator intended to give his wife such portion of his estate as, when added to qualified non-probate property passing to her outside the will, resulted in a fractional amount of one-half of his adjusted gross estate as defined by the internal revenue laws effective at the time of his death and as determined for Federal estate tax purposes; and that his children were to receive, share and share alike, the remainder, after payment therefrom of all taxes, charges and administrative expenses of the estate.”
The circuit court felt that the matter of the construction of the will of John Parker “is before this court and that I am asked on this appeal to give my construction to it.” Judge Montante further stated:
“In making this decision, however, I wish to amplify it further, if I may, because without such amplification, it is the belief of the court that there may be endless litigation between appellants and appellees regarding further construction, in view of the enhanced value of the property of the estate from the date of death to the date of distribution and because of the contention seemingly made by the appellees that this court must so construe the John W. Parker will as to require payment of all debts, administration expenses, inheritance taxes, and so forth, solely from the share of the interest of the children.
“Gentlemen, pursuing my opinion further, therefore, it is the decision of the court on construction of the John W. Parker will as follows:
“Paragraph IV has been referred to as a ‘preresiduary clause.’ The use of that expression was simply to discuss the formula suggested by Covey in order to determine whether a fractional interest or a pecuniary bequest was intended by the language used by the testator. From my examination of the entire will, in the light of the circumstances existing at the time the will was drafted, it is the opinion of the court that it would be a misnomer to refer to paragraph IV as a pre-residuary provision. On the contrary, my careful examination of the text in Mr. Covey’s bok reveals that a fractional share of a residue provision may be of two types, and it is my conclusion that paragraph IV is nothing more than part of the residuary esate.
“It is my view that nothing but confusion would exist in this case if there was an attempt made to compute what the widow had coming and what the children had coming if I were to adopt the suggestion made by appellees that debts, administrative expenses, and so forth, were to be deducted solely out of the share of the children. I don’t see it that way.”
We find no error in the decision of the Wayne County Circuit Court. Affirmed.
All concurred.
The circuit judge noted, and we agree, that
“Reviewing courts have repeatedly recognized the laek of value of will precedents, because the precedent established in any given case is valueless except in another one precisely like it. ‘Such matching of circumstances seldom occurs.’ Callaghan’s Michigan Pleading and Practice, Section 99.50, p 331.
“Examining the language in paragraph IV of the Parker will, ‘such portion of my estate which, when added to all other property included in the amount allowed as the marital deduction, shall result in an amount equal to one-half of my adjusted gross estate,’ it cannot be doubted that the word ‘portion’ has a certain fractional flavor to it, while the word ‘amount’ would appear to indicate a pecuniary bequest was intended. The use of both words in a single bequest provision has led to litigation to determine whether a legacy or fractional share was intended. See Kantner and Nicolai for opposite results cited above. The weight of authority, however, seems to side with appellants in this situation, although, admittedly, there is a split and there are no Michigan eases construing the precise provision.” | [
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Bronson, J.
On October 20, 1961, James Farr, the decedent, was injured in an industrial accident. Farr, an employee of Rudoni Excavating Company, was working on a drain project and was called upon to cut a 12 inch sewer pipe. His employer borrowed a hydraulic pipe cutter from the City of Lincoln Park. This machine was manufactured by defendant Wheeler Manufacturing Corporation and distributed by defendant Ellis and Ford Manufacturing Company.
To operate this machine, a chain is wrapped around the pipe to be cut, a valve is closed, and the machine is pumped. When enough pressure is obtained, the pipe will break, making a “pinging” noise.
On the day in question, Farr and a co-worker were in the process of cutting a 12 inch pipe. When the machine had been pumped 10 times, Farr heard a “ping” and thought the pipe had been cut. However, when the pipe did not fall apart, Farr bent over to see if the pipe had broken. At that instant, the chain broke and struck him in the head, causing his death.
Florence Farr, the decedent’s wife, individually and as administratrix of James Farr’s estate, brought suit in Wayne County Circuit Court against defendants alleging negligence and breach of express and implied warranties. The count alleging breach of express warranty was dropped at trial.
Plaintiff’s theory of the case was that the machine was unsafe because the pins in the chain were not large enough to withstand the pressure that would be exerted by normal use. In furtherance of this theory, Dr. Despres, a mechanical engineer and associate professor at the University of Michigan, testified that the chain was not made of a material sufficiently strong to withstand the stress produced by the machine.
At the conclusion of Dr. Despres’ testimony defendant first moved that Despres’ testimony be stricken because he was not qualified as an expert witness and, second, moved for a directed verdict.
The trial court below granted both defense motions. The key and only issue in this appeal is whether the lower court erred in ruling that plaintiff’s expert witness was not qualified to express an opinion. Dr. Thomas A. Despres was plaintiff’s expert. He holds a bachelor’s degree in industrial engineering, a master’s degree in mechanical engineering, and a Ph.D. in mechanical engineering. He was employed at the University of Michigan as an associate professor of mechanical engineering, and had been employed in a teaching capacity at the University of Michigan since 1959. He testified that he was a mechanical engineer; that mechanical engineering is the study of applied physics, practically applying the study of physics to engineering problems; that a mechanical engineer is a design engineer; and that mechanical engineering encompasses machine design and mechanical properties of metals. The record further discloses his testimony that the study of mechanical properties of metals is a study of the behavior of metal under the actions of environment, forces, and practical use. A mechanical engineer, Dr. Despres testified, begins with his metallurgical knowledge and from this determines what and how metals act under load, the magnitude of their strength, and what stresses will do to reduce metal strength.
Dr. Despres testified in great detail concerning the treatises upon which he had worked, the courses he taught, and his theoretical and practical background, including his assisting in the preparation and writing of a book dealing with stress, strength, and design.
Dr. Despres stated that within the field of mechanical engineering he had a specialty of mechanical properties and design, as well as metallurgical and failure analysis, which are subdivisions of mechanical properties and design. He stated that design is the main aim of mechanical engineering, and its ultimate purpose; that, in fact, the aim of most all engineering is to culminate in a design or an evaluation of a design for utilization by peo pie; that he himself had designed certain machinery, both for his students and for industry. Further, he stated that particularly he taught machine design to graduating seniors and that, on the graduate level, he taught application of advanced metallurgical principles to design, with stress and strength considerations.
Both parties agree, citing Accetola v. Hood (1967), 7 Mich App 83, that the determination of the qualification of an expert witness is within the discretion of the trial judge, that appellate courts only interfere to correct an abuse of that discretion.
Plaintiffs urge, however, that the trial court did abuse its discretion in the instant case. Neither defendants nor the trial judge dispute Dr. Despres’ eminent qualifications in the field of mechanical engineering. The trial judge nevertheless refused to qualify him as an expert because he knew nothing about the pipe cutter except what he concluded as a result of his mathematical computations. He never saw the device prior to two months before the trial, never built one, nor worked on one. He did not see the fractured part which had mysteriously disappeared.
The thrust of Dr. Despres’ testimony was that the strength of the pins in the chain was not adequate to withstand the pressures exerted in the operation of the machine.
Plaintiffs urge that the trial court abused its discretion by disallowing the testimony of Dr. Despres. Dr. Despres was acknowledged to be eminently qualified in the general field of mechanical engineering by the trial judge. The objection of the trial court was that he did not know the actual standard of care of design in the hydraulic pipe cutting industry in 1960, although he could testify concerning the design requirements of mechanical engineering in general, and concerning both the theoretical and practical requirements of industry in the application of generally accepted mechanical engineering principles. Dr. Despres stated that these universal principles ought to have been applied in the hydraulic pipe cutting industry, as well as in all industries.
The testimony of defendant Wheeler’s president is significant, in that it showed that there is hardly such a thing as a “hydraulic pipe cutter manufacturing industry”. Wheeler Manufacturing Corporation is the only company actually producing such a product and it merely assembles parts made by others on contract. Wheeler Manufacturing Corporation itself manufactures nothing. Further, there are two other manufacturers of pipe cutters, but neither of these work on the hydraulic principle.
Under these circumstances we are persuaded that Dr. Despres should have been allowed to testify even though he had no practical experience in the “hydraulic pipe cutter manufacturing industry”. See Sitta v. American Steel and Wire Division of United States Steel Corporation (CA6, 1968), 254 F2d 12, 16. See, also, Trowbridge v. Abrasive Company of Philadelphia (CA3, 1951), 190 F2d 825, 829; Hogue v. Permanent Mold Die Company (ED Mich, 1959), 177 F Supp 229, 232.
Defendant vigorously contends that Dr. Despres’ testimony was inadmissible because the jury was not given any standard of care in the industry in order that it might measure defendant’s actions. As authority for that position, Barton v. Myers (1965), 1 Mich App 460, is cited, in which the Court stated:
“The case is governed by Cheli v. Cudahy Brothers Co. (1934), 267 Mich 690, wherein it is said at page 695:
“ ‘ “No one is held liable to a higher degree of care than the average in the trade or business in which he is engaged.” Ketterer v. Armour & Co. (CA2, 1917), 160 CCA 111, 121 (247 F 921, 931; LRA1918D, 798).’ ”
But this Court has retreated from that standard as is seen in Witt v. Chrysler Corporation (1969), 15 Mich App 576, when we stated:
“In support of its contention that the law does not hold it to a higher degree of care than the average in the industry, defendant relies on Cheli v. Cudahy Brothers Company (1934), 267 Mich 690; Barton v. Myers (1965), 1 Mich App 460; Doutre v. Niec (1965), 2 Mich App 88, and Livesley, supra [(1951), 331 Mich 434].
“Literally, the language of Cheli, supra, supports defendant’s position that legally it is not held to a higher degree of care than the average in the industry. However, it was shown in Cheli that ‘there is no known practicable or feasible method of determining whether hogs are infested with trichinae.’ We do not accept Cheli as sound authority for the proposition here advanced by defendant.
“Barton, supra, involves warning, not testing and inspection, and the warning was given in print of a reasonable size. On the facts of Barton, the ‘higher degree of care than the average in the industry’ language may not have been inappropriate, but it certainly is not authority for defendant’s claim that it is held to no higher degree of care than the average in the industry. To adopt this view would permit the industry to set its own standard of care.
“Doutre, supra, does not support defendant and as we read Livesley, supra, it fixes the standard of care to which defendant is held as reasonable care.”
Gossett v. Chrysler Corporation (CA6, 1966), 359 F2d 84, 87, set forth the rule for design liability:
“It is the duty of a manufacturer to use reasonable care under the circumstances to so design his product as to make it not accident or foolproof, but safe for the use for which it is intended. This duty includes a duty to design the product so that it will fairly meet any emergency of use which can reasonably be anticipated. The manufacturer is not an insurer that his product is, from a design viewpoint, incapable of producing injury.”
The fundamental standard imposed on a manufacturer is to be reasonable and prudent under all the circumstances. In the area of product design, he must use reasonable and ordinary care under the circumstances in planning or designing his product so that it is reasonably safe for the purposes for which it is intended. Davlin v. Henry Ford & Son, Inc. (CA6, 1927), 20 F2d 317, 319; Annotation, 76 ALR2d 91, 95; 1 Frumer, Products Liability, § 7.01 [1], p 104; 1 Hursh, American Law of Products Liability, § 2:59, p 240. The Restatement of Torts, § 398, p 1084, and comment (a) thereunder, also essentially reflects these principles.
This Court agrees that merely proving that an injury would not have occurred had a particular product been differently designed does not necessarily establish a breach of duty as to design. 76 ALR2d at p 99. We would also state that it is per suasive evidence that the duty to design safely was not breached, to show that a large number of the products were used without injury. This evidence is not, however, conclusive proof that the product is reasonably safe.
In Northwest Airlines, Inc. v. Glenn L. Martin Co. (CA6, 1955), 224 F2d 120; cert den (1956), 350 US 937, (96 S Ct 308, 100 L Ed 818), involving negligence in design and manufacture of an airplane, the court said:
“[T]he fact that Northwest conformed to the practice of other airlines in failing to equip No. 44 with radar did not establish its exercise of ordinary care as a matter of law. Customary practice is not ordinary care; it is but evidence of ordinary care.” 224 F2d at p 129.
And in The T. J. Hooper (CA2,1932), 60 F2d 737, a contention of unseaworthiness of a ship was made because she was not equipped with radio receiving sets to receive storm warnings. In defense it was shown not to he a general custom among coastal carriers so to equip their ships. One ship line alone did it. The rest did not. Judge Learned Hand said this:
“Is it then a final answer that the business had not yet generally adopted receiving sets ? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. * * * Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” 60 F2d at p 740. (Emphasis added.)
And in Texas & Pacific R. Co. v. Behymer (1903), 189 US 468, 470 (295 S Ct 622, 623; 47 L Ed 905, 906), Justice Holmes observed: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence whether it usually is complied with or not”.
The reasoning and policy behind these expressions seems clear. If the standard of care is conclusively established within an entire industry by what those in the industry do, there would never be any reason, insofar as liability for faulty design is concerned, for an industry to improve. All that the members of an industry would have to do would be to insure that all manufacturers maintain the same standards, regardless of how low or how obviously defective.
We are not unaware of the fact that some industries are so small that it is virtually impossible for an injured party to find an expert with actual knowledge of industry standards. Under such circumstances, there may be only a handful of persons with such knowledge. If they are all employed by the “industry”, it is not realistic to expect them to testify that a standard has been breached and negligence committed.
Dr. Despres was not testifying regarding any property peculiar to the pipe cutting “industry”. His testimony was directed towards the strength of materials and metallurgical stresses. His testimony did not require any expertise in a particular “industry”. What was required was a general knowledge of mechanical engineering. This knowledge Dr. Despres admittedly possessed. Dr. Despres should have been qualified as an expert witness.
Reversed and remanded for new trial.
All concurred.
The Detroit Testing Laboratory had done a metallurgical analysis of the broken pin and determined that it had a tension yield strength of 242,000 pounds per square ineh. Using this figure, Dr. Despres applied a number of mathematical formulae and determined that the amount of stress the pin would withstand would be 140,000 pounds per square ineh before it would bend and deform permanently. The amount of stress that would be required to break the pin would be 152,000 pounds per square inch. Dr. Despres stated that accepted mechanical engineering design practice dictated that material strength should have a safety factor of from two and one-half to three times greater than the force to be applied against it. This, according to Dr. Despres, is design practice and was an accepted standard of mechanical engineering practice in 1960 when the pipe cutter was manufactured. | [
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Van Domelen, J.
Defendants appeal from the trial court’s denial of their motion to set aside a default judgment entered against them, arguing that the court below failed to follow the procedural guidelines of GCR 1963, 520.
Plaintiff brought suit in Macomb County Circuit Court on June 10, 1968, against defendant Protective National Insurance Company, through which he held insurance on his motor vehicle, and defendant Thomas Mulcahy, the local agent of the insurer and owner of Greg’s Collision. Keith B. Trace, Jr., entered an appearance for both defendants on July 15th.
After he failed to appear at a pre-trial conference or for trial dates, the court made unsuccessful attempts to contact him by telephone. Finally, on April 21,1969, the court took testimony and rendered a judgment for the plaintiff. The evidence introduced showed that the insurer issued a policy of auto insurance for plaintiff’s 1966 Buick on November 17, 1967, providing coverage for collision, theft, vandalism, and malicious mischief up to the value of the vehicle; that plaintiff’s automobile was involved in a collision on January 10,1968; that plaintiff notified the insurer’s agent who recommended he contact Greg’s Collision; that during the time after the accident and before delivery to Greg’s Collision the vehicle was vandalized; and that after five months, the repair shop billed the insurer $949.56, but plaintiff refused to accept the car because of shoddy workmanship. The judgment allowed plaintiff to recover the value of the car ($3500) and lost wages ($814).
Notice of the entry of default judgment was served by mail on May 7, 1969, although plaintiff had not filed a default with the clerk in accordance with GCB 1963, 520.1. The judgment was entered five days thereafter on May 12, 1969, although GCB 1963, 520.2(2) requires a seven-day waiting period. This departure from the rule takes on added significance in light of the fact that a second attorney, retained by the insurer because it was unable to contact Mr. Trace, inquired as to the status of the case on May 13, 1969, within the seven-day waiting period of 520.2(2). Defendant insurer moved to set aside the default judgment pursuant to GCB 1963, 520 and 528 on May 26, 1969, and defendant Mulcahy on June 3, 1969.
The trend of recent decisions both in onr courts and in the Federal courts has been toward liberal construction of the default judgment provisions in order to achieve meritorious determination of cases. Walters v. Arenac Circuit Judge (1966), 377 Mich 37, 47. The Supreme Court has combined this with strict construction of the procedural requirements of the rules.
In the many cases interpreting the predecessor of GrCR 1963, 520, Court Rule No 28 (1945), the Supreme Court held that there must be strict compliance with provisions relative to the entry of default judgments, and a failure in that regard required that the judgment be set aside. See e.g., Smak v. Gwozdik (1940), 293 Mich 185; Rosen v. Wayne Circuit Judge (1928), 244 Mich 397; McHenry v. Village of Grosse Pointe Farms (1933), 265 Mich 581; Watkins v. Wayne Circuit Judge (1929), 247 Mich 237. However, where the defect in procedure was only the failure to file the nonmilitary affidavit, now GrCR 1963, 520.3, the Supreme Court has been reluctant to set aside the judgment absent a showing of prejudice because of the defect. Haller v. Walczak (1956), 347 Mich 292.
In recent cases, we have required that plaintiffs must comply with the seven-day notice provision of GrCR 1963, 520.2(2) once a party formally appears, in order for their judgments to retain validity. In Advance Dry Wall Company v. Wolf-Gilchrist, Inc. (1968), 14 Mich App 706, where one defendant had no notice of the default proceedings, we said as to her, “The rule as to notice was not properly fulfilled and to allow the judgment to stand against her would be to deny her due process.” 14 Mich App at 713; Rhodes v. Rhodes (1966), 3 Mich App 396, 400.
On the other hand, the Supreme Court has expressed a clear policy against setting aside defaults. White v. Sadler (1957), 350 Mich 511. The power to set aside such judgments has traditionally been one within the discretion of the trial court, disturbed on appeal only upon a showing of clear abuse, Rhodes v. Rhodes, supra, 3 Mich App at 403; Seifert v. Keating (1955), 344 Mich 456; Crew v. Zabowsky (1959), 357 Mich 606. We have, however, distinguished White v. Sadler, supra, in McDonough v. General Motors Corporation (1967), 6 Mich App 239, where we thought it unconscionable to let the default judgment stand:
“[White v. Sadler], demonstrating the Michigan position of strictness regarding setting aside default, is definitive and yet we do not believe that it was written with a view toward condoning and perpetuating a judgment fraught with manifest injustice.” 6 Mich App at 244.
In the present case, some injustice is evident, although not of the proportion of McDonough. The transcript of the default proceedings indicates there was no proof as to the actual value of the vandalized vehicle. In addition, by the very terms of the contract on which plaintiff sued, the insurer is liable for no more than the value of the automobile although the trial court awarded plaintiff $814 for lost wages.
We think our explicit language in McDonough and Wolfe-Gilchrist requires that the present case be remanded to the trial court for a determination on the merits, particularly for the benefit of the insurer, who as the more “collectible” of the two defendants would bear tbe full burden of the $4,314 judgment even though its responsibility upon the facts shown would be substantially less. Carter v. State Farm Mutual Insurance Company (1957), 350 Mich 535. By vacating the judgment plaintiff would be put to the test of proving a case on the merits without prejudicing his true cause of action. McDonough, supra, 6 Mich App at 247.
We recognize, however, that the plaintiff should not be penalized for the defendants’ original selection of an attorney who did not properly represent their interests. They should be obligated to pay counsel fees and costs arising out of the litigation. We recommend as a guide to the trial court the Supreme Court’s award in Walters v. Arenac Circuit Judge, supra.
Beversed and remanded for trial. No costs are awarded in this Court.
All concurred.
See e.g., Wilver v. Fisher (CA 10, 1967), 387 F2d 66; Consolidated Masonry & Fireproofing, Inc. v. Wagman Construction Corporation (CA4, 1967), 383 F2d 249; Thorpe v. Thorpe (1966), 124 App DC 299 (364 F2d 692); Horn v. Intelectron Corp. (SD NY, 1968), 294 F Supp 1153, all construing the Federal Rules 55(b) and 60(b), corresponding to our 520.2 and 528.3. | [
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] |
Per Curiam.
This case is submitted on the people’s motion to affirm. James Ray Walker pled guilty to a charge of assault with intent to commit rape, MCLA § 750.85 (Stat Ann 1962 Rev § 28.280). He appeals, contending that his guilty plea was accepted in violation of GCR 1963, 785.3 because his admissions of guilt were qualified and equivocal and indicated that he had no recollection of the crime.
The nature of the defendant’s admissions must be judged in the context in which they were made. People v. Wilkins (1966), 3 Mich App 56. When this is done, it is clear that the defendant’s admissions of guilt are unqualified and unequivocal and that he does remember the crime.
The motion to affirm is granted. | [
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Bronson, J.
This is an appeal from an order issued by the Wayne County Circuit Court affirming the findings of the Michigan Department of Social Services. The Michigan Department of Social Services had denied the plaintiffs’ application for a license to add six day-care children to the six children under age 17 already in the plaintiffs’ foster home.
PA 1944 (1st Ex Sess), No 47, as amended, MCLA § 722.101 et seq. (Stat Ann 1969 Cum Supp § 25.358 [1] et seq.), provides for the licensing of child welfare agencies and the regulation and supervision of the care and placement of minor children in private homes of persons unrelated to them. The Department of Social Welfare is charged by § 2 of this statute with the development of adequate standards of child care and the making of rules and regulations deemed necessary or advisable to effect such standards to protect the best interest of minor children and to carry out the purposes of the act. The statute provides at § 3 that foster homes must be licensed by the department and that the license shall specify the number of children that can be received. The statute also provides at § 4 that licensed foster parents shall inform the department whenever they receive a child not placed by the probate court or a licensed child-placing agency.
Since 1956, plaintiffs have been licensed to conduct a foster home for the full-time care of four foster children. Carl E. Mehrer, the former husband of Julia Mehrer, is now deceased. The surviving plaintiff has four unrelated foster children in the home plus two children they have adopted.
Although the now-deceased Carl Mehrer was over 67 years of age, exception was made in his case as an overage foster-care father under 1962 AACS, E 400.193(18) of the Administrative Code, which provides in part:
“The applicant shall not be over 65 years of age. Exception may be made at the discretion of the social welfare department.”
In 1966, the department discovered that for about ten months plaintiffs had advertised for, and boarded, two additional children on a day-care basis in violation of the law and regulation and without telling the authorities, contrary to 1962 AACS, R 400.191(5), which provides:
“The licensee shall not accept more children than the maximum specified in the license. If additional room is available or other changes warrant an increase in the license, the licensee or the supervising agency shall request the Michigan social welfare department to increase the authorized number of children who may be boarded in the home.”
This limitation was adopted for a purpose. That purpose was to insure that foster homes would not become overcrowded so that children could receive adequate attention. However, the director’s denial of the plaintiffs’ application was not based on the violation of this regulation.
After the department discovered the plaintiffs’ violation, the plaintiffs filed an application with the department seeking a license for the day care of six children aged two to five in addition to the children they had already been licensed to care for as “foster children”. The application form is captioned “application for license to conduct a foster home for children”, and states that it is filed under PA 1944 (1st Ex Sess), No 47.
The application was denied administratively on December 8, 1966. On January 6, 1967 plaintiffs’ attorney protested the denial and requested a hearing. On February 23, 1967 the hearing was held and on April 7, 1967 the director denied the appeal, stating:
“Rule 400.191 (1) provides that ‘No home shall be licensed for more than 4 children except when it is desirable for brothers and sisters of 1 family to be kept together, or when some other special need exists.’ It further provides that exception to this rule may be made only by the state department. I recognize that you requested this hearing in order to obtain such an exception to the limitation of this rule.
“However, discretion to make such an exception is nullified in this instance by rule 400.193(19), which limits the number of children to be maintained in any foster home to 8. Your application of 10-31-66 indicates 6 children under 17 years already in your home. To issue a license for 6 additional children as requested in your application would be in violation of this rule, to which no exception is authorized.”
Plaintiffs then commenced this action in the circuit court appealing the director’s denial of their application. They contend that the eight-child limitation is applicable only to the full-time-care children and is not applicable to day-care children.
The defendant has promulgated separate rules and regulations concerning day care centers and nursery schools. A day care center is defined as “a day time group facility which gives care for preschool children away from their homes but which need not employ a teacher approved by the department of public instruction. It provides a program which promotes the development of the individual child and is under the direction of a person with experience in child care.” 1957 AACS, § 400.120, p 471. A minimum of two adults is required for any group of children and when the number of children exceeds ten, full-time assistance for the director is to be provided by additional personnel in accordance with a table based upon the ages of the children. 1957 AACS, § 400.121, p 471.
On the strength of this regulation, the plaintiffs contend that the eight-child limitation does not apply to day care children. This argument was rejected by the trial judge, who stated:
“It is argued that while the department under these regulations forbid the issuance of the license because eight children are the maximum allowed (and the Mehrers presently have six children; four foster and two adopted children), that it does not present the Mehrers from having additional day care children under rule 400.121(1).”
The judge then observed that rule 193 applies to the inspection and licensing of foster homes for children while rule 121 applies to the staff of daycare centers. “The sections are not inconsistent and come entirely within the authority of the Department of Social Services [to promulgate].”
The court concluded:
“The granting of the appellants’ request would place 12 children in the home of the Mehrers contrary to rule 400.193(19). There are no exceptions to the rules that provide that the total number of children under 17 years of age shall not exceed 8.
“The action of the Department of Social Services in denying the application for appellants’ license for an additional six-child day-care license was not arbitrary, but in accordance with the rules. The action of the Department of Social Services is affirmed.”
On November 1,1968 an order was entered affirming the director’s decision. Plaintiffs then filed this appeal with our Court.
Plaintiffs do not challenge the power of the director to promulgate regulations or the validity of the regulations previously mentioned. It is recognized that administrative rules adopted pursuant to statutory authority have the force and effect of law. Rodrigues v. Dunn (1955), 128 F Supp 604. Plaintiffs contend, rather, that the eight-child limitation is not applicable to day care children.
In his brief filed with our Court the Attorney General contends that the plaintiffs have at no time sought a license to operate a day-care center under which they could have cared for more than eight children under 17. Plaintiffs respond that they have filed the necessary application. The application that was filed contains the following questions and answers:
“Have you cared for foster children previously?
“Yes.
“Have you been licensed to care for children before ?
“Yes.
“Name of person or agency who placed child?
“Probate Court.
“License number if known.
“FH 8207421.
“How many children do you wish to care for?
“Six.
“Boys or girls?
“Either.
“Age range?
“Two years — five years.
“Full-time or day care only?
“Day care only, in addition to present foster children.”
It thus appears that the application form does cover both full-time and day care and that the applicants specified that they were seeking a license for “day care only, in addition to present foster children.”
During oral argument in our Court an assistant attorney general stated that a foster-home licensee could obtain authorization to care for both full-time care children and day-care children in the same place and, while there is an eight-child limitation as to full-time children, there is no such limitation in respect to day children. It was further stated that if the plaintiffs were to apply for a license authorizing the day care of children in the same place that they have been authorized to care for four full-time children, the Attorney General would advise the department to consider the application on its merits even though the total number of day and full-time children exceeded eight, but that no such application had been filed by the plaintiffs.
This dispute now seems to narrow to the question whether a proper application form has been filed. The plaintiffs point out that the department’s authority to license both day-care and full-time-care homes is derived from the same act, PA 1944 (1st Ex Sess), No 47. They allege that the only application form of which plaintiffs have been made aware was the form of application which was filed by them, that the application was filed in response to advice that they should file an application if they wished to add day-care children, and that the application itself shows that they sought authorization for six day-care children in addition to the previously authorized four full-time children. Our examination of the director’s regulations does not disclose any specification as to the kinds of forms to be filed, nor have we been advised that different application forms for day-care centers and full-time-care foster homes have been printed and made available.
It further appears upon examining the record that the first time the defendant contended that the plaintiffs had not filed the correct application form was when he filed his brief in our Court. Under the circumstances, we think this case should be remanded for a testimonial hearing as to whether the plaintiffs have filed a proper initiating application for a license to care for day-care children. If the trial judge decides that the application which was filed is an appropriate initiating application, then the case should be remanded to the director for a . hearing on the merits. On the other hand, if he finds that the application is not in proper form, then the appeal to the circuit court shall be dismissed and the director’s determination will be deemed affirmed.
Remanded for further proceedings consistent with this opinion. Costs to abide the event. We do not retain jurisdiction.
All concurred.
“No home shall be licensed for more than 4 children, except when it is desirable for brothers and sisters of 1 family to be kept together, or when some other speeial need exists. Exception to this limitation may be made only by the Michigan social welfare commission.” 1962 AACS, R 400.191(1), p 2646.
“The number of persons in the home at the time of application shall be taken into consideration and be a basis for fixing the number of children to be maintained in the home. The total number of children under 17 years of age in a home shall not exceed 8 including foster children.” 1962 AACS, R 400.193(19), p 2647. | [
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Per Curiam.
The parties to this appeal were divorced under a judgment of the Wayne County Circuit Court, entered by Judge Thomas E. Brennan, now Chief Justice Thomas E. Brennan, on March 12, 1965. The question of alimony was expressly reserved in the judgment in the belief that defendant would seek and gain employment.
Defendant did not succeed in gaining employment, and, in February, 1967, moved for modification of the judgment. A hearing was held before Judge Brennan’s successor, Judge Cornelia G. Kennedy, who received the testimony of an examining physician that defendant was unemployable because of high blood pressure, heart disease, and diabetes. The physician also testified that defendant’s physical condition had in all probability deteriorated over the past year and would continue to deteriorate in the future. Judge Kennedy amended the judgment to award defendant alimony of $30 per week.
Plaintiff contends the motion should have been denied since, as the record shows, defendant suffered from the same ailments when the judgment was entered and therefore, he argues, there has been no change in circumstances, a prerequisite to any modification of an award of alimony. Hill v. Hill (1934), 266 Mich 402; Binkow v. Binkow (1941), 298 Mich 609.
Plaintiff’s contention is without merit, even if it be assumed arguendo that neither the ongoing deterioration of defendant’s health nor the present knowl edge that she is unemployable constitutes a change in circumstances. A change of circumstances is a prerequisite to the modification of an alimony award, but only where an award has in fact been made. See Hill and Binkow, supra, along with the cases cited in 9 Michigan Law & Practice, § 131, pp 573-575. In the instant case, no award was made, the question of alimony having been expressly reserved. At the same time, the case law of this state authorizes an express reservation of the question of alimony. Seibly v. Person (1895), 105 Mich 584; McCoy v. McCoy (1947), 317 Mich 478. The reason given for reservation of the ques'tion here was the court’s belief that defendant was able to work and that the refusal to grant her alimony at the time of judgment would encourage her to seek employment. Two years later defendafit showed by competent testimony that she was indeed unemployable and thus there was no longer any reason to reserve judgment on the question.
The trial court acted within its discretion by awarding alimony to defendant.
Affirmed.
See Ford v. Ford (1951), 330 Mich 33, where the deterioration of the wife’s pre-existing condition was held to be a change of circumstances justifying modification of the award; along with Wern v. Wern (1912), 171 Mich 82, and Rood v. Rood (1937), 280 Mich 33, where the continuation of the wife’s pre-existing condition was held to be a change in circumstances likewise justifying modification. | [
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Bronson, J.
The trial court granted defendant Automobile Club of Michigan’s motion for summary judgment on the ground that the plaintiff has failed to state a claim upon which relief can be granted. From this decision, plaintiff appeals.
Plaintiff’s complaint alleges that he is a plumbing and heating contractor, that defendant published written specifications for the construction of its Utica division office, that plaintiff was furnished with a copy of the specifications for the purpose of bidding on the plumbing and heating work as provided for in the specifications, and that his bid was accepted by the general contractor Siklitch and Little, Inc.
One of the specifications provided that Siklitch and Little, Inc. would “obtain a labor and material bond and a performance bond, each in 100 per cent of the contract amount”. Siklitch and Little, Inc. did not, however, secure either a labor and material bond or a performance bond, and has since been adjudicated bankrupt. Plaintiff contends that defendant is liable for damages under a theory of negligent misrepresentation in tort because it failed as promisee to exact performance from the promisor, Siklitch and Little, Inc., to the detriment and loss of plaintiff.
We are concerned in the instant case with a rather unique problem: Whether in the case of a private general construction contract the owner (promisee) can be held liable to a subcontractor, who is not a party to the contract, because the owner fails to exercise due care to see to it that the general contractor (promisor) performs his contract with the owner.
Defendant says that no duty was owed plaintiff to see to it that the promisor, Siklitch and Little, Inc., would procure the required bonds although Siklitch and Little, Inc. was obliged to do so by contract.
Plaintiff concedes in his brief that defendant initially owed him no duty to require the furnishing of bonds for the protection of materialmen and subcontractors. It is only after it assumed to act, even though gratuitously, argues plaintiff, that defendant becomes liable if it failed to act with due care. Plaintiff does not, however, state what the defendant did, other than entering into the contract with the general contractor, which evidences its “assumption to act”. The defendant here, unlike the defendant in Ray v. Transamerica Insurance Company (1968), 10 Mich App 55, did no more than enter into a contract. In the Ray case the defendant, a workmen’s compensation insurance carrier, not only entered into a contract with the plaintiff’s employer but additionally “undertook to provide safety inspection services and [plaintiff claimed] that it negligently performed this undertaking.”
A search of the leading treatises on the law of torts has not revealed any relevant comment or cases directed to this issue. Certainly there are categories of doctrine, cutting across many sectors of the law, which stand for the proposition that a promisee may be vicariously liable due to the failure of his promisor to perform properly his obligation. These exceptional cases appear to involve “nondelegable duties” of the promisee, e.g., inherently dangerous activities, and the liability of a landowner for defective repairs even if made by an independent contractor (Prosser on Torts [3d ed], §§ 68, 70, pp 470, 488; 2 Harper and James, Torts, §§ 26.11, 18.6, pp 1395, 1044) or situations where the promisee has a right to control the conduct of another, e.g., the liability of a master for the acts of his servant (Prosser on Torts [3d ed], § 69, p 472; 2 Harper and James, Torts, §§26.3-26.5, 18.7 pp 1366-1374, 1053). We are not persuaded that these principles should be extended to this kind of case. The relationship of an owner and a general contractor is markedly different from the relationship of a master and his servant ; the owner does not owe a subcontractor a nondelegable duty to provide payment and performance bonds.
In the public contract sphere, the legislature has seen fit to ensure that materialmen and contractors are protected by placing a duty on public officers to exact security by bond for the payment of obligees to the contract. See MCLA § 570.101 (Stat Ann 1970 Rev § 26.321); Lake Shore Stone Co. v. Westgate (1920), 211 Mich 540. However, the mechanic’s lien remedy, available as to the private contract, does not extend to public property. McClintic-Marshall Co. v. Ford Motor Co. (1931), 254 Mich 305; Knapp v. Swaney (1885), 56 Mich 345.
The existence of a remedy for plaintiff through the vehicle of the mechanics’ lien act (MCLA § 570.1 [Stat Ann 1970 Rev § 26.281]) buttresses our conclusion that defendant owed the plaintiff no duty to see to it that the general contractor performed his promise to furnish payment and performance bonds. The defendant is not liable for damages in tort.
Summary judgment pursuant to GCR 1963, 117.2 (1) was properly granted.
Affirmed. Costs to defendant.
All concurred.
GCR 1963, 117.2(1). | [
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McDonald, C. J.
The purpose of this action is to recover the amount of a promissory note given by the defendants to the Mid-West Company of Grand Rapids, Michigan, on April 28, 1922, and negotiated to the plaintiffs on June 15, 1922. On or about November 1, 1921, the defendants bought stock from' the Mid-West Company through its agents, Gibbons and Hardy, in payment of which they gave their note for $4,000 payable in six months. This note was sold to the Lowell State Bank. When it became due the defendants were unable to pay. They arranged with the Mid-West Company to give a new note that should be used to satisfy or renew the first one. The renewal note is the subject of this suit. It was for $4,000, “payable to the order of myself” on or before six months, signed by defendants'and delivered to the Mid-West Company. Instead of using this note to satisfy or renew the note held by the Lowell State bank, the Mid-West Company sold it to the plaintiffs for $4,000. Payment was not made in cash but in three certificates of deposit issued on the same day, one for $2,000, and two others for $1,000 each, payable in six months with interest at four per cent. Soon after receiving these certificates the Mid-West Company sold the $2,000 certificate to the Commercial Finance Corporation of Grand Rapids, and the other two certificates to the Copemish State Bank at Copemish, Michigan. The proceeds were not used to pay the note held by the Lowell State Bank. The defendants first became aware of this on receipt of a letter from that bank on the 21st of October, 1922. On the 7th of December, 1922, the plaintiffs were informed of the circumstances under which the note was given, and of its fraudulent diversion by the Mid-West Company. On December 16th the plaintiffs paid the $2,000 certificate and on December 20th they paid the other two. Subsequently, this suit was begun. At the close of the proofs both parties moved for a directed verdict. The court directed a verdict for the defendants on the ground that the plaintiffs had failed to prove that they were good-faith holders of the note in suit.
It was the opinion of the circuit judge that the undisputed facts in this case presented a situation which placed upon the plaintiffs the burden of proving that the Copemish State Bank and the Commercial Finance Corporation of Grand Rapids were good-faith purchasers for value. In respect to this, counsel for the plaintiffs say that the mere fact of purchase of the certificates made the Copemish bank and the finance corporation good-faith holders, and that the plaintiff bank had no defense to a demand for their payment. In support of this contention counsel cite White v. Wadhams, 204 Mich. 381, and rely upon the following language of the opinion:
“This $700 certificate, however, was purchased by the Ypsilanti bank and that bank thereupon became a bona fide holder for value and the Ann Arbor bank became absolutely liable to it upon the certificate and it is not material that the Ann Arbor bank did not actually pay out money on the $700 certificate until after it knew of the dishonor of the $950 certificate of the Hastings bank, for it was clearly bound to pay it.”
In thus stating that the Ypsilanti bank by the purchase of the certificate became a bona fide holder for value, the court evidently assumed that it made the purchase in ignorance of any infirmity in the paper. It may be that there was evidence of that fact, but, in any event, it is certain that the court did not hold or intend to hold that the mere purchase of a note or certificate makes the purchaser a good-faith holder for value. The law presumes him to be such, but when it appears that there is an .infirmity in the instrument, he must show that he purchased it without notice or knowledge of that fact.
“Every holder is deemed to be prima facie a holder in due course; but when it is shown the title in the person who has negotiated the instrument is defective, the burden is on the holder to prove that he or some other person under whom he claims acquired the title as holder in due course.” * * * 2 Comp. Laws 1915, § 6100.
In the instant case the plaintiffs purchased the note without notice or knowledge of any defect in the title of those who negotiated it, but they did not pay for it in cash. Instead, they gave time certificates or promises to pay. Before these certificates became due they received notice that the instrument was defective. However, the fact that they had such notice before payment of the certificates would not affect them as holders in good faith if the certificates had passed into the hands of bona fide purchasers for value. White v. Wadhams, supra. i
In disposing of this question the circuit judge rightly said:
“It is the finding of the court that the transaction, the giving of the three certificates of deposit for the note in question, did not constitute a purchase and sale of the note in question; that it constituted merely an .exchange of one promise to pay for three promises to pay aggregating the amount of the first promise to _ pay. And that the plaintiffs in this case have failed to establish the fact that they are good-faith purchasers because at -that time they parted with nothing of value. And they did not part with anything of value finally or conclusively until the certificates of deposit in question came to the hands of a good-faith purchaser, which they have failed to establish.”
The principles enunciated in Miller v. Savings Bank, 227 Mich. 316, and the following provisions of the negotiable instruments law are applicable to the undisputed facts in this case (2 Comp. Laws 1915, §§ 6100, 6095, 6096).
The controlling fact is whether the Copemish State Bank and the Commercial Finance Corporation were bona fide purchasers for value of these certificates. The burden of proof was with the plaintiffs to show this. They made no attempt to do so. Therefore, the circuit judge correctly held that they could not recover in this action.
The judgment is affirmed, with costs to the defendants.
Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Moore and Wiest, JJ., did not sit. | [
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] |
Stone, C. J.
This action was assumpsit, to recover township and highway taxes paid under protest. February 20, 1913, plaintiff paid to defendant township taxes assessed for the year 1912:
Township tax .............................. $500 20
Highway tax ............................... 5,002 00
Collection fee 4 per cent..................... 220 09
$5,722 29
The illegality of the township tax is conceded, and the only questions remaining relate to the claimed invalidity of the highway tax. The case was heard before the court without a jury. Written findings of facts and conclusions of law were filed, and it was held that the highway tax in question was invalid for two reasons:
First. That the record of the township proceedings upon which the assessment of highway tax was based was not sufficient, or did not show a legal voting of any appreciable highway tax.
Second. That the highway tax was assessed under the provisions of Act No. 293, Local Acts 1903, and that this act was repealed by the general highway law of 1909, being Act No. 283, Pub. Acts 1909 (1 Comp. Laws 1915, § 4287 et seq.).
There was judgment for the plaintiff, and the defendants are here, assigning error on the findings.
The record made of the vote of the qualified electors of Port Huron township, held on the 1st day of April, 1912, as shown by the township records, which de fendants claim authorized the levy of the contested highway taxes, is as follows:
“1912. “State op Michigan, . “County of St. Clair j
“At annual township election held on 1st day of April, A. D. 1912, the election board was organized, and gatekeepers?, clerks, challengers and inspectors appointed, and sworn to their respective offices, and voting commenced and continued until a recess for noon was taken for the purpose of transacting other business of the town, the voting of money for highway purposes was taken up after the clerk’s annual statement was read and accepted.
“Highway District No. 1 raised 65 cents on $100.00 valuation to be used on river road for macadamizing from a point below Salt Block to town line between Port Huron and St. Clair town.
“Highway District No. 2 raised 75 cents for stone road, and 25 cents for repair of all roads.
“W. F. Allen was elected overseer of highways in district.
“Highway District No. 3 raised 25 cents to be expended on Henry street.
“Highway District No. 4 raised 50 cents to be used for macadam road and repair of macadam road.
“Motion made and supported to repair and make other necessary repairs to shed and town hall.
[Signed] “James Reynolds, Clerk.”
The records of the township fail to show any other vote of electors, or any other authority for raising a highway tax for the year 1912. No vote or action to raise a highway tax was taken in Í912 by the township board, either alone or in conjunction with the highway commissioner of Port Huron township. The record of the proceedings at the annual township meeting was held insufficient on which to base the attempted assessment of highway tax, and it was stated by the trial judge in his findings of facts that this record cannot be varied by parol testimony to show that the amount voted by the electors of district No. 4 was intended to be at a different rate or a different amount from that shown by the record.
From the fact that in the first highway district mentioned, the amount was stated as 65 cents on $100 valuation, and the subsequent entries, and especially in the fourth district, the one in question having dropped the words "on $100 valuation,” it was the claim of the plaintiff, and the finding of the trial judge, that this tax was not authorized, or any tax in excess of 50 cents. We think this a narrow view of the question, and prefer not to rest our decision upon that point.
It was further urged in this court that the record was otherwise defective, in that there was no determination in 1912 as to the manner in which the highway tax should be assessed, and that this was a step necessary to be taken. And it is urged that the record did not indicate whether that was the sole tax to be levied for highway purposes, or whether it was the money tax, to which might be added the labor tax. It is obvious that the record, in order to justify the levying of any tax, must be sufficiently plain so that the assessing officer, the supervisor or highway commissioner, could tell whether 50 cents was the proper rate, or that sum, plus the labor tax, was the right amount.
Passing the first point, it is urged by the plaintiff that the title of the general act of 1909 (1 Comp. Laws 1915, § 4287 et seq.) clearly indicates the purpose of the legislature to enact a law which should be general and apply to the entire State, and attention is called to the title and to the provisions of that act; and it is urged that its provisions are in conflict and inconsistent with the local act above referred to, and that the local act was thereby repealed. On the other hand, it is urged by defendants that, even if the court should find that the legislature intended to repeal the local act by this general act, this was prohibited by the new Constitution, and that the legislature has no power to repeal a local act without the consent of the people concerned; and our attention is called to section 30, art. 5, of the present Constitution, which provides as follows: ‘
“The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”
And it is urged, by counsel for the defendants that as this general act of 1909 provided for no referendum vote, it cannot be held that it could repeal the local act in question, and counsel say:
“First. If it attempts to repeal a local law, then it is local and not general. It is not general legislation.
“Second. The courts will not allow the legislature to do by indirection what they cannot do directly.”
And it is urged that passing an act to repeal a local act is itself local legislation, and that this provision of the Constitution cannot be affected or defeated by terming the legislation a general act. And it is said that the people of this township have the right to say what laws shall be repealed that are local in their nature, and that this is a local matter entirely, and therefore, until the people vote to change their method of raising and expending the highway taxes, the legislature cannot interfere. And attention is also called to the fact that the title of the act of 1909 does not, by express terms, attempt to repeal any other provisions of the statute. The plaintiff replies that if there is any constitutional difficulty relating to the act, of 1909, because of the provisions of the new Constitution, above quoted, then plaintiff is not obliged to rely upon the act of 1909, but calls our attention to Act No. 108, Pub. Acts 1907, and claims that that general statute repealed the local act in question, and that there was no consti tutional prohibition against such legislation at the date of the, passage of the last-named act. Constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case. People v. Quider, 172 Mich. 280, 288 (137 N. W. 546). We shall therefore look into the provisions of the local act of 1903, and also said public act of 1907, for if it shall turn out that the last-named act, passed before the new Constitution was adopted, repealed said local act, then the judgment of the circuit court shall be affirmed. Act No. 293, Local Acts 1903, being an act entitled:
“An act to provide for the assessment and collection of highway taxes, and the expenditure thereof, in the township of Port Huron, St. Clair county, Michigan.”
The act was approved March 4, 1903, and was given immediate effect.
Section 1 provided that for convenience in the assessment and collection of highway taxes and the expenditure thereof, the commissioner of highways of the said township should, by and with the sanction and approval of the township board, on the fir^t Monday of March, 1903, divide the township into not less than 5 nor more than 12 road districts, which districts should be composed of contiguous territory.
Section 2 provided that at each annual township meeting of said township between the hours of 12 o’clock noon and 1 o’clock in the afternoon, the qualified electors of each road district should separate themselves into groups, and a majority of the qualified electors of each district present and voting should elect, viva, voce, or in such manner as the electors might direct, an overseer of highways for their respective districts. The said overseer should be a qualified elector, and a resident taxpayer of his district, and no elector except a resident in the district should vote for such overseer.
Section 3 provided that at the time and place of such, election of overseer, a majority of the qualified electors of each district present and voting, should determine: First, whether the highway tax should be assessed on a money basis, and paid in money instead of labor, and, if they so determined, such assessment should not be less than one-fourth of 1 per cent., and should not exceed 1 per cent, on the aggregate assessed valuation of the property of the ‘district, according to the assessment roll for said district for the fiscal year; second, whether the highway tax should be assessed partially in labor, and, if so, upon the amount of highway labor to be assessed, which should not exceed one day’s labor upon each $100 assessed valuation, as in the preceding-division provided; also upon the amount of money tax, if any, to be levied in the district for necessary improvements to be made in the highways and bridges during the year beyond what the highway labor, as above provided, would accomplish, not exceeding one-half of 1 per cent, on each $100 of assessed valuation as in the preceding subdivision provided.
Section 4 provided that the township clerk should record the proceedings of each district meeting in the township records, and within 15 days after the annual township meeting should certify to the commissioner of highways the amount and the manner of raising the highway tax for each road district, as determined at such district election, and the commissioner should thereafter apportion and assess, or cause to be assessed by the supervisor, said taxes in the manner provided by the general laws of the State. .
Section 5 provided for the acceptance of office by the overseers, and the giving of bonds.
Section 6 provided that in case any of the overseers so elected should fail to qualify, or in case the electors in any road district neglected or refused to elect an overseer, or to determine 'the amount of highway tax to be levied in such district, or the manner in which it should be assessed, the highway commissioner should appoint an overseer for said district for the ensuing year in the manner provided by the general laws of the State. The commissioner might in such cases assess not exceeding 1 per cent, upon the assessed valuation of the property in such district, according to the assessment roll for the fiscal year, which tax might be assessed in money or labor as the commissioner might determine.
Section 7 provided that the commissioner should thereafter proceed, at the time and in the manner1 provided by the general laws of the State, so far as applicable and not inconsistent with the provisions of the act, to assess, or cause to be assessed, the highway tax for the several road districts.
Section 8 provided that capitation or poll tax should continue to be assessed in each of said districts in the manner provided by the general laws.
Section 9 provided that all highway labor and money tax assessed and collected within said districts for highway purposes, should be expended within the limits of the district in which the same was assessed: Provided, that nothing contained in the act should be •construed to prohibit or prevent the building and maintenance of stone or macadam roads within the several districts.
Section 10 provided that the duties of the several officers named should conform to the general laws.
That Act No. 108, Pub. Acts 1907, introduced radical ■changes in the manner of assessing, collecting, and expending highway taxes, and that it covered the whole subject and was State-wide, and provided a uniform system throughout the State, is apparent from an analysis of that statute. The title of the act was as follows:
“An act to provide for the assessment of money taxes for highway purposes and to repeal chapter two, ‘Assessments for Highway Purposes,’ and chapter three, ‘The Performance of Labor on Highways and ■ the Commutation Therefor,’ of act number two hundred forty-three of the Public Acts of eighteen hundred eighty-one, as amended, being compiler’s sections number four thousand and seventy-two to four thousand one hundred three, inclusive, of the Compiled Laws of eighteen hundred ninety-seven, and all acts and parts of acts inconsistent with the provisions hereof.”
Section 1 provided that the highways in every organized township in this State should be laid out, improved and maintained by two money taxes; one tax should be known as the road repair tax, and should be assessed on all property in the township outside of the limits of incorporated villages, which tax should not exceed 50 cents on each $100 valuation according to the assessment roll of the preceding year, and the other tax should be known as the highway improvement tax, and should be assessed on all taxable property in the township, including that within the limits of incorporated villages, which tax should not exceed 50- cents on each $100 valuation according to the assessment roll for the last preceding year. All highway moneys belonging to the township or to any subdivision thereof, at the time of the passage of the act should be added to the road repair fund, or to the highway improvement fund as the township board might direct, except such moneys as had been appropriated or set aside for a special purpose, which should be used for the purposes for which they were appropriated or set aside.
Section 2 provided what account the highway com missioner should render to the township board at the annual meeting in 1908.,
Section 3 provided what the account of such officer should contain after 1908.
Section 4 required the township board to present such statement at the annual township meeting.
Section 5 provided that at the annual township meeting held in each organized township after the year 1907, the electors should, by a majority of those present and voting, who did not reside in any incorporated village,, determine the amount of road repair tax to be raised for the ensuing year, not exceeding 50 cents on each $100 valuation, according to the assessment roll for the last preceding year, and at said meeting the electors should also, by a majority of all those present and voting, including residents of incorporated villages in such organized township, determine the amount of highway improvement tax to be raised for the ensuing year, not exceeding 50 cents on each $100 valuation, according to the assessment roll for the last preceding year.
Section 6 provided that if the electors present at any annual township meeting should neglect or refuse to vote any road repair tax, or highway improvement tax, the township board and the township highway commissioner, acting jointly, should order to be levied such a sum or sums, for either or both of these funds, as might appear to them necessary and advisable, not to exceed the amounts named in section 1 of the act. .
Section 7, after providing for the transmission of a certified copy of the proceedings to the supervisor, provided that such taxes should be levied and collected in the same- manner as moneys for general township purposes were levied and collected. The taxes so levied should be carried out in two separate columns in the tax roll, one as the road repair tax, and the other as the highway improvement tax, and the township treas urer was required to keep separate accounts of the same.
Section 8 provided that when the amount of either or both of said taxes should have been determined as aforesaid, the township board might borrow an amount not exceeding three-fourths of the tax determined upon for the ensuing year, for the purpose of paying for labor, materials, tools, or machinery, or other expenses in connection with the laying out, building, repairing, or improving of highways and bridges of the township.
Section 9 provided that the road repair tax should be expended for labor, material, and other necessary expenses, under the supervision, and by the direction of the township highway commissioner, on the highways and bridges which would directly benefit the property taxed, not exceeding $100 on any one mile of highway, unless otherwise directed by the township board. Should the highway, or highways or bridges directly adjacent to any property taxed, be in good condition, so ■ that no repairs were necessary thereon, then the tax raised on such property might be expended by the commissioner on other highways or bridges in the township where it might be needed; provided, that if there was a surplus after the highway or highways or bridges directly adjacent to the property taxed had been repaired and put in good condition, such surplus might be expended by the commissioner on other highways and bridges in the township wherever any improvement might be needed; provided, further, that upon complaint, in writing, to the township board by any 10 or more resident taxpayers that the road repair fund was being unequally and unjustly applied, or work improperly performed, the township board might direct the expenditure of such road repair fund, or the manner of performing such work; provided, further, that not to exceed $25 should be expended by the commissioner in any one year for tools or machinery, without consent of the township board. , •
The act further provided that there should be but one road district in each organized township, except that in townships consisting of more than one surveyed township, each surveyed township might be a road district, and it provided for the election of an overseer for each road district, who should work under the direction of the township highway commissioner.
The act further provided an elaborate plan of survey and profile of survey, for all highway improvements by turnpiking, graveling, grading, etc., by private parties, the work to be supervised by the commissioner.
The last section of the act repealed the specific sections of the statute mentioned in the title, and also added:
• “All acts and parts of acts, contravening the provisions of this act are hereby repealed.”
We have here, at the risk of tediousness, presented the substance of the two enactments named, that their respective provisions may the more readily be compared. The act of 1907 covers the whole subject of assessments for highway purposes in the State. It did away with the highway labor tax, and placed the whole subject upon a money tax basis. It constituted each surveyed township a road district, and, in short, made many radical changes in the law. Its terms were so broad and comprehensive that, in our opinion, it repealed all acts, general and local, conflicting with it, including Act No. 293, Local Acts 1903.
Under ,the local act different conditions might exist in the several road districts. In one the highway tax might be assessed on a money basis, and in another it might be assessed partly in labor. The act of 1907 changed the policy of the State in that regard, and provided a money tax only, throughout the State, there being evident dissatisfaction with the labor tax system.
There can be no question, in our opinion, that the provisions of the local act were inconsistent with, and that they do contravene the provisions of, the act of 1907; and, unless there is some specific rule or principle which prevents the application of the general language of the repealing clause of the general act, it is clear that the local act was repealed.
The following excerpt from 1 Lewis’ Sutherland on Statutory Construction, p. 533, is applicable here to legislation prior to the adoption of the present Constitution, whatever may be said of the rule now:
“There is no rule of law which prohibits the repeal of a special act by a general one, ñor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both cannot stand together. * * * Special or local laws will be repealed by general laws when the intention to do so is manifest, as where the latter are intended to establish uniform rules for the whole State.”
Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern even though it contains no repealing clause. In the instant case the repealing clause is present. 36 Cyc. pp. 1073, 1078, 1080, 1090.
We have examined the authorities upon-this subject cited by counsel, and are of opinion that the general rule in such cases is- that the later act repeals the former. We think the intent to abrogate the laws in conflict with the act of 1907, in so far as the assessment of highway taxes is concerned, is so clear and distinct that it must be said that the repeal of the local act is unavoidable. Hopkins v. Sanders, 172 Mich. 227 (137 N. W. 709); People v. Wenzel, 105 Mich. 70 (62 N. W. 1038); People v. Furman, 85 Mich. 110 (48 N. W. 169).
The subject-matter of the legislation contained in the act of 1907 is State-wide, and we can read nothing in either act from which it will be presumed that there were any special, distinct, or particular conditions of local import in the township of Port Huron which imply that the legislature necessarily intended to exclude it from the general law relating to highways, as prescribed in the act of 1907.
Our conclusión disposes of the case, and we must hold that, the circuit judge having reached the correct conclusion, the judgment of the court below is affirmed.
Ostrander, Moore, Steere, Brooke, and Person, JJ., concurred. Kuhn and Bird, JJ., did not sit. | [
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] |
Stone, C. J.
Plaintiff: filed its bill of interpleader to determine the ownership of a fund of $250 which appellant Emma R. Kuyat claims under a benefit cer tificate or policy issued by plaintiff to one Florian A. Kuyat. Appellee Sophia Kenzie claims the same fund under a later benefit certificate issued by plaintiff upon receipt of a purported waiver of the first certificate, and a direction to issue a new certificate written upon a form provided by plaintiff for such purpose, and purporting to be signed by the insured. Florian A. Kuyat and Emma R. Kuyat were married October 5, 1911, at Detroit. On October 19, 1911, the plaintiff issued a benefit certificate or policy to said Florian A. Kuyat, providing that while he was in good standing in the association he was entitled to participate in the benefit fund to an amount not to exceed $1,000, which should be paid at his death to Emma R. Kuyat, related to him as his wife, subject to all the conditions of the constitution and laws of the association, etc. This policy was delivered to Mrs. Kuyat, who retained it in her possession, and no demand had ever been made for its surrender. She paid all the assessments except two, and claimed that she furnished the money with which those two payments were made; but this was a disputed question.
Shortly after their marriage, Mr. and Mrs. Kuyat moved to Moline, Ill., and later they went to Texas. He was an invalid, afflicted with tuberculosis, and he had been “a hard drinking man.” While living in Texas, he seems to have had some trouble with his wife growing out of his habits, and he desired to return to Michigan. To that end he wrote, in February, 1913, to his sister, Sophia Kenzie, for assistance. Mrs. Kenzie and her husband sent him a railroad ticket and some money, which enabled him to go to them at Pontiac, where they then resided. He arrived there in a needy condition. He lived with this sister and family some months, during which time they cared for him and furnished him with medicines, medical attendance, and clothes. In April, 1913, Mr. Kuyat expressed a desire to change his benefit certificate or policy so as to make it payable $750 to his wife, and $250 to his sister, Sophia Kenzie. At his request an application for such change was made out and sent to the association at Grand Rapids, but because of some mistake it was returned. Mr. Kuyat then asked his sister, Mrs. Kenzie, to make out another application. In his presence, and at his request, she made it out and signed his name to it. A new certificate was, on April 7,1918, issued to Mr. Kuyat, who, on receiving it, immediately wrote his name on the bottom of it, as required by the rules (of the association. It contained the provisions as last above indicated, viz., payable $750 to his wife, and $250 to said sister. .There was evidence that Mrs. Kenzie personally paid two assessments upon this new certificate. About May or June, 1913, Mrs. Kuyat came to Michigan and joined her husband. He went to the sanatorium July 7, 1913, and died there February 6, 1914. Upon satisfactory proofs of death being made, and on April 15,1914, plaintiff paid to the wife, Emma R. Kuyat, in accordance with the terms of said new certificate, the sum of $750; but the remaining sum of $250, being claimed by both the wife and sister, has not been paid to either of them, but the bill of interpleader was filed. The certificates bore different numbers, but the receipts issued by the plaintiff to boih Mrs. Kuyat and Mrs. Kenzie contained no number of policy. While Mrs. Kenzie and her husband were continuing to care for Mr. Kuyat, Mrs. Kuyat continued to make payment of the assessments. She testified to having, at Mr. Kuyat’s request, inquired at the local agency of plaintiff whether there was any change or attempted change in the certificate or policy, and that on August 4,1913, she received a postal card from the local treasurer that the assessments she was paying were on the certificate of October, 1911. It appeared that this information was a mistake, and the plaintiff claimed that it had nothing to do with sending the postal card. There was testimony to the effect that Mr. Kuyat stated, both before and after he went to the sanatorium, that he should see that his sister got some of the insurance.
The constitution of the plaintiff association provides a means and method of changing a beneficiary in the following language:
“Lost certificates and new certificates may be issued at any time in place of the lost one, or for change of beneficiary, upon the signing of a waiver of the original certificate, and paying a certificate fee of 50 cents.”
The application bearing the name of Mr. Kuyat, and received by the plaintiff, was as follows:
“Form 72. Waiver of Former Certificate.
“I hereby waive all claims for myself and beneficiaries under New Era certificate No. (do not know) issued to me (do not know 191). Said certificate is in my wife’s possession. I desire a new one issued for one thousand' dollars in favor of Mrs. Emma Kuyat, relationship wife $750. Mrs. Sophie Kenzie, relationship sister $250.
“Date at 22 W. Fort St., Pontiac on the second day of April, 1913.
[Signed] Florian Kuyat, Member.
“Witness:-.”
Upon the hearing at the circuit, the court found that the last certificate was in full force and effect at the date of the death of said Florian A. Kuyat, and awarded and decreed the $250 in controversy to the sister, Sophia Kenzie.
The defendant Emma R. Kuyat has appealed. In this court it was her claim:
(1) That Mr. Kuyat could not secure a new policy in the place of the old one without the consent of his wife, the beneficiary.
(2) That the association is estopped from disputing the validity of the first policy.
(3) That there was no valid request in writing from Mr. Kuyat to issue a new policy.
1. We are of the opinion that it is well settled by the decisions of this court that, under the circumstances appearing in this case, the insured has the right, during his lifetime, without the consent of the beneficiary, to change the beneficiary under his policy; that the first beneficiary has no vested right in such policy; and that the association is not required to notify a beneficiary of such change. Grand Lodge A. O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1); Union Mutual Ass’n v. Montgomery, 70 Mich. 587 (38 N. W. 588, 14 Am. St. Rep. 519) ; Allgemeiner Arbeiter Bund v. Adamson, 132 Mich. 86 (92 N. W. 786); Grand Lodge A. O. U. W. v. Brown, 160 Mich. 437 (125 N. W. 400) ; Ladies of Modern Maccabees v. Daley, 166 Mich. 542 (131 N. W. 1127); Schiller-Bund v. Knack, 184 Mich. 95, 104 (150 N. W. 337). In the last-cited case we said:
“We must recognize the rule which has been frequently announced by this court that the by-law of a society permitting the changing of a beneficiary is a reasonable regulation of the member to exercise the power of appointment whenever and so often as he pleases.”
2. Upon the subject of estoppel, it is sufficient to say that there is no evidence that Mrs. Kuyat was in any way influenced or injured by the representation or statement contained in the postal card, even if it was sent by authority of the plaintiff. There is no estoppel under such circumstances. Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423, 450 (137 N. W. 305, Am. & Eng. Ann. Cas. 1914B, 984).
3. The plaintiff admits its liability to pay the $250 in question. It is not conceded that appellant can raise the question of the validity of the change of beneficiary, but it is claimed that the plaintiff only could raise the question, under the authorities already cited.
However, it is undisputed that, upon receiving the new certificate, Mr. Kuyat personally signed his name on the bottom thereof, thereby agreeing to its terms and ratifying the change. Upon the whole record, we are satisfied that the trial court made a proper disposition of the case, and the decree below is affirmed, with costs to appellee from appellant.
Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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Steere, J.
Plaintiff, a veteran of the Civil War, resided in the village of Jennings, Lake township, Missaukee county, Mich., where he owned three village lots, which, as part of the property within the platted limits of said village, appeared against his name on the assessment roll of the township of Lake for the year 1914, as follows:
“Lot one 1, block I — Soldier’s Exemption. Lot eleven 11, block I, assessed $250. E. % lot 12, block I— Soldier’s Exemption. W 1/2 lot 12, block I, assessed $200.”
After demand of payment by the tax collector and threat of levy, plaintiff paid the taxes assessed against lot 11 and west one-half of lot 12 under protest, claiming that the property above described was all exempt from taxation under the soldier’s homestead exemption law, and brought this action to recover the amount so paid, aggregating, with collection fees, etc., $18.22. The cause was tried in the circuit court of Missaukee county without a jury, resulting in a judgment of no cause of action.
From the record and findings filed by the court the following facts appear without dispute: The village of Jennings is located within and forms a part of the township of Lake, and was unincorporated at the time of making the assessment in question, but had been ■regularly laid out, surveyed, and platted into blocks and lots, separated by streets, avenues, and alleys, according to a plat made in compliance with statutory requirements, which had been duly approved and recorded in the office of the register of deeds of Missaukee county. In making the assessment of property within the limits of said vilage, the assessing officers of Lake township described the real estate by lots and blocks. Of the three lots which plaintiff owned, lot 1, upon which he resided, is separated from lots 11 and 12 by a regularly laid out and platted public alley. The situation is thus found and stated by the court:
“That upon lot 1, block I, there was a dwelling occupied by the plaintiff as his home; that upon the east half of lot 12, block I, and on the opposite side of the alley from lot 1, was a barn used by the plaintiff in connection with his dwelling house, on lot 1; that upon the west half of lot 12 is located a pool room and ice cream parlor, which for several years had been used as a dance hall; that upon lot 11, block I, an ice house and a dwelling house are located; and that the ice house is made use of by the plaintiff in the sale of ice, and the dwelling on lot 11 is rented to tenants'. That said lots 1, 11, and 12, block I, and the buildings thereon, are not worth the sum of $8,000, and that lot 1 and east half of lot 12 are not worth the sum of $1,000.”
Section 7 of the general tax law, which provides what real property shall be exempt from taxation, includes in subdivision 11 “all real estate to the value of one thousand dollars used and owned as a homestead by any soldier,” etc. Act No. 174, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 1775 [1 Comp. Laws 1915, § 4001]).
As this case is presented by the record and argument in briefs of contending counsel, it turns upon construction of the language above quoted from the soldiers’ exemption law, and particularly the meaning to be given to the word “homestead” in the connection used. Upon that proposition the trial court said:
“Homesteads, while exempt from levy and sale on execution are, as a rule, assessed for taxation. Any exemption therefrom is a special privilege, and as such should not be extended by construction. The purpose of the soldiers’ exemption act is plainly a beneficent one. From the early days it has been the avowed policy of our courts to hold exemption laws, even though beneficent in their purpose, in derogation of equal rights, and to subject them to a strict construction for that reason.”
Counsel for plaintiff urges that in thus applying the rule of strict construction to this statute the court started wrong, and “with this wrong start it was next to impossible to come to a right conclusion.” In support of this contention counsel cites and quotes from a line of authority sustaining the rule of liberal construction for remedial statutory provisions exempting homesteads and other property from execution and sale by creditors. A provision exempting from taxation is under consideration here. The line of demarcation between statutes exempting from execution and those exempting from taxes is well defined. The one grants a property right, while the other is a mere matter of favor. Statutes and provisions exempting persons or property from taxation are strictly construed. 2 Sutherland on Stat. Const. (2d Ed.) § 539; 1 Cooley on Taxation (3d Ed.), p. 357; St. Joseph’s Church v. City of Detroit, 189 Mich. 408 (155 N. W. 588); In re Walker, 200 Ill. 566 (66 N. E. 144) ; Cooper Hospital v. City of Camden, 70 N. J. Law, 478 (57 Atl. 260); 37 Cyc. pp. 891, 892, and cases there cited. These authorities fully sustain the views expressed by the trial court upon that subject.
The constitutional definition of a homestead (article 14, § 2), as to size of site, though relating to exemption from forced sale on execution or other final pro cess of a court, limits it to 40 acres in unplatted territory, and not to exceed one lot within a recorded town plat, city or village, which need not be incorporated. Even under the rule of liberal construction applicable to exemption from execution, it has been said that such a provision extends only to such contiguous territory as is occupied as a homestead, which means the—
“home, the house, and the adjoining land, where the head of the family dwells. * * * It does not extend to other tenements, lots, and farms, that are not occupied personally by the owner and his family; houses in which they do not dwell. * * * And the term does not necessarily imply all those parcels of land, which may adjoin and be occupied together, for the homestead is the place of the house.” Hoitt v. Webb, 36 N. H. 158.
This case is the basis of the definition found in Black’s Law; Dictionary, which defines a “homestead” as:
“The home place; the place where the home is. It is the home, the house and adjoining land, where the head of the family dwells; the home farm. The fixed residence of the head of a family, with the land and buildings surrounding the main house.”
The taxed property in this case was not within the curtilage of nor adjacent to plaintiff’s home or fixed residence. It was neither occupied nor used by him as a homestead. For the use to which it was devoted it might as well have been located in some other part of the village, aside from the convenience of getting to it from his home. A portion of it was rented, and a portion used for business purposes. Its status was neither within the letter nor the spirit of the act, which exempts from taxation “real estate used and owned as a homestead by any soldier,” etc. We think the trial court correctly held as a conclusion of law that:
“In exempting lot 1 (upon which plaintiff resided) and the east half of lot 12, block I, the supervisor of Lake township gave the plaintiff the benefit of all he was entitled to under the act in question.”
The judgment is affirmed.
Stone, C. J., and Kui-in, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred. | [
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Per Curiam.
Defendants in these consolidated appeals seek review of their March 27, 1967 convictions, on pleas of guilty, of assault with intent to rob being armed in violation of MCLA § 750.89 (Stat Ann 1962 Rev § 28.284).
The people have filed a motion to affirm the convictions. GrCR 1963, 817.5(3).
Brief on appeal argues that the lower court’s examination of defendants at the plea proceedings failed to establish their participation in the crime and that the court failed to advise defendants of certain constitutional rights enumerated in Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274).
The court’s examination of the defendants was sufficient to reveal their participation in the offense. Boykin v. Alabama, supra, is not retroactive. People v. Taylor (1970), 23 Mich App 595.
It is manifest that the questions sought to be reviewed on which the decision of the cause depends are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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McGregor, P. J.
This action was one in tort for damages arising out of an automobile accident which occurred on May 10, 1964, when William Sargeson, Jr. was a guest passenger in an automobile owned by Joseph Yarabek, Sr., and driven by Joseph Yarabek, Jr., with consent.
Defendant contends that the evidence, taken in a light most favorable to plaintiffs, was insufficient to support a verdict of gross negligence or wilful and wanton misconduct, under Michigan’s guest passenger statute, CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101):
“* * * [N]o person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by gross negligence, or wilful and wanton misconduct of the owner or operator. # * *”
The elements which constitute gross negligence have been definitively set forth by the Michigan Supreme Court, in Willett v. Smith (1932), 260 Mich 101, 104:
“(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert threatened danger, when to the ordinary mind it must he apparent that the result is likely to prove disastrous to another.”
This was subsequently quoted with approval in McLone v. Bean (1933), 263 Mich 113, 115, and Tien v. Barbel (1958), 351 Mich 276, 281, 282. Gross negligence and wilful and wanton misconduct charges are not synonymous, but such difference is not an issue here. LaCroix v. Grand Trunk W. R. Co. (1967), 379 Mich 417.
The Court in Tien, supra, was cognizant of the many decisions on the subject of gross negligence and wilful and wanton misconduct, noted that many were irreconcilable, and stated that in doubtful cases, the issue of gross negligence must be submitted for jury consideration. We conclude that the facts herein warranted submission to the jury.
“Mr. Justice Butzel, writing in Rinkevich v. Coeling (1955), 344 Mich 493, for a then presciently enlightened half of the Court, asserted in accurate sum * * # that each of these guest-passenger cases in sui generis in its factual circumstances.” Tien v. Barkel, supra, 282.
The accident occurred when the car in which William Sargeson, Jr., and Joseph Yarabek, Jr., were riding hit a pole standing about three to five feet from the road. Plaintiff testified that they were on a street with a block-long curve which had many trees, poles and signs, and that the car was travelling approximately 20 miles per hour in a 35-mile-an-hour zone.
Between the driver and the plaintiff passenger was a golf club, resting on the seat and the car’s floorboard. The driver alleges that the club had fallen against his leg, and that he bent down, apparently with his head below the dashboard, to push it away; that when he looked up he was unable to stop in time to avoid hitting the pole. Assuming that this is a true version, there is no allegation that the removal of the club from his leg was an immediate necessity or that it hampered his driving in any way. There was also testimony that the club had fallen several times before and that the driver had become irritated thereby; that on one such occurrence, the driver cursed the plaintiff passenger and said, “Hold on to your damned club.”
The plaintiff passenger alleges that the driver had bent down to his left and was doing something under the dashboard. This Court notes that, under either version, it is undisputed that the driver had removed his eyes from the road and had bent down, either for the purpose of doing something under the dashboard or for pushing away the golf club. Although the driver alleges that he bent forward for only a second or two, the plaintiff passenger asserted that this blind act of driving was longer than that, although no specific length of time was given, and that the car struck the pole without the brakes ever having been applied.
In testing the propriety of granting a directed verdict in favor of the defendant, the test used is whether, viewing the facts in a light most favorable to plaintiffs, reasonable men could honestly reach a different conclusion, and if they could, the question is for the jury. Anderson v. Gene Deming Motor Sales, Inc. (1963), 371 Mich 223, 229; Huhtala v. Anderson (1969), 15 Mich App 693. We find that the evidence was sufficient, if believed, to establish defendant driver’s violation of the statutory duty of care and that the trial judge was correct in submitting the issue to the jury.
Defendant also alleges error in the trial judge’s instructions. We note that objection was made by the defendant to the refusal of the trial court to give defendant’s requested jury charges Nos. 2 and 3 (defendant’s definition of gross negligence or wilful and wanton misconduct, which contained a quotation from Sun Oil Company v. Seamon (1957), 349 Mich 387, 411, embracing the words “the callous, the brutish, the quasi-criminal”). Nevertheless, the trial court gave adequate and proper charges of the elements reasonably embraced in such definition. Other than defendant’s objection for failure to give the above requested charges, the transcript fails to reveal any objection by defendant to the instructions given to the jury. GCR 1963, 516.2 ; also see Bauman v. Grand Trunk W. R. Co. (1969), 18 Mich App 450, 453. We find no reversible error.
Affirmed. Costs to appellees.
All concurred.
“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” GCR 1963, 516.2. | [
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Stone, C. J.
The petition shows that the relator is the owner and operator of a “motor bus,” and held a license and permit under a certain ordinance of the city of Grand Rapids, which license terminated by its terms May'1, 1916.
It appears from the record that, having operated his motor bus for some time, his bond became inoperative, and, desiring to comply with the terms of the said ordinance, he procured a new bond or policy of insurance, alleged to be in the form, terms, penalty, etc., prescribed by the ordinance, executed by the National Indemnity Exchange of Kansas City, Mo., as surety, which corporation, it is alleged, was authorized to do business in this State, and tendered the same to the city attorney of Grand Rapids for approval, and to the city clerk for filing, but which tender was not accepted ; the said city attorney refusing to approve and thé city clerk to file the same, for the sole reason that the common council had by resolution “recommended that bonds issued by said company be rejected, as they appear to be inadequate.”
Contending that the adequacy of bonds executed by such surety companies was exclusively within the powers of the commissioner of insurance of the State, and not within the domain of any discretion of any of the respondents, relator brought mandamus in the superior court of Grand Rapids to compel such approval and filing of his bond. The respondents demurred to the petition. On the hearing of the demurrer the same was sustained, and relator’s petition was dismissed. Whereupon relator applied to this court for and secured a writ of certiorari on February 1, 1916.
By the seventh paragraph of relator’s petition for a mandamus it appears that the certificate of authority issued .by the commissioner of insurance expired on the last day of February, 1916. We quote from the record:
“Now know ye that said National Indemnity Exchange is authorized to exchange contracts or agreements of fire, theft, and liability insurance on motor vehicles until and including the last day of February in the year 1916, unless this authority shall before that time be revoked.”
It appearing by the record that relator’s license expired May 1, 1916, and that the certificate of authority expired February 29, 1916, we have nothing before us but abstract questions of law, which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider. When it appears by the record that action by the court would be futile, by reason of the lapse of time, the case will be dismissed. Howe v. Doyle, 187 Mich. 655 (154 N. W. 62) ; Carlson v. Wyman, 189 Mich. 402 (155 N. W. 418).
The result of a reversal here would be to direct the court below to proceed to hear the case. It should not be required to issue a mandamus where its effect would be of no avail or idle. Fuchs v. Common Council, 166 Mich. 569 (132 N. W. 96). This case was submitted to this court but a few days ago; the reply brief of the relator having been filed April 26, 1916.
We will say in passing that the practice of demurring to a petition for mandamus is not to be encouraged ; the better practice being to answer the petition. Lauzon v. Board of Supervisors, 129 Mich. 269 (88 N. W. 628); Circuit Court Rule 50; Judicature Act, chap. 36, §§ 1-4 (Pub. Acts 1915, Act No. 314 [3 Comp. Laws 1915, §§ 13437-13440]).
The writ of certiorari is dismissed, without costs.
Kuhn, Ostrander, Bird, Moore, Steere, and Person JJ., concurred. Ostrander, J., did not sit. | [
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] |
T. M. Burns, J.
By this action plaintiffs seek the return of all identifiable moneys which were on hand on the date which this suit was instituted, October 16,1967; or which have been collected since that date either under general ad valorem taxes or under the provisions of the defendant township’s sewer finance ordinance for the purpose of paying the annual assessment against the township by the drainage district. Further, plaintiffs seek to recover those moneys paid by the township to the other defendants prior to the institution of this action, which purports to be on behalf of the township’s residents as a class.
There is no material issue of fact between the parties on appeal.
On July 30, 1964, a hearing was held in Lansing by the State Health Commissioner, who after consideration of the record made the following findings of fact:
“1. In 1956 representatives of the state and local health departments, by survey, found sewage being discharged into the waters of the State and creating health hazards.
“2. Pursuant to the provisions of the State drain law, the state health commissioner filed with the Michigan Water Resources Commission his findings of health hazards in the Township of Grosse Ile.
“3. In February 1957, the Water Resources Commission petitioned the Wayne County drain commissioner to take appropriate steps to eliminate the pollution.
“4. The Wayne County drain commissioner followed the provisions of the State drain law to eliminate the pollution of the waters of the state in and around the Township of Grosse Ile. The drain commissioner could not complete the project, however, because the township board did not adopt a resolution pledging the full faith and credit of the Township behind the financing for the necessary sewage collection and treatment facilities.
“5. A survey conducted jointly by representatives of the Michigan Department of Health and the Wayne County Health Department on July 20, 21, and 22, 1964, of sewers discharging to the Through- fare Canal and other public waters around Grosse lie clearly confirm that wastes of human origin are being discharged and that health hazards exist.
“6. Sewage is ponding on the ground surface in the yards of homes and also in roadside channels and ditches because septic tank sewage disposal systems cannot function properly. It is clear that health hazards result from such conditions.
“7. House sewer connections are either made directly or after passing through a septic tank to private drains or county drains which in turn discharge either untreated or inadequately treated sewage to public waters in and around Grosse lie Township, thereby causing unlawful pollution of the waters of the state and creating health hazards.
“8. The Township of Grosse He is responsible for the control and operation of at least three existing sewerage systems.
“9. There was no evidence submitted by either the Wayne County drain commissioner, the Grosse He Interceptor Drainage Board, or the Township of Grosse He to show that pollution of the waters of the state was not occurring or that health hazards do not exist due to improper sewage disposal in the Township of Grosse He.
“10. Certain township officials objected to correcting existing conditions solely on the basis that the proposed facilities were too costly.
“11. It is clear that the facilities proposed for construction by the Wayne County drain commissioner would eliminate, in most instances, the conditions of pollution and health hazards. Further, the facilities would provide means for correcting any remaining pollution conditions and health hazards.
“12. Recognized bond counsel and financial consultants have rendered opinions that the proposed sewage collection and treatment facilities are financially feasible and not confiscatory.
“13. It is clear that there is no unanimity of opinion amongst the members of the township board as to action which should he taken in connection with the proposed sewerage project.
“14. It is evident that there is much support for the proposed sewerage project from residents in the Township of Grosse Ile.
“15. Section 10 of Act 98, PA 1913, as amended, requires, among other things, the State health commissioner to inspect sewerage systems or parts thereof serving the public and likewise the manner of operation of snch systems. If he finds the sewerage systems to be inadequate or so operated as not to adequately protect the public health, he may order the owner and/or the operator to make such alterations in the system or its operation which, in his opinion, is required in order that the sewage be not prejudicial to the public health. This section provides further that it shall be the duty of the owner or operator of the system to comply with the orders of the State health commissioner.
“16. Section 11 of Act 98, PA 1913, as amended, requires the State health commissioner to exercise due care to assure that sewerage systems are properly planned, constructed and operated so as to prevent unlawful pollution of the streams, lakes and other water resources of the State.
“17. Section 2 of Act 98, PA 1913, as amended, defines a sewerage system as including, among other things, ‘ * * channels * * * actually used or intended for use by the public for the purpose of collecting, conveying, transporting, treating or otherwise handling sanitary sewage.’ ”
As a resnlt of these findings and pursuant to his authority under MCLA § 325.210 (Stat Ann 1969 Rev § 14.420), the State health commissioner on August 14, 1964, issued an order that the facilities were to be constructed as approved and that they were to be completed by March 1, 1966.
On September 21, 1964, in compliance with the health commissioner’s order and after noting that on September 25,1963, a petition pursuant to MCLA § 280.463 (Stat Ann 1968 Rev § 11.1463) had been filed to establish a drain district and that the drainage board had assessed 100 per cent of the cost of construction of the proposed project against the township and that the drainage board had authorized and provided for the issuance of bonds to finance the project, the Wayne County board of supervisors by resolution pledged the full faith and credit of the county to back the bonds.
Since 1965, Crosse lie Township has levied general ad valorem taxes in the amount of 2.88 mills to help raise the money required to pay the assessment. This 2.88 mills is in excess of the maximum allocation of tax fixed by the tax allocation board and has not been voted by the electors of Crosse He Township.
Construction was completed in 1966 and Crosse He Township, to supplement the money raised by ad valorem taxes, passed a sewer finance ordinance. The charges set forth in the ordinance were based on MCLA § 280.490 (Stat Ann 1968 Rev § 11.1490).
The charges imposed by the ordinance are direct benefit connection charge, availability of service connection charge, readiness to serve charge, service charge, and sewage disposal charge. The ordinance also requires that premises be connected to the public sanitary sewer. The availability of service charge has been discontinued.
Plaintiffs, who are residents of Crosse He Township, contend that the 2.88 mills levied by the township is prohibited by Const 1963, art 9, § 6, that the township’s sewer finance ordinance imposes charges not authorized by MCLA § 280.490 (Stat Ann 1968 Rev § 11.1490) and that the ordinance is discriminatory. Plaintiffs also contend the ordinance cannot require them to connect to an available sewer unless their septic tank is specifically found to be a health hazard and that an illegal franchise has been granted the drainage district.
It is the position of the defendants that the millage levied by Grosse Ile Township comes within the provisions of the non-application of limitation part of Const 1963, art 9, § 6, that the provisions of the sewer finance ordinance are valid and that no franchise has been, or need be, granted to the drainage district.
Plaintiffs and defendant both filed motions for summary judgment and the motions came on for hearing before the trial court. After hearing arguments of counsel and considering the briefs filed by the parties, the trial court rendered a written opinion granting appellees’ motion for summary judgment of dismissal and a judgment to that effect was entered July 1, 1968. It is from this judgment that plaintiffs appeal.
Although plaintiffs seek to multiply the issues on appeal, there are only five issues before the court for disposition.
May Grosse Ile Township levy annually the ad valorem taxes necessary to pay assessment installments and interest levied against it by a drainage district board for the payment of principal and interest due on drainage bonds issued by the drainage district board in anticipation of the payment of said installments and interest by Grosse Ile Township?
We find that although plaintiffs’ contentions as regards the 15 mill tax limitation would be correct if we were still acting under Const 1908, art 10, § 21 (See Township of Southfield v. Drainage Board for Twelve Towns Relief Drains [1959], 357 Mich 59), under the present constitutional provision, Const 1963, art 9, § 6, however, the limitation does not apply to taxes levied to discharge bonded indebtedness. 10 Wayne L Rev 358 (1963).
The language of the provision is unambiguous:
“The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount.” Const 1963, art 9, § 6.
We reiterate what was said in Betz v. Berrien County Building Authority (1968) 12 Mich App 304, 312, “(t)he language is applicable to the situation here. The [township] is, thus, authorized to levy annually such ad valorem taxes as may be necessary to meet its obligations to the [drain district] under the contractual arrangements of the parties”. Thus, what was prohibited under the old constitution is clearly allowed under the new. The township’s levying of the additional 2.88 mills to meet the assessments levied against it by the drain district is proper and was properly sustained by the trial court.
Are the charges imposed by the Grosse lie Township sewer finance ordinance authorized by MCLA § 280.490 (Stat Ann 1968 Rev § 11.1490)?
The plaintiffs’ contention on this issue is that the 1965 amendments to MCLA § 280.490 (Stat Ann 1968 Rev § 11.1490) which allow the special assessments, connection charges, readiness to serve charge, and availability service charges cannot be used to validate the township’s ordinance as the sewer assessment roll was confirmed prior to their passage.
In support of this argument, plaintiffs quoting from MCLA § 280.490 (Stat Ann 1968 Rev § 11.1490) say: “This section shall be applicable only where the drain assessment roll is confirmed, subsequent to the effective date of this section”. The plaintiffs consider that this quoted portion of the section applies to and limits the application of the 1965 amendments added by PA 1965, No 253. The fallacy of this argument is that the quoted language has been part of § 490 since it was added to the drain code by PA 1957, No 37. We find that it has no bearing-on the 1965 amendments. The charges imposed under the township sewer finance ordinance against plaintiffs’ property are proper under § 490 of the drain code.
May the Township of Grosse lie require a property owner to connect to an available public sanitary sewer system without a specific finding that his existing sewage system is a health hasardf
Section 3 of article 2 of the house leads ordinance adopted October 11, 1965, requires everyone to connect to the new public sewer system within one year from the time they are available for connections. This ordinance provision is authorized under regulations of the Wayne County Health Department.
In any event, since it has been over two years since the sewer became available, the plaintiffs are under a statutory duty to connect under MCLA § 123.192 (Stat Ann 1970 Cum Supp § 5.2767[102]). That section is part of PA 1961, No 151 known as the sewage connection with public collection facilities act which further, by its § 4, MCLA § 123.194 (Stat Ann 1970 Cum Supp § 5.276[104]), declares that if no connection is made within 90 days of a written demand sent under § 3, MCLA § 123.193 (Stat Ann 1970 Cum Supp § 5.2767[103]), the property is a threat to the health, safety and welfare and a public nuisance. Section 4 authorizes the operator of the sewer facility to enter upon such property and make all connections necessary in its discretion to abate the nuisance.
Tbe statute does not require that the plaintiffs’ particular private septic system be found to be creating a health hazard, or be otherwise specially inadequate. We note that § 2 of the sewage connection act applies only to property in counties with more than 300,000 inhabitants. Certainly then, it is reasonable and proper for this court to assume that the legislature considered that where the population reached a certain level in any county the continued use of private sewer systems, no matter that they may be minimally adequate individually, would, by their totality, create a health hazard.
The legislature has exercised its power to protect the health of the people of this state in a reasonable manner. We see no reason to further delay the implementation of this laudable legislation.
Is the drain district conducting a local business which requires a franchise from Grosse He Township by the operation of the sewer system in said township?
The plaintiffs contend that Const 1963, Art 7, §§ 19, 29, 30 require that the drain district be granted a franchise by the township before it may enter and use the township’s streets and other public places to construct its sewer system. The plaintiffs further contend that since no franchise was ever confirmed by the electors of defendant township, the sewer system was illegally constructed.
There is no doubt that if a confirmed franchise is required to construct the sewer system, then the drain district is not properly using the township’s streets, for no confirming vote by the electors under MCLA § 460.102 (Stat Ann § 22.172) has ever been taken.
However, we find that the drain district here is not a public utility conducting any local business which would require a franchise. Certainly, the sewer system serves the public and is, therefore, a public utility in the ordinary sense of the word. This does not necessarily mean, however, that the sewer system is a public utility such as to require a franchise under the laws of this state. See Oakland Drain Com’r v. City of Royal Oak (1943), 306 Mich 124, 147. The procedure by which a township grants its consent to the use by a drain district of its streets is clear. When, as here, it is necessary for the public health to construct a sewer system, PA 1956 No 40, § 463, MCLA § 280.463 (Stat Ann 1968 Rev § 11.1463), provides for the filing of a petition with the county drain commissioner signed by the public corporations which will be subject to assessment for the costs. The petition which is required to be filed under § 463 must contain a description of the location and route of the proposed drain and must have attached a certified copy of a resolution of the governing body of each public corporation authorizing the signing of said petition. Since the drain here is entirely within the limits of Grosse Ile Township, PA 1956, No 40, § 486, MCLA § 280.486 (Stat Ann 1968 Rev § 11.1486), allows the governing body of the township to give its consent to the filing of a petition under § 463 by resolution.
As noted earlier, there is no dispute that such a petition was filed pursuant to § 463 by the township on September 25, 1963. By this petition, and its underlying resolution, the township gave its consent to the drain districts’ use of the public highways and byways as necessary for the construction and maintenance of the sewer system. No further authorization is necessary.
The general legislation, PA 1909, No 266 (MCLA §§460.101, 460.102 [Stat Ann §§ 22.171, 22.172]) upon which plaintiffs rely has no application here because of the specific legislation, PA 1956 No 40, §§ 463, 486. When the 1963 Constitution was approved, it was already the law that the consent of a township to the use of its public ways by a drain district was not to be given by franchise but by the resolution which authorized the signature of the petition for the formation of the drain district. Nothing in the new constitution has changed this procedure.
The drain district is not conducting a local business which would require a franchise. Since a public health question is involved, the legislature had a right to indicate what type of procedure it wished to be used. See Southfield v. Drainage Bd. supra, 78. We find that since the petition procedures established by the drain code were followed by the township here no further consent is necessary.
Is this a proper class action under GCR 1963, 208¶
Having already disposed of the substantive issues in this cause, this procedural matter becomes somewhat moot. We see no reason to decide whether or not this action was properly characterized as a class action. However, we do not share defendants’ view that plaintiffs’ representation of the property-owning taxpayers class is necessarily inadequate because there are just the two of them.
Affirmed. No costs, a public question being involved.
Fitzgerald, P. J., concurred.
Levin, J., concurred in the result only. | [
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Hooker, J.
The complainant erected a building upon premises owned by Bath, finishing the same upon December 10, 1893, his contract having been made on October 2, 1893. On December 1, 1893, and while the complainant was at work under his contract, Schenck took a mortgage upon the premises. On January 30, 1894, complainant filed a lien upon the premises for $373. A stipulation was filed at the hearing, dated March 30, 1896, signed by the solicitor of the defendant Bath, admitting the regularity of all proceedings to enforce the lien, and consenting to a decree for the sum of $333, with interest from February 1, 1894, and costs; and a decree was entered accordingly against Bath. We discover no evidence that the complainant had served upon the landowner, Bath, a statement under oath of the number and names of the subcontractors and laborers in his employ, and of those furnishing materials, and the amount due or to become due to them; and the decree indicates that there was no such testimony, as it contains a finding that the service of the same was waived by defendant Bath. The court held that the mortgage of the defendant Schenck was a prior incumbrance to complainant’s lien, and the decree required the sale to be made subject to the mortgage, and costs were awarded to Schenck against the complainant, who has appealed.
The briefs discuss but one point, viz., whether the failure to serve the notice required by section 4, Act No. 179, Pub. Acts 1891, was a sufficient ground for the holding of the circuit judge that the mortgage should have priority over the lien. We have held that a failure to comply with section 4, Act No. 179, Pub. Acts 1891, is fatal to proceedings to enforce alien. Wiltsie v. Harvey, 114 Mich. 131. This is upon the ground that compliance with such section by serving a sworn statement must be shown, or at the least waived, to warrant the commencement of an action or proceedings to enforce a lien. Martin v. Warren, 109 Mich. 584; Barnard v. McLeod, 114 Mich. 73. Under section 9 of the lien law, as amended by Act No. 199, Pub. Acts 1893, a lien terminates at the expiration of six months after the statement or account is filed with the register of deeds,- unless proceedings to enforce the same be commenced within that time. In the case before us, there was no service of the statement within such period, and, as the suit brought before the expiration of the time was prematurely brought because of the nonperformance of the condition precedent, the lien was at an end as to the defendant Schenck, who had a right to avail herself of any irregularity destructive to complainant’s lien, as she was directly benefited thereby. This was held in the case of Wiltsie v. Harvey, supra. The alleged waiver was not made until March 30, 1896; and if this was effective to support the decree against the defendant Bath, which we do not find it necessary to determine, as he has not appealed, it cannot have such effect against defendant Schenck. Wiltsie v. Harvey, supra.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Per Curiam.
The people move to affirm defendant’s conviction, on plea of guilty, of unlawfully taking possession and driving away of a motor vehicle contrary to MCLA § 750.413 (Stat Ann 1954 Rev § 28.645). GCR 1963, 817.5 (3).
On appeal, defendant argues that the court failed to examine defendant sufficiently in order to establish the crime and defendant’s participation therein. See People v. Barrows (1959), 358 Mich 267, 272; People v. Perine (1967), 7 Mich App 292. Specifically, defendant argues that the examination failed to disclose that he actually drove the vehicle away.
Our review of the record satisfies us that the court’s interrogation of defendant was adequate.
Motion to affirm is granted. | [
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Moore, J.
The plaintiff recovered a judgment in the sum of $500 against the Bartlett Lumber Company. The case is brought into this court by writ of error. In August, 1917, the defendant company was in need of help and communicated that fact to Rudolph’s Employment Agency in Detroit. It is the claim of the plaintiff that he was orally employed to go to the defendant company’s place of business as a machinist, and that on the following day, which was Sunday, he with 16 others signed a contract which plaintiff says he did not read or hear read, which said nothing about the nature of his employment. He went to Shelldrake, and what occurred there will appear later. At the close of all the testimony the trial judge was requested to direct a verdict in favor of the Bartlett Lumber Company. This he declined to do, but reserved the question under Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), and submitted the case to a jury in a charge covering more than ten pages of the printed record. The jury-returned a verdict as before stated. Later the trial judge filed an opinion in denial of the reserved motion reading as follows:
“The action is malicious prosecution, originally brought against A. B. Chalmers, David Barras and the Bartlett Lumber Company. Chalmers was not served with process, the court directed a verdict in favor of Barras, and the cause proceeded as against the defendant, Bartlett Lumber Company. The jury returned a verdict in favor of the plaintiff for the sum of $500. A± the close of the testimony, defendant moved for a directed verdict in its favor. The motion was reserved under the Empson act, and by agreement of counsel is now presented on briefs.
“The defendant presents only one proposition, that the evidence does not show that Chalmers was authorized by defendant lumber company to make criminal complaint against the plaintiff. Its position is thus stated:
“ ‘Nothing in testimony can be construed into evidence that Chalmers was authorized or directed by the Bartlett Lumber Company to commence in its name a criminal case maliciously or without probable cause.’
“Briefly stated the facts are: In August, 1917, written complaint was made by Chalmers, before David Barras, a justice of the peace of Chippewa county, against the plaintiff, charging him (in intent) with fraudulently obtaining transportation from the Bartlett Lumber Company under a promise to repay and in failing to repay, contrary to 2 Comp. Laws 1915, § 5581, a warrant was issued, plaintiff was arrested, a hearing was had, and the justice sentenced plaintiff to serve a term of sixty days in the Chippewa county jail. He served forty-five days. The complaint recites that it is made by the Bartlett Lumber Company and is signed ‘Bartlett Lumber Company, by A. B. Chalmers, Secy.’
“The testimony does not show that Chalmers was secretary nor an officer of the defendant company. The defendant conducts lumbering and timber manufacturing operations at Emerson in Chippewa county. No officer of the corporation (if Chalmers was not an officer) was continuously at Emerson but different officers made occasional trips to the operations to oversee them. The local affairs were under the immediate charge and supervision of different employees, Chalmers having charge of- the office, Scott of the mill and Dacy of the woods operations. Among Chalmers’ duties was that of employing men, particularly of employing them in considerable numbers through employment agencies.
“In line with such duties, Chalmers in August, 1917, sent a communication to an employment agency in Detroit, directing it to send a number of men to work for defendant at Emerson. Plaintiff was hired by such agency, and with several others, was brought to Emerson from Detroit by a representative of the agency, who paid their transportation and other expenses. Before leaving Detroit, the men signed a written promise to repay defendant, either in work or money, the expense of the transportation and the agency employment fee. Plaintiff claims he did not read the promise nor know the contents of the instrument. Upon arrival of the party at Emerson, the contract was turned in to Chalmers. The next morning, plaintiff reported for work at the defendant’s machine shop and claimed to Scott, the superintendent of the mill, that he had been hired to work as a machinist at $4.50 or $5.00 per day. Scott informed him that there was no work for him as a machinist and put him at other labor at $2.50 per day. After working two days, plaintiff and another left in the nighttime, without notice. Chalmers thereupon made the complaint and caused their arrest.
“Before the justice, a somewhat informal hearing was had. Chalmers produced the contract to repay the transportation and both he and Scott were present and took part in the proceedings. Plaintiff again insisted that he had been hired as a machinist and complained of not getting such work. Demand was made upon him to repay the transportation advances made by the defendant, either in work or money, and he refused to do either. The justice and Scott testified that plaintiff pleaded to the charge but plaintiff denied having made such plea. The issue was submitted to the jury.
“The issues' of Chalmers’ authority to make the criminal complaint on behalf of defendant, his malice and want of probable cause, were also submitted to the jury as questions of fact.
“It is not necessary, in order to render the defendant liable for Chalmers’ acts, that the latter should have direct authority from the defendant to ‘Commence in. its name a criminal case maliciously or without probable cause.’ If he had authority to make the complaint in behalf of defendant, his own malice and want of probable cause would be imputed to the corporation. Wacksmuth v. National Bank, 96 Mich. 430 (21 L. R. A. 278).
“It will be noticed that in addition to the acceptance of transportation under a promise to repay, the statute requires two other elements to make out the offense, (1) that the acceptance musti.be with intent to defraud, and (2) that there shall be a neglect or refusal to repay the advances, either in money or in labor at the contracted price. The justice acted under the second provision in offering plaintiff an opportunity to repay after arrest.
“Intent to defraud is peculiarly a jury question and, in view of the plaintiff’s claim to Scott, immediately upon reporting for work, and later to the justice, that he had been hired as a machinist, the questions of malice and probable cause appear to me to be for the jury. This is particularly so inasmuch as Chalmers was not produced to show the specific information upon which he acted, there is no dispute of plaintiff’s claim that he was so hired as a machinist and the instructions given to the employment agency were not produced.
“The complaint shows directly that Chalmers was-not acting in his individual capacity but that he assumed to act as an agent and in behalf of the defendant corporation in causing plaintiff’s arrest. It was in line with his duties and authority that he caused the hiring of plaintiff and that he had charge of the agreement for reimbursement, which was the basis of the complaint for the arrest. Under these circumstances and because of defendant’s mode of conducting its Emerson operations and in the absence of testimony that Chalmers had no authority to make the complaint in defendant’s behalf, it is plain that defendant was not entitled to a direction of verdict upon the ground that Chalmers had no such authority.
“I am able to find no Michigan cases decisive of the issue as here presented. But in 18 R. C. L. p. 66 the rule is stated that:
“ ‘The authority may be implied when tbe arrest is made by the agent in tbe absence of tbe principal for tbe protection of property that is in danger, and in some cases, it has been inferred when tbe arrest was to recover tbe property back, or when the crime was at tbe time being perpetrated.’
“The case at bar comes within this rule as the purpose of the complaint was to compel the reimbursement of the defendant for its advances made upon plaintiff’s transportation.”
Counsel argue four assignments of error, but they all revolve about the question of whether the defendant company authorized the complaint. The complaint itself purports to have been made by “Alex Chalmers (Secretary Bartlett Lumber Co.)” and recites “Whereof the said Bartlett Lbr. Co. prays that said Arthur Jorgenson may be apprehended,” etc., and is signed “Bartlett Lumber Co., A. M. Chalmers, Secretary,” and was a sworn complaint. The testimony is that the magistrate who issued the warrant was in the employ of the lumber company, as was the sheriff who served it. The testimony indicates that Mr. Chalmers was in charge of the office as head bookkeeper. We quote from the testimony of Mr. Scott: ■
“I live at Shelldrake, have been employed there eight years, first as mill foreman and since 1917 as superintendent. Mr. Chalmers was there in 1917 as head office man and bookkeeper. I do not know whether he was secretary of the company. It is not a fact that he had general charge. He had charge of certain parts of it, same as I did. I had charge of some certain parts of it. Mr. Chalmers had charge of the office part and he had complete charge of sending out men — authorizing men to be sent for. When he-left I took that duty. When he went away I took his place. I remember when Jorgenson came. He was brought up by the Rudolph Employment Agency. There was a letter or message of some kind sent to employ so many men and were to deliver them to the Bartlett Lumber Company, Shelldrake, Michigan. There was sixteen or seventeen men came up in response to a letter or telegram.”
No officer of the company resided at Shelldrake unless Mr. Chalmers was an officer. At any rate he was as important a representative of the company as lived at Shelldrake. We think the language used in WachsmutH v. National Bank, 96 Mich, at pp. 430, 431 (21 L. R. A. 278), is germane here. We do .not quote what was said but refer to it. We discover no reversible error.
The judgment is affirmed, with costs to the appellee.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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WlEST, J.
Plaintiff was. interested, by way of commissions on sales, in a second-hand furniture business conducted on the third floor of a.building owned by defendant in the city of Detroit. About 2 o’clock, the afternoon of June 10, 1920, having occasion to deliver some furniture, plaintiff summoned a delivery man, helped load the furniture upon the elevator in the building, had the delivery man operate the elevator to' the ground floor and there helped unload and carry the furniture to a truck in the alley. The elevator was operated by those using it, and at the ground floor had a gate which was lifted by hand and, by a tripping device, settled to pláce when the elevator ascended. The delivery man, having had some experience with the gate not remaining up when lifted, propped it up with a stick and left it so propped after removing the load. When the load was removed, and while the delivery truck with the furniture was still in the alley, plaintiff, with the aid of ice tongs, dragged a cake of ice, weighing about 200 pounds, from the alley and along the passage in the building to the elevator, intending to take it to the third floor. In dragging the ice he walked sideways, but before he reached the elevator he glanced toward it and saw the gate up. Seeing the gate up he assumed the elevator was there and continued to drag the ice, but when his left foot was within a few inches of the elevator opening he discovered the elevator had been removed and he either slipped on the wet floor into the elevator well or was carried in by the momentum of the ice, and fell to the bottom with the ice striking him, and sustained severe and permanent injuries. He brought this suit to recover damages, claiming defendant was negligent in not providing light at the elevator and in not having at the elevator opening an automatic door or gate constructed to open and close by the action of the elevator in descending or ascending. Plaintiff had verdict and judgment thereon for $18,500. By motion to direct a verdict at the close of plaintiff’s evidence, and again at the close of all the evidence, and motion for judgment notwithstanding the verdict, and for a new trial, defendant has saved, and now presents by writ of error, the questions of plaintiff’s contributory negligence, defendant’s negligence, the applicability of the statute requiring automatic doors or gates to elevators in manufacturing establishments, and the claim that the verdict is against the weight of the evidence. Plaintiff’s case rests upon the negligence of defendant in not providing automatic gates which would open when the elevator was present and close when it was absent, and yet his proofs established the fact that the delivery man, employed by him, propped the gate up with a stick so it could not come down when the elevator was away from the ground floor. With the gate so propped up it was negligence on the part of plaintiff to assume that, because the gate was up, the elevator was at that floor and to back toward it, pulling a 200-pound cake of ice, without looking to see whether the prop was still under the gate and the elevator at that floor. There was no evidence that the elevator gate would not lower in place if not propped up, when the elevator was operated. There was evidence the gate would not always remain up while the elevator was being loaded or unloaded. The injury to plaintiff did not come because the gate would not stay up, but because the gate was propped up by the delivery man working for plaintiff, so it could not come down when the elevator left the ground floor.
Plaintiff, on his direct-examination, testified:
“When Hayes (the delivery man)'brought this last load of furniture down on the elevator, he raised the gate and I believe he made an attempt to keep it up and it would not stay up, and somebody suggested that they prop a stick up under it. If there was a stick there or not I do not know, but, however, the gafe would not stay up and he hunted about for a stick or had the stick there and propped the stick up under the gate in order to keep it up. He raised the elevator gate with his hand, pulled it up to the level as far as it would go after the elevator had stopped at that floor. Then he either had the stick on the elevator or it was about there some place, and he put it under the gate to keep it in that position.
“After I saw Mm raise the gate and put the stick under it, we both started to unload what furniture was on the elevator into the truck, which was outside in the alley, about 35 feet from the elevator shaft. * * * From the entrance of the building to the hallway was about 10 or 12 feet. There you made a turn of another 3 or 4 feet, then you proceeded down a hallway about 6 feet to the elevator proper. So that the elevator was about 16 or 18 feet from the building entrance. In other words, the hallway leading from the building entrance to the elevator shaft has a 3 or 4 foot jog in it as you enter. * * *
“When I took hold of the ice with the tongs with my right hand I dragged it along on the floor I was somewhat bent to the weight of pulling it, so I sort of walked sideways, kind of looked toward where I was going.
“As I turned the corner of the jog in the hallway I stopped immediately to look toward the elevator to see the condition of the elevator, whether it was there or something to that effect. I saw the gate was up. It was exactly as it was left just prior to taking off the last articles from the elevator.
“I made another stop immediately at the edge of the landing to determine the second time whether the elevator was there, or whether it was necessary for me to raise the ice or lower it as the position of the elevator would need, or be level with the floor landing. In other words, when I took hold of the ice with my tongs in the alley, I dragged it across the pavement to the entrance and then down the hall about 12 feet to the jog in the hall, and then along the jog 4 feet to my right, and then turned again to my left to the end of the jog toward the elevator shaft and at this point is where I stopped to look up at the elevator to see whether the elevator gate was there. It was, as it always was when the elevator was there, so I dragged it immediately opposite the gate and nearly to it, and as I said before the floor was wet, I stopped immediately at the entrance of the elevator, I lost my balance, or my foot must have slipped on the floor down into the hole.
“At the time my foot slipped or I lost my balance, I might have been three or four or five inches from the edge of the floor, I don’t know which, I am not sure. By that I mean I was three or four inches from the elevator well.”
This testimony of plaintiff established his contributory’negligence, but on cross-examination it is claimed he qualified such testimony and made the question of his contributory negligence one of fact for the jury. He testified:
“I assume that Hayes put the props under the gates, now how he done it I ain’t sure of that either. That is about how it was done. I ain’t saying for a certainty whether I was there or not when he was doing it.
“Q. Where did you get the idea of it then when you told us about it yesterday?
“A. I supposed that is the way it was done because that is the way it looked. I assume in order to get a gate up in the position where you could walk under it you would have to raise it.
“Q. Yesterday you testified that you had seen Hayes raise the gate and put a stick under it? Is that right?
“A. Well, I am not sure of that. He might have done it on another occasion.
“Q. Why did you say you saw him do it at that time?
_ “A. I might have seen him, I may not have seen him. I just assumed that he done it. That is the way he has done it, I ain’t sure that he really done it then.
“Q. You have seen it done that way before, is that what you mean?
“A. I am not sure, I did not take that much interest in the elevator, to be frank with you.
“Q. Why do you assume that?
“A. Normally that is what a person would have to do in order to get the gate in that position.
“Q. How do you know?
“A. Just by that reason and none else.
“Q. How do you know that normally you have to do that?
“A. I didn’t think the gate would go up itself, it never did go up itself.
“Q. Would it stay up itself?
“A. No, I don’t think it would.
“Q. Why don’t you think so?
“A. It was propped up there, that is the way I know of, as much as I know of it, it was always propped up. That is the way I have seen it before myself.
“Q. Always propped up?
“A. Yes, sir.
“Q. So upon this occasion you would assume it had been propped up too?
“A. That is all.
“Q, As a matter of fact you might have seen Hayes in the act of propping it up as you stated yesterday?
“A. I might have, that is about all I can testify, I would not swear to that situation. If I swore to it yesterday I just assumed that I seen it.
“Q. Yesterday you told counsel, when he asked you:
“ ‘Q. That you had seen Hayes raise the gate and nut a stick under it.
“ ‘A. It -wouldn’t hardly be necessary for Hayes to tell me he had put a stick under it, there was no cause for that.
“ ‘Q. You would know it anyway, would you?
“ ‘A. I know that he might have done it, I don’t know, however. He would keep the gates up where they would not stay up.’
“Q. From your experience there before, and knowing you had to have a stick under it, you assumed at this time that Hayes would do the very same thing as others had done, is that the idea?
“A. Practically that.
“Q. Assuming that he did do that, you don’t recall now looking to see if he did do it or not?
“A. No, not positively sure. * * * I had not seen Hayes use this block before the day of the accident. Upon this day I did not speak to him about taking it out from under the gate. At the time I was going down the passageway and glanced over my shoulder I did so for the purpose of seeing the gates. At that time I saw the gate was there, and assumed the elevator was there also.”
Under plaintiffs own testimony the court should have directed a verdict in favor of the defendant. He had no right to assume that the elevator was there because the gate was up, for he knew it had been propped up a few moments before, either by seeing it done or knowing it had to be propped up to keep it from coming down. Plaintiff’s qualification of his testimony given on direct-examination was of no probative value. Plaintiff either saw the delivery man place the stick under the gate or did not see him do it. He said he saw the stick so placed, and later did not say he did not see it so placed. If he saw the stick so placed, or knew it was done, he certainly was not acting with ordinary care, had no right to assume the elevator was there because the gate was up, and was guilty of contributory negligence. While contradictory statements of a plaintiff may go to a jury for a sifting to discover the truth (Goonen v. Railroad Co., 218 Mich. 502), the rule is not sufficiently lax to admit a positive statement of fact, establishing contributory negligence, being rendered an affirmative showing of due care by subsequent testimony that the first statement may or may not be true. Plaintiff knew it was a practice to prop the gate up and when so propped it could not come down if the elevator was removed and, knowing this, it was negligence on his part to assume the elevator was present because the gate was up and to act on such assumption. And this is true whether he saw the gate propped up by Hayes or not.
We find no occasion to discuss other claimed errors. Defendant was entitled to a directed verdict and judgment notwithstanding the verdict.
The judgment is reversed and the ease remanded with direction to enter judgment for defendant. Defendant will recover costs.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Bird, J.
On August 1, 1922, plaintiffs purchased from defendants, on land contract, a dwelling on Fulton avenue, in the city of Detroit, for the sum of $4,600. Plaintiffs paid down $1,946.25, leaving a balance of $2,653.75, to be paid at the rate of $45 per month, with interest on unpaid balance at 6 per cent. Plaintiffs got in arrears as to some of the payments and defendants, on the 4th day of April, 1923, commenced an action before a circuit court commissioner to eject them. This action resulted in a judgment for restitution and the plaintiffs were accordingly evicted.
Plaintiffs then filed this bill claiming they were wrongfully evicted. They admitted they were in arrears with reference to some of their payments, but offered in the bill to make payment thereof, and prayed for an accounting and for an injunction inhibiting the defendants from selling or incumbering the property during the progress of the trial. Plaintiffs also claim in their bill that, after the judgment for restitution was rendered by the commissioner, defendants promised they would accept the full amount due upon the contract, but afterwards when it was tendered to them they refused it, and insisted upon having the property, thereby depriving plaintiffs of the $2,000 which they had paid thereon. After hearing the claims of the respective parties the chancellor determined that the judgment rendered by the commissioner was void. He determined the amount that was due on the contract, together with all delinquent taxes, and found the sum to be $918.54, and provided payment thereof should be made on or before the 20th of February, 1924, and further provided, upon payment thereof, plaintiffs should be repossessed of their property.' From that decree, the defendants appeal.
The important question in the case is whether the judgment rendered by the commissioner is valid. The testimony of the constable shows that he went to plaintiffs’ home and served Mrs. Barnes with a summons, but got no service upon Mr. Barnes as he was not there. He was informed by Mrs. Barnes that Mr. Barnes was a conductor on the Wabash railway and that his goings and comings were somewhat uncertain. Notwithstanding this information he did not go to the Wabash to make inquiry. He appears to have made no further effort to get service upon Mr. Barnes, and yet he returns that after diligent .search and inquiry he was unable to find him in Wayne county. When the return was made and filed, some one, it does not appear who, made an affidavit for an order of publication, under Act No. 293, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 13243), for substituted service. The affidavit does not appear in the record. The ground upon which the order was evidently granted is under the second requisite provided by the statute:
“That the defendant is a resident of this State, and that process for his appearance has been duly issued and that the same could not be served by reason of his absence from or concealment within this State, or by reason of his continued absence from his place of residence.”
It does not appear in the record who made this extraordinary affidavit. The constable was advised where Mr. Barnes worked and for whom he worked, and he was informed how he was employed, and that his home-coming was irregular. Mr. and Mrs. Curry knew that Mr. Barnes lived in Detroit, and knew that he worked for the Wabash Railway Company. The attorney for the defendants knew that Mr. Barnes resided in Detroit, and also knew that he worked for the Wabash Railway Company. We think that the act referred to authorizing a substituted service was not intended to cover a case of this kind. The testimony of the constable shows that he made no diligent effort to find the plaintiff, Mr. Barnes. It was said in Soule v. Hough, 45 Mich. 418, that:
“The statute was never designed to encourage getting constructive service on a merely temporary absence, and the affidavit should leave nothing ambiguous as to the diligence used to find the parties. As a matter of fact there can usually be no difficulty generally in finding residents within a reasonable time; and the court ought to have a sufficiently responsible showing to guide it in determining whether a case is fully made out. The English statute, which was intended chiefly, if not entirely, to reach residents who were absent, was construed in Burton v. Maloon, Barnardiston, p. 401, as requiring a positive showing, and the New York court of chancery in Evarts v. Becker, 8 Paige, 506, is to the same effect.”
“Where service is made in any but the ordinary ways, the rule has always been that its regularity must appear, and unless the facts on which it appears to have been allowed are such as would make it come within the statutory conditions, it cannot be maintained. All extraordinary means of getting jurisdiction must be conformed to the legal authority.” Merrill v. Montgomery, 25 Mich. 73.
What the showing was in the affidavit for the substituted service we cannot tell, except by the order of publication, which the commissioner made and signed. What was done here by the officer to get service upon Mr. Barnes was by no means a diligent effort and did not lay a foundation for a substituted service under the act quoted.
But there is a further objection which is fatal to the proceedings before the commissioner. It does not appear that the order of publication was ever published, as required by the statute. It was necessary for the defendants, if they intended to establish their rights by the commissioner’s judgment, to show affirmatively a valid judgment and a valid service upon the plaintiff. This they did not do. The affidavit for the order of publication was not introduced in evidence. The affidavit of the printer was not introduced in evidence. There is a reference to the affidavit of the printer in the abstract of the commissioner’s record that proof of publication was filed, but there is nothing to show where it was published, by whom it was published, whether it was published the requisite number of times provided by the statute, or whether it was published within the requisite time the statute provides. The material part of the statute in this respect provides:
“If his whereabouts shall be known, a copy of such order shall be personally served upon such defendant at least ten days before the time prescribed for the appearance of such defendant and proof of such ¡service shall be made by the affidavit of the person who shall serve the same, made before a justice of the peace or notary public. * * * If the whereabouts of such defendant shall be unknown, upon filing an affidavit to that effect with the officer making the order, such order shall be published within five days after it shall have been entered, in such newspaper printed in the county, or in such paper as the court may direct, once in each week for three successive weeks, and shall contain the date, time and place set for the hearing of such case.”
It is not shown or claimed that any copy of this order was served upon Mr. Barnes, although the defendants and their attorney admitted that they knew where he worked and by whom he was employed, and also where he lived. If the defendant’s whereabouts be known the statute is mandatory that a copy of the order of publication shall be served upon him. The only reference to the proof of publication is in the certified copy of the record of the commissioner, but that certified copy was not marked and offered in evidence as we can find in the record. So, as a matter of fact, there was no proof of the publication of the order. The record fails to show that there was ever any valid service upon Mr. Barnes. He was not served with a summons, he was not served with the order of publication, and there is no evidence that the order was ever published, and, hence, the judgment against him is invalid and he had a right to question it in any court. King v. Harrington, 14 Mich. 532; Nugent v. Nugent, 70 Mich. 52.
“If a court act without authority, its judgments will be regarded as nullities; and the jurisdiction of the court exercising authority over a subject-matter may be inquired into in every court where the proceedings of the former are relied upon by a party claiming the benefit of such proceedings.” Greenvault v. Farmers, etc., Bank, 2 Doug. 498.
In Steere v. Vanderberg, 67 Mich. 530, Mr. Justice Champlin said:
“It is a settled rule of law that all exceptional methods of obtaining jurisdiction over persons not found within the State must be confined to the cases and exercised in the way precisely indicated by the statute; and it may also be regarded as settled law that a failure to comply with the statutory requirements, where the jurisdiction conferred is special, and no personal service is obtained, renders the judgments null and void.”
And under such circumstances the judgment may be questioned in a collateral proceeding. Millar v. Babcock, 29 Mich. 526; King v. Harrington, 14 Mich. 532.
We concur in the conclusion of the chancellor that the proceedings before the commissioner were void as to Mr. Barnes.
We have examined the other questions raised by defendants and we think they need no further considera tion. We are in accord with the decree of the trial court.
The decree will be affirmed, with costs of both courts to the plaintiffs.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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] |
Moore, J.
This suit is brought to recover money which the defendant received from the sale of certain canned goods. The plaintiff bank claims that it had two chattel mortgages on the goods sold, and that the defendant wrongfully converted the proceeds of the sale. The defendant denies that the canned stock in question ever was subject to the lien of plaintiff’s mortgages. On August 28, 1920, William Traver, who was then engaged in the canning business at Hartford, Michigan, was indebted to the plaintiff in the sum of $6,000, and gave a mortgage to the bank, the material parts of which read:
“All the stock of canned goods, including strawberries, raspberries, cherries, peaches, plums, pears and apples, and stock of cans and sugar, and it is an express condition of this mortgage that said first party will at all times during the life of this mortgage keep at least a stock of twelve thousand dollars ($12,000.00)- in value of above described goods on hand as security for this loan, and in case of failure to do so this mortgage will become immediately due and payable. * * * . Said goods and chattels now remaining and continuing in the possession of the said party of the first part, in canning factory and warehouse at Hartford, Michigan.”
On October 7, 1920, the said Traver gave to the plaintiff another chattel mortgage. This mortgage reads in part:
. “All the stock of the canned goods, cans and boxes, contained in the factory and warehouse of said first party, and situate north of the “Fruit Belt” line railroad, in the village of Hartford, Van Burén county, Michigan.
“(Said first party agrees to keep on hand at all times during the life of this mortgage a total stock of canned goods of at least eight thousand dollars ($8,000) and in case of failure to do so this mortgage and the note secured thereby shall become immediately due and payable, notwithstanding the time of payment shall not have arrived.) * * *
“Said goods and chattels now remaining and continuing in the possession of the said party of the first part, in the village of Hartford, Michigan.”
In November, 1920, Mr. Traver’s creditors elected Mr. Hater trustee of the property and, business of Mr. Traver. On December 7, 1921, while Mr. Hater was acting as trustee, goods were shipped from the factory at Hartford to C. F. Smith of Detroit, of the net value of $1,156.39, which amount was paid to Mr. Dater. The bank claimed this money. Mr. Dater declined to pay it to them, and this litigation followed.
At the close of the plaintiff’s testimony the defendant asked for a directed verdict because’—
“All the evidence introduced for and on behalf of the plaintiff fails to show that the money that was received by Mr. Dater, the defendant, was from the goods that were covered by their chattel mortgages. There is nothing at all to connect the goods sold by Mr. Dater with the chattel mortgage in any way. * * *
“There is nothing to show where those goods were taken from, that there was ever a chattel mortgage on them, or that they are in any way connected with the plaintiff’s chattel mortgage. And unless there is some evidence along that line the defendant cannot be held.”
The motion was overruled. At the close of all the testimony the motion was renewed with the further reason stated
“that this matter alleged and set forth in plaintiff’s declaration was fully adjudicated and determined in the court of W. J. Banyon, referee in bankruptcy in the matter of William M. Traver, a bankrupt, now pending in the United States district court for the western district of Michigan.”
This motion was overruled.
The trial judge after stating the claims of the parties charged the jury in part as follows:
“As I view the case here, if these goods were shipped from that Hartford factory were a part of the stock of goods that were covered by that chattel mortgage— in other words, if they were goods that were in that factory when that chattel mortgage was given, and were the remaining part of that stock of goods, then this plaintiff is entitled to recover. If, however, as is claimed by this defendant, the goods that were shipped from that Hartford factory, aiid that this check was given for ultimately, were goods that were brought over there after the fire in that other factory, then I charge you, gentlemen of the jury, that they were not covered by that chattel mortgage, and the plaintiff is not entitled to recover.
“This is the issue for you to determine — Where did those goods come from? Were they a part of the stock of goods that were mortgaged by Mr. Traver to that 'bank, or were they, as claimed by defendant, goods that were later brought over there from the Paw Paw factory? If they were a part of the original stock of goods, then I charge you that this plaintiff is entitled to recover. If on the other hand, they were brought over, as claimed by the defendant, from the Paw Paw factory, then I charge you as a matter of law, they were not covered by the chattel mortgage, and the plaintiff is not entitled to recover. That is the sole issue for you men to decide in this controversy.
“You are instructed that the defendant, Dater, stands in the same position in regard to this action as would William M. Traver, had he disposed of these goods in his individual capacity, and not by a trustee. Therefore Mr. Dater is not to be considered in the light of a third person in this transaction; and he has no further defense than could or might have been made by the said Traver. In other words, if Traver could not have legally disposed of these goods v and converted the money to his own use, then neither could the said Dater.”
The jury found a verdict for the defendant. The case is brought into this court by writ of error.
The counsel for plaintiff make several claims, but the important one is as follows, we quote from the brief:
“It is the claim of the appellant that under these two mortgages whatever canned goods came into the Hartford factory after these mortgages were given became automatically a part of the Traver stock of canned goods and were covered by the terms of the bank’s mortgages, and when Mr. Dater, as trustee for the creditors, sold $1,156.39 worth of canned goods out of that factory to Smith of Detroit on December 7, 1921, he sold property which belonged to the plaintiff bank and was liable to the bank for the proceeds thereof. * * *
“From whatever source he obtained the replenishing stock, when he placed that stock in the factory at Hartford after the execution of these mortgages, such additional stock automatically became a part of plaintiff’s mortgaged goods, and the plaintiff was entitled under the law and under the facts to the proceeds received by Trustee Dater from the sale thereofciting Greenaway v. Fuller, 47 Mich. 557; Eddy v. McCall, 71 Mich. 497; Dunn v. Michigan, Club, 115 Mich. 409, and other authorities.
In this connection it will be well to quote some of the testimony. Mrs. Leila Traver testified in part:
“Q. Take the first item of goods mentioned in that invoice.
“A. Twenty four cases No. 2 can black raspberries, in forty degree syrup, at $2.50 per dozen— $120.00. * * *
“Q. State where they came from.
“A. Paw Paw, Michigan.
“Q. When did they come from Paw Paw, Michigan?
“A. Sometime in August, I believe, my recollection is.
“Q. Was there a canning factory at Paw Paw, Michigan?
“A. Yes, sir.
“Q. Whose canning factory was it?
“A. Traver & Clover. * * *
“Q. Take the next item and read that.
“A. Forty cases No. 2 red pitted cherries, $2.75 per dozen, $220.00.
“Q. Do you know where those goods came from?
“A. Yes, sir.
“Q. Where did they come from?
“A. Paw Paw.
“Q. From what canning factory at Paw Paw?
“A. Traver & Clover.
“Q. When were they brought to Hartford?
“A. At the same time.
“Q. What was the condition of those goods?
“A. Smoky and blacked up and jammed.
“Q. Take the next item.
“A. 556 cases No. 2 can, cut wax beans, 75 cents per dozen — $834.00.
“Q. Do you know where those goods came from?
“A. Paw Paw.
“Q. From what canning factory?
“A. Traver & Clover.
“Q. When were they brought to the Hartford factory?
“A. At the same time. * * *
“Q. Were those goods that were brought from Paw Paw to Hartford canned at Paw Paw?
“A. Yes, sir.
“Q. When they were brought to Hartford what was done with the goods?
“A. Polished, and lots of them thrown out. By going through the fire, they were jammed so they leaked — and got ready for shipment.
“Q. What was finally done with the goods?
“A. Shipped to C. F. Smith & Co., Detroit.”
Mr. Stevenson testified in part:
“Q. Did you know anything about goods being brought over from Paw Paw canning factory to the Hartford canning factory in the summer of 1921?
“A. Yes, sir.
“Q. What did you know about that?
“A. Why, those fire goods were brought over there after the fire.
“Q. Do you know what kind of goods were brought over?
“A. Yes, sir. There were beans and a few cherries and mixed up, a little of everything. * * *
“Q. What was the condition of the cans?
“A. Well, they were very dirty, all of them — black.
“Q. What was done with those goods in preparing them for market, if anything?
“A. They were polished up and loaded in the car.”
No one disputed this testimony. If any one may assert error because the trial judge submitted the case to the jury, it is not the appellant. See 11 C. J. 501, note 30; Ferguson v. Wilson, 122 Mich. 97 (80 Am. St. Rep. 543).
A motion, was made for a new trial. It is said the court erred' in overruling it. The trial judge was of the opinion that plaintiff could have procured the testimony it now deems material if it had exercised diligence. We see no reason to disturb his conclusion.
The judgment is affirmed, with costs to the appellee.
McDonald, C. J., and .Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Wiest, J., did not sit. | [
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] |
Montgomery, J.
This is an action of replevin for a horse. The claim of plaintiff is that he bought the horse of one O’Malio in April, 1897; that, shortly after this purchase, O’Malio died. The plaintiff thereupon tendered to the widow of O’Malio the portion of the purchase price remaining unpaid, and demanded the delivery of the horse by defendant, in whose' possession the horse was at O’Malio’s death. The widow refused the tender, apparently on the ground that, as no administrator had been appointed, she had no right to receive the money; and the defendant, -for a like reason, refused to part with the possession cast upon him by O’Malio’s death. The plaintiff, not willing to await the appointment of an administrator, brought this action, and was permitted to recover. The defendant brings error.
The circuit judge, in effect, charged the jury that, at the decease of O’Malio, the title to the personal property remained in abeyance until the appointment of an administrator, but that if the title to the horse had fully vested in the plaintiff, discharged of any vendor’s lien, the plaintiff had the right to recover possession of it from any one in whose custody it happened to be. The defendant contends that the undisputed evidence shows that O’Malio retained an interest in or lien upon the horse for an unpaid balance of the purchase price.
The plaintiff was a witness to the bargain with O’Malio, and at the close of the testimony the court struck out his testimony as to facts equally within the knowledge of deceased. The appellee challenges this ruling, contending that the defendant is not the representative of deceased, within the meaning of section 7545, 3 How. Stat. We think, however, the ruling of the circuit judge was correct. The defendant, having possession cast upon him by the death of O’Malio, was entitled to defend that posses sion. Parks v. Norris, 101 Mich. 71, and cases cited. To hold that, while thus lawfully maintaining possession of the property, he is not a representative of the deceased, within the meaning of this statute, would permit an evasion of the statute by unseemly promptness in planting a suit before an administrator can be appointed. Every consideration forbids such a construction. The only testimony offered to show title, aside from that of the plaintiff (which was properly excluded), was that of one Mason, who testified, in effect, that O’Malio told witness that he had sold the horse in question to plaintiff for $60; that plaintiff had paid $30 on the horse, and was coming after the horse in a few days.
On a sale of goods, where nothing is specified as to delivery or payment, the vendor has the right to retain the goods until payment of the price; he has in all cases at least a lien, unless he has waived it. Benj. Sales (6th Ed.), § 796. It is true, an extension of credit beyond the date of delivery may operate to waive the lien; but the testimony in this case fails to show any such extension of credit. The implication of law is that the purchase price is to be paid, as a condition precedent, before the vendor shall be obliged to part with his goods. Bloxam v. Sanders, 4 Barn. & C. 941; Arnold v. Delano, 4 Cush. 33, 38; Conrad v. Fisher, 37 Mo. App. 352, 382. This presumption was not overcome by any competent evidence in this case, and it follows that the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Bronson, J.
Defendant was convicted by a jury of breaking and entering the Port Huron Motorcycle Club clubhouse located in Port Huron Township, St. Clair County, on May 26, 1968, and was subsequently sentenced to a period of three to ten years’ imprisonment. CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305).
The police arrested one Duane Levitt for an unrelated offense, and upon questioning, Levitt made certain admissions which implicated himself as well as the defendant in the instant crime. At the de fendant’s trial, Levitt, who had already been convicted and imprisoned, appeared as the prosecution’s chief witness. Levitt testified that he and the defendant had consumed a considerable quantity of alcohol the day of the crime, and that at approximately 10 p. m. both parties broke into the clubhouse and stole money and liquor.
Defendant testified that he became intoxicated as a result of the afternoon’s activity, fell asleep in the car, and was unaware of taking part in any criminal activity himself. The defendant also testified that he was unaware of Levitt’s involvement in the instant crime.
On appeal, defendant raises three examples of alleged error which defendant claims deprived him of a fair trial. This Court is to determine whether the errors alleged by the defendant, if indeed error was committed, were sufficiently prejudicial to have denied the defendant a fair trial.
Defendant’s first assignment of error pertains to the prosecutor’s cross-examination of defendant which involved questions relating to the defendant’s prior criminal record. In Michigan, an accused party who takes the stand in his own defense may be questioned about prior convictions for the purpose of testing his credibility. CL 1948, § 600.2158 (Stat Ann 1962 Rev § 27A.2158); People v. Cybulski (1968), 11 Mich App 244. In the instant case, defendant was questioned about numerous prior convictions. Defendant denied two of the alleged convictions, and admitted other convictions including a conviction of breaking and entering and numerous convictions of drunk and disorderly conduct. Defendant now contends that the prosecutor’s question as to an alleged assault and battery, which was denied by the defendant, constituted prejudicial error because the defendant, although arrested on a charge of assault and battery, was never convicted of that crime.
The relevant portion of defendant’s testimony, educed from cross and redirect examination, is as follows:
(Cross-examination).
“Q. Do you recall a conviction on May 22, 1967, for assault and battery, Port Huron?
“A. When?
“Q. May 22, 1967?
“A. I had a charge dismissed on me for assault and battery, yes.
“Q. After serving two days. * * *
(Redirect examination).
“Q. In regard to the assault and battery, were you convicted of that?
“A. No, ma’am.
“Q. The prosecutor stated that you spent two days in jail, how is that?
“A. It was only once I was picked up for assault and battery, picked up in Sanilac County and transported here and they called up Judge Sullivan over the phone about 4 at night and he let me go over the week end for the trial and I don’t remember the two days and it was dismissed.
“Q. The trial was dismissed?
“A. Not a trial, just a hearing, my wife and myself, a misunderstanding between she and I and she filed a warrant for assault and battery.”
Defendant, relying on People v. Brocato (1969), 17 Mich App 277, argues that prejudicial error was committed by questioning defendant on a prior arrest which did not result in a conviction. We do not find Brocato to be controlling in the instant case. As illustrated by the above testimony, the prosecutor asked the defendant if he was convicted of assault and battery. The defendant volunteered the answer that the charge had been dismissed. On redirect examination the defendant, responding to questioning by his own attorney, explained that the incident had simply been a domestic misunderstanding. Following the defendant’s initial response to the prosecutor’s question, the prosecutor did not pursue this issue, nor was it raised on recross-examination. Át no time was an objection made by defense counsel, nor did the prosecutor deliberately disregard a court instruction to discontinue the questioning as was the case in Brocato. These factors, coupled with the defendant’s own admission of numerous prior convictions, lead us to the conclusion that prejudicial error was not committed by the prosecutor’s cross-examination of the defendant. See People v. Cybulski, supra, at 253.
The second-issue raised on appeal is directed at the trial court’s refusal to allow the witness Levitt to testify as to what the arresting officer had told Levitt at the time of his arrest. See People v. Clark (1954), 340 Mich 411. In so doing, the trial court sustained the prosecutor’s objection to such questioning. Under CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052), the trial court has the duty to control the conduct of a trial. In exercising this duty, the trial judge has considerable discretion where cross-examination of witnesses is concerned. People v. Johnson (1969), 382 Mich 632, 640; People v. Fedderson (1950), 327 Mich 213, 220; People v. Lloyd (1967), 5 Mich App 717, 724. From an examination of the record, it does not appear that an abuse of discretion occurred.
Finally, defendant contends that the prosecutor, in closing argument, caused prejudicial error by stating:
“The defendant doesn’t recall whether he broke the storm door. He does recall breaking the window out on the inner screen door and reaching his hand through and opening the door.”
Defendant argues that this statement by the prosecutor misled the jury into believing that the defendant admitted to participating in the crime. This claim is without merit. Taken in context it was obvious that the prosecutor was referring to the witness Levitt and inadvertently used “the defendant” instead of “Mr. Levitt” or “the witness”. At this point in the prosecutor’s summation, he was discussing the alleged inconsistencies in Levitt’s testimony. We cannot conclude that this statement, considered in its proper context, misled the jury. People v. Williams (1968), 11 Mich App 62. Furthermore, the defendant failed to object at trial, and absent a miscarriage of justice, we will not consider the issue for the first time on appeal. People v. Lohn (1970), 21 Mich App 235.
Affirmed.
All concurred. | [
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Lesinski, C. J.
Plaintiff Max Kornicks commenced this action under the Fair Labor Standards Act, § 1, 52 Stat 1060 (1938), 29 USCA § 201, to recover additional compensation from defendant Lindy’s Supermarket for overtime work performed during a three-year period from 1962 to 1965. Following the close of plaintiff’s proofs, defendant moved for a directed verdict. The motion was granted and defendant appeals.
The act provides minimum wages for employees “engaged in commerce” and for employees employed in an “enterprise engaged in commerce or in the production of goods for commerce.” The terms “commerce,” “employer,” “employee,” and “enterprise engaged in commerce or in the production of goods for commerce” are specifically defined in the act. The burden of establishing a prima facie case that the act is applicable is upon the plaintiff. D. A. Schulte, Inc. v. Gangi (1946), 328 US 108 (66 S Ct 925, 90 L Ed 1114); Maino v. Urban Meat Co. (1958), 11 Misc 2d 1032 (175 NYS2d 401); Oberdorfer v. Edmund J. Rappoli Co. (1954), 207 Misc 807 (137 NYS2d 14); Jackson v. Airways Parking Co. (ND Ga, 1969), 297 F Supp 1366; Hall v. Palmer (1884), 54 Mich 270. Pursuant to defendant’s motion for a directed verdict, the court below ruled that plaintiff failed to meet his burden.
In response to the motion for a directed verdict, plaintiff argues that defendant admitted in its pleadings that it was an “enterprise engaged in commerce.” Plaintiff’s complaint states inter alia:
“3. At all times herein set forth, defendant was an employer within the definition of the Fair Labor Standards Act of 1938, § 3, 29 USCA § 203, as amended, and plaintiff was at all times herein set forth an employee within the definition of said section.
“4. At all times herein set forth, the defendant was engaged in commerce within the meaning of said act.
“5. At all times herein set forth, defendant was engaged in interstate commerce: to wit, the sale of goods and products moving in interstate commerce.”
To these allegations defendant responded in his answer:
“3. In answer to paragraph three of the complaint the defendant denies each and every allegation contained therein for the reason that said allegations are in the nature of conclusions of law and not statements of fact.
“4. Defendant denies each and every allegation contained in paragraph four of the complaint for the reason that said allegations are conclusions of law and not statements of fact.
“5. Defendant denies each and every allegation contained in paragraph five of the complaint for the reason that said allegations are conclusions of law and not statements of fact.”
Plaintiff argues that defendant’s answer was insufficient under GCR 1963,111.4 and constituted an admission under GCR 1963, 111.5.
The proper remedy for responding to a complaint which allegedly states conclusions of law rather than statements of fact is a motion under GCR 1963, 115.2, which provides: “Upon motion made hy a party or upon the court’s own initiative, the court * * * may order stricken any pleadings or part thereof not drawn in conformity to these rules.” Further, where, as here, defendant files an answer which may not technically deny the facts in a complaint hut which arguably may he intended as a denial, the ambiguity should he tested hy plaintiff in a motion to strike also under GCR 1963, 115.2.
As we reverse on other grounds we do not reach the question of the sufficiency of either the complaint or the answer, since all alleged errors will undoubtedly be attacked on remand upon proper motion of the parties or the trial court’s own initiative.
After the defendant moved for a directed verdict at the close of plaintiff’s proofs and the trial court’s indication that it believed insufficient evidence had been introduced, plaintiff asked to reopen the proofs. Plaintiff’s counsel stated: “I want the record to show that Mr. Kornicks [plaintiff] is here and is competent to testify to the volume of business done in this store.” Plaintiff’s request was denied.
In Knoper v. Burton (1968), 12 Mich App 644, rev’d (1970), 383 Mich 62, the plaintiff, as here, was denied the right to reopen his proofs after he had rested, but prior to defendant’s opening of proofs, to introduced additional testimony from a witness who had already testified. In Knoper the purpose for additional evidence was to establish the causal connection between the defendant’s alleged wrongful act and plaintiff’s injury. Although recognizing the settled rule that reopening of proofs is a matter within the sound discretion of the trial court, this Court noted at p 648: “Judicial review is not foreclosed, however, by the mere utterance of the word ‘discretion’ ”. In concluding that the trial court abused its discretion in Knoper we cited at p 648, Bonner v. Ames (1959), 356 Mich 537, 541:
“ ‘We recognize, of course, and have often held, that a motion to reopen proofs is a matter within the discretion of the court. But the discretion must be a sound judicial discretion. Here the case had not proceeded to such a point, nor had conditions so changed, that any undue advantage would be taken by plaintiff.’ ”
In Knoper at p 649 we stated:
“The record reflects only one particular in which defendant would be prejudiced by reopening plaintiff’s proofs: the case would have to be continued until later the same day, once again to accommodate Dr. Schaubel’s schedule.”
As the record in the instant case indicates that plaintiff would have been ready to testify with no delay whatsoever, the one point of possible prejudice existing in Knoper does not exist here.
Knoper is controlling and requires reversal.
Reversed and remanded.
All concurred.
§ 1, 52 Stat 1060 (1938), 29 USCA §§ 206(a), 207(a) (1).
Id., 29 USCA §§ 206(b), 207(a) (2).
Id., 29 USCA § 203(b), (d), (e), (s).
This Court held in Knoper v. Burton (1968), 12 Mich App 644, that the refusal by the trial court to reopen was prejudicial error. The Supreme Court reversed, Knoper v. Burton (1970), 383 Mich 62, on the grounds that the refusal was not prejudicial. The Supreme Court did not reach the issue of whether the trial court’s refusal to reopen the proofs was an abuse of discretion. Knoper, supra, 383 Mich at p 68. | [
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Kuhn, J.
The defendants, as receivers of the Wabash Railroad Company, operate cars, engines, and trains over the company’s double tracks in the city of Detroit in an easterly and westerly direction between West Jefferson avenue and the Detroit river. The tracks cross Twenty-Fourth street, which runs in a northerly and southerly direction, and which crosses Lafayette boulevard and Fort street and West Jefferson avenue and these railway tracks in the order named, and extends to the Detroit river, where there were a dock and slip at the foot of the street.
John D. Baker, the plaintiff’s decedent, on August 12, 1912, was a vessel captain and diver, 52 years of age and in good health, and of good eyesight and hearing. He had spent the day with Capt. Fred Manuel on the latter’s vessel, lying at the dock at the foot of Twenty-Fourth street, where the deceased also had a small yacht lying for repairs. He had supper with Capt. Manuel, and left his boat between 7 and 7:30 o’clock. About 7:30 p. m. he came into John Killakey’s saloon on Twenty-Fourth street, near Lafayette boulevard, to get an envelope, and, not being able to get one there, he went out to get one elsewhere, and came back with it in about 20 minutes, addressed it, and in about 5 minutes went out again. After leaving Killakey’s place about 8 p. m., deceased walked south toward the river on the sidewalk on the east side of Twenty-Fourth street, and, after having crossed the first, or northerly and west-bound, track, and as he was crossing the southerly and east-bound track, he was struck by a Wabash switch engine coming into the city from the west. When the engine stopped, the deceased, still alive, but not conscious, was lying between the north and south tracks, about 30 to 35 feet east of the walk. His injuries were very severe, and although he regained consciousness for a short time, he did not state how the accident occurred, and died before the hospital could be reached.
There was an ordinary electric street light over the sidewalk on the east side of Twenty-Fourth street, which was lighted that night, and there was no obstruction to -his view for 500 feet- westerly along the tracks. There was testimony to show that it was a quiet night, but dark and cloudy.
Four witnesses were sworn who saw the accident, three being sworn on behalf of the plaintiff and one on behalf of the defendant. Witness Arthur Manuel was behind the deceased and about 50 to 75 feet north of the traces, going in the same direction. Witnesses Hoffman and O’Kalahan were south of the tracks, waiting for a friend whom they were expecting to come from the same direction that deceased came from. Witness Burk, sworn on behalf of the defense, was fireman on the engine, and saw the deceased before the engine struck him.
It is the claim of the plaintiff, who brings this action under the survival act, that the engine did not have the headlight lighted, that the bell was not rung, and that the engine was running about 12 miles an hour, in violation of the provisions of the statutes of the State and also of ordinances of the city of Detroit.
At the close of the proofs, the trial judge directed a verdict for the defendant, as he was convinced that under the facts as they were testified to, the deceased was clearly guilty of contributory negligence, and hence the plaintiff could not recover. The only question here for review is whether or not, considering the testimony in the light most favorable to the plaintiff’s claim, the court erred in this regard.
It is the contention of plaintiff’s counsel that the rule announced by this court in Mynning v. Railroad Co., 64 Mich. 93, on page 102 (31 N. W. 147, on page 151; 8 Am. St. Rep. 804), that “the presumption of law is that a person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject” means that, notwithstanding testimony was introduced on behalf of the defendant by witnesses who saw the accident, the presumption would still remain, and would present a question for a jury to decide. It is insisted that “absence of direct testimony to the contrary” in the rule above quoted refers to direct testimony in support of the plaintiff’s case. We are unable to find that this contention finds support in the decisions of this court. In Adams v. Iron Cliffs Co., 78 Mich. 271, 277 (44 N. W. 270, 272, 18 Am. St. Rep. 441), it was said:
“Where there is no eyewitness of the accident, * •|: * while the rule is not relaxed that the plaintiff must show that his intestate was without fault, yet the presumption, in the absence of any evidence to the contrary, obtains that the deceased used ordinary care and caution in attempting the crossing, and such presumption is sufficient, under the rule, to permit the plaintiff to recover upon showing negligence in the defendant.”
In Van Doorn v. Heap, 160 Mich. 199 (125 N. W. 11), it was said, in speaking of this rule:
“The court evidently overlooked the line of decisions of this and other courts holding that, in the absence of proof tending to show the contrary, where a person is killed by an accident to which there were n’o eyewitnesses, the presumption of the law is that he was in the exercise of due care. Adams v. Iron Cliff's Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441), and cases cited.”
In Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811, 17 Am. & Eng. Ann. Cas. 979), this court said:
“Plaintiff’s counsel urge the rule that we must presume that this woman was not negligent under the rule stated in the following cases: Mynning v. Railroad Co., supra (64 Mich. 98, 31 N. W. 147, 8 Am. St. Rep. 804); Kwiotkowski v. Railway Co., supra (70 Mich. 551, 38 N. W. 463); Adams v. Iron Cliffs Co., 78 Mich. 277 (44 N. W. 270, 18 Am. St. Rep. 441) ; Grostick v. Railroad Co., 90 Mich. 608 (51 N. W. 667) ; Underhill v. Railway Co., 81 Mich. 45 (45 N. W. 508). See Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 29 C. C. A. 81, and note. The difficulty is that overwhelming and undisputed evidence shows that she did not stop or even look after reaching a point where either would have done any good, but drove heedlessly upon the track, with the car in plain sight, but a short distance away.”
The witnesses upon which the court relied to sustain this conclusion were witnesses produced by the defendant, as appears by the opinion. See, also, Gilbert v. Railroad Co., 161 Mich. 73, page 79 (125 N. W. 745).
Mr. Elliott, in his work on Evidence, says (Vol. 1):
“Sec. 91. Office and Effect of Presumptions. — The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence. It has the force and effect of a prima facie case, and, temporarily at least, relieves the party in whose favor it arises from going forward with the evidence. This would seem to be its sole office and effect, considered merely in its character as a presumption. If nothing further i$. adduced, it may settle the case.in favor of the party for whom it works; and, on the other hand, when the other party has gone forward with his evidence and the prima facie case is overcome, the force of the presumption is spent. It may be directly rebutted by such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their force and application when the specific facts of the case are shown. They are either based on facts in evidence, as presumptions of fact generally must be, or They presuppose only certain specific and expressed facts/ and the addition of other facts may make the presumption wholly inapplicable. Other rules of substantive law or procedure may apparently give the presumption a different effect, or prescribe that it shall take a certain amount of evidence to overcome it, as, for instance,- the rule of criminal law, requiring guilt to be proved beyond a reasonable doubt, or in the case of conclusive presumptions of law; and so, on the other hand, if mere permissible inferences are to be considered as presumptions, they may not even have the effect of making a prima facie case; but with reference to true presumptions, we think it may be justly said, notwithstanding there is much conflict and confusion in the authorities, that their effect, and their only effect, considered merely as presumptions, is to make a prima facie case, and thus cast upon the other party the burden of going forward with the evidence, if he would not be defeated.”
Also see Wigmore on Evidence, p. 3534, and 2 Best’s Principles of Evidence (Am. Ed.), §§ 298, 299, and note in '33 L. B. A. (N. S.) 1085.
We are of the opinion that it is clear that it is the rule in this State that the presumption that a plaintiff is free from contributory negligence can be said to apply only in cases where there is an absence of any direct evidence to the contrary. The question then is, Was there evidence before the trial judge which could be said to overcome the presumption relied upon? Witness Arthur Manuel testified:
“When we got within 75 or 100 feet of the crossing, I stopped awhile and looked, and Baker was about 50 to 75 feet ahead of me, about that distance from the railroad track. I was looking down towards the boat when this switch engine came through there without taking notice of him at all, and struck Baker on the crossing. I saw it strike him. My attention was first called to the switch engine when it passed me, as I was looking towards my uncle’s boat; that is, the river. I saw the lights on the boat, was watching them some distance before that, and the engine came across and obstructed my view, and I saw it strike Baker. I never saw anything of the engine until it crossed Twenty-Fourth street. There was no bell rung. There was no headlight on the switch engine. I didn’t notice it making any noise as it came down. Baker, when the engine struck him, was on the sidewalk crossing, going across the tracks, the last track, the south track, the south side.”
Witness Hoffman testified:
“I saw Capt. Baker struck that night, and saw him before he was struck, walking down Twenty-Fourth street on the east side of the road. I did not see any engine coming on the Wabash tracks from the west. The first I knew of an engine coming was when they passed the crossing. I seen it after it got past. It was a switch pony engine. The first time I saw Baker he was going down Twenty-Fourth street. I looked again, and I didn’t see him! He disappeared after the engine passed. I said, T wonder where that fellow went to.’ I thought it was a friend of mine coming down there. I expected a friend to come down there, and was looking for him, and I took this to be my friend. I was not listening; I was looking for this friend at that time. The engine came up and the person disappeared, and I says to my friend, ‘I guess that fellow must have got on that engine.’ He says, ‘No; he could not get on the engine, it was going too fast’; and we looked up the track, and w.e saw somebody lying in the middle of the track.”
Witness O’Kalahan testified:
“I saw Capt. Baker coming south on the east side of Twenty-Fourth street, about 10 or 15 feet north of the railroad track when I first saw him. I didn’t see any engine, then. I first saw an engine when it flashed across the crossing. Capt. Baker just got down there. I noticed as soon as the engine passed there was nobody there. I didn’t see the engine before I saw it. pass. There wasn’t any whistle blown, or any bell rung. I didn’t see any light. As soon as I didn’t see Mr. Baker, I ran over to the tracks. * * * I was standing with my friend Hoffman. I don’t know as we were talking just at that moment or not. We had been talking, and were waiting for a friend to come to meet us. We expected our friend to come down Twenty-Fourth street, and were looking for him in that direction. We were looking right up the street, in general up towards the north. We were not looking 'towards the west, in the direction from which the engine came. We didn’t know who it was coming down Twenty-Fourth street, but saw a man coming, and found it to be Capt. Baker afterwards. It was so you could see.”
Witness Burk testified:
“We were running between 5 and 10 miles an hour as we approached the crossing. I expected him to stop as anybody would. We were going along very quiet; we just passed the boulevard crossing to the west of Twenty-Fourth street — I should judge about 500 feet — and I saw a man coming down the east side of Twenty-Fourth street. There was an electric light there upon the walk, and I could see the figure of a man. He was coming down straight towards the track. When we were in a straight line with Twenty-Fourth street, he was upon the west-bound main line, that is, the north track, and just about the time we got to the walk, he went in front of the engine. I hollered at him just about the time he hit the pilot beam; it was just a fraction of a second after I hollered he was in front of the engine. He didn’t look towards the engine. He went straight ahead. He didn’t stop at all. After he was struck, the engine went the length of the engine, about 50 feet.”
We are of the opinion that this testimony makes it clear that there were eyewitnesses of the accident who were able to, and did, give “direct testimony on the subject,” and that consequently, under the authorities above cited, the presumption relied upon by the plaintiff was removed. This testimony also makes the conclusion irresistible that if the deceased had stopped, looked, and listened, it would have been a physical impossibility for him not to have been aware of the approach of the engine, no matter whether the bell was being rung or the lights were burning. There was no obstruction to his view for 500 feet along the tracks in the direction from which the engine was coming. A stop for a moment, or a momentary glance, would have apprised him of the danger. We see no escape from the conclusion that the circuit judge was clearly right in holding that the deceased was guilty of contributory negligence.
The case of Amanta v. Railroad Co., 177 Mich. 280 (148 N. W. 76), cited by the plaintiff, is easily distinguishable, for there the plaintiff testified that he stopped, looked, and listened before going upon the tracks, but because of the noise of two other trains which had just passed, and because of the dirt, smoke, and steam caused by these trains, he was unable to see the approaching locomotive, running backward without any lights. It was held that this presented such a condition as would warrant the submission of the question of contributory negligence to the jury. In this case, however, it appears that it was not so dark but that his own witnesses saw him at distances varying from 50 to 75 feet, and that the fireman saw him approaching the tracks at a distance of 500 feet. Clearly, if theseJ witnesses saw Baker, Baker would have seen the engine if he had looked. It being a quiet night, it also seems most improbable that he would not have heard it if he had listened.
It is also contended that the question of gross or subsequent negligence should have been submitted to the jury. No such claim was made in the court below, and in the case of Weitzel v. Railway, 186 Mich. 7 (153 N. W. 831), relied upon, it clearly appeared that the question was considered by the trial judge. Neither, in our opinion, does the evidence warrant the submission of any such claim. The fireman had no reason to suppose that the deceased would not do as the law required him to do, viz., stop, look, and listen before going upon the tracks, and there is nothing to show that everything was not done by the crew of the engine to stop it after the man’s peril was discovered.
Being satisfied that the trial judge properly directed a verdict for the defendant upon the evidence before him, judgment is affirmed.
Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit. | [
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] |
MOORE, J.
The plaintiff is a farmer living about six miles from the city of Lansing. In going to the city of Lansing he frequently traveled what is known as the River Drive road, through the Michigan Agricultural College grounds, which runs in a southeasterly and northwesterly direction. This road intersects Michigan avenue, which is the street running from Lansing to East Lansing, at an acute angle. The defendant operates an electric railway on Michigan avenue. Its track-is on the south side of the highway where the River Drive crosses the track.
The plaintiff was driving a heavy team of horses hitched to a lumber wagon. The plaintiff was riding on the hounds of the wagon. The team he was driving was traveling at the rate of 3 to 3% miles per hour. When the horses reached the track he heard the car whistle, at which time the car was about 40 to 50 feet from him. He quickly turned his horses to the left. His off horse was struck in the hip, and was so badly hurt she had to be killed.
At the close of the evidence for the plaintiff the court directed a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence. The question for our consideration is whether plaintiff made a case which should have been submitted to the jury.
The accident happened in the forenoon during broad daylight. Plaintiff was familiar with the crossing, the railway track, and the frequency with which defend ant ran its cars at the place of the accident. He testified. We quote:
“Q. Before driving to the track of the Michigan United Traction Company * * * did you look and listen to see whether you could see and hear a car coming or not?
“A. About halfway down the hill there is an opening, and the evergreens are not as thick, and shade trees. I could see no car. I came down the hill until I got within 60 or 70 feet. There is practically nothing. Then I looked and I saw no car, and I came on, but as I struck the track I heard the whistle. My horses’ both forward feet were on the track, and I glanced, and I saw the car. I whirled them as soon as possible, but I was too late.
“Q. How close were you to the track here, that is, the highway, when you looked last to see if you could see the car?
“A. The River Drive intersects Michigan avenue in this shape; looking across these corners, I was probably 50 feet, looking across to the track, but I had between 60 and 70 feet to drive to cross the track.
“Q. How far could you see east on the track at that time ?
“A. I counted the poles, and I think they are 100 ,feet apart. If they are 100 feet apart, it is about 600 feet that you see to the east.
“Q. And then what was there in the track?
“A. No car in sight.
“Q. Well, looking east, is there any hill?
“A. Yes, sir; looking east, there is a hill and down grade going towards the west and the hill that slopes to the east the other way. I could see the apex of the hill.
■ “Q. Was there any car oetween the apex of this hill and your place at that time?
“A. No, sir; none when I looked. I then had between 60 and 70 feet to travel to get across the track.
“Q. At about what rate of speed was your team traveling at that time?
“A. At the time they came on the track they were on a walk. * * * I should judge they would walk from 3 to Zy% miles an hour.
“Q. You went forward after looking to the east and seeing no car?
“A. Yes, sir.
“Q. Did you not after that stop or hesitate?
“A. No, sir.
“Q. Did not stop after you made this last look to observe to the east the track; did not stop before you got on the track?
“A. No, sir.”
On his cross-examination he made it even more apparent that he looked but once, and that, if he had looked just before going upon the track, when there was an opportunity to do so, he could have seen his danger in time to avoid it.
Under the version given by the plaintiff of the occurrence we think the trial court was justified in directing a verdict for the reason given by the following authorities: Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451); Manos v. Railway, 168 Mich. 155 (130 N. W. 664), and the many cases cited therein; Puffer v. Lighting Co., 173 Mich. 193 (139 N. W. 19) ; and Champaign v. Railway, 181 Mich. 672, at page 681 (148 N. W. 201), and the many cases cited therein.
Judgment is affirmed.
Stone, C. J., and Kuhn, Ostrander, Steere, Brooke, and Person, JJ., concurred. Bird, J., did not sit. | [
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] |
Bird, J.
The city of Hastings constitutes a single school district. It was recently decided by the district to erect a new high school building. The board of ■education was desirous of locating it upon a plat of ground made up of a portion of Temple Square, a portion lNof the City Park, and that portion of a street known as “South Broadway,” which lies between them. The city council agreed to vacate these parcels on condition that the inhabitants were not opposed. A postal card vote developed that there was a majority in favor of the proposition, and the parcels were accordingly vacated by the council. For the purpose of acquiring the fee, condemnation proceedings under the statute followed, at which respondents appeared by counsel and interposed certain objections to the validity of the council proceedings, by which the parcels were vacated. Objection was made by counsel for the board that respondents had no such interest in the proceedings as gave them the right to appear as parties thereto. The circuit judge before whom the proceedings were had disposed of the questions raised on the merits, but did not rule upon petitioners’ objection, save by inference in allowing respondents to be heard. The condemnation proceedings resulted in the parcels being condemned, and compensation fixed. Respondents have removed the proceedings to this court by writ of certiorari, and several questions affecting their validity are made and argued. The question of the right of respondents to be heard in the proceedings must be first determined.
From the return of the circuit judge to the writ, it appears that the respondents are resident taxpayers of the district; that they reside on and own property fronting on South Broadway a block distant from the parcels vacated, but that they own no property adjacent to, or fronting upon, the parcels so taken. It further appears that the only inconvenience the respondents will suffer by reason of the closing of that portion of South Broadway is in traveling north from their homes. It will compel them to divert either to the east or west one block. It is a rule of law well established that a writ of certiorari is not available to an individual who has no direct or particular interest in the proceeding sought to be reviewed, unless he shows that he will suffer special injury beyond that which will affect him in common with the public or others similarly situated. Davison v. Otis, 24 Mich. 23; People v. Leavitt, 41 Mich. 470 (2 N. W. 812); Vanderstolph v. Boylan, 50 Mich. 330 (15 N. W. 495); Wolpert v. Newcomb, 106 Mich. 357 (64 N. W. 326) ; 6 Cyc. p. 768; 5 R. C. L. p. 256; 4 Standard Enc. of Procedure, 903. The same rule is also applied to other remedies. People v. Inspectors of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540, 551; Smith v. City of Saginaw, 81 Mich. 123, 127 (45 N. W. 964); Thomas v. Hamilton, 101 Mich. 387, 388 (59 N. W. 658); Brophy v. Schindler, 126 Mich. 341, 347 (85 N. W. 1114) ; Sweet v. Smith, 153 Mich. 674 (117 N. W. 59). It is held in People v. Schell, 5 Lans. (N. Y.) 352, that:
“The writ will not be sustained to review the proceedings of a highway commissioner in laying out a road, where it appears that the relator was not a party to the proceedings for laying out such road, and. has no direct interest in the road, either as owner of prop erty over which it passes, or otherwise; the only interest which he claimed in the proceeding being that his business as a tavern keeper will be injured by the highway to be laid out, by the diversion of travel from the road on which his tavern is located."
The most that can be said of the situation here presented is that respondents will be inconvenienced by the closing of that portion of South Broadway which lies a block north of them, and in consequence they will be compelled to go one block either to the right or left. This inconvenience will not establish such an interest as will enable them to be admitted as parties to the proceeding. Buhl v. Depot Co., 98 Mich. 596 (57 N. W. 829, 28 L. R. A. 392). In this case a very similar situation of inconvenience is presented and it is held that the mere cutting off of one’s ingress and egress by the closing of a street, rendering it less convenient is damnum absque injuria. To the same effect see Sioux City Seed, etc., Co. v. Railway Co., 184 Mich. 181 (150 N. W. 841); City of Chicago v. Building Ass’n, 102 Ill. 379 (40 Am. Rep. 598). The frequency with which the rule has been applied where attempts have been made to interfere with municipal action, leaves no room for doubt that it should be applied in the instant case. It is suggested, however, that a larger right to intervene exists .where the municipality is dealing with parks and public grounds which have been dedicated to the public use. An examination of the reported cases discloses no such exception to the rule. 2 High on Injunctions states the rule as follows:
“And where, under a general power in a city charter to establish and regulate markets, the corporate authorities of the city are about to remove a market house, taxpayers, as such, have no sufficient ground for enjoining the removal, whatever may be the rights of adjacent proprietors and others injuriously affected thereby. So a taxpayer in a city, who files a bill in behalf of himself and other taxpayers to enjoin the city from selling a public park or square, is not entitled to the relief when he has no land abutting upon the square, and when he has no private interest involved other than or different from the body of taxpayers.” Section 1301.
In Tifft v. City of Buffalo, 65 Barb. (N. Y.) 460, the complainant sought to restrain the defendant city from selling a public square to the Union Hotel Company. It appeared that the public square was situate between Main and Washington streets; that complainant was the owner of property fronting on Main and Washington streets, but that he owned no property fronting on the park. The question being raised that complainant was not a proper party to maintain the suit, the court held “that he had no standing in a court of equity entitling him to maintain the action.”
We therefore conclude that respondents did not have the required interest to authorize them to intervene in these proceedings. This'leaves the court without power to consider the other important questions raised by the record. The writ, having been improvidently granted, will be dismissed, with costs to the petitioners in the condemnation proceedings.
Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred with Bird, J. | [
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Steere, J.
Plaintiff, a boy about 8 years of age, was severely injured while a pupil at the Sigsbee school in the city of Grand Rapids as the result of falling a distance of about 18 feet down a central, open space around which the stairway ran leading to successive stories from the basement to the top of the building, with a balustrade, over which he fell, about 30 inches high on the side exposed to the opening. This action to recover damages for injuries so sustained was brought in the superior court of Grand Rapids, by his father as next friend, against the board of education of the city of Grand Rapids as a municipal corporation, and the members of said board individually. The basic negligence charged consisted of erecting and maintaining this stairway with the adjacent opening in a condition not properly safeguarded to protect children using the stairs while attending school. The case is here to review an order made by the court sustaining a demurrer to plaintiff’s declaration.
The declaration contains two counts, carefully drawn with abundant and varying legal phraseology charging the negligence of defendants in detail upon two theories of direct negligence. First, in erecting and devoting to school purposes an unsafe building; and, second, maintaining it for school uses in such unsafe condition that it was a continuing dangerous nuisance.
The negligent conduct of defendants as charged in plaintiff’s first count consists of constructing the Sigsbee street school building with stairways around a dan gerous opening “elevator shaft, or wellhole,” extending from the basement through several floors, guarded only by a balustrade or railing 25 to 30 inches high, which was insufficient, not of standard height, “too low by at least a foot,” and while it was in that condition putting pupils of plaintiff’s age and grade upon the third floor instead of the first, not placing a monitor at the stairs to guard or warn the children of its dangerous condition when they were ascending or descending, and in not screening or covering with netting such wellhole or opening so as to prevent pupils from falling down it.
The second count runs along similar lines as the first, with the further allegations that defendants also kept said building in part for rent and to be used at times for public gatherings free of charge, that after full knowledge’ and notice of the improper and dangerous construction of said building in the particulars described defendants neglected to repair and remedy the same, but in wanton disregard of the safety of children of plaintiff’s age and grade continued to maintain the stairway and wellhole as “an inexcusable and attractive nuisance.”
In whatever language stated, the only real complaint, and the gist of the negligence charged, is that the balustrade on the exposed side of the stairway was constructed and maintained of insufficient height for the safety of pupils of plaintiff’s age. Separate demurrers, but of substantially the same import, were filed by the board of education, and its individual members. The demurrer of the individual members presents all questions involved in both demurrers, and is, so far as material, as follows:
“(1) The board of education of the city of Grand Rapids acts only in a governmental capacity, and neither it nor its members are liable for injuries arising out of a performance or nonperformance of any power, duty or obligation resting upon it or them.
“(2) The board of education of the city of Grand Rapids is authorized and empowered to raise and expend public moneys only for certain purposes, and for no other purposes; and such purposes do not include the raising and expending of moneys for the payment of claims for damages arising out of claimed defective school buildings, grounds or premises. Said board not being given power or authority to raise and expend public moneys in the payment of claims for damages arising out of claimed defective school buildings, grounds or premises, it and its members are not liable for such claims. •
“(3) The board of education of the city of Grand Rapids acts only in its official capacity, and the individual members of said board are vested with no powers and charged with no duties, and are not liable as individuals for its acts of ipisfeasance or malfeasance, arising out of or connected in any way with the administration of the public schools of the city of Grand Rapids.
“(4) None of the individual members of the board of education of the city of Grand Rapids is vested with any authority or charged with any duty to take any action whatever, with reference to the construction, repair, maintenance, or operation of any public school building or buildings of the city of Grand Rapids, or any part thereof, and none of such members is therefore liable for the neglect of any such duty. «,
“(5) Ño funds of the board of education of the city of Grand Rapids may be expended, except pursuant to an official vote of said board, and no individual member of said board is therefore authorized or empowered to incur any expense on behalf of said board. Not being so authorized or empowered to incur any such expense, no member of said board is individually liable for any damages resulting from failure to make proper repairs, or to do away with nuisances which may arise or be created in the construction, operation and maintenance of the public schools of the city of Grand Rapids.”
The board of education of the city of Grand Rapids was organized and exists under Act No. 593, Local Acts 1905, and amendments thereto, as an instrümen tality of the State for educational purposes only. Among its enumerated powers and duties (as summarized in the trial court’s opinion) are the following:
“To take, hold, sell and convey real and personal property, including property received from gift, devise or bequest, all as the interest of this school district, being the entire territory of the city of Grand Rapids, and the property and welfare of said school district may require and to be vested with title to all property belonging to said school district; to have power to purchase all property, erect and maintain all buildings and purchase all personal property; to employ and pay all persons, and do all other things in its judgment necessary for the proper establishment, maintenance, management and carrying on of the public schools of the city, or other property of the district, and to adopt by-laws, rules and regulations for its own government and for the control and management of all schools and property; to annually on or before the first Monday of March in each year, make an estimate of the amount of taxes deemed necessary for the ensuing year for all purposes of expenditures within its power; to borrow from time to time money for temporary school purposes in a sum not to exceed $30,000.
“And further that for the purpose of purchasing sites, or erecting buildings, or both, it may borrow such sums of money as it may deem necessary, but which action must be approved by the majority vote of the members elect of the common council; to allow all demands and claims against the board, and which shall be certified to the city controller for payment.”
In sustaining defendants’ demurrer the court pointed out that there was no averment in the declaration that this balustrade or stair railing, upon the inadequacy or defective condition of which all other charges of negligence are based, was not a part of the original plan for the school building, nor that defendants • constructed the same in any other manner than as provided in the plans for the erection of the building; stated it must therefore be assumed for the purposes of the case that the alleged low and defective condition of the balustrade was a part of the original plan, in adopting which defendants “acted in a purely discretionary and governmental capacity, and that there is no statute in this State giving in terms a right of action against these defendants, or any of them in cases like the one at bar, and there is no allegation of a departure from these plans in the construction of this school building.” For which reason the court concluded and held that the declaration does not charge a cause of action against either the board of education or its individual members, sustaining defendants’ demurrers with leave to plaintiff to amend within 15 days. Plaintiff did not amend, but, when the order sustaining said demurrer became absolute, at the expiration of 15 days, brought the matter here for review.
Plaintiff’s declaration alleges it was the duty of the board to erect school buildings, and charges that “defendants themselves” built the building and balustrade complained of. In the absence of any allegation to the contrary it follows as a natural inference that they planned and built it, or caused the same to be done, rather than that they built a building without any one planning it. The presumption that a public construction or improvement was according to a plan adopted or ratified by proper authority is a reasonable deduction and finds support in Owen v. City of New York, 141 App. Div. 217 (126 N. Y. Supp. 38), which holds it to be “presumed that a sidewalk of the city was constructed according to plans and on a grade established by the proper local authorities.” There is no averment in the declaration that the stair railing, or balustrade, or any other part of the building was constructed otherwise than as originally planned, or was defective in strength, workmanship, or quality of material used. The grievance is that it should have been made higher. In City of Lansing v. Toolan, 37 Mich. 152, speaking through Justice Cooley, this court said:
“In planning a public work a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection. * * * _What the public have a right to expect of them is, that in the construction of their works after the plans are fixed upon, and in their management afterwards, due care shall be observéd; but negligence is not to be predicated of the plan itself.”
It is contended that the trial court erroneously disposed of the case upon the theory that the school board was but a quasi corporation acting solely as a State agency, while by the local act creating the board of education as a body corporate, vested with power to acquire and hold title to property, sue and ,be sued, etc., it no longer remained a mere instrumentality of the State provided for by general laws applicable to all alike; but became a voluntary, municipal corporation, properly sued in its corporate name as such, and its liabilities should be tested and decided'on that basis. Act No. 593, Local Acts 1905, was an act to revise the charter of the city of Grand Rapids, “including therein also, as a part of such charter, the acts controlling the board of education,” etc. Under title 14, relative to school matters, section 1 provides:
“The city of Grand Rapids, as it may from'time to time exist, shall constitute and be one school district. The board of education of said city shall be its school board. In all respects where not modified by this act, such district and such board shall be subject to and governed by the general school laws of this State from time to time in force.”
We find nothing in this act enlarging the powers of the board beyond that of a pure governmental agency created and restricted in its authority exclusively to the public purpose of education, universally recognized as a distinctive governmental function. If it were a municipal corporation proper, its functions would be both governmental in administering delegated powers of the State and, to a larger extent, municipal, or to govern, manage, and regulate local affairs within the limits of the city, village, or district incorporated, the latter frequently including business activities for profit in operating public utilities in the interest and for the well-being of the community. Not only is no authority given to the school board to exercise municipal functions, but its limited powers are exclusively restricted to purposes of education. Although invested with certain corporate characteristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations. That a district is organized under a local act, that the school property of the district is held in its name, and that it may sue or be sued does not enlarge it from a quasi corporation. Attorney General v. Lowrey, 131 Mich. 639 (92 N. W. 289) ; Whitehead v. Board of Education, 139 Mich. 490 (102 N. W. 1028). We cannot, however, reeogiiize fully the urged importance of this distinction as applied to the questions involved here. Touching their immunity from liability in the exercise of strictly governmental functions, the authorities are as a rule applicable to either. This is broadly stated in 13 Mod. Am. Law, p. 229, as follows :
“In its strictly governmental character a municipality closely resembles a quasi corporation, and in this aspect the law for it is practically the same as for a quasi corporation as to the reason and extent of its exemption from liability for injuries suffered by others. It is performing a public function — discharging a governmental duty of the State for the public wel fare; and out of this no action can arise unless given by statute.”
Neither can we accept the contention that this demurrer is inappropriate because the declaration avers that defendants used the building or permitted it to be used for public gatherings with and without rent, and in part for the purpose of profit, in support of which Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332), is cited. In that case plaintiff was injured while assisting in the construction of a public sewer in the city of Lansing owing to the negligent manner in which the construction was carried on, as he charged. The defense was urged that the city was in the exercise of a governmental function, but denied on the ground that it was in the prosecution of a private municipal enterprise which could legally be a source of revenue to the city as its charter expressly authorized the city to charge for the use of such sewer and collect annual rental from persons permitted to connect their premises with it by private drains. This school board was granted no such express power to collect revenue. Its grant of power and use of school property was exclusively for educational purposes. No claim is made that the building was otherwise used at the time of the accident, or at any time when required for school purposes. Assuming that the board at some previous time acted in that particular beyond the power granted it by the legislature, such ultra vires act was in no wise connected with the negligence complained of and could not, at least here, affect its status as a quasi corporation under the law creating it, which gives no permission and confers no authority to pursue any course for emolument or pecuniary advantage of the school district, its officers, the municipality in which it is located, or any of its inhabitants.
As applied to those States where liability is not expressly created by statute the overwhelming weight of authority sustains the following concise statement of the general rule upon the question before us:
“The duty of providing means of education, at the public expense, by building and maintaining school houses, employing teachers, etc., is a purely public duty, in. the discharge of which the local body, as the State’s representative, is exempt from corporate liability for the faulty construction, or want of repair, of its school building, or the torts of its servants employed therein.” 2 Shearm. & Redfield, Negligence (6th Ed.), § 267.
This general rule is recognized and well sustained, directly or indirectly, in the following cases from other jurisdictions, in many of which the subject is ably and exhaustively reviewed: Eastman v. Town of Meredith, 36 N. H. 284 (72 Am. Dec. 302) ; Harris v. School District, 72 N. H. 424 (57 Atl. 332); Bigelow v. In habitants of Randolph, 14 Gray (80 Mass.), 541; Hill v. City of Boston, 122 Mass. 344 (23 Am. Rep. 332); Sullivan v. City of Boston, 126 Mass. 540; McNeill v. City of Boston, 178 Mass. 326 (59 N. E. 810); Wixon v. City of Newport, 13 R. I. 454 (43 Am. Rep. 35) ; Weddle v. Board of School Commissioners, 94 Md. 334 (51 Atl. 289); Ernst v. City of West Covington, 116 Ky. 850 (76 S. W. 1089, 63 L. R. A. 652, 105 Am. St. Rep. 241, 3 Am. & Eng. Ann. Cas. 882) ; Clark v. Nicholasville, 27 Ky. Law Rep. 974 (87 S. W. 300); Ford v. School District, 121 Pa. 543 (15 Atl. 812, 1 L. R. A. 607) ; Finch v. Board of Education, 30 Ohio St. 37 (27 Am. Rep. 414) ; Board of Education v. Volk, 72 Ohio St. 469 (74 N. E. 646); Freel v. School City, 142 Ind. 27 (41 N. E. 312, 37 L. R. A. 301); Kinnare v. City of Chicago, 171 Ill. 332 (49 N. E. 536) ; Folk v. City of Milwaukee, 108 Wis. 359 (84 N. W. 420); Lane v. District Township, 58 Iowa, 462 (12 N. W. 478) ; Bank v. School District, 49 Minn. 106 (51 N. W. 814) ; McClure Bros. v. School District, 79 Mo. App. 80; Rock Island Lumber, etc., Co. v. Elliott, 59 Kan. 42 (51 Pac. 894); Wiest v. School District, 68 Or. 474 (137 Pac. 749, 49 L. R. A. [N. S.] 1026).
In Hill v. City of Boston, supra, recognized as a leading case upon that subject, the facts involved practically duplicate those in the instant case. Plaintiff, a boy 8 years of age, who sued by a next friend, while a pupil in the exercise of due care attending one of the public schools in Boston which the city was required to provide and maintain, the school room being on the third floor of the building, fell over the railing of the second flight of stairs and was seriously injured. He offered to show that the railing of the winding stairs was dangerously low; that the city thus negligently constructed this building and maintained it for school purposes in such condition; that the school committee for a long time before the accident knew this building was dangerous and unfit for the purposes of a public school, in the particular mentioned, and had been notified by the teachers of the school of its dangerous condition, which they had promised to repair but failed to do. The opinion was written by Chief Justice Gray. It is historical and exhaustive, reviewing many authorities. The conclusion is reached that an action could not be maintained against the defendants because of the unsafe condition of the stairs in a public school building where the city conducted a school in the performance of a governmental function imposed upon it under the general laws of the State.
In the case of Clark v. City of Nicholasville, supra, the facts were also strikingly similar to those in the instant case. Plaintiff, a little girl 12 years of age, was seriously injured while attending school by falling from the stairway to the first floor in a school building of the city. It was charged as negligence that the banisters protecting the stairway were insufficient, and that other children had fallen over them, which facts were known to the city and the board of education, but they negligently allowed the banister to remain in an unsafe and dangerous, condition until she was injured. A demurrer to the petition was sustained, following Ernst v. City of Covington, supra, in which a child attending a public school was injured by falling from a wall on the school grounds left in a dangerous condition by the school authorities. Becovery was denied in those cases on the ground that defendants were in the discharge of purely governmental duties, acting as representatives of the State, and therefore exempt from liability for improper construction of schoolhouses, or failure to repair them.
Decisions are to be found more or less at variance with the foregoing and to scan the whole field makes manifest that out of the abundance of authority upon the various aspects of this question, which an endless variety of circumstances presents, there is more or less conflict and confusion in the law upon the general subject of the liability of municipal corporations and quasi corporations for tort in the management of public property.
But the issue which confronts us here is not complicated by the intermingling of municipal activities with governmental duties as in case of a municipal corporation proper, nor direct and positive mischief produced by an active trespass upon the person or property of others of such a character as to be beyond mere error of judgment and necessarily leading to the conclusion as a matter of law that injury must inevitably result. The exact negligence upon which it is sought to predicate the liability of. this quasi corporation is faulty construction of a school building used for school purposes and failure to correct the fault, as a result of which plaintiff was injured, and the question is whether our own decisions are in harmony with the applicable general rule, both as to municipal and quasi cor porations, as deduced from the prevailing authorities thus concisely stated in 28 Cyc. p. 1309:
“Injuries caused by defects or negligence in or around a schoolhouse cannot be redressed by a civil action against the municipality, as the maintenance of schools is a public function.”
The authorities generally recognize that this rule of exemption from responsibility, as broadly stated, does not extend to positive miehief produced by active misconduct or direct acts in the nature of a trespass which invade the premises of another to his injury. In Ferris v. Board of Education, 122 Mich. 315 (81 N. W. 98), it was decided that a school district may be held liable for injuries caused by snow and ice falling upon, adjoining private premises from the roof of a school building erected by the board in such a manner that the ice and snow must inevitably so fall, without barriers to prevent; and the court there pointed out that:
“The cause of action is not a neglect in the performance of a corporate duty rendering a public work unfit for the purposes for which it was intended (which is the essence of the cause of action here), but the doing of a wrongful act causing a direct injury to the person of the plaintiff, while outside the limits of the defendant’s premises.”
The court also said:
“It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals, arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive.use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof, and.be precipitated upon the plaintiff’s premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property than an individual.”
The line of demarcation recognized in that class of cases is again plainly indicated in Alberts v. City of Muskegon, 146 Mich. 210 (109 N. W. 262, 6 L. R. A. [N. S.] 1094, 117 Am. St. Rep. 633), holding that a city is not liable at common law for destruction of private property by fire set by sparks from a steam roller used by the city in repairing a public street. Justice Ostrander, speaking for the court, there said:
“The case at bar is not one of damages resulting from a direct trespass or from misfeasance of the city amounting to a trespass. It is a case of consequential-injury resulting directly from the negligent conduct of the defendant’s agents. In this fact lies the distinction which, in view of former decisions of this court, must be made, and, when made, is controlling.”
In Nicholson v. City of Detroit, 129 Mich. 246 (88 N. W. 695, 56 L. R. A. 601), plaintiff brought suit against the city for injuries resulting from contracting smallpox while in the employ of its board of health, engaged in removing an old pesthouse from land owned by the city. It was contended that the city as owner of the premises was under obligations to furnish him a safe place in which to work and in duty bound to warn plaintiff of hidden dangers. In sustaining a demurrer to plaintiff’s declaration it was said that the action of the city in procuring the land and erecting a hospital upon it was the act of a governmental agent, and the land was owned for public purposes under governmental authority; that in making the changes upon the premises thus owned the board of health was in performance of an imposed duty for the city, which was acting solely in the capacity of a governmental agent, and not liable for injuries received through the negligence of its officers while in the furtherance of a governmental function.
In Attorney General v. Lowrey, supra, in discussing the attributes of a school district, the court said of quasi corporations:
“They consist of counties, townships, school dis~ tricts, highway districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are about and for the * * * policies of the State. * * * The school district is a State agency. * * * The property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general.”
In Whitehead v. Board of Education, supra, a demurrer was sustained to plaintiff’s declaration charging defendant with failing to furnish him a safe place to work and safe appliances to work with while in its employment, as a result of which he fell and was injured. Distinguishing the Ferris Case and applying •the principles, of the Nicholson Case to facts alleged in the declaration under consideration, the court said:
“We think the learned trial judge was correct in saying that ‘the affairs of the board of education’are as purely a State function as those of the board of health,’ and that this case could not be distinguished in principle from the case of Nicholson v. City of Detroit, 129 Mich. 246 [88 N. W. 695, 56 L. R. A. 601],. upon which he relied.”
In the second count of plaintiff’s declaration it is alleged that the structure and stairway with its low railing inclosing the “wellhole, or elevator shaft,” became and remained a dangerous nuisance. It is contended by his counsel that applying this name and view to the alleged facts defendants are liable under the principle that a municipal corporation may not construct or maintain a nuisance in the street nor upon its property to the damage of another lawfully in the street or upon its premises, and authorities are cited to sustain this doctrine.
The same contention was made in Kilts v. Supervisors, 162 Mich. 646 (127 N. W. 821) ; where nuisance was charged in a count of plaintiff’s declaration, and it is urged that language used in the opinion of that case lends support to the theory advanced here of liability for maintaining a dangerous nuisance on property owned by defendants resulting in injury to one rightfully upon the premises, with whom they sus-, tained peculiar relations and to whom they owed a duty. In the Kilts Case the death of plaintiff’s intestate resulted from the giving way of a platform at the top of a water tower at the county farm of Kent county, while he was at work on the covering of the tank 80 feet above the ground. It was conceded that the steel beams supporting the platform were too light to support the burden put upon them. The action was against contractors who constructed the tower, the Grand Rapids bridge company, which furnished the material, and the board of supervisors; citing many cases from this and other States, the court found that the board of supervisors could not be held liable in any event because in making required provisions for the poor it was performing a governmental function, and said of plaintiff’s claim of nuisance, in part:
“Counsel make an ingenious and plausible argument that this tower and tank constituted a nuisance, for which all concerned in its erection are responsible, and each and every one of them liable for damages resulting therefrom, whether it was due to negligence or not, under an alleged general rule applicable to nuisances. We think this claim, if sustained, would be an extension of the law of nuisance.”
This is followed by a discussion of the definition and jaw of nuisance, extracts from which are urged as supporting its application here. We are unable to give what was said in that general discussion the application to this case contended for, and cannot discover in it any intent to change or modify by resort to the rules governing the law of nuisance the well-settled general principle that school boards, in their quasi corporate capacity as governmental agencies, are exempt from corporate liability for faulty construction or want of repair of their school buildings. In Folk v. City of Milwaukee, supra, where a demurrer was sustained to plaintiff’s complaint alleging that the death of a pupil from poisoning by sewer gas was imputable to defendant’s negligence in allowing the sewer of the school building to become clogged and it was charged, inter alia, that defendant was guilty of creating and maintaining a dangerous nuisance, the court, in discussing the latter contention, said:
“We do not lose sight of the fact that there is another principle frequently approved by this court, namely, that a municipal corporation may not construct or maintain a nuisance in the street or upon its property to the damage of another. * * * In the present case, however, there can be no doubt that in the management of the schoolhouse the city officials were acting in a purely governmental capacity, as far as their relations to the deceased child were concerned.”
No statutory duty is imposed upon the members of this board individually. It is not charged that any particular one acted or assumed to act as an officer, agent, or representative of the board, or in any different capacity from the other. They had no power and were charged with no duty except to act together in a quasi corporate capacity. The negligence which all defendants are charged with involved malfeasance and nonfeasance in their governmental duties connected with the construction and maintenance of this schoolhouse. We are impressed that if the board as such is not liable its individual members are not liable; no individual liability is created by statute.
“Liability for negligence and suit therefor against the individual officer can only exist by virtue of an express statute creating the individual duty of such officer, and also authorizing the maintenance of a suit for failure to perform such duty.” Plumbing Supply Co. v. Board of Education, 32 S. D. 270 (142 N. W. 1131).
The judgment sustaining defendants’ demurrer is affirmed.
Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit. | [
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] |
Kuhn, J.
The plaintiffs husband was killed by a motor fire truck belonging to the city of Detroit. He was standing in the V-shaped entranceway of a store on Jefferson avenue, in Detroit, when the truck, in charge of firemen in the employ of the city, was being driven rapidly along Jefferson avenue to a fire. At the corner of Griswold street, where there is a curve joining the street car tracks intersecting at that point, the truck ran over a hole in the asphalt pavement which was, roughly, 2 or 3 feet long and 10 to 18 inches wide, and adjacent to the curve. The force of the rebound from the drop into the hole threw the truck from its course, over the curb, and across the sidewalk, against the deceased, who died from the injury in a few hours.
The only issue of fact in the case is over jhe depth of the hole. The evidence of the defendant is actual measurements taken by two witnesses two days later, which showed that the hole was 2% inches deep at the deepest point. The evidence of the plaintiff is estimates of numerous witnesses, using for the purpose such means as a lead pencil, switch bar, shoes, etc., that the hole was about 6 inches deep at the deepest point. The plaintiff charged on this evidence that the injury was caused by the negligence of the city in not keeping its pavement in a state of repair reasonably safe for use and travel, as it is required to do by statute, and this question was submitted to the jury with the conflicting evidence as to the depth of the hole. A verdict was returned for the plaintiff, and judgment entered.
The statute (section 2462, 2 How. Stat. [2d Ed.] ; 1 Comp. Laws 1915, § 4584) upon which liability is predicated reads as follows:
“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”
It will be noted that the plaintiff’s decedent was not upon the highway at the time he met his death, but was standing' in the doorway of a building abutting thereon. The question of whether liability of the municipality extends to persons who were not upon the highway when injured was not raised in the court below, nor has it been discussed by counsel in their briefs, and therefore will receive no consideration here.
The defendant contends that the court below erred in refusing to direct a verdict in its favor, on the ground that the only proper evidence showed that the hole in the pavement was not of such a depth as to render the street not reasonably safe for travel, because, it is urged, all the testimony of the witnesses for the plaintiff was based on estimates and not actual measurements.
It is strenuously argued by plaintiff’s counsel that the testimony of plaintiff’s witnesses did amount to actual measurements. Be that as it may, we are of the opinion that the instant case does not come within the rule announced in Perkins v. Township of Delaware, 113 Mich. 377 (71 N. W. 643) ; Karrer v. City of Detroit, 142 Mich. 331 (106 N. W. 64) : and Jones v. City of Detroit, 171 Mich. 608 (137 N. W. 513).
In the opinion in the Perkins Case, it is said:
“It is the duty of the plaintiff who seeks to recover damages for negligence to place before the jury the actual condition when it is within his power to do so.”
In the instant case the accident happened on Saturday afternoon, and the man was killed. Within a few days thereafter, according to the unquestioned testimony in the case (some witnesses saying as early as Monday of the following week), repairs were made and the faulty condition of the highway remedied. We do not think the burden should be placed on a plaintiff such as the widow of this deceased person, to make an attempt to find the actual condition immediately upon the death of her husband, when he still remained unburied, in order to be prepared to show the actual condition. It is true that, if this condition existed for some time, and no effort was made by the plaintiff to ascertain what the actual conditions were, it could be claimed that the rule in the Perkins Case should be applied. But, in our opinion, the situation here presented is not within that rule, and the rule should not be enlarged by placing such a burden on a plaintiff under the circumstances disclosed in this record.
It is also argued that the testimony of the city’s witnesses as to the actual measurement was impeached by testimony which showed that along the rail next to the hole in the pavement were three rows of brick four inches in depth, and that the bricks in two of these rows had been removed. It was testified to and also appears from photographs which were offered in evidence that the hole was at' least the depth of the bricks. And it further appeared from the evidence that the rail was some distance, estimated to be two inches, above the top of the pavement; so that from the top of the rail to the bottom of the hole it can. be claimed that there was. a distance of at least six inches. Irrespective of whether it can be claimed that this testimony impeached the testimony of the city’s witnesses as to the measurements, in our opinion, as we have intimated, no such reasonable opportunity was had by the plaintiff to make measurements as to bring her within the ruling in the Perkins Case. We conclude, therefore, that the court was justified in admitting the testimony of witnesses for the plaintiff who testified as to their estimates of the depth of the hole, and in submitting to the jury the question of whether or not, in fact, the hole was of such a depth as to make the city liable for allowing it to remain unrepaired.
It is also argued by counsel for the city that the statute which imposes the obligation upon the municipality to keep and maintain its highways in a condition reasonably safe and fit for public travel should be construed so as to refer only to ordinary vehicles which were in use at the time of the passage of the statute, which at that time were wagons or carriages drawn by horses, and should not be held to apply to automobiles. It cannot now well be disputed that automobiles and automobile trucks are ordinary vehicles. In fact, they have become so ordinary that it is rather unusual to see vehicles which were in use at the time the statute was passed on the streets of a large city like Detroit. It would be a strange conclusion to say that the municipality should not be bound to keep its highways in condition reasonably fit for travel for vehicles which become from time to time the ordinary vehicles of travel.
In the case of Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885), it was held that the statute did not require municipalities to so construct their streets and repair them as to secure safety to bicycles, on the theory that the bicycle was not such an ordinary vehicle as was contemplated by the statute. But we do not think that the doctrine should be carried any farther than it was carried in that case, as was said by this court in Lee v. City of Port Huron, 128 Mich. 533 (87 N. W. 637, 55 L. R. A. 308).
It is also contended by counsel for the municipality, relying upon the case of Brink v. City of Grand Rapids, 144 Mich. 472 (108 N. W. 430), that a municipality, in the absence of a statute, is not responsible for' injuries caused by the negligence of its employees engaged in the so-called governmental function.' However, no claim is made by the plaintiff’s counsel in this case because of any such negligence, and the only theory upon which they seek to recover is that the highway was defective.
In Coots v. City of Detroit, 75 Mich. 628 (43 N. W. 17, 5 L. R. A. 315), a fireman, who was the plaintiff, was injured while driving a fire engine to a fire, when the right fore wheel of the engine dropped into a hole in the street. It was held that the statutory duty to keep the street in a condition of repair reasonably safe and fit for travel was a duty which could be invoked in favor of members of the fire department, as well as in favor of the general public. Here the deceased, without any negligence on his part, met his death because the truck struck a hole, because of the defective condition of the street. In our opinion, there cannot be any question that upon this theory the plaintiff was entitled to recover.
We find no error in the record, and judgment must therefore be affirmed.
Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. | [
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] |
Moore, J.
This is an appeal from a decree which, omitting the formal parts, reads as follows:
“After hearing the testimony of the witnesses and the arguments of the counsel, the court, being fully advised in the premises, finds that said complainant, Fremont Peterson, made and entered into a contract with said Fannie M. Clough, now deceased, in her lifetime, for the land described in said bill of complaint as the S. E. *4 of the N. E. % of section 28, town 17 north, range 15 east, Mich., being 40 acres more or less in the township of Rubicon, in said county; that said complainant has fully performed his part of said contract; that in compliance with said contract and agreement, said Fannie M. Clough in her lifetime made and executed a deed of said land, conveying same to said complainant, and placed same in the hands of a third party for delivery to said complainant at her decease; that said deed was destroyed without the knowledge or consent of said complainant; and that said complainant is the owner of said land.
“It is therefore ordered, adjudged, and decreed that complainant’s contract with said Fannie M. Clough be specifically performed, and said complainant’s said title to said land be confirmed in him and quieted as against the defendants herein, and that said complainant, Fremont Peterson, be, and he is, deemed to be the owner of said land, and that said complainant have his costs of this suit to be taxed as against said defendants.”
Fannie M. Clough died April 27, 1913, aged 84 years. By a former marriage she was the mother of the complainant and of all the defendants, except Mr. Bisbee, administrator of her estate.
It is the claim of complainant that he was to take possession of and do certain things on the farm for his mother, and do other service for her, and that he was to have the farm; that, acting upon that agreement, he took possession of the farm and his mother visited a conveyancer and made a deed of the farm to him and left it with the conveyancer to be delivered to complainant on her death. It is his further claim that he performed all things he was to do, and that the defendants persuaded the mother, shortly before her death, to procure the deed from the conveyancer, and they destroyed it without her consent. It is the claim of defendants that complainant was working the farm on shares, and that the deed was destroyed by the direction of the mother. We quote from the brief of ■ the solicitor for appellants: ,
“There are two questions presented by appellant which, for the purpos'e of argument, may be treated separately: First, the claimed delivery of a deed as an escrow; second, the claim of an oral agreement to convey.”
Aa to the first of these claims it is urged that the mother never supposed she was alienating the title beyond recall. As to the oral agreement, it is claimed that there is an. utter failure to establish it. If we omit the testimony of the complainant entirely, it is clearly shown that he went into the possession of the farm under some arrangement in March, 1904, and that at the same time his mother made a deed of the farm, naming him as grantee, and left it with the scrivener to be delivered to him on her death. The testimony as to the obtaining of the deed from the scrivener and its destruction is not very clear. The scrivener testified in part:
“I drew a deed for her. * * * I don’t know just how many years ago. The deed was in favor of her son Fremont Peterson.' In her last illness, a month or two before she died, she sent for me, and told me to bring all the papers of hers I had in my possession. I brought the deed and some other papers. When I gave her the deed she was in bed. There wasn’t any one else in the room. She wanted to know why I hadn’t sent them down. I told her T wouldn’t give them to any one but her, and I gave them to her. Her husband was in the house, and I think there were people walking around there. At the time she drew the deed and signed it and left it with me she told me to give it to Fremont after her death. She said Fremont was a good boy, and she was fixing it up that way.”
Cross-examination:
“Mrs. Clough signed the paper at my office quite a number of years ago — I don’t know exactly. Fremont wasn’t there. She told me to keep the deed and deliver it to him after her death. I wrote the deed. There was a provision in the deed that John was to be paid $100. She kept her papers with me. I think I did most of her business. She never talked with me from the time she left the deed with me until I returned the deed to hpr. I considered she had a right to take the deed back if she wanted to. I gave it to her anyway.”
The husband of Mrs. Clough, who was much younger than she, testified:
“She signed the deed to Fremont 7 or 8 years ago. I don’t know where she signed it, but she told me it was in Johnny Brennan’s Bank. She left it in his care for Fremont Peterson, to be delivered to him after she was dead. I saw the deed when Johnny Brennan brought it home and handed her the deed.
“Q. What did she say?
“A. She didn’t say anything. Johnny Brennan says, ‘Here are the papers, Mrs. Clough.’ ‘Of course; that’s all right, Mr. Brennan. I thank you for bringing them.’ John and Fred Peterson were in the house at the same time. Fremont wasn’t there. He didn’t know she had the deed. Mr. Brennan stayed about half an hour. She was sick in bed at this time; didn’t know one paper from another. All she wanted was to have the papers in- her possession. This was about three weeks before her death. I took Mr. Brennan home. When I got back she was asleep. Fred and John Peterson were the only people in the house. Fred came up and told me that they had burned the deed to Fremont. Fremont didn’t know then it was burned; he wasn’t there at that time. * * * She told me that Fremont carried out his part of the agreement, and she was satisfied with what he had done. After the deed was burned, she called me in, and said the boys didn’t care anything about her, all they cared about her was what little she had. She didn’t know the deed was burned. She couldn’t read and write; she signed her name by mark. She intended to give-the deed to Fremont.”
One of the defendants testified:
“Two or three days after the deed was burned she told me they were quarreling over papers, and that she had destroyed them. I told her she had done a wrong thing. She didn’t say who was quarreling about it.”
One of the defendants testified:
“I was there the day Mr. Brennan came down with the papers; guess Fred and Clough were also there. My mother told me-she had sent Clough after her papers to Brennan. * * * He (Mr. Brennan) came to the house and delivered the papers to my mother. She asked Brennan why he didn’t give the papers to Levi Clough when she sent for them, and he said- he would rather deliver them himself. I don’t know whether the papers were in a large envelope or packed together. Fred came in while Brennan was there, Clough did not come in; he was out in the yard. She kept the papers in her possession some little time. She had the papers in her hand, and Fred was sitting close to her, and she asked him to burn the bunch of papers that she had. So Fred took the bunch of papers and went to burn them, and I said to Fred: ‘Like you ought to look those papers over a little and see what is in there; there might be something in there she wouldn’t want to have burned.’ Fred came back. We looked at the papers, and found an abstract, and I says, ‘That might be some good.’ So he looked the paper all through, and put them together and passed them to her, and she asked me to burn them up, which I did. Clough came in a little later. I didn’t look the papers over in my hands at all, I looked on while he looked at the papers. Fred sat close to the bed. He didn’t say anything about what was there.”
On cross-examination:
“By Mr. Murphy: She had the papers in her possession before they were burned. I think Fred quoted over the different papers in looking them over. He called out an abstract, and that was the only paper I had my hands on. I don’t remember him calling out a deed or a will. •* * * I didn’t know that she made a deed to Fremont. I didn’t know that the deed was burned by me; it was all those papers in that bundle that was burned. I didn’t hear Fred say anything about a deed or a will in those papers; he was looking them over and quoting them to my mother and I wasn’t paying strict attention to what he said.”
Fred testified the papers were burned by the direction of his mother.
There is no one who disputes the scrivener when he testified:
“At the time she drew the deed and signed it and left it with me, she told me to give it to Fremont after her death.”
It was not until 9 years later that it was destroyed. There is no pretense that Fremont was consulted about its destruction, or consented thereto. The effect of making a deed and leaving it with a third party, with instructions to deliver it to the grantee upon the death of the grantor, was the subject of discussion in Hosley v. Holmes, 27 Mich. 416; Wallace v. Harris, 32 Mich. 380; Thatcher v. St. Andrews Church, 37 Mich. 264; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291) ; Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640) ; Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201) ; Meech v. Wilder, 130 Mich. 29 (89 N. W. 556).
We think the deed was made and delivered, and should be restored.
The decree is affirmed, with costs.
Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred. | [
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Per Curiam.
The defendant was convicted on her plea of guilty of the crime of uttering and publishing. MCLA § 750.249 (Stat Ann 1962 Rev § 28.446). On appeal, defendant contends that her plea should be set aside, and a new trial ordered, because she was allegedly “led to believe” that she would receive a sentence of probation, that she acted under duress, and that somehow her will was subverted by drugs, liquor and the masculine domination of her boyfriend. The record does not lend any credence to the defendant’s allegations and, therefore, we affirm the conviction. | [
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] |
O’Hara, J.
On August 28, 1968, defendant was charged with reckless driving. MCLA § 257.626 (Stat Ann 1968 Eev § 9.2326). In October, 1968, he pled not guilty before a referee in the traffic and ordinance division of Detroit recorder’s court. At trial, on October 9, 1968, defendant appeared with counsel and offered a plea of careless driving. The court, sitting without a jury, did not accept the plea, but rather chose to “hear the testimony and see how it develops.”
The arresting officer then testified as to the details surrounding the alleged violation. Following the officer’s testimony, the defendant was offered an opportunity to testify. He declined. The court then questioned the defendant about his age and criminal record and also about his desire to enlist in the armed services. Defendant’s attorney also questioned the accused. In part, the colloquy went as follows:
“Mr. Garon: Outside your traffic record, you have never been in any difficulty.
“The Defendant: No.
“Mr. Garon: Never been arrested or convicted for any crime in the state of Michigan, right?
“The Defendant: No, sir.
“Mr. Reuther [Assistant Prosecuting Attorney]:
“Your Honor. I believe the record is incomplete. The officer states that he had this gentleman here about a month ago, is that correct?
“The Court: Well, a month ago for what? Something else?
“The Officer: Reckless driving. It was reduced to careless driving.
“The Court: I see that here. That was in May. Well, at any rate * * # [We] [f]ind you guilty.” (Emphasis added.)
Defendant argues on appeal that the prosecutor’s comments were prejudicial. However, defendant having failed to raise any objection at trial, the question has not been properly preserved for review. People v. Dodson (1967), 9 Mich App 123; People v. Will (1966), 3 Mich App 330; People v. Camak (1967), 5 Mich App 655.
Defendant also claims that he was wrongfully deprived of his right to trial by jury. However, defendant was here charged with an offense cognizable by a justice of the peace. MCLA § 774.1 (Stat Ann 1954 Rev § 28.1192). A waiver of jury trial in such a case need not be in writing. MCLA § 763.3 (Stat Ann 1954 Rev § 28.856); People v. Redman (1930), 250 Mich 334. The record reveals that defendant was represented by counsel and went to trial without any indication of a desire for trial by jnry. Under these circumstances, the defendant is deemed to have waived his right to jury trial.
Affirmed.
All concurred. | [
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] |
McGregor, J.
Defendant was convicted of rape, CL 1948, § 750.520 (Stat Ann 1954 Rev § 28.788) ; from this verdict he appeals.
The complaining witness was first accosted at a well-lighted street corner and taken from there to a stairwell in an apartment house, where she was allegedly raped by the defendant. Defendant claims as an alibi that he was present at a friend’s house during the commission of the crime.
Defendant contends that the lineup at which he was identified was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of law. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). The complainant in question first observed the defendant in a well-lighted area, at which time she was only two feet from him. She again viewed him at the scene of the crime.
Two weeks later, the defendant was apprehended and was positively identified by the complainant at a lineup. At trial, the witness again positively identified the defendant. Defendant was among five men in the lineup at which he was identified; although the complainant’s attacker had only a mustache, the defendant had a mustache and a goatee.
Defendant asserts that, inasmuch as he was the only person in the lineup with a goatee, the lineup was tainted. This Court fails to follow the defendant’s logic. We cannot conclude that, because of the mere fact that the defendant herein had a goatee, the lineup was unduly suggestive so as to deprive him of due process of law.
Defendant asserts that it was error for the prosecution to make reference to an unidentified caller who threatened the complaining witness, although it was not known by the complainant if the threat was in regard to the present defendant, and cites People v. Hallas (1932), 257 Mich. 127, in support thereof. In Hallas, the Court held it to be reversible error when the prosecution repeatedly made references to threats which had been directed to a prosecution eyewitness which ultimately gave the impression that the defendants were part of a dangerous gang who would harm the witness if the defendants were not convicted. In the instant case, there was only one question asked of the defendant witness regarding the call; the prosecution did not mention the defendant or the crime in any way, and the judge took special pains to instruct the jury to disregard this question. We find no reversible error here.
Defendant also contends that the prosecution, through innuendoes and in its questioning, created the suspicion that some collusion existed between defense counsel and defense witnesses regarding the defendant’s alibi. Although defendant’s allegations are not borne out by the record, the trial court carefully instructed the jury on this issue:
“Now, members of the jury, during the course of this trial there was testimony, as you recall, that Mr. Harris, the defense counsel, had talked to certain witnesses in this case. A defense counsel has a legal right and a duty to talk to all of his witnesses in a case. It is very proper for him to do so. He also has a right to serve subpoenas himself and you should draw no inference unfavorable to the defendant if that was done in this case.”
Defendant’s final alleged error is without merit.
Conviction affirmed.
All concurred. | [
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] |
Per Curiam.
Donna Pearl Hoffman was shot and killed in front of her home in Lansing in the evening of October 28, 1963. Charged with the killing, her ex-husband, the defendant here, pleaded not guilty and not guilty by reason of insanity. Trial before a jury resulted in a verdict of guilty of murder in the first degree. The defendant appeals as of right.
Only two of the defendant’s numerous assignments of error merit any discussion. The others are either not properly before this Court or are frivolous.
The defendant contends the prosecution failed to prove beyond a reasonable doubt that he was legally sane at the time of the shooting. This contention is unfounded. Two psychiatrists, Drs. Stimson and Phillips, testified for the prosecution and both were of the opinion that the defendant was sane when the shooting occurred. Dr. Stimson testified in part:
“A. I felt that at the time that I examined Mr. Hoffman that he was not suffering from a mental illness of either a psychotic nor a psychoneurotic nature which would in any way affect his ability to determine right or wrong.
“Q. {By the prosecutor): Can you tell the jury what, if anything, is wrong with Mr. Hoffman as contradistinguished from mental illness.
*AJ. JL T? *TF
T? *TF
“A. It was my opinion that at the date of examination I would have classified Mr. Hoffman under the personality trait disturbances as a passive-aggressive personality type.
“Q. And how is this category of personality distinguished from a person who is mentally ill?
“A. This type of disorder is categorized as being one of a defect in the development of character or defect in the development of personality, whereas the psychoneurosis and the psychoses represent more of a regression or return back to an earlier level or form of behavior.
“Q. Primitive, if you know?
“A. More primitive, yes, sir, more primitive.
“Q. Doctor, directing your attention back again now to the categories of mental illness and mental disease that I tried to elicit from you in the first part of the questioning, you stated now that this problem that Mr. Hoffman had was really a personality problem and not a mental illness. * * *
“Q.. Having had the benefit of your examination of him on April 11, and opportunity to review records, and opportunity to see him, and opportunity to read his statement, and an opportunity to review the records of Dr. Asselin, are you able to give your opinion as to whether or not in October and particularly the night of October 28th, Mr. Hoffman was suffering from any mental disease ?
“A. I saw nothing in the statement or in the medical record there that would be incompatible with my opinion as of the date of April 11,1964.
* # #
“Q. (After relating the events of October 28, 1963): Were these acts, Doctor, the carrying out of a compulsion over which he had no control ?
“A. I would say no.
■y? # #
“Q. From the facts as I have explained them or related them to you, with all the facts that you have at your disposal in this case, the information that you have, the result of your experience and your observations of this man at the time you examined him and as you view him here in the courtroom today, if in fact he shot and killed his wife in the fashion as we have described, in your opinion did he know right from wrong at the time he killed her?
“A. Yes sir.”
Dr. Phillips corroborated Dr. Stimson:
“Q. Doctor, directing your attention to what you believe to have been the facts that occurred on the night of October 28th, 1963, that which you learned both by reading the reports, by talking with Mr. Hoffman, by hearing the evidence which has been brought in in this case, drawing upon your own 48 years experience as a psychiatrist and doctor, your conversations you had with Mr. Hoffman while he was a business invitee in your home, are you able to tell us whether or not, in your opinion, this man is or was, in February of 1964, or in October of 1962, and on October 28th, of 1963, suffering from a mental disease?
“A. I don’t think so; no.
“Q. Drawing upon your same experience and knowledge, are you able to state an opinion as to whether or not, on the 28th day of October, 1963, at the time Mr. Hoffman shot and killed his wife, whether or not he knew the difference between that which is right and that which is wrong?
“A. He certainly did. * * *
“Q: [By Mr. Farhat): Did Mr. Hoffman, in your opinion, on night of October 28th, 1963, know the difference between right and wrong?
“A. I think so; yes.
“Q. Did he have the ability at that time to adhere to that which is right?
“A. Yes.”
Opposed to this testimony was the testimony of a defense psychiatrist that the defendant was indeed insane. Although the jury was free to accept the opinions of the defense psychiatrist and reject those of the prosecution, they chose not to do so. The jury’s finding of sanity is adequately supported by the evidence.
Offered in evidence over the objection of the defense were two color transparencies, or slides, depicting the nearly naked corpse of the deceased lying on the autopsy table. Their probative value was admittedly limited to being but a visual aid to the testifying pathologist in explaining the course taken by the bullets. The defendant contends that the slides were gruesome and inflammatory, that their prejudicial effect clearly outweighs their probative value, and that their admission was therefore reversible error. See People v. Turner (1969), 17 Mich App 123.
We find no error in their admission. Although the slides were not of great probative value, neither were they inflam'matory. Except for the several minute bullet punctures in the abdomen and lower right arm, the corpse was in a natural state, yet untouched by the probing tools of the pathologist (see People v. Turner, supra), and both the face and genitalia were shrouded. Admission of the slides in evidence was within the sound discretion of the trial court. People v. Eddington (1970), 23 Mich App 210.
Affirmed. | [
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Danhof, J.
This matter was commenced by the filing of a complaint by the Board of Education of Alpena Public Schools, Alpena and Presque Isle Counties, Michigan, plaintiff, against the Township Board of the Township of Presque Isle, Donald G. Powley, Russell W. Smith, Ruth M. Doyle, W. L. Derrohn and Carolyn Hoppe, officers and trustees, asking for a writ of mandamus requiring the township to cause to be included in the annual tax levy for the year 1967, or as soon thereafter as the court may direct, a levy for the purpose of raising $87,560 which the plaintiff claims was the amount that would have been raised if the township had levied the proper millage granted to the school board by the Presque Isle County Tax Allocation Board for the fiscal year 1966-1967. The original complaint was amended for the purpose of dropping defendant Carolyn Hoppe, who was improperly joined as a defendant, and adding Joseph P. Schenk, trustee of Presque Isle Township Board. A second amended complaint was filed for the purpose of joining the board of supervisors for the County of Presque Isle. Thereafter an intervening complaint was allowed and filed by the Huron Cement Division of National Gypsum Company. After a hearing upon the complaint and answer, the trial court after written opinion entered the following judgment:
1. It dismissed the plaintiff’s complaint as to defendant board of supervisors of the County of Presque Isle, Michigan.
2. It dismissed as a party plaintiff the Huron Cement Division of National Gypsum Company, a Delaware corporation.
3. It granted a writ of mandamus to the plaintiff Board of Education of Alpena Public Schools, Alpena and Presque Isle Counties, and ordered and directed that the defendants Donald G. Powley, su pervisor, Bussell W. Smith, clerk, Buth M. Doyle, treasurer, W. L. Derrohn and Joseph P. Schenk, trustees of the Township Board of the Township of Presque Isle, Presque Isle County, Michigan, to levy the sum of $80,562 which sum was ordered spread upon the next tax roll for the Township of Presque Isle, Presque Isle County, Michigan, and when collected to he paid to the plaintiff, Board of Education of Alpena Public Schools, Alpena and Presque Isle Counties, Michigan.
From this judgment the defendants, the Township Board of the Township of Presque Isle has appealed and there are cross-appeals by the plaintiff Board of Education of Alpena Public Schools, and by the intervening plaintiff, Huron Cement Division of National Gypsum Company.
Prior to addressing ourselves to the legal questions it is necessary that certain facts he set forth. The trial court in its opinion clearly and distinctly sets forth these facts, and not only are they generally not in dispute hut are sustained by the record.
The Alpena Public Schools is a school district of the third class organized pursuant to PA 1955, No 269 as amended, MCLA § 340.1 et seq. (Stat Arm 1968 Bev § 15.3001 et seq.). The school district comprises all of the County of Alpena with the exception of the westerly portion of the Townships of Green and Wellington in Alpena County, and includes the southeasterly portion of Krakow Township and all of Presque Isle Township in Presque Isle County, Michigan. The district, in addition to furnishing schooling from kindergarten through 12 grades, also provides the first two years of college education through the establishment of the Alpena Community College. Presque Isle Township was a nonoperating school district which prior to the in stitution of this lawsuit was annexed to the Alpena Public Schools.
Prior to the annexation of Presque Isle Township, the Alpena Public Schools obtained authority to levy up to 20 mills in addition to the 15 mill limitation for all purposes. . On the annexation of Presque Isle Township the 20 extra voted mills also became applicable to Presque Isle Township and this millage was renewed in 1962.
The fiscal year of the school district is from July 1 to the following June 30.
On May 12, 1966 according to the statutory time table, the plaintiff Alpena School Board adopted a final budget which showed that $3,025,214 was to be raised by local taxation within the school district. This budget was submitted to the Alpena and Presque Isle allocation boards on May 12. The total state equalized valuation for the district was stated at that time to be $125,956,413, with the state equalized valuation of Presque Isle Township stated to be $4,634,532. This budget was recognized by the Alpena County Tax Allocation Board and a millage rate of 23.78 mills was adopted. The order of the Alpena County Tax Allocation Board fixing the above-stated millage was communicated to the Presque Isle County Tax Allocation Board. The Presque Isle County Tax Allocation Board adopted a preliminary order allocating 24.03 mills to the school district, but it recessed on June 17, 1966 without taking final action because of its knowledge of an appeal to the State Tax Commission for determining the state-equalized value for the County of Presque Isle. The division of the 15 mills, which is a usual problem to an allocation board, is not a problem in the instant case, because of the 20 additional mills which had been approved in 1962 for an extended period and which included the year in question.
The plaintiff Alpena school hoard district became aware of the appeal to the State Tax Commission and revised its estimate of the state-equalized value of Presque Isle Township from $4,634,532 to $6,302,-963. After some budgetary adjustments the final millage was set at 23.71 mills. This amount was adopted by a final order by the Alpena County- Tax Allocation Board on May 27 and a copy of the order was sent to the chairman of the Presque Isle County Tax Allocation Board, and also, although it is disputed, a copy was sent to the Presque Isle County Clerk.
Thereafter, on September 6, 1966, the Michigan State Tax Commission entered its final order which increased the state-equalized value for Presque Isle Township to $9,992,188. On September 22, 1966 the Presque Isle County Tax Allocation Board made its final order allocating to the plaintiff school district 24.03 mills. This was in spite of the fact that a previous communication had been sent to the Presque Isle County Tax Allocation Board fixing the final millage at 23.71 mills. Both amounts were well within the maximum millage which was available for school purposes. No appeal was taken from the final order of the Presque Isle County Tax Allocation Board. The Presque Isle County Tax Allocation Board did not meet after September 22, 1966 and the Alpena County Tax Allocation Board had concluded its meeting on May 27, 1966 and did not meet again.
The final order of the state tax commission concluded with the following language:
“The Board of Supervisors shall proceed to apportion county taxes in accordance with this equalization as provided in § 211.34, CL 1948 as amended by Act 275, PA 1964.”
Accordingly, the county hoard of supervisors apportionment committee of Presque Isle County met and faced the following problems:
a. The final order of the Presque Isle County Tax Allocation Board established 24.03 mills for school purposes. This was not correct because 23.71 mills had been finally adopted by the Alpena County Tax Allocation Board.
b. The certificate from the township clerk dated October 10,1966, to the board of supervisors, recited a request for $149,984 for school purposes.
c. The various millage rates of 24.03, 23.78 and the finally designated amount of 23.71 all were designed at the time of adoption by the Alpena school district and the Alpena County Tax Allocation Board to raise the sum of $149,984 from Presque Isle Township. The last millage rate was predicated on a state-equalized valuation for Presque Isle Township of $6,302,963. The apportionment committee of the Presque Isle County Board of Supervisors procured an opinion from the prosecuting attorney, and based upon such opinion decided that they should levy only such millage as was necessary to meet the budget request of $149,984. Thus, the committee recommended and the board of supervisors adopted a levy of 14.94 mills on the final state-equalized valuation of $9,992,188 which was designed to and did raise the sum of $149,984. The sum raised was the pro rata share of the plaintiff school district’s budget but was predicated upon a state-equalized value of $6,302,963, and was not predicated upon the new and increased state-equalized valuation of Presque Isle Township. The pro rata share of Presque Isle Township to the entire Alpena school district after the new state-equalized value is 7.6 per cent.
We note at the outset that had the plaintiff Alpena school board followed the advice given pre viously by the attorney general and later to the Presque Isle County Tax Allocation Board this lawsuit would hot have arisen. The attorney general stated in 2 OAG-, 1958, No 3,284, p 287 (November 3, 1958):
“It is therefore my opinion that if appeal is timely taken, either from county equalization or from the final orders of the county allocation board, to the state tax commission, a taxing unit must delay the levy of its taxes until such appeals are finally determined.”
The plaintiff in an effort to obtain its funds early sent its final tax bills with those of the City of Alpena in July, 1966. Had they waited until the county and township taxes were sent out in December, plaintiff would have known the final valuation of Presque Isle Township and could have made the necessary adjustments. For those who are involved in situations such as this in the future we urge that they follow this advice as given to them by the attorney general.
We are faced with the question of a conflict between the constitutional provision relative to uniformity and certain statutory admonitions relative to county and township officers.
Const 1963, art 9, § 3 provides:
“The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Every tax other than the general ad valorem property tax shall he uniform upon the class or classes on which it operates.”
This provision, as it concerns uniformity, is similar to the provision in the 1908 Constitution and indicates that this state is committed to the basic principles of uniformity. In School District No. 9, Pittsfield Township, Washtenaw County v. Washtenaw County Board of Supervisors (1954), 341 Mich 388, 400, the Supreme Court said:
“By the foregoing provisions, as well as by acts of the legislature adopted in compliance therewith, this State is committed to the basic principles of uniformity.”
Also, in Huron-Clinton Metropolitan Authority v. Boards of Supervisors of Five Counties (1943), 304 Mich 328, 335, 336, the Court quoted with favor from Exchange Bank of Columbus v. Hines (1853), 3 Ohio St 1:
“ ‘Taxing by a uniform rule requires uniformity, not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation.’ ”
Thus, it is incumbent upon this Court at this late date to endeavor to equalize and make uniform the taxation upon all segments comprising the plaintiff school district.
The record shows that all other taxing units within the school district paid 23.71 mills. However, only 14.94 mills were levied in Presque Isle Township. The 23.71 mills were well within the máximums voted for school purposes and the power to determine the rate within these máximums rests upon the judg ment of the school board. MCLA §§ 340.120, 340-.563 (Stat Ann 1968 Bev §§ 15.3120, 15.3563).
Const 1963, art 9, § 6 provides in part:
“In any school district which extends into two or more counties, property taxes at the highest rate available in the county which contains the greatest part of the area of the district may be imposed and collected for school purposes throughout the district.”
Thus, the rate of taxation was to be determined by plaintiff, Alpena School Board and by the Alpena County Tax Allocation Board. When the Alpena County Tax Allocation Board determined the final millage to be 23.71 this, absent an appeal to the state tax commission, became final. MCLA § 211-.217 (Stat Ann 1970 Cum Supp § 7.77).
MCLA § 211.214a (Stat Ann 1970 Cum Supp § 7.74[1]) provides in part:
“The allocation board of a county in which other than the greatest part of the area of an intercounty school district, including an intermediate school district, is located, shall remain in session to receive such notice. If the notice indicates that a higher rate was approved for such school district by the allocation board of the county in which the greatest part of the school district is located the allocation board of any county which has adopted a lower rate shall' change it to the rate approved by the allocation board of the county in which the greatest part of the area- of the school district is located.”
Thus, it appears obvious that when the Alpena County Tax Allocation Board adopted a final millage of 23.71 mills this figure had to be adopted by the Presque Isle County Tax Allocation Board. The fact that it ultimately adopted a millage rate on September 22 of 24.03 mills is of no consequence as we will consider done what should have lawfully been done. Thus, when this millage figure became final the county board of supervisors were without authority to change it. See School District No. 9, Pittsfield Township, Washtenaw County v. Washtenaw County Board of Supervisors, supra. In so doing we note that had the levy actually been 23.71 it would have been within the 24.03 previously allocated, although erroneously, by the Presque Isle County Tax Allocation Board.
The statutory requirement MCLA §§ 211.211, 211.211a (Stat Ann 1970 Cum Supp §§ 7.71, 7.71[1]), that no local unit of government should receive more than its budgeted amounts refers to the entire budget and not merely to one segment thereof. While there may be some confusion between the statutory sections and the constitutional provisions cited herein, there can be no doubt but what the Constitution shall prevail.
In following the mandate to obtain uniformity in taxation it is necessary to levy a millage of 23.71 mills on Presque Isle Township, that being the same millage levied upon all other segments of the plaintiff school district. To do otherwise would result in a nonuniformity of taxation which is violative of the Constitution and the settled law of this state. Huron-Clinton Metropolitan Authority v. Boards of Supervisors of Five Counties, supra, School District No. 9, Pittsfield Township, Washtenaw County v. Washtenaw County Board of Supervisors, supra.
The trial judge, having found that Presque Isle Township with its new equalized valuation represented 7.6 per cent of the school district, applied that figure to the total budgetary needs of $3,025,214. This amounted to $229,916 or $80,562 less than was actually paid. While this would have been true if the plaintiff and the Alpena County Tax Allocation Board had waited until the new assessment of Presque Isle was completed this is not the position in which we now find this case. While it might have been better if the plaintiff had waited to levy its taxes, it was not illegal for it to do so in July. Thus, to achieve uniformity, to which we are committed, we find that a judgment should be entered in the amount of $87,560 which is the difference between the amount actually collected and that which would have been collected if 23.71 mills had been levied against the final state-equalized valuation of $9,-992,188.
Mandamus is the appropriate remedy, School District No. 9, Pittsfield Township, Washtenaw County v. Washtenaw County Board of Supervisors, supra, and accordingly a writ of mandamus should issue ordering the balance of $87,560 to be spread upon the next tax roll of Presque Isle Township and returned to the plaintiff school district. This amount will be credited to the school district as an amount on hand and will be deducted from its next budget and, therefore, will reduce uniformly the amount to be levied upon all taxpayers in the school district for the subsequent year.
The judgment of dismissal against the county board of supervisors of Presque Isle County is affirmed and we further affirm the dismissal of the complaint of the intervening plaintiff, Huron Cement Division of the National Gypsum Company, because it is not the real party in interest and has no claim against the defendant. There is no allegation that the taxes paid by the intervening plaintiff were paid under protest and the decision herein will grant to the intervening plaintiff the same amount of relief as given to all other taxpayers within the district.
No costs, a public question being involved.
All concurred. | [
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] |
T. M. Burns, P. J.
On January 13,1967, decedent victim Albert Hoffman, being seventy-three years old that day, was brutally beaten to death in an alley near a bus stop in the Van Dyke-Gratiot area.
Two witnesses testified that they saw two men, one of whom they identified as the defendant, attack the old man and drag him into the alley where they robbed him of his change purse. The witnesses further testified that the assailants then rolled the old man over and went through his back pockets. As they went through his pockets, the assailant identified as the defendant was heard to say: “If * * * you move again we’ll kill you,” and “Get his watch and ring.”
The witnesses further testified that they were then observed by the defendant’s co-felon and fearing for their lives, they ran off.
Mr. Hoffman’s body was found a short time later by a 14-year-old boy who, while on his way to a friend’s house, saw a hat and some eyeglasses lying on the sidewalk.
When the police arrived, Mr. Hoffman was dead. They found him lying on his back with extensive readily observable injuries, paramount among which was a crushed skull and jawbone. Although the cause of death was relatively obvious and is not disputed here, an autopsy was performed and a death certificate was signed by Dr. Zawadzki.
The police conducted several show-ups for the two eyewitnesses to the murder between the 16th and 20th of January, 1967. On January 19, 1967, witness, Oscar Kimbrough, identified defendant who was at the time being held on a breaking and entering charge, as one of Mr. Hoffman’s assailants. The witness identified the defendant in part at least by his voice, after he, as well as all the others in the lineup, were required to say the words which the witnesses testified the assailants said.
The other eyewitness, Erwin Tarver, who was not present in the room when Mr. Kimbrough identified the defendant, identified him the next day under the same conditions as witness Kimbrough had identified him.
Defendant was arraigned on January 25, 1967 on the charge of murder in the first degree. MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). Examination was set for the sixth of February, 1967, but was adjourned to and held on March 2, 1967.
The defendant was arraigned again on May 18, 1967 and, after the information was read, stood mute. A notice of alibi was filed on May 29, 1967, and on June 1,1967 the trial was set for September 19,1967.
A jury was sworn on September 19, 1967. At the conclusion of the trial, the jury was unable to agree on a verdict and was discharged. The defendant was then remanded to custody and a new trial date of October 25, 1967 was set.
The trial was held and defendant was found guilty by a jury of murder in the first degree on November 1, 1967. He was sentenced to life imprisonment on the twenty-second of November, 1967.
On appeal, the defendant asserts that it was reversible error for the trial court to admit the medical examiner’s report into evidence because the doctor who signed the report died before the defendant had a chance to cross examine. See Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923). Without going into the merits of defendant’s assertion, we will not reverse the defendant’s conviction upon this basis. We consider that even if the admission of the medical examiner’s report were viewed as error because of the lack of confrontation, it would be harmless error as there is no real dispute as to the cause of death, (i.ethe obviously crushed skull).
In his supplemental brief on appeal, defendant asserts that he was subjected to double jeopardy by the second trial. He also asserts that the lineup, which he was required to participate in while he was in jail on another charge and which was conducted without his being represented by counsel, was in contravention of his constitutional rights.
We do not agree.
Although defendant did not affirmatively assert double jeopardy as a bar to the second trial at its inception, such neglect would not necessarily waive the right if it were violated. See People v. Bower (1966), 3 Mich App 585; see also People v. McPherson (1970), 21 Mich App 385. Here, however, with regard to the asserted violation of US Const, Am 5 provisions against double jeopardy, we note that despite the defendant’s allegation that no satisfac tory reason is given for dismissal of the jury in the first trial without their giving a verdict, the jury in defendant’s first trial was unable to reach agreement. The discharging of a jury and the holding of a new trial does not result in double jeopardy where the jury cannot agree on a verdict. People v. Duncan (1964), 373 Mich 650; In re Weir (1955), 342 Mich 96.
With regard to the defendant’s contentions as concerns the lineups, we must first say that since the lineups in question here were held on January 19th and 20th, 1967, defendant’s reliance on United States v. Wade (June 12, 1967), 388 US 218, (87 S Ct 1926,18 L Ed 2d 1149) and Gilbert v. California (June 12, 1967), 388 US 263, (87 S Ct 1951, 18 L Ed 2d 1178) is misplaced. As these cases require that a defendant be granted the right to counsel at a lineup they were given prospective application only by Stovall v. Denno (1967), 388 US 293, (87 S Ct 1967, 18 L Ed 2d 1199). See also People v. Hutton (1970), 21 Mich App 312.
Under Stovall v. Denno, supra, defendant can direct inquiry only into the “totality of the circumstances to determine whether it was so unfair as to deprive him of a fair trial.” United States, ex rel. Bennett, v. Myers (CA3, 1967), 381 F2d 814.
Thus directed, we turn then to the defendant’s claim that to have required him to participate in a lineup without a warrant having been issued on the charge where he was already in jail on another charge was a violation of his constitutional rights.
This same claim has been presented to at least two other courts both of which have rejected it. People v. Nelson (1968), 40 Ill 2d 146, 238 NE2d 378; Rigney v. Hendrick (CA3, 1965), 355 F2d 710; United States v. Evans (CA3, 1966), 359 F2d 776.
In Rigney v. Hendrick, supra, at pp 711, 712, 713, the court said:
“* * * They contend that their incarceration is solely for the purpose of binding them over for trial on the charges for which they have been indicted. They maintain that compelling them to leave their cells and to participate in a lineup, involving crimes other than those for which they have been indicted, cannot be done absent a valid arrest for those additional crimes. They further assert that their compulsory removal and participation would constitute an arrest without probable cause. * * * These contentions stand or fall on whether an arrest must be made in every case before a suspect, not yet accused of the crime, can be placed in a lineup for the purpose of identification.
“The right of the police to investigate unsolved crimes cannot be denied. * * * The scope of investigative measures used by the police necessarily includes identification of the suspected perpetrator by the victim or witnesses. In most cases this is the most positive method of solution. Indeed, * * * the use of a lineup is not illegal per se and can be a proper police practice. * * * It is clear that a suspect need not be under arrest to be observed. There is no law or decision which says that a man, free or incarcerated, has a constitutional right not to be observed and possibly identified as the perpetrator of a crime even though no formal charges have been made.
* *
“The contention made by the appellants that there first must be an arrest before they are taken from their cells to be placed in a lineup has no merit, for the sole physical attribute of an arrest is the taking into custody. Here, it would be anomalous to require an arrest, for the appellants are already in custody. * * * It is clear that the constitution does not always require that the interests of the police in quickly and efficiently solving crimes yield to every assertion of a violation of due process.” (Citations omitted.)
Relying on the reasoning found in United States v. Evans supra, cert den (1966), 385 US 863, (87 S Ct 120, 17 L Ed 2d 90) and Rigney v. Hendrick, supra, cert den (1966), 384 US 975, (86 S Ct 1868, 16 L Ed 2d 685), we reject the defendant’s assertions of error here. We do not consider that the lineups which resulted in defendant being identified as one of Mr. Hoffman’s murderers was, in view of the totality of the circumstances, so unfair as to deprive him of a fair trial.
Finding no reversible error, we affirm.
Affirmed.
All concurred. | [
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Quinn, J.
December 17, 1968, plaintiff, a guest passenger, filed his complaint in this personal injury action which arose from the alleged gross negligence of defendant’s decedent. December 30, 1968, copies of the complaint and summons were mailed to the Secretary of State, Motor Vehicle Accident Claims Fund, which were received January 2, 1969.
Defendant was personally served with copies of the summons and complaint December 18, 1968. January 3, 1969, copies of the summons and complaint were mailed to defendant by the Department of State. January 8, 1969, defendant advised the Department of State by letter that the Hall estate had no funds or assets and that the action against defendant would not be defended by him. February 17, 1969, plaintiff filed an affidavit of default. Discovery pretrial was twice adjourned at plaintiff’s request due to settlement negotiations between defendant and a representative of the claims fund. The last adjournment was to May 5,1969.
April 10, 1969, the Secretary of State filed his appearance in the action, and on April 11, 1969, he filed an answer to the complaint together with a statement of affirmative defenses and a demand for jury trial. April 14,1969, the Secretary of State moved to set aside the default and noticed it for hearing April 21, 1969. Plaintiff countered with a motion for entry of a default judgment and noticed it for hearing April 21, 1969.
By order filed May 14,1969, the trial judge denied the motion to set aside the default. It is apparent from the transcript of the proceedings on April 21, 1969 and the language of the order filed May 14, 1969 that the trial judge considered the Secretary of State to he a defendant within and subject to the general court rules. The Secretary of State’s motion for rehearing on his motion to set aside default was denied and default judgment was entered June 30, 1969. The Secretary of State appeals.
If the trial judge had followed the provisions of the Motor Vehicle Accident Claims Act, MCLA 1970 Cum Supp § 257.1101 et seq. (Stat Ann 1968 Rev § 9.2801 et seq.) with respect to the Secretary of State, and ignored the provisions of GrCR 1963 as to him, the error about to be delineated would not have occurred. The statute involved is an affirmative act in derogation of the common law and what it directs to be done shall be done according to its terms, Holland v. Eaton (1964), 373 Mich 34.
Section 5 of the act reads:
“The secretary is deemed to be an agent of the owner or operator of every uninsured motor vehicle for service of process in an action in this state arising out of the use or operation in this state of the uninsured motor vehicle. Where such an action is commenced, summons and complaint shall be served on the secretary by certified or registered mail or by leaving a copy thereof with or at the office of the secretary who shall forward a copy of the summons and complaint forthwith by certified mail to the defendant at his last address as recorded with the secretary. In any action to recover damages arising out of the use or operation of an uninsured motor vehicle, failure to serve summons and complaint upon the secretary shall constitute a bar to recovery from the fund. In all actions where summons and complaint have been served upon the secretary, the secretary shall have the right to intervene in the action as a party defendant.”
Service of summons and complaint on the Secretary of State is required to preserve a claim against the fund. Such service does not make the Secretary of State a party to the action. The latter occurs if the Secretary of State decides to intervene in the action. The Secretary of State became a party when he filed his appearance April 10, 1969; the affidavit of default filed February 17, 1969 was ineffective as to him and the motion to set aside the default was unnecessary insofar as the Secretary of State was concerned. We treat it as a nullity as well as the order denying it and all trial proceedings thereafter with respect to the right of the Secretary of State to defend this action. On the present record, the action stands at issue and ready for trial.
This conclusion obviates discussion of the other points raised on appeal.
Reversed and remanded for trial. No costs are allowed.
All concurred. | [
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McGregor, J.
In 1956, George Nawrocki was convicted of uttering and publishing a forged check. In 1967, the Michigan Court of Appeals reversed Nawrocki’s conviction and ordered a new trial. Thereafter, the prosecutor dismissed the charges by entering a nolle prosequi. Nawrocki then brought a civil action against Eberhard Foods, certain of the employees of Eberhard Foods, and the City of Grand Rapids, alleging that he was falsely arrested and imprisoned, resulting in malicious prosecution and denial of his constitutional rights, and other damages incidental thereto.
An examination of the plaintiff’s plight, since his initial arrest for uttering and publishing on February 10, 1956, is in order. Subsequent to his arrest, he was held, allegedly incommunicado, until February 13, 1956, released, and then re-arrested on the same charge on February 15, 1956, arraigned on February 16, 1956, and released on bond. He was convicted on June 14, 1956, and on July 2, 1956, he was placed on two years’ probation.
On October 22, 1957, his probation was revoked and a sentence of 1 to 14 years, commencing as of September 25, 1957, was given to him. After being released on parole, on April 1, 1959, with his parole terminating April 1, 1961, he was arrested on April 5, 1961, for uttering and publishing, and again convicted on August 1, 1961; he was sentenced on August 22, 1961, and his confinement lasted until March 7, 1963. Later paroled, the plaintiff was the subject of another warrant for arrest on May 19, 1963, and convicted on March 26, 1964, and again sentenced to prison. Although there were appeals in these latter two cases, neither gave any relief to the plaintiff. He then filed a complaint for habeas corpus, which was treated as a delayed appeal from his June 14, 1956, conviction, and on November 24, 1967, the conviction was set aside and the case was remanded for new trial. Plaintiff was released from prison on February 16, 1968; on April 17, 1968, an order of nolle prosequi was entered regarding plaintiff’s first conviction.
On May 14, 1968, plaintiff’s complaint was filed, which is the subject of the case at bar. Defendants filed motions for summary judgment and an accelerated judgment; the judge ruled that the statute of limitations on plaintiff’s actions had run and granted the motion for accelerated judgment; hence this appeal.
(GCR 1963, 116, allows a party to demand accelerated judgment based on certain procedural defenses as therein set forth. A challenge that a complaint fails to state a cause of action is raised by summary judgment. GCR 1963,117.)
Plaintiff, in effect, states these claims: false imprisonment and malicious prosecution. The claim >f false imprisonment stems from plaintiff’s arrest and incommunicado interrogation, beginning on February 10,1956, and ending on February 13,1956, when he was released. His claim for this action then arose on February 13,1956, although the proceedings against the plaintiff continued for some time after that. This is in accord with the weight of authority. See 87 ALR2d 1047; also Alexander v. Thompson (CA6, 1912), 195 F 31. The then applicable statute of limitations was PA 1951, No 21, CLS 1956, § 609.13 (Stat Ann § 27.605 [3]), which provided that an action for false imprisonment must be brought within two years; plaintiff’s action clearly was not. Plaintiff has been barred by the statute of limitations.
Plaintiff also asserts a claim of malicious prosecution. Although the motion for summary judgment for failure to state a cause of action was raised in the lower court, it was not passed upon therein. We shall consider it In Belt v. Ritter (1969) 18 Mich App 495, 502, 503, the elements of malicious prosecution were succinctly stated:
“In order to sustain a charge of malicious prosecution, a plaintiff must prove that a criminal prosecution was instituted against him which terminated in his favor, that defendant had no probable cause for the prosecution, and that defendant acted through malicious motives. * * * There must be both the absence of probable cause and the presence of malice. If plaintiff fails to prove either of these elements he will lose his case.”
It is clear that it must be averred in the complaint for malicious prosecution that a criminal action was instituted against the complainant without probable cause. It has been said “there is no doubt manifested in any of the cases as to the absolute necessity of pleading want of probable cause generally in actions for malicious prosecution and actions of a similar nature.” 14 ALR2d 261, 268. The plaintiff’s declaration is wholly deficient, not only in his having failed to aver lack of probable cause, but also in his failing to aver malicious motives on the part of the defendants.
Plaintiff’s cause of action is deficient in a more vital capacity.
“By long established rule in this jurisdiction, a conviction in criminal proceedings is conclusive proof of probable cause, unless procured by false or fraudulent testimony or other unlawful means, and the rule applies, although the judgment of conviction is subsequently reversed by a higher court, and the plaintiff acquitted and discharged. Thick v. Washer (1904), 137 Mich 155; Phillips v. Village of Kalamazoo (1884), 53 Mich 33; Holmes v. Horger (1893), 96 Mich 408; Piechowiak v. Bissell (1943), 305 Mich 486; 3 Restatement of Torts § 667, p 454. Entering a nolle prosequi after conviction in no way alters this rule.” Moore v. Michigan National Bank (1962), 368 Mich 71, 73, 74.
Facts constituting this cause an exception to the rule which would apprise defendants of the nature of the exception were not alleged. We, therefore, find that plaintiff’s conviction shows conclusively the existence of probable cause.
Trial court affirmed. Costs to defendant.
All concurred.
GCR 1963, 820.1. Relief obtainable. The Court of Appeals may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just * * *
(7) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, as the case may require; * * * .
“The rule that a judgment of conviction, although reversed, continues to be conclusive proof of probable cause for the criminal accusation seems to be based on the theory that when the facts on which the accusation is predicated were such as to generate in the mind of a reasonable man, moved by proper motives, a belief in the guilt of the accused, and the inquisitorial and trial juries, upon an ex parte investigation in the first instance and a full hearing under the supervision and direction of the trial judge in the second, has concurred in sueh belief, the inquiry as to the existence of probable cause thereby should be foreclosed, and a further investigation precluded, except for fraud or perjury.” Haddad, v. Chesapeake & O. R. Co. (1916), 77 W Va 710 (88 SE 1038); 34 Am Jur, Malicious Prosecution, § 55, p 737. | [
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] |
Danhop, J.
Plaintiff sued defendants in the Court of Claims on a contract between the parties. Defendants moved for summary judgment on the ground that plaintiff failed to state a claim upon which relief could be granted. GCB. 1963, 117.2(1). Defendants’ motion was based on the records and files and on an affidavit. The parties stipulated as to the facts, and plaintiff concluded its brief on defendants’ motion for summary judgment by requesting the court to grant summary judgment in its favor for $1,461.70, stating accurately that a separate motion therefor was unnecessary under GCB 1963, 117.3. Plaintiff did not file any affidavits in support of its request. The lower court granted defendants’ motion for summary judgment.
On appeal plaintiff argues that the court acted outside the scope, power and policy of GCB 1963, 117.2(1) and 117.2(3), and that there was a substantial question of fact which precluded granting summary judgment under either GCB 1963, 117.2(1) or 117.2(3). Plaintiff’s arguments are without merit. This case presents a classic example of the proper use of summary judgment. The facts were stipulated. Both parties sought summary judgment. Only a question of law was involved, namely, whether on the undisputed facts defendant had breached the contract between the parties.
During oral argument, plaintiff’s attorney argued that 1.04.05 of the Michigan State Highway Department’s 1965 standard specifications for road and bridge construction should apply. However, this was not argued in the brief filed in the Court of Claims, nor in the brief filed in the Court of Appeals. This Court has repeatedly refused to consider issues not presented for determination by the trial court. Haggerty v. MacGregor (1968), 9 Mich App 671, 674; Hileman v. Indreica (1969), 15 Mich App 662, 668 (leave to appeal granted, 383 Mich 751). Also, ordinarily no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved. GCR 1963, 813.1.
Affirmed, costs to defendants.
J. H. Gillis, P. J., concurred.
As amended December 7, 1966, effective March 1, 1967. See 378 Mich lxvi, lxvii. ' •' | [
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] |
R. B. Burns, J.
Defendant was convicted of taking indecent liberties with his eight-year-old daughter in violation of MCLA § 750.336 (Stat Ann 1954 Rev § 28.568). The trial court allowed into evidence, over objection, testimony by the daughter that defendant had taken similar liberties with her person “about ten or five times” prior to the act charged. The basis relied on by the trial court for admitting this testimony into evidence was MCLA §768.27 (Stat Ann 1954 Rev § 28.1050), the statutory exception to the general rule that in a criminal trial evidence of other, distinct offenses is not admissible even though identical to the charged offense. It provides:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on Ms part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
This statute has been held not to apply to the sexual offenses of sodomy, gross indecency, and suggesting to a minor that he submit to an act of sexual intercourse with an adult female, because in these types of cases the question of motive, intent, mistake, or accident, or the existence of a scheme or plan is not involved. See People v. Asfcar (1967), 8 Mich App 95; People v. Dean (1931), 253 Mich 434; People v. Riddle (1948), 322 Mich 199.
People v. Visel (1936), 275 Mich 77, 79 states:
“The major crime of taking indecent and improper liberties is not committed by an intent, short of consummation. The liberties, penalized by the statute, are such ‘as the common sense of society would regard as indecent and improper.’ ”
The defendant’s intention or scheme prior to any touching of his daughter was not material; only his intention at the time of the touching would be determinative of his guilt or innocence of taking indecent liberties with his daughter.
The prosecution charged, and the defense denied, that defendant took an indecent liberty with the person of his daughter. The statutory questions (motive, intent, absence of mistake or accident) were not material to the resolution of the issue of whether the defendant did in fact touch his daughter in the manner she alleged. The evidence was admitted erroneously and the jury was erroneously instructed thereon. It had no probative value and could only have served to prejudice the jury; a new trial must therefore be ordered.
There is another exception based on case law which permits the introduction of evidence of prior similar offenses between defendant and prosecutrix for the limited purpose of showing “opportunity, disposition of the parties, and intimate relations tending to break down self-respect and modesty.” See People v. Donald D. Williams (1965), 2 Mich App 91.
People v. Jenness (1858), 5 Mich 305, is the leading Michigan case to set forth the doctrine. The Court stated on pages 321, 322:
“We think there is much good sense in these decisions, and that a crime consisting of illicit sexual intercourse, like the present, involves different principles in this respect, and should be governed by different rules from those which apply to offenses generally, or perhaps to any other class of offenses. This offense can only be committed by the concurrent act of two persons of opposite sexes; and the assent or concurrence of the one is as essential to the commission of the offense as that of the other; and, as a general rule, both must be guilty, or neither.
“In the case of an indictment against the man for such intercourse * * * , previous familiarities, and the general or habitual submission of the female to his sexual embraces, must, in the nature of things, tend to render it much more probable that the like intercourse took place on the occasion charged — the opportunity being shown. And such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same par ties, when once yielded to, that the constitution of the human mind must he entirely changed before any man’s judgment can resist the force of such an inference to be drawn from previous acts of intercourse between the same persons. See the force of such evidence illustrated in Weatherly v. Weatherly, 29 Eng. L. & Eq. 605. This is not showing the commission of other merely similar offenses, but a repetition of the same offense between the same persons, and in all its criminal features necessarily identical.
“Again, such previous acts necessarily show concert and a common design of both the parties to commit the act charged, and habitually to indulge their criminal desires as opportunity might offer, and making, in some respects, the act of each the act of both.”
This exception to the general rule, except for People v. Place (1924), 226 Mich 212, has allowed such evidence admitted to show concert of action and a common design between the parties and the opportunity to indulge in such acts. People v. Place, supra, reversed the trial court on other grounds and stated that such testimony was admissible in cases of indecent liberties but did not state the purposes of such admission.
Therefore, in such cases it is incumbent upon the prosecutor to show for which of these purposes he seeks to have the evidence admitted, and that this purpose is material and relevant to the case being tried; it is also incumbent upon the trial court to instruct the jury immediately as to the limited nature of the evidence. People v. Askar, supra.
At the new trial the prosecutor must meet his burden of establishing a proper purpose for the admission of this evidence and the probative value of the evidence should be carefully weighed against its prejudicial effect by the trial court.
Reversed and remanded for a new trial. Defendant will be remanded to the custody of the Kent county sheriff to await his new trial.
Levin, J., concurred.
Holbrook, J., concurred in result. | [
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Montgomery, J.
In this case plaintiff brought suit to recover damages for an injury sustained by him on the 15th day of May, 1897, while traveling on foot upon a sidewalk in defendant city, which he claimed was out of repair, and not reasonably safe for public travel, and that his injury was the result of a fall caused by the dangerous condition of said walk, and that the defendant had knowledge that it was not reasonably safe for travel prior to the injury, and for a time that would have enabled it, by the exercise of ordinary diligence, to repair the walk before the date plaintiff was injured. The charter of West Bay City was revised and amended by an act of the legislature approved May 26, 1897 (Act No. 442, Local Acts 1897), and in this revision certain provisions were made, relating to claims against the city for damages sustained through injuries resulting from defective streets and sidewalks by persons traveling thereon, not contained in the charter prior to said revision. Section 1 of chapter 22 of said amended charter, among other things, provides as follows:
“The city shall not be liable in damages sustained therein by any person, either to his person or property, by reason of any defective street, sidewalk, cross-walk, or public highway, or by reason of any obstruction, ice, snow, or other incumbrance upon such street, sidewalk, cross-walk, or public highway, situated in said city, unless such person shall serve or cause to be served, within 60 days after such injury shall have occurred, a notice in writing upon the clerk of said city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold the city liable for such damages as may have been sustained by him. All such facts as heretofore named, relating to personal injuries, shall be set forth in an affidavit made by claimant. Such affidavit shall also state the name of the attending physician, if any, the amount of money, if any, expended for medical attendance, the loss of time and .the value thereof, and shall fully describe the nature and extent of the injury received, and the amount of compensation claimed by reason of such damage or injury. All claims for damages against the city, growing out of negligence or default of said city, or of any officer or employé thereof, shall be presented to the council in the manner above provided within 60 days after such damage has been sustained or injury received, and, in default thereof, shall thereafter be forever barred. ”
Section 20 of chapter 8 of the revised and amended charter, approved on the date specified, is as follows:
“The council shall audit and allow all accounts and claims chargeable against the city; but no account, claim, or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed, or the property delivered, for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment bas been made on account thereof, except as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the.true date^of each. It shall be a sufficient defense in any court to an action or proceeding for the collection of any demand or claim against the city, for personal injuries or otherwise, that it has never been presented to the council for allowance, or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”
The counsel for defendant objected to the introduction of any testimony by plaintiff, and based his objection upon the claim that plaintiff'did not, within 60 days from the time of the injury, or the date when the charter went into effect, present the notice to the council required by section 1 of chapter 22 of said revised charter, and that he -did not present, before the suit was commenced, an ac count to the city, verifie'd by affidavit. The plaintiff offered to show that on the 9th of August, 1897, he caused to be served upon the clerk of West Bay City a claim in writing, in compliance with the city charter in every respect,- setting forth the matters required by said section 1 of chapter 22, and that plaintiff also, after demand made, and on the 15th daj^ of November, 1897, caused to be served upon the clerk of said city a bill of particulars of his claim for damages. The court held that the plaintiff could not maintain his suit, for the reason that he did not file the claim required by section 1 of chapter 22 of the charter within 60 days after the injury, and refused to admit any testimony, and directed a verdict for the defendant. The plaintiff excepted to the ruling of the court and the direction given above, and claims the court’s refusal to permit plaintiff to give evidence in the case, and the direction given to the jury to render a verdict for the defendant, was error.
The questions involved in the case are as follows: Do the provisions of section 1 of chapter 22 of the revised charter, requiring a claim to be filed within 60 days after the injury, apply to plaintiff’s case, in which the injury occurred prior to the time the revised charter was approved’ and took effect ? If necessary to file a claim with the council before the commencement of suit, was the claim filed by the plaintiff with the common council sufficient to meet the requirements of the revised and amended charter ?
The general rule is that a statute is to be construed as having a prospective operation only, unless its terms show clearly a legislative intention that its terms should operate retrospectively. Ludwig v. Stewart, 32 Mich. 27; Harrison v. Metz, 17 Mich. 377; McKisson v. Davenport, 83 Mich. 211 (10 L. R. A. 507); Atherton v. Village of Bancroft, 114 Mich. 241; Cooley, Const. Lim. (6th Ed.) 455. It is significant that the language quoted from section 1, chap. 22, follows provisions of the same section imposing duties upon the city authorities, — provisions plainly prospective. Moreover, the provisions quoted do not, in express terms, apply to cases in which the injury has already been sustained. If the statute had been so construed, the effect would be to cut off one whose claim had accrued 59 days before the law took effect just as effectually as it would this plaintiff. We cannot ascribe to the legislature the purpose of working out so great an injustice, in the absence of clear and unequivocal language. The language here employed does not express such a purpose, as the cases have generally held. It is generally held that an amendment of a statute of limitations, shortening the term within which an action may be brought “after the cause of action shall have accrued,” should be construed as having prospective operation only. See article in 17 Alb. Law J. 183, and cases. The language here employed, “within 60 days after such injury shall have occurred,” is similar.
It is further contended that, uven if the provisions of section 1, chap. 22, do not apply to this case, the plaintiff cannot maintain this action, for the reason that he has failed to comply with the requirements of section 20, chap. 8, above quoted. The point made is that the claim was not accompanied by an affidavit; but we think this section does not require an affidavit to a claim for personal injuries. The facts required to be set up in the affidavit required by this section are not pertinent to such a claim. Furthermore, the clause that “it shall be a sufficient defense ” that the claim was never presented for allowance, “or, if such claim is founded on contract, that the same was presented without the certificate or affidavit aforesaid,” leaves no doubt of the intention to limit the requirement as to the affidavit to contract cases.
The judgment should be reversed, and a new trial ordered.
Hooker, Moore, and Long, JJ., concurred with Montgomery, J. | [
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] |
Long, J.
This action is brought to recover a commission of $30,000, which plaintiff claims was agreed to be paid to him by defendant for plaintiff’s services as a broker in procuring the purchase by the Thayer Lumber Company from defendant of 10,000 acres of pine land situated in Missaukee and Kalkaska counties. Plaintiff’s claim is that in June, 1895, he met Mr. Munroe, superintendent of the Thayer Lumber Company, at Muskegon, and arranged with him to open negotiations with defendant for the purchase of this tract of timber, and in pursuance of which certain correspondence was had with defendant. Defendant would not consent to put these lands into the market, and refused to give an option thereon, but stated in a letter of November 6, 1895, that he would not refuse an offer of $1,500,000. On November 14, 1895, plaintiff called on defendant at his place of business, and as to that interview testified:
“Mr. Canfield said (in speaking of this timber) that he had always intended it should be manufactured at Manistee, and he would prefer to sell it for less money to come to Manistee than to go to Muskegon, or anywhere else. I told him the price which he had always held it at was altogether too high, and these folks would be glad to look at it at a price they thought they could afford to buy it. Mr. Canfield said to me that he had been offered $1,200,000 or $1,225,000,— I am not positive which. I asked him if he would give me an option on it for 30 days at $1,350,000 for the Thayer Lumber Company to look it, or rather for my parties to look it; I guess I did not tell him the Thayer Lumber Company then. He said not; he would not give me an option in writing, but would withhold it from market for 30 days’ time in which the parties could have to go on and estimate it.”
The plaintiff further testified:
“ I asked him about commissions in case I found a purchaser for it, — in case my parties should take it after looking it. He said he had expected to pay a good commission to any one in case it was sold. I asked him what he called a good commission, and he said he thought $25,000 was a good, fair commission. I told him it was not enough for a deal of that kind at any such price. He said we would wait until they got through looking it to see whether they wanted, it or not, and then we probably would have no trouble in agreeing upon a commission. ”
Plaintiff testified that he had another interview with defendant on December 3d, in which he told defendant that his offer of $25,000 commission was not enough, and that he ought to have a commission of $32,500. He says in this interview he told defendant, “ I was getting a small commission from the other side.”
The Thayer Lumber Company completed the examination of the land, and on December 13th Mr. Munroe went with plaintiff to Manistee to see defendant. No arrangement was made in regard to the purchase, and the parties separated. Plaintiff says that on that day, after Mr. Munroe had gone, he again told defendant that he was getting a small commission from the other parties, — from Mr. Munroe. About the 3d of January following this last interview, the defendant was in Grand Rapids, and plaintiff sent for Mr. Munroe to meet him. Before Mr. Munroe came, plaintiff says he had a further talk with defendant about commissions, in which it was agreed between them that he should receive $30,000. At this meeting no arrangement was made for the sale of the land, as the parties could not agree upon the price.
It appears that before the time plaintiff met defendant at Manistee, and at which time he claims to have told defendant he was getting a small commission from Mr. Munroe, he had arranged with Munroe for a commission of $10,000. This agreement Munroe put in writing on December 11, 1895, as follows:
“Dear Sir: Confirming our verbal agreement of on or about the 22d ultimo, and our further conversation at Grand Rapids today, as requested by you, I write to say that if you negotiate with John Canfield the purchase by this company of the Canfield pine lands, so called, in Missaukee and Kalkaska counties, amounting to about 10,000 acres, we are to pay you $10,000, which will be in full of your commission and services and expenses in the matter. Otherwise we are under no obligations to you on account of any services you may have rendered or expenses incurred; it being the understanding that, if we so purchase, we are to get the property for the amount actually going to Mr. Canfield for the same.”
In reference to this agreement plaintiff testified:
“At the time Mr. Munroe said he would give me $10,-000 if I would use my influence to get the timber for them at a price they could afford to buy it at, I said to him that 1 would do what I could, but I did not want that to bar me from any commission from Mr. Canfield; that it would be no price as a commission for a deal of that size, —of that magnitude. He said he did not care anything about how much commission I got from Mr. Canfield as long as he got the timber for the actual price going to Mr. Canfield.”
It appears that after this meeting of the parties in Grand Rapids on January 3, 1896, no further negotiations were had between the parties in reference to purchase and sale of the lands until in December following, when negotiations were opened between defendant and Mr. Munroe, and the lands were purchased from defendant by the Thayer Lumber Company for $1,300,000 some time in January, 1897, the contract being finally made, and first money paid, in February following. Mr. Munroe testified:
“During the fall of 1895 and up to January 3, 1896, when they [ the negotiations ] terminated, Mr. Leathers was acting in my behalf and in my interest. I had an arrangement with him, in case he got a satisfactory price for the timber, and negotiated the trade, we were to pay him a certain sum of money. Before we sent our man onto the lands, I saw Mr. Leathers, and asked him, ‘ What do you want out of this ? ’ * * * and he said in a trade of that kind he ought to have $35,000 from us. I told him if that was his bottom figure we would go no further. * * * He said he could do us a lot of good in a trade of that kind, and wanted to work for our interest alone. * * * We finally agreed that if Mr. Leathers would work solely for our interest, and for no commission from the other side, and we were to have the timber for the net amount that Mr. Canfield sold it for, we would pay him $10,000 in cash, in case he negotiated the sale at a price satisfactory to us. * * * In doing what he did during the fall of 1895, I understood he was acting for me.”
The defendant testified that he made no agreement with Mr. Leathers to pay him a commission, but, on the contrary, stated to him that he would not pay him any commission. He further testified that Mr. Leathers wanted a commission of $40,000, and that he told him he would have nothing to do with the deal, as he was able to make his own sales and handle his own lands as well as any one could do it for him.
The defendant’s claims on the trial were: (1) That he did not employ plaintiff; and (3) that plaintiff was in the employ of the Thayer Lumber Company, and working for and in its interests, and not in the interest of defendant.
Plaintiff’s claim was that he stood in relation to the parties as a broker, acting for both. The court charged the jury upon that question as follows:
“Upon the question of double commissions, — whether a broker may act for both parties to a deal, whether he may be agent for both buyer and seller, — I understand the law to be that the broker cannot act as the agent of both parties where their interests are adverse, without their knowledge and consent. Where the double agency is unknown to either party, the broker cannot recover from both; that is, he cannot enforce the payment of commissions from the party who was ignorant of his being employed by the other,— who was ignorant of the double employment. Where the double agency is known and assented to by both parties, and each agrees to pay the broker a commission, he may recover from both; and where the broker is simply acting as a middleman to bring the parties together, and takes no part whatever in the negotiations between them, he may, to this extent, act as the agent of both parties, and recover commissions from each; and it is immaterial in such case that either party was unaware that he was employed by the other. It is claimed by the plaintiff in this case that that was his relation to this deal, —that he was simply a middleman to bring the parties together, they to make their own contract as to price and terms; while on the part of the defendant it is claimed that he was at least employed to serve the Thayer Lumber Company to a greater extent; that he was to do something more, as it is claimed by the defendant, in behalf of the Thayer Lumber Company; that he was to do everything he could to obtain a purchase for them on as reasonable terms as he could. There is a question of fact over which there is a controversy, and that is for you to determine which is correct.”
The defendant asked the court to charge the jury as follows:
“It appears by the evidence of the plaintiff that, after the time when he claims the agreement was made between him and Mr. Canfield by which he was to be paid a commission by Mr. Canfield, he worked and acted in the business relating to the sale of the lands to the Thayer Lumber Company against Mr. Canfield’s interest, and in the interest of the Thayer Lumber Company. Under the facts as related by the plaintiff, he is not entitled to recover.”
This was refused. This request was based upon the testimony given upon the cross-examination of the plaintiff, and upon certain letters written by him to Mr. Mun-roe. On December 4, 1895, during the time the negotiations were going forward, plaintiff wrote Mr. Munroe:
“I went to Manistee yesterday. * * * I saw Mr. Canfield while there, and told him your men were now looking the land, and that you expected a report from them about the 10th. The 30 days will be up the 14th. Canfield expects to go away about the 18th. I could find out but little from him, further than that there are several parties now figuring on the timber. Dempsey is without doubt the most dangerous competitor, as he wants the timber. Chick found out from Antisdel yesterday that he expected to make a deal with Dempsey, and claims he has a sure thing of a sale; but all we can judge from what he says is, we know he is working hard to sell to Dempsey. I am satisfied that whatever you do about making the deal will have to be done by the 14th, and it seems to me it would be well to have a thorough understanding with your folks down East, so as to save any delay, as I believe Dempsey wants this timber. Antisdel told Chick that Dempsey had raised his bid to $1,200,000.”
Again, on January 4, 1896, he wrote Munroe:
“Mr. Canfield left for Manistee at 4 o’clock. I had several talks with him yesterday and today, and have tried hard to impress upon him that you would buy if the price was reduced to where it should be.”
On January 6th plaintiff wrote Mr. Munroe again, saying:
“I started in to help you get this tract of timber, and no one else, and I don’t want you to think that I shall do anything nor say one word to any one until you decide to drop it, if you do so decide; and I am ready to assist in the matter in your interest, the same as I have thus far.
“P. S. You need have-no fears of Mr. Canfield or any one else knowing through me that you have been East.”
On November 20, 1895, he also wrote Mr. Munroe:
“I saw Canfield here today, and had quite a talk with him. He talks about the same as last week. Says he will wait 30 days from the 14th inst. But I am satisfied from what he says that Dempsey is quite strongly of the notion of buying the tract. This, added to what I heard while at Manistee last week, which I told you about, leads me to believe that there is something in it more than simply talk. I saw O’Brien today, and cautioned him against any favorable talks to Canfield about extending the railroad, and he will be all right. He told me that he talked with Hughart before he went away, and that they had agreed that the rate should simply be enough to cover the cost of construction and hauling. I believe, in order to save time, it is safe for you now to put your men on at once, and look the timber.”
In reference to the building of the Grand Rapids & Indiana Railroad, spoken of in the above letter, the plaintiff testified:
“This tract of land was 23 miles north and east of the Grand Rapids & Indiana Railroad. * * * Mr. Mun-roe and I talked about the timber being brought over the Grand Rapids & Indiana Railroad, and Mr. Canfield talked about it with me in his office. * * * Mr. Canfield talked about the building of his road from Luther to Manistee, and, if the Grand Rapids & Indiana could be got to extend their road into the timber, it would be brought out that way, and he could take it to Manistee.”
Plaintiff further testified as follows:
“Q. You say, in the talk of November 14th with Mr. Canfield, it was discussed that, by the extension of the Grand Rapids & Indiana Railroad up into the timber, the timber could be brought down into Manistee. Did you do anything for Mr. Canfield to aid in the extension of that road to the timber ?
“A. No, sir; I do not know that I did.
“Q. Did you not do something to prevent his obtaining the extension of the road into the timber ?
“A. I had a talk with Mr. Hughart and Mr. O’Brien.
“Q. You had a talk with them for the purpose of preventing the extension, did you not ?
“A. I had a talk with them for the purpose of arranging for the extension in there, at Mr. Munroe’s request.
“Q. Did you not talk with them to dissuade them or prevent them from making an extension of the road that would accommodate Mr, Canfield ?
“A. I don’t know whether I did or not. I think perhaps maybe I may have said to them that Mr. Munroe did not want it known.
“Q. Then you may have done what you could to prevent the Grand Rapids & Indiana Railroad Company from complying with any request that Mr. Canfield might make for the extension of the road to the timber ?
“A. I don’t know whether I did or not, sir.”
On redirect examination plaintiff testified in reference to this matter:
“Q. Counsel has called your attention to an arrangement with the Grand Rapids & Indiana Company, with Messrs. Hughart and O’Brien, with reference to the extension of the Grand Rapids & Indiana road to this timber. What did you do in reference to this matter ?
“A. I saw Mr. Hughart and Mr. O’Brien, to see if the road could be extended to the timber from Lake City for handling this tract of timber, — for bringing it out by rail to Muskegon, or to Big Rapids, rather.
“Q. Did you do anything or say anything to prevent him — Mr. Canfield — having the line extended there than you have already stated ?
“A. No, sir; I did not. Both Mr. Hughart and Mr. O’Brien said that Mr. Canfield had talked with them about extending the line in, but the road was too poor financially to extend it, and,' if it was extended for bring ing out that timber, somebody would have to put up the money; and thereby Mr. Munroe, for his company, arranged with the Grand Rapids & Indiana road to advance certain moneys to extend the line into the timber, and that money was to come back in freights. My recollection is, it was somewhere from $50,000 to $75,000 money that was to be advanced.”
On cross-examination plaintiff was asked further as to what he did for Mr. Canfield:
“ Q. I say, when you went to Mr. Canfield, before he agreed to pay you a commission, you were in a position where it was your duty to bring about a deal, if you could, without any commission from him ?
“A. Well, sir, I was satisfied from the talk with Mr. Canfield that I would have a commission from him when I made the arrangement with Mr. Munroe. * * *
“ Q. After making the agreement with Mr. Canfield, did you do anything to bring Mr. Munroe up in his price that you would not have done if you had had no agreement with Mr. Canfield ?
“A. No, sir; I don’t know that I did.”
Plaintiff further testified:
“ Q. While acting for the Thayer Lumber Company, you wanted to bring Mr. Cánfield down in his price ?
“A. I wanted to bring Mr. Canfield down where a deal could be made. I had talked with Mr. Canfield.
“ Q. And, acting for Mr. Canfield, you wanted to bring the Thayer Lumber Company up in price ?
“A. Yes, perhaps so.
“ Q. So that you were playing each against the other in that way, were you not ?
“A. Yes, sir.”
It is settled in this State that a broker who simply brings the parties together, and has no hand in the negotiations between them, they making their own bargain without his aid or interference, can legally receive compensation from both of them, although each be ignorant of his employment by the other. Ranney v. Donovan, 78 Mich. 318; Montross v. Eddy, 94 Mich. 101 (34 Am. St. Rep. 323). But from the plaintiff’s own testimony that is not the situation here. He first entered the employment of the Thayer Lumber Company, agreed upon a commission to come from that company, and agreed to act in its interest, and did so act during the whole time the negotiations were pending. The parties were not left to make their own bargain without his aid or interference. He was, under the agreement with the Thayer Lumber Company, to negotiate the purchase for it, and testified that during the negotiations he was trying to get Mr. Canfield’s price down; and it is apparent from his letters to Mr. Munroe and from his testimony that in the interest of the Thayer Lumber Company he was active in measures to ward off Mr. Canfield from obtaining an extension of the Grand Rapids & Indiana Railroad to the timber, and in his dealings with Mr. Dempsey. The general rule of agency is that an agent to buy or sell is bound to make the best bargain he can for his principal, and, if he takes any compensation from the other party, it becomes at once the property of his principal, the law not permitting the agent to allege that it was received otherwise than as agent. And generally no agent, in the course of bis agency, — in the matter of his agency, — can be allowed to make any profit without the knowledge and consent of his principal. It is said in Rice v. Davis, 136 Pa. St. 442 (20 Am. St. Rep. 931), that—
‘ ‘ The principle underlying this case, that an agent for the sale of property cannot at the same time act as agent for the purchase thereof, or interest himself therein, and thus entitle himself to compensation from both vendor and vendee, is grounded on the infallible declaration that ‘no man can serve two masters.’ ”
The evidence is undisputed and conclusive that the employment of plaintiff by the Thayer Lumber Company was not that of'a middleman, and that he did not act as a middleman simply, but was employed to negotiate, and did negotiate, in the interest of that company, even as late as January 6, 1896. In his letter to Mr. Munroe he says: “I started in to help- you get this tract of timber, and no one else. * * * I am ready to assist in the matter in your interest, the same as I have thus far.” The testimony of Mr. Munroe, which is undisputed, is: “We were to pay him a commission of $10,000 in cash in case he negotiated the sale at a price satisfactory to us; ” and the written contract made with Munroe provided: ‘ ‘ It being the understanding that, if we so purchase, we are to get the property for the amount actually going to Mr. Canfield for the same.” It cannot be said, under these circumstances, that the plaintiff was a mere middleman.
In the case of Everhart v. Searle, 71 Pa. St. 261, it was said:
“An agent to sell cannot become an agent to buy. * * * ‘ The ground on which this , disqualification rests,’ it was .said in 8 Tomlins’ Brown, 72, ‘is, * * * that he that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords does, out of the mere necessity, work a disqualification.’”
We have seen from the letter of plaintiff of January 4, 1896, to Munroe, that he had “tried hard to impress upon him [ Canfield ] that you [Munroe ] would buy if the price was reduced to where it should be. ” Certainly this was not the act of a disinterested middleman. It was the effort of the agent of the Thayer Lumber Company to get the defendant to state a lower price. It was in keeping with his conduct during the entire negotiations. He was working in the interest of the Thayer Lumber Company.
The request to charge should have been given. < In this view of the case, no other questions need be discussed.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Montgomery, J.
Plaintiff recovered a verdict in an action for damages sustained in a collision. The collision occurred at the crossing of the defendant’s road at Third street, in the city of Monroe. Plaintiff was engaged in hauling gravel; had drawn one load, and unloaded it, and was going back after another. He had a team that weighed about 2,700 pounds, and a new, heavy wagon. The train with which the collision occurred was a passenger train, and was substantially on time. The plaintiff testified that, when he looked at his watch, he thought the train must have gone west. Hubble street is one block from the railroad crossing, and plaintiff testified that, before reaching Hubble street, he brought his team down to a walk; that he looked out for a train, but did not see any. There were some obstructions in the way of a clear view, but at a point 81 feet from the crossing he could have seen a distance of 275 feet, and at a point 46 feet from the crossing he had an unobstructed view for 672 feet. The plaintiff testified that, when he was 55 feet from the track, the team became frightened, and that at this point he saw the engine and train coming; that, as soon as he saw it, he' pulled back on the horses, and hallooed, “Whoa;” that he braced his feet against the end boards, but did not get a new hold of his reins; that both horses jumped on the track at the same time, and were running away before they had got over the track. He testified, further, that, in approaching the track, the team just went as they were a mind to, — took their own gait; that the way that he had the lines did not affect their speed one way or the other; just held a common line on them; that, if he wanted to stop them, he would have had a stronger hold than he did have; that he did not have a chance to do this; that he was leaning back, and pulling. He further testified on cross-examination that there would have been nothing to prevent his turning around when he got up as far as the sign, “Railroad Crossing.” There was some testimony tending to show that the train was coming at a rate of speed somewhat in excess of that provided by an ordinance of the city, and also some testimony to show that the signals were not given.
Assuming the defendant to have been negligent in the particulars named, this negligence did not relieve the plaintiff from the exercise of due care in approaching the crossing. He was still bound to use his senses to avoid a collision with the train. The plaintiff’s own testimony shows that, at a point 55 feet from the crossing, he discovered the train approaching, and that he had a gentle team. It is not shown, nor is it to be assumed, that the plaintiff would have stopped short of this point if he had known of the approaching train earlier. On the contrary, it is common experience that a driver of a safe team approaches much closer to an approaching train in safety. Where, then, is the causal connection between the speed of the train and the injury ? It cannot be said that the unusual speed of the train caused the fright of the horses, or that, if running within the prescribed rate of speed, the fright would not have occurred. It was the fact of the train at this point which occasioned the fright, and not the rate of speed at which the train had been running to reach the point. The plaintiff discovered the train in ample time to protect himself, whatever may have been its speed. An unlooked-for accident, viz., the fright of the horses, resulted in injury. A liability does not attach to every act of negligence; a liability attaches only when the injury results from the negligence. Houston, etc., R. Co. v. Wilson, 60 Tex. 142. And recovery for an omission to give proper signals cannot be had in any case where the traveler approaching the crossing has, by any means, timely notice of the approach of the train. State v. Railroad Co., 69 Md. 339; Chicago, etc., R. Co. v. Houston, 95 U. S. 697; Pakalinsky v. Railroad Co., 82 N. Y. 424; 3 Elliott, R. R. § 1158.
The collision cannot justly be said to have resulted from the speed of the train. If plaintiff had attempted to cross after discovering the train, there would have been some plausibility in claiming that the extraordinary speed caused the injury, although the rule is pretty well settled that one cannot balance the probabilities in such a sitúa tion, and, taking the chance of collision, drive in front of an approaching train. Haas v. Railroad Co., 47 Mich. 401. But in this case the plaintiff’s contention is that he made no attempt to cross. When he was 55 feet from the track, his horses took fright at the train, and “kept jumping ahead faster and faster, until they reached the track.” Would the horses have been less likely to take fright if the bell had been sounding? Would they have been less likely to take fright if the train had been going at less than six miles an hour, instead of running at a rate slightly in excess of that? Very clearly not. The alleged negligence of the company in failing to ring the bell and in excessive speed, if shown, did not cause the injury, but the injury was caused by the fright of the horses at an approaching train of cars, which it was plaintiff’s duty to consider as at least a possibility; for the authorities are substantially agreed that one approaching a crossing may not neglect attention to the track, relying upon hearing signals of approaching trains, but must be alert.
Whether the plaintiff had proper control of the team is at least a doubtful question on this record, but, assuming he was not in fault in this respect, the negligence imputed to defendant was not the cause of the collision. It follows that the request of defendant to instruct a verdict should-have been given.
Judgment reversed, and no new trial ordered.
The other Justices concurred. | [
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] |
Hooker, J.
The plaintiff was a section man upon the defendant’s railroad. He was injured by being thrown from a hand-car, through the breaking of the iron handle or arm by which the car was propelled. This iron handle or arm was cracked, and there was evidence that the crack was an old one. The negligence relied upon was the. alleged failure to keep the hand-car in repair. This raised the question of inspection, and the defendant offered evidence tending to show that it provided an inspector, whose duty it was to inspect the car monthly, and'that such duty was performed; also, that the section foreman was required to examine the car each morning, before using it, and to include in a weekly report of his work a statement as to whether the car had been examined daily, and its condition at the time of making the report, and that this duty had been performed by the section foreman. On the part of the plaintiff there was testimony tending to show that the inspector did not make a careful examination, and that he relied on the statement of the foreman that it was all right, drawn out by an inquiry made by the inspector, instead of examining the car himself. We are of the opinion that this raised a question of fact for the jury.
Error is assigned upon the admission of testimony upon rebuttal tending to show that the section foreman did not examine the car each morning; it being contended that he was a fellow servant, and it was therefore immaterial. The defendant brought this subject into the case. If, as it claims,- — and perhaps rightly, — -the examination required of the foreman was not that inspection required by the master to secure the maintenance of the car in good condition, but merely a precaution taken to prevent accident caused by defects arising suddenly, as suggested in the case of McDonald v. Railroad Co., 108 Mich. 7, we fail to see why the defendant introduced the subject, if counsel were prepared to admit that the break was old, as seems to be conceded here. But an examination of the record leads us to believe that upon the trial the defendant’s counsel contended that the car was in a reasonably safe condition; and the testimony of Jacobs, that, according to requirement, he examined it that morning, and every morning, and found it so, would be competent and important testimony. It would, however, be subject to contradiction. There was therefore no error in admitting this testimony.
There are many assignments of error in the case, but we think it unnecessary to allude to others, further than to say that they have received consideration, and we find no error in them.
The judgment is affirmed.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). It was error to admit the testimony of the witness Wells. Contracts cannot be established by statements of an agent made years afterwards. Such statements do not bind the principal. If Bush had been living, and a witness for the de fendant, this testimony, upon laying the proper foundation, wquld have been admissible as impeaching. “The admission or declaration of an agent binds his principal only when it is made during the continuance of the agency, in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all.” 1 Greenl. Ev. § 113. “The representation, declaration, or admission of the agent does not bind the principal if it is not made at the very time of the contract.” Story, Ag. § 135; Haven v. Brown, 7 Me. 421 (22 Am. Dec. 208); 1 Am. & Eng. Enc. Law (2d Ed.), 1143.
This was an unusual contract, and not such as individuals or corporations are in the habit of making. A division superintendent of a railroad is not a general agent who is, by virtue of his agency, authorized to perform every act, or make every contract, which his principal might do. To settle claims and make life contracts is not within the ordinary power of such an agent. It was, therefore, incumbent upon the plaintiff to show either original authority to make the contract or ratification by the company. Plaintiff showed no original authority in Bush either to settle a claim for damages or to employ the plaintiff for life. Certainly a division superintendent, who is subject to the supervision of the general superintendent, and of the president and directors of the company, is not clothed, by virtue of his agency, with any greater authority than is the cashier of a bank or other corporation. In Delta Lumber Co. v. Williams, 73 Mich. 86, it was held that “compromising claims, settling unliquidated damages, and releasing debts due to the corporation, are acts which do not come within the ordinary duties of a cashier. ” In making such an extraordinary contract, plaintiff knew that he was dealing with a subordinate agent of the company, and was hound to inquire into and ascertain his authority, not from the agent with whom he dealt, but from the principal with which he was dealing. In Brighton v. Railway Co., 103 Mich. 420, plaintiff’s claim was based upon a written contract for the payment of money in settlement of his damages, and for permanent employment. Money could not well have been paid from the treasury of the company without the authority of the company itself. There was, therefore, evidence both of original authority and of ratification, and in a conflict of evidence the question was properly submitted to the jury. In this case there was no money to be paid, and nothing to indicate that the company was informed that plaintiff was employed in any other than the ordinary manner. The evidence on the part of the defendant showed that Bush had no authority to settle claims, or to employ men for life. Plaintiff introduced no evidence to the contrary. It was, therefore, error to submit the question of authority or of ratification to the jury. Randall v. Railway Co., 113 Mich. 115 (38 L. R. A. 666); Hartigan v. Railroad Co., 113 Mich. 122. If plaintiff relied upon ratification, it was his duty to establish the fact that defendant had knowledge of the alleged contract with Bush, and acted upon it. 1 Am. & Eng. Enc. Law (2d Ed.), 1189. The record is barren of any evidence to prove' such knowdedge. The mere fact that plaintiff was employed for the company to perform services which he was capable of rendering is not evidence either to sustain the alleged contract or of ratification.
It is unnecessary to discuss the other question raised. Under this record the court should have directed a verdict for the defendant.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). Plaintiff was guilty of contributory negligence, under her own testimony. She had lived -for 15 years a short distance south of this crossing, and crossed it many times, and was entirely familiar with the situation. She was partially deaf in her left ear, which was towards the east, the direction from which the train was approaching. In a written statement, made a few weeks after the accident, she said that she was entirely deaf in that ear. When plaintiff reached a point near Mr. Ukle’s house, she heard a train at the east which she supposed was on the Ann Arbor road. She knew that a freight train on the de fendant’s road was due sometime before she reached the crossing. She thought it had gone, but in fact it was behind time., She testified that she slowed the speed of her horse, but did not stop to listen; that she looked through an opening three or four inches wide between the top of the curtain and the covering above; that she leaned forward and looked, and that she listened. She thought there must have been some small trees or something growing on defendant’s right of way beside the fence, because she could not see the track.
Plaintiff had no means of determining whether the train she heard was on the defendant’s road or the Ann Arbor road. Aside from the fact that a railroad crossing is of itself warning of danger, she was further warned by the noise of a train which might be, and in fact was, on the defendant’s road. Travelers upon a highway are charged with notice that trains are liable to pass at any time, and the law requires them to exercise the same degree of care at all times. If it were a fact that trees or bushes obstructed her view, it was her clear duty to stop and listen. It is evident, from her own statement, that she could have heard the train had she done so. On her redirect examination, she testified: “I think I heard the train at the jdnction start out.” In her statement above referred to she said: “When I first heard'the train I thought it was on the Toledo & Ann Arbor road, and the next thing I heard was the feai’ful whistle of the engine.” She also said in that statement: “I did not stop to listen or look to see where the train was.” She admits that she made the statement, that it was read to her, and that she signed it. There is no evidence of any unfairness in procuring it, or that she was not mentally competent to make and understand it. The only explanation she gives is: “I was very sick, and did not place my mind on it.” She denies no part of it, except to say: “I don’t think I used the language, ‘ I didn’t stop to listen or look to see where the train'was.’ I have no recollection of giving him any such statement.” The conclusion is irresistible that, had she stopped and listened, the accident would have been ■avoided.
It is also conclusively established by the evidence that there was no obstruction to her vision from the time she passed Mr. Ukle’s house until she reached the track, and that during that entire distance she could have seen the train from the time it started from Pittsfield Junction. Mr. Walker, who lived in the first house south of the track, was working in a field to the north. He came out into the road with his team about 30 rods north of the track, and saw Mrs. Bond coming 10 or 15 rods behind him. He heard the customary crossing signals, and saw the train. Said he could not help seeing it after passing to the south of Mr. Ukle’s house. “From there on to the railroad there was nothing to prevent my seeing it.” He testified that plaintiff was sitting on the right side of the "buggy, with the curtains up. Other witnesses equally positive corroborate Mr. Walker as to the absence of obstructions to the vision, and there is no testimony to the •contrary except the statement of Mrs. Bond. Upon this point her testimony is as follows:
“(On direct examination.)
“ Q. How close to the right of way fence, or Mr. Ukle’s land, are there any bushes or shrubbery, or anything of that kind ?
“A. I think there must have been some. I was not very particular to notice, but I know I could not see through.
“ Q. State whether or not, when driving along, you tried to look down towards the station.
“A. I tried to.
‘ ‘ Q. State whether or not there were any small trees or anything growing on defendant’s right of way inside the fence.
“A. I think there was.
“ Q. Why do you say that ?
“A. Because I could not see the track.
“(On cross-examination.)
“ Q. Then you could see down the track ?
“A. I could not see much until I got on the track. I could not see any train until I got on the track. Could not tell how far down the track I could see. Could not see to the depot.
“ Q. What was in the way ?
“A. Because I was looking; I could not see.
“ Q. Was there anything in the way between there and the depot?
“ A. There were things growing beside the road — right of way, — -I think, inside the right of way.
“Q. What was growing there ?
“A. I think there were trees and shrubs there, so that I could not see. Did not see anything until the horse was on the track. * * * I don’t know as I looked all the while. I looked until I thought there was no train on the road.”
We think it is clear that there is no such conflict in this testimony as to justify its submission to the jury.
Many allegations of negligence were made in the declaration, but upon the trial all were eliminated except the failure to blow the whistle and ring the bell. Upon this point there was no real conflict in the evidence. The engineer, fireman, one brakeman, the conductor, and Mr. Walker swear positively that the whistle signals were given. The engineer, fireman, and brakeman swear positively that the bell was rung. There is nothing to impeach or weaken this testimony. The only testimony claimed to contradict it is that of the plaintiff herself, and a boy, then 10 years old, as to the whistle, and herself alone as to the ringing of the bell. Plaintiff testified that she “heard no whistle or bell or anything.” It is true she testified that she was listening, but it was with at least partial deafness in one ear, with her horse and carriage moving, herself sitting in the carriage, closed on both sides and the back, and the train approaching from the northeast and behind her. She testified on cross-examination :
“Q. What was it you heard when you heard the train?
“A. I heard the noise it makes when it starts from the station, — the whistle. I don’t know what you call it, but the noise it makes when it starts up, — a sharp tooting from the engine.”
She further testified: “I could not tell whether the bell was rung or not.”
She thus described the usual whistles for the crossing. It is not customary to blow a whistle when starting from a station. The only testimony upon this point was brought out by the cross-examination of the engineer and fireman. The engineer testified:
“I do not recollect whether I sounded the whistle when I left the station. Do not make a practice of it. We ring the bell when we start, and do not use the whistle. That is my invariable practice. Do not think I whistled on this occasion. Did not whistle at all until I whistled for the highway crossing.”
The fireman testified that the engineer did not whistle on starting from the junction, and that it is not customary to do so.
When the train started from the junction, the engine stood 15 or 16 car lengths west of the station house. It will thus be seen that there was a very short distance to go before giving the crossing whistle. It was a freight train, and would therefore move slowly at first. It is very evident that the whistle she heard was that for the crossing. ■ '
The boy Ukle was at the station house when the train started, and walked after it down the track. He testified that he did not hear the whistle, but “could not tell whether it did whistle or not. I was not paying any attention to know whether it whistled or not.” This was not sufficient contradiction of the testimony of the defendant to justify its submission to the jury. Shufelt v. Railroad Co., 96 Mich. 327, and authorities there cited; Urias v. Railroad Co., 152 Pa. St. 326; Bohan v. Railway Co., 61 Wis. 391. Many other cases might be cited holding the same rule.
Judgment reversed, and new trial ordered.
The other Justices concurred, | [
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] |
Long, J.
This suit was brought to enforce the liability of the defendant James Grant as principal, and the other defendants as sureties, on a bond taken by the city of Detroit under 3 How. Stat. § 8411a. The declaration alleges that defendant James Grant entered into a- contract with the city of Detroit for paving, and that the bond was taken to secure the payment by the contractor for labor and material furnished in such work. The bond was in the penal sum of $1,664, and is conditioned that if the principal “shall well and truly pay, as the same may become due and payable, all indebtedness which may become due to any person, firm, or corporation on account of any labor performed or material furnished in the construction * * * of such * * * improvement, then this obligation shall be void.” -The declaration further avers the furnishing of a quantity of stone by Holmes & Strachan, and that the same was received by James Grant, and actually used in the work, and that defendants thereupon, became liable to pay the price thereof. The defendants pleaded the general issue, and gave notice of payment and recoupment. A bill of particulars was demanded of plaintiffs, and furnished by them, claiming $1,588.88, with payments indorsed thereon of $710.45, leaving a balance due of $878.43, exclusive of interest. Notice of inquest was given under Circuit Court Rule 14. On April 12, 1898, being the seventh day of the term, the case was called and inquest taken under the rule. Judgment was entered on that date, but the judgment was afterwards set aside by the court, and a new judgment entered nunc pro time as of April 12, 1898, for $897.43. This judgment, in form, recites the calling and impaneling of a jury. It also recites that “the parties being in court by their respective attorneys, and the cause coming on for trial on inquest as aforesaid, no express objection being made thereto, and from that the court did not understand that there was any objection, it being understood, however, that defendants’ counsel consented to nothing, and no affidavit of merits having been filed and served under the rules and practice of this court, and no defense being offered or interposed, thereupon came a jury trial, to wit,” etc. Defendants’ counsel caused a writ of error to issue from this court, and assigns as error the taking of the inquest, instead of a trial being had as provided by the general practice of the court. It is alleged that Rule 14 has no application to such cases.
Rule 14 provides:
“ (a) The plaintiff in any action on money bonds, promissory notes, or bills of exchange, at issue as well as at default, may have the same called out of its order on the calendar, and an inquest taken and judgment rendered thereon, on any day of the term after the first, in all cases where parties are sued in their individual capacity, unless the defendant or his attorney shall, before the first day of the term, have filed an affidavit of merits, and served a copy thereof on plaintiff’s attorney: Provided, the intention of the plaintiff to take an inquest under the rule be expressed in the notice of trial.
“(b) The plaintiff in any action on an open account may have the same called out of its order on the calendar, and judgment rendered thereon, on any day of the term' after the first, unless the defendant or his attorney shall, before the first day of the term, have filed an affidavit of merits, and served a copy thereof on plaintiff’s attorney: Provided, the intention of the plaintiff to take such course under the rule be expressed in the notice of trial, and the same be accompanied. by the affidavit of the plaintiff, his agent or attorney, showing the amount of the indebtedness over and above all legal set-offs, and that he has good reason to believe, and does believe, that the defendant has no defense to the plaintiff’s action, and that he believes the plea is interposed for the sole purpose of delay: and Provided further, that a bill of particulars of plaintiff’s demand, containing the debit and credit items of the account, accompany the notice of trial and inquest, unless the same shall have been previously filed and served.”
The notice of inquest is returned in the record, together with the affidavit of Frank B. Holmes, one of the plaintiffs, in substantial compliance with Rule 14, stating the amount of the account over and above all legal set-offs. The bill of particulars containing the debit and credit items of the account had before this been filed in the case and served upon defendants’ counsel.
We are not called upon to determine whether the present case could have been noticed for inquest under Rule 14. The judgment entry shows that the parties were in court by their respective attorneys, and the cause came on for trial on inquest, and no express objection was made thereto, and the court did not understand that any objection to an inquest was made. No affidavit of merits was filed or served, and no defense was offered or interposed.
The question is presented whether counsel can sit by during the progress of a trial, interpose no objection, raise no question to be passed upon by the trial court, and after-wards come into this court and assign errors upon the proceedings to which he* made no objection. Such practice is not to be commended. In Rayl v. Hammond's Estate, 95 Mich. 22, it was said: “It is the duty of counsel to present their propositions of law, and of the court to specifically pass upon them, or such of them as he deems to be decisive of the case.” If the case was one in which an inquest could not properly be taken, and the attention of the court had been properly called to the fact, undoubtedly the court would have compelled the proceedings to be taken under the usual practice, and defendants permitted to interpose their defense upon the merits. Fairness to the court and counsel demanded this course. If the record had not shown that counsel for defendants was present at the trial, we should feel called upon to pass upon the question whether the case was one proper for an inquest; but, as the record now stands, we are not inclined to do so.
The judgment must be affirmed.
The other Justices concurred. | [
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Lesinski, C. J.
The instant suit was brought to recover for injuries suffered by Kenneth McCarty, a minor, in a pedestrian-automobile accident. At the close of plaintiff’s proofs below, the defendants moved for and were granted a directed verdict. Plaintiff moved to have the directed verdict set aside and appeals following the denial of that motion.
In reviewing the record we follow the well-settled rule that on a defendant’s motion for a directed verdict the facts must be viewed most favorably for the plaintiff. All inconsistencies and factual questions are resolved against the moving party. Birkhill v. Todd (1969), 20 Mich App 356; Pollock v. Farmers Mutual Fire Insurance Company (1957), 349 Mich 12.
The scene of the accident was Alfred Street, just north of the Flint city limits. The street is a north-south, two lane, paved road with no sidewalks on either side. The shoulders of the road are approximately 6 feet wide on both sides and the paved portion is 20 feet wide. There were no parked cars or other visual obstructions on either side of the street. The area is residential and the speed limit is 25 miles per hour. The record does not indicate that any unusual weather or lighting conditions existed at the time of the accident, which occurred in the late afternoon.
At trial three witnesses were produced to testify regarding the facts relevant to the accident. Defendant George Fechik testified that he was driving north on Alfred Street and observed Kenneth skipping southbound on the east shoulder of the road. Fechik stated that he felt the boy “might do something not right” and slowed down to about 10 to 15 miles per hour, until he was about 50 feet south of where Kenneth was on the shoulder.
At the same time defendant Marion Lewellyn, who also testified at trial, was driving southbound on Alfred Street at approximately 20 to 25' miles per hour. Lewellyn testified that he had seen the hoy as he approached the scene and that he saw Kenneth start running across the street.
At the point where Fechik was about 50 feet south and Lewellyn about 50 feet north of the boy, Kenneth suddenly darted in a southwestern direction across the roadway. The testimony establishes that Kenneth had been watching Fechik’s car and ran into the street without taking his eyes off the car. He did not look to see if there was traffic in the southbound lane.
Fechik immediately came to a complete stop and did not hit the boy. Kenneth, thus, safely crossed the northbound lane, but as he continued into the southbound lane he struck the left front of Lewellyn’s car. Defendant Fechik denies that Kenneth, hit his car on the rebound and the record is devoid of evidence tending to rebut the denial.
Kenneth McCarty’s father testified that his son, who was seven years and seven months old at the time of the accident, had attended school for about two and one half years and had taken the same route home from school every day. He also stated that he cautioned the boy every day to stop and look before crossing the street and that his son was to cross only at cross-walks and not in the middle of the block.
The trial court held that Kenneth McCarty was contributorily negligent as a matter of law.
The sole issue raised on appeal is whether sufficient factual questions were presented below to require submission of the case to a jury for determination.
Where both negligence and contributory negligence are alleged, the nature of the inquiry is necessarily twofold. As noted in Rockwell v. Grand T. W. R. Co. (1931), 253 Mich 144, 151, “contribu tory negligence necessarily implies negligence on the part of the defendant”. See, also, Warwick v. Blackney (1935), 272 Mich 231. Thus, if the facts would not support a finding of negligence, any discussion of possible contributory negligence is irrelevant. Moreover, where, as here, the injured party is a minor and where his age, intelligence and experience may preclude a finding of contributory negligence, it must he kept in mind that the possible nonexistence of contributory negligence on the part of the plaintiff in no way implies the existence of negligence on the part of defendant.
Plaintiff argues on appeal that a jury question was presented regarding defendant Feehik’s alleged negligence. First, it is argued that although Fechik had come to a stop in time to avoid hitting Kenneth as he ran by, the jury may have found that the boy hit Fechik’s car on the rebound, which in turn plaintiff argues “clearly presents a factual question of whether Fechik was negligent by not stopping or swerving quick enough to prevent his car from being in a position where the hoy would rebound into it”. Second, it is argued that Fechik was negligent in not sounding his horn in light of MCLA § 257.706 (Stat Ann 1968 Rev § 9.2406), which requires a driver to sound his horn “when reasonably necessary to insure safe operation” of his motor vehicle.
Neither argument is meritorious. Regarding the first point, there is no evidence in the record supporting the position that Kenneth hit Fechik’s car on the rebound. Moreover, even, assuming arguendo that there was contact, it raises no question for the jury. Plaintiff’s argument assumes that Fechik had the duty not only to try and stop his car so as to avoid hitting Kenneth, hut that Fechik was also required to stop in a specific location, far enough, from the accident so that Kenneth would not hit the car on the rebound. To do so Fechik would have had to predict the direction and distance of a possible rebound. Such a duty is unreasonable and goes far beyond the legal requirement that men act prudently.
Fechik’s failure to use his horn also raises no question of fact for a jury. Kenneth was fully aware of the existence and exact location of Fechik’s car.
Defendant Fechik’s actions were entirely reasonable, if not commendable. The direction of the verdict in his favor was eminently correct and is, therefore, affirmed.
Viewing the facts most favorably to plaintiff, we come to the opposite conclusion with respect to defendant Lewellyn. The jury may have found that Lewellyn saw, Kenneth start running across the street at such an angle, as to be looking away from defendant’s position. He observed the boy when they were still 50 feet apart. Although Lewellyn testified that he sounded his horn, the jury might have found that he did not and that his failure to do so constituted a negligent failure to give warning. As the Court noted in Ackerman v. Advance Petroleum Transport, Inc. (1942), 304 Mich 96, 104:
“It is plain that the driver swerved his truck to the left because he recognized the imminent danger of an accident. However, he neglected to sound his horn to attract the boy’s attention and to warn him of the danger. The driver testified, ‘I claim I reached for the horn, I don’t remember if I reached it or not as I turned to the left.’ This statement shows that he realized the danger but failed to give warning.”
Moreover, the testimony could support a finding that Lewellyn traveled 35 feet after hitting Ken neth, thus making a total of 85 feet from the point Lewellyn first saw Kenneth start running until he finally stopped his car. A jury may have concluded that this was an unreasonable distance.
As in Ackerman, supra, at 105:
“Having concluded that there was a question of fact for jury determination as to the negligence of defendant driver, the next question is whether or not plaintiff’s decedent was guilty of contributory negligence as a matter of law.”
That question is extremely close in the instant case.
A number of Michigan cases have been addressed to the problem of the contributory negligence of a minor. The general rule as reiterated in Ackerman, supra, at p 107, is that up to the age of seven years old, the law imputes the lack of capacity. After seven years of age, “It is the intelligence of the boy, not his age, that must control.” See, also, Clemens v. City of Sault Ste. Marie (1939), 289 Mich 254, 257.
The Court in Ackerman held plaintiff’s decedent to be guilty of contributory negligence as a matter of law. While there are several factual similarities between Ackerman and the instant case, one major distinction exists which causes us to believe a jury question was presented.
In Ackerman plaintiff’s decedent entered the street without observing traffic conditions. Here, however, Kenneth had been watching the Fechik car as it approached. He did not start to cross the street until Fechik slowed down. Under the circumstances reasonable minds might conclude that a person of the age, intelligence and experience of Kenneth might have interpreted Fechik’s slowing down as an invitation to cross without further investigation and that such a person might attempt to cross without being guilty of contributory negligence.
That Kenneth may have so interpreted Fechik’s slowing down and that Kenneth’s actions may have been reasonable in light of his age, intelligence and experience, in no way implies that Fechik was negligent in slowing down. Rather, it means only that Kenneth made an erroneous judgment permitted by the standard of reasonableness which the law applies to minors.
We therefore remand for a new trial as to defendant Lewellyn. The jury will he instructed on remand that it shall consider Kenneth’s age, intelligence, and experience and determine whether he conducted himself as a child with like characteristics would reasonably have been expected to under like circumstances. Burhans v. Witbeck (1965), 375 Mich 253, 256.
Remanded for actions not inconsistent with this opinion. We do not retain jurisdiction. Costs to defendant Fechik. Costs to plaintiffs from the remaining defendants.
All concurred. | [
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Montgomery, J.
This is an action of ejectment. Plaintiffs rely on a deed from the auditor general. The land was sold after the decree for the taxes of 1893. De fendants, who held the original government title, offered testimony tending to show that defendant Hiram D. Wood called at the office of the township treasurer, and was told by him, after examination, that no taxes were^ assessed on the premises in question. The circuit judge charged the jury that, if this fact was established', defendants were entitled to a verdict. The jury so found, and the plaintiffs bring error.
It is not shown that any steps had been taken to have the deed to plaintiffs canceled. We think the court was in error in admitting this defense. Section 70 of the tax law (Act No. 206, Pub. Acts 1893) provides that: “No sale shall be set aside after confirmation, except in cases where the taxes were paid,' or the property was exempt from taxation. In such casés the owner of such lands .may move the court at any time within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just.” Section 98 provides that if the auditor general shall discover, before a conveyance off said land is executed, either that the lands were not subject to taxation, or that the taxes had been paid to the proper officer before sale, or that a certificate that no taxes were charged against the land has been given to the owner, he shall withhold a conveyance, and that, if such a discovery be made after conveyance, a certificate of error shall be given. In Wood v. Bigelow, 115 Mich. 123, we held these two remedies to be concurrent. The question presented here is whether the original owner,, without resorting to either, may defeat the title of the purchaser under a tax decree by showing on the trial of an action of ejectment that the tax has been paid, or, what is perhaps equivalent, that the owner has attempted to make payment, and that such attempt has proved unavailing through the fault of the officer whose duty it was to receive it. We think not. It is no hardship to require the owner to pursue one of the prescribed remedies before he shall be permitted to attack the decree.
Under section 98 no limit of time is fixed within which the auditor general may act. It becomes important to determine whether the facts shown by the defendants are such as to entitle them to have a certificate of error on a proper application, as, if such course is attempted, the question of the jurisdiction of the auditor general to act will necessarily arise upon another trial of this case, if one be found necessary. We think the provisions of this section should receive a liberal construction, to the end that a taxpayer justly entitled to relief may not be cut off from all remedy. Hand v. Auditor General, 112 Mich. 597. It is held in numerous cases that, if a landowner in good faith applies to the proper officer for the purpose of paying his taxes, and is prevented by the mistake, wrong, or fault of the officer, such attempt to pay is equivalent to payment. Breisch v. Coxe, 81 Pa. St. 336; Gould v. Sullivan, 84 Wis. 659 (20 L. R. A. 487, 36 Am. St. Rep. 955); Edwards v. Upham, 93 Wis. 455; Loomis v. Pingree, 43 Me. 299; Forrest v. Henry, 33 Minn. 434; Kinsworthy v. Austin, 23 Ark. 375. As there is no' provision as to how the fact of payment shall be made to appear, it must be held that the auditor general may satisfy himself of the fact of payment (or, as in this case, attempt to pay rendered unavailing through the fault of the officer) by any competent proof, subject to review by the courts in a proper proceeding.
For the error pointed out, the judgment is reversed, with costs.
The other Justices concurred. | [
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Per Curiam.
The relator obtained a judgment against the city of Ludington. He presented a demand to the common council for the payment of the judgment out of the funds then in the treasury. The return of the respondents shows that the moneys then on hand were raised and required for other purposes than the payment of judgments against the municipality. The proper course for the relator is to proceed under the statute requiring judgments so recovered to be spread upon the tax roll.
Mandamus denied. | [
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] |
Grant, C. J.
(after stating the facts). The sole question is: Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife ? We answered this question in the negative in the case of Wagner v. Wayne Circuit Judge, decided November 17, 1897. In that case the husband had uttered a gross libel against his wife. She brought suit by capias ad respondendum, and the proceedings were quashed by the circuit judge, for the reason that the wife could not maintain the suit against her husband. The wife applied to this court for the writ of mandamus to compel the circuit judge to vacate that order. The writ was denied, and the order of the circuit judge sustained. No opinion was written. But the sole and identical question there in volved is the same as is involved in this suit. The briefs there filed pursued the same line of argument and cited the same authorities as are now cited. Counsel cite the married woman’s act of this State as conferring this right. This act is found in 2 How. Stat. §§ 6295, 6297, which read as follows:
‘ ‘ The real and" personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female. * * *
‘ ‘ Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried.”
In many decisions the courts of many of the States, notwithstanding the statutes conferring rights upon a married woman over her separate property not possessed at the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it •seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations. The rule is thus stated in 9 Bac. Abr. tit. “Statute,” I (4), 245:
“In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law, farther or otherwise than the act expressly declares. Therefore, in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had had that design, they would have expressed it in the act. ”
The result of plaintiff’s contention would be another step to destroy the sacred relation of man and wife, and to open the door to lawsuits between them for every real and fancied wrong, — suits which the common law has refused on the ground of public policy.' This court has gone no further than to support the wife, under the married woman’s act, in protecting her in the management and control of her property. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband’s affections against others than her husband. Berger v. Jacobs, 21 Mich. 215; Leonard v. Pope, 27 Mich. 145; Rice v. Rice, 104 Mich. 371. At the same time, it has held that the wife could not enter into a partnership or other business with her husband, and thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343, 16 Am. St. Rep. 572); Edwards v. McEnhill, 51 Mich. 160. Personal wrongs inflicted upon her give her the right to a decree of separation or divorce from her husband, and our statutes have given the court of chancery exclusive jurisdiction over that subject. This court, clothed with the broad powers of equity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband’s property as the circumstances of both will justify, and, in so doing, may take into account the cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am. & Eng. Enc. Law (2d Ed.), 120; 2 How. Stat. § 6245. In the absence of an express statute, there is no right' to maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sustaining the rule: Abbott v. Abbott, 67 Me. 304 (24 Am. Rep. 27); Freethy v. Freethy, 42 Barb. 641; Peters v. Peters, 42 Iowa, 182; Schultz v. Schultz, 89 N. Y. 644; Cooley, Torts, 228; Schouler, Dom. Rel. § 52; Newell, Defam. 366; Townsh. Sland. & L. § 300.
J udgment afflrmed.
The other Justices concurred. | [
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Hooker, J.
The complainant recovered a judgment against the defendant upon a replevin bond, in an action commenced by filing declaration. The bill in this cause is filed in aid of execution, and was dismissed upon the hearing, upon the ground that the judgment mentioned was void for want of jurisdiction of the defendant. The sheriff’s return indorsed upon the declaration, which was within the Wrapper upon which the rule to plead was printed, is as follows:
“I certify that on the 12th day of October, 1895,1 served a- copy of the within declaration on John Tierney and Frank McGavin, giving each of them a copy of the within; and on the ¿1st day of October I served a copy on Michael Collins, giving him a copy of the within.
“ October 31, 1895.
“Irving Woodworth, Acting Sheriff,
“By Nicholas Bouma, Deputy Sheriff.”
The defendant did not appear, and judgment was taken upon entry of his default. There was no showing of service of notice of rule to plead to support the entry. After the answer in this cause was filed, the complainant made a motion in the action upon the bond for leave to amend, which was granted upon a condition with which he never complied.
If the judgment rendered was irregular merely, and not absolutely void, it is a sufficient foundation for the complainant’s bill. This court has been liberal in holding proceedings amendable in actions commenced by declaration, where a proper service has been shown. In Coe v. Hinkley, 109 Mich. 614, it was held that, when a proper service was shown, an entry of the rule to plead nunc pro tunc was permissible. In Granger v. Judge of Superior Court, 44 Mich. 384, the rule to plead entered and served required a 10-days notice only, while the statute prescribed 30. On mandamus to vacate a judgment entered upon default for want of an appearance, the writ was denied upon the ground that the mistake was an irregularity, and, the judgment not being void, the defendant should have seasonably taken steps to review it; that, like any other process, it was amendable; and that, where there has been an actual personal service of the defective process or notice, it has not been held that the proceedings are void. The reason given is that—
‘ ‘ The party, having been legally served within the jurisdiction, is personally informed that proceedings will be urged against him. He has a right to expect that in due time the plaintiff will discover the error and take steps to rectify it. If this is not done, he has a right to the common-law remedies for the correction of errors, and may, until those are .lost by lapse of time, resort to them, to have relief against the erroneous action. But it is not settled and would be unjust to allow a party to attack such proceedings collaterally after long- lapse of time, when tbe plaintiff has lost any other remedy, and thus avoid what was probably a just liability. If he does not see fit to sue out a writ of error, when he knows where the proceedings are pending, and has had full opportunity to examine into the action of the court, he should not, in fairness, be allowed the advantage of what is a merely formal objection, and we do not think the authorities cited sustain any view to the contrary.
“Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So, where there has been no personal service within the jurisdiction, the doctrine prevails that proceedings not conforming to the statutes are void. But this is on the ground that there has been no service whatever, and the party, therefore, has not been notified in any proper way of anything. The purpose of the statutory methods is to furnish means from which notice may possibly or probably be obtained. But, as a court acting outside of its jurisdiction is not recognized as entitled to obedience, the special statutory methods stand entirely on their own regularity, and, if not regular, cannot be said to have been conducted under the statutes. The distinction is obvious, and is not imaginary.
“Here there was proper notice of a pending suit, the only defect being the fixing of too short a time for appearance. While the defendant sued had a right to insist on proper adherence to the rules governing such cases, he should have brought error when he found the plaintiff expected to enforce his judgment. If this had been a notice after the party had been regularly served and the suit fairly in progress, the authorities are uniform that the defect would be waived entirely unless seasonably complained of. There is no hardship in the rule which requires in such a notice as the present resort to some recognized method to correct the error, instead of treating it as fatal for all purposes.”
See, also, Brown v. Wayne Circuit Judge, McGrath, Mand. Cas. No. 21.
In the present case the proper rule was entered, but there was no service of any notice whatever, in which respect it differs from the Granger Case, where there was a service, but it was of notice of the defective rule. In each case the declaration was served.
The case of Turrill v. Walker, 4 Mich. 177, recognizes the rule applied in the last-mentioned cases, but it contains language which, at first blush, might be thought to support the defendant’s contention; but we think .it does not necessarily, as all the case holds is that, where no notice of the rule was served, a judgment upon default would be reversed on writ of error, and that, by “neglecting to move promptly when the plaintiff took the next step,” the defendant did not waive the defect, which he might still take advantage of on writ of error. The judgment was reversed, and, as the service was shown to be out of the county, it is presumed that it was the end of the matter. It is significant that the court did not say that the judgment was void by reason of the failure to give notice of the rule to plead.
The declaration in this case, at least, contains the statement that it was filed as commencement of suit. It would seem that this gave notice of that fact, and it must be presumed that the defendant had knowledge of the law that, upon service of notice of the entry of rule to plead, he would be obliged to appear and make his defense. The irregular service might be corrected at any time, but it was ground for reversal of any judgment that might be rendered until corrected or waived, but not such a defect as to render the entire proceedings void for want of jurisdiction, and therefore subject'to collateral attack.
It being determined that the judgment was valid, the premises were subject to levy, and complainant entitled to the relief prayed. A decree may be entered reversing that of the circuit court, and granting the relief prayed in complainant’s bill, with costs of both courts.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). Counsel for complainant insist that the case is ruled by Randall v. Chubb, 46 Mich. 311 (41 Am. Rep. 165), and Lewis v. Sheldon, 103 Mich. 102. The contention cannot be sustained. In those two cases the leases had been assigned, and the assignors had parted with all control. Complainant has not been injured: He contracted for the personal obligation of defendant, who, he now admits, stands in the shoes of the original lessee. He has that obligation still unimpaired. The abandoned oral contract did not operate as a forfeiture of the lease.
Judgment affirmed.
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] |
Long, J.
May 27, 1897, Levi T. Griffin commenced suit in the Wayne circuit court against Greenleaf O. Wattles by summons issued out of said court. This summons was personally served on Wattles, within the county of Wayne, on June.3d thereafter. On the last-named day, Griffin filed in said court an affidavit for a writ of garnishment in said cause, to be directed to Oliver H. Wattles. This affidavit states that the summons had been personally served on the principal defendant, in an action ‘ ‘ to recover upon a judgment heretofore recovered on the 21st day of February, 1891, for the sum of $3,702.60, in the supreme court of the State of New York, * * * which is a court of civil and general jurisdiction, a transcript of •which said judgment, duly authenticated, deponent has filed in said circuit court for the county of Wayne.” The affidavit then sets out that the garnishee defendant, Oliver H. Wattles, residing in Lapeer county, has property, etc., in his hands or under his custody or control belonging to the defendant Greenleaf C. Wattles; that Oliver H. Wattles is indebted to said Greenleaf C. Wattles; that there remains due and unpaid on said judgment $3,702.60, with interest; and that said Greenleaf C. Wattles is justly indebted to the said Griffin in the sum of $5,100.22. Writ of garnishment was issued, and personally served on the garnishee defendant, who caused his appearance to be entered in said cause by J. A. McLennan. On June 19th, the garnishee defendant, by said Mc-Lennan, filed his disclosure in said cause, denying all liability. This disclosure was served on Griffin’s attorneys, who filed a demand for an examination of the garnishee on oath, and served notice requiring him to appear before a circuit court commissioner of Wayne county on July 22, 1897, which notice was also duly personally served on Oliver H. Wattles.
The principal defendant appeared by his attorneys, Messrs. Moore & Goff. Declaration was duly filed in the cause, declaring on the judgment so rendered in the State of New York. The principal cause was tried on its merits, and verdict and judgment entered in favor of Griffin for $5,216.98 on December 17, 1897. Execution was issued on said judgment, and returned unsatisfied.
In April, 1898, the attorney for the garnishee defendant made a motion in the cause in the Wayne circuit court to dismiss the garnishee proceedings, to quash the writ of garnishment, and discharge the garnishee defendant for the reasons (1) that the court had no jurisdiction to issue the writ of garnishment, and had no jurisdiction over the garnishee defendant; (2) that a former suit is pending in the county of Lapeer. This motion was denied by respondent. Mandamus is now asked to compel the re spondent to set aside said order, and enter an order quashing said writ of garnishment. An order to show cause having been made in this court, the respondent has made his return thereto, as follows: That the suit was commenced by summons; that the declaration was upon a New York judgment; that this declaration was after-wards amended by adding the common counts in assumpsit.-
It is the claim of counsel for the garnishee defendant that the statute does not authorize the issuing out of a writ of garnishment in the present case, as the action does not arise upon contract, but is upon a foreign judgment. Act No. 73, Pub. Acts 1889 (3 How. Stat. § 8058), provides that—
“In all personal actions arising upon contract, express or implied, brought in the several courts or municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons, or attachment, and in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned, or upon any transcript of a judgment filed in said courts, if the plaintiff, his agent or attorney, shall file with the clerk of said circuit court * * * an affidavit, * * * a writ of garnishment shall be issued. * * * ”
But counsel for the garnishee contends that this clause refers solely to justices’ judgments, and not to foreign judgments. Whether this statute must be so construed we need not now determine, as we are of the opinion that an action brought upon a foreign judgment is an action upon contract, within the meaning of this statute. It is said by Story, in his work on Contracts (section 2), that contracts are divided into three classes:
“1. Contracts of record, such as judgments, recognizances, and statutes staple.
“2. Specialties, which are contracts under seal, such as deeds and bonds.
“ 3. Simple contracts, or contracts by parol.”
We are aware that in several cases it has been held, under the peculiar facts of the case, that the word “contract ” does not include a judgment; but it is apparent from the cases that judgments are invariably classified with contracts with reference to remedies upon them. In Meyer v. Brooks, 29 Or. 203 (54 Am. St. Rep. 790), the question arose under the statute in reference to the remedy by attachment; and it was held that a judgment for money creates a legal obligation on the part of defendant for its payment, and an action on such judgment is one upon a contract, express or implied, within the meaning of the statute authorizing attachment in such actions. This same rule of construction was also laid down in Gutta-Percha & Rubber Manfg. Co. v. City of Houston, 108 N. Y. 276 (2 Am. St. Rep. 412); Childs v. Harris Manfg. Co., 68 Wis. 231; First Nat. Bank v. Van Vooris, 6 S. Dak. 548.
It is next contended that the court had no jurisdiction, because the affidavit for" the writ of garnishment was dated June ’3, 1895. It was made to appear that this was a clerical error; that the affidavit was in fact sworn to on June 3, 1897; and the date of the year was permitted to be amended. The record itself showed that it was a clerical error, and it was properly amended. Emerson v. Steel & Spring Co., 100 Mich. 127.
The point made that there is a former suit pending in the Lapeer circuit court has no force. Nothing could be reached in the hands of the garnishee which had its origin in transactions subsequent to the issuing of the writ of garnishment.
The writ of mandamus must be denied, with costs against relators.
Grant, O. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit. | [
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Holbrook, J.
Plaintiffs brought this action in the Oakland County Circuit Court seeking specific performance of an agreement of sale of land located at the northeast corner of 12 Mile Road and Hope Street in the City of Southfield, Oakland County, Michigan. Plaintiffs appeal from the decision and judgment of no cause of action for defendants, entered by the trial court judge, the Honorable Farrell E. Roberts.
On July 7,1967, plaintiff: John Stark, individually, executed a written offer to purchase the realty in question and submitted the offer, together with a $500 deposit, to defendants. Defendants rejected plaintiff Stark’s written offer but retained the $500 deposit pending the proffer of another offer. That offer, dated August 29, 1967, was drafted by the office of defendant Meininger, a real estate broker who was co-owner, with his wife, of the property in question, and was submitted by defendants to plaintiff Stark who, in turn, delivered the offer to plaintiff Nedelman. Upon receipt of the offer, Nedelman signed his own name as purchaser and, with Stark’s permission, also signed, as purchaser, “John Stark, per L. Nedelman.” It appears that Mr. Nedelman, an attorney, represented Mr. Stark.
The signed offer was forwarded by mail to defendant’s office. Plaintiff Stark’s personal signature was procured on September 1, 1967. The offer was accepted by defendants, after the parties amended the agreement to provide for consummation of sale within 10 days after delivery of the title commitment, rather than 30 days, which the agreement originally provided. Title commitment, dated September 11, 1967 was delivered to plaintiff Stark on or about that date by defendant’s salesman, Lawrence Kempel.
The offer and acceptance provided in part as follows:
“1. The undersigned purchaser hereby offers and agrees to purchase the premises * * * and to pay therefor the sum of Nine Thousand and 00/100 ($9,000) Dollars upon the following terms and conditions.
“3. The sale is to be consummated by: The delivery of the usual Warranty Deed conveying an unencumbered marketable title subject to the re strictions of record upon the use of the premises, usual public easements and zoning ordinances if any, and the payment of all of the purchase money in cash or certified check.
“4. If title can be conveyed in the condition required herein, the sale shall be consummated within 10 days after delivery of abstract or policy of title insurance, or commitment therefor, at the office of Harold A. Meininger, Realtor.
# # *
“8. * * * If this offer is accepted, in writing, the purchaser agrees to complete the purchase of said property within the time provided herein. In the event of default by the purchaser hereunder, the seller may, at his option, elect to enforce the terms hereof or declare a forfeiture hereunder and retain the deposit as liquidated damages.” (Emphasis supplied.)
Copies of the closing statement and proposed deed were sent to plaintiff Stark, under cover letter dated September 18, 1967. That letter stated in part:
“Your agreement specifies consummating this sale by September 21, 1967, which is 10 days after delivery of title insurance covering said lot.
“Please advise me before September 21 as to a definite appointment convenient to you.”
Plaintiff Nedelman testified that he received the closing papers from Stark on September 20, 1967, the day prior to the proposed closing on September 21, 1967. Plaintiff Nedelman phoned defendant’s office and objected to the short time for closing, and requested of defendant’s secretary that he and his wife be designated on the documents as co-purchasers along with the Starks. Testimony disclosed that this was the first indication received by defendant’s office to the effect that plaintiff Nedelman and his wife were to be co-purchasers. Defendant’s secretary testified that she informed Nedelman, upon learning of his interest in the transaction, that it would be necessary for plaintiff Stark to sign an assignment of his interest in the purchase over to all the parties who desired to be named as grantees, to which plaintiff Nedelman allegedly agreed. Defendant Meininger testified that the assignment was prepared pursuant to the request of Nedelman for the change of names on the documents. Meininger also testified that, without execution of the assignment, he would not convey the real estate to the parties as requested.
Subsequent to plaintiff Nedelman’s request to Mr. Kempel for an extension of time and a new closing date, a new closing date was agreed upon and scheduled for 4 p.m. on September 26, 1967, in defendant’s office. A new closing statement, new proposed deed and the aforementioned proposed assignment were thereupon sent to plaintiff Nedelman and received by him prior to September 26,1967. The record fails to disclose that the assignment was ever executed. Plaintiff Nedelman communicated with Mr. Kempel, objecting to the fact that his name did not appear on the title insurance commitment along with plaintiff Stark’s; that adjustments in the closing statement were based on the September 21 date rather than the newly-agreed-upon closing date of September 26, 1967; and that the proposed assignment required that half interest in the property be assigned to Nedelman and his wife. It was this latter requirement which plaintiffs contend was an arbitrary and unlawful condition precedent to closing. However, plaintiffs cite no relevant authority for this contention, nor do they show that the proposed deed to the Starks and the Nedelmans is not in conformity with the assignment.
It appears from plaintiff Nedelman’s testimony that on September 26, 1967, the date set for closing, he telephoned defendant’s office in the morning, spoke to defendant’s secretary, and requested an adjournment to October 2,1967 in order that he might get interest on his money in the bank, and was informed that she would relay the message to Mr. Kempel. Nedelman testified that he again called defendant’s office in the early afternoon, again repeating his request for a delayed closing to defendant’s secretary, and that she stated that the request would he relayed to Mr. Kempel and to defendant Meininger. The secretary testified that while she could not remember receiving a call from plaintiff Nedelman on September 26, a call from Nedelman had come into the office for Mr. Kempel and was received by one of the salesmen. She, in turn, called plaintiff Nedelman at approximately 2 p.m., because, as she testified, “when Mr. Meininger and Mr. Kempel are out or expect to be out most of the day, I try to see if there’s anything I can do for the people that have called in, and sometimes I call the people back to say that they might not be in the office for a while or things like that.”
Mr. Kempel testified that he returned to defendant’s office at approximately 3 p.m. after having been away for a good portion of the day, and that upon learning of plaintiff Nedelman’s telephone call, and after speaking with defendant Meininger, who felt the reason given for plaintiff’s requested change of closing date was not sufficient, proceeded to telephone plaintiff Stark. Kempel told Stark by telephone to be at the closing set for 4 p.m., to which Stark replied that he would like the closing changed because plaintiff Nedelman was sick and could not make the closing. Plaintiff Stark admitted, upon questioning, that he told defendant’s office that Nedelman was ill, and for that reason, he wished to have the closing on another date, and Nedelman admitted that he requested the October 2nd closing so he could collect interest to October 1st.
The testimony revealed that plaintiff Nedelman subsequently received a telephone call from plaintiff Stark at approximately 3:45 p.m. on September 26, informing him that defendants insisted upon a 4 p.m. closing which, as plaintiff Nedelman testified, would have been impossible for him to meet. Defendant Meininger and his agent Kempel were at the designated closing office until 5:30 that afternoon. Plaintiffs failed to appear at the defendant’s office for closing on September 26, 1967.
Nedelman signed on September 27, 1967, and recorded on September 28, 1967, an affidavit stating that he and plaintiff Stark were proposed co-purchasers of the realty in question. This was done, as Nedelman testified, for the purpose of protecting their interests in the property and to prevent the same from being sold by defendants at an increased value.
On September 27, 1967, defendants sent a letter to plaintiff Stark which stated:
“This is your notification that the sellers as shown on the agreement to purchase lot 33 Supervisors Plat #22, City of Southfield, Oakland County, Michigan, signed by you as purchaser and receipted by you on September 5, 1967, at said sellers option shall retain the deposit as shown or shall take action to consummate the sale as set forth in said purchase agreement.” The above letter was received by Nedelman from Stark.
On September 28, 1967, plaintiff Nedelman sent a certified letter to defendant Meininger which stated in part:
“I am ready to close this transaction at a time both reasonable to the seller and myself. I strongly urge you to contact the writer for an appointment time.”
The next communication between the parties was on October 13, 1967, when defendant sent a letter to plaintiff Stark, with a copy to plaintiff Nedelman which, briefly summarizing the events leading to the present action by plaintiffs, stated in part as follows:
“Therefore, the undersigned treats your failure to close on or by the agreed upon date as a default on your part, and elects to declare a forfeiture by you of said offer and acceptance to purchase, and will retain said deposit as liquidated damages, according to the provisions and conditions of said offer and acceptance.”
Also in the same letter it is represented that Nedelman was interested in the purchase of the land, before his alleged purchase from Stark of a part of the offer of purchase, vis.:
“Although a written offer of one Lawrence Nedelman, dated August 29, 1967, for the same land, was received in my office on or about that date, it was not accepted because of terms specified and also no consideration was tendered with it.”
Plaintiffs’ attorney, on October 17, 1967, wrote defendant, reciting that plaintiffs “are ready, willing and able to conclude the purchase of the aforesaid lot pursuant to the agreement of the parties. The principals were ready, willing and able to conclude the transaction on September 26, 1967”.
Plaintiffs raise several questions on this appeal. We restate the two issues to be determined on this appeal as follows:
1. Was the offer to purchase and acceptance properly construed by the trial court as requiring payment for the property strictly in accord with its terms, i.e., was time of the essence¶
2. Did plaintiffs’ failure to tender performance prior to defendants’ election to declare a forfeiture on October 13, 1967, bar specific performance of the contract in question, irrespective of whether time was of the essence of the contracts
Both of these issues can be and will be considered together.
Appeals in chancery are reviewed de novo, and we do not generally reverse or modify unless convinced that we would have had to reach another result had we occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Socha v. Socha (1966), 5 Mich App 404; and Georges v. Ballard (1969), 20 Mich App 554.
It is undisputed that plaintiffs did not tender performance by paying to defendants the balance of the purchase price specified in the agreement of sale of August 29, 1967, on the agreed new closing date, September 26, 1967, nor at any time thereafter. Plaintiffs contend that tender of performance was rendered unnecessary by defendants’ insistence that plaintiffs close at the agreed-upon time on September 26, 1967, and by defendants’ notification to plaintiffs on October 13, 1967, of their election to declare a forfeiture, and that tender would, under the circumstances then existing, have been a useless gesture, citing Weinburgh v. Saier (1942), 303 Mich 640; Hanesworth v. Hendrickson (1948), 320 Mich 577; and Friedman v. Winshall (1955), 343 Mich 647.
The record does not disclose that defendants would have refused a tender prior to declaration of forfeiture, October 13, 1967, of the sum payable by plaintiffs under, the instrument in question. The Weinburgh and Hanesworth cases, supra, are not authority for plaintiffs since in those cases the Supreme Court agreed with the trial courts’ findings that proper tender, if made, would have been refused by the vendors.
Defendants’ notification to plaintiff Stark, on September 27, 1967, the day following the scheduled closing, that they would, at their option, retain the deposit or take steps to consummate the sale as set forth in the purchase agreement, was evidence that defendants, even beyond the closing date of the contract and until forfeiture was declared, had not elected to refuse a tender by plaintiffs. This notification was received by plaintiff Nedelman from plaintiff Stark. Plaintiffs do not contend that any proper objections they may have had to the closing papers as prepared could not have been corrected at the closing.
Under the circumstances here presented, the case of Friedman v. Winshall, supra, is applicable. There our Supreme Court stated the following, regarding the necessity of tender of performance, p 651:
“It is plaintiffs’ claim that they desired the execution of the land contract provided for by the agreement of March 29, 1954, but they made no tender of the payment specified in the agreement, either in cash or by certified or cashier’s check, and it is undisputed that they did not make such tender on any other date. # * #
“Based on the proofs taken in open court the trial judge concluded that there was no default on the part of the defendant, that the plaintiffs had not made tender of the amount of the payment required of them to constitute performance on their part.” See also, Pappas v. Harrah (1922), 221 Mich 460; Grade v. Loafman (1946), 314 Mich 364; and Sterling v. Fisher (1959), 356 Mich 634; Callaghan’s Michigan Civil Jurisprudence, Vendors & Purchasers, § 55, pp 55, 56.
It is the contention of plaintiffs that time for performance was not of the essence of the agreement.
Defendants assert that the record shows that the parties considered time as of the essence of the contract, and cite the case of Friedman v. Winshall, supra, at p 656 and 17 Am Jur 2d, Contracts, § 333, p 772.
Further light on the subject is obtained from the case of Grade v. Loafman, supra, p 368 wherein 12 Am Jur, Contracts, § 311, p 866, is cited with approval, for the rule: “A new agreement extending the time of performance is evidence that the parties considered time as of the essence”.
In equity, time is generally not regarded as of the essence of a contract unless the contract so states; or it clearly appears that the parties intended time to be an essential element of their agreement; or unless, from the nature of the contract and surrounding circumstances, such intent must necessarily be implied. See 17A CJS, Contracts, § 504(1), pp 789, 790. Where it is the clear intent of the parties to make time of the essence, the stipulation as to time must be observed, whether such be specified in terms of a particular hour or day. See 17A CJS, Contracts § 502(1), p 765; 17 Am Jur 2d, Contracts, § 332, pp 769, 770. In the offer to purchase and acceptance the plaintiffs were specifically required to complete the purchase within ten days after title commitment was furnished, and provided that default gave the right to defendants to declare a forfeiture or enforce its terms.
Plaintiffs contend that, while no tender of performance was made, they did offer to close on October 2, 1967, and that was sufficient. Plaintiffs confuse the issue by so claiming because an offer to close is not a legal tender. Plaintiffs continually offered to close but they did not accompany their offer to close with the necessary cash to constitute tender. Plaintiffs cite Elbom v. Pavsner (1923), 225 Mich 213, 218, as authority for their position; however, this case is distinguishable from the instant case. In Elbom, plaintiffs, as prospective purchasers, met their agreed closing appointment “having with them sufficient certified checks and other bank paper for that purpose * * # but defendants did not appear.”
We rule that the trial court did not abuse its discretion in failing to hold that defendants “lulled the plaintiffs into a sense of security and then made the possibility of performance impossible by the plaintiffs”, as they alleged in their complaint. The Nedelman purchase of a part of the offer to purchase from Mr. Stark complicated the consummation of the transaction but did not change, enlarge, or extend the rights of the purchasers, nor diminish their obligations.
The trial court, finding that time was of the essence of the contract, stated in its opinion in part the following:
“* # # The agreement of sale had provided for closing within ten days of delivery of the title commitment which had been dated September 11, 1967. Testimony was vague as to the exact date of delivery of the title commitment, but it had apparently run, if not by September 21, within a day or two after this date.
“Time is of the essence in the agreement of sale and remained so when defendants agreed to postpone to a day certain, September 26. On this date plaintiff Nedelman sought an adjournment to October 2, 1967. Plaintiff Nedelman claims to have been misled because he was not able to get an answer to his request until 3:45 p.m. This answer being no, what then was plaintiff Nedelman under a duty to do? He could not reach the closing by 4 p.m. At this time it became his duty to get there as soon thereafter as reasonably possible and to notify defendants to this effect. Five p.m. would seem to have been a reasonable time. It is the finding of this court that forfeiture occurred on the 26th of September. * * '* ”
Although we would not have ruled, as the trial judge did, that time was of the essence in the contract as a matter of law, we do determine on this de novo review that time was of the essence in this contract as a matter of fact. The language in the instrument and the conduct of the parties surrounding that transaction, including the failure of plaintiffs to tender payment prior to declaration of forfeiture, were sufficient for the trial court to deny specific performance.
Arguendo, even assuming that time was not of the essence in the performance of this offer to purchase, performance was required in a reasonable time, and we rule that a reasonable time for performance did not extend beyond the date of notice of forfeiture by defendants, October 13, 1967.
Specific performance is a remedy of grace and not of right, resting within the sound discretion of the court, the granting of which depends upon the peculiar circumstances of each case. St. Pierre v. Masson (1928), 243 Mich 60; Marvin v. Solventol Chemical Products, Inc. (1941), 298 Mich 296; Rex Oil & Gas Company v. Busk (1953), 335 Mich 368; First Baptist Church of Dearborn v. Solner (1954), 341 Mich 209; Star Realty, Inc. v. Bower (1969), 17 Mich App 248. The trial court under the facts present in this case did not commit error in refusing such discretionary relief.
Affirmed. Costs to defendants.
Judge Levin concurs in this opinion, adding that he wishes to avoid any implication that we review equity cases by a different standard than other cases tried by a judge without a jury (see People v. Hummel [1969], 19 Mich App 266) or that time was so far of the essence that a short delay in tendering performance would necessarily have justified defendants forfeiting the deposit or in refusing themselves to perform the agreement.
“For one dollar and other valuable considerations I hereby assign, give and transfer to John Stark and Aranka Stark, his wife, and Lawrence M. Nedelman and Anna Nedelman, his wife, interest I may have in a certain preliminary agreement to purchase described as follows:
“Dated — August 29, 1967.
“Accepted — September 5, 1967.
“Legal — Lot 33 Supervisor’s Plat #22 executed between John Stark and Harold A. Meininger.” | [
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Per Curiam.
The defendant, Robert Bryant, was tried by a jury in the Recorder’s Court of the City of Detroit and convicted of second-degree murder. MCLA § 750.317 (Stat Ann §28.549). He appeals as of right.
The defendant shot and killed one Uluce Hudgins in an incident arising out of an argument between Hudgins and his wife in the hallway of her apartment building on July 14, 1968. The defendant in terceded and an argument ensued. Hudgins was shot in the head and died soon afterward. Claiming both accident and self-defense, the defendant testified on his own behalf.
The sole issue on appeal is. whether the verdict is against the great weight of the evidence. After examining the record, we find that there was sufficient evidence to take the case to the jury, People v. Duwn, (1925), 233 Mich 185; People v. Macard (1888), 73 Mich 15, and that there was sufficient evidence, if believed, to establish the elements of the crime. People v. Spann, (1966), 3 Mich App 444; People v. Eaves (1966), 4 Mich App 457; People v. Williams (1968), 11 Mich App 62.
Affirmed. | [
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