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Danhoe, J.
The question before this Court is one of statutory construction. Plaintiff has stated the issue thus,
“Is that portion of the real property of a Michigan nonprofit corporation, engaged in operating a public general hospital, which is occupied and used by it solely for the purpose of housing medical interns and resident physicans who are employed full-time by that hospital, including their families, exempt from taxation under the provisions of the Michigan General Property Tax Act as amended?”
The issue may also be stated as posed by the defendant,
“Did the amendment of § 7 of the general property tax law by PA 1966 No 320, remove the exemption from ad valorem taxes of dwellings located upon real estate of nonprofit hospital corporations which are used for dwelling purposes for resident physicians and their families?”
Plaintiff’s real estate consists of 33 acres. The hospital buildings and immediately surrounding-land, totaling approximately 22 acres, were excluded from assessment for property taxes. The city assessor of Dearborn placed an assessment of $52,000 against 9.45 acres of adjoining but vacant land. He also placed an assessment of $51,680 against 10 staff residences located on 1.8 acres at the edge of plaintiff’s property and fronting on a street. They were separated from the hospital building’s and parking-lots by the 9.45 acres of vacant land. The board of review of the City of Dearborn confirmed the assessments.
Plaintiff made timely complaint of these assessments to the tax commission. The latter, by its orders of March 21, 1969, struck down the assessment upon the 9.45 acres of vacaht land apparently on the basis that it did not constitute “excess acreage.” Plaintiff’s witness had stated that this land although vacant was necessary to provide open space conducive to health purposes. However, the tax commission did uphold the assessment on the 10 staff residences and servient land.
This is the same parcel of land previously declared exempt in Oakwood Hospital Corporation v. State Tax Commission (1965), 374 Mich 524, but four additional staff residences have been built thereon by plaintiff since that case was decided. However, all ten residences are presently used in exactly the same manner as were the six residences considered in the 1965 Oakwood Hospital case and the purpose and use of this parcel and the residences located thereon have not changed since that decision.
Plaintiff argues that it is a nonprofit corporation exempt under the first sentence of paragraph four of § 7 as a charitable institution, hut that it is not a nonprofit trust so the last sentence of paragraph four of § 7 has no application to it. This is disputed by defendant. Apparently this issue was not decided in the 1965 Oakwood Hospital case. The first sentence of paragraph four of § 7 was not changed by the 1966 amendment, and for reasons which we will explain later we do not find it necessary to decide if plaintiff is a nonprofit trust.
We come now to an examination of the pertinent part of the statute as it read in 1965 at the time of the decision in the earlier Oakwood Hospital case. Page 528 of that opinion states in part:
“The material provisions of section 7 of the Michigan general property tax act in question (PA 1893, No 206, as amended), CLS 1961, § 211.7 (Stat Ann 1961 Cum Supp § 7.7), are as follows:
“ ‘Sec. 7. The following property shall be exempt from taxation: # # *
“ ‘Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions * * # incorporated under the laws of this State with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated. * * * Also real estate, with the buildings and other property thereon, owned and occupied by any nonprofit trust and used for hospital or public health purposes.’ ”
By comparison the material provisions of § 7 of the Michigan general property tax act as amended by PA 1966, No 320 [MCLA § 211.7 (Stat Ann 1970 Cum Supp § 7.7)] state:
“The following property shall be exempt from taxation : * * *
“Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions * * * incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated. Also charitable homes of fraternal or secret societies. Also real estate not to exceed 400 acres of land in this state owned by any boy or girl scout organization, or by young men’s Christian associations or young women’s Christian associations, if at least 50% of the membership of the associations or organizations are residents of this state, but upon petition of any association or organization the board of supervisors may waive the residence requirement while occupied by them solely for the purpose for which they were incorporated or established. Also the real estate and building of any clinic erected, financed, occupied and operated by a nonprofit corporation or by the trustees of health and welfare funds, if the funds of such corporation or such trustees are derived solely from payments and contributions under the terms of collective bargaining agreements between employers and representatives of employees for whose use the clinic is maintained. Also real estate with the buildings and other property thereon, owned and occupied by any nonprofit trust and used for hospital or public health purposes, but excluding excess acreage not actively utilised for hospital or public health purposes, and real estate and dwellings located thereon used for dwelling purposes for resident physicians and their families.” (Emphasis supplied to show pertinent portion of language added by PA 1966, No 320.)
Applying the standard rules of grammar and punctuation to the sentence “Also real estate with the buildings and other property thereon, owned and occupied by any nonprofit trust and used for hospital or public health purposes, but excluding excess acre age not actively utilized for hospital or public health purposes, and real estate and dwellings located thereon used for dwelling purposes for resident physicians and their families”, it is plain that the phrase set apart by commas “but excluding excess acreage not actively utilized for hospital or public health purposes”, constitutes an exception to the language which immediately precedes it but does not affect the language which follows it.
In order to reach the interpretation urged by the defendant it would be necessary to insert the word “excluding” before the words “real estate and dwellings” or delete the comma after the words “public health purposes”. This would, of course, alter the plain meaning of the language used.
Ordinarily when a statute is unambiguous, we do not look to the legislative history of the act. However, the very able defense counsel has argued that since the statute granted an exemption to plaintiff for housing used by interns and resident physicians prior to the 1966 amendment and this was specifically so held in the 1965 Oakwood Hospital case, supra, the legislature would not have amended the previously construed language unless it intended thereby to make a change in the exemption. However, in 50 Am Jur, Statutes, § 275, pp 262, 263 it is stated:
“The general rule is that a change in phraseology indicates persuasively, and raises a presumption, that a departure from the old law was intended, and amendments are accordingly generally construed to effect a change, particularly where the wording of the statute is radically different. On the other hand, every change in phraseology does not indicate a change in substance and intent. The presumption of a change in meaning is merely an aid in interpretation, or in the determination of the legislative intent, and is not an infallible guide, or necessarily controlling. It cannot prevent the consideration of, or overcome, matters of more persuasive effect. The change in phraseology may result from a variety of causes. In some cases, the purpose of the variation may be to improve the diction, or to clarify that which was previously doubtful. To reach this result, however, it must clearly appear that the change was made for such purpose.”
Looking now to the legislative history of the 1966 amendment we find that the bill as introduced (House Bill No 3049) added the word “clinical” to the last sentence of the fourth paragraph of § 7 while deleting the words “real estate, with” and “and other property thereon,”. The sentence thus read “Also the buildings owned and occupied by any nonprofit trust and used for hospital, clinical or public health purposes.” The committee on general taxation recommended an amendment which appears in 1 House Journal, 1966, page 476 and reads:
“L Amend page 2, line 21, after ‘buildings’ by striking out the balance of the sentence and inserting ‘AND LAND ON WHICH THEY STAND, EXCLUDING EXCESS ACREAGE NOT ACTIVELY UTILIZED, OWNED AND OCCUPIED BY ANY NONPROFIT TRUST AND USED AS AN OPERATING HOSPITAL OR PUBLIC HEALTH FACILITY.’ ”
This amendment was not adopted by the house. Instead, the committee of the whole recommended the adoption of two amendments which appear on page 909 of 1 House Journal, 1966. The one pertinent to the issue involved in this case reads:
“1. Amend page 2, line 21, after ‘buildings’ by striking out the balance of the sentence and inserting ‘AND LAND ON WHICH THEY STAND, EXCLUDING EXCESS ACREAGE NOT ACTIVELY UTILIZED, OWNED AND OCCUPIED BY ANY NONPROFIT CORPORATION OR NONPROFIT TRUST AND USED AS AN OPERATING HOSPITAL, BUT INCLUDING INCIDENTAL LAND IN PARKING AREAS AND SUCH PORTION OF THE REAL PROPERTY WHICH IS OWNED, OCCUPIED AND USED BY SUCH NONPROFIT CORPORATION OR NONPROFIT TRUST FOR HOUSING OR TRAINING OF NURSES OR MEDICAL INTERNS OR PUBLIC HEALTH FACILITY.’ ”
This proposed amendment clearly spells out an exemption for real property owned, occupied and used for housing or training of nurses or medical interns or public health facility.
After the bill was sent to the senate its committee on taxation recommended an amendment which removed the specific exemption for real property which was owned, occupied and used for the housing or training of medical interns but left it in as to nurses who were actually in training. The proposed amendment which appears in 2 Senate Journal, 1966, page 1555 reads:
“3. Amend page 2a, line 4, after ‘MAINTAINED.’ by striking out the balance of the line and through ‘FACILITY.’ in line 14, and inserting ‘ALSO THE BUILDINGS AND THE LAND ON WHICH THEY STAND OF ANY HOSPITAL MAINTAINED, INCLUDING LAND IN INCIDENTAL PARKING AREAS AND SUCH PORTION OF THE REAL PROPERTY WHICH IS OWNED, OCCUPIED AND USED BY SUCH NONPROFIT CORPORATION OR NONPROFIT TRUST, OR PUBLIC HEALTH FACILITY, FOR THE HOUSING OR TRAINING OF NURSES WHO ARE ACTUALLY IN TRAINING; BUT EXCLUDING BUILDINGS AND LAND NOT ACTIVELY UTILIZED, OWNED AND OCCUPIED BY SUCH NONPROFIT CORPORATION OR NONPROFIT TRUST FOR THE PURPOSES HEREIN SPECIFIED OR AS AN OPERATING HOSPITAL.’ ”
This amendment was not adopted by the senate.
In the same volume at page 1922 appear the amendments recommended by the senate committee of the whole. Those amendments were adopted and are the language of the final bill.
The legislative history demonstrates that the bill when it left the house contained a specific exemption for real property owned, occupied and used for housing or training of nurses or medical interns. The senate committee on taxation recommended changing this specific exemption so that it applied only to nurses and did not include medical interns. The amendment recommended and adopted by the senate committee of the whole made the exemption applicable to resident physicians. It is our opinion that the legislative history of PA 1966, No 320 supports the plain meaning of the language used.
Since we hold that PA 1966, No 320 did not remove the exemption declared in the 1965 Oakwood Hospital case, supra, and since the first sentence of paragraph four of § 7 was not changed by the 1966 amendment, we do not find it necessary to decide if plaintiff is a nonprofit trust.
Reversed. No costs, a public question being involved.
J. H. Gillis, P. J., concurred.
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] |
Per Curiam.
Alphonse Lewis, Jr., is a practicing attorney in this state. He was retained by defendant Pimpleton to represent him in the instant case and in a second matter as well. Appellant Lewis filed several papers in the present case and was the attorney of record when, in August, 1968, he was informed by Mr. Pimpleton that he was being discharged as attorney in both matters. Later that same month, appellant received a stipulation as to a substitution of attorneys in the second matter. This was duly signed by appellant and filed with the court. No such substitution was filed in the present case.
In October, 1968, appellant was given notice of a trial date in this matter. He neither informed the trial court that he had been discharged nor sought a court order allowing for his withdrawal from the case. He did send a letter to the defendant seeking instructions. This letter went unanswered.
On the trial date, all parties were present and ready, with the exception of appellant. The trial judge ordered a show-cause hearing to be held to determine whether appellant should be assessed court costs of $150. The hearing was held, witnesses called, and appellant given an opportunity to be heard. The trial judge determined that appellant’s conduct was contemptuous and assessed the above costs.
On appeal, attorney Lewis suggests that the trial judge’s action violated court rule (GCR 1963, 760.1) as well as statute (MCLA § 600.1711 [Stat Ann 1962 Rev §27A.1711]). The basis of appellant’s argument is that, in cases of contempt outside of the presence of the court, an affidavit alleging the contumacious conduct must be filed. In the instant case, none was filed.
We need not determine whether the absence of the attorney of. record constituted a contempt either in the presence of the court, or was a contempt out of the presence of the court. Appellant waived this issue by appearing voluntarily on his own behalf.
“The first legal question presented is, that the acts constituting the contempt were not committed in the presence of the court, and no petition or affidavit was presented to the court as a foundation for the proceedings. Upon this point many authorities are cited by counsel for the people and for the respondents. It is unnecessary to determine this question. The respondents voluntarily appeared in court, and were given the same opportunity to make their defense that they would have had upon the filing of a petition or affidavit and the issuance of an order to show cause. They were not seized upon the capias, but came directly from a foreign country into the court and voluntarily submitted to its jurisdiction. It should require no argument to show that they had waived all irregularities in initiating the proceedings.
# # #
“If the respondents had refused to appear in court, * * * or if they had been arrested upon the capias and had denied the jurisdiction of the court for the reason that no affidavit or petition was presented to the court setting forth the facts, the respondents would have been in position to raise this question, but their conduct waived it. They voluntarily placed themselves in precisely the same position as they would have been if the proceeding had been such as they now contend was necessary.” In re McHugh (1908), 152 Mich 505, 510-512.
A second reason why we need not reach the merits of the question asked by appellant is that the conduct of the trial judge is within his statutory authority.
“Supreme court, circuit courts, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in the following cases:
# # #
“(3) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner duly elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge;” MCLA § 600.1701 (Stat Ann 1962 Eev § 27A.1701). (Emphasis added.)
Under a similar factual circumstance we stated:
“Courts have the inherent right and power to enforce obedience, to their orders and decrees. Attorneys are officers of the court, and it is their duty to be in court upon the trial of causes duly set for trial of which they have had due notice.” People v. Matish (1970), 21 Mich App 238, 240.
Appellant also suggests that his discharge by defendant terminated the agency existing in the attorney-client relationship. However true that may be, an attorney is also an officer of the court and owes a duty to the court. That duty includes keeping the court informed of any reason for which the trial may not be conducted.
“We may also state that when an attorney once enters an appearance for a client and for any reason later finds he cannot or does not intend to continue to represent that client, he owes a clear duty to his client and opposing counsel and to the court to take timely affirmative steps in the pending case to be relieved of his retainer and have his appearance withdrawn.” White v. Sadler (1957), 350 Mich 511, 526. (Emphasis added.)
This is the duty which went unobserved, and it is for this breach that court costs were assessed.
Under these circumstances, it cannot be said that the trial judge’s conduct was an abuse of discretion.
Affirmed.
It is contested whether he visited the trial judge’s secretary within 30 minutes subsequent to the calling of the case. | [
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V. J. Brennan, J.
On August 6, 1968, Robert Humphreys was tried and convicted by a jury of second-degree murder for shooting and killing his wife. On appeal he complains of numerous remarks made by the prosecutor during final argument but principally of a remark wherein the prosecutor expressed a belief in his guilt. No objection was directed at this remark. The people, while neither denying nor conceding prejudice, contend that the failure to object precludes review by this Court and cite many cases supporting their contention, among them People v. Hancock (1950), 326 Mich 471; People v. Millman (1943), 306 Mich 182; and People v. Panknin (1966), 4 Mich App 19. Before reciting the remark and relating the setting in which it was made, we will examine the limits of the proposition that the failure to object bars review of a remark expressing the prosecutor’s belief in the accused’s guilt.
Although the prosecutor is free in final argument to relate the facts to his theory of the case, and in so doing say that certain evidence leads him to believe the defendant is guilty, People v. Hess (1891), 85 Mich 128; People v. Boos (1909), 155 Mich 407; People v. McElheny (1922), 221 Mich 50, he may not express a belief in the defendant’s guilt without relating the belief to the evidence. People v. Quick (1885), 58 Mich 321; People v. Dane (1886), 59 Mich 550; People v. Hill (1932), 258 Mich 79. Yet while the impropriety of expressing a personal belief in the defendant’s guilt is generally recognized, it has been said that the prejudicial impact of such remarks can be countered by an instruction from the bench, and therefore there is no need for a new trial (unless it be deterrence) if the court instructs the jury to disregard the remark. People v. Pope (1896), 108 Mich 361; People v. MacGregor (1914), 178 Mich 436; People v. Panknin, supra. In People v. Quick and People v. Dane, cited above, an objection was made, but the trial court failed to give the requested instruction and hence by implication approved the remarks, thereby aggravating the prejudice. In both cases, the Supreme Court reversed the convictions, saying that the instructions should have been given. A conviction will not be reversed, however, if by failing to object, the defendant has allowed the impact of the prosecutor’s remarks to go uncountered by an instruction. People v. David Smith (1969), 16 Mich App 198. The defendant will not be heard to complain of an error that conld have been cured upon timely objection.
The presupposition of these cases is that the impact can be countered and the prejudice eliminated. Sometimes, however, the prejudice created by an improper line of argument cannot be eliminated, no matter the amount of cautionary instruction, People v. Treat (1889), 77 Mich 348; People v. Frontera (1915), 186 Mich 343, 346; People v. Slater, 21 Mich App 561, and therefore an objection would be pointless. In People v. Ignofo (1946), 315 Mich 626, the principal case cited by defendant Humphreys, the Supreme Court considered the following remark, one made without objection, along with another ground of error and ordered a new trial:
“ ‘Joe Neuff [the defendant] killed that man. He has been slick enough and smooth enough to get away with it a number of years. Oh, yes, but there is the record and it has caught up with him.’ ”
Justice Reid and Justice Sharpe, the author of the opinion, thought the “statement could not be eradicated from the minds of the jury” and therefore constituted reversible error despite the absence of contemporaneous objection. Two justices concurred in result without opinion. The remaining three justices, also concurring in result, were unwilling to hold that the “statement could not be eradicated from the minds of the jury,” but acknowledged that in some cases an instruction cannot eliminate the prejudice:
“[A] ruling as to whether there was reversible error must depend upon all the attending circumstances of the particular case. Under some circumstances the prejudicial effect may be eliminated by proper procedure. See People v. Rosa (1924), 268 Mich 462; People v. Cleveland (1940), 295 Mich 139; People v. Zesk (1944), 309 Mich 129. On the other hand, there may be attendant circumstances disclosed by the record in a given case which would necessitate reversal. People v. Bigge (1939), 288 Mich 417.”
From a review of these cases, it is apparent that the failure to object is and should be a bar to review only where the goal of objection — a cautionary instruction — in all likelihood would have eliminated the prejudice arising from the prosecutor’s remark. Considerations of judicial economy do not outweigh the accused’s right to a fair trial. With this standard in mind, we proceed to review the remark made in the instant ease and the setting in which it was made.
Most of the trial revolved around one hotly contested issue: who pulled the trigger, the defendant or the victim? The shooting took place on December 29, 1967. Several days before, on December 18, the defendant’s niece, a Mrs. Hall, had arrived from Texas. She stayed at the defendant’s house trailer in Pontiac as a guest of the defendant and his wife until the 28th, when the defendant drove her to Utica to stay overnight with an aunt. After work on the 29th, the defendant returned to Utica and picked up his niece to bring her back to Pontiac for an overnight stay before her scheduled departure for Texas on the 30th. They stopped on the way for a few drinks, and, upon their arrival home, defendant’s wife was irate. According to the defendant, she started an altercation with Mrs. Hall that was ended only by his physical intervention, and then followed the defendant into the bathroom where a second altercation ensued, both she and the defendant falling into the bathtub and knocking the shower door off its track. The defendant returned to the living room and while sitting with his niece heard an indistinguishable noise from the direction of the bedroom, where his wife had gone. This noise was followed by a pistol shot, his wife’s announcement, “You want to play, we’ll play”, and the firing of another shot, this time into the floor of the hallway. The defendant jumped up to disarm his wife, and during the struggle two more shots were fired. He succeeded in disarming her, took the gun to the bedroom, unloaded it and returned it to its holster in a dresser. While in the bedroom, he noticed his wife lying in the doorway with blood on her dress. He told his niece to call the police, which she did.
At the trial, Mrs. Hall corroborated this, the defendant’s account of the shooting, while the defense advanced two theories as to how the victim came to be wounded: Either she accidentally shot herself while still in the bedroom (and hence, the indistinguishable noise) or she shot herself when the defendant sought to wrest the pistol from her control. In either event, of course, the defendant did not pull the trigger. The prosecution rejected both theories and offered the testimony of detective sergeant Christensen of the Michigan state police crime detection laboratory that the wound was caused by a bullet entering the buttocks and coming out at the breast. From the nature of the wound, sergeant Christensen theorized, the shooting could not have been accidental. Yet, though it was sergeant Christensen’s expert opinion that the point of entry was the buttocks, the indicia of entry at this point were by no means conclusive. Dr. Rothwell, the examining pathologist, thought at the time of the autopsy that the bullet had entered the breast, and at trial confessed, his earlier opinion notwithstanding, that he could not determine the point of entry. He did aid the prosecution’s case, however, by attributing the bruises and abrasions he found on the victim’s body to severe “blows”, a characterization somewhat inconsistent with the defense’s theory that the injuries were sustained when she fell into the bathtub. Also adduced in aid of the prosecution’s case was the testimony of an investigating officer that the defendant, shortly after the officer’s arrival at the scene, replied “I did” when asked, “Who shot her?” The defendant countered this testimony by asserting that he had instead said, “I guess I did,” and explaining that this reply referred to the possibility that his wife was shot during the second altercation.
After the close of proofs and the defense’s summation of its case, the prosecutor rose to make his final argument, opening with the remark with which we are concerned:
“I can assure you this: That if the defendant in the opinion of the police and in my opinion were innocent of this charge, we would not be here right now.”
The prosecutor then undertook a rebuttal of the defense summation, reviewing the testimony and reiterating the prosecution’s theory that the shooting was not accidental. As we already know, the jury returned a verdict of guilty of second-degree murder.
Faced as it was by a very close question of fact, the jury may well have been led by this remark, even though it is a truism in all but a very few cases, to suspend its own powers of critical analysis and judgment in deference to those of the police and the prosecutor. And if the remark had this effect, it also had the effect of derogating the defendant’s right to a trial by jury, since this right contemplates a jury that ultimately exercises its own judgment in resolving disputed questions of fact. The prejudicial nature of this remark and others like it was defined by the Supreme Court in People v. Boske (1922), 221 Mich 129, 134, where the trial court ruled as proper the prosecutor’s remark that the sheriff “knew that he had the guilty man”:
“This gave room for the jury to understand they might consider in their deliberations the fact that the sheriff knew he had the guilty man or at least give consideration to the sheriff’s opinion that he had. It was the duty of the jury to pass upon the facts and decide the question of guilt or innocence uninfluenced by the opinions of others. The import of such argument was an appeal for conviction on the opinion of the sheriff.” (Emphasis added.)
Because this remark may well have led the jury to suspend its own powers of judgment in reviewing the evidence before it, we hold the remark to be highly prejudicial and improper. That it had this effect seems likely in view of the experience and prestige standing behind the prosecutor’s office, the police department, and, ultimately, the person who made it.
“It is presumable that statements of fact based upon personal knowledge, made by a person occupying the responsible position of prosecuting attorney of a county, whom the people have chosen because of his ability and character to fill that position, would have both weight and influence with the jury, and may have determined any doubt which they, or some of them, may have entertained of the defendant’s guilt against him.” People v. Dane, supra, at 553.
And because of this experience and prestige, we cannot say with any certainty that an instruction would have countered the impact and eliminated the prejudice of this remark. It seems likely that the jury, after being instructed to disregard the remark and weigh only the evidence before it, would say “yes, of course, * * * but the police and prosecution do believe Humphreys did it, and * * * ”. In light of the closeness of the ultimate factual question in this case and our inability to say that an instruction would have eliminated the prejudice inhering in this unfortunate remark, we hold it to be reversible error, and order a new trial.
In passing, we make note of two arguments raised by the people in opposition to granting a new trial by reason of the remark. Neither, in our opinion, is of merit. In the first argument, the people ask this Court to take notice of the high reputation enjoyed by the defendant’s trial counsel and to regard counsel’s failure to either request an instruction or move for a new trial as a stratagem for gaining another trial should the jury return an unfavorable verdict. The answer to this argument, we think, is that counsel may well have had that in mind, but his acquiescence and the motivation behind it are irrelevant. The prejudice or injury to his client had already been irreparably initiated and consummated, not at his hands, but at the hands of the prosecutor. The defendant cannot be held accountable for an injury that is neither of his own making nor subject to repair short of a new trial. At the same time, the prosecutor has at his disposal a perfect means for avoiding a second trial, and that is to refrain from making the prejudicial remark. In the second argument, the people direct our attention to certain instructions given to the jury shortly before it began its deliberation, and assert that they eliminated any prejudice:
“It is your duty to determine the facts, and to determine them from the evidence produced in open court.
# # #
“The evidence which you are to consider consists of the testimony of witnesses and the exhibits offered and received.
# * #
“Arguments, statements and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence.”
As we said above, it does not seem likely that the prejudice would have been eliminated by a specific instruction made soon after the remark was made. It follows with greater reason that a general instruction, made somewhat more remotely in time, would not eliminate the prejudice.
The defendant raises a second issue, one that we cannot resolve on this appeal. He contends that the investigating officers found and took the pistol by an illegal search and seizure, and that it was therefore inadmissible at the trial. Although the defend- ■ ant neither moved for an evidentiary hearing to determine the legality of the search, nor objected to the pistol’s admission into evidence, and therefore cannot complain of error on this appeal, People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651, there exists the possibility that the issue will be raised on retrial. See People v. Smith (1969), 19 Mich App 359, 365, footnote 3; People v. Kelley (1970), 21 Mich App 612, 632. We recognize this possibility, but choose not to resolve the issue. The issue is best resolved after the circumstances surrounding the seizure of the pistol are fully known, that is, after an evidentiary hearing with the claim of illegal search and seizure placed squarely before the court.
Reversed and remanded for a new trial.
All concurred.
MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
The failure to move for a mistrial does not prevent us from reversing the conviction. People v. Brocato (1969), 17 Mich App 277, footnote 12, p 292. | [
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] |
R. B. Burns, J.
Dearborn Township established a police department in 1961, At that time plaintiff Loose joined the force. In April, 1963, the City of Dearborn Heights was formed from part of Dear-born Township and part of the City of Inkster. The township police department became the city police department. In November, 1964, the city adopted PA 1935, No. 78, MCLA § 38.511 (Stat Ann 1958 Rev § 5.3361) which provided for appointment and promotion of police and fire department personnel pursuant to civil service examinations.
During this time plaintiff Paulson was Dearborn Heights’ police chief, but in August, 1966, he was demoted to lieutenant. On August 11, 1966, Mayor Canfield appointed Sergeant Tafelski as acting chief of police and made the appointment permanent November, 1966.
In February, 1968, plaintiff Loose filed a complaint for mandamus in circuit court asking the removal of Tafelski and an order to the civil service commission requiring it to hold a competitive examination for the office of police chief.
The trial judge dismissed the complaint on the grounds that the plaintiffs were guilty of laches, that to grant relief at such a late date would be inequitable to Tafelski and that the provisions of act 78 regarding advancement had been impliedly repealed by MCLA § 423.211 (Stat Ann 1968 Rev § 17.455 [11]), which gives public employees the right to select bargaining representatives.
At oral argument this Court was informed that Tafelski had resigned as chief of police and had retired. Therefore, the Court will not discuss laches, but will confine the opinion to the conflict between the civil service act for policemen and firemen and the statute giving public employees the right to select bargaining representatives.
The pertinent portions of the statutes are as follows :
MCLA § 38.512 (Stat Ann 1969 Rev § 5.3362).
“(b) Vacancies in positions in the fire and police department above the ranks of fireman or patrolman shall be competitive and filled by promotions from among persons holding positions in the next lower rank in the departments, who have completed 2 years in such rank and at least 5 years in the department. If no person or persons have completed 2 years in the next lower rank, the commission may hold examinations among persons in such rank as to all intent and purposes as though 2 years of service had been completed by such persons. Promotions shall be based upon merit to be ascertained by tests to be provided by the civil service commission and upon the superior qualifications of the persons promoted as shown by his previous service and experience.”
MCLA §423.211 (Stat Ann 1968 Rev §17.455 [11]).
“Sec. 11. Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer.”
The repeal of a statute by implication is not permitted if it can be avoided by any reasonable construction of the statute. Couvelis v. Michigan Bell Telephone Co. (1937), 281 Mich 223: Valentine v. Redford Township Supervisor (1963), 371 Mich 138.
In our opinion there is no conflict between these provisions of the civil service act and the public employees’ labor relations act. The civil service act in the instant case provides day-to-day procedural rules to be followed by the employer. The public employees’ act provides the mechanism for changing those procedural rules.
The cause is remanded to the circuit court for proceedings consistent with this opinion. No costs, a public question being involved.
All concurred. | [
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Per Curiam.
January 29, 1969, a jury convicted defendant of robbery armed, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797). He was sentenced and he appeals. It is defendant’s position on appeal that he was denied the effective assistance of counsel because the adjournment of trial for one day did not afford defendant or his attorney adequate time to prepare for trial.
Defendant was arrested July 14, 1968 on a warrant charging him with the offense of which he stands convicted. He was represented by appointed counsel at preliminary examination on August 22, 1968 and by the same counsel at arraignment in circuit court on September 9, 1968. On the latter date, the prosecuting attorney served defendant’s attorney with notice of intent to use defendant’s admissions or confessions at trial, notice of the physical evidence the people intended to introduce at trial, and a copy of the circuit court history which included a copy of the police report to the prosecuting attorney and a list of witnesses with résumés of their knowledge of the case.
July 8, 1968, defendant was convicted by his plea of guilty in Federal District Court of the crime of bank robbery and he was sentenced to prison. Defendant’s trial on the present charge was scheduled for January 28, 1969. That day defendant was returned from federal prison in Atlanta, Georgia to Flint. Defendant objected to proceeding with trial on the 28th because of the lack of time for preparation. Defendant’s attorney was the same attorney who represented defendant at preliminary examination and at arraignment in circuit court. After selecting a jury, the trial court adjourned the trial to January 29, 1969 to afford defendant and his attorney time to confer and prepare.
Robbery armed is not a complex crime. Seven eyewitnesses identified defendant as the robber. Two police officers testified without objection that defendant admitted the robbery to them and defendant does not question their testimony on appeal. If defendant demonstrated in any way that he was prejudiced by the short adjournment, he might establish error of a reversible nature. Inherent in defendant’s right to counsel is the right to effective counsel. To be effective, counsel requires adequate time for preparation. Neither the record nor defendant’s brief demonstrate any prejudice to defendant arising from the one day adjournment.
Affirmed. | [
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] |
O’Hara, J.
On December 10, 1958, defendant entered a plea of guilty to the charge of carnal knowledge of a female under the age of 16. MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). At that time defendant was represented by counsel. Defendant indicated to the court that his plea was being made freely and voluntarily-and because he was, in fact, guilty.
Some ten years later defendant filed a motion to withdraw his plea of guilty. From a denial of the motion, defendant appeals.
The motion was properly denied. On the date of the acceptance of the guilty plea, Court Rule No 35A (1945), as then worded, governed. The rule in pertinent part required that after a plea of guilty and before sentence was imposed, the trial court was required to:
“* * * inform the accused of the nature of the accusation, * * * the consequence of his plea * * * (and) ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.”
A careful review of the transcript of the proceedings attendant the acceptance of the plea indicates that the trial judge did so.
We do not discuss whether the acceptance of the plea would have conformed with the court rule as interpreted by the Supreme Court in People v. Barrows, 358 Mich 267, decided November 25,1959. We hold Barrows, supra, is not retroactive. The other issues raised by appellant are without merit.
Affirmed.
All concurred.
See 318 Mich xxxix. | [
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] |
Brooke, J.
In this case the plaintiff seeks to sell defendant’s property for the nonpayment of a paving tax. The petition under 1 Comp. Laws, § 3304, as amended by Act No. 136, Pub. Acts 1899 (1 Comp. Laws 1915, § 3326) (which authorizes the construction of improvements when a majority of the owners of the frontage request it), was presented to the common council of the city of Owosso. Taking this as a basis for the jurisdiction for the construction of a pavement, the common council proceeded to make the improvement and levy the tax in question in this case.
Upon the filing of the petition of the auditor general for the sale of the lands of defendant for this special assessment, the defendant filed certain objections. Among them is one that the council never acquired jurisdiction to make the improvement by reason of the fact that a majority of the property owners had not signed the petition. It was conceded in the court below, and it is conceded in this court, that the petition which is the basis of all the subsequent proceedings is not .signed by a majority of the owners of property fronting upon said improvement. It was, however, signed by Frank Greenman, who was at that time the owner of the property affected by the assessment in this case, and who afterwards conveyed it to the defendant herein. It is conceded on behalf of the plaintiff and appellant, against whom a decree was rendered in the court below, that the decree was right, unless the fact that the petition for the improvement was signed by Greenman, defendant’s grantor, operates as an estoppel.
Both parties to the proceeding cite Motz v. City of Detroit, 18 Mich. 495, and Steckert v. City of East Saginaw, 22 Mich. 104. In the first case, in an opinion by Justice Cooley, it was held that the signer of a petition for an improvement is estopped from denying the validity of the charter and ordinance under which the proceedings were had.
In the second case the same justice, in distinguishing it from the Motz Case, said:
“The case before us, however, is of a different character. The complainants do not claim that the charter under which'the assessment was made is void, but they complain that its provisions have not been followed. Three of the complainants admit asking that the improvement be made in accordance with the law, but they aver that the attempt has been made to construct it-in disregard of the law, and that their interests are injuriously affected by the failure of the council to follow the statutory provisions. If they are correct in their facts, we do not see how they can be estopped from claiming relief.”
Later cases touching the question are: Taylor v. Burnap, 39 Mich. 739, Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583), Auditor General v. Stoddard, 147 Mich. 329 (110 N. W. 944), and the late case of Auditor General v. Johns, 190 Mich. 610 (157 N. W. 76).
The general principle governing the question is stated in Hamilton Law of Special Assessments:
Section 338:
“One who signs a petition for a public improvement is justified in the presumption that the corporate authorities will proceed in accordance with law. He does not petition for an illegal assessment, and is not estopped by his signing the petition from challenging the validity of the assessment upon which it is based, or the lack of jurisdiction.”
Section 725:
“But the courts are quite widely at variance as to how far the petitioner is actually estopped, although by both weight and number of authority it is generally held that the petitioner is not estopped to challenge the validity of the assessment, or the certificate issued to pay for it. There is no presumption that by asking for the improvement he desired it done other than according to law, or that he intended to bind his property for more than his share of a legal assessment.”
The decree is affirmed, with costs.
Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred. | [
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Long, J.
This bill was filed to enjoin the city of Detroit from paving a portion of Second avenue, and to have the proceedings taken with reference to said paving declared void, and the collection of assessments enjoined. The grounds of relief stated in the bill, in the amended bill, and in the supplemental bill are:
1. That the provisions of the charter and of the paving ordinances of the city, in so far as the same provide for an assessment of the cost of paving upon the abutting property in proportion to the frontage of such property, are in violation of the Constitution of the United States and the amendments thereof, and therefore null and void.
2. That no detailed estimate of the cost of the proposed improvement had been furnished to the common council by the board of public works, as required by section 12, chap. 15, of the charter of the city.
3. That the advertisement for bids did not specify a time and place when and where the bids were to be opened in the presence of such persons as might choose to attend, as required by chapter 32, § 5, of the revised ordinances of the city of Detroit.
4. That the board of public works and the common council failed to comply with the requirements of sections 5, 6, and 7 of chapter 32 of the revised ordinances of the city.
5. That the work could not be completed within the time provided in the contract, and required by section 33 of chapter 11 of the charter of the city.
6. That substantially all of the work was done after the time named in the contract, and after the time limited by the charter of the city of Detroit for doing the work, and that no extension of time had been procured, authorizing the continuance of the contract after November 1st.
7. That sections 8 and 9 of chapter 32 of said ordinances, directing the manner in which the assessment roll should be delivered to the board of assessors, had not been complied with; the assessment roll not having been delivered to- the board of assessors until after the completion of the work under the contract.
8. That the board of public works had accepted the work without deducting the penalty, provided by the contract, of $25 per day for delay, in case of a delay beyond the 1st of November.
It appears that the paving has been fully completed, and the work accepted by the city.
It is contended that an inflexible rule which requires the assessments in all cases to be according to the frontage, area, or otherwise, regardless of the circumstances of each particular case, is but an arbitrary exaction, and therefore unconstitutional. It is said that the rule laid down in Village of Norwood v. Baker, 172 U. S. 269 (19 Sup. Ct. 187), should be followed by this court. That was a street-opening case, and it was held that a law which provides for assessing against the abutting property, in proportion to the frontage, the entire cost of the opening,' rests upon a basis which excludes any consideration of benefits, and violates the fourteenth amendment of the Constitution of the United States. That doctrine was laid down by this coúrt in Thomas v. Gain, 35 Mich. 155 (24 Am. Rep. 535), but that was a sewer case. In paving cases the rule has been settled in this State by many decisions that it is competent for the legislature to authorize the cost of paving streets to be assessed upon the abutting property according to frontage. Williams v. Mayor, etc., of Detroit, 2 Mich. 560; Motz v. City of Detroit, 18 Mich. 495; Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52); City of Kalamazoo v. Francoise, 115 Mich. 554 (73 N. W. 801). It was said by Mr. Justice Cooley in Sheley v. City of Detroit, supra:
“We might fill pages with the names of cases decided in other States which have sustained assessments for improving streets, though the apportionment of the cost was made on the same basis as the one before us. If anjdhing can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments, and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the law of taxation have collected the cases, and have recognized the principle as settled; and, if the question were new in this State, we might think it important to refer to what they say. But'the question is not new; it was settled for us 30 years ago.”
We should feel inclined to follow the opinion of the Supreme Court of the United States in Village of Norwood v. Baker, supra, inasmuch as it was based upon the fourteenth amendment of the Constitution of the United States, if that were a paving case; but that was a street-opening case, and, until that court shall pass upon the question in the exact form in which it is here presented, we shall feel bound to follow our own decisions.
Section 12 of chapter 15 of the charter provides that, when any public improvement is proposed, the common council shall refer the matter to the board of public works, who shall proceed to examine the same, “and shall, as soon as practicable, report thereon to the common council, giving detailed estimates óf the costs of such works or improvements, if any costs there will be, and shall make such recommendation as said board of public works may deem expedient.” It appears that in the present case'no resolution was adopted by the common council referring the matter to the board of public works, but that said board assumed the initiative, and sent a recommendation to the common council that the street should be paved, furnishing an estimate of the cost as, “Estimated cost, $40,000.” It is claimed that this provision of the charter is mandatory, and that a failure to comply with its terms rendered any subsequent action void. Counsel cite, in support of this, Butler v. City of Detroit, 43 Mich. 552 (5 N. W. 1078); Mills v. City of Detroit, 95 Mich. 422 (54 N. W. 897).
It is evident that the course taken in the present instance by the board of public works and the common council obviates the difficulties presented in the above cases. The board reported that the cost of such improvement would be $40,000. The city engineer made a detailed estimate of the costs. These matters were laid before the common council before the contract was approved, and apparently were duly considered by it. In Goodwillie v. City of Detroit, 103 Mich. 287 (61 N. W. 527), it was said:
“The duty of furnishing the estimate is imposed upon the board of public works. The council called upon the board for such estimate; and an estimate having been furnished, and no further particulars having been called for, it must be assumed that the information was sufficiently specific to enable the council to act intelligently.”
In Butler v. City of Detroit, supra, the board of public works made no report as to the expediency of the proposed improvement, nor did it report any estimate of the costs. In Mills v. City of Detroit, supra, the board made no report whatever as to costs.
Section 5, chap. 32, of the revised ordinances of the city, provides that “the advertisement [for bids] shall specify a time and place when and where such bids shall be opened, at which time and place such bids shall be opened by the board of public works in the presence of such persons as shall choose to attend.” The advertisement which was actually published reads as follows: “Sealed proposals will be received at the office of the' board of public works, Detroit, Michigan, until Tuesday, September 6, 1898,’ at 10 o’clock a. m., local time, for furnishing all the labor and material,” etc. The advertisement contains no statement that the bids will be opened at any time, or that an opportunity will be afforded to any person interested to inspect them. It is contended that this requirement of the .ordinance is jurisdictional, and that the proceedings' based upon the advertisement which was actually published are null and void.
Under the statute creating the board of public works, the details relating to the matters of public improvements rest with the board. The advertisement is subject only to the control of the board. The board is required to advertise for proposals and enter into a contract, but the contract does not become valid or binding until approved by the council. The board must determine what the specifications must be. The council can approve or reject them, but has nothing to do with making them. Before a contract can be. entered into between the bidder and the board, it must be approved by the council. The proofs show that the bids or proposals for this paving were opened in the office of the board of public works at 10 o’clock a. m., local time, on September 6, 1898, in public, and in the presence of those who tendered'bids; that being the time mentioned as the hour up to which bids would be received. The proofs also show that it had always been the custom of the board Jo open bids at the hour named. We think from this showing that no one was deprived of any right, and it would be a most technical rule to hold that the whole proceeding must fail, and the complainants escape payment for a valuable public improvement by which they are benefited. Whether there was a compliance with the ordinance or not, no one being harmed, the proceedings will not be set aside for that reason.
Among the other specifications attached to the contract is the following:
“And, if the contractor shall fail to complete the work by the time specified in the contract, the sum of $25 per day for each and every day thereafter, until such completion, shall be paid to the city of Detroit, through the board of public works, before acceptance of the work. ”
It appears that the work under the contract was accepted by the board January 3, 1899, and no deduction was made on account of delay, which, it is claimed, amounted to over 30 days. It is claimed that, under these circumstances, the board had no right to accept the work at all, or, at least, that it had no right to charge against the property owners the entire cost of the work, without making any deduction for the penalty provided in the specifications, and that the board had no power to waive the penalty. "We think this claim cannot be sustained. The penalty clause in the contract has no relation whatever to the assessment. It is not provided for by law, and it was evidently not intended for the benefit of the abutting property owners, but for-the city at large. The proper authorities have passed upon the question, and have accepted the work as satisfactory. The acceptance must be held conclusive. Cooley, Tax’n (2d Ed.), p. 671.
The other questions raised have no force.
The court below was in error in setting the proceedings aside. That decree must be reversed, and a decree entered here dismissing complainants’ bill, with costs of both courts.
The other Justices concurred. | [
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Hooker, J.
The defendants are members of an organization called the “Good Government League,” in the city of Detroit, which professes to have for its object the election of worthy men to office, and the promotion of good order and honest administration of city affairs. The plaintiff, having attended one session of the legislature in the capacity of representative, was a candidate for re-election. This action is for libel, alleged to have consisted of three publications over the names of the defendants. One, for convenience called the “White Circular,” was addressed to the voters, and contained in parallel columns the names of several candidates whom the electors were advised to vote for or against. The portion applicable to the plaintiff was as follows:
“VOTE
“For
Harry C. Barter for representative, because he represents all that is good in his opponent, and-does not represent the objectionable. He is the champion of labor and arbitration.
Against
Henry Eikhoff for representative, because in the last legislature he championed measures opposed to the moral interests of the community.”
Another, called the “Pink Circular,” contained the following :
“Read and Reflect Before You sYo™-
“The executive council of the Good Government League has carefully examined the record of each candidate for office. Where opposing candidates are equally bad or equally good, we make no recommendations. The following suggestions are made in the hope that they may aid you in the discharge of your duty as a citizen, and that righteousriess may prevail in public as well as in private affairs:
“Lou J. Burch is candidate on the Republican ticket for representative. All friends of morality and decency are asked to vote against him for the following reasons; Lou J. Burch is secretary of the Michigan Liquor Dealers’ League. He is editor of the official organ of that league. He is a self-avowed candidate for the liquor dealers, and desires to go to the legislature to work in the interest of the saloon. Lou J. Burch is editor and publisher of a scurrilous sheet, dated Saturday, but always issued Sunday morning. In his paper the ministry is ridiculed, women are maligned, and workers for the cause of righteousness are defamed. Lou J. Burch is the champion of saloon lawlessness and of vulgar theaters. Lou J. Burch has offered insult to every colored man, woman, and child in Detroit. In witness of these facts, read the following statements from his own sheet;
“ ‘The liquor interests of the city are likely to have something to say in the convention. Lou J. Burch, editor of-, is their candidate.’ October 29, 1898.
“ ‘Here and there could be seen the burly forms of chicken-fed preachers, arrayed in long, dark frock coats, with hair pompadour, and smile urbane as the harvest moon, moving about among the female portion of the flock, thinking what a snap they had. It was' a veritable Eden for them, and it was full of ripe, luscious apples, and no snakes. A preacher is never so near his heaven as when in charge of a menless audience or convention.’ January 22, 1898.
“Speaking editorially of one of Woodward avenue’s most prominent and popular ministers, the sheet says:
“ * * He is either crazy, a fool, or both; and that, at best, he is a weak, narrow-minded bigot, without religion or sense.’ May 7, 1898.
“ Referring to deaconesses and other Christian workers, Burch’s paper says:
“ ‘ The front row of chairs was occupied by as interesting a bunch of short-haired, long-nosed women, of doubtful age, as one would meet in a long search.’ October 1, 1898.
‘ ‘ Referring to prominent pastors and church workers who were at police court recently,' Burch’s paper says they were ‘as fine a looking lot of spies and sneaks as ever put powder to a safe.’ October 1, 1898.
“ ‘And still these awful good and pious old ladies can never see anything wrong with hugging and kissing bees and grab-bag bunco games as they are carried on at the regulation church socials.’ October 22, 1898.
‘ ‘ In commenting upon the discharge in the recorder’s court of a saloonist, Burch’s paper says:
“ ‘The outcome of all these cases should be the same as this first one, and probably will be. Mathews was defended by Navin & Sheehan.’ October 15, 1898.
“Burch’s paper spoke as follows concerning the effort to close the Capitol-Square Theater:
* * Agitating against the Capitol-Square Theater with the intention of closing it, but without success, for the simple reason that there is no excuse for such an outrageous procedure.’ April 2, 1898.
“After the evidence upon which the theater was closed was in, Burch’s paper said:
“ ‘As the investigation now stands, there can be but one result, —the complete vindication of Dr. Campbell.’ April 9, 1898..
‘“Republican politicians about town are wondering which side of the fence Charlie Joslyn will be found upon in the Pingree and anti fight this year. Pingree bought Charlie with a §5,000 per year job two years ago, but there is a rumor that the foxy Charlie is looking for a raise this year.’ April 16, 1898.
‘ ‘ ‘ Should Stay Away.
“ ‘ Negroes must Realize that There is a Line.
“ ‘The question of the color line has arisen in Detroit once more. A negro claims that he was discriminated against at Stock’s Riverside Park. This statement is denied, however. He had no business there. Negroes must realize the fact that white people will associate with them more or less in business, but will certainly refuse to be on equal terms with them socially. Knowing the objection there is for their company, why does the negro force it ? No gentleman would. White men would be forcibly ejected from any place where they made themselves half as obnoxious as do most colored people. It has since transpired that the negro, anxious for a case, made no complaint to Mr. Stock, but straightway rushed into court. Mr. Stock is a very fair-minded gentleman, and is willing, and always used Detroit citizens liberally, and there is no doubt they will support him against the arrogance of Detroit’s colored population.’ May 28, 1898.
“‘The ladies of the W. C. T. U. have been having sixteen fits each all the week over a showbill in which a man is depicted in the act of choking a woman. If the man in question had a grip on a half dozen or more men-women who have been making fools of themselves here in Detroit for the past year, the picture would be better appreciated by a large majority of the people.’ October 29, 1898.
“Burch probably desires the repeal of the minor law. Judge from the following:
“ ‘TO Fathers and Mothers:
“ ‘Fathers and mothers of Michigan, has it ever occurred to you that the doors of the saloon are barred against your minor sons and daughters, while they can enter a drug-store with seeming propriety, and sip intoxicating drinks issued from a soda fountain ? Which of the two institutions is the more likely to start innocent youth on the downward path ? Do you think it fair and just to continually persecute the licensed saloonkeeper, who executes a large bond guaranteeing the proper conduct of his place, and wink at the unlicensed whisky-selling druggist ? Pause and consider.’ June 4, 1898.
“For several weeks Burch’s paper has carried the following in display type:
‘ ‘ ‘ Below are the names of the 39 men who not only voted against this particular bill, but used their influence against the liquor interests during the entire session. Don’t wait for the election this fall, but be on hand at the caucuses and the conventions, and see to it that these 39 men get just what they gave you, — the dump.’ September 24, 1898.
“By your vote do you desire to ask the State to bear the expenses and pay the expenses and pay the salary of the saloonkeepers’ lobbyist? That your vote may be effective,- we ask all who may refuse to vote for Burch to concentrate their votes upon Alex. W. Blain.
“For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff, candidate for representative, and for Harry C. Barter.”
There was a third, but it is unimportant. The declaration alleged that the effect and meaning of the pink circular was to charge and impute by inference and intent, upon the plaintiff, all of the wrongful, indecent, immoral, wicked, and scandalous acts charged against said Burch. The court excluded the pink circular as not libelous, and directed a verdict for the defendants upon the other counts.
The question before us is whether the case should have been submitted to the jury upon one or both counts. The first charge is, in substance, that the plaintiff, in his official capacity of representative, championed measures opposed to the moral interests of the community. The undisputed . testimony shows that as representative he introduced, and, to some extent, at least, approved and supported, measures calculated to change the liquor laws of the State by permitting sales on legal holidays, and election days after the close of the polls, and by repealing the act prohibiting screens in saloons. The court charged the jury that:
‘ ‘ The conclusion of the article, and the views as expressed by the defendants in that article, must of necessity, under the circumstances of the case, be termed a deduction from his record in the case. It is a question upon which men may differ. It probably will be very difficult to determine with any unanimity as to whether such measures were against the moral interests of the community. It is a question of judgment, in other words, based, in my opinion, upon his record in the legislature. Whether it is for the moral interests of the community is an open question. In my judgment, it was such a criticism upon his acts as might legitimately be made by any voter to the voting population of the State or of the county from which he asked to receive the suffrage of the people. If it were true that those acts were against the moral interests of the community, he would have no case here. If they were false, then the question of qualified privilege, as we say in law, would arise. There are certain things' which persons, may say under certain circumstances which are called privileged in the law, — qualifiedly privileged, — and it depends upon the occasion as to whether an utterance or publication is privileged. I charge you that in this case this was a privileged occasion. If they had the right to criticise the acts of this man, being a man running for public office, and one who asked to receive the trust and confidence of the people to perform the duties of that public office, they had a right to criticise him; and, though it was false, it would not be actionable, unless it was published with malice or in bad faith. I do not think in this case there is any evidence of malice outside of the publication itself, — -any positive proof, — which, in my judgment, would be required to be shown on the part of the plaintiff. Hence, if the publication was false, if it was such a publication as would require justification to be shown, — which would be true if the occasion was not privileged, — it being privileged and false, if they acted in good faith, and without malice, the plaintiff would have no right to recover. I don’t think there is any evidence of malice, as I said, or ill-will, on the part of the defendants in this case; and on the whole case — on the evidence as it has appeared in this case — I charge ^you to find for the defendants. The verdict is,.‘Not guilty,’ I think. The clerk will take the verdict.”
The language of the white circular, unexplained, unequivocally charged the plaintiff with having championed legislation opposed to the moral interests of the community. This charge is an attack upon his moral character, and would be likely to bring him into public contempt and disgrace. It is, therefore, libelous per ■ se. The defense made was: First, that the statement was true; and, second, that, if it cannot be said to be true, the proven acts were subject to criticism, and defendants had the right to express their opinion as to their effect, — in other words, that the language was privileged.
The defendants had a right to discuss the fitness of the plaintiff for the office to which he aspired, and might lawfully communicate to the electors any facts within their knowledge concerning his character or conduct, and express their' opinions upon them, and their inferences deduced from them, so long as they stated as facts only the truth, and as opinions and inferences therefrom only honest belief. The fault here, if there be one, is that opinions and inferences were not stated as such, but as facts. The defendants sought to justify the statement made, viz., that the plaintiff championed measures opposed to the moral interests of the community, by pi’oving that he supported the two measures stated. To the minds of some, that would be sufficient to establish the truth of the charge. Others would think otherwise. It is manifest, therefore, that we cannot say, as a legal proposition, that the undisputed testimony establishes the truth of the broad charge. Evidently the learned circuit judge took this view. It is evident that the acts proved were sufficient to induce in the minds of some the opinion that plaintiff had supported measures opposed to the moral interests of the community. The judge therefore instructed the jury that such persons were privileged to say so, and directed a verdict for defendants. But, admitting that they were privileged to express their opinions concerning certain acts, was this what was done ? .Did they not go further, and do more ? They did not state what measures were supported, and their opinions of that particular conduct, but said generally and unqualifiedly, as a fact, that the plaintiff had arrayed himself against the moral interests of the community, which, if true, should discredit him with any voter who should believe the statement. It appealed alike to all classes, — those who should look upon the legislation proven as not opposed to the moral interests of the community as well as those holding contrary views; and it afforded no one an opportunity to judge whether the statement was a proper deduction from the facts upon which it was based or not. ■ If one states that a candidate is a thief, without qualification, he communicates a fact pertaining to his fitness^but it is a slander if untrue, whether it was made in good faith or not, although, had he stated the exact facts, and expressed the opinion that they amounted to stealing, though they did not technically constitute the offense of larceny, the communication might be privileged.
The difficulty in this case is that the defendants have been permitted to limit their statement by proof of their intended meaning, while the writing itself contained no hint of limitation. The case of Ellis v. Whitehead, 95 Mich. 115 (54 N. W. 757), is in point. It was there said:
“The fourth request should not have been given. It makes the slander depend entirely upon the intention of the defendant, and, in effect, says that vituperation is not slander when provoked, though it transcend the bounds of truth and propriety. It is going sufficiently far to say that a person may without liability call another a thief under circumstances which show he does. not mean it. To hold that he could do so in the absence of qualifying circumstances, and shelter himself behind a provocation, real or imaginary, adequate or inadequate, would carry the rule much too far. In actions for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring ánother’s reputation; but, if he has in fact done so, he must compensate the party. He may have meant one thing and said another. If so, he is answerable for so inadequately expressing his meaning. * * * Slander, like other wrongs, is actionable because injurious; and, while intention may have much to do with the question of damages, it is not necessarily involved in the question of guilt. ”
We are of the opinion that the court erred in saying that the words were privileged. Not being privileged, it should have been left to the jury to say whether the evidence showed that plaintiff’s support of these measures was opposed to the moral interests of the community as a matter of fact; in other words, to determine the truth of the charge.
It is hardly necessary to cite authorities in support of the doctrine that a candidate for office has a right of action for aspersions upon his character, and cannot be subjected to unwarranted and untruthful charges. In New York no distinction seems to be made between a public man and a private citizen. Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613, 4 Wend. 113 (21 Am. Dec. 102); Hamilton v. Eno, 81 N. Y. 116. A leading case will be found in Com. v. Clap, 4 Mass. 163 (3 Am. Dec. 212). See, also, Curtis v. Mussey, 6 Gray, 261; State v. Schmitt, 49 N. J. Law, 579 (9 Atl. 774); Hunt v. Bennett, 19 N. Y. 173; Pierce v. Ellis, 6 Ir. C. L. 55; Simpson v. Downs, 16 Law T. R. (N. S.) 391; Duncombe v. Daniell, 8 Car. & P. 222. In this last case Lord Den-man said: “However large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate.’’ Bailey v. Publishing Co., 40 Mich. 254; Bronson v. Bruce, 59 Mich. 467 (26 N. W. 671); Wheaton v. Beecher, 66 Mich. 310 (33 N. W. 503); Belknap v. Ball, 83 Mich. 587 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Wolff v. Smith, 112 Mich. 360 (70 N. W. 1010); Austin v. Hyndman, 119 Mich. 615 (78 N. W. 663); Clifton v. Lange, 108 Iowa, 472 (79 N. W. 276); Field v. Magee, 122 Mich. 556 (81 N. W. 354).
The court excluded all proof in relation to the “Pink Circular,” upon the ground that it was not libelous. After charging that Burch is a self-avowed candidate for the liquor dealers, and desires to go to the legislature to work in the interest of saloons, that he edits a scurrilous newspaper, that he is the champion of saloon lawlessness and vulgar theaters, and quoting at length from his writings, as already shown, the pink circular concludes as follows, viz.: “For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff.” The count alleges under innuendoes that the meaning of this circular was that the plaintiff was an indecent and immoral man, and equally as unworthy of support as "Burch. We are "of the opinion that this comparison with Burch cannot mean less than that the plaintiff was a man as unworthy of support as Burch, for reasons not given, except as they may be implied by the charges made against Burch. Some of the charges against Burch were libelous per sej e. g., that he is the champion of saloon lawlessness and vulgar theaters. Thus the pink circular itself furnishes implications throwing light upon the meaning of the words used about plaintiff, and justifying the claim made, viz., that he was represented to be a man of bad morals, and unworthy of support for that reason. We think this also was libelous per se, and should have been admitted, leaving the defendants to prove the truth of the charge.
The judgment is reversed, and a new trial ordered.
Montgomery, O. J., and Long, J., concurred with Hooker, J. | [
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Hooker, J.
The defendant rented premises from the complainant at five dollars per month. When the March rent became due, he was garnished at the suit of a judgment creditor of complainant. The complainant thereupon served the statutory notice, and began proceedings before a commissioner to recover possession of the premises for nonpayment of rent pending the garnishee proceeding; and the commissioner rendered judgment of restitution, which was affirmed on certiorari by the circuit court.
The circuit court seems to have treated the case as one to be heard de novo upon its merits, on the evidence returned by the commissioner, and accordingly filed a finding of fact and law. Our understanding is that this is not a proper practice. The decision of the commissioner upon controverted questions of fact is final, and cannot be reviewed, and the case can only be reversed for errors of law apparent upon the face of the return.
The garnishee proceedings appear to have been regular, and the complainant was apprised of them. She had notice of similar proceedings on one if not two prior occa sions, and neglected to defend them, and was informed of this. The contention of her counsel appears to be that it was the defendant’s duty to disregard the garnishee proceedings and pay. the rent, and that, failing to do that, he was subject to ouster. The statute (1 Comp. Laws 1897, § 1009) suspends a creditor’s right of action for money garnished during the pendency of the proceedings, and we think that this statute should be construed to apply to actions of this kind, where the failure to pay'rent is excused by garnishment.
The commissioner held otherwise in this case, upon the ground that “the indebtedness sought to be reached through garnishment was the rental of a homestead, and exempt from execution, and that the same could not be impounded or held under garnishment proceedings during the pendency of the same. ” This is fallacious. The affidavit gave the justice jurisdiction in the garnishment case. Before it could be determined what the indebtedness was for, and whether subject to garnishment or not, a trial was necessary; and, when determined, the decision would be final, unless appealed from, not only against the garnishee, but the principal defendant also, if reasonably notified of the proceedings. The statute does not require the garnishee defendant to correctly determine in advance the question of liability, at his peril.
The learned circuit judge, in his finding of fact, found that the defendant had notice of the complainant’s claim that the rent was exempt, and acted in collusion- with the plaintiff in the garnishee proceedings. "We do not discover that the commissioner acted upon any such conclusion, and it would make no difference if he did. A debtor has a right to inform another of his indebtedness, and his motive in doing so is unimportant. There is no legal obligation arising from his relation to Miss O’Connor to keep the fact from her creditors, or to prevent him from aiding them to secure their claim against her by information of the fact. He did not conceal from her the pendency of the proceedings, and, while the disclosure does not show it,.there is no reason to believe that complainant’s claim that the money was exempt was concealed.
There seems to have been a bona ficle claim on the part of Miss O’Connor’s creditor that this rent was subject to garnishment, and he may be right about it. Her policy appears to be not to litigate that question directly, but to drive the garnishee defendant into the alternative of taking the risk of the litigation himself, or vacating the premises. The comments of counsel about the property of Miss O’Connor, and the oppression of counsel in compelling her to litigate to pay a debt admittedly just, and the implication that the magistrate would give her no chance, are out of place in the brief, as they furnish no aid in solving the questions of law upon which the case must turn. Her honest debt could doubtless have been paid for a moiety of the expense of this litigation.
The judgments of the circuit court and of the commissioner are reversed, with costs of all courts.
The other Justices concurred. | [
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Martin Ch. J.:
The first question presented, and which disposes of this case, is whether, upon the facts, assumpsit will lie, or whether the plaintiff’s remedy, if he have any, be not trespass.
Whenever a benefit accrues to a party, whether for services rendered, money expended, or property used, or from any other cause, upon which a duty to make compensation to another arises, the law will, in the absence of an express promise to make such compensation, imply one from the transaction and the duty. Thus if A performs labor or renders services for B, at the latter’s request, or with his knowledge and assent, but without a contract for compensation, the law will imply a promise by B to pay A therefor what such labor or services shall be reasonably worth. So when the goods of A have been wrongfully taken or held by B, and sold, although the act of B in taking them, or in their conversion, may have been tortious, yet as he has sold them, and received a benefit from such conversion, A may waive the tort, and bring assumpsit for the price for which they were sold. So when a party enters upon land under a contract to purchase it, which is not performed, and such party is, after such failure of performance, notified that, if he remains in possession, he will be required to pay rent; if he remain, the law will imply a promise to pay rent from the time of such notice. But in the latter case, there can be no promise implied to pay rent for the occupation while the contract was in force, because no payment of rent could, during that time, have been in the contemplation of either party, and no such duty existed. And where one has the clear right to • the use and control of property, and permits its use by others, upon condition of payment therefor, when the condition is specific in terms the law will imply from the use by one having knowledge of the terms an assent to them, and a corresponding promise to pay; and when not known, a promise of reasonable compensation. In the first case, the implication is founded upon the knowledge of the terms and conditions of the use, and in the latter upon the duty arising from the use; but in neither will it be made, when the party using it asserts adverse rights, and acquires and uses the property under an adverse claim of right. These are principles which, notwithstanding the diversity of opinion upon kindred questions, are clearly settled and recognized. But we are not aware of any principle upon which it can be held, that a mere naked trespass'can be made the basis of an implied assumpsit. If the trespass be proved, no presumption of an agreement for compensation can be raised; for the act of an- entry upon lands is in contravention of, and not in subordination to, the rights and claims of the party injured. For such injury the law has given a different remedy; and one founded upon the injury; and no promise can be implied to pay, but a liability arises to compensate for the wrong and injury.
It was said in Hosmer v. Wilson, 7 Mich. 294, that the liability, in cases of implied promises, is founded upon a duty which the law imposes upon the party receiving the benefit, to pay; and that this duty the law enforces under the fiction of an implied contract; and Martin B. in Clay v. Yates, 36 E. L. & E. 546, in speaking of the liability, says: “I should say the duty of the man to pay arises out of the transaction itself; and think this, is a more correct expression than talking of an implied contract, when a contract was never made.”
If, therefore, the plaintiff has a right to require com pensation for the nse of his canal prior to the notice of June 1st, from the simple fact that the defendants have used it, then a duty arises upon their part to pay such compensation, and the law will imply a promise tb pay: but if he has no such right, no duty to pay arises from the assertion of such right, or from the fact of the use. Now the canal, upon the ease presented, was clearly a private way. It is true that it was dug by contribution, and was for a time thrown open to all passers; and perhaps still is, to those who contributed towards its construction, or those who have since contributed towards, keeping it in repair. But it was nevertheless upon the land of the plaintiff. No evidence exists, tending to show that the waters of Mill Creek ever ran along its" line, or that it was the improvement of an existing water channel. Indeed, the contrary is evidently the case; and the fact that it was dug through a marsh (the land belonging to-the plaintiff) in which the creek was lost, does not render it a part of the stream, so as to confer upon the public any rights of way along it.
It exists, then, as a way or passage, opened by the plaintiff, and which he might dedicate to the public, or reserve for his private use at his option. Whether those who joined with him in its construction have or have not the right of passage along it, or what their rights may be, are questions not before us; but so 'far, at least, as all others are concerned, no .such right exists; for no dedication to the public is shown; nothing more than a sufferance of its use, which he might revoke at any time. For its use, while this permission existed, he had no right to demand compensation, nor will the law raise a duty to pay it.
But he had a right to require payment or compensation, before he would at any time suffer its use by individuals upon whom the right had not been specially conferred; and in such ease, those using it would be liable to pay therefor according to the terms imposed, if assented to, or if used under circumstances from which the law would imply assent. In Wadsworth's administrator v. Smith, 11 Me. 278, which was assumpsit on an account for slij^ping logs along a stream which had been made floatable for logs and lumber by the application of artificial means at the expense of the owner, while the right to exact toll was questioned, it was held that a proprietor may open a passage through his land for his own accommodation, and he may permit others to psss it under an agreement for compensation which may be enforced at law. “He may yield the enjoyment to one and refuse it to another. If he receives compensation for such enjoyment, the law will permit him to retain it; if he accept a promise as an equivalent, the law will enforce it, and a promise may as well be implied in such a case as in any other.”
The plaintiff, therefore, having, until the giving of the notice of June 1st, suffered the public to pass along his canal without objection, or making any demand for compensation, must be confined to his claim upon such use of the canal as occurred after such notice.
For the purpose of a revocation of the general license, and a declaration that compensation would thereafter be demanded, the notice, having come to the knowledge of the defendants, was sufficient and competent to impose upon them a liability to pay for its use, according to the terms of the notice, if subsequently used, had the right to demand any compensation been acknowledged, or reeog-nized and not denied; for in such case the law will presume that they used it upon the terms imposed,' and raise the corresponding duty, and imply the contract accordingly. But in the present case, all such implication is precluded by the fact that the defendants denied any right to demand compensation for the ¡ use, and used it in defiance of the plaintiff’s claim, and under claim of right in themselves; and they can not therefore be presumed to have acceded to the terms imposed.
If, then, any duty can be implied, it is to pay what such use is reasonably worth. Now, as already remarked, the plaintiff had a right to require payment, as a condition to the use of the canal; and had he required such, but fixed no price, and the defendants had used it with knowledge of such terms, and under the condition, beyond doubt the duty would be raised to pay what such use would be reasonably worth; but if the effect of a denial of the right to demand compensation, and a use of the canal in contravention of the claims asserted by the plaintiff, will prevent the implication of a duty to pay a specific rate imposed, how can it be said that it will still raise the duty of paying according to its worth? If the denial goes to anything, it must go to the whole claim of the plaintiff for compensation, and will preclude every presumption of the recognition of a duty upon which a contract can be implied; while, on the other hand, if the law will imply a duty, it will imply one co-extensive with the terms im. posed. It goes to the whole remedy, whether for a specific price, or for reasonable compensation. But the law implies the duty only where the right of dominion over the subject matter is conceded, or not questioned; and never where the use is under an adverse claim of right, or a denial of that asserted. In such case, the entry, being adverse to the plaintiff, is a naked trespass, upon which no duty to compensate, which can be converted into a contract, arises; for such duty can only be implied where the conventional or implied relation of promiser and promisee exists, or where the duty springs from some change of relation after the wrongful act, as in the case of the conversion into money of property wrongfully taken, and the like. If he could be held to be a promiser in such case, under any implication of law, no valid reason can be given why an intruder, under a claim of right, may not be so held in all cases. The con elusion can not be avoided that in such a case he can not be regarded in any" other light than as a trespasser; for he not;only enters upon the property in opposition to the notice of the owner forbidding it, except upon the terms of recog, nizing and responding to his right to require compensation, but also under the assertion of a claim of right inconsistent with and adverse to that made by the owner.
The subject of tolls, and the right of the plpintiff to collect them, was very elaborately discussed in this case, but, under the views we have taken, it does not become necessary for us to consider, it.
From the views already expressed, it follows that the defendants in this case are mere naked trespassers, and no assumpsit can be implied from their use of the canal; and this view renders it unnecessary to consider any other of the questions raised.
The judgment is affirmed.
Campbell J. concurred. Chkistiancy J. also concurred in the result.
Manning J.:
I think trespass, and not assumpsit, is the proper action. Was the stream navigable before the canal was
dug? The defense is that it was, and that defendants, in common with other citizens of the state, had a right to use it to float their logs. The law will not imply a promise in such circumstances,'for there is nothing to base a promise upon, as defendants received no benefit from the use of the canal, if their defense be true.
Assumpsit for money had and received is an equitable action, and may be brought when one person has money in his hands that in equity and good conscience belongs to another. But that is not this action, which is assumpsit to recover compensation for the use of plaintiff’s canal, and, like assumpsit for goods sold and delivered, or for Work and labor, will lie only on a promise, express or implied.
When plaintiff’s goodsi have been wrongfully'! taken, it is said he may waive the trespass and bring assumpsit for goods sold and delivered. This may be so where defendant lays no claim to the goods, and the trespass is wholly wanton on his part. But when he claims them as his own, or claims a right to the possession of them, and justifies the taking on that ground, trespass 6and not assumpsit is the proper remedy. In a case of pure trespass, by which I mean one committed without color; of right to the property taken, the court may well say to defendant. You shall not be permitted to defeat the action by show-big you took the goods without intending to pay for them, or with an intention to do a wrong with which the plaintiff, by putting a more charitable construction on your conduct, has not thought proper to charge you, This, I think, is all that is meant by waiving the trespass and suing for goods sold and delivered. There is no objection to such a course when the trespass is wholly separate from the right of property; but when it is mixed up with the right of property, and the question of trespass or no trespass depends on that right, and must stand or fall with it, the trespass can not be waived, because none is admitted; and the law will not imply a promise to pay, as defendant took the goods in his own right.
The case at bar does not involve the right to personal property, but the right of the public to an easement over plaintiff’s land. If the stream was navigable when the canal was dug, the public still has a right to use it; otherwise not, unless it it has since been dedicated to the public.
It was urged on the argument, as a reason why the court should sustain the present action, that in trespass the plaintiff could recover nominal damages only. I do not think so. In trespass for breaking and entering his close, he may allege and prove the use of the canal by defendants as special damages.
Judgment affirmed. | [
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] |
Christiancy J.:
The only question properly reserved for our opinion, in this case, is that raised by the demurrer.
The averments on the part of the propounders of the will, for the purpose of forming an issue upon its validity, should, we think, include every thing necessary to constitute it a valid will under the statute, so that a verdict finding the truth of all those averments, without more, would bring the instrument within all the express requirements of the statute.
The law in case of intestacy, that is, in the absence of a will which is valid under the statute, fixes the descent and distribution of the property of deceased persons. Under •certain conditions which the statute has prescribed, and in no other event, it allows the owner to control the disposition of his property after his death, by means of a will. The power to make wills, the formalities with which they shall be executed, and their efficiency, depend upon the statute.
The only persons recognized by the statute as competent to make a valid will, are persons “ of full - age and sound mind.” Soundness of mind, then, in the testator, at the time of making the will, is one of the statute requisites to its validity.
But, it is said, the law presumes this soundness of mind till the contrary be proved: that soundness .of mind is also necessary to the validity of deeds, contracts, and other writings besides wills, and yet that it is never necessary, in pleading such deeds, contracts and other writings, to aver soundness of mind in the parties executing them. This is certainly true in the case of deeds and all ordinary contracts and writings inter vivos, and yet soundness of mind is necessary to their validity. But in these cases "the law only implies the necessity of the fact, without expressly requiring it; and where its necessity rests only upon implication, the presumption of sanity which the law raises without proof, is sufficient to satisfy the implication of its necessity, without averment.
But where the Legislature- have not been satisfied to leave the necessity of the existence of the fact to implica-, tion, but have thought it necessary to require its existence by express enactment, upon what principle can a pleading, which sets up a right under the statute, leave the same fact to implication which the -Legislature were unwiL ling to leave to the same implication? Where the statute has expressly required the existence of the fact, the pleader, we think, must expressly aver it.
We will not say here that there can be no presump-, tion under our statute in favor of soundness of mind in the case of a will. The case, as presented by the demur-, rer, does not call for a decision upon a question as broad as this. But it is manifest from the nature of things, and from common observation and experience, that this presumption is not so strong in the case of wills generally, without special reference to the facts of any particular case, as in the 'case of deeds and ordinary contracts. In-, struments of the latter description are generally executed in the common course of business, while the parties are in full possession of their ordinary physical and mental powers. Wills, on the contrary, are much more frequently, if not in the majority of cases, executed when the testar tor is in extremis, when the physical powers, at least, are greatly impaired, and the mental faculties much more likely* to be weakened or obscured.
We think the statute intended to recognize this obvb ous difference between the two classes of cases when, in defining the persons competent to make a will, it expressly requires soundness of mind in the testator, while it is silent ■ as to that requisite in the case of deeds and other contracts. We can see no other sufficient reason for expressly requiring it in. the one case, and not in the other.
But all wills are not made when the testator is in extremis. They are sometimes executed long before his death, and while in full physical health. In such cases, doubtless, the reasons are just as strong for presuming soundness of mind, as in the ease of deeds or contracts. And while we do not deny, as an abstract question, that there may be, in cases of wills, without reference to the facts of any particular case, a presumption of soundness of mind in the testator ; yet, as matter of fact, the force of the presumption must depend much upon the circumstances of each particular case as disclosed by the evidence; and when the question arises only upon a pleading like the present, which discloses none of the circumstances of the case, and is to be decided in the abstract, as a. question of pleading under the statute, the presumption, if there be any, is not strong enough, we think, to dispense with the averment of the fact.
We are therefore of opinion the demurrer is well taken; but the parties propounding the will should, of course, be allowed to amend.
It follows from the view we have taken of the pleading, that the burden of proof, as to soundness of mind, rests upon the parties seeking probate of the will.' This, we think, is also to be inferred from the eighteenth and nineteenth sections of chapter 92 Compiled Laws, in reference to the proof of wills by one subscribing witness only, when not contested, as well as where all the witnesses reside out of the state; in both of which cases the statute assumes the necessity of such proof.
But, beyond this, upon any particular question of evidence growing out of the presumption in question, and the burden of proof, we express no opinion, as we could only do so upon hypothetical cases, which might have no bearing upon the case as presented on the trial, and which have not been, and could not be argued in the case as now presented.
Whether, in the absence of all evidence upon the point, the subscribing witness being ignorant respecting it, and nothing appearing to throw doubt upon the sanity of the testator, the legal presumption would be sufficient to sustain the burden^ of proof till overcome ■ by opposing evidence; Whether, if the evidence were equally balanced, this presumption should turn the scale in favor of sanity, or whether there must be a preponderance of evidence in its favor inde-. pendent of the presumption: Whether upon the formal proof, by the subscribing witnesses, of its execution, and the soundness of mind of the testator, the burden of proof changes to the contestants, to prove unsoundness of mind > and which party is entitled to open and close, upon the whole case, or certain branches of the case: — All these are questions upon which there is, perhaps, as- painful a conflict of judicial decisions as upon any other questions to be. found in the books. — See 1 Jarm. on Wills, (3 Am. Ed.) pp. 74, 75, and notes, where the various cases are collected; and see Baxter v. Abbott, 7 Gray 71, and Crowninshield v. Crowninshield, 2 Gray 524.
' Many of these questions might depend much upon the precise nature of the issue or issues formed upon the pleadings, and much also, upon the circumstances of each par-, ticular case, as disclosed by the evidence. The attempt to lay down rules a priori, upon questions of so much difficulty, would be dangerous in the extreme. We therefore refrain from the intimation of any ojDinion upon them, until a case shall be presented which may render it necessary.
The other Justices concurred. | [
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Manning J.:
The will was made and executed in the state of New York; hut it is of no importance whether it was executed there or in Michigan, or whether the testatrix at the time was a resident of New York or Michigan, as the law of each state was complied with in its execution. Nor was there any error in admitting the depositions of Nolton, Hempstead, and Starrin, the witnesses to the will, to go to the jury as evidence of its execution and publication by the testatrix. It could not be expected, after the lapse of thirty years, they should recollect all the particulars attending- the execution. It was for the jury to give such weight to their evidence as they might think it entitled to, under all the circumstances of the case.
But the judge erred, we think, in refusing to receive evidence of the declarations of the testatrix • that she had destroyed her will, and in not admitting a letter of hers, stating- her will was destroyed. Such evidence is not admissible as proof in itself of a revocation, for the statute provides, “no will, nor any part thereof, shall be revoked unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction;” “ or by some other will, codicil or other writing- executed in the manner provided for the execution of'a will:” — Comp. L. 12833. The first we hear of the will after its execution in 1824, is the finding of it by Feeck in 1849, “in a barrel among- a lot of waste paper, newspapers, pamphlets, and some old letters.” He says, “it was sejiarated at the top, and was in a number of pieces, and the different pieces were scattered loose among the papers in the barrel.” It consisted of a number of half sheets of paper, some of which were separated in two pieces, and a piece was torn out at the top. He gathered them up, matched them, and fastened them at the top, and kept them in his possession five and a half years. A will found as this was, in a barrel among old letters and other papers of no account, and in the mutilated, condition stated, needs some explanation of these circumstances to admit it to probate. The piece torn out at the top and the separation of the half sheets can not be accounted for by the age of the instrument. They are evidence of violence, or an intentional injury to the instrument; but whether done by the testatrix or some other person; and if done by her, whether accidentally, or intentionally and for the purpose of revoking her will, were questions of fact to be determined by the jury. To aid them in arriving at a correct conclusion on these points, and not as separate and independent evidence of a revocation, we think the declarations of the testatrix should have been permitted to go to the jury, for what they were worth, under all the circumstances. See opinion of Chancellor Walworth, in Betts v. Jackson, 6 Wend. 173.
Foster was a competent witness for the will. Neither he or his wife, who is a legatee, is a party to the suit. His wife was interested in the matter in question, or in the event of the suit. But that is no disqualification under the statute, unless the suit is prosecuted “wholly or in part, in the immediate and undivided behalf” of his wife. In Freeman v. Spalding, 2 Kern. 372, it was held, under a like statute, that a residuary legatee was a competent witness for the executor, in a suit brought to recover a debt due the estate: — Bank v. Palmer, 2 Sand. 686; Hart, Admr. v. Stephens, 6 Q. B. 937 ; Kill v. Kitching, 3 M. G. & S. 299.
Judgment reversed and a new trial granted.
The other Justices concurred. | [
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Campbell J.:
The rights of the plaintiff in this case depend entirely upon the doctrines applicable to riparian proprietors upon the water communication which is known as Detroit river.
Some reference was made on the argument to the general system of law prevailing here, in view of the former history of the country; but we deem it useless to enter into any extended examination of this question. It is undoubtedly true that at one time the Custom of Paris was in force here. It was expressly abrogated by the Territorial Legislature in 1810, and probably applied to very few cases then, if to any. Practically the common law has prevailed here, in ordinary matters, since our government took possession; and the country has grown up under it. How, or by what particular means, it originated, would open an inquiry more curious than useful. A custom which is as old as the American settlements, and has been universally recognized by every department of government, has made it the law of the land, if not made so otherwise. Our statutes, without this substratum, would not only fail to provide for the great mass of affairs, but would lack the means of safe construction. We are of opinion that questions of property, not clearly excepted from it, must be determined by the common law, modified only by such circumstances as render it inapplicable to our local affairs. Such was the view taken in Stout v. Keyes, 2 Doug. Mich. 184, and in the opinion of Mr. Du Ponceau, cited in 1 Bish. Cr. Law, §15, n. 4.
There are ,no tide waters within this state, and there fore no waters which, by the technical meaning of the term “navigable” at common law, would come within it. But we have more than a thousand miles of external boundary waters, which are open to navigation in the popular sense, and many interior streams valuable for purposes of public convenience and passage. The inquiry before us is, whether our circumstances require the common law rule to be so modified as to apply the doctrines belonging to tide waters, navigable in the common law sense, to these waters, which are beyond the tidal influence.
By the Ordinance of 1787, these Avaters, Avhich are there designated as “navigable,” are declared to be public highways. No special force can be derived from this language however, for it applied very evidently not only to ship and vessel navigation, but more generally to the passage of canoes and bateaux, which Avere then the chief means of conveyance, there being few large vessels and fewer land roads. But the Ordinance couples with the waters the portages or carrying places connecting them, and which Avere used by the parties making long voyages in small boats, in passing from river to river. Such were the portage between Fox and Wisconsin rivers, that around the falls of St. Mary, and others. We are therefore compelled to look at the nature and situation of the streams themselves, and not to any mere verbal nicety. And it becomes necessary to glance at the rules of the common laAv as applied in England, and to see how and wherein our position may require a modification of them.
There are, in England, two kinds of water highways. All rivers and streams above the ebb and flow of the tide, which are of sufficient capacity for useful navigation, are public rivers, and subject to the same general rights which the public exercise in highways by land, to which Lord Hale aptly likens them. In these streams the adjacent proprietor owns the banks and bed, and has a right to make such use of this land, and of all benefits of the stream, as will not interfere with the public easement or servitude. Formerly it was doubted whether a right to the use of the bank for towage was not appurtenant to the public easement of navigation, but it is now declared to exist only in particular places by local usage.' — Ball v. Herbert, 3 T. R. 263; Blundell v. Catterall, 5 Barn. & Ald. 268. Wharves, or other appropriations of the bed of the stream were only allowed So far as they did not actually obstruct free navigation, and when they did so, they were indictable as public nuisances.’ Their analogy to highways was complete. — Hale de Jure Maris, ch. 2, 3.
All navigable waters in which the tide ebbed and flowed were also public highways. The right of navigation was precisely like that in other public rivers, ánd there was no right to use the banks for towage. But there were some important distinctions to which we must ’carefully attend. The grant of land bounded by the stream did not convey the fee to the centre or thread of the stream, but stopped at the line of ordinary high tides, which is declared in the late case of Attorney General v. Chambers, 27 Eng. L. & Eq., 242, not to extend up to the line of highest tides, but to that medium line which is the average bound of ordinary and natural high tides throughout the year. The shore (which signifies the land between high and low tide), and the bed of the stream, were the property of the King or of individvals, but presumed to be in the King until shown to belong elsewhere. When owned by the King, it was as part of his Jus privatum, and subject to be disposed of by him until restrained. — See Attorney General v. Burridge, 10 Price 350; Attorney General v. Parmeter, Ibid. 378 ; Parmeter v. Attorney General, Ibid. 412. And it was subject to substantially the same rules and burdens whether- owned by the King or by private persons. — Mayor of Colchester v. Brooke, 7 Q. B. 339, and cases above cited. The public had a right of navigation over the whole bed of the stream at high tide, and over the water, so far as it was practicable, at all tides. As this was a common law right, and only to be repealed by Parliament, the King could not,' neither could any one by his authority, make any erections which .would obstruct navigation. Thus far his rights were qualified by the public easement, precisely like those of a private owner in the bed of a public stream above tide water. In both classes of streams the public easement controlled the use of the land. The easement reached the high water line whenever the tide was up, and prevented any permanent improvements below that line as effectually as below the ordinary river margin, and no more so, and for no different reason. The owners of the soil in both streams could make any erections which were not nuisances, and their character as nuisances was to be determined as a question of fact: — • King v. Tindal, 1 Ad. & E. 143; Regina v. Betts, 22 Eng. L. & Eq. 240; Hale de Port. Mar., pt. 2 ch. 7 p. 85. The Legislature could grant to the owners in either case the right to make such erections as would otherwise be unlawful, for they may determine or extinguish any public right; and this power has frequently been exercised; and, when occupied for public use, by railroads, or other works, the owner, whether King or subject, is entitled to his "damages for the use of it. — See Rex v. Montague, 4 B. & C. 598; Abraham v. Great Northern Railway Co., 5 Eng. L. & Eq. 258.
The principle which gives the land between high and low water mark to the crown, is said, in the case of the Attorney General v. Chambers (above cited) to be “ that it is land not capable of ordinary cultivation or occupation; or, according to the description of Lord Hale, as generally dry and manurable; and so it is in the nature of unappropriated soil. Lord Hale gives as his reason for thinking that lands only covered by the high spring tides - do not belong to the crown, that such lands are for the most part dry and manurable; and, taking this passage as the only authority at all capable of guiding us, the reasonable conclusion is that the crown’s right is limited to lands which are, for the most part, not dry or manurable.”— See also Lowe v. Govett, 3 B. & Ad. 863.
Here then we have the doctrine very clearly maintained, that the riparian owner takes all the ' land which is of any use for ordinary purposes, and all which is not commonly submerged by the average ordinary high tides, which would seldom leave any of the shore dry more than twenty-four hours at a time. It is not reserved, therefore, as useful land, bxrt as waste land which is characterized by the water service over it. And the firm land, which is made by alluvium, becomes private and not crown property.-— Gifford v. Lord Yarborough, 5 Bing. 163; Scratton v. Brown, 4 B. & C. 485. But as the public are sometimes said to have rights to some easements on the shore, it may be well to notice what those rights are.
The case of Blundell v. Catterall, 5 Barn. & Ald. 268, contains a more full investigation of this subject than any other modern case to which our attention has been called. As we have already seen, the public rights are in general the same whether the soil of the bed and 'shore of tide waters is owned by the crown or by individuals. In the case now referred to, the plaintiff, a private person, owned the shore and upland, and brought an action of trespass against the defendant for crossing the shore on foot, and with carriages and bathing machines. ' The defendant justified on a claim of a public right of way for bathing purposes. The case was considered by the court upon the' general law of the land, and may be regarded therefore as a fair exposition of it. It was held by all the court except Best J. (Abbott C. J., Holroyd and Bayley JJ. concurring) that no general right existed under which the defendant could justify. And it was laid down as a general rule, that the public rights over the shore existed not as land but as water - rights, to be exercised when the land was covered by the tides. The only public rights recognized as commonly existing on such waters were those of navigation and fishing; and it was left undecided whether any common right of fishing could ever exist where 'the. soil was private. And it was very clearly held that no one could, of right, plant stakes or other temporary or permanent conveniences for drawing nets on any part of' the sea-shore, whether private or not, except the land owners. The right of landing, and of loading and unload-, ing, was held to exist (except by particular custom) only in ports and established landings. And, while it was said that it was quite common to use the shore for various pur-* poses of passage, that use was regarded not as rightful, but merely by sufferance, and analogous to the frequent passage over unenclosed lands, which was not lawful, but was seldom complained of.
When, therefore, we look at the state of the common law upon the subject before us, it is very evident that the ebbing and flowing of the tide, and not the mere sus-* ceptibility of the stream to purposes of useful navigation, has made the distinction between the rights of riparian owners on the fresh and tidal public streams of England and that, where these happen also to own the shore on tide waters, their ownership is not distinguishable for any useful purpose, if at all, from their dominion over the beds of fresh water public rivers. By giving in all cases the whole extent of dry and available land to the bordering owner, the law left to the crown, in any case, a very unprofitable ownership, which could rarely aid him, or any grantee, unless the latter owned also the upland.
In both kinds of public streams the rights of naviga-. tion were the same; and, so far, the public at large had no interest whatever in the question of ownership of the bed of the water. The right of fishing in navigable rivers, was not originally a general common law right of every subject, excluding the possibility of a private right to a several fishery, but a prerogative right of the crown, and grantable with, if not attached to, the soil in private hands. Considering the high esteem in which navigation was held in England, we may be sure that no principle would have been allowed to grow up into common law, which would materially impair the shipping interest. And the adjudged cases recognize the common sense doctrine that it did not matter who held the fee of property, so long as the public easement was maintained. We do not find that the public rights over navigable Avaters belonging, Avith their beds, to manors, were any more hampered than when the title was in the croAvn. The doctrine that the whole public easement ceased Avith the destruction of the navigable character of the waters, is intimated in Rex v. Montague, 4 B. & C. 498, and strongly confirms Blundell v. Catterall in the limitation of public rights not depending on navigation.
The Roman law recognized the title of the river beds as belonging to the riparian proprietors, subject to the public easements of passage and toAvage, and of moorage on the banks. The modern civil law is said to be generally different in this respect; but it is laid down by Justinian that all newly-formed islands belong to the riparian proprietors; and Vinnius demonstrates that this right is incident to and derived from the ownership of the bed. — Vinnius Com. on Justin. Lib. 2 Tit. 1, §§4, 5, 20, 22, 23. And see also the opinion of the Chancellor in Canal Appraisers v. The People, 17 Wend. 592, 3.
It is also worthy of remark, that in this country, in most of the states where it has become necessary to discuss tideAvater rights, all of the modifications made have been in favor of riparian owners, extending their privileges beyond those at common law. We do not deem it necessary to review the many cases cited on this subject by counsel. They differ in many particulars, but in most of them we perceive an enlargement of riparian privileges, and in no case is there any curtailment of them.
In applying the principles of tthe common law to the tideless stream in question, we do not perceive what public interests would be subserved by placing it on the footing of tide waters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding. And the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. "We can perceive no advantage to the state in setting up a barren and useless title. We think that in this respect the common law is already adapted to our circumstances, and needs no changing.
It is urged that this ruling will interfere with the improvement of rivers, and disturb the title of islands. But these objections are not well taken. The public authorities can regulate water highways as well as land highways, although the soil of neither belongs to the state. And if the government see fit (as is the case with all islands in this river, which have not only been kept separate as property from the mainland, but most have been named and distributed between Great Britain and the United States by treaty) to regard each island as a separate property, this infringes no common law rule. Islands have always been susceptible of separate ownership, and when so separated the Jilum aqua,e is to be drawn between them and the mainland. The facts before us create none of the embarrassments which have been suggested to us, and we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege in securing that which has become stationary on the freehold; and we can conceive of no reason which would justify a denial of it. And we think a trespass creating an obstruction which prevents it, justifies a finding of damages for this as á direct consequence of the injury. — White v. Mosely, 8 Pick. 356. The right to raft logs down the stream does not involve the right of booming them upon private property for safe keeping and storage, any more than the right to travel a highway justifies the leaving of wagons standing indefinitely in front of private dwellings or stores. And the booms in question were erected under a license from the plaintiff’s grantor now determined, and not under any right or claim of right as appurtenant to navigation.
The cases cited from Ohio, Indiana, Illinois, and Wisconsin, as well as from some of the older states, show, as we think, that the common law rule is the most desirable one, so far as fresh streams are concerned.
Had the usage of this region been inconsistent with the rule we have adopted, that might afford some reason for doubting its applicability. But usage has uniformly conformed to it, and, so far as we have any legislation bearing Upon the subject, it recognizes the rights of private owners fully. The charter of Detroit, passed in 1827, contained the following provisions: “ That nothing in this act contained shall be construed to vest in the said corporation, or any officers thereof, any right to the water, or the land undijr the water, in front of the farms included within the said city, nor any power to erect, or cause or authorize to be erected, any wharf or other thing on the said land; but the right of the proprietors of the said farms, to the water and land in front of said farms, and to fill in the water, and erect fixtures thereon, shall remain and vest in said proprietors the same as if this law had not passed. R. L. of 1827, p. 588, §49. This provision was preserved in terms until the passage of the new charter of 1857, which'indirectly recognizes the same principle, by giving to the city power to regulate navigation, and to build wharves on their own property; but, as to all other property, merely to establish a line beyond which wharves shall not extend. — L. 1851, p. 95. The right of individuals has been constantly asserted and exercised.
"We think that the plaintiff has, under his lease, a legal interest in the land covered with water, which will support the action of trespass; and that the hindrance in taking ice was the proper subject of damages under the case presented.
The other Justices concurred. | [
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Christianct J.:
The only question in this case is, when did the note become due? Was it a year from the date of the note, or a year from the fifteenth of August following?
The first construction renders the phrase “ August 15th,” repugnant to all the other words of the instrument relating to the time of payment, and requires us to presume that the phrase in question was inserted by mistake, or with the intention of rendering the instrument nonsensical or repugnant, or without any purpose whatever. Prima facie, at least, all the words of an instrument must be presumed to have been inserted for some purpose; and it is little short of absurdity to attribute to the parties an absurd intention, when a reasonable and intelligible one can be extracted from the language of the whole instrument.
The second construction, which makes the note payable a year from the fifteenth of August following, gives full effect to the phrase in question, and to all the other words of the instrument, avoids all incongruity, j and, while it attributes to no word or phrase a meaning not sanctioned by the common usage of the language, makes the entire instrument sensible and consistent. We can therefore have no doubt that the latter is the true construction, and expresses the real intention of the parties.
The note should be read as if written “on the fifteenth day of August, one year after date;” or “ one year from the fifteenth of August, after date;’’ either of which is equivalent to “ one year from the fifteenth of August next.” But it is said, the office of interpretation or construction is to ascertain the intention of the parties from the words which they have used; and that we are not at liberty to insert words which they have omitted, and which are not to be found in the instrument.
This rule is correct when taken with its proper limita tions. But it must be understood with this qualification, at least, that words the omission of which by way of ellipsis, is sanctioned by usage, for the sake of brevity, and which are necessarily understood in order to give an intelligible meaning to the words used, or to complete the grammatical construction, must often be supplied, or, what is equivalent, understood as included in the words used.
Such grammatical ellipses are of frequent occurrence in all written instruments, and are common to all languages, whether written or spoken; but no where, perhaps, more common than in mercantile instruments, because brevity is no where more essential. Thus, drafts are made payable “at thirty days date,” or “at ten days sight.” No one ever doubted that, in legal, as well as grammatical construction, a preposition is to be supplied or understood before the words “ date” or “ sight;” and this is all that is required in the case before us.
Without this qualification of the rule which confines us to the words of the instrument, it may well be doubted whether any commercial contract could ever be sustained. No rule of construction requires us to abjure commonsense, by refusing to understand words clearly indicated by the context.
Phrases similar to that here in question, are in common use, not only by the illiterate, but by some who aspire to correctness and even elegance of language. Thus, we frequently hear the phrase “ on Saturday week,” or “ a year the first of August,” or “ the first of August a year;” and when used in reference to a future event, no one ever doubted that these expressions were equivalent to “ a week from next Saturday,” or “ a year from the first of August next.” Words and phrases have no inherent meaning, but acquire their signification from usage alone.
The Circuit Court erred in rejecting the phrase in question as repugnant. The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Long, J.
On August 3, 1900, respondent was arrested on a complaint charging that:
“F. P. Bunker did on the 3d day of August, A. D. 1900, at the city of Hillsdale, in said county, go about the city of Hillsdale on foot, from place to place, carrying with him samples of goods, wares, suppliés, and property, to wit, a sample jackknife,' which he, the said F. P. Bunker, then and there did offer for sale by sample, without first having paid a license fee and obtained a license therefor, as provided by, and in violation of, an ordinance of the city of Hillsdale entitled ‘ License Ordinance,’ passed May 20,1898, and amended June 2, 1898, and August 22, 1898, and against the peace,” etc.'
The ordinance referred to in the above complaint read’s:
“Peddlers, or persons going about said city on foot, from place to place, carrying with them any goods, wares, supplies, or property, or samples of the same, and selling or offering for sale the same, either by sample or otherwise, shall pay for each weekly license the sum of five dollars.”
On being arraigned before the justice, the respondent refused to plead, and was thereupon tried before a jury, convicted, and sentenced to pay a fine. He appealed to the circuit court, and the case was there brought on for trial before a jury, which, by the direction of the court, returned a verdict of guilty. The case comes to this court on exceptions before sentence.
It appears that the respondent is a resident of Indiana, and had been employed for about a year by the Novelty Cutlery Company, whose business is located at Canton, Ohio, to sell pocketknives and razors made to order; that at the time of his arrest he was soliciting orders for pocketknives ; that the samples of knives carried by him bore divers emblems, devices, and pictures, and two of them printed matter, on the handles; that he would go to business places and solicit orders from individuals, giving the customer the choice of any of the shapes, or combination of them, any style of blade, putting on name if desired, or photograph, emblem, or device, as might be chosen by the customer; that he carried nothing but knives; that if he took an order he would send it in to the company at Canton, Ohio, and it would be there made, and sent to him for future delivery. In this manner he solicited and procured orders from several persons. Respondent testified that he did not have with him, or at any place in the State, any stock of knives with which to furnish customers or to fill orders; that every knife for which an order would be taken would be furnished by the firm at Canton, and sent to him for delivery. On the trial, counsel for respondent objected to the introduction of any evidence under the complaint, the principal objection being that the ordinance was invalid in so far as it affects those engaged in interstate commerce, because in violation of section 8, art. 1, of the Constitution of the United States, which vests in the Congress of the United States the power to regulate commerce among the several States.
We think counsel are right in their contention, and that the jury should have been directed to acquit the respondent. The case is ruled by Brennan v. City of Titusville, 153 U. S. 389 (14 Sup. Ct. 839). In that case it appeared that the ordinance required persons who solicited orders -on behalf of manufacturers of goods to take out a license and pay a tax therefor. The ordinance was passed under authority conferred by a statute of the State granting municipalities power to levy and collect license taxes on hawkers and peddlers. It was held that this was not an exercise of the police power of the State, but of the taxing power, and imposed a tax upon interstate commerce, in violation of the provisions of the Constitution of the United States. It appeared that picture frames which respondent was selling by sample were manufactured in Chicago, 111., and the manufacturer resided in that State. He employed respondent as his agent to travel and solicit orders for picture frames in the State of Pennsylvania and other States. Upon receiving orders for the frames, he forwarded them to the manufacturer at Chicago, and the goods were sent by express either to the purchaser or to the agent, and the moneys collected and sent to the manu facturen Mr. Justice Brewer, after a review of the cases in that court, said:
“ It is undoubtedly true that there are many police regulations which do affect interstate commerce, but which have been and will be sustained as clearly within the power of the State; but we think it must be considered, in view of a long line of decisions, that it is settled that nothing which is a direct burden upon interstate commerce can be imposed by the State without the assent of Congress.”
The court then refers to the case of Leloup v. Port of Mobile, 127 U. S. 640 (8 Sup. Ct. 1380), quoting the language of Mr. Justice Bradley in that case, as follows:
■“ Of course, the exaction of a license tax as a condition of doing any particular business is a tax on the occupation, and a tax on the occupation of doing a business is surely a tax on the business.”
The court, continuing, said:
“ It is clear, therefore, that this license tax is not a mere police regulation, simply inconveniencing one engaged in interstate commerce, and so only indirectly affecting the business, but is a direct charge and burden upon that business; and, if a State may lawfully exact it, it may increase the amount of the exaction until all interstate commerce in this mode ceases to be possible.”
The court also referred to the case of Robbins v. Taxing District, 120 U. S. 489 (7 Sup. Ct. 592), and said:
“Robbins was engaged in soliciting in the city of Memphis, Tenn., the sales of goods for a Cincinnati firm, exhibiting samples for the purpose of effecting such sales, his employment being that which is usually denominated that of a ‘drummer.’ This business was declared by a statute of Tennessee to be a privilege for which a license tax was required. Robbins was convicted of a violation of that statute. The statute made no discrimination between those who represented business houses out of the State and those representing like houses within the State. There was therefore no element of discrimination in the case; but nevertheless the conviction was set aside by this court on the ground that, whatever the State might see fit to enact with reference to a license tax upon those who acted as drummers for houses within the State, it could not impose upon those who acted as drummers for business houses outside of the State (and who were therefore engaged in interstate commerce) any burden by way of a. license tax.”
We think the present case comes so fully within the rule in that case and the cases cited that any discussion of it is unnecessary. The court below was in error in sustaining the conviction.
The conviction must be set aside, and the respondent discharged.
The other Justices concurred. | [
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Moore, J.
This is an action of tresspass on the case for an alleged illegal search of .the dwelling-house of the plaintiff. The case was tried by a jury, who returned a verdict in favor of defendant. It is brought here by writ of error.
The defendant is a deputy sheriff of Kent county. His defense was that what he did was done in the discharge of his duty in serving a search warrant issued from the police court of Grand Rapids. It is probable this action would, never have been brought had not the complaint lodged with the police justice and the warrant issued by him become misplaced, so that they were not found until during the progress of the trial. It is the claim of the plaintiff, as set up in his declaration, that the defendant,—
“Without any lawful right or authority whatever, but wrongfully, falsely, and maliciously representing himself to be in possession of a lawful search warrant lawfully directing and commanding. him, the said defendant, as such deputy sheriff, to search said dwelling-house of said plaintiff for the discovery and recovery of a certain bicycle alleged to belong to, and to have been stolen from, one Orville A. Gillette, of the city of Grand Rapids, Kent county, Michigan, knowing the same to be false and unlawful, and then and there, without any lawful right or authority whatever, and with an unlawful, wicked, and malicious purpose of obtaining fees as such deputy sheriff, in a loud, boisterous, and insulting manner, and in the presence of said plaintiff and his aforesaid children and the said Henry W. Strong, accused and charged said plaintiff with secreting the aforesaid bicycle in his said dwelling-house, in knowing the same to have been stolen, and then and there handed to said plaintiff a paper, falsely, willfully, and maliciously claiming and pretending that the same was a legal and valid search warrant as aforesaid, well knowing the same to be false and unlawful, and demanded,” etc.
In making his case the plaintiff produced as witnesses the police justice, and his clerk, both of whom testified they had been unable to find any complaint or search warrant, and were unable to recollect any had been issued out of that court. During the progress of the trial, a complaint and warrant were found by the sheriff, which had become mixed with other papers, and put away by him, which papers were fully identified by the police justice as being in the handwriting of the assistant prosecuting attorney, and bearing the signature of the police justice. These papers will be spoken of more in detail later.
There was a sharp conflict in the testimony of the witnesses. There are a good many assignments of error, which may be divided into four groups:
First. For the purpose of showing malice on the part of defendant, plaintiff claimed the right to show that defendant had put before the board of supervisors of' the county padded bills for fees, and had done so for services rendered in this case. This testimony was excluded.
Second. It is claimed the court erred in refusing to give some of plaintiff’s requests to charge, and in his statement of the law in his general charge.
Third. That defendant was not entitled to take the wheel until he had paid charges to the son of plaintiff. The son had caused a notice to be twice published in a paper, and to be entered in the books of the town clerk, but had not complied with the provisions of the statute.
Fourth. It is claimed the police court was without authority to issue a search warrant to be served outside the city of Grand Rapids.
With our view of the case, it is necessary to discuss only the last proposition, which is conclusive of the case. The record discloses certain things about which there is no dispute. November 16,1899, one Gillette had a bicycle stolen from in front of his place of business in Grand Rapids. The next morning he reported his loss to the police authorities, giving them a full description of the wheel. These descriptions were furnished to the detectives connected with the police department, who soon learned that a strange bicycle was at Byron, in Kent county, and who reported that fact to the undersheriff. He asked one of his deputies to call up the defendant, who was a deputy sheriff at Byron, and requested him to get a description of the wheel. Before this occurred, a son of the plaintiff had found standing before the store in which he was employed, early one morning, a bicycle. He and his witnesses say he found it the morning of November 13th; but they are evidently mistaken in this, as the wheel was fully identified as the wheel of Mr. Gillette, which was not stolen until the evening of the 16th. The defendant saw young O’Meara, and got a partial description of the wheel, but by mistake took the number of the model, instead of the number of the wheel. Upon telephoning to the office of the sheriff the description of the wheel, he was requested to obtain its number. He sought out the boy, and told him the wheel was stolen, and asked to see it again. The parties are not agreed as to what occurred. The boy claims he told the officer if he would pay the charges he could have the wheel, while the officer claims nothing was said about the charges, and that the boy refused to let him see the wheel. Either before or after this conversation, the wheel 'was taken to the house of the plaintiff, and was by him taken to a bedroom, the bed was pulled away from the wall, and the wheel was put back of it.
After this last-mentioned conversation between the defendant and the son, the matter ran along until December 3, 1899, when defendant went to the city of Grand Rapids, to consult with the undersheriff, at his request. On arriving in Grand Rapids he saw the undersheriff, and had a consultation with him, and also with the prose cuting attorney. By their advice he went to the police headquarters, and the description of the wheel on the books at headquarters was shown him, which tallied exactly with the wheel at Byron. Mr. Gillette, from whom the wheel was stolen, came to the office of the prosecuting attorney, and, after consultation between defendant, the prosecutor, two detectives, and Gillette, a complaint and search warrant were drawn up by the prosecuting attorney, who, with Gillette, went to the police court. The complaint was sworn to by Gillette, and a warrant issued by the judge of the police court of Grand Rapids.
It is the claim of plaintiff that defendant did not tell the prosecuting attorney that he could have the wheel by paying the charges. The defendant admits he did not, for the reason that he had never been so informed. The judge left that question fully to the jury. The complaint and warrant issued by the police judge were in due and legal form, and authorized the search of the house of the plaintiff for the bicycle. The warrant was given to the defendant. He returned to Byron, and informed the young man he had the warrant, and with another person they started to go to the house of plaintiff. On the way there the son asked a friend of his to go along, and he did so. When they arrived at the house, the son opened the door, and the parties all went in. The plaintiff was at that time in the house. There is some conflict in the testimony as to what occurred, but the substance of it is the plaintiff asked why the defendant was there, and he said he came to serve a search warrant. It was shown to the plaintiff, to the son, and to the friend of the son, all of whom had an opportunity to read it. The plaintiff demanded that the charges be paid before the wheel was taken. The defendant replied the man in Grand Rapids would pay them. The son got the wheel from back of the bed, and the defendant took it away. He delivered it to the sheriff of Rent county, together with the complaint and warrant. The papers remained with the sheriff until the progress of the trial, as before stated. The wheel was afterwards fully identified as the stolen wheel belonging to Mr. Gillette. Afterwards this suit was brought.
Whenever there was a controverted question of fact, the judge left the question to the jury £or them to determine. The important question in the case is, Was the police judge authorized to issue a search warrant that might be served anywhere in the county of Kent ? The plaintiff says no, but fails to find any authority upon the question. The act creating the police court is silent upon the subject of search warrants. In 3 How. Stat. § 6591d, is found a statement of the power of the police court. Among other powers conferred upon the judge is, 4 4 He shall also have all the powers and authority of a justice of the peace, except in the trial of civil cases.” 3 Comp. Laws, § 11986, confers upon any magistrate authorized to issue" warrants in criminal cases, upon proper complaint being made, authority to issue search warrants. Id. § 11988, requires that all search warrants shall be directed to the sheriff or any constable of the county. That the police judge is a magistrate authorized to issue warrants in criminal cases is not open to question. This being so, he has the authority, upon proper complaint being made, to issue search warrants, which shall be directed as commanded by the statute. The form of the complaint to be made in these cases, found in the fourth edition of Tiffany’s Cr. Law, 357, indicates that the learned author understood that for property stolen in the city of Adrian, and concealed in a dwelling-house outside of said city, a search warrant might be issued, and such has been the understanding of lawyers. In this case the complaint showed the larceny of a wheel in the city of Grand Rapids, and reasonable cause to believe it was concealed in the house of plaintiff in Byron. This gave the magistrate authority to issue the warrant, and the warrant, being in due and legal form, was a complete protection to the officer. The court might very properly have directed a verdict in favor of defendant, but preferred to leave any controverted question of fact, under proper instructions, to the jury.
Judgment is affirmed.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). Mrs. Wagner was not initiated. The provisions of the laws of the association in regard to initiation are as follows:
“ Each applicant must undergo a medical examination made by a commissioned medical examiner, when, after said examination has been approved by' the supreme medical examiner, and the applicant has paid the requisite initial assessment and certificate fee, and has been initiated into the lodge, then such person shall be entitled to any benefits that may be due in the event of death under the terms of the relief fund certificate issued. * * * The subordinate lodge shall, upon receiving notice of approval' from the supreme medical examiner, and after tho initiation of the applicant, forward the application to the supreme secretary, with the prescribed fee for the relief fund certificate. * * *
“Seo. 4. The liability of the order to pay benefits, and the liability of the members to pay assessments, shall take effect at the time of the approval of the supreme medical examiner: Provided, that the liability of the order to pay benefits, and of applicants for membership to pay assessments, shall date even with the initiation of the applicant: And provided, also, that no liability ' shall exist on the part of the order to pay benefits until the initial assessment and certificate fee are paid.”
The charter contains no such provision. If, as defendant’s counsel insist, the initiation was by these by-laws made a condition precedent to the issue of the certificate, yet this condition might be waived. When, in the absence of fraud, a policy of insurance is issued in violation of such provisions of the by-laws, those provisions are waived, and the policy is valid. This appears to be the well-settled rule. Davidson v. Benefit Society, 39 Minn. 303 (39 N. W. 803, 1 L. R. A. 482); Morrison v. Insurance Co., 59 Wis. 162 (18 N. W. 13); Fitzgerald v. Life Ass’n, 3 N. Y. Supp. 214; Union Mut. Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. Dec. 375); Perine v. Grand Lodge A. O. U. W., 48 Minn. 82 (50 N. W. 1022); Nibl. Acc. Ins. & Ben. Soc. § 147. The issue of a certificate is evidence that prior conditions have been complied with, or, if not complied with, that they have been waived; and, in the absence of fraud, it is proof of the member’s good standing. High Court I. O. F. v. Zak, 136 Ill. 185 (26 N. E. 593; 29 Am. St. Rep. 318); Tits- worth v. Titsworth, 40 Kan. 571 (20 Pac. 213); Mulroy v. Supreme Lodge K. of H., 28 Mo. App. 463; Supreme Lodge K. of H. v. Johnson, 78 Ind. 110; Kumle v. Grand Lodge A. O. U. W., 110 Cal. 204 (42 Pac. 634).
The main defense is one of fact, viz., that no certificate was ever issued. Defendant’s counsel insist that, under the evidence, the court should have directed a verdict for it. In order to sustain this contention, it must be found that there was no substantial evidence that a certificate was issued. The undisputed facts are that Mrs. Wagner signed the original petition for a charter for the Bishop Lodge; that she made application for medical examination ; that in that application reference was made to her application for relief fund membership; that she paid to the proper officer of defendant the dues necessary to become a beneficiary member; that she was examined and approved by the medical examiner; and that she tendered the first assessment that was made after the date of her alleged certificate, and that this was received under protest. The declaration alleges that the certificate was lost. In addition to the above conceded facts, plaintiff testified that his wife made application as a relief fund member at the same time that he did. One Hess, the protector or presiding officer of Bishop Lodge, testified:
“I know that I signed a beneficiary certificate received from'the grand lodge, issued to Mary Wagner. When I received the certificate I signed it, and gave it, with the other certificates,,'to our recording secretary’s wife, Mrs. Herrick. It was at her residence that I signed them.”
The force of this testimony was weakened by the cross-examination, but not to the extent of wholly destroying its value. On redirect examination he testified:
“I can’t say whether Mary Wagner’s name appeared as the insured in that certificate, but her name was there, and she was insured.”
This witness was the first presiding officer of the local lodge, had been re-elected, and was such officer at the time of the trial. The weight to be given his testimony belonged to the jury, who heard him testify. There is nothing in the record to indicate any desire or intention on his part to be untruthful.
Mr. Herrick, the recording secretary, testified that there was a certificate issued to Mary Wagner; that it came in the first batch of certificates received from the grand lodge; that he left it in a drawer in his possession, in the lodge room; that it disappeared from there; that he did not know what became of it; that it was issued to Mary Wagner. Witness was then shown William Wagner’s certificate, and he said, that it was the same in form as the one issued to Mary Wagner. On cross-examination he testified:
“ There was no name in the body of her certificate other than her own and her husband’s. I can’t answer positively which one came first, but I can tell which appeared first on the outside. The names were placed on the outside by my wife. Mary Wagner’s certificate • was for $1,000, and William Wagner’s certificate was for $1,000. William Wagner’s certificate was delivered to' him all right. It came at the same time that Mary Wagner’s did, and I signed it at the same time.”
On recross he said:
“I wish to say that I am very sure that I saw ‘Mary Wagner’ on the outside; but on the inside, I will not state positively whether it was as member or beneficiary on the inside.”
Mr. Hess was recalled, was shown William Wagner’s certificate, and testified:
“Mary Wagner’s name appeared in her certificate in , precisely the same place where William Wagner’s name appears, and reads just as her certificate read, with her name in it:
“ ‘ This certificate, issued by the Supreme Lodge of Knights and Ladies of Honor, witnesseth, that Mary Wagner, a member of Bishop Lodge, No. 2,026, of said order, located at Detroit, in the State of Michigan, is entitled to all the rights and privileges of membership in this order of Knights and Ladies of Honor, and to participate in the relief fund of the order to an amount of $1,000.’
“Any name might be placed in there, and I could read the certificate in the same way. I can swear that her name appeared there.”
Emma Kramer, another charter member, testified that she looked over these certificates at Mrs. Herrick’s house after the lodge had been instituted; that she saw Mr. Wagner’s and Mrs. Wagner’s certificates, — -read them through; and that William Wagner was the beneficiary in Mrs. Wagner’s certificate. On cross-examination she testified: “Mary Wagner’s certificate came back with the first batch, I am almost positive.”
The evidence on the part of the defendaht showed that the name of Mrs. Wagner did not appear as a beneficiary member upon the records of the grand lodge, and that there was upon their books no record of anjr fees or assessments received from her to constitute her such a member. The evidence is very strong, but is not of that character that justifies a court in saying that it is unimpeachable. We cannot say that it was impossible for the officers of the grand lodge to make a mistake. It is not the province of a court to say that the testimony of these three witnesses that they saw the certificate is false. If their testimony be true, a certificate was issued. In addition to this is the evidence of ■ her application and the certificate of the medical examiner, showing that she had taken steps to become a beneficiary member. We think there was a clear conflict of evidence, and that this question was properly left to the jury.
One of the defendant’s laws provides:
“In receiving money from members in payment of relief fund assessments, and in all acts performed in complying with the relief fund laws of the order, the subordinate lodge and its officers are the agents of the members, and not the agents of the supreme lodge.”
It is now urged that plaintiff cannot recover, because Mrs. Wagner’s agent, the local lodge, neglected to remit her dues to the grand lodge. This is, in effect, saying to the members of the defendant: “The local lodge is authorized to receive the dues from members, to be remitted to us [the supreme lodge], but you pay it there at your risk. If our agent, who is authorized to receive this money, fails to pay it to us, it is your loss, and not ours.” A merchant might as well say to his debtors: ‘ ‘ Mr. A., my collector, is authorized to receive the money you owe me, but you must see that he gets the money to me, or you will not be relieved from liability. ” This question was before the Supreme Court of the United States in Knights of Pythias v. Withers, 177 U. S. 260 (20 Sup. Ct. 611), and the court said:
“To invest him [the secretary] with the duties of an agent, and to deny his agency, is a mere juggling with words. Defendant cannot thus play fast and loose with its own subordinates. Upon its theory the policy holders had absolutely no protection. They were bound to make their monthly payments to the secretary of the section, who was bound to remit them to the board of control; but they could not compel him to remit, and were thus completely at his mercy. If he chose to play into the hands of the company, it was possible, for him, by delaying his remittance until after the end of the month, to cause a suspension of every certificate within his jurisdiction.”
It is also urged that plaintiff did not make legal tender of the October assessment. ■ The testimony of plaintiff is that he offered to pay it for his wife, but that the financial secretary refused to receive it. He had already made legal tender of the previous assessment, due in September, which was refused; the defendant then denying the membership of Mrs. Wagner. The law does not require useless things to be done. It was useless to tender a second assessment when a' previous one had been refused upon the ground that Mrs. Wagner was not a member.
Complaint is made of the exclusion of the following question on behalf of the defendant to the clerk in the office of the supreme secretary:
“Mr. Hutton, so far as your duties are concerned, and so far as you have come in contact with the*records in any office of this association, what have you to say as to whether Mary Wagner was ever a'member of defendant organization ? ”
Counsel insist that it is permissible to show, by a witness who has examined a record, the absence of entries thereon'; citing Maxwell v. Paine, 53 Mich. 30 (18 N. W. 546); Hoffman v. Pack, Woods & Co., 114 Mich. 1 (71 N. W. 1095). The above question is not within those authorities. The question did not ask whether he had examined the records, and whether her name appeared there. It asked for witness’ opinion, to be gathered from his duties and from his contact with the records, whether she was ever a member.
It is also urged that while there was the testimony of ■ three witnesses that the second application, in addition to the one for the medical examination, was made, there was no proof that it was ever forwarded by the local lodge to the defendant. The very fact that the grand lodge issued a certificate is some evidence to show that there was an application upon which to base it. But, if defendant chose to issue the certificate without an application, it is now estopped to assert this as a defense.
If a certificate, was issued by the grand lodge and sent to the local lodge for Mrs. Wagner, the contract was complete, although the certificate was not actually delivered to her. Delivery to the local lodge for her was equivalent to delivery to her. Lorscher v. Supreme Lodge K. of H., 72 Mich. 316, 328 (40 N. W. 545, 2 L. R. A. 206).
Complaint is made that the court charged the jury:
“If Mrs. Wagner paid her dues and fulfilled the other requirements, she would have been a member of the order, even though the certificate was not issued.”
The charge is not susceptible of this construction. In discussing the question of the fact of the certificate, the court said:
“If she had paid her dues and fulfilled the other requirements, perhaps, even though the certificate was not issued, she would have been a member. ”
Taking the entire charge together, it is evident that the jury could not have been misled by this statement. After this, and near the close of the charge, the court again instructed the jury that they must find that this certificate was issued by the supreme lodge, in order to find a verdict for the plaintiff.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Moore, J.
This hearing is brought on a writ of certiorari issued out of this court to review the action of Emmet L. Beach, a circuit judge of Saginaw county, in issuing a mandamus compelling the petitioner here, Washburn Horning, county treasurer of Saginaw county, to pay Kalma Friedman, the relator in the circuit court, the sum of $33.24 for services and mileage while acting as a member of the board of supervisors at the June session of said board. Mr. Friedman was duly appointed a member of the board of assessment and review of the city of Saginaw in 1899, and by virtue of that office was a member of the board of supervisors of .Saginaw county, and legally served as such prior to the last session of the board of supervisors. In June last a law was passed which, if valid, legislated Mr. Friedman out of office. Act No. 485, Local Acts 1901. He, however, served upon the board of supervisors of Saginaw county at this June session for a period of 11 days, claiming that the law which attempted to oust him from office was unconstitutional. The circuit court issued an injunction restraining the person who sought to take his place from interfering with him in his office. For his 11 days’ services 'and mileage the board of supervisors, on the 6th day of July, adopted a pay roll by formal resolution, and this included Friedman’s pay of $33.24; and a proper order was made by the board of supervisors, signed by the clerk of the board, and countersigned by the chairman, for the sum of $33.24, and was presented to Washburn Horning, the treasurer, for payment. The treasurer refused to pay the order on the ground that Friedman was not a legal supervisor, and the board of supervisors had no authority to give him compensation. Subsequently Mr. Friedman petitioned the circuit court for relief, and the court directed that a writ of mandamus issue against the county treasurer for the payment of the sum. This action is to review the judgment of the lower court in his decision.
Counsel for the respondent earnestly urge the court, in this proceeding, to pass upon the question of the title to the office in dispute, but we decline to do so. As the record disclosés the relator was a de facto officer, who rendered service upon the board of supervisors, for which service his claim for compensation was allowed by the board of supervisors, and an order was given him upon the county treasurer, we think it was the duty of that officer to pay the order. In reaching this conclusion we are not unmindful of the cases cited by counsel of Board of Education of Detroit v. Common Council of Detroit, 80 Mich. 548 (45 N. W. 585); Board of Supers of Cheboygan Co. v. Township of Mentor, 94 Mich. 386 (54 N. W. 169); and Van Akin v. Dunn, 117 Mich. 421 (75 N. W. 938). In none of those cases was the title to an office in any way involved. In all of them it appeared that the proposed action was illegal and wholly void. The court said that, as the writ of mandamus was a discretionary writ, it could not be invoked to accomplish an illegal purpose. In this case it cannot be said the action of the board of supervisors was illegal. The board recognized Mr. Friedman as a de facto officer, and allowed his account. It was not for the county treasurer, a ministerial officer, to say he was not a de jure officer, and the action of the board of supervisors was illegal. If he could do that in this case, he could say, when an order was presented to him which was issued to pay the bill of a constable, that the constable had not performed the service, and the action of the board of supervisors was illegal in allowing his claim, and therefore he would not pay it. It can easily be seen how unseemly such a result would be. Upon the refusal of the county treasurer to pay this order,the aid of the circuit judge was invoked. In the exercise of his discretion he issued the writ of mandamus, directing the county treasurer to pay the order. We cannot say that in doing so he acted improperly. His action is affirmed.
The other Justices concurred. | [
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Moore, J.
This is an action of replevin. There is almost no dispute about the facts. The firm of J. & T. Charlton were the owners of logs which were manufactured into lumber by the Cheboygan Lumber Company in the city of Cheboygan in the spring of 1899. This lumber was piled on thé docks of the Cheboygan Lumber Company. It was known as “Lots 6 and 7 O. K. stock.” Lot 6 was piled in its own piles, separate from lot 7, and separate from all other lumber; and so lot 7 was piled separate from lot 6, and separate from all other lumber. There were scattered among these piles other piles of lumber, but no other lumber was ever put in a pile of lot 6 or lot 7. The lumber was all marked. Lot 6 was plainly and distinctly marked “Lot 6 O. K.,” and in addition the initials of its manufacturers, “J. & T. C.” Lot 7 was similarly marked. These marks were placed on the lumber at the time of the piling. They were put on with lampblack. The sawing of lot 6 was finished on May 22d, of lot 7 on June 12, 1899. Mr. Rogers had charge of the lumber for the Charltons.
On July 17, 1899, Mr. Thomas Charlton handed the plaintiff the following proposition:
“North Tona Wanda, N. Y., July 17, 1899.
“The H. M. Tyler Lumber Company,
“North Tonawanda, N. Y.
“ Gentlemen: We agree to sell you the lumber now piled on docks of Cheboygan Lumber Company at Che boygan, Mich., known as ‘Lots 6 and 7 of the O. K. stock,’ containing, according to estimate, about 2,250 M. Price to be $15.50 per M. for merchantable, and $9.50 per M. for mill culls. Shipments to be made as follows: Lot 6 to be shipped by July 25th, and lot 7 by August 20th. Settlements to date from these dates in case the lumber is not moved. Lumber to be inspected by J. W. Ritchie, of Bay City, Mich. Terms 1£ per cent, off for cash or 90 days’ paper. Yours truly,
“ J. & T. Charlton,
“PerW. T. Charlton.”
The offer was accepted as follows:
“We hereby accept the above offer.
“H. M. Tyler Lumber Company,
“By H. M. Tyler, Yice-President.”
After this agreement was entered into, an officer of the plaintiff came to Cheboygan, and examined and counted the piles of lumber, and checked it off on its memoranda. He did not place any one in charge of the lumber, nor did he notify the dock owner of any change in the ownership, nor did the plaintiff place any insurance upon the lumber. Mr. Rogers continued in charge of the lumber as before. A large amount of insurance had been placed upon the lumber by the Charltons, the last of it about the middle of June. This insurance was not changed after the correspondence, but continued as before. On or about August 15, 1899, the plaintiff procured in the neighborhood of 500,-000 feet of this lumber to be shipped, for which an invoice was sent to plaintiff. On August 25, 1899, the plaintiff gave its check to the defendants Charlton for $7,958.71 in payment of the same. Each party paid one-half the inspection bill.
The plaintiff did not move the lumber within the time mentioned in the correspondence. Its claim is that it could not get the boats to do so. It is the claim of the defendants that, had plaintiff been willing to pay current rates of freight, it would have had no difficulty in getting boats. The dock owner desired the room on the docks occupied by the lumber, and so notified Mr. Rogers, who notified the Charltons. The defendants urged plaintiff to move the lumber. It not having done so, the defendants sent it the following letter:
“North Tonawanda, N. Y., Sept. 12, 1899.
“The H. M. Tyler Lumber Company,
“North Tonawanda, N. Y.
“Gentlemen: You will please take notice that you are hereby required to carry out on your part the terms of the contract entered into between your company and ourselves, dated July 17, 1899, for the purchase by you of the lumber then piled on the docks of the Cheboygan Lumber Company, of Cheboygan, Michigan, before the 19th day of September, 1899. In case you do not have the lumber mentioned in said contract removed from those docks by that time, we shall consider forfeited whatever claim you might otherwise have to the lumber mentioned in said contract and not already removed. It is unnecessary for us to inform you that this lumber has already remained on the docks much longer than has been reasonably inquired to remove the same, and that the continued storage of it is causing us large expenses.
“ Respectfully yours,
“J. & T. Charlton.”
The plaintiff made no reply to this communication. On September 22d plaintiff had a tow at Cheboygan to take the lumber, but the defendants refused to deliver it. At that time Mr. Ritchie, the inspector, acting for plaintiff, made a demand upon Mr. Rogers, agent for the Charltons, for the lumber. He refused to accede to the demand. When the demand was made, no money or notes were tendered, and Mr. Ritchie had no money or notes to pay for the lumber if it had been delivered to him. The captain of the tow then telegraphed the plaintiff that the defendants refused to deliver the lumber. On receipt of this telegram, Mr. H. M. Tyler and his brother called on Mr. Thomas Charlton, and demanded the lumber. He said his brother was absent, and refused to accede to the demand. He said, however, if the plaintiff would pay one dollar a thousand more for the lumber, he would take the responsibility of letting it go. Mr. Tyler then delivered to Mr. Charlton the following letter:
“A. M., September 22, 1899.
“Messrs. J. & T. Charlton,
“North Tona wan da, N. Y.
“ Gentlemen: We have just received a message from Captain Little, of the Green tow, which says that he arrived at Cheboygan last night, and that your man refused to let him take away the lumber. We also have a telegram from the inspector, Mr. J. W. Ritchie, to the same effect; and this is to notify you that, in case we are unable to remove this lumber in consequence of such refusal, and there is any demurrage caused by delaying the tow there, we shall hold you responsible for it, and for all the damage we may sustain in consequence of your refusal to permit us to take this lumber. We have done our best to get a tow there, and finally got one by paying-50 cents per M. above the market rate, and they would have been there on the 19th had not Providence interfered with a terrible gale on Lake Huron, which held them a long time at Port Huron. If you need a settlement for any part of this lumber, we are and have been ready to make settlement at any time requested.
“ Hoping that we may obtain this lumber at once, and save trouble and unpleasantness, which might otherwise occur, we remain,
.“Yours very truly,
“H. M. Tyler Lumber Company,
“Die. J. S. T. By John S. Tyler, Treas.”
No money or notes were tendered at this time, unless what is said in the letter is regarded as a tender. It was the custom at Cheboygan for the manufacturer of the lumber to deliver the lumber .on the rail of the vessel, and' the expense of doing this was included in the price paid for manufacturing the lumber. Both parties knew of this custom.
After the refusal of the defendants to deliver the lumber, the plaintiff commenced this suit in replevin. Defendants gave the statutory bond, and kept the lumber. Upon the trial it was the claim of plaintiff that two piles of the lumber were marked “sold to the H. M. Tyler Lumber Company,” and that Mr. Rogers admitted to the sheriff he had so marked them. This was denied by Mr. Rogers, and it appeared he had never been directed or authorized to so mark them. There is no claim that any change was otherwise made in the marks which were upon the lumber when the correspondence began. Upon the trial the plaintiff waived a return of the lumber. The court directed the jury that the title was in the plaintiff, and to assess its damages at the value of the lumber. The jury returned a verdict for upwards of $31,000. The case is brought here by writ of error.
All of the counsel are agreed that the principal question in the case is, Did the title to the lumber pass to the plaintiff when it accepted the offer contained in the letter of July 17, 1899 ? The counsel for the plaintiff insist that, under the repeated rulings of this court, the title did pass, while the counsel for defendants urge just as strenuously that, under the rulings of this court, the title did not pass. The question involved has been before this court a great many times. The trouble is not so much with the rule of law as it is in the application of it to a given case. No two cases are alike, and what has been said by the court in a given case must be taken in connection with the facts of that case. If this is done, it will go far to reconcile any apparent inconsistencies in the decisions. Plaintiff relies upon Whitcomb v. Whitney, 24 Mich. 490; Lingham v. Eggleston, 27 Mich. 329; Jenkinson v. Monroe, 61 Mich. 461 (28 N. W. 663); Wagar v. Railroad Co., 79 Mich. 651 (44 N. W. 1113); People v. Sheehan, 118 Mich. 539 (77 N. W. 88); and other cases. The defendants rely upon Lingham v. Eggleston, 27 Mich. 324; Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Byles v. Colier, 54 Mich. 1 (19 N. W. 565); Wagar v. Farrin, 71 Mich. 371 (38 N. W. 865); Blodgett v. Hovey, 91 Mich. 572 (52 N. W. 149); Slade v. Lee, 94 Mich. 128 (53 N. W. 929).
Lingham v. Eggleston, supra, has, ever since the opinion was written by Justice Cooley, been regarded as a leading case. In that case, among other things, it is said:
“ In Blackb. Sales, 123, the rule on this subject is very clearly and correctly stated as follows: The question, the author says, is ‘ a question depending upon the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing fi’om the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this as in other cases, the parties are apt to express their intention-obscurely; very often because the circumstances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is that, without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction, which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties. The substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which that contract is to attach are agreed upon. But, when the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when, by the agreement, the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when anything is to be done to them to ascertain the price, it,is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But, as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shows a contrary intention.’ * * *
“The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very strong, if not conclusive, evidence of intent that the property shall vest in him, and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done afterwards. A striking case in illustration is that of Young v. Matthews, L. R. 2 C. P. 127, where a large quantity of bricks was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest; but they were paid for, and such delivery as, in the nature of the case, was practicable, was made. The court held that the question was one of intention merely, and that it was evident the parties intended the title to pass. To the same effect are Woods v. Russell, 5 Barn. & Ald. 942; Riddle v. Varnum, 20 Pick. 280; Bates v. Conkling, 10 Wend. 389; Olyphant v. Baker, 5 Denio, 379; Bogy v. Rhodes, 4 G. Greene, 133; Crofoot v. Bennett, 2 N. Y. 258; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to he paid, are still to be determined by the vendee. Turley v. Bates, 2 Hurl. & C. 200; Kohl v. Bindley, 39 Ill. 195 (89 Am. Dec. 294). And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, — as, for instance, to load the goods upon a vessel for transportation, — the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uniform to justify citation which hold that, where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted.”
In Byles v. Colier, supra, the same learned judge who wrote Bingham v. Eggleston said:
“In Bingham v. Eggleston, 27 Mich. 324, it was decided that the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that, where the goods sold are designated so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity or quality, when the price depends upon either or both, should be determined, — these being circumstances indicating intent, but not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Wilkinson v. Holiday, 33 Mich. 386; Grant v. Bank, 35 Mich. 515; Scotten v. Sutter, 37 Mich. 526; Carpenter v. Graham, 42 Mich. 191 (3 N. W. 974); Brewer v. Salt Ass’n, 47 Mich. 526 (11 N. W. 370). The cases elsewhere to the same effect are numerous, and many of them are collected in Mr. Bennett’s note to section 319 of the third edition of Benjamin on Sales. And see Kelsea v. Haines, 41 N. H. 246; Southwestern Freight Co. v. Stanard, 44 Mo. 71 (100 Am. Dec. 255); Shelton v. Franklin, 68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492; Crofoot v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 N. Y. 431; Burrows v. Whitaker, 71 N. Y. 291 (27 Am. Rep. 42); Dennis v. Alexander, 3 Pa. St. 50; Galloway v. Week, 54 Wis. 608 (12 N. W. 10); Caywood v. Timmons, 31 Kan. 394 (2 Pac. 566). That the cases referred to settle the general principle, at least for this State, is beyond question or cavil. Presumptively, the title does not pass, even though the articles be designated, so long as anything remains to be done to determine the sum to be paid; but this is only a presumption, and is liable to be overcome by such facts and circumstances as indicate an intent in the parties to the contrary.”
It is- believed all the cases cited by counsel come within the law as announced in these cases. If they do not, the court, in disposing of them, misapprehended the facts, for there has been no intention upon the part of the court to depart from the law of these cases.
In Whitcomb v. Whitney, supra, after the agreement was made, advances had been made upon the agreement, and, after the lumber was manufactured, the defendant was notified of that fact. He sent an inspector, who came to the mill, and inspected all of the lumber. It was drawn 40 rods to a dock, ready to be loaded upon the véssel when one should be sent by defendant. Under the circumstances of that case it was held the title passed.
In Jenkinson v. Monroe, supra, the agreement recited:
“The party of the first part agrees to sell, and does hereby sell, and said parties of the second part agree to buy, and do hereby buy, all the lumber,”etc. “The price of said lumber shall be fourteen dollars per M. feet, straight measure. Mill culls to be marked,” etc.; “price at the time they are delivered on dock.”
The logs were cut into lumber, which was delivered on the dock. The court held:
“ The piling on the dock seems to have been intended by both parties as a delivery of the lumber to defendant, who could thereafter ship it without reference to plaintiff.”
In People v. Sheehan, supra, it was agreed that Holmes should sell Sheehan curbstone, and that Sheehan should select it at Holmes’ yard, ‘ ‘ and when the curbstone was thus picked out, and delivered to Sheehan, it should belong to Sheehan, and Holmes would have nothing more to do with it.” The court held the parties had agreed when the title should pass, and were bound by their agreement.
What are the facts in this case ? Plaintiff and defendants both lived in the State of New York. The lumber was in charge of defendants’ agent at Cheboygan, Mich. They offered to sell this lumber to plaintiff, one quality at $15.50 a thousand feet, and the other quality at $9.50 a thousand feet. It could not be known how much there was of the lumber, nor how much there was of each of these qualities, until the lumber was inspected. An inspector was agreed upon, who was to act for both parties, and who was to be paid equally by them. There was no change in the possession of the lumber. It still remained under the control of Mr. Rogers for the defendants. It was in his possession when it was replevied. The defendants retained their insurance upon the lumber. No notice was given to the dock owner of any change of ownership. When the lumber was shipped, it was to be put over the rail of the vessel by the mill-owner, who, as a part of his contract with defendants, was to do this, and in doing it was acting for the defendants. No payment was made upon this lumber, except for the one shipment which had gone forward. Applying the law which we have quoted to the facts of this case, we conclude the title did not pass to the plaintiff.
Judgment is reversed, and, as there is no substantial controversy about the facts, ho new trial will be granted.
Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
There are six of these cases, argued as one. They are brought for the purpose of setting aside six decrees in relation to unpaid taxes for six different years. All of the respondents, except the auditor general, are persons who have bought the title of the State to the lands in dispute, and have taken deeds therefor. The record discloses in the respective proceedings to obtain a decree the following dates of hearing and decree:
Date of Hearing. Date of Decree.
1889. February 2, 1892. February 5, 1892.
1890. October 18, 1893. February 6, 1893.
1891. October 23, 1893. 1892. October 16, 1894 October 23, 1893. November 12, 1894
1893. October 15, 1895. November 4, 1895.
1894 October 27, 1896. October 31, 1896.
The matter was brought to the attention of the court by separate verified petitions in each of the tax decrees, setting forth the grounds upon which petitioner alleges that the decree of the court was rendered without jurisdiction, and praying that the tax decrees should be vacated, and that the deeds issued thereunder should be decreed void. Upon presentation of these petitions to the circuit judge, February 7, 1900, orders were made that respondents show cause why the prayer of the petitions should not be granted. Service of the petitions and orders was made in accordance with the said order on each of these respondents, and upon the hearing of the petitions, which occurred on June 5, 1900, the respondents appeared specially by W. D.’Gordon, their solicitor, and moved to dismiss the petitions for several reasons, the principal one of which was want of jurisdiction to hear them. After argument the circuit court ordered the petitioner to proceed with its petitions, and to submit its proofs in support thereof, taking the motions to dismiss petitions under advisement. Proofs were taken against objection of respondents. On the 20th of July, 1900, the circuit judge handed down an opinion dismissing the motions to dismiss, and granting the prayer of the petitions, but ordering petitioners to amend the verification of petitions nunc pro tunc. This petitioner did on August 15, 1900. September 12, 1900, a decree was settled ; a separate decree being made in each one of the proceedings of the auditor general, decreeing that the tax decree in each proceeding was rendered without jurisdiction in the court to make the same. At the time the decree was signed at chambers, counsel for petitioner was not present; but respondents were represented by Mr. Gordon, who protested against the making of the decree, and moved the circuit judge at chambers to make no final decree, and to make an order permitting the respondents to then appear generally and to answer the petitions, or to appeal to the Supreme Court, and in support of that introduced the affidavits of John S. Porter and William D. Gordon, with certain exhibits. Neither motion nor exhibits were served on petitioner’s solicitor, and have never been served on him. From the decree entered by the circuit judge the case is brought here by appeal.
Upon the hearing here the respondents seek to have the court review:
First. The order of the court dismissing their motion to dismiss the petitions of the petitioner.
Second. The refusal of the court to grant the ex parte motions of respondents made September 12th, at the settling of the decree, to be permitted to appear generally and answer the petitions, and to treat the motions to dismiss as demurrers.
Third. The decree granting the prayer of the petitions.
The motion to dismiss was in no sense a demurrer; and we do not think in this proceeding we can consider the ex parte affidavits which were filed with the judge at the time of the settling of the decree.
The important defects relied upon to invalidate the decrees are: First, that they were, respectively, prematurely entered; and, second, that the lands had been pre viously sold, and were held as State tax lands for the taxes of the previous year or years.
Five days did not intervene between the date fixed for the hearing and the date of the decree in any of the cases except the one for the tax of 1893. It is insisted the decrees were invalid for that reason; counsel citing Peninsular Sav. Bank v. Ward, 118 Mich. 87 (76 N. W. 161); McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928). These cases sustain the claim of counsel.
As to the decree for the tax of 1893, it is said that, though five days intervened between the date fixed for the hearing and the granting of the decree, as these lands had been previously sold, and were then held as State tax lands, the auditor general had no right to include them in his petition, which was the basis of the decree. This question was fully discussed in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), which case sustains the contention of petitioner.
It is the claim of respondents that petitioner is guilty of such laches that the court ought not to vacate the decrees; citing Cook v. Hall, 123 Mich. 378 (82 N. W. 59). In that case petitioner rested two years after he knew the State had sold its interest to the respondents, and rights of third persons had intervened. The circuit judge filed a written opinion in the case at bar, and discussed this feature of the case in the following language:
“This leaves only one question of any importance to be decided, viz.: Can the petitioner be heard at this time, the ■ taxes not having been paid, and the property not being exempt from taxation ? Respondents rely upon section 70 of the general tax law (1 Comp. Laws, § 3893), which reads as follows:
“ ‘ 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 cases 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.’
“And they contend that the court has no jurisdiction to hear the petitions, because more than one year has elapsed since the several decrees were made. It is, however, admitted on both sides that, if the application to set aside a decree is made within a reasonable time, it will set aside the decree and sale in case of an entire lack of jurisdiction. See Cook v. Hall, 128 Mich. 378 (82 N. W. 59).
“It has been held that a- decree may be set aside by petition after one year, where the court had no jurisdiction to make it, provided the petitioner shows strong equities in his favor, and was not guilty of laches. See Spaulding v. O'Connor, 119 Mich. 45 (77 N. W. 323); also Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364). This rule is under the general equity practice, independent of the statute above quoted, and hence the questions naturally arise: What is a reasonable time? And was the petitioner guilty of laches in these cases? What has our court held on the question of reasonable time ? Petitioner’s solicitor cites all of the important cases where petitions to set aside decrees have been granted, viz.: In the case of Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364), it was held that a decree by default may be opened within a reasonable time on showing an adequate excuse, and this must generally be within the sound discretion of the court; and a party is not deprived of this remedy by the fact that other parties have purchased in reliance upon the decree. In this case the decree was rendered in 1892 for the taxes of 1889, and the petition to vacate the decree was not filed until 1895. In the case of Cook v. French, 96 Mich. 529 (56 N. W. 101), petition to vacate a decree was filed some five years after decree; the ground being, as in the case at bar, want of jurisdiction. The case of Jenkinson v. Auditor General, 104 Mich. 34 (62 N. W. 163), is practically the same. And in the case of McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928), the land was sold in 1895 for the taxes of 1893. Notice of the sale was given to the owners in February, 1896, when they attempted to file their deed. The land was purchased in 1897 by McGinley. Tax deed was issued to him, and petition was filed to vacate the sale and deed to McGinley in March, and was heard in June, 1898. In the case of Thomas v. Auditor General, 120 Mich. 535 (79 N. W. 812), tried by this court below, the sale was made in 1894 for the taxes of 1892, and petition to vacate decree was not brought until 1898. The petition was granted by the lower court, and the decree set aside, although several years had elapsed after the making of the decree.
‘ ‘ From above and other cases it also seems clear that parties cannot be guilty of laches until notice of the sale and purchase has become known to the parties, and from that time only can laches be imputed. In the case at bar it is undisputed that notice of the sale of its lands was brought to the attention of the petitioner’s agent in the spring of 1899; that afterwards there was some correspondence with several parties carried on by petitioner’s solicitors, to ascertain who were the parties interested in these tax titles; that, within two or three days after ascertaining the names of the parties defendant, petitioner filed its petition. This state of facts, in the opinion of the court, shows a reasonable diligence, and does away with the charge of laches in bringing suit. As compared with the cases of Thomas v. Auditor General and Cook v. French, and others cited above, it shows extraordinary diligence. It appears, then, that, applying the decisions above cited to the facts in these cases, the application to set aside the decrees was made in reasonable time, and petitioner has not been guilty of appreciable laches. ”
We agree with the court below that petitioner has not been guilty of such laches as to preclude the court from setting aside the decrees.
The petitioner did not offer in its petition, nor during the progress of the trial in the court below, to reimburse the respondents for the amount paid by them to the State at the time of their pui’chase, and the decrees rendered by the court below did not require this to be done. In Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich., at page 454 (74 N. W. 659), it is said, in a like case to this, “If, as in the present case, the taxpayer petitions the court in chancery in the auditor general’s proceedings, the court will compel him to do equity.” See, also, Jenkinson v. Auditor General, 104 Mich. 34 (62 N. W. 163); McGinley v. Mining Co., 121 Mich. 88 (79 N. W. 928). In his supplemental brief in this court, counsel offers to pay the respondents the amount paid by them at the time of their purchase, with interest, if the court deem it equitable and right. We think the petitioner ought to be required to do this before the decrees are vacated, and, when it is done, that the decrees should be vacated. In view of this peculiar situation, we decline to give costs to either party.
Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
This is an application for mandamus to compel the respondent to vacate an order for a preliminary injunction. It appears by the return of the respondent that on June 24, 1901, Matthew Gramlich and others filed a bill of complaint against the relators, setting forth, in substance, that the complainants in such bill were, under the charter of the city of Saginaw, as it existed prior to tbe amendment hereinafter referred to, and continued to be, members of the board of supervisors of Saginaw county, and representatives of the city of Saginaw on such board; that they are the actual incumbents of such office; but that the defendants named in the bill threaten to take the seats of the complainants, and sit as members of the board at future meetings of the board. The bill further alleges that at the session of 1901 the legislature undertook to withdraw the functions formerly exercised by complainants from them, and confer them upon defendants, and that said attempted legislation is unconstitutional. The bill asked for an injunction to restrain the defendants from sitting or attempting to sit as members of the board of supervisors, and also prayed that the complainants’ right and title to the office be adjudicated and determined in their favor. A preliminary injunction was granted upon this bill. The case was brought to our attention at the June term upon a motion for a mandamusj but, it appearing that no motion to dissolve the injunction had been made to the circuit judge, we declined to interfere at that stage. A motion has since been entered in the circuit court to dissolve the injunction, and the return shows that this application was denied, and the grounds stated by the circuit judge are set forth in an opinion attached to the return. These grounds are, in brief, that the complainants in the equity case are the incumbents of the offices, and that pending a determination at law, and in a proper proceeding by quo warranto, the incumbents of a public office may, where the circumstances require it, obtain an injunction to restrain interference with the performance of their duties.
We do not interfere by mandamus to control the discretion of a circuit judge in granting an injunction, except in a very plain case; and we should not in this case, unless thoroughly convinced of the want of jurisdiction to issue such an order. An examination of the authorities demonstrates that, in other jurisdictions at least, a court of equity has the right to interpose in protection of an officer de facto, against the. interference of claimants whose title is disputed, until the latter shall establish their title by judicial proceedings provided by law. Thus, in 2 High, Inj. (3d Ed.) § 1315, it is said:
“The actual incumbents of an office may be protected,, pending a contest as to their title, from interference with their possession and with the exercise of their functions. * * * And the granting of an injunction in such case in no manner determines the questions of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet established,” — citing Brady v. Sweetland, 13 Kan. 41.
To the same effect is Reemelin v. Mosby, 47 Ohio St. 570 (26 N. E. 717). See, also, Guillotte v. Poincy, 41 La. Ann. 333 (6 South. 507), and School District v. Weise, 77 Minn. 167 (79 N. W. 668).
Relators’ counsel relies upon the case of City of Detroit v. Board of Public Works, 23 Mich. 546, as establishing a different rule in this State. That was a case notunlike the present in some respects, but it will be noted that the party complainant was not the officer de facto in possession of the office, but the city of Detroit; second, that the case was before the court on final hearing, and that the real question for determination was whether the title to the office could be determined by a court of chancery. It further appears in the statement of the case by Mr. Justice Chbistiancy that the various officers of . the old boards, whose powers and functions it had been attempted to transfer, had in the meantime continued to-hold over, and to act officially, as before, and that, for the purpose of testing fully the question of the validity of the act, informations in the nature of quo warranto had been filed against these various boards, and that these cases were, at the time of the hearing in this court, at issue. It will be seen, therefore, that, so far from the case indicating an attempt by the newly-created officers to invade by force, or in any unseemly way, the offices held by com plainants, proceedings by quo warranto had been resorted to, and no necessity for an injunction, therefore, was shown. The question determined was that the title to an office could not be tried and determined in a court of chancery. To that holding we adhere. But it does not necessarily follow that the de facto officer, in possession of the office, may not be entitled to an injunction to restrain a claimant from interfering with his possession of the office until he shall entitle himself to do so by proper legal proceedings. The authorities elsewhere seem to fully sustain this right. We think, therefore, that it was within the power or the respondent to issue the writ of injunction until the defendants in the chancery case should, by resort to legal proceedings, establish their right to the office.
Having this power, has the respondent abused his discretion ? It would seem that, if such power exists at all, the question presented when an incumbent seeks such protection is whether there is in fact a good-faith controversy over the office, and a probability of an unseemly conflict unless the court shall interfere to prevent it, and that, upon such a showing, the relief would follow as of course, unless, at least, the complainant’s case, as presented by his bill, was very clearly without merit. Certainly it would not be the province of the court to determine a doubtful question of right to the office upon such an application as this. We think the case was one in which it cannot be said that there was any abuse of discretion, and that there is power to continue this injunction until the defendants in the chancery suit shall have resorted to legal proceedings to test the title to the office.
The alternative writ will be vacated, and the application for mandamus denied.
The other Justices concurred. | [
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Hooker, J.
In 1871 David W. Boyden died intestate, leaving a farm of 27 acres to his three children, Etta Ream, David W. Boyden, and Daniel Boyden, subject to the rights of his widow, their mother. In 1880 the widow, now Rachel Holbrook, as administratrix of her deceased husband’s estate and in her own right, mortgaged the premises for $275. On December 2, 1897, defendant Issachar N. Robinson obtained an assignment of this mortgage to one Julia M. Rice, for whom he was, and for some time had been, acting as agent. On October 5,1891, there was due on this mortgage the sum of $460, and upon that day Etta Ream paid $60 upon it, and on April 26, 1892, she paid $80, and on June 5, 1893, $30 more, making a total of $170 paid by her. David W. Boyden paid $45 upon it. Daniel paid nothing. Mr. Norton, a tenant, paid $136 to apply on the mortgage and interest. At the time Julia M. Rice bought it, the complainants claim that there was but $232 due upon it, and that Etta Ream had paid more than one-third of the mortgage, and interest computed to the time of hearing this cause in the circuit court.
On December 24, 1897, defendant Issachar N. Robinson bought the interest of David W. Boyden for $75. This was 22 days after he took an assignment of the mortgage to Julia M. Rice. About three weeks later he began foreclosure proceedings by advertisement, using, by permission, the name of another as attorney, but attending to the business himself, and at the sale bid the property in for himself. Immediately after bidding in the property, he wrote the following letter to Mrs. Ream:
“Fremont, Mich., April 19, 1898.
“Mrs. Ream: That mortgage on the 40 acres in which you hold an interest was foreclosed, and I bid in the land, and if you wish to give me a quitclaim deed for $75, the same that I paid your brother David, I will give you that amount. I have talked with your brother Daniel, and he says he will sell his interest for the $75 if you wish to sell yours. The land is in very poor shape, and has so many milkweeds on it, and continual cropping and not putting anything back has made it in very poor shape, so this is all I feel that I can afford to pay.
“Very respectfully,
“I. N. Robinson.”
Mrs. Ream then employed an attorney, and negotiations extending over some months ensued. Being unwilling to sell for $75, she tried to buy his interest for a similar sum, and finally offered him $125 for it. Although it had costt him but $75, he refused to accept it, and, although he now pretends to have parted with his title, he was careful not to inform her or her attorney that he did not own it. A few days before the redemption would expire, Mrs. Ream’s attorney learned that she had paid more than one-third of the amount due on the mortgage, and, the deed from David W. Boyden to Issachar N. Robinson being of record, he asserted to Robinson that his foreclosure title inured to her benefit, because they were tenants in common. He testified that he told Robinson that, if he wanted to cut her off, he should have had the purchase at the mortgage sale made by some one else. According to the witness, he did not deny his ownership of the David W. Boyden interest, and finally offered $100 for Mrs. Ream’s interest, as a present. The witness testified that he said that he still owned it, in answer to the direct question. A day or two. before the expiration of the period for redemption, a quitclaim deed of an undivided third of the premises was presented, with the request that he execute it. This he refused. Thereupon a bill of complaint was filed, and on May 13th or 14th an answer was filed, alleging that Robinson had quitclaimed his interest to his son, about 10 days after he bought from David W. Boyden, for $100 in cash. Thereupon complainants withdrew the suit, and filed the bill in this case, asking that the quitclaim deed to the son be declared void and set aside, and that an account be taken between the tenants in common, and that payment be decreed and partition had. Both Robinson and son answered.
A part of complainants’ testimony has been stated. This is corroborated by the testimony of Mrs. Ream; also by that of Mr. Johnston, to whom Issachar said, in April, 1899:
“I don’t know what real claim they have on me to pay on this matter, because I have bought the mortgage, and I already hold one-third interest in the property; but I will make her a present of a hundred dollars. ”
The register of deeds testified that on May 3, 1899, the deed was recorded; that, a short time before, he had a talk with Issachar N. Robinson about the land that had been foreclosed, and was told by him that he owned a third of it; that he told him he had made a mistake in bidding it in, inasmuch as he was a tenant in common. Robinson told him nothing about the deed to Albert at that time. The examination continued as follows:
“ Q. Didn’t he, while he was there, say something to you relative to the feasibility or the idea of executing a quitclaim deed to his son, or to somebody, of the one-third interest, and getting a deed back ?
“A. Not that I remember of.
“ Q. Don’t you remember a remark of that kind by him ?
“A. No; I don’t think I do.
‘ ‘ Q. Haven’t you any recollection of that ? Something of that nature was said by one or the other of you?
“A. Well, I wouldn’t want to swear to it. There possibly might have been something said in that direction. To the best of my memory, I think there was a little something said about it, but I wouldn’t want to be— I wouldn’t want to swear to it, but to the best of my recollection there was something said about a quitclaim deed; but that is not a matter I would care to take my oath upon.
“ Q. Your recollection is not very clear upon it ?
“A. Not very clear upon it.
“ Q. But is your recollection to some extent, also, that the remark was that the deed would be dated back ?
“A. No; I don’t remember anything about it. As I said, I wouldn’t want to swear to it.
“ Q. Your recollection is not that he said that he had already made a quitclaim deed ?
“A. No; he said nothing about that, as I remember of.
“ Q. Nothing to that effect ?
“A. No.
“ Q. But your recollection is that he then claimed to be the owner of one-third, and also the purchaser ?
“A. Yes, sir; that is what the understanding was.
“ Q. Between both of you ?
“A. As I understood it, he owned a one-third interest, as I understood it, in the land there, and foreclosed the mortgage on the other part, or the whole part, rather.
“ Q. And he said nothing to disabuse your mind of that idea ?
“A. No, sir.
“ Q. And did not at any time until the deed was recorded ?
“A. I don’t know as he ever said anything about it.”
On cross-examination the testimony was emphasized:
“ Q. Well, that day he didn’t state to you personally that he owned that one-third interest; you knew that from the records in the office ?
“A. Yes, I think he did, Mr. Luton; I think he said he owned a one-third interest in the land, and he had bought out one of the boys. Of course I knew, when the deed came in, that was a fact anyway.”
The substance of these conversations was denied by Robinson, while he and his wife and his mother-in-law, and the notary, who was a farmer and preacher, living at some distance in the country, testified to the execution of the deed at the time stated. Albert, to his credit, was not a witness, nor does he appear to have taken any part in this defense, further than by a joint answer, for which we are charitable enough to believe that he is in no wise responsible.
The most that can be claimed for this defense is that Issachar N. Robinson devised this scheme to acquire title to the premises for a low price by lulling Mrs. Ream into security by the thought that he was a tenant in common, which he knew that she believed prevented cutting off her interest, until it should be too late to redeem. He bought the mortgage for and in the name of a client, and immediately foreclosed it, though he knew Mrs. Ream was striving to pay it. He resorted to artifice, upon his own theory, to prevent redemption, for he does not deny that he omitted to inform her or her attorney of what he now says was the true state of the title. He says he was paid $100 for his title by his own son, yet within 10 days thereafter he proceeded to cut this off by foreclosure. He says he intended to deed it to him afterwards, if he should reimburse him. His wife testified that she understood about this matter, in fact drew some of the papers, and was ‘‘ particularly interested in it.” She understood her son bought it as an investment. She thought they could buy out the heirs, or they could get title on foreclosure, and then deed it to him. She said: “I particularly cared to have all of the title come through us.” She “didn’t want her husband to give it to the boy right out, because she wanted the boy to use his own money. He had been in college, and wasn’t posted in Business matters, as men ought to be.”
We are not impressed by the version of the alleged deeding to Albert, in preference to the more probable one shown by the testimony of complainants’ witnesses. It is urged upon the part of defendants that Issachar N. Robinson was under no obligation to pay this mortgage, and had a legal right to purchase this land, and that the title so acquired would not be held for the benefit of his co-tenants, to whom he owed no duty, not having acquired his interest under the same deed, and not being in possession. There are many authorities which recognize this exception to the general rule, although others refuse to do so, and Michigan decisions are accredited with a tendency to approve the exception; it having been held that a co-tenant may, under some circumstances, assert adverse possession. But the case seems to be within the rule of Damm v. Damm, 91 Mich. 424 (51 N. W. 1069), which appears in all important respects a similar case.
The decree of the circuit court is reversed, and a decree will be entered in this court setting aside the quitclaim deed to Albert M. Robinson, declaring that the complainants and Issachar N. Robinson are the owners in fee of the premises in equal shares of an undivided third each, subject to the right of dower of Rachel Holbrook; the shares of defendant Robinson and complainant Daniel Boyden each being also subject to a lien in favor of complainant Etta Ream for the amount of $28.15; and that Daniel Boyden’s share be subject to a lien for $165.20 in favor of the defendant Issachar N. Robinson; all sums to draw interest from June 5, 1900; and that the complain ants recover costs of both courts against the defendants; and that the cause be remanded to the circuit court to enforce said liens and partition the premises by appropriate proceedings.
The other Justices concurred. | [
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] |
Moore, J.
This is an application for a writ of certiorari to review the action of the circuit judge of Wayne county, who denied an application for mandamus to compel the respondent to publish a certain ordinance which petitioner claims was regularly adopted. The ordinance referred to was vetoed by the mayor. The charter divides the city of Detroit into 17 wards, and provides for the election of two aldermen from each ward. The legislative power of the city is vested in a common council, to be composed of aldermen elected from each ward. Charter, § 89. One of the aldermen died, and one resigned. After the ordinance was vetoed, a motion to pass it over the veto of the mayor received 22 votes, while 7 votes were in the negative. Section 103 of the charter provides that, after the veto of any ordinance, resolution, or proceeding, the common council shall proceed to reconsider the vote by which the same was passed, and, after such reconsideration, two-thirds of all the members elected of the common council shall be necessary to pass or adopt the same. The sole question is as to the construction of this provision of the charter. The petitioner claims that, though 34 aldermen were in fact elected, as one had died and one resigned, the same number of votes would suffice to pass an ordinance over the veto of the mayor as would secure the passage of the ordinance if the council was made up of only 33 members.
There are not many authorities bearing upon the question, and they are not uniform. State v. Orr, 61 Ohio St. 384 (56 N. E. 14), sustains the contention of the petitioner, but we are not satisfied with the reasoning of the case. In City of San Francisco v. Hazen, 5 Cal. 169, the charter provided for a board of aldermen and a board of assistant aldermen, each to consist of one member from each ward; that a majority of each should constitute a quorum; and that no ordinance or resolution should be passed except by a majority of all the members elected. An ordinance was passed by a vote of four to three, there being a vacancy in the board by reason of the resignation of a member. Held, that the ordinance was not passed by a majority of all the members “elected,” and was therefore void. This case was followed in McCracken v. City of San Francisco, 16 Cal. 591, where Field, C. J., wrote the opinion, declaring an ordinance passed under similar circumstances a nullity.
In Pimental v. City of San Francisco, 31 Cal. 351, Mr. Justice Field, speaking for the court, said:
“At the time this ordinance was acted upon by the board of assistant aldermen, there was a vacancy in the board, occasioned by the resignation of one of its members, so that of the eight members elected only seven remained in office. Of this number four members voted for the passage of the ordinance, and three against it. As a conse quence the ordinance was not passed, not having received the necessary vote required by the charter then in force. The charter vested the legislative power of the city in a common council, consisting of a board of aldermen and a board of assistant aldermen, each board to be composed of eight members; and fixed the limits of. their authority. * * * It declared that no ordinance shoqld be passed ‘unless by a majority of all the members elected to each board.’ The ordinance in question, therefore, not having received the vote of a majority of all the members elected, was never passed. It was, in fact, rejected; as much so as if every member had cast his vote against its passage. It was, therefore, for all purposes, an absolute nullity.”
In Satterlee v. City of San Francisco, 23 Cal. 314, the question was reconsidered. It was claimed that the alderman who it was alleged had resigned was not in fact elected, but was an alien, and not, therefore, eligible to office; but the court held that he had been regularly elected, that the charter provided that each board should judge of the qualifications of its members, that he was an officer de facto, and that the validity of his election could not be inquired into in a collateral proceeding; and the court followed the other cases cited from that State. See, also, Lawrence v. Ingersoll, 88 Tenn. 52 (12 S. W. 422, 6 L. R. A. 308; 17 Am. St. Rep. 870); Rex v. Devonshire, 1 Barn. & C. 609; Rex v. Bower, Id. 492; Rex v. May, 4 Barn. & Adol. 843; Rex v. Morris, 4 East, 17; Rex v. Bellringer, 4 Term R. 810; Rex v. Miller, 6 Term R. 268.
In Peck v. Berrien Co, Sup’rs, 102 Mich. 346 (60 N. W. 985), the resolution received 18 out of 26 votes, but 2 of the 18 had not been elected, but had been appointed to - fill vacancies. The statute provided that the board of supervisors should have power, by a vote of two-thirds of all the members-elect, to designate, etc. Mr. Justice Hooker in that case says:
“We find no authority for the proposition that a township temporarily represented by an appointed supervisor has not the same voice upon the board that it had before the vacancy. * * * That the use of the term ‘elect ’in section 489, 1 How. Stat., has a purpose, is plain; but we think it more reasonable to believe that it was intended to require the consent of two-thirds of a full board, than that it was designed to deprive townships, which should be represented by appointive officers, of a voice in the proceedings. It was intended to preclude action by two-thirds of a quorum, or of a board whose numbers had been lessened by vacancies.”
It is admitted that, if 2 of the 34 aldermen had been temporarily absent, the ordinance would not have been passed. We cannot see how the fact that 2 of the 34 aldermen elected were permanently absent, instead of being temporarily so, would change the terms of the charter. The language is not ambiguous. The purpose, doubtless, was that, when legislation was proposed the wisdom of which was in so much doubt as to meet with the veto of the mayor, before it could become a law it should receive the vote of two-thirds of all the aldermen, when all the wards of the city were fully represented in the council.
The action of the circuit judge is affirmed.
The other Justices concurred. | [
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] |
Cooley, J.
This was a proceeding which sought to have the name .of respondent stricken from the roll of attorneys for professional misbehavior. While not strictly a criminal prosecution, it is of that nature, and the punishment, in prohibiting the party following his ordinary occupation, would he severe and highly penal. The majority of the court are not satisfied that the evidence gives such clear support to the charges as should be required in such cases, and the application will therefore be denied.
Graves, Ch. J., and Campbell, J., concurred.
Christiancy, J., did not sit in this case. | [
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Per Curiam.
Conrad was removed from his office of administrator by the probate court, and he appealed from the order removing him, to the circuit court.
The case was there tried before a jury and the order of removal was affirmed. Exceptions were taken to the admission of evidence and to instructions given to the jury, and the administrator now asks us to review these various rulings on writ of error. On looking into the case we are satisfied that we have no jurisdiction in the case. The point, we think, is clearly settled against the jurisdiction by Holbrook v. Cook, 5 Mich., 225.
The proceeding in the probate court to remove an administrator is not one according to the course of the common law, and its nature is not altered when it is removed into the circuit court by appeal. The inquiry is one of a peculiar and exceptional character and which ought to be conducted with all reasonable celerity, and the law does not contemplate that the settlement of estates shall be procrastinated and embarrassed by reviews of such matters on writ of error.
The writ should be dismissed. | [
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] |
Cooley, J.
The plaintiffs brought suit in ejectment to recover a valuable lot in the city of Detroit which they claim as the heirs at law, or grantees of heirs at- law of Catherine Welch, afterwards Willetts, whose title originated in or about the year 1813, by descent from her mother, Bridget Belcher. The defendants claim under Elijah Willetts, who married Catherine Welch in 1817, and to whom in the year last named a deed was made by the administrator of Bridget Belcher, of the lot now in question, the purpose of which was therein declared to be, to carry into effect an order or decree of the probate court in partition. The , evidence appears to establish the fact that ever since the date of this partition deed this lot has been held and claimed by Elijah Willetts and those deriving title from him, and the claim of the plaintiffs would be barred by the statute of limitations were it not that Elijah Willetts was living until 1868, and up to that time would have been entitled to possession in right of his wife if she continued to be owner until her death. If the proceedings in partition are valid and were evidence of title in Elijah Willetts as against his wife, the plaintiffs, it is manifest, cannot recover, as their claim must necessarily be adverse to those proceedings.
The first thing that strikes the mind in taking up such a case is the long delay in taking any proceedings to contest the validity of the partition. This is not wholly accounted for by showing that ejectment could not have been brought by the heirs of Catherine Willetts before the death of Elijah Willetts. If Catherine Willetts in her life time, or her heirs afterwards, had knowledge of the proceedings in partition, it is reasonable to suppose they understood Elijah Willets and his grantees to be claiming title in fee under them, and in that case if there were facts which might be brought forward to show that the partition deed, which constituted a cloud upon their reversionary title, was void, there would have been no difficulty in obtaining the proper relief by the aid of a court of equity.
Under these circumstances when the plaintiffs come forward to assail a title which has stood undisputed for half a century, and which was founded originally upon a judicial determination, every reasonable intendment should be made in support of the existing possession, and it would be in the highest degree unreasonable and unjust to require defendants to make that strict proof of these ancient proceedings that would be expected had they been recent. And especially is this the case when the proceedings which are called in question were had at a period in the history of Michigan whose judicial records are to a considerable extent lost or destroyed, so that we may almost take judicial notice that at this day it would be impossible in most cases to make a complete exhibit of all the papers and proceedings that were exhibited or that took place in any probate matter of the period in question.
In the present case the parties have made what proofs they could of the probate records, but some of them appear to be lost, and to some of the proceedings in the case of Bridget Belcher there are only brief calendar references, made long after the transactions themselves, to which they refer, took place. We shall not examine in detail .the evidence adduced to show the probate proceedings, as it will suffice for the presentation of our views to state that enough was proved to warrant a jury in finding that George Welch, one of the children of Bridget Belcher, was appointed administrator on the estate of his mother in the year 1814; that he gave bond and took upon himself that trust, and that he filed an inventory showing, as property of the estate, two lots in Detroit (one of which is assumed to be the one in question), valued at six hundred dollars and four hun- , dred and seventy-five dollars, respectively, and personal property to the amount of near four thousand dollars. There was also evidence from which the jury might find that the book of probate records containing the proceedings from December 16, 1816, to December 30, 1818, was wholly lost, but that on May 12, 1817, George Welch, the administrator, executed to Elijah Willetts a deed of the lot here in question, which purported to be a deed in partition made in part execution of an order recited therein, as follows:
“On examination of the report made by James Abbott, Esq., George McDougall, Esq., and David McKinstry, .it is thereupon adjudged, ordered and decreed, that the said George Welch, in his capacity as administrator to the estate of the late Mrs. Bridget Belcher, deceased, shall make good and legal conveyances to such individuals as named in said report, and that the said George Welch comply with all and every part of said report.”
The recitals in the deed show further that this order was made by Charles Lamed, register of probate for the judicial district of Erie, Huron and Detroit. The deed itself was proved to be in the handwriting of the register of probate, and was witnessed and the acknowledgment taken by him. And at the same time a similar deed was made of the other lot to William Belcher, one of the heirs, purporting to be made under the same partition order.
Now, to suppose that the register of probate drew such a deed, reciting therein an order made by himself when none had in fact been made, and that the administrator executed it with the knowledge he must have had of the facts, would be to assume such malfeasance, if not corruption, in office as should never be assumed from a mere absence of evidence in support of official action after so long a period has elapsed and under circumstances so well calculated to favor the loss of evidence. It is much more reasonable to presume that the register of probate, who at the time was unquestionably exercising jurisdiction over the administration of this estate, and who thus in his own handwriting gives what purports to be a copy of one of his own orders, did actually make this- order as one of the steps in the settlement of the estate, if it would be an appropriate measure in the course of such settlement, and if by law he had authority to make it.
That the register of probate had authority to order such a partition can hardly, I think, be disputed. The territorial act of January 19, 1811 (1 Ter. Laws, 160), expressly empowered him “ to make partition, both among tenants in common, joint tenants, co-heirs and devisees.” The act did not prescribe in detail what should be the proceedings, but, as Avas customary in those early times, left nearly everything regarding the procedure, to be determined by the-court itself. And while it is matter of general notoriety that the judicial proceedings of the territory Avere exceedingly informal, it is believed that the rights of parties were not the less on that account kept carefully in vieAV.
The register of probate, then, had authority to make partition of estates, and it only remains to be seen Avhether he acquired jurisdiction to make the particular order which is iu question in this case. It is denied by the plaintiffs that he could have jurisdiction to make this order, unless it first appeared that Elijah Willetts Avas a joint owner with others, of the lands belonging to Bridget Belcher’s estate, and there is no evidence except the order itself, that he Avas such a joint owner. There is consequently, it is said, no proof to sustain the jurisdiction.
To state the reasoning on the part of the plaintiffs on this branch of the case a little more in detail, it is understood to be as follows: The register of probate neither had nor could have jurisdiction to set off any land to Elijah Willets, unless he was a joint OAvner with others of the land to be partitioned. He was not one of the heirs, and he was not shown in any Avay, unless the very assumption of jurisdiction by the court can be held to show it, to have acquired any rights in the land by purchase. But if juris diction depends upon- his having a right in the land, to make the assumption of jurisdiction prove the right, is to reason in a circle, and the whole may be embodied in a single sentence, that the register of probate had jurisdiction because he assumed to have it.
This view of the case is plausible, but not, we think, sound. The court of probate had undoubted jurisdiction in the matter of the estate of Bridget Belcher, and might order a partition as one of the steps in its settlement. To the proceedings concerning this estate all the heirs were parties, and such other persons as claimed to have any rights derived from the heirs would be px-oper parties to the partition. The jurisdiction of the court would not depend on whether the claim was well founded or not; it had a general jurisdiction as regards the subject matter to be partitioned, and the question of the rights of the respective claimants would be the subject of evidence, and of an adjudication by the court. And even an ex-roneous conclusion by the court in passing upon the evidence would not render its action invalid, but only make it subject to review and reversal by the supreme court, to which an appeal was given. — 1 Ter. Laws, 168. It was not, therefore, the actual existence of a right in Elijah Willets that gave the court jurisdiction to act and make the order in this case, but the court having jurisdiction, must find upon the evidence that he had a right, before it should set off lands to him. And the order is the best, and indeed the only legitimate evidence that such a right was established.
It would of course be necessary that Elijah Willets should be made a party to the proceeding before any order could be made affecting his interest. But the order appearing to have been made in his favor, and he having taken the benefit of it, no other evidence is íxeeded to show that he was before the court. And if any heir whose interest was injuriously affected by the adjudication in favor of Elijah Willits, was dissatisfied therewith, the proper remedy should have been brought by appeal.
As this conclusion corresponds to that of the superior court, and as we discover no error in the rulings of that court on the admission of evidence, ■ the judgment should be affirmed, with costs.
The other JusLices concurred. | [
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] |
Christiancy, Ch. J.
This was an action of trespass originally brought in a justice court by Clegg against Daniels, and after judgment for plaintiff, taken by appeal to the circuit court for Lena-wee county, where the plaintiff recovered a judgment for fifty dollars, which Daniels brings to this court by writ of error and bill of exceptions.
The only statement of the pleadings is that contained in the brief entry of the justice upon his docket, and returned by him as follows : “ Plaintiff declared in trespass to his damage one hundred dollars for injury to buggy and horse. Defendant pleaded general issue.”
On the trial in the circuit the- plaintiff gave evidence tending to show that while his daughter, aged about twenty years, was driving a horse and buggy of the plaintiff’s in a westerly direction on the north side of an east and west road in said county, and being in great haste to find her father on account of the dangerous illness of a sister, she came to a hill which she commenced to descend, when she observed the defendant driving in an easterly direction on the north side of the road, coming up the hill with two horses and a wagon; that defendant did not turn out for her at all, but drove directly on, and although she turned as far as she possibly could to the north, a collision ensued by which the buggy or carriage in which she was riding, was overturned and damaged, and the daughter was thrown out on the north side of the road; that when the buggy was overturned the top struck the bank on the north side of the ditch, which was five or six feet wide, and it was afterward found there; that the buggy canted up on the north side of the road when she was thrown out, and went across the road in that position; that the horse left the buggy, on the south side of the road; that the horse was a gentle family horse; that the buggy was injured to the amount of ten dollars, and the horse damaged to the amount of fifty dollars.
The defendant gave evidence tending to show that he was driving in an easterly direction with two young horses, his wagon being loaded with apples; that he was on the north side of the road, and as he reached the foot of the hill and began to ascend, he observed the plaintiff’s daughter at the top of the hill, on the north side of the road, driving upon a wralk, but that in a moment her horse commenced to go faster, and started on a trot with a loose rein; that as soon as he saw her he commenced to turn to the south; that he turned out sufficiently in season to be upon the right of the middle of the traveled part of the road by the time the plaintiff’s daughter would pass him, driving at the pace she was driving at when he first saw her, and that he was on the right of the middle of the traveled part of said road, and of the worked part of it, when the collision occurred; that just as plaintiff’s daughter was about to pass him, her horse suddenly swerved to the south, and one of the wheels of the buggy caught in the left hand wheel of the defendant’s wagon which was nearest the north side of the road; that her horse became frightened and broke loose and left the buggy on the south side of the road; that the part of said road wrought for traveling is about thirty feet wide at this place, and that two carriages could have passed at the same time between defendant’s wagon and the north side of the road in safety, with ordinary care on the part of the parties driving them; and that the north half of the wrought part of the road was not traveled; and that defendant left his team and caught the horse for plaintiff’s daughter, and did what he could to assist her.
All the other evidence stated in the record tended merely to corroborate the evidence above stated, on the one side or the other.
Upon these facts, the court, in answer to so many separate requests of the defendant, very properly charged the jury:
First. That “in the use of a public highway, a party has a right to expect from others ordinary prudence, and to rely upon that in determining his own means of using the road.”
Secotid. That “ the defendant in this case bad . a lawful . right to travel upon any portion of the highway he saw fit, unless he was about to meet and pass another vehicle, when .he must seasonably turn to the right of the middle of the traveled part of the road.”
Third. “If the jury find there was negligence on the part of the defendant, and the plaintiff’s property was injured, still the defendant is not liable, if by using ordinary care the plaintiff’s daughter might have avoided the collision.”
Fourth. “If the jhry find that, at the time of the collision, the defendant was still on the left of the middle of the road, yet the defendant is not liable, if by using ordinary care the plaintiff’s daughter might have avoided the collision.”
Fifth. “If the jury find that the defendant was still on the left of the middle of the • road, yet, if the plaintiff’s daughter, in going by, through negligence and want of ordinary care, drove her wagon onto the wagon of the .defendant, the defendant is not liable in this action.”
, Sixth. “If the jury .find that the plaintiff’s daughter did:not use ordinary care, or was guilty of negligence, the plaintiff cannot recover.”
Seventh. “To entitle the plaintiff to recover damages for injuries sustained by reason of the collision, he. must • show the injuries to have been attributable to the misconduct of the defendant, and under such circumstances as to exonerate himself (plaintiff) from all negligence on his part.” •
Eighth. “ If the plaintiff, by want of ordinary care, • contributed to produce the collision and injury, he is not entitled to recover, and the verdict must be for the defend-' ant.”
Ninth. “ The burden of proof is on the plaintiff, not ■ only to show negligence and misconduct on the part of.the defendant, but also to show ordinary care and diligence on his own part.”
These several charges were all given in answer, to so many separate written requests of the defendant, and it will be noticed that six of them (from the 3d to the 8th of the above points inclusive), relate to the question of contributory negligence on the part of the plaintiff; that the 6th, though charged, was too favorable to the defendant, as it stated that the plaintiff could not recover if his daughter did not use ordinary care, or was guilty of negligence; whereas the plaintiff would still be entitled to recover, though his daughter was guilty of negligence, unless that . negligence contributed to the injury, — but of this error in his favor, the defendant cannot complain; that all the others (3d, 4th, 5th, 7th, 8th) involved substantially the same principle, viz.: that the plaintiff could not recover if he or his daughter were guilty of negligence contributory to the injury complained of, whether the defendant were guilty, of such negligence or not. Why the same proposition should be urged in so many different forms of words, is difficult to discover.
Such a course is sometimes resorted to for the purpose of entrapping the court into a refusal to charge a correct proposition of law, for which the judgment might be reversed, or to mislead the jury, should the charge be given, by clothing the same proposition in various forms of words, sub stantially amounting to the same thing, though so shaded as to produce a first impression of a slightly different meaning, — a habit which has become too prevalent with the bar in some parts of the state, and which ought to be discouraged and checked; as it not Only causes great waste, of time in the trial' of causes, but tends to subvert the ends of justice, to obscure the real merits of the controversy in a maze' of subtle- verbal distinctions, and to degrade courts of justice into mere schools of dialectics for the exhibition of contests of skill between the counsel and the court in the. use of mere words, as barren of' any useful result as the exploded logic of the schoolmen.
And for the purpose of avoiding such results, or checking any attempt to convert the court into an arena for settling questions in metaphysics by the verdict of a jury, as well, as to expedite trials and do justice between parties, a circuit' judge ought always to have the right, after once charging correctly the real proposition involved, to refuse to charge the same proposition in various other forms of words, however correct it may be when expressed with such variations, though it may be well enough, in the discretion of the court, to submit the same proposition in more than one form, if there be any danger of being otherwise misunderstood by the jury.
And if the statute in reference to charging juries (Comp. L. 1871, pp. 1527, 1528) should be thought not to give the judge this liberty, it ought to be so far amended as- to allow him to refuse to charge the same proposition, though in different language, more than twice or three times. But, seriously, there is nothing in the statute which requires the judge to charge the same correct proposition of law more than once, or which makes it error to refuse to charge it again. The court might therefore very properly have refused to charge at all upon the requests numbered in the record six, and seven and a half (five or six entire propositions involving the same idea seem to have been thought insufficient without submitting one as fractional upon the same point), the first of which (No. 6) was that “if the jury find that the collision was caused by the negligence of both parties, the plaintiff cannot recover;” which the court modified and gave as follows: “If the jury find that the collision was caused by the negligence of both parties, the plaintiff cannot recover. I have already said the negligence must be material.”
The other request (No. 7£) was: “If the plaintiff’s negligence concurred or contributed in producing the injury, the defendant is entitled to your verdict.” And this the court modified and gave in the following language: “ If the plaintiff’s negligence materially concurred or contributed in producing the injury, the defendant is entitled to your verdict.” To these modifications the defendant excepted. These two requests, it is true, were correct enough in' law, and in accordance with several requests already charged, without the modification which required the- negligence to be material; but we think they were equally correct with the modification.
If the words added by the modification had any effect at all, it was simply to impress upon the minds of the jury, that to give the negligence of the plaintiff’s daughter the effect to defeat the plaintiff’s action, they must be satisfied that it did contribute to the injury, and that the injury would not have occurred -without that negligence on her part, but that, though the plaintiff’s daughter may have been guilty of negligence, yet if the negligence of the defendant was so gross, and of such a character that the injury could not have been avoided by ordinary care on her part, the'n her negligence was immaterial and did not contribute to the injury within the meaning of the rule which prohibits a recovery when the plaintiff’s negligence has contributed. to the injury; because the damages would not, in such a case, have been occasioned, even in part, in any just sense, by her want of ordinary care, but by the negligence of the defendant. — See Kennard v. Burton, 25 Me., 39. Taking this part of the charge in connection with all the rest of the charge, we think it clear the jury could nob have been misled by it, and the course of argument on this point before the jury may have been such as to render it necessary, in the opinion of the court, to make the modification in question, to prevent misapprehension on the part of the jury. We see no error in the modification complained of.
The court very properly refused to charge as requested (by request numbered in the record), that “if the plaintiff’s daughter, by driving at the pace she did drive, contributed to produce the injury, then the plaintiff cannot recover.” He had already charged the correct rule of law upon this point some five or six times over, and was not bound to charge it again, had the request itself been entirely correct; but it was not, because it either required the court to determine at what pace she did drive, or assumed that she might have contributed to the injury by driving at all at any pace.
The court was also correct in charging that “in deciding whether the plaintiff’s daughter exercised ordinary care in driving the horse, or was guilty of negligence, the jury should consider the age of the daughter, and the fact that she was a woman;” and “that she would not be guilty of negligence if she used that degree of care that a person of her age and sex would ordinarily use;” and in refusing to charge, that “for the purpose of this case, the daughter should be held to the same degree of care and skill that would be required of the plaintiff himself, had he been driving at the time of the collision.”
The case, upon this point, does not, as to the defendant, stand upon the same, or even similar grounds with respect to the plaintiff’s daughter, as the case of a railroad engineer or conductor in respect to persons approaching a railroad track while the train is in rapid motion, with teams and wagons which cannot be seen, or the persons driving be recognized, until so close to the track as to render any knowledge of the character or the capacity of such persons of any avail; as in the case of" the Lake Shore & Mich. Southern R. R. Co. v. Miller, 25 Mich., 274. Besides, railroad trains must, subject to some special qualifications, necessarily have the precedence over teams and wagons at highway crossings; and all persons are bound to notice the approach of such trains at such crossings, and to keep out of the way, as was properly held in that case. And yet, even in that case, as to children upon the track, ahead of the train, who could be seen by the engineer, or other persons known to him to be incompetent or deprived of any of their faculties necessary to their safety under such circumstances, it was held that the engineer, was bound to act with reference to the incapacity of such persons thus appearing or known to him, and so far as in his power, to govern liis train accordingly, until such persons were out of danger. And the same principle was recognized with respect to the rights and duties of street railway companies towards children upon, or getting on or off, their cars. — East Saginaw City Railway Company v. Bohn, 27 Mich., 508.
These cases fully recognized the principle that, in deciding upon the degree of diligence to be required of children, or other persons more or less incompetent, that incompetency must be taken into account; and no higher degree of diligence must be required of such persons than we have a right to expect, or than expez-ienee has showzz such persous generally would be likely to exercise under like' circumstances; and that other persons to whom that incompetency is apparent, or who know or have good reason to believe it, are bound to exercise towards such persons a correspondingly higher degree of care, according to the degree of that incompetency, so far as, under the circumstances, it may be z-easonably within their powez-. This principle, thus limited, is one of simple justice, of common sense and commozz hurnanity, too obvious to require comment, and has often been recognized by courts in various forms, — See Robinson v. Cone, 22 Vt., 213 ; Birge v. Gard iner, 19 Conn., 507 ; Kerr v. Forgue, 54 Ill., 482; Chic., Bur. & Quincy R. R. Co. v. Dewey, 26 Ill., 255.
The charge in this case comes directly within this principle. The defendant saw the plaintiff’s daughter approaching, driving the horse and carriage. No one would ordinarily expect, and the defendant had no right to expect, from a young woman thus situated, the same amount of knowledge, skill, dexterity, steadiness of nerve, or coolness of judgment, in short the same degree of competency, which he would expect of ordinary men under like circumstances; nor, consequently, would it be just to hold her to the same high degree of care and skill. The incompetency indicated by her age or sex, — without evidence (of which there is none) of any unusual skill or experience on her part, — was less in degree, it is true, than in the case of a mere child; but the difference is in degree only, and not in principle. We think the charge upon this point was correct; and that the court also properly charged that “ while it is lawful for a person to travel on the left of the middle of the road when it is not occupied by a person coming in an opposite direction, still, as the law requires him to turn out seasonably when he meets a team, the law would require him to use more than ordinary care to keep out of the way and avoid a-collision with passing teams, while on the left of the center of the road; and unless defendant used a very high degree of care to get out of the way, and to the right of the center of the road, and the collision occurred on the left of the center of the road, and without the material negligence of the plaintiff’s daughter, the defendant would be liable.”
The judge further charged that what is meant in the statute (Comp. L., § 2002) by “the traveled part of the road,” is that part which is wrought for traveling; and this is assigned for error.
If this is not the meaning of the statute, then (I put the caseby way of illustration) though the traveled track (where the wheels have generally run) might in the present instance have been within one or two feet of a perpendicular bank or wall, or of a deep and impassable ditch on the-north side of the road, — the defendant’s left, — and though the wrought part of the road might have been two rods.wide at his right and in good order for traveling, the defendant' would have been under no obligation to turn to the-right beyond the center of the wheel tracks, though by neglecting to turn further he left no room at his left in Avhich the plaintiff’s daughter could possibly pass with the horse and carriage she Avas driving, and if the road continued thus narrow and impassable, for the whole space between them when they first saw each other, and for some distance behind her carriage, and if he had a right to refuse to turn beyond the center of the traveled track, he had the right to drive on, giving her only that amount of room, and she could neither drive forward nor stand still, with safety. And, though she might, under the circumstances,, perhaps, be excused in attempting to escape from the dilemma by turning to her own left and driving around his team and vehicle, clearly she would have been under no greater obligations to do so (when the statute gave her the right, if it did not give her the duty to turn to the right) than heAvould have been to turn far enough to his right to make it possible for her to pass. And if she had stood still after getting as far as possible to her right hand of the road, would he have had the right to drive on as long as his-vehicle was south of the center of the traveled track,, though in doing so he should drive over her ? Does not the statute, upon the construction claimed by the counsel, bring the rights of the parties, as well as their vehicles, to a dead lock ?
All Avho have any experience in traveling the common roads in this country know, that while it is common to-work fit for traveling a space in or near the center of the four rods right of way, amply sufficient, and generally more than sufficient, for teams and carriages safely to pass, yet the track where most of the travel goes, or in other words the most traveled wheel track, is often near, and sometimes within a foot of one side or the other of the part thus fitted for traveling, as chance or the caprice of the ■drivers or their teams may direct; and hence the interpretation of the statute, contended for by the plaintiff in ■error, would render the statute an actual obstacle, instead ■of a protection to travel, in many cases. But in fact all the wrought part of the road is generally traveled to a greater or less degree, and must necessarily be in turning out when teams meet or pass each other.
The construction adopted by the court is the same adopted by the supreme court of Massachusetts, under the same provision of statute, in Clark v. Com'th, Pick., 125, decided in 1826. The same provision was enacted into our statutes in the revision of 1838 (Part 1, Title IX., Ch. 8, § 1), though we had a similar statute from 1833 (Laws of 1888, p. 116, § 88), which used the term “ center of the road.” In adopting this provision from the Massachustts statute in 1838, it is reasonable to suppose the legislature meant to adopt it with the same meaning thus settled by the courts of that state, as shown by the case above cited, and decided twelve years before. And though the supreme court of that state seem to have since, in 1846 (Com'th v. Allen, 11 Metc., 403), adopted the contrary interpretation ¡now contended for by the plaintiff in error, we are not .satisfied with the correctness of the decision, and think such an interpretation of the statute, as applied to common roads in this state, would be extremely pernicious, and contrary to the legislative intent.
A point is raised by the brief of the plaintiff in error, and was urged upon the argument, that the plaintiff below did not prove on the trial that the horse and buggy were his. In answer to this it is sufficient to say that this is not a case made, setting forth facts found or admitted, but a bill of exceptions; that by the bill it does not appear that any such point was raised at the trial; no exception was taken on any such ground, nor any such error assigned. And the requests of the defendant below, and the whole frame of the bill, go upon the implied admission that the-plaintiff’s ownership was not contested, but either clearly proved or admitted.
It is further objected that no mere action of trespass,, like the present, will lie; but that the action should have been brought directly upon the statute, and the declaration-should have averred the neglect or refusal seasonably to turn to the right of the traveled road, as the real ground of the action. Such an allegation would undoubtedly be necessary in a prosecution for a penalty under this statute, where this neglect would be sufficient to render the defendant liable, without reference to the plaintiff’s or complainant’s negligence. But whether this neglect of the defendant would alone authorize the plaintiff to recover damages in a civil suit upon the statute, in which the declaration merely alleged that neglect or refusal as the only cause of the injury (see Goodhue v. Dix, 2 Gray, 181), we need not decide, though we are inclined to think the proof of such neglect of the defendant would not even there be sufficient without evidence of ordinary care on the part of the plaintiff. — See Com. v. Allen, 11 Metc., 403; Kennard v. Burton, 25 Me., 89.
But we see no reason to doubt the right of the plaintiff to maintain this action of trespass, for the injuries done to his horse and carriage by the defendant driving his wagon against it, or by placing it in the way when she was rightfully passing, or neglecting to turn out, as she had a right to expect he would. His duty to turn to the right beyond the center of the road, was imposed by the statute; but the duty is the same and the effect the same, whether imposed by a statute, or by custom, or by common law; and it may be doubted whether, in the absence of any statute, in this country, after the custom had become settled as it long ago was, to turn to the right of the center of the road when teams meet, the same duty would not be recognized by the courts, as the like duty of turning to the left ■was in England, as a part of the common law.- But with •the statute we see no difficulty in sustaining this common-law action of trespass.
It is quite probable, that the limitation of one year, fixed by section 2003, Compiled Laws, would apply to this, as well as to the public prosecution, or the strictly statute actions there provided for, as the terms, “any action for such damages,” etc., are broad enough to cover it.
We think the declaration in the justice’s court was sufficient, where no formal declaration is required, and unless objected to, almost any declaration must be held sufficient which indicates the general nature of the plaintiff’s claim.
One assignment of error remains to be noticed. The -court charged that “if the jury should find from the evidence that when the collision occurred the defendant was driving on the left of the middle of the traveled part of the road, it is evidence tending to prove, and raises the presumption, that the collision was caused by the wrongful act and negligence of the defendant; but that presumption may be overcome and rebutted by evidence that satisfies the jury that the defendant attempted seasonably to turn to the -right of the center of the road, and that the plaintiff’s daughter might have avoided the collision by the exercise of ordinary -care, and that her negligence caused or materially contrib"uted to the collision.”
This charge, if standing alone, and as the only charge -upon the point, might have been erroneous, as it might then have been understood as intended to declare that the burden of proof was upon the defendant to show that the plaintiff’s daughter did not exercise due care; but when ■taken in connection with the whole charge upon this point, in which the jury had been told that “ the burden of the -proof .was on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary care and diligence on his own part,” we think the Jury could not have been misled b.y it. And -it will be ¿noticed-that.this charge does.not require that the defendant should iutroduce the evidence of the attempt seasonably to turn out to the right, or that the plaintiff’s daughter might have avoided the collision, hut that under this charge it would be sufficient for the protection of the defendant if these facts appeared from any of the evidence in the canse; and when the whole charge is taken together we think it can fairly be understood as. stating -only in effect, that the failure of the defendant to turn to the right would be evidence tending to show that the injury was caused by the negligence of the defendant, — and this is certainly true, — but that if it appeared in any way from the evidence that the plaintiff’s daughter, by the exercise of ordinary care, might have avoided the collision, the defendant was not liable. Thus understood the charge was correct; and we think the charge as a whole, must have been so understood by the jury.
TJpon the whole case, therefore, we think the judgment should be affirmed, with costs.
The other Justices concurred. | [
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The Court
held that this was not such a final order as was appealable under our statute.
Motion granted, with costs. | [
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] |
The Court
held that the order or decree was final, and appealable under our statute.
Motion denied, with costs. | [
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Cooley, J.
Lull sued the railway company to recover the value- of a cow killed by one of its trains passing through the. village of Bridgeport. The right of recovery is based upon an amendment to section thirty-six of the general railroad act approved March 29, 1872 (Laws 1872, page 72), which reads as follows:
“Sec. 36. Every railroad company formed under this act, and every person or corporation owning or occupying any such railway, shall erect and maintain fences on the sides of their respective roads, of the height and strength of a division fence required by law, with suitable openings and gates or bars therein, convenient for farm crossings of the road, for the use of the proprietors of the lands adjoining such railway, or, in lieu of such fences, shall make ditche.s or other obstruction that would be equivalent to such fences, for the protection of such adjacent proprietors, and shall also construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and other animals from getting onto such railway. The sufficiency of such fence, ditch, or other obstruction in lieu of a fence, may be determined by the proper fence-viewers; and the provisions of law relating to partition fences shall apply to railroad fences, except that the company shall build and maintain the entire fence, ditch, or other obstruction at its sole expense. Until such fences and cattle-guards or ditches shall be duly made, such company, person, or corporation, while operating its road, shall be liable for all damages done to cattle, horses, or other animals thereon, and all other damages which may result from the neglect of such company, person, or corporation to construct and maintain such fences, and cattle-guards, or ditches as aforesaid, and after such fences and cattle-guards or ditches shall be duly made and maintained, such company, person, or corporation shall not be liable for any such damages, unless negligently or willfully done; and if any person shall ride, lead, or drive, or intentionally permit any horse or other animal upon such road and within such fences and cattle-guards or ditches, other than at farm crossings, or shall injure or destroy or make openings or passages through or over such fences, cattle-guards, or ditches, without the consent of such company, person, or corporation, he shall for every such offense be liable to a fine not exceeding one hundred dollars, or imprisonment for a term not exceeding three months in the county jail, or both such fine and imprisonment, in the discretion of the court, and shall also pay all damages that: shall' be sustained thereby, to the party aggrieved.”
The evidence on the trial showed that just after dark, and about an hour before the injury to the cow occurred, on the evening of August 7, 1872, the cow was turned into the street by the plaintiff’s servant to keep her away from her calf during the night, and allow her to go the river for water, and that plaintiff’s cattle to get to the river were in the habit of crossing defendant’s railway at or near the point where the injury occurred. The defendant conceded that at the time of the injury there was no cattle-guard on the railway on the south side of the highway crossing defendant’s road at Bridgeport at or near which the injury occurred, and no fence on the east side of the railway between such crossing' and the river, and that plaintiff was then the owner and occupant of the land on both sides of the railway between such crossing and the river. The jury found that the cow was killed on the railway track south of the highway.
On behalf of defendant the circuit judge was requested to charge the jury that if the cow was at large unattended in the highway near the railway crossing, and if she strayed from the highway upon the railway track, although the company may have been at fault in not having a sufficient cattle-guard or fence at that place, yet the plaintiff’s negligence in allowing the cow thus at large near a railway crossing will prevent a recovery in this action. This request was refused, and the judge on the contrary instructed the jury that the liability of the defendant is absolute, if the cow passed upon the railroad track in consequence of the neglect of defendant to have there a sufficient cattle-guard to prevent her passing from the highway upon the track, or if she passed upon the track where there should have been a fence, and it is conceded there was none; and that if she was killed on the track south of the highway their verdict must be for - the plaintiff without regard to any other question. The jury accordingly found for the plaintiff.
It is now contended, on behalf of the railway company, that the obligation under the statute to fence its track and put in cattle-guards has no application to that portion of its road within the limits of a city or village. This argu-. rnent is based upon reasons of public convenience, and also upon certain authorities which are supposed to establish the rule contended for under statutes somewhat similar.
In Lafayette, etc. R. R. Co. v. Shriner, 6 Ind., 141, it was held that a statute making railroad companies liable for stock killed by their cars, where the company had neglected to fence their road, had no application to a case where the injury occurred at the crossing of a public street; the company having no right to fence at that point. In Indianapolis, etc. R. R. Co. v. Kinney, 8 Ind., 402, a more general doctrine was laid down, that the company would not be liable to pay for stock running at large and killed on the track at a place which ought not to be fenced; as for example, the space in front of a mill left open for the con venience of shipment at that point. These cases were followed in Davis v. Burlington, etc. R. R. Co., 26 Iowa, 549, and the company held not liable for injuries to cattle occurring on their unfenced depot grounds. In the subsequent case of Durand v. Chicago, etc. R. R. Co., 26 Iowa, 559, the court went farther, and held the statute to have no application within the limits of a platted town. It would have been more satisfactory if in this case the court had assigned the reasons which brought them to this conclusion, and not contented themselves, as they did, with a mere reference to their former decision, which seems to us to stand upon impregnable grounds without furnishing much support to the sweeping conclusion of the subsequent case. No statute could be held to require railway depot grounds to be fenced without a very clear declaration to that effect, not only because such fencing is unusual, but because the convenience of the company, as well as of the public in transacting business with it, would be very seriously incommoded by such fencing, and the track of the company can be better protected, and with less impediment to business at such points, by other methods than fencing. A more satisfactory rule appears to us to be laid down in Indianapolis, etc. R. R. Co., v. Parker, 29 Ind., 471, in which the court say that while the statute requiring fences has no application to points where it would be illegal or improper that roads should be fenced, such as the crossings of streets or alleys in a city or town, or at mills, etc., where public convenience requires the way to be left open; yet that this is the limit of the'exception, and the track within the corporate limits of a city or town at points where no such reasons apply, is as much within the statute as the track elsewhere. This decision was followed in Jeffersonville, etc. R. R. Co. v. Parkhurst, 34 Ind., 501.
The village of Bridgeport is a small hamlet, and there is nothing in the evidence to show that any reason of public or private convenience required the highway near the plaintiff’s house to be left without cattle-guards, or the track on the south side thereof to be left unfenced. Any exceptional case should have been proved by the railway company, and as none was proved we cannot infer its existence. We must suppose the reasons which in the opinion of the legislature required these securities generally, applied here as much as elsewhere.
There still remains the question, however, whether the railway company could be held liable if the plaintiff himself was guilty of contributory negligence. Were this a common-law action it is clear that such contributory negligence would be a defense. — L. S. & M. S. R. R. Co. v. Miller, 25 Mich., 274; Corwin v. N. Y. & Erie R. R. Co., 13 N. Y., 46. But this is not a common-law action. It is an .action given expressly by a statute, the purpose of which is not merely to compensate the owner of property destroyed for his loss, but to enforce against the railway company an obligation they, owe to the public. The statute is a police regulation, adopted as much for the security of passengers as for the protection of property.— Corwin v. N. Y. & Erie R. R. Co., 13 N. Y, 46 ; McCall v. Chamberlain, 13 Wis., 637; Indianapolis, etc. R. R. Co. v. Marshall, 27 Ind., 302; Jeffersonville, etc. R. R. Co. v. Nichols, 30 Ind., 321; Same v. Parkhurst, 34 Ind., 501. And the decisions may almost be said to be uniform that in cases like the present, arising under such statutes, the mere negligence of the plaintiff in the care of his property can constitute no defense. — Corwin v. N. Y. & Erie R. R. Co., 13 N. Y., 42; Indianapolis, etc. R. R. Co. v. Townsend, 10 Ind., 38; Indiana Central R. W. Co. v. Leamon, 18 Ind., 175; McCall v. Chamberlain, 13 Wis., 637; Horn v. Atlantic, etc. R. R. Co., 35 N. H., 169; Indianapolis, etc. R. R. Co. v. Parker, 29 Ind., 472; Jeffersonville, etc. R. R. Co. v. Nichols, 30 Ind., 321. Indeed, if contributory negligence could constitute a defense the purpose of the statute might be in a great measure, if not wholly, defeated, for the mere neglect of the railway company to observe the directions of the statute would render it unsafe for the owner of beasts to suffer them to be at large or even on his own grounds in the vicinity of the road, so that if he did what, but for the neglect of the company, it would be entirely safe and proper for him to do, the very 'neglect of the company would constitute its protection, since that neglect alone rendered the conduct of the plaintiff negligent.
The judgment must be affirmed, with costs.
Campbell, J., and Graves, Ch. J., concurred.
Christiancy, J., did not sit in this case. | [
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The Court
held that the objection to the name in which the suit was brought by the plaintiff is not well taken; that it will not be presumed for the purpose 6f invalidating the judgment in his favor, and in the absence of any showing upon the subject, that the plaintiff has any other name than the one used; and that the release of the surety, whether erroneous or not, could in no. wise prejudice the defendant or affect his liability as principal, and he will not, therefore, be heard to complain of it.
Judgment affirmed, with costs. | [
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] |
Cooley, J.
This case presents the question whether one who be■comes one of the original associates for the formation of a railway company, and signs a subscription agreeing to take •a certain number of shares of the capital stock of the proposed company, and to pay therefor “at such times and in .such sums as the same shall be assessed, demanded, and required to be paid by the directors of said company,” but who afterwards fails for any reason to sign the articles of incorporation, or to subscribe for stock on tbe commission ers’ books, can be held liable upon his preliminary subscription, after the company has been formed, and assessments been made and payment demanded.
The question arises upon the first section of the act for the. incorporation of railroad companies, approved February 13, 1855, as amended in 1867. — Laws of 1867, Vol. I., p. 90. The plaintiffs insist that the signers of the preliminary subscription, whether they afterwards sign the articles or not, if the corporation is duly formed, have the same absolute right to stock therein that those have who execute the articles, or to whom stock is awarded on subscriptions upon the commissioners’ books; and that having a right to the stock, they are under a corresponding obligation to pay for it. On the other hand, the position of the defendants is, that the preliminary subscription, though possibly a convenient step in the organization of a corporation, is by no means indispensable, but that the corporation originates with the articles of association, and that no one who previously had contemplated becoming a member, however strongly or in whatever form of words he may have expressed his intention to that effect, is bound by that expression, if, when the articles are to be sigued, he declines to unite in them, or for any reason fails to do so, and thereby, expressly or by implication, elects not to become a member. Up to that time, it is insisted, every thing is provisional and inchoate; nobody is bound or can be bound without further voluntary action of his own.
A consideration of the question thus presented is peculiarly embarrassing in consequence of the totally different views which have been taken of it by able jurists in other states where similar statutes exist. We have examined the reported cases with care, and while we find many of the opinions able, and in the main well reasoned, yet as it is impossible to reconcile them, and none of them follows • precisely the train of reasoning through which we have been led to our own conclusion, we have not deemed it advisable to review the cases in this opinion, but shall pro eeed, with sueb brevity as the case will admit, to present our own views.
It may be quite true, as is insisted on the part of the defense, that a preliminary subscription is not an indispensable requisite in the formation of a corporation under the general railroad law. If the requisite number of persons execute the proper articles,. naming therein their directors, and attach thereto the affidavit required by the statute, verifying the fact that they are subscribers for the requisite amount of stock, and have paid to the directors five per centum thereon, it is difficult to perceive any ground upon which it could be plausibly contended that the corporation was not duly organized, or to suggest any important function that the preliminary subscription could have performed for such subscribers, and which in the particular case has not been performed without it. Nevertheless, a very cursory examination of the statute must convince any one that such a subscription, whether indispensable or not, is contemplated as a proceeding which will generally, at least, take place. This is evident from the expressions employed in the statute in conferring authority to organize. The persons who may incorporate themselves are “any number of persons not less than twenty-five, being subscribers to the stock of any contemplated railroad.” They are allowed to do so “when stock to the amount of one thousand dollars for every mile of said road so intended to be built” “shall be in good faith subscribed and five per cent, paid thereon.” There eannot be subscriptions to the stock until something is in writing for the subscribers to sign. The statute gives no form for such a subscription; it indicates no machinery by means of which it is to be originated or signatures obtained. Every thing is left to the voluntary action of the promoters of the enterprise, and whatever form of writing is satisfactory to them, and sufficiently indicates the general purpose sought to be accomplished and the share the several subscribers are to take in it, would undoubtedly be sufficient.
By any snob voluntary subscription to take stock, however, we should naturally understand some mutual agreement by which the promoters severally agree to take and pay for certain shares in the proposed corporation; something, in short, like or similar to the agreement which was actually entered into in the present case. We do not understand that there would be any difficulty at the common law in enforcing the promises contained in an agreement of this general nature against the several promisors, where the object to be accomplished was lawful, where a beneficial purpose was in view, and where it was possible to make to the several promisors the return which their subscriptions called for. In such cases the promises are mutual; acts are done and moneys expended in reliance upon the subscriptions, and the moment the promises are accepted by the organization and action of the corporation to which they are provisionally made, there can generally be no difficulty in their enforcement if the corporation then has it in its power to give the stock subscribed for, and offers to do so. In such a subscription thus accepted there would be all the requisites of a valid contract; proper parties, and a promise made upon a legal and valuable consideration.
In this case, however, the question involved is not one to be settled entirely by the rules of the common law, but there is involved a question of statutory construction. It is argued by the defense that the terms of the statute are such as to make any preliminary subscription that may have been entered into entirely immaterial and nugatory the moment the articles are executed, and that promises therein contained are incapable of enforcement because under the statute the subscribers are not entitled to stock in the corporation, and consequently do not receive a consideration for their promises. This construction arises principally upon one clause of the first section of the general railroad act, which, after providing what the ai’ticles of association shall contain, and for their being subscribed and recorded, declares that “ thereupon, the persons who have subscribed, and all persons who shall from time to time become stockholders in such company, shall be a body corporate,” etc. The argument is that by the express terms of this statute only the subscribers to the articles and those who subsequently become stockholders in the manner provided by law, — that is to say, by subscribing for stock on the commissioners’ books, — can be stockholders or entitled to stock, and consequently the subscribers to the preliminary agreement who do not sign the articles are in terms excluded.
It is possible that a strict and literal interpretation of the statute would require this construction to be put upon it; but it does not necessarily follow that such a construction would be proper or even admissible. What we should seek here is the intention of the legislature, and not the testing by nice rules of art the language employed. It may possibly appear, as is too often the case, that the legislation has been carelessly phrased, and will be perverted if tested by nice rules. There are two very strong reasons why the statute should not be so construed as to make the articles nullify the preliminary subscription if any other construction is admissible. The first is that it nullifies the mutual promises of parties made for a beneficial object, and which, on grounds of public policy as well as mutual good faith, ought to be sustained and enforced, unless abandoned by common consent. The second is that, by rendering the preliminary subscription which the statute provides for, if it does not make necessary, a perfectly useless proceeding, it in effect, as has been well said in a leading case supporting this construction — Troy and Boston R. R. Co. v. Tibbits, 18. Barb., 304-5 — imputes folly to the legislature; an imputation we ought to be very slow to make, and never except upon the most imperative reasons.
Our own view, after a careful examination of the statute, is that the construction which excludes the subscribers to the preliminary subscription from corporate membership, is rather forced than otherwise. The statute does not say that the persons who have subscribed the articles of associ ntion, and- those who shall, from time to time, become stockholders, shall be the corporation, but those “who have subscribed.” Subscribed what ? The very first words of the section provide that the subscribers to the stock of a contemplated road may incorporate themselves by complying with certain conditions. The subscribers here intended are unquestionably the subscribers to the preliminary agreement; ■and these subscribers, to use the words of the statute, when the necessary amount of stock is in good faith subscribed by them, are allowed to organize. ■ These persons, then, are spoken of as persons who have subscribed, and their subscription contemplates that they are to have stock in the proposed corporation. The parties to the articles also subscribe them; their subscription is provided for by the same section, and theirs also contemplates that they are to have stock in the corporation. It is after these different subscriptions for stock are thus spoken of and provided for, that the statute proceeds to say that those who have subscribed shall be corporators. What warrant have we for saying that one class of subscribers -was intended and not the other ?
The truth is, both classes were intended, because in contemplation of the statute the two were to be identical. The statute does not suppose there will be subscribers to the preliminary agreement who .do not sign the articles. It provides that after the requisite subscriptions are obtained, the subscribers may select directors, “and thereupon they shall severally subscribe articles of association.” They are all expected to subscribe the articles, and not merely that portion who may then, on considering the question as a new one, decide to take interests in the company. It is not assumed that there will be any doubt or question that all who have mutually pledged themselves to each other to form a corporation for the object proposed will unite in the necessary steps for that purpose, and it does .not therefore distinguish .between the subscribers to the two papers, because it supposes no distinction will, exist.
We have, nevertheless, to deal with a case where a subscriber to the one has neglected or refused to sign the • other; and the question is, whether such neglect or refusal precludes the attaching of any legal liability. We have the case of a subscription provided for by law, designed to • accomplish an important beneficial purpose, subscribed by several parties in reliance upon their mutual promises, but which one perhaps elects to annul by not taking a certain further step which the statute contemplates he will take. The corporation to which the subscriber’s promise was provisionally made has been called into being and has accepted his promise, and now offers to perform its part by giving the stock subscribed for if it has the power to do so. And the question is, whether, iu this exceptional case not provided for or contemplated by the statute, the subscriber may treat his preliminary promise as of no force.
• A preliminary question will perhaps be, whether it possessed any force whatever, or, on the other hand, was to be looked upon as mere nudum pactum, without either parties or consideration, before the articles were signed. The necessary conclusion from defendant’s premises must be, as we think, that it was so. We cannot conclude, however, that such preliminary promises, made in accordance with the law, as a step in the accomplishment of a public enterprise, can be regarded as entirely without legal significance. If a subscriber pays his five per cent, upon his subscription, and it is received and retained by the custodian agreed . upon by the associates, we think he has acquired some rights by such subscription and payment. He has acquired the important right to take part in the organization of the corporation, in the choice of directors, in the determination ■of the route, and in shaping the constitution of the company. These rights are often of high value, and might ■even be more so in a pecuniary point of view than the stock subscribed for is ever expected to be. It cannot be .said that a subscription and payment which secure these important privileges are of no force, nor ought it to be the case that the party making them may disaffirm his action-at his own mere pleasure after other parties, more observant of their own stipulations, have taken further action which is unquestionably binding upon them, in reliance-upon his promised assistance.
In the present case it does not become necessary to discuss the question whether a party who expressly revokes his subscription before the corporation is formed, can be compelled to pay it afterwards. Such a case is not, by the record, placed before us. Undoubtedly if the corporation is never formed the subscription becomes a nullity. No promisee in that case ever comes into existence. And if the subscribers are only twenty-five in number, any one of them may defeat the enterprise by refusing to join in-the articles, because twenty-five are made necessary by the-statute. It may, under some circumstances, be bad faith in a subscriber to do this, but he would unquestionably have the power. It would be equally true if a larger number of subscribers should subscribe only the requisite amount of stock, that any one might defeat an organization by refusing to sign the articles unless a further subscription could be obtained from some other source. ■ In these cases the. subscriber is discharged, not for reasons personal to himself, but because on grounds of public policy corporate privileges are withheld from an association which-does not furnish the required evidence of earnestness and ability to carry on the undertaking.
The case at bar is neither of these. Here the corporation has not failed of organization, but a subscriber has-failed, for some unexplained reason, to sign the articles-with the others. We might suggest' a great many possible reasons for the failure, some of which, unquestionably, would discharge him from all moral, as well as legal, obligation on his subscription. We might suppose, for instance, that the other subscribers considered him an undesirable associate, and for that reason refused to allow him to take part in organizing, while willing enough to receive bis money afterwards. As already said, the stock proposed to be given by the corporation is not the sole consideration for his promise to pay, but he is entitled to the valuable privilege of a voice in determining the important' questions to be settled by the articles, and if denied that by his associates, he is absolved from all responsibility. But this defendant, for aught we know, may have had and enjoyed that privilege, and then failed to subscribe the articles for the express purpose of avoiding responsibility, or, on the other hand, because when sufficient subscriptions were obtained to perfect the organization, it was not deemed necessary or important to obtain further signatures. But as we do not know the reason, it is idle to indulge in suppositions. It is sufficient that the defense plant themselves on the broad ground that no original subscriber who fails to sign the articles can be bound by his subscription.
As it has already been seen that the preliminary subscription is in proper form for obligatory force as a mutual promise, and is provided for by the statute, if one who signs it must also sign the articles of association in order to render himself liable, the reasons for requiring this must be either: First, reasons personal to himself and which render it unjust or inequitable that he should be held in the absence of any renewal of his promise by an execution of the articles; or second, reasons resting on considerations of public policy, and which, independent of any questions of justice or equity as between the individual and his associates, require all subscriptions to the stock at the time of the organization to be represented by the signatures to the articles.
There can be no reasons of the first class, if the subscriber has participated in the organization, or has had the opportunity to do so. In such a case, with the right to the stock, the subscriber has had, or might at his option have had everything promised him by his associates or by the corporation as the consideration for his promise to pay, and good faith to his associates whose action his promise may be supposed to have influenced more or less, and who keep on their part the promise mutually made, requires that he should keep his also. It may safely be assumed that they incur expenses for preliminary surveys, procuring subscriptions, pledges of rights of way, and such other matters as are necessary to enable them intelligently and properly to settle the questions which are to be determined by the articles, and if he allows these to be Incurred while his promise stands unrevoked and in reliance upon it, the moral obligation on his part to fulfill his promise is very strong, and in,the absence of any unfair dealing on the part of his associates ought to be regarded by him as imperative.
And we cannot imagine any reasons of public policy for requiring all the preliminary subscribers to sign the articles, or for relieving from responsibility all who do not sign. As the articles constitute a more formal document than the preliminary subscription usually does, and set forth the definite particulars of the enterprise, it will be more satisfactory and conclusive of the precise work the subscribers propose to accomplish, and be less likely to leave questions open to dispute between the individual associates and the organization. The probability, however, that the preliminary subscription will be so vague and uncertain as to raise serious questions as to the actual intent can be no greater than the probability of like questions in innumerable contracts which are being made constantly, and in which it has never been thought even wise to require by law the observance of more formality. We cannot, therefore, suppose that the purpose of requiring the understanding of the parties to be more definitely expressed with a view to its enforcement, was a purpose specially had in view, in requiring the articles to be signed by the associates. They give the particulars of the enterprise for the information of the public who have an interest in knowing precisely what is proposed to be accomplished, how far it is likely to. be of public benefit, and to what extent it will stand in the way of or preclude the necessity for other similar enterprises. They give them also for the information of persons whose interests may possibly be affected by an exercise of the right of eminent domain on behalf of the associates. There is nothing in the statute, however,, which indicates that they are required, either mainly or in part, because the preliminary understanding expressed in the first subscription may be supposed to be so vague and uncertain as to make it impolitic to give legal remedies for its enforcement. On the contrary, the statute assumes that a certain number of persons, who are united in the desire to accomplish a certain enterprise, and have mutually agreed with each other to contribute of their means to that end, follow • this action by uniting in certain articles-which they put on record to spread before the public the particulars of the enterprise thus agreed upon and understood among themselves. While therefore it is possible that misconceptions may arise from the vague character of the preliminary action, we find nothing in the statute to indicate that the legislature anticipated them, or that it required signatures to the articles with any view to precluding an inquiry into their existence.
We suppose the statute to require the articles to be signed by at least twenty-five associates, representing subscriptions to the amount of a thousand dollars a mile upon which five per centum shall have been paid in, in order that mere bubble enterprises shall not be allowed the apparent sanction of a legal organization, and be afforded the opportunity not only to embarrass and perhaps preclude more substantial projects, but also to have facilities for annoying and perhaps defrauding the public by exercising the right of eminent domain, and by contracting debts in apparent execution of improvements which the means at command give no assurance of being carried out. The state requires this evidence of good faith and ability in the associates before it will endow their association with legal entity; but when these appear to the extent required, the-demands of public policy in this regard are satisfied, and we do not see that the state has any concern in the question whether other associates representing more aid subscribe the articles or not. If the state is satisfied with subscriptions to a certain amount, but the projectors have in fact- obtained more, no very good reason can be suggested why the state should impose, as a penalty upon the corporation, that it shall not enforce such additional subscriptions unless the names are obtained to a certain paper required for the purpose of giving public evidence of certain facts already proved by previous subscriptions to the full extent required. And we are therefore forced to the •conclusion that when such subscriptions are obtained to the articles as are necessary for the purposes of incorporation, if there are further subscribers to the preliminary subscription, who, for reasons of convenience to themselves, or because it was supposed to be unnecessary, or for any other reason than a previous withdrawal from the enterprise, shall neglect to sign the articles, such previous subscribers cannot, on any ground of public policy, be held discharged from •any obligation, either legal or moral, to fulfill their promises.
So far we have not discussed the question whether there •can be any embarrassment in counting such preliminary •subscribers among the stockholders. We do not see why there need be. The subscriptions, together with the articles of association, will pass to the hands of the proper •officers, and they will furnish all necessary information to the commissioners who are to receive further subscriptions for the balance of the capital stock, and apportion it if there ■shall be any excess. If we are warranted in so construing the statute as to include in the subscribers who are to be ■ counted as corporators when the commissioners begin their labors, those who have subscribed preliminary subscriptions •as well as the subscribers to the articles, then the commissioners have only to receive subscriptions for and apportion such portion of the stock as is not represented by these two •classes of subscribers. From the best consideration we have been able to give the statute, we think such a con struction perfectly legitimate. Any other would make the preliminary subscription not what on its face it seems to be, a provisional offer for the acceptance of the corporation when formed, but only a provisional offer to make an offer if the subscriber at a subsequent time shall elect to do so. We are unwilling to conclude that the legislature, in pointing out the steps in the organization of a corporation, has indicated among them a proceeding so frivolous and futile. We think the subscribers who, with those who subsequently associate themselves with them, are to be the corporators, are the subscribers to the original subscription; and though it is perfectly, true that the statute supposes such subscribers will sign the articles also, it neither takes away their rights nor absolves them from obligations for a failure to observe this formality, but if the corporation is duly formed, on general principles applicable to such undertakings as the preliminary subscribers have entered into, they are liable for the fulfillment thereof- in the absence of any provision of the statute which expressly or by necessary implication must have the effect to release them therefrom. And our reading of the statute discloses no such provision.
In our discussion of the case so far we-assume that tho subscriber paid his five per cent, on the subscription. This, or something equivalent, would be necessary to entitle him to participate in the organization, and if he fails to obtain that privilege the subscription would probably be ineffectual. He would not be one of the associates in such a case. But if the requisite amount is paid in by other subscribers, we see no reason to doubt that credit might be given to him for this first payment, and he be admitted to all the privileges of the rest. What circumstances would be equivalent to the giving of credit by implication in the absence of any express understanding to that effect, it would be out of place to discuss here. That there might be such circumstances is undoubted. The present record assumes that the intestate had become one of the original associates, and if any question of fact is to be raised upon that point, .it must be presented upon a proper issue.
The declaration in this case sets out the original subscription, avers that defendant signed the same and agreed to take one thousand dollars of the stock of the proposed corporation, but it does not expressly say that he made any payment. It does aver, however, that the defendant, in consideration of his subscription, “ and in consideration that stock to the amount of one thousand dollars for every mile of said Peninsular Railway Extension Company had been subscribed for and taken in good faith, and five per cent, paid thereon as required hy said act, and in consideration that said Peninsular Railway Extension Company was, to wit: on the third day of January, 1868, duly organized and became a body politic and corporate under the laws of the said state of Michigan, he, the said Delamore Duncan, then and there promised,” etc. We are inclined to think that, under a demurrer such as has been interposed in this case, it must be assumed that the defendant had done whatever was necessary to perfect his subscription, and entitle him to participate as one of the associates in organizing, and that his failure to take part in that proceeding was not because of being wrongfully excluded. The allegation that five per cent, had been paid on the subscriptions may fairly be applied distributively, and the allegation that the corporation was duly organized would imply participation or the opportunity to participate in all the associates. And ■ though these facts are set forth by way of recital merely, the declaration in this particular would be good on general demurrer at least, and also on a special demurrer aimed only at other defects.
The special causes of demurrer assigned in this case are: First, That it does not appear from the declaration that Duncan ever became a subscriber to the stock of the company by signing the articles of association or subscribing on the commissioners’ books, or that he “ever subscribed to ■the capital stock” of said corporation. This last clause, if we may judge from the argument, would appear to be intended as a denial that any subscription not made to the articles or upon the commissioners’ books could be a valid subscription to the stock. From wliat has already been said it follows that this cause of demurrer is not well assigned.
Second, That it does not appear that the ¡commissioners named in the articles of association ever assigned any stock to Duncan. This also is not well assigned. The commissioners do not assign stock at all, except in the event of a surplus being subscribed for, nor then, except by way of apportionment among those who have subscribed on- their books. The original corporators are entitled to what they subscribed for independent of any action by the commissioners.
These are all the defects that are pointed out by the demurrer, but on the argument another was suggested, namely, that the subscription paper was ineffectual for its indefiniteness, inasmuch as it did not locate the line, indicate termini, or route, or in any manner sufficiently identify the project which was then in view with the enterprise subsequently set forth in the articles. It is certainly true that the subscription is exceedingly indefinite in these particulars, but the statute prescribes no form, and as everything is to be rendered definite and certain by the' articles, the preliminary subscription would seem to be sufficient if it promised contribution to an enterprise which afterwards in the articles the associates proceed to describe with the particularity required by law. It is possible in such a case for the actual identity to become the subject of dispute and require proof; and without undertaking to say that this declaration would be sufficient without an allegation that the road contemplated by the subscription was identical with the one specified in the articles, if the proper special demurrer had been interposed, we must assume the identity on this record.
Our conclusion is that the demurrer ought to have been, overruled. The judgment must therefore be reversed, with costs, and the cause remanded. And in view of the conclusions reached it would be proper that the parties respectively have leave to file new pleadings.
Graves, J., and Christiancy, Ch. J., concurred.
Campbell, J.
The only question distinctly presented by the pleadings in this case is, whether, by subscribing such a paper as is set forth in the record, Delamore Duncan became a stockholder in the railway company when it was afterwards organized, without any further signature or subscription. It is only in that character that any liability can be set up against him under the declaration, and there is no other consideration for his liability to this company.
It is to be kept in mind that this is not an action on the case, or in assumpsit by other subscribers, claiming that by any refusal or neglect to become a stockholder he violated the terms of his subscription, on which others relied, and have been damnified by his neglect. The company has been organized on such terms as the parties signing its articles saw fit to impose, and is in full existence as they desire it to be. He is sued in the same way and on the same theory as if he had signed the articles of association ; and this subscription, if of any force to sustain this action, is practically equivalent.
I am not able to discover any legal ground for any such claim.
No one can be liable for calls on stock, unless he is a stockholder, — or a subscriber having a present right to have stock assigned to him, — which is the same thing. The issue, of scrip is only the evidence of such a right, and may not be made until the stock is paid up.
It has never been provided by law, — so far as I know,— that any one can become an original owner of stock by contract, without some written subscription or undertaking, in such manner as the law allows. And the manner of such subscription is usually prescribed by positive enactment. There is no common-law method of becoming a stockholder in a statutory corporation. This is an elementary proposition.
It is claimed our general railroad law contemplated two kinds of -subscriptions, — one in advance of the -stepS to. organize, and one upon which the organization becomes dependent, and from which it derives its legal existence. And it is also claimed, and is necessary to support the declaration, that a person who has Signed the one need not sign the other.
While I think the grammatical construction of the section declaring who shall - be corporators expressly confines the number to signers of the articles, I do not think that consideration very conclusive, in the face of the very confused and somewhat ambiguous clauses which are included in the section. But it seems to me that the evident purpose of some of these clauses at least, would not be consistent with the construction claimed by plaintiff in error.
In order to make any one liable as a subscriber, it must always appear that he has -contracted 'for the -very thing to which his liability is sought to be attached. Mr. Duncan could not -have been a stockholder unless he subscribed 'to the same enterprise and upon the same conditions set out in the articles. The contract cannot rest in parol, for no one ban subscribe a parol contract, nor, if he could, would such a contract be valid for any such purpose as this law contemplates. Moreover, thbre is no claim in the declaration that he ever agreed to any other contract than that set forth in the written subscription, and its identity with the articles must be clearly shown.
Whether any other agreement could be made or not, the articles of association are not only a contract, but the only contract which brings any one within the rights of corporate existence. There can be no corporation without them, and no corporation differing from them. They are the rule and the origin of corporate life. And it is at least anamolous, if, when the statute has laid down so rigidly the terms of the only contract whereby there can be any corporation, it can permit persons who are not parties to it, to be brought within its rights and obligations by another agreement made in advance, and containing no provisions identifying it, and no authority empowering any one to execute it.
The articles are required to contain the name, the duration of corporate life, the amount of capital, the number of shares, the number and names of the directors, the route and length of the road, the names of five stock commissioners; and each subscriber is to sign his name, with his residence, and the number of his shares; whereupon, the persons who have subscribed, and those who may from time to time become stockholders, are made a body corporate.
The subscription set out in the declaration contains only one, and that the least important, of these elements, — that is to say, the proposed corporate name of a corporation as yet not in existence. It is only by showing that some written scheme existed, corresponding precisely with all the other elements, and that it was referred to sufficiently by using the name of the future corporation, that force could be given to the subscription for any purpose. ■ And even then it could only be as an executory agreement, a breach of which might perhaps be actionable, but which could under no circumstances be merged in, or annexed to, a future agreement, to which the signer of the subscription was not in terms a party.
There is only one way in which the two papers could be made to help each other or be connected. If the original subscription contained a power of attorney authorizing the .names of the subscribers to be signed, and if they were actually signed to the articles, the signature by attorney would, no doubt be valid. And it is on snob, subscriptions that some of the cases cited on the argument rest. — Eastern P. R. R. v. Vaughan, 14 N. Y., 546 ; Stanton v. Wilson, 2 Hill’s R., 153.
An express reference to future incorporation, containing all the terms of incorporation and liability, and authorizing the incorporation to be made, might also be enough where the law does not require any further subscription to articles, or other personal intervention. — Tonica Co. v. McNeely, 21 Ill., 71; Thomson v. Page, 1 Metc., 565; Richmondville Seminary v. McDonald, 34 N. Y., 379.
But the authorities nowhere sustain the idea that any subscription can be enforced, for any purpose, unless for the precise thing agreed upon. — Hallows v. Fernie, 3 Eq., (L. Rep.), 520; Stewart’s Case, L. R., 1 Ch. Ap., 574. It is valid, if at all, on the same grounds which sustain other contracts, and only so far as its terms supply all the elements of a mutual and binding agreement.
Doubtless a statute may supply any shortcomings, by defining such terms as shall be held sufficient to bind the parties. But there is nothing in the statutes of this state which contains any such definition; and this is, in my judgment, a strong argument against the claim that' any subscription beyond the articles themselves was ever contemplated. It is not likely that while the articles are required to be so full in their statements, the terms of another paper practically equivalent would have been left entirely indefinite.
But, beyond all. this, the statute evidently contemplates the publicity of all the steps taken, and the filing and recording, in some way and place, of all that is necessary to show — not only the terms, but the subscribers and directors and commissioners, of the proposed undertaking. ' And if the action of the parties subscribing is not to be found entirely in the articles themselves, there is, to say the least, a very strange oversight, which would create serious difficulties. The choice of directors and commissioners, as well as tbe determination of lines and capital, is of the first importance to the security of the company. If persons can become entitled to rights in stock before the articles are signed, there must be some way of securing their right to.vote upon and determine these matters. If they .incur a statutory obligation they must receive an equivalent statutory right, which Gannot be divested without their fault- or consent. The question in this case-is one of the liability- of the subscriber. But questions may also arise, not merely whether a subscriber has a right to stock under the articles filed, but whether, the articles themselves can be so drawn as to exclude his right to have them otherwise.
If: twenty-five persons sign articles which, conform- in terms with the law, and take the other steps required, no one has ever supposed the corporation which they organize is, not. absolutely and completely beyond revision or change. Yet it. would be entirely possible, under the construction asserted, for a very small minority of original subscribers, under preliminary articles, to absorb the entire capital, and fix all the terms of- the corporate undertaking, in defiance of all the rest, who wo.uld thereby be precluded from any further interest in the. corporation, and left to a private action for. damages.
This cannot be the meaning of the statute. Bights once vested cannot be left to such peril. If the preliminary subscribers are recognized at all, the election of directors, and the framing of articles, must be absolutely under their control; and any action against their rights must be void. This statute does not contain any provision for calling meetings, or regulating the rights of voters, by number, by stock, or by majorities of any- kind; it provides for no form- or length of notice, and for no means of recording or preserving evidence of the doings of such meetings. The articles themselves are the only and conclusive evidence of what has been agreed upon. There can be no corporation records and no corporate powers in advance of their execution ; and no incidents of the law of corporations can attach to unincorporated subscribers. There is no common-law rule that could make any action of such parties governed by majorities. No party could be bound by any choice of directors or of commissioners, nor by any other act of the body of subscribers, without his personal assent.
I think the statute does not ignore these difficulties, and that the articles of association are the only documents recognized as originating or creating corporate interests in any subscriber; and that while parties may make their preliminary arrangements as formally or informally as they choose, their legal rights must depend entirely on the articles. It is not disputed that a corporation may be created where there has been no previous action, and where the articles themselves are the only medium for determining subscriptions or officers. If they were designed by law to be merely one out of several ways of securing subscriptions, there is every reason for holding that any other way would have been just as carefully guarded as they have been by the statute.
Such is the view of the New York court of appeals, where it was held, in Poughkeepsie Plank R. Co. v. Griffin, 24 N. Y., 150, that no previous subscription could be regarded, in determining whether a party was a stockholder. That case was decided under a statute in all important respects like ours, and is reasoned out very fully by Judge Denio. If any of the conflicting cases referred to in Barbour’s Reports may be regarded as favoring a contrary doctrine, the decision of the higher court governs the courts of the state, and settles the construction, besides being worthy of respect for its reasoning. The principle of this case is supported by what I think is the clear weight of authority; for while there are many eases holding parties liable on subscriptions, I have discovered none, except the Indiana cases, under an analogous statute, that can fairly be regarded as maintaining the doctrine contended for by plaintiff in error. Those decisions are directly in point, but they are also almost entirely unrea soned, and rest, partially at least, on authorities which are distinguishable. In several states there are cases which appear to me entirely inconsistent with the result of the Indiana cases. — Strasburg R. R. v. Echternacht, 21 Pa. St., 220 ; Thrasher v. Pike, etc., R. R., 25 Ill., 393; Chase v. Sycamore, etc., R. R., 38 Ill., 215 ; Perkins v. Union Buttonhole Co., 12 Allen, 273; Goff v. Winchester College, 6 Bush (Kentucky), 443.
■ In most of the cases where subscribers have been held to be. stockholders, their subscription has been made either on articles, or- directly to a corporation or its commissioners after a charter has been granted, and preparatory to complete organization. I cannot see how under such circumstances it could be held otherwise. — See K. & P. R. R. v. Palmer, SI Me., 366; Penobscot R. R. v. Bummer, 10 Me., 172; Vermont C. R. R. v. Cl-ayes, 21 Vt., SO; B. é A. R. R. v. Iriclc, 3 Zábrislcie, 321; Buffalo & N. Y. R. R. v. Dudley, II N. Y., 336; Lalce Ontario, Auburn & N. Y. R. R. v. Mason, 16 N. Y., 151.
The cases of subscription by authority of a power in the previous original agreement, I have before referred to. And in Williams v. Franklin Township Academical Association, 26 Indiana R, 310; and Chance v. Indianapolis & Westfield Gravel Road Co., 32 Ind., 172, the rule laid down as to strict proof of organization according to the subscription would stand very much in the way of a recovery here.
■ I am therefore of opinion that Mr. Duncan did nothing which could entitle him to any rights as a stockholder, and that he was not in any way concerned with the corporation actually organized.
- I think the judgment was right, and should he affirmed. | [
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] |
Graves, Ch. J.
This suit was brought by Hardwick against the defendants, who were formerly administrators of Joseph K. Miller, deceased, for the purpose of charging them with a debt he alleges was allowed to him against the estate by commissioners.
He contends, and it does not appear to be disputed, that he held a claim against the estate; that the defendants were administrators; that the assets were very largely in excess of all charges and demands against the estate; that payment of this demand was neglected and refused, and that defendants distributed the assets and obtained discharge from their trust as administrators.
The record discloses that three commissioners were appointed to pass on claims against the estate. They were George S. Lester, David Plough, and one Frank, or Frink. The latter died, but at what time, does not appear. According to the evidence in the case, a claim in the plaintiff’s name, or in the name of others for his use, and in the same amount as that specified in the declaration, was placed before the commissioners for allowance. Mr. Plough, one of the commissioners, it would seem, became judge of probate before the estate was distributed. Some report seems to have been made to the probate court of the action of the commissioners, or of some of them, upon claims; but this report, with other records and files of the court, was destroyed by fire in December, 1870. The case returned here is extremely vague and unsatisfactory, but enough appears to warrant the opinion that the proceedings under the commission to adjust claims against the estate, and in the probate court, were conducted in an irregular way, and that the papers and records were illegally tampered with.
On the trial it became a disputed point whether the debt described in the declaration was .allowed to the plaintiff and reported to the probate court by the commissioners, and on account of the destruction, of the files and records, this subject was only ascertainable by parol and circumstantial proof.
The evidence returned is loose and blind, and important dates are wanting in several instances. But I am inclined to think on a close inspection of it, that in a possible view it favored the conclusion that the plaintiff’s .debt was allowed and reported within the life of the commission. A question of fact was therefore raised to be settled by the jury. The court, however, refused to submit it, and directed a verdict for the defendants. In this, I am inclined to think there was error. Another trial may elicit •explanations which will remove obscurities and present the litigation in a light more favorable to positive determination.
I think the judgment should be reversed, with costs, •and a new trial ordered.
Campbell and Cooley, JJ., concurred.
Cristiancy, J., did not sit in this case. | [
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] |
Campbell, J.
Plaintiff sued Annie Laraway and her' husband Henry Laraway jointly upon their joint promissory note, which had been given for a debt of the husband, on an extension of time. He allowed judgment to pass against him in the court below, but she defended and her defense was sustained. The points raised against her are: first, that she was personally benefited by the transaction; and, secondly, that she bound her separate estate by her express promise to pay, under the circumstances, so that the note became a charge upon it.
Hnder our present system, whatever contracts a married woman may lawfully make, may be made “ with the like effect as if she were unmarried.” — 2 Comp. L., p. 1478. But she has now no general capacity to' contract. She can only make such contracts as relate to her own property, while in regard to that she has very full powers. She may purchase property and bind herself for the purchase money. — Tillman v. Shackleton, 15 Mich., 447 ; Campbell v. White, 22 Mich. R., 178; Rankin v. West, 25 Mich., 195. But she cannot become personally liable except on account of her own matters; and cannot enter into an undertaking jointly with her husband merely as his surety. — De Vries v. Conklin, 22 Mich., 255. And she can never be held without affirmative proof that the contract is her own and within her powers. — Powers v. Russell, 26 Mich., 179; Emery v. Lord, 26 Mich., 431.
The first question presented is whether this is a contract concerning her own property. It is not so in form, and can only be made so by connecting it with some consideration which would show it to be so in fact. It is claimed that, so far as she is concerned, it was in fact given for the benefit of her estate, to save it from being directly charged in another proceeding threatened against it. There was evidence which was regarded in the court below as tending to show that the estate of her father was responsible for the debt of Henry Laraway, out of which the note originated, by reason of a contract of suretyship made by the father in his life-time to West, and that West informed Henry Laraway that he should proceed against the estate unless Mrs. Laraway would sign a joint note with him. There is no evidence that Mrs. Laraway herself entered into any contract with West whereby the latter agreed with her not to prosecute the estate; but there is evidence that she knew her father was her husband’s surety.
As under this division of the case the contract, in order to bind her, must be a contract on behalf of.her sole property, it should appear to have been made with that intent, as well as upon a consideration that would sustain it for that purpose.
The agreement to abstain from prosecuting a debt against particular persons or property is, beyond doubt, a valuable consideration. Whether such an agreement as is relied upon here to abstain from prosecuting an estate is such an agreement on behalf of the separate property of one married woman out of several heirs as would support her promise to pay the whole, is a question which is worthy of consideration, but which does not really arise in this case.
There is not any evidence whatever which tends to show that Mrs. Laraway had any idea that she was supposed to ■be, or that she was in fact, making any bargain on her own behalf. The only evidence showing her understanding of the matter, shows it was to help her husband and save his wages, not to keep her own estate or her share in her father’s estate from being prosecuted. While it is not desirable to throw any technicalities in the way of contracts really meant to refer to a wife’s separate interests, it is neither just nor in harmony with the principles of law to assume that a contract must be made to refer to one subject, simply because it could have been made for that end, when in fact it was made for another and very different purpose. As we have, always held, the burden of proof, is on the plaintiff to show for what purpose she contracted, and to prove it clearly.
The case stands upon no different footing, in the absence of such proof, than if West had never possessed or asserted any right or claim against any estate in which she was interested. She cannot be held to a knowledge of the facts which induced her husband to procure her signature for an extension of his own debt, upon which she could not in any event be any more than a surety. There was no contract made with her whatever as an inducement to her agreement, and if West had undertaken to prosecute his claim against the estate, whatever other defense she might have interposed against that proceeding, there is no agreement between herself and West that appears in this case which would make a specific defense as an agreement.
The argument was therefore chiefly rested on the other proposition, which is the only one of substantial importance in the case. That proposition rests on the claim that any married woman who joins in a promissory note with her husband for the absolute payment of money, does by that act in all cases create a charge upon such separate property as she may own; and that the charge thus created may be enforced by a legal action, and collected by execution upon the judgment, as it could formerly be enforced by decree in equity.
By the common law the disability of married women to make agreements personally binding was the same as in equity.
No court could enforce contracts so as to render personal judgment. But where property was held to the separate use of a married woman, the whole separate interest, being entirely of equitable creation, was held subject to such rules of control as equity chose to establish. But property not held to her separate use was subject to the rules of law, and could only be charged or disposed of in a legal manner. The law has never allowed a married woman to make a charge upon or disposal of her legal interests by any less formalities than such as other persons are required to use; and generally the rules have been much more strict than those applicable to other persons.
When equity permitted married women to deal with their separate estates, and yet did not allow them to make contracts binding in personam, it enforced their acts as directions to their trustees, or as sales or charges upon their equitable interests; and, inasmuch as the interests which they could thus control were always chattel interests, and not freeholds or estates in land, there was no great anomaly in recognizing almost any distinct act which would otherwise be meaningless, to operate as a charge on such interests. And it seems to have become a settled doctrine in England, and has been held in some of our states, that a note or undertaking for money of any kind, signed by a wife jointly with her husband, although binding no one but the husband as a contract, is a charge by way of security, on her separate estate for the debt.
The doctrine of Hulme v. Tenant, 1 Bro. C. C., 16, to this effect, though often criticised, has usually been followed in England; and the cases have not even required her undertakings to be in writing where the interests were of such a nature as to be bound without. But it was said in that case, and such seems to be the settled doctrine, that no interest in lands beyond the rents and profits, could ever be reached in that way. See cases collected in notes to Hulme v. Tenant, 1 Lead. Cas. in Eq., 324, et seq. It seems further to be understood that the charge can only be established from some act clearly indicating an intent to make the debt so operate, and is not enforced as in an implied assumpsit; and where, instead of merely incurring a debt, and so implying a charge to secure it, a wife sold an annuity and failed to transfer it in proper form, it was held her estate was not liable for the consideration money, because she- had undertaken to do a specific act which was invalid, and she could not be made liable on the bargain. — Duke of Bolton v. Williams, 2 Ves. Jr., 138. While the doctrines are peculiar, aud the decisions very much confused, they all agree that there can be no enforcement of any of her contracts in personam, and that nothing can be reached except the equitable interest, and that no remedy is applicable except a bill in equity to reach-the parties holding the property to her use. — See Hovenden’s Sup. to Ves., Jr., Vol. 2, p. 66 — note to Sperling v. Rochfort, 8 Ves., 164.
The whole doctrine (which has been somewhat narrowed and qualified in many American cases, — see American notes to Hulme v. Tenant, ubi sup.) depends on the double assumption that she can make no contract of any kind which will bind her in personam, and that she cannot transfer or charge a legal estate by her sole act or agreement. And the act or agreement of a married woman who at the time had no separate equitable estate, was not of the least validity, so as to reach any subsequently acquired interests, or to bind her at law, should she become a widow.
It was expressly held by this court in De Vries v. Conklin, 22 Mich. R., 255, that a married woman could not be held liable on a joint note given for her husband’s debt, on which she was only a surety. And that decision practically decides this case. The same suggestions were made there which were made here, that she could bind her equitable estate by such a signature; and the court, without deciding what might have been the case in equity, if such an estate had existed and been contemplated by the contract, held that a wife’s property held by legal title was not the same thing as an equitable separate estate, and that an action at law gave a different remedy. Indeed it is plain that if a woman can bind her property by every note which she signs, and if her note can be sued at law, there is no limit to her right of binding herself by contract.
A court of common law enforces its judgments by execution; and when judgment has been rendered against a married woman, it is collected like any other. The execu tion will seize any property which she possesses, and will dispose of it absolutely, and not merely bind the usufruct.
The whole purpose of onr present system wras to remove the'wife’s disabilities in regard to property, and put her as to that upon the same footing as if she were unmarried. She contracts on that footing when she contracts at all, and she disposes of her property on the same basis. There is no occasion to extend and give a broader application to rules of equity which could never have had sense or reason except because of the very disabilities which are now removed. In all of her contracts and dispositions of property, and in all suits arising out of them, she is to be treated as a feme sole. — Comp. L. of 1871, §§ 4-808, 4805, 4806. And the dealings of an unmarried woman are in the same legal position as those of a man.
No one has ever imagined that a man, by signing a note or a bond, created, a lien on his property legal or equitable. Even a judgment creates no lien. Unless the property is expressly pledged or mortgaged, it remains free until levied upon by attachment or execution. And a common-law action is of no avail to enforce a lieD of any kind. It leads to nothing but a personal judgment, which can only be satisfied out of such property as is legally subject to seizure, without reference to the date of its acquisition. A contract made when a man has no property will authorize a judgment under which after-acquired property can be taken; and a contract made when a person has personalty or realty will not prevent its alienation.
We think that any attempt by courts to engraft the old rules of equity upon the new sjstem can only lead to confusion and mischief. A married woman would have greater powers and greater liabilities than a single woman, if any such medley should be allowed. There is no obstacle to her binding any of her property expressly; And therefore there is no need of implications, which extend to no other persons, although situated alike.
Those who deal with her on her personal responsibility must be prepared tó show that she has acted within her-legal powers. Those who desire to obtain security on ber property must obtain it as they would if she were unmarried, — that is, by some instrument describing. the property and defining their rights in it, or by some pledge or transfer which is equivalent.
As in this action the wife is sued upon contract, and it cau only be maintained upon her personal agreement, tbe whole question, so far as tbis branch of the inquiry is eoncerued, is, as already stated, disposed of by the decision in De Vries v. Conklin.
The judgment should be affirmed, with costs.
Cooley, J., and Graves, Ch. J., concurred.
Christiancy, J., did not sit in tbis case. | [
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Graves, J.
This was an ordinary foreclosure cause on a mortgage made by defendant, Barton M. Bromley, to complainant’s assignor, and dated March 9 th, 1868. The only statement in the bill connecting the other defendants with the subject of the suit, or in any way implicating them, is one made under general rule ninety-one of the rules in chancery, and is in these terms: “And your orator further shows unto this court that Joseph Emerson, William Burbank, Jefferson Jones, John Barr, and Olive Bromley, have or claim some interest in the said mortgaged premises, or in some part thereof, as purchasers, mortgagees or otherwise, which interests, if any, have accrued subsequent to the lien of the said mortgage, and are subject thereto.” None of the defendants, except two of those brought in under this particular allegation, namely, Emerson, and Olive Bromley, made defense. They put in 'separate answers, but then-answers exhibited the same ground of defense, and it was, that when the mortgage was given the defendant Olive was the absolute and exclusive owner of the premises, and that the defendant Emerson succeeded to her absolute and exclusive title, by conveyance from her. It is true that the validity of this position was made to depend upon the genuineness or want of genuineness of an instrument antedating the mortgage, and which was placed on record and purported to be a deed of the premises from the defendant Olive Bromley, to the mortgagor Barton M. Bromley. But the question of forgery connected with the alleged deed was merely something involved in the defense, and needed to maintain it. It was not the fundamental defense itself. The ultimate and substantial question was, in whom did the title reside. On the face of the papers it purported to reside in the mortgagor, Barton'M. Bromley. The defense insisted that when the mortgage was given, it resided in Olive Bromley, who transferred to Emerson, in whom it had since continued to reside, and therefore that neither the mortgagor nor mortgagee possessed any title. The very gist of the defense was, the assertion of a title both hostile and paramount to that claimed for the mortgagor and mortgagee. On this the controversy was made to hinge. The complainant filed the usual general replication, and the parties went at great length into proofs upon this disputed question of title, and the court below decreed foreclosure and sale in the ordinary form, and in terms provided for barring defendants, and for giving possession to the purchaser. The defendant Emerson, who claimed under Olive as owner of the adverse and superior title, alone appealed.
The case has been argued with great fullness and ability, and it is much to be regretted that the litigation cannot be now closed. But that is impossible. The circumstances of the case, and the settled rules of law, are so plainly opposed to such a result as to preclude all doubt. The difficulty is at least two fold, and it is fundamental as well as formal. The real question was strictly legal, and one proper for a court of law.— Welby v. Duke of Rutland, 6 Bro. Par. Cas., 575; Hipp v. Babin, 19 How., 271.
In the first place, it is not competent in a foreclosure suit, whatever the pleadings, to proceed to litigate and settle, the right of a party who sets up a legal title which, if valid, is adverse and paramount to the title of both mortgagor and mortgagee. — Chamberlain v. Lyell, 3 Mich., 448; Wurcherer v. Hewitt, 10 Mich., 458; Banks v. Walker, 8 Barb. Ch., 488; Eagle Fire Co. v. Lent, 6 Paige, 687; Holcomb v. Holcomb, 2 Barb. S. C., 20; Corning v. Smith, 2 Seld., 82; Lewis v. Smith, 11 Barb,, 152, S. C., 5 Seld., 502. Our legislation respecting foreclosure proceedings does not counte-. nance such litigation. The passage in the statute (Comp. L., § 5154), which declares that the commissioner’s deed shall be an entire bar against each of the parties, must be construed with the preceding and other members of the section so as to harmonize therewith and with the general spirit of the law. It cannot rightly be held to mean that in case neither the mortgagor or mortgagee had any title, the commissioner’s deed shall have the effect to give the purchaser one, by barring the true owner. A court of equity is not the appropriate tribunal, nor is a foreclosure suit a suitable proceeding, for the trial of claims to the legal title which are hostile and paramount to the interests and rights and titles of both mortgagor and mortgagee. Such a trial will neither fall in with the nature of the jurisdiction, or the genius or frame of the particular remedy.
But, second, if it were possible to regularly investigate such a question, and from the record aptly made up in a foreclosure case, work out a decree directed to the adjudication of the point upon the title, the present bill is not so framed as to admit of it.
No issue is made by the pleadings upon this question of superiority of title, or even upon the subordinate and subsidiary controversy respecting the forgery of the deed. The bill affords no basis for any such issue. That proceeds agreeably to the rule of the court, and merely charges the defendants, Emerson and Olive Bromley, as persons claiming subordinate rights and interests. There is, then, no foundation in the bill for any decree upon the question of title. — See the cases last cited, also Warner v. Whittaker, 6 Mich., 133; Wright v. Dudley, 8 Mich., 115; Barrows v. Baughman, 9 Mich., 213; Moran v. Palmer, 13 Mich., 367.
It was not competent for the court below, and it is not competent for this court, to decree upon and bind the right set up by Emerson, and no writ of assistance could be rightly awarded to turn him out of possession. The purchaser must be left to try the hostile title set up by Mrs. Bromley and Emerson, in ejectment, where a jury may pass upon the question raised by the charge of forgery. That question is a very proper one to be submitted to such a tribunal, while it is correctly considered as extremely unfit for a court of equity, unless the case is found to be a plain one.— Barnesly v. Powel, 1 Ves. Sr., 120.
The decree appears to be well enough as against the mortgagor, Barton M. Bromley, but it must be modified so far as to save it from operating against the adverse paramount right and title set up by Emerson and Olive Bromley, and so as to exclude any right to a writ of assistance, except as against Barton M. Bromley and the parties, if any, holding under him subsequent to the mortgage.
It would seem -that both sides have been somewhat at fault in their proceeding to carry on an inadmissible controversy. It does not appear that any objection was raised anywhere to the irregularity. On the contrary all seem to have accepted the conflict willingly. The point should have been raised below, and in season. If it had been, it is to be presumed that the court below would have dealt with it correctly. I am therefore inclined to think that neither party ought to recover costs as against the other.
The cause should be remitted to the court below to carry out the decree as modified.
Cooley and Campbell, JJ., concurred. | [
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Kelly, J.
We granted leave to appeal in this case to determine the effect of the recreational land use act (RUA), MCL 300.201; MSA 13.1485, on the governmental tort liability act (gtla), MCL 691.1407(1); MSA 3.996(107)(1). The plaintiffs’ decedents drowned while wading in a man-made lake in a township park.
Specifically, we are asked to decide if the recreational land use act creates an exception to the governmental immunity created by the GTLA. We hold that the act was not intended to waive the state’s immunity from liability and does not create an exception to governmental immunity. Therefore, we affirm the result reached by the Court of Appeals, but for different reasons.
i
The Court of Appeals summarized clearly the tragic events giving rise to this action:
On July 4, 1991, plaintiffs’ decedents, Kassim Ballard, age eleven, and Anthony Wilkes, age twelve, were taken with a group of boys to Ford Lake Park in Ypsilanti by two adults, Haratio Blacksher and Veronica Mitchell. Although Mitchell told the boys not to go swimming, Blacksher allowed them to go into the water. The boys were nonswimmers. Ballard was in the water about ten to twelve feet out when he lost his footing. Wilkes went to help him and they both struggled. Blacksher went into the lake. All three went under. Blacksher emerged, but the boys drowned.
Off the shore of the lake where the boys drowned, the water was twenty to twenty-four inches deep for a length of about twelve feet. At that point, the water turned mucky and the depth dropped to 372 feet. At thirteen feet from the shore, the water was six feet deep. Defendant township runs Ford Lake Park. A 1983 study of the lake noted the existence of hazardous drop-offs. [216 Mich App 545, 546-547; 549 NW2d 885 (1996).]
The boys’ estates sued Ypsilanti Township and two paxk caretakers individually. The trial court denied Ypsilanti’s motions for summary disposition based on governmental immunity, and allowed the case to go to a jury. The jury awarded $1 million to Ballard’s estate, and $400,000 to Wilkes’ estate reduced by twenty-five percent for comparative fault. The trial court denied motions for judgment notwithstanding the verdict and new trial.
The Court of Appeals reversed, holding that the township was immune from liability. The panel held that the GTLA controlled because it had been more recently enacted than the recreational land use act. It reasoned that the Legislature was aware of the recreational land use act, but did not make an exception for it. Hence, it did not intend to waive the state’s immunity from liability.
Plaintiffs raise a question of law, which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
n
There are two statutes at issue in this case. First is the GTLA, which provides a broad grant of governmental immunity, subject to several statutoiy exceptions. The second is the recreational land use act, which limits landowner liability, except in cases of gross negligence or wilful and wanton misconduct. The issue before the Court is whether the recreational land use act applies to government-owned lands in such a way as to subject the township to liability for its wilful and wanton behavior.
A. GOVERNMENTAL IMMUNITY
The term “governmental immunity” derives from “sovereign immunity,” and although the two are often used interchangeably, they are not synonymous. Sovereign immunity refers to the immunity of the state from suit and from liability, while governmental immunity refers to the similar immunities enjoyed by the state’s political subdivisions. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 596-597; 363 NW2d 641 (1984). In the present case, although governmental immunity is at issue because plaintiffs seek to hold a township hable, there is no reason to distinguish sovereign immunity. The recreational land use act does not provide different standards for the state and its political subdivisions.
From the time of its creation, Michigan has enjoyed sovereign immunity, because “the state, as creator of the courts, was not subject to them or their jurisdiction.” Id. at 598. This immunity is waived only by legislative enactment. In early times, one seeking to recover against the state would have to obtain a waiver of immunity from suit from the Legislature. Id. Later, as the number of claims increased to where legislative attention to each became unwieldy, the Legislature waived immunity from suit by creating various agencies to deal with the claims. Id. at 598-600.
B. GOVERNMENTAL TORT LIABILITY ACT
In 1964, the Legislature codified common-law sovereign immunity to liability and put all then-existing legislative exceptions in one place by enacting the governmental tort liability act. MCL 691.1401 el seq.-, MSA 3.996(101) et seq. The GTLA states in part:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. [MCL 691.1407(1); MSA 3.996(107)(1).]
By the “[e]xcept as otherwise provided in this act” language, the GTLA proclaims to contain all exceptions to governmental immunity. While the GTLA does contain several of those exceptions, others exist outside the act. This is so because the Legislature, in enacting a law, cannot bind future Legislatures. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991), citing Harsha v Detroit, 261 Mich 586; 246 NW 849 (1933). As a result, it remains free to amend or abolish governmental immunity by creating exceptions to it, either within the GTLA, or in the context of another statute.
In the present case, plaintiffs brought suit against Ypsilanti Township under the recreational land use act, and the township responded by asserting governmental immunity under the GTLA. Plaintiffs argue that the defense of governmental immunity from liability must fail because the recreational land use act is one of the statutorily created exceptions to GTLA immunity.
The issue whether the recreational land use act creates a statutory exception to governmental immunity is one of first impression. In the past we have examined the meaning, history, and purpose of the recreational land use act. However, we have reserved opinion, until today, on whether it creates liability for a political subdivision of the state.
c. WAIVER
Before we reach the merits of the governmental immunity defense, we first respond to plaintiff Ballard’s argument that the township waived that defense in the present case.
Plaintiff Ballard argues that defendant waived its defense of governmental immunity essentially by admission. To establish the waiver, she quotes the following passage from one of defendants’ briefs:
“Plaintiff therefore is left with one method upon which the cloak of immunity may be removed as it concerns the Township and Co-Defendants Blinker and Cooper under [the] Recreational Use Act. The theory Plaintiff must prove is that the Plaintiffs’ decedents died as a result of willful and wanton misconduct on the part of the Defendants.”
In an effort to convince the Court that the township waived the defense of governmental immunity, plaintiff Ballard has chosen to take the quoted material out of context. The “cloak of immunity” to which defendant referred was that provided by the recreational land use act, not the gtla. In the sentences preceding the quoted language, it is clear that defendant is referring to the immunity from liability for negligence granted by the recreational land use act. It is not referring to governmental immunity under the GTLA.
Plaintiff Ballard also asserts as error the failure of the Court of Appeals to address this issue. We assume that the Court of Appeals did not respond to plaintiff’s waiver argument for the same reason we find the argument unpersuasive: it is without merit. Defendant did not waive its defense of governmental immunity, but raised the defense in its answer and has continued to raise it at each level, including in its brief and argument before this Court.
D. JUDICIALLY CREATED EXCEPTION TO GTLA IMMUNITY
Plaintiff Wilkes also raises an argument which, if successful, would make it unnecessary for us to weigh the merits of the immunity analysis as between the two statutes. Plaintiff argues that there is a judge-made exception to gtla immunity for suits under the recreational land use act. Section 7 of the gtla provides in part that the “act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.” MCL 691.1407(1); MSA 3.996(107)(1). In Li v Feldt (After Remand), this Court held that the portion of § 7 quoted above preserved a common-law tort action against the state. Plaintiff Wilkes argues that, because the Court decided Heider v Michigan Sugar Co, under the recreational land use act before July 1, 1965, a common-law action existed before the effective date of the gtla and survived its enactment. We disagree.
According to Li, § 7 of the GTLA preserved judicially created exceptions that existed before July 1, 1965. The decision in Heider was not a judicially created exception to governmental liability. It did not involve governmental immunity at all, but was a suit against a private property owner. Moreover, a decision that merely upholds the application of a statute, without more, does not create a common-law cause of action or result in a judicially created exception to immunity.
m. LEGISLATIVE ANALYSIS
Having decided that defendant has not waived its defense of governmental immunity and that no common-law exception exists in this context, we turn to plaintiffs’ substantive argument: The Legislature intended to subject the state to liability by the enactment of the recreational land use statute.
We agree with the Court of Appeals that plaintiffs’ statutory construction arguments fail. Plaintiffs urge that the rules of statutory construction control the outcome of this issue. They recite the familiar rule that, where two statutes apply to the same subject and one is general and the other specific, the specific statute should control. According to plaintiffs, the GTLA is the general act, and the recreational land use act is the more specific, making the latter an exception to the general grant of immunity under the GTLA. The Court of Appeals disagreed, holding instead that the recreational land use act is the general statute and the GTLA the specific.
The Court of Appeals went on to use a different rule of statutory construction, pointing out that, when two statutes conflict, the later is said to have amended the earlier. 216 Mich App 550, citing Shirilla v Detroit, 208 Mich App 434; 528 NW2d 763 (1995). Applying this rule, the panel found that the later-enacted gtla conflicted with the earlier recreational land use act. Because the gtla purported to contain all exceptions to governmental immunity, but did not make an exception for recreational land use liability, the panel held that the township was immune.
The Court of Appeals was correct in concluding that the township is immune from liability in this case. However, we reach this conclusion with a slightly different analysis. While the Court of Appeals applied the rules of statutory construction because it found the rua and the gtla to be in conflict, we find no conflict between the statutes. The GTLA limits liability on government-owned property and the RUA limits liability on privately owned property. They do not both apply to the same property, although they share the common purpose of limiting liability. Consequently, even if they did apply to the same property, they would not materially conflict. This statutory analysis is part of the broader analysis we undertake in determining whether a legislatively created exception to governmental immunity exists. Proper resolution of this question involves applying our longstanding rule for statutory waivers of governmental immunity, as recognized in Mead v Public Service Comm, 303 Mich 168; 5 NW2d 740 (1942).
IV. GOVERNMENTAL IMMUNITY
Recently, we had the opportunity to address the issue of statutory exceptions to governmental immunity in Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). There, we reaffirmed the rule from Mead v Public Service Comm, supra, that governs statutory waivers of governmental immunity:
The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. [Id. at 173.]
A. EXPRESS STATUTORY ENACTMENT
The question whether there is an express statutory enactment subjecting the state to liability is answered simply by referring to the language of the statute itself. In Anzaldua, we held that the Legislature intended to create an exception to sovereign immunity from liability in the Whistleblowers’ Protection Act (wpa), because it included the state among the bodies subject to the act. The wpa governs “employer[s]” and defines “employer” to include the state.
Similarly, in Malcolm v East Detroit, cited by plaintiffs in the present action, we held that the emergency medical services act waived governmental immunity to liability. It explicitly defined the “person[s]” to whom it applied to include governmental entities. Plaintiffs argue that we should reach a similar result under the recreational land use act. The emergency medical services act was comparable to the recreational land use act in that it granted immunity from liability, except for gross negligence or wilful and wanton behavior. However, the emergency medical services act contained a specific provision defining governmental units as “person[s]” for purposes of the act.
The recreational land use act, on the other hand, mentions neither the state nor its political subdivisions. It provides:
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee. [MCL 300.201; MSA 13.1485.][ ]
On its face, the act applies only to owners, tenants, or lessees of land, and does not define those terms to include governmental entities. There is no express waiver of governmental immunity from liability under the act, because the act does not define the persons to whom it applies to include either the state or its political subdivisions.
B. NECESSARY INFERENCE
Next we decide whether the recreational land use act gives rise to a necessary inference that the Legislature intended to waive the state’s immunity to liability. As we discussed earlier, there is no conflict between the recreational land use act and the governmental tort liability act. Hence, we do not apply the recreational land use act, thereby waiving the state’s immunity from liability. To find a conflict between the acts, we would have to conclude that each applied to government property, and that neither could be read to give effect to both.
First, the recreational land use act does not apply to public property. The act applies to owners of land, and while it does not mention the state, it could be argued that the Legislature intended the state to be included. However, looking at the purpose behind the act and the circumstances surrounding its passage, it becomes clear that the Legislature did not intend the act to apply to publicly owned property. Therefore it did not intend the act to waive the state’s immunity from liability.
1. PURPOSE OF THE RECREATIONAL LAND USE ACT
The recreational land use act passed in 1953 in response to fears that potential negligence liability would discourage property owners from allowing others to use their property for recreational purposes. It was seen as promoting tourism by “ ‘opening up and making available vast areas of vacant but private lands to the use of the general public.’ ” Wymer v Holmes, 429 Mich 66, 78; 412 NW2d 213 (1987).
The act was designed to “restrict[] suits by persons coming upon the property of another for [recreational] purposes, and to declare the limited liability of owners of property within this state.” The act limited liability in order to encourage landowners to open their property to others for recreation.
2. CIRCUMSTANCES SURROUNDING THE ADOPTION OF THE ACT
At the time the act became law, the state already had a vast system of parks and forests. Hence, there is little likelihood that it was intended to encourage the state to open its own lands for recreational uses. More importantly, the state was already immune from liability, so the Legislature would have no reason to grant the state a second layer of immunity.
3. THE LIABILITY-LIMITING NATURE OF THE RECREATIONAL LAND USE ACT
Finally, the recreational land use act is a liability-limiting, as contrasted with a liability-imposing, act. It did not create a cause of action against landowners where none existed before. Instead, it eliminated liability for negligence, and left liability only for gross negligence and wilful and wanton misconduct.
A conflict between statutes is not the only source of a necessary inference that the Legislature intended to waive the state’s immunity from liability. However, here the factors that lead us to conclude that there is no conflict also militate against an inference that the Legislature intended to waive the state’s immunity from liability. Our conclusion that the recreational land use act does not apply to public property is sufficient to answer the question. Even if the act were held to apply to public property, it would not create a cause of action against the state. The act would simply limit the liability of a governmental entity that is already immune from suit.
Beyond the fact that the state might be construed to be a landowner, there is nothing from which to infer that the Legislature intended to subject the state to liability. Any inference is negated by the purpose behind the act, the circumstances surrounding its adoption, and its liability-limiting nature.
V. CONCLUSION
The recreational land use act was not intended to create an exception to governmental immunity. The act does not expressly waive immunity because it does not mention the state or its political subdivisions. No necessary inference that the Legislature intended to waive immunity arises from the act. It was intended to limit the liability of private landowners in an effort to encourage them to make their property available for the use of the general public.
We affirm the decision of the Court of Appeals.
Malt,kit, C.J., and Cavanagh and Boyle, JJ., concurred with Kelly, J.
Immunity from suit and immunity from liability are different protections. Ross, supra at 600-601. Immunity from suit refers to the'immunity of the state and its subdivisions from being hailed into one of its courts without its consent. Id.
As we noted in Wymer v Holmes, 429 Mich 66, 78, n 15; 412 NW2d 213 (1987):
This Court has not directly addressed the question whether public land is covered by the rua. In Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982), this Court held that plaintiffs claim stated a cause of action for wilful and wanton misconduct under the rua without first considering the applicability of the statute to a reservoir owned by a city, an issue never briefed nor raised in that case.
It is not necessary for the Court to determine whether public land is covered by the rua at this time. However, arguments in favor of limiting the application of the rua to private land have been made. Thompson & Dettmer, Trespassing on the recreational user statute, 61 Mich B J 726 (1982).
434 Mich 584, 591-594; 456 NW2d 55 (1990).
375 Mich 490; 134 NW2d 637 (1965).
MCL 15.362; MSA 17.428(2).
180 Mich App 633; 447 NW2d 860 (1989), rev’d 437 Mich 132; 468 NW2d 479 (1991).
MCL 333.20701 et seq.; MSA 14.15(20701) et seq., repealed and replaced by 1980 PA 179, MCL 333.20901 et seq.; MSA 14.15(20901) et seq.
Much of this Court’s opinion in Malcolm concerned the nature of liability to be imposed on the state, because the statute there distinguished direct and vicarious liability. See, generally, 437 Mich 138-148. The recreational land use act makes no distinction between direct and vicarious lia bility, so those considerations are not pertinent to the resolution of the present case.
The recreational land use act was repealed by 1994 PA 451, § 90106, and reinstated by 1995 PA 58, § 1, effective May 24, 1995.
The current provision appears at MCL 324.73301(1); MSA 13A.73301(1):
Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
See part n.
1953 PA 201, amended by 1964 PA 199, § 1, effective May 22, 1964; 1974 PA 177, effective June 23, 1974.
The recreational land use act was designed to encourage use of parcels of land that are too large to be made safe or to which access could not easily be restricted. It was not designed to limit liability in residential backyards, but instead applies only to large undeveloped tracts of land that are suitable for outdoor recreation. Wymer v Holmes, supra.
See for example, 1915 PA 212, § 1 (authorizing the Public Domain Commission to accept gifts of property for public parks), and 1948 CL 299.1 et seq. | [
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Dethmers, C. J.
{dissenting). Plaintiff’s ward,, his son, while 2 years and 8 months of age, fell into a water-filled street excavation 4 feet deep, 4 feet wide, and 16 feet long, sustaining personal injuries. Defendant Fattore Company had made and maintained the excavation under a contract with defendant city to lay water mains. Suit is for damages resulting from the injuries. The jury returned a verdict of no cause for action. From an order denying plaintiff’s motion for new trial he appeals.
The excavation was near an intersection in the street and 12 feet from the nearest point in the sidewalk. It was across the street and a couple of houses removed from plaintiff’s residence. It was surrounded by a long, sawhorse-type of wooden barrier on the street side; on the opposite side, between it and the sidewalk, by the pile of dirt, higher than the wooden barrier, which had been removed from the excavation, and at each end by boards laid across from the top of the wooden barrier to the top of the dirt pile. It was in a well-developed residential area. Children passed it in going to a nearby school.
The child and his mother had been in their back yard where she was engaged in hanging up clothes. After a few minutes there, the child went into the-house through the back door. The mother went into the house to look for him and, not locating him there, found him, according to her testimony, 5 to 6 minutes after he had left her, floating, head down, in the excavation. No one testified as to how or from what place he had fallen into it.
Plaintiff claims as error that defense counsel injected into the trial, and the court permitted to be considered as an issue, the contributory negligence of the child’s parents as a defense to his action. The incidents relied upon for this contention are: (1) Inclusion in defendant Pattore Company’s answer of a paragraph which, so plaintiff says, amounted to raising the defense of contributory negligence of the parents. This, upon plaintiff’s motion, was ordered stricken from the answer before trial. (2) The statement of defense counsel at pretrial conference that the defendant company claimed that the proximate cause of the accident was the negligence of the parents in permitting so young a child to be out on the street alone and unattended, and, upon plaintiff’s objection, the court’s failure to comment thereon. (3) The defendant company’s motion to consolidate the child’s case with that of the father for his medical and out-of-pocket expenses and the court’s refusal on the grounds that the contributory negligence of the parents, while a defense in the latter, could not be so in the former case. (4) Plaintiff’s motion, before trial, that the court instruct defendants not to inject the issue of the parents’ negligence into the trial, and the court’s refusal so to do, the court saying that it had already ruled the matter of contributory negligence out of the case and that it could not and would not rule on the propriety of counsel’s trial tactics until they occurred. (5) Defense counsel’s questions to plaintiff’s witness as to whether the mother previously had permitted the child to play outside alone, to which, upon plaintiff’s objection, the court held the answers would be inadmissible, declining, however, to instruct defense counsel about future references to this matter during trial, saying that it would rule on questions as they arose. (6) The court’s overruling plaintiff’s objection to the question whether the mother had told the witness where she was when the child fell in. (7) Defense counsel’s saying, in his opening statement, that they maintained that they had a right to assume that parents of children of such tender years would take such care as is obvious. (8) The court’s giving defendants’ request to charge that they claimed they had a right to assume that children too young to protect themselves would not be allowed by their parents in the street without care or supervision and that defendants claimed that they could not have foreseen that parents would have permitted this.
Any of these incidents occurring before trial are without. significance insofar as plaintiff’s claimed right to a new trial is concerned.
Plaintiff cites Keyser v. Chicago & Grand Trunk R. Co., 56 Mich 559 (56 Am Rep 405), as holding that a child of this age cannot legally be guilty of contributory negligence, and cases beginning with Shippy v. Village of Au Sable, 85 Mich 280, and ending with Conners v. Benjamin I. Magid, Inc., 353 Mich 628 (67 ALR2d 1001), to the effect that the contributory negligence of the parents is no defense to the action of their child. In the instant case the court expressly charged the jury that they were not to consider the question of the contributory negligence of either the child or the parents because these would be no defense to this action.
To plaintiff’s claims of error in this connection the answer of defendants and of the trial court is that the defendants were not raising as a defense the contributory negligence of the parents, but, instead, were undertaking to establish that defendants were guilty of no negligence which was a proximate cause of the child’s injury and to invoke the related doctrine of foreseeability. They contend that their claim as to their right to assume that such child would not be permitted alone on the street goes to the matter of what dangers they were obliged to foresee when they undertook to safeguard the public by placing barriers around the excavation, that whether they were negligent in what they did or failed to do in that respect depended on whether they had adequately protected against such dangers as they might reasonably have foreseen, that this presented a question of fact for the jury, thus entitling defendants to submit to the jury their theory as to what they should have foreseen, and that this depended on what they had had a right to assume.
In Nash v. Mayne, 340 Mich 502, 508, we quoted with approval from Luck v. Gregory, 257 Mich 562, 569, the following:
“ ‘In order to constitute proximate cause, it must appear the injury to plaintiff was the natural and probable consequence of the negligence or wrongful act of the defendant, and that it ought to have been foreseen, in the light of the attending circumstances.’ ”
In Roberts v. Lundy, 301 Mich 726, 730, this Court quoted with approval from Clumfoot v. St. Clair Tunnel Co., 221 Mich 113 (syllabus), as follows:
“ ‘In an action for personal injuries alleged to be the result of defendant’s negligence, in order that the plaintiff may recover it must appear that his injury was the natural and probable consequence of a negligent act or omission of the defendant which under the circumstances an ordinarily prudent person ought reasonably to have foreseen or anticipated might possibly occur as a result of such act or omission.’ ”
In Clumfoot this Court held that the question of what should have been foreseen or would have been by an ordinarily prudent person was one of fact for the jury.
In the instant case it was for the jury to decide whether defendants were guilty of negligence which was a proximate cause and, as a preliminary thereto, whether they should have foreseen the possibility of an injury resulting from no greater barricading than they placed around the excavation. It follows that, touching the latter, it was for the jury to determine what assumptions defendants might make in attempting to foresee possible future occurrences and, hence, that it was proper for defendants to present proofs and arguments to the jury bearing on their theory as to what they might assume. It was still for the jury to decide the correctness thereof, and it was so left in this case.
Plaintiff claims the court erred in charging the jury on “unavoidable accident.” In stating the claims of the parties to the jury the court said that this was one of the defense claims. Nowhere, however, did the court actually charge on that subject as defendants had requested. No error occurred in this connection. Furthermore, the court properly instructed on the issues of negligence and proximate •cause and neither party offered corrective suggestions. Consequently, if there had been any error at all in this connection, it would have been harmless. Lober v. Sklar, 357 Mich 166.
The court instructed the jury “that the mere fact •of an accident, happening or occurring is not evidence of negligence.” Here the physical facts and the defendants’ acts or failures to act were before the jury, affording an ample basis for determining the negligence question. Resort to speculations on the mere fact of the occurrence of an accident would have added nothing as a basis for a jury determination of negligence even in a jurisdiction embracing the res ipsa loquitor doctrine. The charge was in terms previously approved by this Court. Fuller v. Wurzburg Dry Goods Co., 192 Mich 447; Brebner v. Sidney Hill Health System, Inc., 269 Mich 541; Daigneau v. Young, 349 Mich 632.
An instruction that neither defendant was an insurer of the safety of the public but was required only to use reasonable or ordinary care, cannot reasonably be said to have conveyed the idea to the jury that neither had liability insurance coverage. It was correct and not prejudicial to plaintiff.
The court charged the jury that:
“The duty of the city is to erect barriers that will guard, warn, or notify the traveling public, both drivers of motor vehicles and pedestrians, that there is an excavation to be avoided.”
We think the general import of this sentence is not, as contended by plaintiff, that the words “guard”, “warn”, “notify” are used in the disjunctive, but, rather, cumulatively or synonymously. The court fully charged the jury that, as by statute provided, the duty upon defendant city was to keep the street “in condition reasonably safe and fit for travel.” CL 1948, § 242.1 (Stat Ann § 9.591). That properly presented the question to be decided by the jury. We think no error occurred in this connection.
We are not impressed that the verdict is against the overwhelming weight of the evidence.
Judgment should be affirmed. Costs to defendants.
Carr and Kelly, JJ., concurred with Dethmees, C. J.
Smith, J.
The essential fact before us is an excavation made by the defendants in a public highway in a residential area. It was located within a half block of a school attended by small children (its classes extended from kindergarten through the sixth grade), as well as by handicapped children. The excavation was approximately 4 feet wide, 4 feet deep, and 16 feet in length.
This excavation the defendants allowed to remain open for some 28 days. It became filled with water to its brim. This condition was allowed to so persist for several days prior to the accident, despite the fact that it could have been pumped out in a matter of minutes with a suitable pump. It was an open invitation not only to disaster but to play. “I remember,” testified a mother who lived directly across the street opposite the excavation, “it [the water] had been there days before because we had seen children throwing stones in the water and my husband and I would tell them that that was not what they should be doing.” The hole was guarded by a mound of dirt on one side and by single planks, resting in part on sawhorses, on each of the other 3 sides.
The situation was, obviously, fraught with such hazard for children that another neighbor lady, who had observed the hole filled with water for the first time only the night before the accident, stationed herself there the next morning “and watched the children going to school.” In addition she called the city hall, registered a complaint, and explained the situation — “that it was near a school, and there was a lot of small children around that neighborhood and I wanted it taken care of immediately, being a taxpayer.” She planned to resume her vigil in time for the noon recess, about a quarter after 11, since the children would then again be passing the hole. Consequently, she left her house around 11:15 and was about half way there when she heard a mother screaming. A little boy (Jimmy Elbert, for whom action is here brought and who will be referred to hereinafter, for purposes of clarity, as the plaintiff) was floating in the water. His mother had gone out to the back yard to hang up the washing.
“In a few minutes,” she testified, “Jimmy [then 2-1/2 years of age] scooted away and I heard the back door of our house slam and I knew he had the habit of going in. I knew he was there but when he didn’t come right back I immediately went in to find him but he didn’t answer so I hurried outside and ran around to the neighbor’s house * * # [calling for him, but receiving no answer] so I immediately ran to the other neighbor’s house and saw their dog-standing there all wet. * * * The next thought was to look at those 2 excavations, after seeing the dog wet, that entered my mind immediately, and I went over to these 2 open excavations. * # *
“I found Jimmy head down in the water and I screamed.”
Artificial respiration was applied, with the use of •oxygen, for 45 minutes. The child revived, but had suffered brain damage. A pediatrician testified that under the described conditions destruction of brain •cells will begin within 2 to 3 minutes, will become serious at 5 minutes and fatal at 7. These brain cells, it was testified, do not regenerate and any damage done is permanent and irretrievable. The doctor’s final diagnosis of plaintiff’s condition was that of spastic hemiparalysis and personality change. Action having been brought therefor the jury, acting-under instructions hereinafter to be discussed in part, returned a verdict for defendants.
A study of the record before us conveys an air of unreality about the entire proceedings. At times it seems as though the parties were trying another case, involving other people. We have the persistently-recurring questions, throughout the entire record, respecting the care and supervision exercised by the parents. But the parent’s negligence (or lack of it) is not an issue here. We find references to the parents “letting their child wander away from home,” or “allowing their child to wander around the streets,” or “allow [ing] their minor children of this age to play [outside].” Yet nothing is clearer in the record than that the infant escaped from his mother’s supervision while she was hanging out the washing in the back yard and there is no hint of permitting or allowing him to wander into the highway. Since the case is to go back for new trial, we will state that, upon the facts before us, there was no dereliction in parental care of, or obligation to, the infant before us. And, finally, we find the following:
“Mr. Stanton: I of course would abide by the court’s ruling but I propose to prove here that the parents in this case knew that the boy was the type of a boy that was likely to do almost anything.
“As a matter of fact, they called him ‘fearless Jimmy’ because he was always getting into trouble and if I can’t prove that, and that’s what I intend to prove by some of these witnesses, I might as well quit.”
It would be well to bring this case back to reality before we enter upon its legal analysis. The plaintiff before us was not an adult, nor even a reasoning child. He was actually, at this time, an infant, of the age of 2 years and 8 months. Our own knowledge of the characteristics of this age are meager. The experiences, whatever they may have been, are buried back in the fog of time. But the monumental work of (resell and Ilg does not lack for detail. A child of this age is, indeed, “always getting into trouble.” He has not yet fully mastered bladder and bowel control. He is subject to contrary impulses. Though exuberant, he has not learned the consequences of his actions and hence, to an adult, acts paradoxically. There is much of what we call fantasy in his existence. He talks to his toys. His crib becomes, at times, a bus or a railroad train. He has no accurate perception of space or size and thus may fear that he will be sucked down the drain with his bath water. To characterize such an infant to the court as “fearless Jimmy” is (arid we use these words after mature deliberation, since for us they set a precedent) utterly ridiculous. If this is the attitude with which this case was approached, if this was the atmosphere in which it was tried, it must be tried again, for another plaintiff’s case was being heard. “Fearless” this particular plaintiff may have been in his crib as he talked to his playthings, but fearlessness as it applies to any legal issue in this ease involves a conscious choice of alternatives and an awareness of resultant consequences. This particular plaintiff (and his is the only case being tried) was completely incapable of making such a choice. It is pertinent, also, to observe at this point that to charge a jury, as was here done, that a city discharges its duty to such an infant by erecting “barriers that will guard, warn, or notify the traveling public” is inadequate and erroneous. In the first place, the duty is not in the alternative, to guard, warn, or notify, but in the conjunctive, to guard, warn, and notify. Notification, as that term is ordinarily employed, is not adequate with respect to those handicapped, deficient in sight or understanding, but who are, nevertheless, deserving of care, particularly in the use of a highway open to all. Moreover, the charge must be related to the facts. We are not trying the case of the “traveling” public. We have an infant unable to read or to reason or to understand the signs sufficient for an adult. Whether or not the barriers erected were reasonable for the protection of such an infant will be a matter for jury determination, under the proper instructions, it being axiomatic that the greater the hazard the greater the care required. If there is reason to foresee the presence in this area of small children (a point we will hereinafter discuss in some detail), the duty to guard includes guarding with respect to such children.
The principal error claimed by appellant relates to the legal duty involved, for the asserted breach of which action is brought. The defendants assert, in reply, a lengthy argument as to proximate cause. It only obscures legal analysis to lump together, as 1, these 2 concepts. A duty arises because of a relationship between the parties. Should it be found to exist, an actor has an obligation to conform to a certain standard of conduct. Proximate cause, on the other hand, once there is cause in fact, involves the cut-off problem, the problem of where to draw the line as to liability. To somewhat oversimplify, the one looks at obligation, the other at consequences. It is possible, of course, as a matter of terminology, to phrase any question relating to duty, breach, or the consequences thereof, any question, indeed, relating to negligence, in terms of “proximate cause.” But when we do so we obscure the whole process of decision, we scramble the functions of judge and jury, and we conceal the critical issues of policy involved shaping judgment. In short, we lower a “word curtain” over what is going on. So what? What harm is done 1 Is it just a matter of verbiage ? This case furnishes a vivid answer.
The defendants assert that they could not reasonably foresee that a person of plaintiff’s class would be injured by the condition created by them: “We say that in this case the defendant could not reasonably foresee or expect that a 2-1/2-year-old child of the intelligence of a child of that age, would be allowed to wander around the streets and fall in this hole which had barricades which warned the public of its existence.”
What the defendant is talking about here is duty. The concept of duty was foreign to the early law, as indeed was the concept of negligence itself. As private law gradually evolved beyond its primary original function, the prevention of private warfare, the negligence concept slowly took definite form and shape. One clear way in which a defendant might be negligent was to fail in the performance of a recognized legal duty, such as one assumed in a public office or calling, or from a bailment, or control of a dangerous article. The established writs were adequate to answer the procedural requirements in such cases and where there was the writ there was the right. It is only in modern times that we struggle, still in some cases unsuccessfully, to reverse the archaic process. The courts quite naturally, then, as Harper and James put it, came “to look on negligence as the correlative of a duty not to harm plaintiff in the manner of which he was complaining.”
Whatever may have been the historical antecedents of the concept, it is now firmly established as a part of the law of negligence. “This Court,” we have held, “is committed to the doctrine that where there is no legal duty there can be no actionable negligence.”
The commitment is not unique to us. It is the sine qua non of negligence law, the requirement (a “duty”) that people in an ordered society must con form to a certain standard of conduct in their relations one with another. Phrased in another way, the problem of duty is simply the problem of the degree to which one’s uncontrolled and undisciplined activities will be curtailed by the courts in recognition of the needs of organized society. This determination those of the vicinage are not trained to make, however faultless their composite judgment may be as to which of their neighbors is lying and which is telling the truth. It involves, as we have seen, much of legal history, of precedent, of allocations of risk and loss.* * Prosser puts it succinctly. In discussing the apportionment of responsibilities between judge and jury he states among the duties of the court “the determination of any question of duty — that is, whether the defendant stands in such a relation to the plaintiff that the law will impose upon him any obligation of reasonable conduct for the benefit of the plaintiff. This issue is one of law, and is never for the jury.” This is not to say, of course, that fact issues may never be involved in the application of the rule. In event “varying inferences are possible,” in Mr. Justice Cardozo’s words, there is “a question for the jury.” Thus questions may arise as to whether or not an area in which a hazard is created is an area within which humans normally move. The duty imposed in this area will depend upon the facts found respecting its use, but the enunciation of the duty upon the facts found is for the court, not the jury.
It is just at this point that serious error was committed below. The court, following defendant’s theory, charged the jury as follows:
“Therefore, if you find in this case that this defendant Pattore Company could not reasonably foresee that a child too young to be guilty of contributory negligence would be in the streets without care or supervision, the defendant Pattore Company would not be responsible and your verdict must be no cause of action as to the defendant Pattore Company.”
The court here is charging with respect to defendants’ duty to children of plaintiff’s class. Essentially the question is whether the interests of this class of plaintiff are entitled to protection against the defendants’ conduct. Stated in another way the question is whether these defendants are under any obligation with respect to infants in this area. Are the infant children of the neighborhood within the “zone of danger” with respect to the hazard created by the negligence of the defendant? This problem, as we have stated, is for the court, just as would be, for instance, the question of whether there is a landowner’s duty of care towards an infant trespasser,* or whether there is a duty owed by a manufacturer to the ultimate consumers of his product.
The Palsgraf Case, also, involved the problem of duty, though in simpler form and at the opposite extreme. Mr. Justice Cardozo (then chief judge of the New York court of appeals) phrased it, in part, in these terms :
“What the plaintiff must show is ‘a wrong’ to herself, i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same, act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Seavey, Negligence, Subjective or Objective, 41 Harv L Rev 1, 6; Boronkay v. Robinson & Carpenter, 247 NY 365 (160 NE 400). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. ‘It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ ”
In reversing, as a matter of law, the trial court’s denial of defendant’s motion to dismiss, the majority of the New York court held that as to Mrs. Palsgraf, the plaintiff, there had been no negligence. “Negligence,” held Mr. Justice Cardozo, “like risk, is thus a term of relation.” The relationship, giving rise to the duty, must be such that jeopardy to her interests with respect to bodily security is within the range of reasonable apprehension. What, under this analysis, is the relationship before us? The hole in the street, water-filled, was within the immediate proximity of the plaintiff’s home. It was in the public highway, a place where this child was no trespasser. A boy, we held in Beaudin v. Bay City, 136 Mich 333, 338 (4 Ann Cas 248, 16 Am Neg Rep 108), “may be a traveler on the highway who is in fact traveling over it in a proper manner, although that traveling includes play or pastime.” In other words, he is not an outlaw because he is not on business, as adults use the term. He remains entitled to freedom from injury, negligently inflicted. The excavation,, moreover, was near a school and in an area frequented by children. It was filled with water, the-presence of which, as we have seen, drew children, to it for play. This plaintiff, unlike Mrs. Palsgraf,, was well within the zone of risk created by defendants’ act.
Under these circumstances what is the reasonable apprehension as to injury from the hazard created? Here a jury has been permitted to say that no reasonable person would anticipate that an infant might escape from its mother and enter upon the public highway, there to be exposed to danger from this water hole. We, of course, are constantly' admonished, while driving, to proceed with caution in residential areas, and, particularly, in the vicinity of schools. We are reminded that every time a ball rolls into the street wo are to presume that it is attached to a child, who will follow it, and we are-fully aware of the attractiveness of many nuisances to children. For such and related reasons legislative bodies have universally placed laws on the books requiring drivers to slow down in residential areas, and in the vicinity of schools. Why? Because children are apt to get into the streets, where they have no business to be. We of the courts, in turn,, have held drivers negligent for not driving with due care in such areas. Why? Because children are-apt to get into the streets, where they have no business to be. But here a jury is permitted to say that the water hole in the street imposes no duty of care upon these defendants. Why? Because children are not apt to get into the streets, where they have no business to be.
In short, Justice, in all her majesty and with all her wisdom has been permitted to peer down upon this child standing at her bar and solemnly say to him that the water-filled hole in the public street in front of his home was of no concern to him. If the words penetrate his damaged brain at all, and he makes bold to ask why, the answer is clear: “Because to you there is no danger. No reasonable person could ever anticipate that you might escape from your mother and run into the street and fall into the hole.”
' All of this is straight from outer space. It is pure fantasy. It is unrelated to life on this earth. It requires no treatise on child development to tell us that a child 2 years 8 months of age is as inquisitive as a hornet and as slippery as an eel. Despite the utmost vigilance he will at times, when the mother is cooking, or washing, or caring for others, make his get-away. Is the situation as to his safety in this event as though he lived on the frontier, or in the jungle, or does modern urban society demand more for its young? Should the penalty visited upon him, who is not even aware of his fault, exceed the well-known measures of normal family discipline? Or should it include brain damage or death? It is our answer to give, not his.
Upon these facts we hold in the words of Mr. Justice Cardozo that the possibility of an accident to any infant in the street “was clear to the ordinarily prudent eye.” No “varying inference” is possible. Tims a duty existed as a matter of law. We are, it will be noted, not called upon to resolve the classic controversy as to whether there may be either a plaintiff or a compensable consequence beyond the horizon of the risk from the threatening source, for here, within the range of sight, adventure, and reasonable apprehension, we find both the hazard and the victim.
The matter of proximate cause, to which so much of appellees’ argument is directed, may be summarily disposed under the analysis made. In the first place we have no quarrel with such general statements of the law of proximate cause as that found in the first syllabus of the Clumfoot Case. It tells us that, for a plaintiff to recover, his injuries must be the natural, probable, and foreseeable consequences of the defendant’s act or omission, and that the jury must so decide. Such, I take it, is the normal course of events at trial. But the broad dogma does not solve particular cases. Here, if the injury is found to have resulted from the inadequacy of the barriers, there can be no reasonable divergence of thought on the matter of causation. This is no freak accident, no never-to-be-repeated combination of time, event, and circumstance. “If the defendant excavates a hole by the side of the road, and the plaintiff’s runaway horse [but not his runaway infant ? ] runs into it, it scarcely can he pretended that the hole was not a cause of the harm, and a very important one.” To borrow once more from Palsgraf, “The law of causation, remote or proximate, is thus foreign to the case before us.” Here, while not foreign in the sense employed by Mr. Justice Cardozo, it is equally not in issue, if the injury is direct, immediate, consequential, and without intervening force or cause. In such event there is no properly controverted issue of proximate cause before us.
Finally, it is objected that the jury was instructed that neither defendant was an insurer (which term is nowhere defined in the charge) of the safety of the public and was required to use only ordinary care. But I find no claim made relating to an insurer. What plaintiff claims is negligence. His cause of action is not to be characterized to the jury as something it is not. At best it is argumentative. At worst it sets up a straw man, in the demolition of which plaintiff’s cause may fall as a by-product.
In view of what has been said, it should be unnecessary to write in detail of the manner in which the court should, upon the new trial, deal with defendants’ claim that this was an unavoidable “accident.” Unavoidable some such injury may have been (depending upon the adequacy of the barriers), once the hole was dug in the street in this neighborhood, and allowed to remain filled with water, but if so the unavoidability does not operate to relieve the defendants of liability, and such must be made clear to the jury by appropriate language in the charge.
Reversed and remanded for new trial. Costs to appellant.
Edwards, Kavanagh, and Souris, JJ., concurred with Smith, J.
Actually the plaintiff is “Boland W. Elbert, guardian of the estate of James Boland Elbert, a minor.”
Gesell and Ilg, Child Development, pp 177-201.
See Stewart v. Rudner, 349 Mich 459, 466.
Winfield, Duty in Tortious Negligence, 34 Columbia L Rev 41.
Harper and James, Torts, § 18.1, at p Í016.
Butrick v. Snyder, 236 Mich 300, 306.
See Green, The Duty Problem in Negligence Cases (pts. 1, 2), 28 Columbia L Rev 1014, 29 Columbia L Rev 255, reprinted in Green, Judge and Jury, eh 3.
Prosser, Torts (2d ed), § 50, at p 281.
Palsgraf, post, 248 NY 339, at p 345.
Prosser’s discussion is particularly helpful in this area. Prosser, Torts (2d ed), § 36.
See Lyshak v. City of Detroit, 351 Mich 230.
See Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120.
Palsgraf v. Long Island R. Co., 248 NY 339, 343, 344 (162 NE 99, 100, 59 ALR 1253, 1256).
Id., at p 345 (162 NE at p 101, 59 ALR at p 1257).
Palsgraf v. Long Island R. Co., 248 NY 339, at p 345 (162 NE at p 101, 59 ALR at p 1257) :
“The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances eould warn Mm. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.”
Clumfoot v. St. Clair Tunnel Co., 221 Mich 113.
Prosser, Torts (2d ed), § 44, at p 219.
Palsgraf v. Long Island R. Co., 248 NY 339, at p 346 (162 NE at p 101, 59 ALR at p 1258). | [
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Edwards, J.
Plaintiff, as guardian of the estate of an elderly lady now 85 years old, Mrs. Taylor,filed a bill of complaint to set aside a deed to a summer cottage at Higgins lake which she had executed to defendants. Aside from 2 grandchildren,, the defendants (2 nieces and a nephew-in-law) were Mrs. Taylor’s closest relatives. The property was valued at between $15,000 and $30,000. The consideration, over and above the family relationship, was an agreement to maintain the property, pay taxes, and take care of the old lady in case of need. Mrs. Taylor retained a life interest in the property. The balance of Mrs. Taylor’s estate totaled between $90,000 and $100,000.
The bill of complaint alleged mental incompetence, fraud, and undue influence. The circuit judge heard testimony from both sides and entered an opinion holding that none of these allegations had been proved.
On review de novo we also find that plaintiff’s proofs failed to establish these charges. There is not a line of testimony of actual fraud or undue influence. And the proofs relied on by plaintiff pertaining to mental incompetence are dubious also.
On the contrary, there is proof of execution of the deed and agreement and of Mrs. Taylor’s mental competence when she executed them. There is proof also that Mrs. Taylor had planned for a long time for the nieces to have this property and that she had decided upon this conveyance and agreement on the advice of an old and trusted friend — totally unrelated to defendants.
Appellant relies strongly upon Connor v. Harris, 258 Mich 670, 679, 677:
“It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.”
“The grantor was peculiarly under the care, control, and domination of defendant, who stood in a fiduciary relation to her, and obtained, without consideration, a large amount of property from grantor. Under such circumstances the burden of proof is upon defendant, to show the fairness and good faith of the transaction.”
Appellant claims that under the facts in this case, even if he did not carry the burden of proof as to fraud, lie didn’t need to; that the burden was on defendants.
We do not read tbe agreement in tbis case as so lacking in consideration or tbe relationship of tbe parties to be such as to invoke tbe Connor rule. Tbis record does not show that defendants bad any control over Mrs. Taylor. Defendants were logical objects of Mrs. Taylor’.s bounty. She retained a life estate in tbe property and there was good consideration for tbe fee. On these facts, we find no warrant for bolding that the burden of proof shifted from plaintiff to defendants.
Appellant also disputes a $500 legal fee ordered by tbe circuit judge for defendants’ counsel. Tbe controlling rule (Court Rule No 5, § 6 [1945]) authorizes $30. Tbe order must be modified in tbis regard.
Appellees call tbe Court’s attention to obvious deficiencies in appellant’s brief, requiring preparation and printing of a separate appendix. Under tbe provisions of Court Rule No 70, § 5, and in tbe particular and simple circumstances of tbis case (cf. Greenough v. Greenough, 354 Mich 508; Harden v. Widovich, 359 Mich 566, 361 Mich 422), appellees are allowed $250 damages against counsel for plaintiff. Daley v. Gruber, 362 Mich 366.
Affirmed as modified. Costs to appellees.
Dethmers, C. J., and Carr,' Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
See 347 Mieh xxx.—Repostes. | [
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] |
SERVITTO, P.J.
The prosecution appeals by leave granted the trial court’s order suppressing statements made by defendant on March 15, 2011, and June 8, 2011. We affirm the order suppressing both statements.
“This Court reviews de novo the trial court’s ultimate ruling on the defendant’s motion to suppress.” People v Brown, 279 Mich App 116, 127; 755 NW2d 664 (2008). If this Court’s “inquiry requires interpretation of the Michigan Rules of Evidence, an issue of law is presented, which this Court reviews de novo.” People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). The trial court’s findings of fact at a suppression hearing are reviewed for clear error. People v Chowdhury, 285 Mich App 509, 514; 775 NW2d 845 (2009).
Defendant was charged with one count of felony murder, MCL 750.316(l)(b); two counts of armed robbery, MCL 750.529; one count of assault with intent to murder, MCL 750.83; and one count of carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b, in connection with the robbery and shooting death of Megan Kreuzer on May 31, 2010. Defendant supplied a gun to two other men who planned the robbery. Defendant also witnessed the robbery, during which one of the other men shot and killed Kreuzer.
Defendant’s involvement was unknown until he was charged in another incident and advised his attorney in that case, Patricia Lazzio, that he had information concerning a homicide. Hoping to work out a favorable plea bargain in the pending case against him, Lazzio spoke with Assistant Prosecuting Attorney Richmond Riggs of the Genesee County Prosecutor’s Office and thereafter arranged a meeting with Sergeant Mitch Brown, the officer in charge of the homicide case, to discuss the instant matter. Lazzio, believing that defendant may have been a witness to the murder, elicited an agreement from Riggs that the information defendant provided at the meeting would not be used against him. At the March 15, 2011 meeting attended by Sergeant Brown, defendant, and Lazzio, defendant (to Lazzio’s surprise) admitted to providing a weapon to the individuals who planned the robbery of Kreuzer and then witnessing the shooting. Thereafter, defendant entered into a written plea agreement in the case pending against him. Defendant subsequently desired to schedule another meeting with Sergeant Brown because defendant questioned whether his attorney had secured the best possible plea agreement. Sergeant Brown and Lazzio both believed the plea agreement would not change, and Lazzio asked Sergeant Brown to tell defendant that the plea agreement would not improve. Nevertheless, the prosecutor’s office urged Sergeant Brown to meet with defendant again to see if he could obtain more information from defendant about the homicide.
As a result, a second interview between defendant, Lazzio, and Sergeant Brown took place on June 8, 2011. At that meeting, Sergeant Brown told defendant that he did not think that the plea agreement was going to get any better and that it was the prosecutor’s office that decided what plea deals to offer. Defendant and Sergeant Brown still continued to converse and defendant ultimately revealed further information about the robbery and homicide that implicated him more than he had originally admitted. Defendant was thereafter charged in the instant case.
Before trial, defendant orally moved to suppress the statements he had made at both the March 15, 2011 and June 8, 2011 meetings pursuant to MRE 410. The trial court conducted an evidentiary hearing to take testimony from those who had participated in the interviews and, at the conclusion of the hearing, the trial court suppressed both statements.
The prosecution conceded (and still concedes) that defendant’s March 15,2011 statement was inadmissible under MRE 410(4), as a statement made during plea discussions, but argues that MRE 410(4) does not apply to defendant’s June 8, 2011 statement. We disagree.
MRE 410 provides:
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Citing People v Dunn, 446 Mich 409, 415-416; 521 NW2d 255 (1994), the prosecution first contends that defendant’s expectation that the June 8, 2011 meeting would lead to a better plea agreement was unreasonable. In Dunn, our Supreme Court held that MRE 410 applies when (1) the defendant has “ ‘an actual subjective expectation to negotiate a plea at the time of the discussion,’ ” and (2) that expectation is reasonable “ ‘given the totality of the objective circumstances.’ ” Dunn, 446 Mich at 415, quoting United States v Robertson, 582 F2d 1356, 1366 (CA 5, 1978).
We note that the version of MRE 410 at issue in Dunn read as follows:
Inadmissibility of Pleas, Offers of Pleas, and Related Statements.
Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement. [Dunn, 446 Mich at 414 n 14 (citation and quotation marks omitted). See also People v Stevens, 461 Mich 655,661 n 4; 610 NW2d 881 (2000).]
Thus, the amendment of MRE 410 added a required element that the statement subject to exclusion must have been made in the course of plea discussions with an attorney for the prosecuting authority. In arguing that MRE 410 does not apply to the June 8, 2011 statement, the prosecution states that “[s]ince there was no attorney for the prosecuting authority present and since defendant had no reasonable basis to expect a second statement to result in further plea negotiations, the trial court erroneously applied MRE 410.” (Emphasis omitted.) However, the prosecution focuses its argument exclusively on whether defendant’s subjective expectation of obtaining further plea negotiations was reasonable, given Sergeant Brown’s and defendant’s own attorney’s statements to him that no better plea agreement would be obtained. The prosecution does not elaborate on its claim that there was no attorney present and did not even cite the prior language of MRE 410. “An appellant may not. .. give issues cursory treatment with little or no citation of supporting authority.” Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003). An appellant may also not merely announce a position and leave it to this Court to rationalize the basis for the claim, or elaborate the argument. Blackburne & Brown Mtg Co v Ziomek, 264 Mich App 615, 619; 692 NW2d 388 (2004). “An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.” Houghton, 256 Mich App at 339-340. We thus decline to address whether there was an attorney for the prosecuting attorney “present” during the June 8, 2011 meeting and whether that fact has any bearing on the admissibility of the challenged statement made during that meeting.
We specifically decline to address this issue not only because the prosecution abandoned it, but for additional reasons as well. First, although it has been established that no prosecuting attorney was physically present during the March 15, 2011 meeting between Sergeant Brown and defendant, the prosecution has nevertheless conceded that the March 15, 2011 statements were inadmissible under MRE 410. Clearly, then, the prosecution believes that the statements by defendant at the March 15, 2011 meeting were given “in the course of plea discussions with an attorney for the prosecuting authority” despite the absence of the physical presence of a prosecuting attorney during that meeting. For our purposes, and, we emphasize, in this particular case, then, the prosecution has conceded that a prosecuting attorney need not be physically present for statements to be deemed inadmissible under MRE 410. The prosecution has foreclosed review of this specific issue in this case by its concession.
Second, looking at MRE 410(4), the rule does not explicitly state that an attorney for the prosecuting authority must be physically present when the statement is made — and that is what the prosecution’s single statement on this issue provides: that an attorney was not physically present. Rather, under MRE 410(4) statements are admissible only when made “in the course of plea discussions with an attorney for the prosecuting authority .. . .” “In the course of” means “in the process of, during the progress of.” I Oxford English Dictionary (compact ed., 1971), p 1088. It is conceivable that a defendant may speak to persons other than an attorney for the prosecuting authority in the course of plea discussions. Indeed, a defendant may speak to persons, such as police officers, at the direction of an attorney for the prosecuting authority in the course of plea discussions, as it could be argued occurred here. Again, however, the precise meaning and application of this phrase (i.e., because pleas and plea offers can be withdrawn, whether plea negotiations are ever deemed concluded; whether a statement made to an agent of an attorney for the prosecuting authority is subject to suppression so long as it is made “in the course of” a defendant’s plea negotiations; who may act as an agent for an attorney for the prosecuting authority, etc.) for purposes of suppression under MRE 410, was not addressed by the prosecution. More importantly, this issue is far too significant and multifaceted to be decided without proper briefing by both parties. While this Court may review issues not properly raised or addressed by a party “if a miscarriage of justice will result from a failure to pass on them, or if the question is one of law and all the facts necessary for its resolution have been presented, or where necessary for a proper determination of the case,” Heydon v MediaOne of Southeast Mich, Inc, 275 Mich App 267, 278; 739 NW2d 373 (2007), to do so here would be to disregard the primary principle of our adversarial system by denying each party a full and fair opportunity to be heard. (Citations and quotation marks omitted.) We therefore leave the comprehensive interpretation of MRE 410(4) for an appropriate case that includes briefs, prepared by both parties, addressing the issue.
Returning to the parties’ reliance on Dunn and the prosecution’s argument that defendant had no reasonable expectation to believe that he would be negotiating a plea at the June 8, 2011 meeting, we would note that the version of MRE 410 in effect at the time Dunn was decided has no bearing on our Supreme Court’s analysis of when MRE 410 applies. Keeping in mind that the amended version of MRE 410 now requires that the statement sought to be excluded have been made in the course of plea negotiations with an attorney for the prosecuting authority, it would stand to reason that the defendant must still have an actual subjective expectation to negotiate a plea at the time of the discussion and that such expectation be reasonable under the totality of the circumstances. See Dunn, 446 Mich at 415. Not every requested or held discussion concerning plea negotiations will necessarily result in a plea deal. And simply because a defendant seeks to engage in a plea negotiation does not mean that the person to whom he is speaking (a prosecuting attorney or another person) would or must view any discussion with the defendant as a plea negotiation. There is, therefore, no reason to stray from the guidelines imposed by Dunn, despite the amendment of MRE 410. As a result, our analysis establishes no new rule of law, nor does it modify an existing rule of law.
The prosecution claims that the trial court essentially made a finding of fact that defendant’s belief that plea negotiations would take place at the June 8, 2011 meeting was not reasonable. In support of this claim, the prosecution cites the Court’s statement that “[t]here was very little discussion about whether a plea agreement was going to be altered and it was pretty apparent that it wasn’t.” We disagree with the prosecution and conclude that the trial court implicitly found that defendant’s expectation was reasonable.
In its closing statement to the trial court, the prosecution clearly cited the two-prong test from Dunn, 446 Mich at 415, and argued that defendant’s expectation was not reasonable. The trial court heard this argument and nonetheless granted defendant’s motion to suppress. Furthermore, the trial court said it did not see a difference between the initiation of the March 15, 2011 meeting and the initiation of the June 8, 2011 meeting. Both were requested by defendant in his attempts to get a better plea agreement. We conclude that this finding was not clearly erroneous. See Chowdhury, 285 Mich App at 514. In Dunn, 446 Mich at 415-416, our Supreme Court found that the defendant’s expectation was reasonable, stating:
Shortly after his arrest, Dunn initiated communication with the detectives for the express purpose of negotiating a plea bargain with the prosecutor. The detectives encouraged him to talk so they could discuss the possibility of a plea with the prosecutor. With the information supplied by Dunn, the detectives went to the prosecutor and obtained a warrant for the second phone call.
Similarly, defendant initiated the June 8, 2011 meeting by telling his attorney that he thought he should get a better plea deal. In response, Lazzio arranged the meeting with Sergeant Brown. Lazzio did ask Sergeant Brown to tell defendant that the deal was not going to get better. But, importantly, Sergeant Brown did not simply call defendant and tell him that the plea agreement was not going to improve or that he needed to talk to the prosecuting authority. Instead, Sergeant Brown spoke to the prosecuting authority and, with the prosecution’s urging, scheduled another meeting with defendant as requested. The prosecuting authority was involved in the process of scheduling the June 8, 2011 meeting, just as it was with the March 15, 2011 meeting, and directed Sergeant Brown to see what information he could obtain from defendant about the homicide, just as it had with the March 15, 2011 meeting. This was not a situation in which the prosecution took a hands-off approach after the March 15, 2011 meeting was held. Furthermore, all parties were well aware that defendant was specifically requesting the second meeting to see if he could negotiate a better plea agreement. In holding the meeting with the knowledge that defendant requested and would appear at the meeting in an attempt to negotiate a better plea deal, Sergeant Brown, at the prosecution’s direction, gave defendant a reasonable belief that plea negotiations would take place at the June 8, 2011 meeting — just as they had when defendant requested the March 15, 2011 meeting for purposes of negotiating a plea agreement.
At the meeting, Sergeant Brown did communicate to defendant that he did not believe the deal would get any better. Sergeant Brown also, however, told defendant that the decision was not his to make, but rather, a decision made by the prosecutor’s office. In addition, Sergeant Brown told defendant that he would “give this information to the Prosecutor and they would be very interested in hearing what you just told me.” This statement could also serve to bolster defendant’s belief that a potentially more promising plea agreement could be forthcoming.
Like the police officers in Dunn, 446 Mich at 415-416, Sergeant Brown encouraged defendant to talk by asking him questions about Megan Kreuzer’s homicide. In addition, Sergeant Brown implied that defendant could benefit from the additional information he was providing. By saying that the prosecution would be “very interested” in what defendant said, Sergeant Brown indicated that the prosecution might view defendant as a more valuable witness given the additional information, which could result in a better plea deal for him. Furthermore, from defendant’s perspective, the June 8, 2011 meeting was very similar to the March 15, 2011 meeting, which led to defendant’s initial plea agreement. Both were initiated by defendant. Both were attended by the same individuals — defendant, Lazzio, and Sergeant Brown. During both meetings, Sergeant Brown took notes, which defendant then reviewed and signed. Thus, it was reasonable for defendant to believe that his second meeting with Sergeant Brown would have a similar outcome as the first, and possibly benefit him in terms of a plea deal.
The “totality of the objective circumstances” further support the trial court’s finding that defendant’s expectation was reasonable. See Dunn, 446 Mich at 415. Defendant did not actually enter his plea on the record until June 9, 2011, the day after his June 8, 2011 meeting with Sergeant Brown. Before defendant entered his plea, defense attorney Lazzio told the judge in that case that there were two “tweaks” to the plea agreement. One of the “tweaks” was that defendant would not be charged in the Kreuzer case if he cooperated and testified truthfully and consistently with the statements he made to Sergeant Brown. The prosecutor agreed that was part of the agreement. Thus, Lazzio and the prosecutor made adjustments to the plea agreement even after defendant’s June 8, 2011 meeting with Sergeant Brown, and defendant heard that “tweaks” were being made to the agreement such that he could have had a reasonable belief that the plea discussions were still ongoing at that time.
Because we conclude that defendant’s June 8, 2011 statement was inadmissible under MRE 410(4), we need not consider whether the statement was also inadmissible because defendant was not advised of his Miranda rights.
Affirmed.
CAVANAGH, J., concurred with SERVITTO, PJ.
See People v Smart, unpublished order of the Court of Appeals, entered March 27, 2013 (Docket No. 314980).
Miranda v Arizona, 384 US 436, 444-445; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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PER CURIAM.
Plaintiffs, Macomb County Department of Human Services (DHS) and Jessica Glambin (Glambin), appeal as of right an order dismissing plaintiffs’ claim against defendant, Keith Anderson, in this child support enforcement action brought under the Family Support Act, MCL 552.451 et seq. Finding that the trial court erred by dismissing the action for Glambin’s failure to appear at the evidentiary hearing on plaintiffs’ motion for a default judgment of support, we vacate the order of dismissal and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiffs filed a verified complaint for support against defendant. The complaint alleged that defendant did not five with the minor child but had acknowledged that he was the father. It further alleged that defendant had the ability to provide support for the child.
A default was entered against defendant for his failure to respond to the summons and complaint and thereafter plaintiffs filed a motion for a default judgment. At the hearing on plaintiffs’ motion, the assistant prosecuting attorney was present on behalf of DHS; however, Glambin and defendant failed to appear. The following exchange took place:
The Court: Is Jessica Glambin in the courtroom, please.
Ms. Kirschner: Beth Naftaly Kirshner, assistant prosecuting attorney on behalf of plaintiff.
This is circuit court file number 2012-1202-DS. Excuse me. We’re asking that you enter a default judgement [sic] of support in this matter.
The defendant was personally served by our investigator on March 23rd of 2012. He failed to appear for a support interview in June. A default was entered on June 14th, notice of this hearing, along with a copy of the proposed judgement [sic] were mailed to him on July 27th of 2012. Because he failed to appear, on behalf of DHS and the plaintiff, we’re asking that you enter an order in the amount of $403, effective February 27, 2012.
The Court: This matter was set for 9:00 a.m. Plaintiff, Jessica Glambin, having failed to appear, as well as the respondent, defendant, Keith Anderson, the Court’s going to decline the request to enter the support order today, dismiss the matter without prejudice.
Ms. Kirshner: Again, for the record, I would indicate that we contract with DHS for [Title IV-D] services and we would ask that you enter on behalf of DHS, whether the plaintiff is cooperative or not.
The Court: Thank you. Your request is respectfully denied.
Plaintiffs filed a motion for reconsideration, arguing that the court erred by dismissing plaintiffs’ case on the basis of Glambin’s failure to appear. Plaintiffs argued that, pursuant to MCL 552.452, Glambin was not required to he present at the hearing. Plaintiffs requested that the case be reinstated and that a default judgment of support be entered as originally requested.
The trial court denied the motion for reconsideration, finding no palpable error. The trial court explained its ruling:
The Prosecutor relies on MCL 552.452, which provides in part that:
(1) Upon the hearing of the complaint, in the manner of a motion, the court may enter an order as it determines proper for the support of the petitioner and the minor child ...[.]
While Glambin’s presence at the hearing was not technically required under the statute, the Court still had the discretion to deny the Prosecutor’s motion to enter the default Judgment of Support for her failure to appear inasmuch as the statute uses the permissive term “may” with respect to the Court’s obligation to enter a support order.... The Court points out that Glambin failed to appear despite having been given notice that the hearing was set for September 24, 2012 at 9:00 A.M.
MCL 552.452 also provides that:
(4) If there is no dispute regarding a child’s custody, the court shall include in an order for support issued under this act specific provisions governing custody of and parenting time for the child in accordance with the child custody act of 1970,1970 PA 91, MCL 722.21 to 722.31... [.]
The proposed Judgment of Support contained specific provision's awarding sole custody to Glambin and reasonable parenting time to Anderson. In that both parties failed to appear at the hearing, the Court was unable to determine whether there was a dispute with regard to the child’s custody.
Therefore, the verified complaint for support remained dismissed without prejudice. Plaintiffs now appeal as of right.
II. ANALYSIS
On appeal, plaintiffs argue that the trial court erred when it denied their motion for reconsideration. We agree. We review for an abuse of discretion a trial court’s decision on a motion for reconsideration. Sherry v East Suburban Football League, 292 Mich App 23, 31; 807 NW2d 859 (2011). An abuse of discretion occurs if the trial court’s decision falls outside the range of principled outcomes. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 630; 750 NW2d 228 (2008).
MCR 2.119(F)(3) provides:
Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.
The rule does not categorically prevent a trial court from revisiting an issue even when the motion for reconsideration presents the same issue already ruled on; in fact, it allows considerable discretion to correct mistakes. In re Moukalled Estate, 269 Mich App 708, 714; 714 NW2d 400 (2006). We conclude that the trial court abused its discretion when it denied plaintiffs’ motion for reconsideration. In so doing, the trial court failed to correct its original error in dismissing the complaint on the basis of Glambin’s failure to appear at the hearing on plaintiffs’ motion for a default judgment.
Resolution of this case rests on our interpretation of provisions in the Family Support Act. We review de novo issues of statutory interpretation. Lenawee Co v Wagley, 301 Mich App 134, 167; 836 NW2d 193 (2013). “A court’s primary purpose in interpreting a statute is to ascertain and effectuate legislative intent.” Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d 35 (2011). “The words contained in a statute provide us with the most reliable evidence of the Legislature’s intent.” Green v Ziegelman, 282 Mich App 292, 301; 767 NW2d 660 (2009). For that reason, “[i]f the language is clear and unambiguous, the statute must be enforced as written without judicial construction.” Petipren v Jaskowski, 494 Mich 190, 201-202; 833 NW2d 247 (2013).
“Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989). “The Family Support Act ... attempts to keep the public from having to support children whose parents are able to provide some financial support.” Witt v Seabrook, 210 Mich App 299, 302; 533 NW2d 22 (1995). MCL 552.451b specifically provides:
The director of social services or his or her designated representative or the director of the county department of social services of the county where the custodial parent or minor child or children or child or children who have reached 18 years of age reside or the director’s designated representative may proceed in the same manner and under the same circumstances as provided in sections 1 and la [MCL 552.451 and MCL 552.451a] against the noncusto dial parent for the support of the custodial parent and minor child or children or child of children who have reached 18 years of age if the custodial parent and minor child or children or child or children who have reached 18 years of age or any of them are being supported, in whole or in part, by public assistance under the social welfare act, Act No. 280 of the Public Acts of 1939, as amended, being sections 400.1 to 400.121 of the Michigan Compiled Laws. The burden of proof shall be the same as provided in section 2 [MCL 552.452].
Thus, the statutory scheme “permits actions for child support against a noncustodial parent by either a custodial parent or the director of social services (now the director of the Family Independence Agency) if the child is supported by public assistance.” LME v ARS, 261 Mich App 273, 279-280; 680 NW2d 902 (2004), citing MCL 552.451a and MCL 552.451b (original emphasis omitted; new emphasis added). In such actions, “the prosecuting attorney shall act as the attorney for the petitioner.” MCL 552.454(1).
At issue in this case is the trial court’s interpretation of MCL 552.452(1) and (4), which provide, in relevant part:
(1) Upon the hearing of the complaint, in the manner of a motion, the court may enter an order as it determines proper for the support of the petitioner and the minor child or children of the parties as prescribed in section 5 of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605. The order shall provide that payment shall be made to the friend of the court or the state disbursement unit. If the parent complained of opposes the entry of the order upon the ground that he or she is without sufficient financial ability to provide necessary shelter, food, care, clothing, and other support for his or her spouse and child or children, the burden of proving this lack of ability is on the parent against whom the complaint is made....
(4) If there is no dispute regarding a child’s custody, the court shall include in an order for support issued under this act specific provisions governing custody of and parenting time for the child in accordance with the child custody act of 1970, 1970 PA 91, MCL 722.21 to 722. 31. If there is a dispute regarding custody of and parenting time for the child, the court shall include in an order for support issued under this act specific temporary provisions governing custody of and parenting time for the child. Pending a hearing on or other resolution of the dispute, the court may refer the matter to the office of the friend of the court for a written report and recommendation as provided in section 5 of the friend of the court act, 1982 PA 294, MCL 552.505. In a dispute regarding custody of and parenting time for a child, the prosecuting attorney is not required to represent either party regarding the dispute.
In denying plaintiffs’ motion for reconsideration, the trial court explained that it was “unable to determine whether there was a dispute with regard to the child’s custody,” referring to MCL 552.452(4). However, defendant failed to respond to the allegations in plaintiffs’ verified complaint, rendering the allegations true. “It is an established principle of Michigan law that a default settles the question of liability as to well-pleaded allegations and precludes the defaulting party from litigating that issue.” Wood v DAIIE, 413 Mich 573, 578; 321 NW2d 653 (1982). Therefore, custody was not “in dispute” at the time of the default hearing; in fact, the record reflects that custody was completely uncontested. Moreover, MCL 552.452(4) specifically provides for the issuance of a support order even if there is a custody dispute.
The trial court further cited the permissive use of the phrase “may enter an order” in MCL 552.452(1) as justification for refusing to enter a support order. However, there is nothing in the plain language of the statute requiring the custodial parent to appear at the hearing. In fact, MCL 552.454(1) specifically provides that “the prosecuting attorney shall act as the attorney for the petitioner,” lending further support to the idea that a custodial parent’s presence is unnecessary. And while the prosecuting attorney admits that he does not represent individuals as plaintiffs in support actions, it certainly represents the interests of both the DHS and the public in ensuring that non-custodial parents with the ability to provide financial support do so if their children are receiving public assistance. Requiring the custodial parent’s presence at a hearing under MCL 552.452 could potentially impede the DHS’s statutory right to seek support from a noncustodial parent if the custodial parent is uncooperative.
We find instructive the case of Arnett v Arnett, 98 Mich App 313; 296 NW2d 609 (1980), wherein the plaintiff, the child’s custodial parent, filed an action for support against the defendant, who was the noncustodial parent. As here, “[t]he complaint [was] a form, presumably prepared by the prosecutor’s staff or the Jackson County Department of Social Services, with blanks filled in by a typewriter, except for the signatures of the plaintiff, an assistant prosecuting attorney, and a notary public.” Id. at 314. The defendant did not file an answer to the complaint, but appeared at the evidentiary hearing. “The record [was] silent as to whether or not the plaintiff appeared at the hearing.” Id. At the hearing, the prosecutor intended to question the defendant about his ability to pay, but the trial court insisted that the prosecutor first adduce proof of the marriage and paternity. When the prosecutor declined to do so, the trial court dismissed the action, finding that without information regarding marriage and paternity it lacked jurisdiction to grant relief. Id. at 314-315. This Court expressed its confusion:
Although the [trial court’s] order [of dismissal] seems to telegraph a Serafín[ ] issue by the words “establish a right to support from the defendant by questioning of the defendant”, it would be clear error to preclude the plaintiff herself from giving such testimony. So we are left with a bundle of surmises. Was the plaintiff uncooperative and/or unavailable? Was the defendant, though in default, unlettered, unrepresented? Was the defendant denying paternity? Were court and counsel involved in a procedural contest? Were court and counsel desirous of an appellate court precedent on the matter?
It is such a tempest in a teapot that we are engaged in what amounts to a declaratory proceeding, but we will declare, [/d. at 315-316.]
This Court then cited MCL 552.451 and MCL 552.452 and noted that “[t]he fact that the [Family Support] [A]ct requires filing of a verified complaint rather than a complaint accompanied by a supporting affidavit of facts, and that the complaint be heard in the manner of a motion demonstrates a legislative intent to provide an expeditious procedure for obtaining child support orders.” Arnett, 98 Mich App at 317. And, because the defendant offered no responsive pleading, “the claim or demand of the opposing party stands admitted, and judgment by default may be entered upon proof of damages.... Because plaintiffs allegations were ad mitted, and, therefore, not at issue before the court, the court certainly could have accepted as fact the marriage and paternity information submitted under oath in her verified complaint.” Id. (citations omitted). Nevertheless, “examination into defendant’s financial status was necessary, despite his failure to respond to the complaint.” Id. This Court concluded that the prosecutor should have been permitted to cross-examine the defendant on his ability to pay without first proving the existence of a marriage or paternity. Id. at 317-318.
Similarly here, given defendant’s failure to respond to plaintiffs’ complaint, the allegations therein were deemed admitted, including Glambin’s claim that custody was not in dispute. Had defendant appeared at the evidentiary hearing, he may have been permitted to present evidence that he did not have the ability to pay and it would have been his burden to do so. Absent such a claim, his ability to pay was likewise deemed admitted and otherwise uncontested. Moreover, as seen in Arnett, the custodial parent need not attend the hearing in order for the trial court to enter an order of support. The Arnett Court had no trouble resolving the. issue before it, even absent proof that the custodial parent attended the hearing. The trial court erred when it dismissed the complaint on the basis of Glambin’s failure to appear at the hearing on plaintiffs motion for a default judgment. Consequently, the trial court abused its discretion by denying the motion for reconsideration.
Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
BORRELLO, EJ., and WHITBECK and K. F. KELLY, JJ., concurred.
We also note that defendant established paternity by way of an affidavit of parentage. In such situations, “[t]he mother has initial custody of the child, without prejudice to the determination of either parent’s custodial rights, until otherwise determined by the court or agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.” (Department of Community Health Form DCH-0682.) Defendant has made no attempt to challenge the parties’ custody arrangement.
Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977) (permitting husband and wife to rebut the presumption that a child born during the marriage was an issue of the marriage). | [
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MURRAY, J.
This appeal arises from litigation between plaintiff, Wells Fargo Bank, and defendant, Country Place Condominium Association, regarding unpaid condominium association fees. After considering the parties’ competing motions for summary disposition, the circuit court entered a judgment ordering plaintiff to pay defendant $15,597.90, an amount representing con dominium assessments and late fees for one condominium unit between March 8, 2011, and April 30, 2013, as well as attorney fees and costs. For the reasons that follow, we affirm.
I. FACTS AND PROCEEDINGS
The legal dispute started when plaintiff filed a three-count complaint against defendant requesting the removal of a condominium lien that defendant had filed concerning a condominium unit in Northville. According to the complaint, plaintiff had “acquired its title interest in the unit by virtue of foreclosing its first mortgage on the property” and obtaining a sheriffs sale deed “dated March 8, 2011,” which plaintiff recorded on March 15, 2011. The complaint stated that plaintiffs interest in the condominium vested after the close of the redemption period on September 8, 2011. The complaint recounted that on September 20, 2011, defendant recorded an amended notice of a “lien for non-payment of condominium assessments” in the amount of $8,456.05, which identified plaintiff as the responsible owner of record. (Emphasis omitted.)
Plaintiff asserted that it was not responsible for association fees or attorney fees until after September 8, 2011, because under MCL 559.158 “the successors and assigns of the Sheriff Deed from a foreclosure of the first mortgage on a condominium unit, takes free and clear of all condominium liens and unpaid assessments as of the date of acquisition of title.” Plaintiff further maintained that defendant had refused to discharge its recorded lien, which “constituted a cloud upon” plaintiff’s title.
Defendant filed a countercomplaint alleging that it “duly levied assessments against” the condominium pursuant “to MCL 559.169 and the Condominium Bylaws . . . .” According to the countercomplaint, when plaintiff acquired its interest in the condominium, it neglected to seek from defendant a statement outlining any “unpaid assessments, interest, late charges, fines, costs, and attorney fees” that the condominium seller owed, as authorized by MCL 559.211(2). The counter-complaint added that plaintiff had defaulted on its duty to pay the outstanding assessments on the condominium of $10,840.80, $1,000 for late charges, and $4,086.71 in legal fees and costs. The countercomplaint requested the entry of a foreclosure judgment or money judgment against plaintiff for the unpaid assessments and an award of costs and attorney fees to defendant.
Because both pleadings raised purely legal issues, the parties filed competing motions for summary disposition. The parties agreed that plaintiff purchased the property at a March 8, 2011 sheriffs sale and recorded its sheriffs deed on March 15, 2011, and that defendant recorded its condominium lien against plaintiff on September 20, 2011. It was likewise undisputed that the prior owner of the condominium did not redeem the property.
After considering the parties’ briefs and oral presentations, the court entered a thorough, well-written opinion and order deciding the motions. In its opinion, the court observed that the parties had premised their contentions on undisputed facts, and that the central issue of when the association fees were attributable to plaintiff was an issue of first impression. The court first held that plaintiff was not responsible for association fees assessed prior to when it acquired title to the condominium:
We are left with an apparent conflict that both parties acknowledge is unresolved by any published caselaw. First, [MCL 559.158] specifically states that the foreclosing mortgagee (Plaintiff in this case) is not liable for fees “prior to the acquisition of title.” On the other hand, under [MCL 559.211], Plaintiff, if considered a purchaser in the “sale or conveyance of a condominium unit,” is liable for “any unpaid assessments against the condominium unit together with interest, costs, fines, late charges, and attorney fees incurred in the collection thereof.”
Based on the plain language of the statutes, read in whole, the Court concludes that Section 158 controls for two reasons. First, the language of Section 158 is unconditional that the foreclosing mortgagee is not liable for any assessments prior to taking title. The statute does not state that this section applies except as provided in Section 211, nor is there any qualifying language. Had the legislature intended to except a Section 211 situation, it would have so provided. As a result, under the plain terms of the statute, Plaintiff, as the mortgagee of the first mortgage, is not liable to pay any fees or other costs that were chargeable prior to taking title.
Second, Section 211 does not apply because the Court finds that. . . assignment of the mortgage to Plaintiff [by Mortgage Electronic Registration Systems, Inc. (MERS)] is not a “sale or conveyance of a condominium unit” as provided in MCL 559.211(1). MERS did not sell or convey “the condominium unit” to Plaintiff. Rather, MERS simply assigned its interest in the mortgage to Plaintiff. Michigan Courts have long held that “[a]n assignee stands in the shoes of the assignor and acquires the same rights as the assignor possessed.” [First of America Bank v Thompson, 217 Mich App 581, 587; 552 NW2d 516 (1996)]. Just like MERS, Plaintiff possessed no right to sell or convey the condominium unit until after the foreclosure sale and redemption period expired. Only then, did Plaintiff have such right. Because MERS did not possess the right to sell the condominium unit, no such sale took place.
That conclusion did not end the inquiry, however. The court then moved on to a consideration of when plaintiff acquired title to the condominium, ultimately holding that it was on March 8, 2011, the date it purchased the property at the sheriffs sale:
The next issue is what date constitutes “acquisition of title” within the meaning of Section 158. Again, this term is not defined by the statute, and there appears to be no caselaw defining the same. Merriam-Webster defines “acquire” as “to get as one’s own” or “to come into possession or control of often by unspecified means.” On March 8, 2011, Plaintiff was the purchaser of said property at the Sheriffs Sale. On that date, Plaintiff came into possession or control of the unit.
Defendant also argues that Plaintiff took possession on March 8, 2011. Citing Gerasimos v Continental Bank, 237 Mich 513, 519; 212 NW 71 (1927), Defendant argues that [the prior owner’s] right to redeem the property was not an interest in the land. Rather, “the right of redemption is ... a mere personal privilege given by statute to the mortgagor after the land has been sold under the mortgage.” Id. at 518-519. As a result, [the prior owner’s] right to redemption was not an actual, present interest in the land unless and until she exercised that right — which, she did not. As a result, the only party with an interest in the land was Plaintiff.
In response, Plaintiff cites Ruby & Assocs, PC v Shore Fin Servs, 276 Mich App 110; 741 NW2d 72 (2007) [vacated in part on other grounds 480 Mich 1107 (2008)] for the notion that title vests upon expiration of the redemption period. Plaintiffs reliance on Ruby, however, is misplaced because it actually supports Defendant’s argument. The Ruby Court reasoned:
The legal operation and effect of the sheriffs deed ultimately depends on the mortgagor’s exercise of this right of redemption. “A purchaser’s deed is void if the mortgagor . . . redeems” the premises by tendering amounts owing within the applicable statutory window. If not redeemed within this time frame, the deed becomes “opera tive,” vesting in the grantee “all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage . . . .” Id. at 117-118 (internal citation omitted).
Under Ruby, because [the prior owner] did not exercise her right to redemption, Plaintiffs Sheriffs Deed dated March 8, 2011 was not voided, and Plaintiffs fee simple interest in the property relates back to that day. As a result, Plaintiff is the co-owner of the condominium unit and is responsible for paying the sums assessed by the owners’ association under MCL 559.208(1).
As a result of these conclusions, the trial court dismissed plaintiffs claims of slander of title and recording of documents with intent to harass, and entered a final judgment in favor of defendant.
II. ANALYSIS
Plaintiff’s main challenge to the trial court’s holding is based on the premise that under Michigan law a sheriff’s deed to a condominium purchased at a foreclosure sale does not convey full title to the property until the original purchaser’s right of redemption expires. Under that theory, the prior condominium owner’s right of redemption expired in September 2011, which then triggered plaintiff’s fee obligations. As a result, plaintiff argues, the circuit court incorrectly held plaintiff responsible for association dues that accrued beginning on March 8, 2011. We conclude otherwise. The trial court’s ruling was correct because under Michigan law the purchaser of a sheriff’s deed acquires a particular title to the property: an equitable title. And, once the right to redemption is not exercised, that equitable title automatically becomes full legal title that is effective back to the date of the sheriff’s sale.
A. STANDARDS OF REVIEW
This Court reviews de novo a circuit court’s decision on cross-motions for summary disposition. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim and should only be granted if: (1) the pleadings fail to state a claim on which relief may be granted and (2) no factual development could justify the claim for relief. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).
A motion for summary disposition pursuant to MCR 2.116(C)(9) tests the sufficiency of the defendant’s pleadings, and is appropriately granted where the defendant has failed to state a valid defense to a claim. A defense to a claim is invalid for the purposes of MCR 2.116(C)(9) when the defendant’s pleadings are so clearly untenable that as a matter of law no factual development could possibly deny the plaintiffs right to recovery. [Payne v Farm Bureau Ins, 263 Mich App 521, 525; 688 NW2d 327 (2004) (quotation marks and citations omitted).]
Instead of challenging the pleadings themselves, a motion brought pursuant to MCR 2.116(0(10) “tests the factual support of a plaintiffs claim,” Walsh, 263 Mich App at 621, and should be granted if no genuine issue of material fact exists “and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(0(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at 621. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469 Mich at 183.
The parties’ competing motions for summary disposition involved underlying issues of statutory construction, which this Court considers de novo. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). The Whitman Court reiterated the primary rules governing statutory construction:
When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Id. at 311-312 (citations omitted).]
B. THE MERITS
The circuit court concluded that, pursuant to MCL 559.158, plaintiffs obligation for unpaid condominium assessments began when plaintiff acquired title to the condominium unit on March 8, 2011. The entirety of MCL 559.158 reads:
If the mortgagee of a first mortgage of record or other purchaser of a condominium unit obtains title to the condominium unit as a result of foreclosure of the first mortgage, that mortgagee or purchaser and his or her successors and assigns are not liable for the assessments by the administering body chargeable to the unit that became due prior to the acquisition of title to the unit by that mortgagee or purchaser and his or her successors and assigns. [Emphasis added.]
The circuit court correctly observed that neither MCL 559.158, nor any other section of the Condominium Act, MCL 559.101 et seq., defines the phrase “acquisition of title” to the unit. Nor, as the trial court noted, is there any caselaw examining the meaning of that phrase.
Because there is no statutory definition of the phrase “acquisition of title” under MCL 559.158, the circuit court properly resorted to a dictionary, Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012), which defines “acquire” as “to come into possession or ownership of; get as one’s own.” Random House Webster’s College Dictionary (1996). “Title” has a particular legal meaning, and is defined in Black’s Law Dictionary (7th ed) as “[t]he union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself....” It is also defined as the “[l]egal evidence of a person’s ownership rights in property; an instrument (such as a deed) that constitutes such evidence.” Id. The circuit court concluded that plaintiff had come “into possession or control of the unit” on March 8, 2011, when it obtained a sheriffs deed to the unit at the foreclosure sale. It was correct.
The circuit court’s analysis and conclusion were consistent with the plain language of the statute, MCL 559.158, and caselaw from our Supreme Court that explains the nature of the title obtained at a sheriffs sale. First, the statute. As noted in the preceding paragraph, “acquire” means coming into possession or control of something, while “title” means the legal evidence of a person’s ownership of a certain parcel of land, usually denoted by a deed. Therefore, as a result of the sale, plaintiff did come into “possession or control of” title to the unit, for it obtained and recorded a deed to the property that afforded it an ownership interest in that property.
Importantly, that ownership interest takes the form of an equitable title that is capable of being sold or assigned. For, according to the Court in Dunitz v Woodford Apartments Co, 236 Mich 45, 49; 209 NW 809 (1926), after the sheriffs sale “the purchaser becomes the owner of an equitable interest in the mortgaged premises,” which is “an interest or title, equitable in character,” that becomes absolute once the redemption period expires. Importantly, the Dunitz Court pointed out that the sheriffs deed purchaser can sell or assign the equitable title interest during the redemption period. Id. at 49-50. See also Gerasimos v Continental Bank, 237 Mich 513, 518-520; 212 NW 71 (1927). Thus, plaintiff did obtain an equitable title that conveyed an ownership interest in the property that was capable of being assigned or sold. See also In re Young, 48 BR 678, 681 (Bankr ED Mich, 1985) (“A foreclosure sale does effect a transfer of title: equitable title.”). As we have previously stated, a “[foreclosure causes equitable title to vest in the purchaser, while legal title remains in the mortgagor until the redemption period expires.” Ruby, 276 Mich App at 118.
It is true, as plaintiff points out, that the original mortgagor could physically remain in the condominium during the foreclosure period, as she still had legal title for the unit. Ruby, 276 Mich App at 118. But that fact does not alter our analysis of whether the sheriffs deed purchaser acquires title prior to expiration of the redemption period, as the statute only speaks in terms of a “title,” and “absolute title” is a separately defined term. See Black’s Law Dictionary (7th ed), p 1493 (defining “absolute title” as “[a]n exclusive title to land; a title that excludes all others not compatible with it”). Thus, contrary to plaintiffs argument, the statute does not require that the purchaser have “absolute title,” just a “title,” and an equitable title is a form of title. Dunitz, 236 Mich at 49.
Plaintiff contends that “the concept of relation back has nothing to do with the vesting date, but is merely a legal fiction/doctrine to show a continuity of title,” and cites Whipple v Farrar, 3 Mich 436 (1855), and Clark v Hall, 19 Mich 356 (1869), in support of that proposition. Our analysis of the statute is not reliant upon the relation-back doctrine. Nevertheless, it is true that the Supreme Court has repeatedly stated that once the redemption period expires, legal title to the property becomes “absolute” and relates back to the date of the purchase at the sheriffs sale. Dunitz, 236 Mich at 49; Sanford v Cahoon, 63 Mich 223, 226; 29 NW 840 (1886); Stout v Keyes, 2 Doug 184, 187 (Mich, 1845). Conse quently, the purchaser at the sheriffs sale is shown as the legal title owner on the day of the sale once the original mortgagor loses the opportunity to redeem. In other words, once the redemption period expires without any redemption, it is as if the purchaser had absolute legal title since the purchase date. Although we need not rely upon it, that general proposition supports our conclusion that plaintiff did obtain a “title” during the redemption period, though it was not an absolute legal title until after there was no redemption. Thus, when defendant filed a lien for unpaid assessments and fees after expiration of the redemption period, plaintiff was on record at that time as being the absolute title holder.
In light of the foregoing, we hold that plaintiff acquired title to the unit on March 8,2011. Though that title was not absolute legal title until after expiration of the redemption period, plaintiff nonetheless had possession of a legal interest in the unit during the redemption period in the form of an equitable title.
Plaintiff also cites In re Receivership of 11910 South Francis Rd, 492 Mich 208, 222-223; 821 NW2d 503 (2012), a recent decision interpreting MCL 600.3236, the current provision that “describes the legal effect of a sheriffs deed obtained at a foreclosure sale upon the expiration of the applicable redemption period”:
The first clause under this provision describes the legal effect and operation of a deed upon the mortgagor’s failure to exercise its statutory right of redemption following foreclosure. The first clause of MCL 600.3236 makes plain that if property is not redeemed within the applicable statutory window, then the deed becomes “operative,” vesting in the grantee “all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage!.]”
In re Receivership is not inconsistent with Stout or Sanford. Those decisions clarify that the title held by the purchaser of a sheriffs deed at a foreclosure sale is an equitable one that can be sold or assigned, and that once no redemption occurs, it becomes an absolute title (as stated above in In re Receivership) that relates back to the sale date. Because plaintiff undisputedly obtained a sheriffs deed at a March 8, 2011 foreclosure sale, the circuit court properly ruled as a matter of law that under these undisputed facts plaintiff acquired title for purposes of MCL 559.158 on that same date.
Turning now to the specific tort claims, plaintiff argues that defendant’s maintenance of the condominium assessments lien even after plaintiff completed its foreclosure on the unit was unlawful and slanderous. According to plaintiff, defendant’s September 2011 amendment of the lien, which sought association fees extinguished by plaintiffs mortgage foreclosure, qualified as another slander of plaintiffs title. We conclude, as did the circuit court, that because defendant possessed an honest belief in the validity of its claim for the unpaid condominium association fees and advocated for a reasonable interpretation of the statutes, plaintiffs slander of title claims fail as a matter of law.
A common-law slander of title claimant “must show falsity, malice, and [pecuniary damages or] special damages, i.e., that the defendant maliciously published false statements that disparaged a plaintiffs right in property, causing special damages.” B&B Investment Group v Gitler, 229 Mich App 1, 8; 581 NW2d 17 (1998). “The same three elements are required in slander of title actions brought under MCL 565.108.” Id. The third count of plaintiffs complaint sought damages under MCL 600.2907a, which contemplates liability for a “person who violates . .. [MCL 565.25] ... by encum bering property through the recording of a document without lawful cause with the intent to harass or intimidate any person .. .
“[T]he crucial element is malice.” Gehrke v Janowitz, 55 Mich App 643, 648; 223 NW2d 107 (1974). A slander of title claimant must show some act of express malice, which “implies a desire or intention to injure.” Glieberman v Fine, 248 Mich 8, 12; 226 NW 669 (1929). “Malice may not be inferred merely from the filing of an invalid lien; the plaintiff must show that the defendant knowingly filed an invalid lien with the intent to cause the plaintiff injury.” Stanton v Dachille, 186 Mich App 247, 262; 463 NW2d 479 (1990). A plaintiff may not maintain a slander of title claim if the defendant’s “claim under the mortgage [or lien] was asserted in good faith upon probable cause or was prompted by a reasonable belief that [the defendant] had rights in the real estate in question . .. .” Glieberman, 248 Mich at 12.
Defendant asserted its entitlement to summary disposition on its countercomplaint because plaintiff had not stated a valid defense and concededly had made no payments toward the outstanding assessments or related expenses and fees on plaintiff’s unit. Defendant theorized that (1) plaintiff was responsible for all assessments arising after it obtained title to the unit on March 8, 2011, the date of the sheriffs deed; and (2) plaintiff was responsible for preforeclosure assessments pursuant to MCL 559.211 because the foreclosure sale qualified as a conveyance under MCL 559.211(1) and MCL 565.35, and MCL 559.211(1) obligated a condominium purchaser to pay all outstanding assessments and related expenses and fees due from the purchase date. Defendant also noted that plaintiff failed to seek a written statement of association-related amounts due under MCL 559.211(2), and that subsection (2) pro vided that when a condominium purchaser failed to make this request, the purchaser became liable for all unpaid assessments and related expenses and fees.
Prior to our opinion today, only one published decision had addressed MCL 559.211, Coventry Parkhomes Condo Ass’n v Fed Nat’l Mtg Ass’n, 298 Mich App 252, 261-263; 827 NW2d 379 (2012). In that decision we rejected an argument nearly identical to one of defendant’s theories in this case: the plaintiffs assertion “that under MCL 559.211, [the defendant] is liable to [the plaintiff] for all unpaid assessments, interest, late charges, fines, costs, and attorney fees because [the defendant] is a ‘purchaser’ under MCL 565.34.” Id. at 261. Initially, this Court noted that while MCL 565.34 defined “ ‘purchaser’ as including an assignee of a mortgage,” that definition did not extend beyond the chapter containing MCL 565.34, and thus did not apply to the Condominium Act. Id. We then concluded:
Plainly, MCL 559.211 addresses liability for unpaid assessments, interest, late charges, fines, costs, and attorney fees “[u]pon the sale or conveyance of a condominium unit[.]” MCL 559.211(1). The present case does not involve the sale or conveyance of a condominium unit; rather, it involves [the defendant’s] obtainment of a security interest in a condominium unit through the assignment of a mortgage. MCL 559.211 does not apply to an assignment of a mortgage of a condominium unit because it deals with the conveyance of a coowner’s interest and not a mortgagee’s interest. [Zci. at 262-263 (alterations in original).]
Although Coventry Parkhomes Condo Ass’n tends to undercut one theory that defendant espoused in the circuit court, this Court issued its decision in Coventry Parkhomes Condo Ass’n on October 25, 2012, which was after defendant filed its countercomplaint in December 2011, after defendant pursued summary dispo sition beginning in June 2012, and after the circuit court entered its summary disposition ruling in August 2012.
The circuit court properly dismissed plaintiffs complaint pursuant to MCR 2.116(C)(10) on the basis of plaintiffs failure to prove malice because (1) no binding authority undermined defendant’s legal contentions in the circuit court, (2) defendant’s proffered positions in the circuit court rested on arguably rational interpretations of the Condominium Act, and (3) no other evidence of malice as a basis for defendant’s conduct in enforcing its lien exists in the record. With respect to defendant’s countercomplaint, because the parties do not dispute that plaintiff made no payments toward the unpaid assessments on its unit, the circuit court’s grant of summary disposition was proper under MCR 2.116(0(10).
Affirmed.
No costs to either party, a question of public importance being involved. MCR 7.219(A).
HOEKSTRA, RJ., and RlORDAN, J., concurred with Murray, J.
The specific counts in the complaint were common-law slander of title, statutory slander of title, and recording of documents with intent to harass.
See Vodvarka v Grasmeyer, 259 Mich App 499, 510; 675 NW2d 847 (2003) (courts may use legal dictionaries to define words that have a particular legal meaning).
We note that the Legislature has used the term “absolute title” in many different statutes, see MCL 124.759(3) and (12), MCL 211.78b, MCL 211.78c, MCL 211.78f through MCL 211.78h, MCL 211.78j, MCL 211.78k, MCL 211.78m, MCL 213.122, and MCL 322.551 as examples, but chose not to use that specific term in this statute. Thus, we interpret “title” to mean the broader definition of title as found in the dictionary, rather than the more specific type (absolute title) specified by the Legislature in other statutes. See TMW Enterprises Inc v Dep’t of Treasury, 285 Mich App 167, 176; 775 NW2d 342 (2009).
However, Whipple, 3 Mich at 447-448, actually contains no references to the relation-back doctrine. In Clark, 19 Mich at 372-373, the Court declined to apply the doctrine in the context of a title dispute partially dependent on a patent, but it did note the general principle as it relates to sheriffs deeds.
Although the circuit court cited both MCR 2.116(C)(8) and (10) in granting defendant summary disposition of plaintiffs complaint, the citation of subrule (C)(8) was inappropriate because the court considered the parties’ documentary evidence in ruling on the motion. MCR 2.116(G)(5) (providing that “[o]nly the pleadings maybe considered when the motion is based on subrule (C)(8) or (9)”). | [
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ON REMAND
Before: DONOFRIO, EJ., and MARKEY and OWENS, JJ.
PER CURIAM.
In this property tax dispute, this Court previously held that the Macomb Circuit Court should have issued a writ of mandamus directing the Macomb County Treasurer to accept plaintiffs tendered funds as payment in full for its delinquent property taxes in accordance with a consent judgment entered by the Michigan Tax Tribunal. Sal-Mar Royal Village, LLC v Macomb Co Treasurer, 301 Mich App 234; 836 NW2d 236 (2013). In an order dated November 20, 2013, in lieu of granting leave to appeal, the Supreme Court, citing Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich 46; 832 NW2d 728 (2013), remanded this case to this Court “for consideration of whether the plaintiffs complaint for relief falls under the exclusive jurisdiction of the Michigan Tax Tribunal pursuant to MCL 205.731.” Sal-Mar Royal Village, LLC v Macomb Co Treasurer, 495 Mich 897 (2013). After consideration of the issue, we hold that the tribunal did not have exclusive jurisdiction over the mandamus action.
I. FACTS AND PROCEDURAL HISTORY
In 2007, plaintiff filed a property tax appeal against Macomb Township in the Michigan Tax Tribunal and did not pay its property taxes while the appeal was pending, thus incurring substantial interest. Ultimately, the parties entered into a consent judgment that included a provision waiving any penalty and interest due from either party if all applicable taxes or refunds were paid. However, defendant, as representative of Macomb County, refused to recognize the waiver-of-interest provision and issued plaintiff a revised tax bill that included interest of $127,971.29. Plaintiff did not pay the interest; instead, it sought a writ of mandamus in the circuit court to enforce the waiver-of-interest provision in the consent judgment. The circuit court granted defendant summary disposition, ruling that the consent judgment only applied to plaintiff and the township because they were the only parties to the tax appeal. This Court reversed the circuit court’s decision and, as noted, held that it should have granted the writ of mandamus. Sal-Mar, 301 Mich App at 235-236. This Court held that the county was bound by the consent judgment because it was in privity with the township with respect to the litigation, given that the two parties shared the same interest in collecting property taxes and worked together to collect those taxes. Id. at 240-241. This Court also held that the tribunal had the authority to waive interest on the delinquent taxes. Id. at 242-243. As noted, defendant sought leave to appeal in our Supreme Court, which, in lieu of granting leave, remanded the case to this Court “for consideration of whether the plaintiffs complaint for relief falls under the exclusive jurisdiction of the Michigan Tax Tribunal pursuant to MCL 205.731,” in light of Hillsdale Co Senior Servs. Sal-Mar, 495 Mich at 897.
II. STANDARD OF REVIEW
We review de novo whether a court has subject-matter jurisdiction, as well as issues of statutory interpretation. Hillsdale Co Senior Servs, 494 Mich at 51.
III. ANALYSIS
Pursuant to Const 1963, art 6, § 13, MCL 600.605, and MCR 3.305(A), the circuit court had jurisdiction to hear the mandamus action at issue unless MCL 205.731 is deemed to have denied it jurisdiction. See Hillsdale Co Senior Servs, 494 Mich at 51-53. MCL 205.731 provides:
The tribunal has exclusive and original jurisdiction over all of the following:
a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under the property tax laws of this state.
(b) A proceeding for a refund or redetermination of a tax levied under the property tax laws of this state.
(c) Mediation of a proceeding described in subdivision (a) or (b) before the tribunal.
(d) Certification of a mediator in a tax dispute described in subdivision (c).
(e) Any other proceeding provided by law.
Under the Tax Tribunal Act, MCL 205.701 et seq., “proceeding” is defined as “an appeal taken under this act.” MCL 205.703(e). “Agency” is defined as “a board, official, or administrative agency empowered to make a decision, finding, ruling, assessment, determination, or order that is subject to review under the jurisdiction of the tribunal or that has collected a tax for which a refund is claimed.” MCL 205.703(a).
The plain language of MCL 205.731 does not confer jurisdiction on the tribunal to entertain a mandamus action. A complaint for mandamus is not a “proceeding for direct review,” a “proceeding for a refund or redetermination of a tax,” a proceeding relative to mediation, or a proceeding that any law confers jurisdiction upon the tribunal to hear. See MCL 205.731. Further, this Court has indicated that while the tribunal has the power to “issu[e] writs, orders, or directives,” MCL 205.732(c), as necessary, the plaintiff must seek equitable relief in the circuit court to enforce a tribunal decision. Sessa v State Tax Comm, 134 Mich App 767, 771; 351 NW2d 863 (1984), citing Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977) (stating that the tribunal has the authority to direct a taxing agency to take no further action regarding a disputed assessment, that the orders, writs, and directives of the tribunal are valid and binding, and that enforcement may be obtained by application to the circuit court). Accordingly, while the tribunal might have been able to issue an order directing the county treasurer to comply with the consent judgment, it does not appear that the tribunal had the power to compel enforcement. Therefore, plaintiffs complaint for mandamus did not fall under the exclusive jurisdiction of the tribunal.
(a) Affirming, reversing, modifying, or remanding a final decision, finding, ruling, determination, or order of an agency.
(b) Ordering the payment or refund of taxes in a matter over which it may acquire jurisdiction.
(c) Granting other relief or issuing writs, orders, or directives that it deems necessary or appropriate in the process of disposition of a matter over which it may acquire jurisdiction.
However, in Hillsdale Co Senior Servs, which was decided one day after this Court issued its decision in this case, the Supreme Court indicated that a circuit court action seeking enforcement can, upon closer scrutiny, be revealed as an action seeking direct review, which would have to be heard by the tribunal. Hillsdale Co Senior Servs, 494 Mich at 61-63. In that case, the electorate approved a proposition raising the limit on the amount of property taxes by 0.5 mill for, in essence, services to senior citizens. Id. at 49. Thereafter, the Hillsdale County Board of Commissioners declined to levy and spend the full 0.5 mill. Id. at 50. The plaintiffs filed a complaint for mandamus in circuit court seeking to compel the county to levy and appropriate the full 0.5 mill. Id. The Supreme Court held that the circuit court did not have jurisdiction over the mandamus action. Id. at 54-55. Citing MCL 205.731(a), the Court held that the four elements necessary to confer original and exclusive jurisdiction on the tribunal were present: (1) the action was a proceeding for a direct review of the board’s final decision not to levy and spend the full 0.5 mill, (2) the board constituted an “agency” as defined by the statute, (3) the issue arose under the property tax laws, and (4) the action related to rates because “the heart of the dispute pertains to the ‘amount of a charge’ by defendant to its property taxpayers.” Id. at 53-54.
The Court went on to discuss Wikman v City of Novi, 413 Mich 617; 322 NW2d 103 (1982), Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728; 322 NW2d 152 (1982), and Jackson Dist Library v Jackson Co No 2, 146 Mich App 412; 380 NW2d 116 (1985), rev’d on other grounds, Jackson Dist Library v Jackson Co, 428 Mich 371 (1987). It noted that these cases had created confusion regarding the tribunal’s jurisdiction, but concluded that they were consistent with the Court’s holding in that the tribunal’s jurisdiction is determined by the subject matter, not the type of relief requested. Hillsdale Co Senior Servs, Inc, 494 Mich at 55, 59-61.
In this case, defendant focuses on the fact that after the tribunal issued its ruling, he issued plaintiff a revised tax bill. He suggests that plaintiff is seeking to have this tax bill corrected so that it conforms with the consent judgment and that, as an appeal of a tax bill, exclusive jurisdiction would rest with the tribunal. Plaintiff argues that this is not a new tax bill since there is an existing consent judgment that has decided the issue of interest and that this is an action aimed at enforcing the consent judgment.
The Supreme Court indicates that to discern whether the circuit court had jurisdiction over the mandamus action, this Court must first analyze whether the claim was for “direct review of a final decision, finding, ruling, determination, or order of an agency,” or a proceeding for “a refund or redetermination of a [property] tax . . . .” MCL 205.731. This claim had aspects of both an enforcement action and a review action. Specifically, plaintiff was seeking to enforce the consent judgment, but in the course of enforcing the judgment, the validity of the judgment was called into question by a challenge to the tribunal’s authority to waive interest. However, the authority question, as well as the question regarding whether “interest” referred to interest on the delinquent taxes or the judgment, were raised by defendant. If the circuit court had jurisdiction over the mandamus action, defendant could not defeat jurisdiction by raising a defense that invoked a review function.
The county treasurer’s decision in this case was in direct violation of the consent judgment issued by the tribunal. Plaintiff was not seeking to appeal or obtain review of the county treasurer’s decision to ignore the consent judgment and was not seeking a redetermination of the taxes owed. Rather, plaintiff was seeking enforcement of the consent judgment. If plaintiff had proceeded in the tribunal, rather than the circuit court, it presumably would have obtained another judgment which would have had equal force and effect as the consent judgment. The decision in Hillsdale Co Senior Servs notes that “although the tribunal cannot itself issue injunctions, it can issue orders that may be enforced in circuit court.” Hillsdale Co Senior Servs, Inc, 494 Mich at 59. Similarly, while the tribunal cannot entertain a mandamus action and issue a writ of mandamus, it can issue orders that may be enforced in the circuit court. It issued such an order when it issued the consent judgment. Thus, the subsequent mandamus action for enforcement was not an appeal subject to the exclusive jurisdiction of the tribunal.
We hold that plaintiffs complaint for relief did not fall under the exclusive jurisdiction of the Michigan Tax Tribunal pursuant to MCL 205.731.
D0N0FRI0, EJ., and MARKEY and OWENS, JJ., concurred.
Although a mandamus action is based on equitable principles, it is regarded as an action at law. See Franchise Realty Interstate Corp v Detroit, 368 Mich 276, 279; 118 NW2d 258 (1962). Additionally, in Woodworth v Old Second Nat’l Bank, 144 Mich 338; 107 NW 905 (1906), the Court indicated that mandamus proceedings are civil actions, not prerogative writs. See also 12 Michigan Pleading & Practice (2d ed), § 94.1, p 97. Moreover, MCR 3.305 provides that actions for mandamus against state officers may he brought in this Court or a circuit court, while “ [a]ll other actions for mandamus must be brought in the circuit court unless a statute or rule requires or allows the action to be brought in another court.” See also MCL 600.4401.
MCL 205.732 outlines the tribunal’s powers as including, but not being limited to, the following:
The other alternatives — a proceeding relative to mediation or a proceeding that any law confers jurisdiction upon the tribunal to hear'— are not relevant. Moreover, with regard to the other requirements of MCL 205.731, the county treasurer would he an “agency” because that term includes an “official” “empowered to make a decision,” MCL 205.703(a), and the issue would relate to “rates,” even though it technically dealt with interest, under the “amount of a charge” definition of “rates” relied on in Hillsdale Co Senior Servs, 494 Mich at 54. | [
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PER CURIAM.
Respondent, Arek Napieraj, appeals as of right an order of disposition following his adjudication of guilt on one count of school truancy, MCL 712A.2(a)(4). Finding insufficient evidence that respondent’s absences were “willful,” we reverse.
I. BASIC FACTS
Respondent had a history of frequent absences from school and in September 2011, school officials met with respondent’s mother and respondent to discuss the fact that respondent had already missed four days of school and the school year was just underway. Respondent’s mother explained “I told them that it was an ongoing problem . . . from bullying, he felt he was being bullied in school and he would actually be physically ill in the morning for several hours. He would get up to start his day at like 6:00 a.m. and he would get sick.” School officials responded that “[i]t wasn’t an excuse and that he needed to come to school and tell them if he was being bullied and they would take care of it.”
Respondent and his mother were called for another meeting in February 2012 to discuss respondent’s continued absences. They discussed the parameters of legitimate, excused absences. Respondent’s mother was advised that respondent needed to improve his atten dance and that there was “zero tolerance” for unexcused absences. School officials told respondent’s mother that a doctor’s note was required for all absences. Respondent missed three days of school following the February meeting, prompting school officials to request the prosecutor’s office to send its standard warning letter, and ultimately, file a formal petition.
At the hearing on the petition, school officials testified that respondent’s absences persisted and were deemed unexcused because they were not explained by a doctor’s note. Respondent’s mother testified that respondent’s attendance had improved and that he only missed two days in March 2012 because he was competing at a dog show in Kentucky — an activity recommended by respondent’s therapist. Respondent missed two or three days after that because of “a stomach bug” and when he had a migraine headache, a symptom of his Asperger’s syndrome. Respondent’s mother testified that she was hesitant to take him to the doctor’s office because it cost between $50 and $200 per visit. She believed that only “cluster absences” — those greater than two days — needed a doctor’s note.
The trial court adopted the referee’s conclusion that respondent was guilty of truancy. Respondent now appeals as of right.
II. ANALYSIS
On appeal, respondent argues that the trial court should have granted his motion for a directed verdict at the close of petitioner’s proofs and that there was insufficient evidence to support the resulting adjudication of guilt under MCL 712A.2(a)(4). We agree.
“In reviewing the denial of a motion for a directed verdict of acquittal, this Court reviews the evidence in a light most favorable to the prosecution in order to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006) (citation and quotation marks omitted). Similarly, a defendant’s challenge to the sufficiency of the evidence is reviewed de novo, viewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). Finally, issues of statutory interpretation are likewise reviewed de novo on appeal. People v Yamat, 475 Mich 49, 52; 714 NW2d 335 (2006).
The truancy statute, MCL 712A.2(a)(4), provides that a trial court may exercise jurisdiction over a juvenile when the juvenile “willfully and repeatedly absents himself or herself from school. . . .” Respondent argues that his absences were not “willful” because they should have been deemed excused.
“Willful” is not defined in the statute. “The fundamental rule of statutory construction is to discern and give effect to the intent of the Legislature. If statutory language is clear and unambiguous, the Legislature must have intended the meaning it expressed, and the statute must be enforced as written.” People v Venticinque, 459 Mich 90, 99-100; 586 NW2d 732 (1998) (citation omitted). “Undefined words are to be given meaning as understood in common language, considering the text and the subject matter in which they are used.” People v Lanzo Constr Co, 272 Mich App 470, 474; 726 NW2d 746 (2006). However,
The Legislature has instructed that any “technical words and phrases” that “have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” [MCL 8.3a; see also Const 1963, art 3, § 7 (“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”).] And in the criminal-law context, common-law doctrine informs the meaning of a statute when the Legislature uses common-law terms. [People v Smith-Anthony, 494 Mich 669, 676-677; 837 NW2d 415 (2013).]
Black’s Law Dictionary (9th ed) defines “willful” as “[v]oluntary and intentional, but not necessarily malicious.” “[W]ilful involves design and purpose” and “means intentional.” Jennings v Southwood, 446 Mich 125; 139-140; 521 NW2d 230 (1994) (citation and quotation marks omitted). However, “[a] thing may be done wilfully without bad faith.” Peters v Gunnell, Inc, 253 Mich App 211, 220 n 8; 655 NW2d 582 (2002). Importantly, “when a statute prohibits the willful doing of an act, the act must be done with the specific intent to bring about the particular result the statute seeks to prohibit.” People v Janes, 302 Mich App 34, 41; 836 NW2d 883 (2013) (quotation marks and citation omitted).
At the conclusion of respondent’s case and in the face of the evidence presented by each side, the referee announced her verdict:
The Court: Okay, I taught for ten years, you’re found guilty.
Mr. Tómala [respondent’s counsel]: I’m sorry?
The Court: He’s guilty.
Mr. Tómala: No, what—
The Court: He was — he’s found guilty, he had more than one unexcused absence. There was a petition filed, I don’t have any re — -just because his attendance improved is — get me a case that says if his attendance improved I don’t take jurisdiction. There is none cause that’s not the law. They may have wanted his attendance to improve but I wanted him to be in school all the time. He didn’t do it, he is guilty of school truancy.
Mr. Tómala: Just so I’m clear then, your — your statement is that any absence, we’re talking strict liability, any absence results—
The Court: Any absence—
Mr. Tómala: —in a truancy?
The Court: —without a doctor’s excuse is school truancy.
This was clear error. Clear legal error occurs “when a court incorrectly chooses, interprets, or applies the law.” Dailey v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501 (2011). Here, the referee distorted truancy from an act requiring repeated, willful conduct to one of strict liability. “A strict-liability crime is one for which the prosecutor need only prove that the defendant performed the act, regardless of intent or knowledge.” People v Adams, 262 Mich App 89, 91; 683 NW2d 729 (2004). However, “Michigan courts must infer a criminal intent for every offense in the absence of an express or implied Legislative intent to dispense with criminal intent.” Janes, 302 Mich App at 53. MCL 712A.2(a)(4) specifies that a juvenile must have willfully absented himself or herself from school. The referee’s cryptic statement fails to discuss the willfulness of respondent’s conduct. In addition, the referee’s assumption of jurisdiction appears predicated merely on her experience as a former teacher, rather than on the facts and the law presented in this case. Respondent was entitled to individual consideration based upon the law and facts applicable to his case, not on anecdotal experiences of the hearing officer. See Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009).
Our review of the record compels a finding that respondent’s conduct in this case was not willfiil as contemplated under MCL 712A.2(a)(4). Petitioner’s own witnesses admitted that certain of respondent’s absences were attributable to illness and fear of bullying. Moreover, petitioner’s own attendance record categorized many of respondent’s absences as “excused,” although the school official testified, in essence, that “excused” did not mean “excused” for purposes of the allegations made in the petition against respondent. The official testified that the designation “E-P” on the attendance record indicated “excused, parent called [in],” and the notation “E-IE’ designated “excused for illness,” a circumstance where a parent called to report that the student was home sick. The official was unsure what the “E-PC” designation indicated — he speculated that it was a parent call-in — and that “R” indicated an absence due to a school-related function, which absence would not be considered as truant. When asked about the use of the word “excused” on the attendance record in light of the school’s position that, instead, the referenced absences were in fact “unexcused,” the official said, “[y]ou know, I — excused is an interesting term. It just means a parent called.” Thus, it appears that respondent’s attendance record says one thing but means another and that certain “excused” absences were in reality “unexcused.”
Respondent’s mother provided the reasons for respondent’s absences. Respondent was being bullied in school and he would periodically become physically ill and vomit in the morning for several hours; again, petitioner conceded it had received reports of bullying. Respondent’s mother also provided a doctor’s note to the school excusing certain of the disputed absences, and excused two days in March 2012 because respondent was competing at a dog show in Kentucky — an activity recommended by respondent’s therapist. Respondent missed two or three days after that because of “a stomach bug” and when he had a migraine headache, a symptom of his Asperger’s syndrome. Finally, respondent’s mother explained that she was hesitant to take her son to the doctor’s office because it cost between $50 and $200 per visit. This evidence was not disputed, except by testimony stating the school’s position that the absences noted as excused on the attendance sheet were, in fact, apparently secretly unexcused, and that any absence required a doctor’s note. We conclude that, under these facts, respondent’s mother exercised reasonable parental discretion and that the absences should have been deemed excused at her request.
On this record, and contrary to the notion that respondent’s absences were “voluntary or intentional,” the evidence militates against a conclusion that respondent’s absences were “willful” within the meaning of MCL 712A.2(a)(4). The referee failed to address the evidence presented on the record or make any reference to the “willful” element of the statute under which respondent was charged. Indeed, the referee made no findings of fact or conclusions of law of any kind and does not appear to have applied the law to the facts of the case in any way. It appears rather that the referee substituted her personal experience and bias and failed to apply the law to the facts; such a position is untenable.
Reversed and remanded for entry of an order of dismissal.
BORRELLO, EJ., and WHITBECK and K. F. KELLY, JJ., concurred.
When the dispositional hearing was held, the referee, noting respondent’s improved grades, placed respondent on probation. Respondent ultimately moved to Texas and the trial court terminated jurisdiction in April 2013. | [
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Grant, J.
(after stating the facts). There are 37-assignments of error, most of which relate’ to the rulings of the court in admitting and rejecting testimony. We find no prejudicial error in the rulings. They are all too unimportant to justify discussion.
We also find no error in the instructions. The closing paragraphs of the instructions, above given, placed the issues very concisely and clearly before the jury. Defendant’s counsel complain that the judge, in the forepart of his instructions, said: • .
“Defendant having voluntarily signed this bond, and held out to the world the fact that Ira N. Bronson was a co-surety with him upon said bond, and the saloon having been operated under such understanding, defendant is estopped from denying such fact as a defense to this action.”
This was only part of the sentence, and the court immediately stated the defenses set up by the defendant. Aside from this, the passage quoted clearly meant that the defendant could not set up as a defense that he was not a co-surety, or that the saloon was not operated upon that understanding, — a perfectly correct statement. After making this statement the court proceeded to define the issues between the parties and to give the jury the law applicable thereto.
It is not surprising that the jury found against the defendant, in view of the fact that William L. Bronson paid him $200 to sign his bond, upon which he claimed absolute immunity from liability as between him and his co-surety.
The judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The plaintiff recovered a judgment against defendant because of injuries received while in its employ. From that judgment the case is brought here by writ .of error.
The defendant is engaged in the business of tanning hides. Among other buildings used by defendant is a one-story building known as a “leach-house,” in which the hemlock bark is leached in vats for the purpose of getting a liquid used in the tanning process. In this house were two rows of leach-tanks, sis in each row. The tanks were 8 feet high and 14 feet in diameter. The tanks in the row were about one foot apart, and the two rows were a little farther apart. Between the two rows of tanks were the liquor logs. Reaching into the tanks were steam-pipes, and, by turning a valve, the steam would be let into the bottom of the tanks, and, if continued long enough, would boil the liquid and cause it to splutter, so that some of the'bark would be thrown up, lodging on the running-boards over the tanks. Over the middle of each row of tanks was a running-board, made of planks, about 20 inches wide, and on the sides of the building, just outside of the tanks, was a platform. 30 or 35 inches wide. There was also a running-board between each pair of tanks. There were no rails to any of these running-boards, and, with the exceptions named, the tanks were all open at the top. One, and sometimes two, of the tanks would be boiled at a time, and, when the boiling was going on, would throw off steam. The building was lighted with windows above the tanks. After the contents of a tank had been sufficiently cooked, the liquor would be drawn off, and, after, the leached bark was sufficiently cooled, a plug would be pulled, and the bark would be pitched to a conveyor or elevator, and conveyed to the engine-room, where it was used for fuel. The pitching of this bark is called “pitching leaches.”. The tops of the tanks were reached by a stairway, the head of the stairs being near the end of the running-board over the first row of tanks. After coming up the stairs, if one turned abruptly to the right, and followed a running-board, he would reach the platform running along the side of the building, and parallel with the outside of the first row of tanks. About halfway between the head of the stairway and the platform at the side of the building was a post, which had the effect of narrowing the platform to about 20 inches in width.
The plaintiff is about 30 years old, a man of fair intelligence, who had worked on a farm, and had worked at stave-jointing for about 8 years. He had no experience in a tannery. He entered into the employment of the defendant, and worked for a week, loading bark on cars and doing various kinds of work about the yard. At the end of this week he engaged with Mr. Metz, president of the company, to commence pitching leaches on Monday. He was told:
“Anybody can do the work. Miller will show you what to do, — all about it; and the main thing is, if you work in there, you want to be careful, because you work on boiling hot leaches. ”
On the following Monday he reported to Mr. Miller, who is a German, who speaks English somewhat imperfectly, and was set to work. He claims he could not understand Mr. Miller very well, though there is nothing to indicate that he so informed Mr. Miller. The substance of the testimony of Mr. Shippey is as follows:
“On this Monday morning I went to the engine-room in the morning, and Mr. Miller motioned me to go and wheel coal to the engine-room. I could not understand his language very well, but, by motions, I understood that I was to wheel in the coal. I wheeled coal until, possibly, 8 o’clock. Then Mr. Miller took me up into the leach-house. I could not understand him. He showed me how to pull the plug and pitch the leach. We went to the head of the stairs, and he was talking in German, and told me to follow him, or words to that effect, and I turned to the right, passed over to the first leach, and came across between the leaches, and came to the third leach from the east end on the south side; and he fastened a chain on the lever and on the plug, and told me to pull it. I tried to pull it, and could not, and he got a bar or maul, and pounded the plug and loosened it. Then he helped me, and we took the plug out. Then he took a shovel or fork, and showed me how to pitch it out into that hole. The hole was in the bottom of the leach. * * * After I got the work done, I went to the engine-room, and Mr. Miller told me that, when I heard the elevator, it was a sign he wanted bark up in the engine-room; * * * that was a signal for me to pitch leach.
“On Monday morning, when I went up in there, I couldn’t see much of anything only the vats steaming very little to' the side that I was on. I think the steam was escaping from the building. As you go up the stairway, there is a large post at the right side of the building, ■ — the north side. Passing into the building, there is a post, probably a foot square, that is set into the wall, and the platform is very narrow where it goes through from over the leach there, —possibly 17 inches; maybe more. After you pass that, the platform is wider until it comes to the second leach. These planks are built right on top of the leach or vat, and there are' planks across the center. The post is very close to the landing as you go up the stairs, because, turning to the right, you could place your hand on the post. Between the post and the open vat the plank was very narrow, and then the platform widened after it passed the post. Between the post and the outer wall of the building and the vat, I should think the width of the plank would not exceed 40 inches. Planks are placed over the center, possibly about 10-inch plank; otherwise, vats are open. There is nothing to protect a man from falling in. There were no explanations or warnings given me about clanger at the time I was set to work. I do not understand German. I could not understand Miller only by motions. When he would say anything, he would go through with the motions. I could not understand his language, but by motions of his hands, and the way he did the work, he showed me how to do the work. If he said anything about looking out for this, that, or the other, I couldn’t understand him. Nobody else gave me any explanations of the dangers there. I thought the work had been assigned to others, and that I was as capable of doing it as well as others. It appeared to me that I could do it [safely as well as others. I afterwards saw conditions, while I worked there, which did not exist when I was set to work, — the dense fog, the slippery condition of the platform, and the deposits of bark. * * *
“ On Saturday morning I went up the stairs, turned to the right, placed my hand on the post passing the narrow spot in the platform, turned, -swayed to the right towards the wall, and stepped on something that pitched me headlong towards the leach. Would have gone in head foremost had it not been for throwing myself sidewise, and struck my side on the platform, and foiled into the leach. Gaining strength, I got out, and went to the window that was open there. I had never seen the bark boil over. I do not know what I stepped upon. I can’t tell what it was. I lost— I slipped or stumbled. It was all done so quick that I couldn’t tell what it was. My feet went out from under me.
‘ ‘ Q. What caused that ?
“A. I don’t know what it was. Something had been placed there. It must have been some slippery substance. I never understood fully about the action of steam and condensing and dropping. The steam was more dense that morning. The weather was cold. I had not encountered the slippery condition and density of the steam prior to the morning of the accident. * * * I was passing up there in the leach-house that morning, going to my work of pitching leaches. The elevator had started. It appeared to me that the side was the safer .course, so, rather than crossing the center plank, because the center plank was narrower. I was going to the south side of the building; had to pass the first leach, and to go, I think, the fourth leach below the end from the east of the south side. That was the vat I was working in. I don’t know which of the vats were hot when I first went there. The vat into which I fell was boiling the night before the accident. I saw nothing of any deposit of any kind lying about there upon the planks the night before. I had passed over this point the night before. When I slipped, it was immediately after I had passed the post. I did not have hold of the post. There are no lights in that building, and I did not carry any light of any kind. The room is not lighted, only by lantern, if any. It was not lighted that morning. There are windows on the sides; no artificial lights. Nothing had been said to me about a lantern, or any provided for me. I learned, the morning of the 2Gth, that it was dark and the plank slippery, and that something was placed upon the planks that I took my tumble. The steam was denser and thicker. The morning that I went to work there was nothing in the way that would be slippery, that I could see or found. What caused me to fall in was the slippery condition of the affair that I slipped on. Had I not have slipped on it, I would not have fallen in. * * *
“ Q. What other condition existed that morning that did not exist when you went to work, and prior to the accident ?
“A. The conditions of the fog and the slippery condition that I found. By fog I mean ‘ condensed steam.’”
On the cross-examination he said:
“I had never been in the leach-house prior to being set to work there. The engine-room is just to the east of it. I had been to the engine-house, and knew the doorway that went up into the leach-house. * * * The leach is a cylindrical, round tub,- — wat,—probably 8 feet deep, and in that leach is the tan-bark and water. The liquor is drawn out of the leach from the bottom, and that leaves the tan-bark in a bunch, as I found it after I went to work. There was a big plug in the bottom of the leach, and, to pitch the leach, you pulled the plug and opened the opening, and then broke up the tan-bark, and dumped it out of the bottom. * * * I went up there Monday morning, and Miller went with me. I saw the room full of vats, — two rows of them the full length of the room. There was very little steam coming from any of them that morning.
“Q. You knew that there was hot water in some of them, or hot liquid of some kind ?
“A. I knew there was steam of some kind; yes, sir. The leach that I pitched first was on the south side. The leach next to it must have been warm, and I knew it. I learned at that time that steam-pipes were in those vats. T found one in the leach I was pitching. I knew that that pipe was there to let steam in, and that the steam was put in to heat the liquid in the vats; and I knew that, when the steam had been put through those pipes, the liquid must necessarily become boiling hot, if kept up. *
“It was pretty dark those mornings at the time I went to work, — ? o’clock, sun time, or ‘fast time,’ as they call it. It had been pretty’ cold all that week, but it was colder that morning. * * *
“When I went up into the leach-house Tuesday, I went at my work, pitching the leaches. I went to work under Mr. Miller’s instructions. He showed me, each time, the leach to draw. I do not remember that he took me up into the room Tuesday; he did Monday. I think it was light enough when I went up Tuesday. I did not take a lantern. I do not know that they had lanterns in the engine-room; I never asked. * * * I think I pitched but one leach Tuesday. The leach right next to it was hot, to a certain extent; it must have been; there was steam in it. I heard it boil in those vats while I was at work there. You can hear it all over the house if you are near it, and you can see it come to the surface. I do not know that the bark hangs to the surface very largely while it is cooking. I suppose it would, to a certain extent. To a certain extent, I remember that it did. I knew that the steam was in there; I could hear it. I do not know how many times I went up there Tuesday. * * * I went in and out several times every day, but I never found it so that I should stumble before. I saw all of the vats up there every day I looked. I knew every vat was open every time I went up there, and knew the building was lighted only by low windows; I do not know how many. And I knew that those vats were giving up steam. The planks on the south walk line lay right on top of the vats, projected over the vats. * * *
“Wednesday T went at my work. I do not know what time I went in the leach-house. I did not take a lantern. I do not know as anybody went with me. Mr. Miller told me which leach to take. I think Tuesday night we drawed the plug, if I remember right, for Wednesday morning. * * * There was no one with me only when Mr. Miller would go up there to work. The leach next to the one I was pitching must have been hot.
“I worked Thursday until noon, and we laid off for Thanksgiving. I pitched a leach that morning. I do not know what time • I went to work. I did not take a lantern. No one said anything to me about a lantern, to my knowledge, or that I could understand if they did. I did not see Mr. Miller take a lantern at any time. * * * From the 20th to the 26th of November, at half past 6 in the morning, standard time, or 7 o’clock, sun time, it is pretty dark. It was not broad daylight.
‘ ‘ Friday I pitched leaches. * * * I pitched one leach. The leach next to it must have been hot; steam arising from it. I do not remember as I took notice of its boiling. I knew steam was running in through a large pipe. * * * I think there were some days that I pitched a part of a leach twice a day, — in the morning and at night. * * *
“ Saturday morning it was from five to eight minutes after 7 when I went up in there. I went up immediately after I got to the shop. * * * I was a very little late that morning. * * * The elevator had started. It was ordinarily dark. It was not broad daylight. When I got in the building I discovered that it was very dark. It was practically pitch dark from the dense'fog, — from the dense steam. I saw steam immediately when I got in. I knew that I could not see my footway at all. I could not see my footway a particle. * * *
“I worked in a stave-mill eight years. They steamed their bolts and jointed. I worked all the way from a quarter to a mile from the steam-chest. I was not at the mill very often. I knew they steamed bolts. I commenced work when I was 17. * * *
“When I started off the head of the stairs, I had literally to feel my way. I don’t know what I did when I found I was in the hot water; I do not remember. * * * As soon as I climbed out of the vat, I went immediately to the window, examined and cooled my burns as much as I could, started immediately down stairs, and went into the engine-house. I did not stop to examine the planks at that time after I fell in. I do not know what I stepped on, only it was something slippery that throwed me. I do not know what it was; I did not stop to examine. At the time I fell in, I could not see my feet or the planks.”
We have quoted at length from this testimony to show just what the plaintiff claims. It is the claim of the defendant that a verdict should have been directed in its favor — First, because plaintiff was guilty of contributory negligence; and, second, because he must be presumed, after several days’ employment, to be so familiar with the situation and its dangers that, if he continued in the employment, he assumed the risks .incident to the business. Taking the version given by the plaintiff, we think it must be said that his conduct was not that of an ordinarily prudent- man. He knew about these open tanks, in some of which there was boiling liquid. He knew about the running-boards and their location, and that they were without railings. He knew the tanks gave off steam, which would, in cold weather, condense, and be deposited upon the planks. He must have known that a misstep might result in a very serious accident; and yet, knowing the situation, he attempted to get about among these open tanks at a time when he says it was pitch dark, — so dark that he could not see his feet nor the planks. If this is not a case of contributory negligence, it is difficult to conceive of one. Village of Momence v. Kendall, 14 Bradw. 229; Taylor v. Manufacturing Co., 140 Mass. 150 (3 N. E. 21); Deer. Neg. § 210; Beach, Contrib. Neg. § 35; Bailey, Mast. Liab. 159; Michigan Central R. Co. v. Coleman, 28 Mich. 440; Mynning v. Railroad Co., 67 Mich. 677 (35 N. W. 811); Melzer v. Car Co., 76 Mich. 94 (42 N. W. 1078); Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); La Pontney v. Cartage Co., 116 Mich. 514 (74 N. W. 712). The accident was a deplorable one, and greatly to be regretted; but it is not one for which the employer should respond in damages.
The judgment is reversed, and no new trial ordered.
The other Justices concurred. | [
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] |
Long, J.
Relator applies for a writ of mandamus to compel respondent to vacate an order striking the answer of the relator from the files in a cause pending in the Wayne circuit court, in chancery, wherein the Union Trust Company is complainant and the relator and others are defendants. The respondent has made return to an order to show cause.
It appears that the bill of complaint in the cause in which the order complained of was entered was filed September 3, 1897, for the purpose of foreclosing a mechanic’s lien upon property owned by relator. Relator and the other defendants answered the bill, and on November 4, 1898, the cause was heard upon pleadings and proofs taken in open court. Several objections to the proceedings were made at and during the hearing, and, among others, that the principal contractor was a necessary party to the suit, and, as he had not been made a party, the bill should be dismissed. At the close of the testimony, the court (Frazer, J.) said:
“I think the principal contractor in the case should have been made a party defendant. If the complainant desires to be heard on this question, I will hear him. If not, a decree may be entered dismissing the bill of complaint. I think all other objections to the bill are not tenable.”
Application was thereupon made to amend the bill, and due notice thereof given. An order was made permitting said amendment, and the amendment was made, making the principal contractor a party. Subpoena was served xipon him, and the bill was taken as confessed against him for want of answer. After the bill had been taken as confessed by the principal contractor, and on January 24, 1900, the relator herein, the owner of the property, filed an entire new answer to the amended bill, which answer contained all the statements of the original answer, and in addition thereto introduced some new matters of defense, and on January 27th filed a further amendment to paragraphs 11 and 12 of the said answer, wherein additional new matter of defense was set up. On January 30th complainant made a motion to strike the amended answer and the amendment thereto from the files. The motion was granted, and the relator now asks that the order be set aside.
It appears that the original answer .and the amendment thereto, filed by relator before the case was heard, alleged the following matters in defense to the suit:
1. That the times when the first of the lumber and materials were furnished and when the last of the lumber and materials were furnished are not correctly stated.
2. That the lumber was never accepted, and that it was not used in the building.
3. That there was nothing due to the complainant for lumber and materials furnished for the construction of the building upon relator’s property.
It also appears that, in addition to the defenses set up in the answer, relator at the hearing made the following objections to the proceedings:
(а) That the bill was not properly sworn to and signed.
(б) That the lumber did not go into the building.
(c) That relator was not the owner of the property at the time the contract was made.
(d) That the account of the Union Trust Company, receiver, with the principal contractor, was so mingled that the amount due for lumber and materials for this particular building could not be determined.
(e) That the principal contractor was a necessary party.
(/) That the statement of the claim for lien was not in accordance with the statute.
That these objections were made and considered by the •court appears from the written opinion of Judge Frazer, .attached to the return now before us. All these objections were finally determined by the court at that time. It was there said, “I think all the other objections to the hill are not tenable.” This had reference to the objections above set forth.
An examination of the new answer and the amendment thereto discloses the following defenses:
1. That the statement in the bill of complaint as to the time when the first of the lumber was furnished and when the last was furnished is not correct.
2. That the lumber was not accepted, and that there is nothing due.
3. That no correct statement of the claim was ever served upon relator, or filed with the register of deeds.
It is seen that these are the identical defenses disclosed by the original answer, and were all disposed of by Judge Frazer in his opinion set forth above.
The new answer and the amendment allege the following new matters of defense:
1. That the suit is barred by the statute of limitations.
2. That the complainant had no right to amend its bill by making the principal contractor a party.
3. That relator has paid the principal contractor in full, and that therefore there can be no lien.
4. That the mechanic’s lien law is unconstitutional.
It is the claim of relator that the order of the court striking the amended answer and the amendment thereto from the files has prevented the, relator from availing himself of the defense that the said complainant is barred from proceeding under its amended bill of complaint because of not having made the original contractor a party defendant within the time required by the statute for enforcing mechanics’ liens; that this defense could not be interposed by relator until after complainant had filed its amended bill.
It appears, as we have seen, that, when the matter was on argument before Judge Frazer, the objection was made by relator that the contractor was not made a party to the bill. The court thereupon permitted the complainant to amend its bill by making him a party. The statute provides (3 Comp. Laws 189?, § 10718) that:
“The several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds, and no longer, unless proceedings are begun to enforce the same as hereinafter provided; and such liens shall take priority as follows: ifc * * )>
Section 10719 provides:
“Proceedings to enforce such lien shall be by bill in chancery, under oath, and notice of lis pendens filed for record in the office of the register of deeds shall have the effect to continue such lien pending such proceedings. And in such proceedings the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien, parties to such action. * * * Intervening or cross bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged, unless denied by answer under oath.”
We think, under this statute, the fact that the principal contractor was not made a party to the bill until after the year had expired- cannot affect the rights of complainant. The proceedings must be begun within one year, and such proceedings are begun when the bill is filed. Additional necessary parties may be brought in thereafter. In Sheridan v. Cameron, 65 Mich. 680 (32 N. W. 894), the bill was filed to enforce a mechanic’s lien, and it was said, “We think the filing of a bill or petition is the beginning of the suit, and that the service of process is only a step in the cause.” Amendments of this character have generally been allowed. Rugg v. Bassett, 101 Mich. 441 (59 N. W. 645); Kerns v. Flynn, 51 Mich. 573 (17 N. W. 62). See, also, Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18 (62 N. W. 1120).
But we think the rule is well settled that the new defendant, only, could take advantage of the fact that he was not made a party within the year, even if such a defense could be made by any one. Boisot, Mech. Liens, § 577, and cases there cited; Phil. Mech. Liens, § 431, and cases there cited. We are aware that the case of Bombeck v. Devorss, 19 Mo. App. 38, cited by counsel for relator, holds that in such case the principal contractor must be made a party within the time limited for filing the bill. We think that case is not in harmony with the general rule. In Green v. Clifford, 94 Cal. 49 (29 Pac. 331), a contractor was brought in by amendment after the statutory time to bring suit had expired. The court allowed the judgment made after this amendment to stand, and say, “The appellant [the owner of the property] could not be prejudiced by this amendment, although made after the statutory time for commencing the action.”
It is also contended by relator that, complainant having amended its bill, even by bringing in the contractor as a party defendant, relator had the right to file an answer to the amended bill setting up new defenses, or contradictory defenses to those contained in the answer to the original bill. On the other hand, it is contended by counsel for respondent that where a bill is amended, the answer having already been put in, the defendant, if he answers, should answer only as to new matters introduced by the amendment. In this we think counsel for respondent are correct. The amendment to the bill by adding a new party defendant in no way changed the cause of action as stated in the bill, and in no way affected defendant’s rights. The amendment was purely formal. It introduced no new matter into the bill, and there was therefore nothing in the amendment requiring a further answer by defendant. The case had already been heard on proofs taken in open court, and, as said by counsel for respondent, “The defendant, by his new answer, is endeavoring to try over again issues which have already been decided against him.”
Puter. Mich. Ch. (3d Ed.) 118, lays down the rule that:
“In answering an amended bill, the defendant, if he has answered the original bill, should answer only those matters which have been introduced by the amendments. In fact, the answer to an amended bill constitutes, together with the answer to the original bill, but on© record.”
The same rule is laid down in Jenn. Ch. Prac. 89. See, also, 1 Barb. Ch. Prac. 159, and 1 Daniell, Ch. Pl. & Prac. 729
In Salisbury v. Miller, 14 Mich. 160, it was said:
“It is claimed that it was irregular to proceed to a hearing after the bill was amended, without a further answer from Miller or a default. Had any new matter been introduced into the bill, he would have had a right to answer further; but, where nothing but the name of a new defendant was introduced, no such step was required, as it in no way changed the aspect of the suit as against Miller.”
See, also, Munch v. Shabel, 37 Mich. 166.
But counsel for relator cite 1 Daniell, Ch. Pl. & Prac. 409, as follows:
‘ ‘Any amendment of a bill, however trivial and unimportant, authorizes a defendant, though not required to answer, to put in an answer making an entirely new defense, and contradicting his former answer.”
It is contended by counsel for respondent that this rule laid down by Daniell is in conflict with the rule already stated by the same author; that it is broader than the authorities cited for it warrant; and that, giving it the most favorable construction possible, it cannot be held to apply to cases like the one at bar. We are satisfied that the rule laid down by Daniell could not be applied tó a case like the present, even if it is, the rule applied in some cases. The only change in the bill was in making the contractor a party defendant, and, as we have said, it in no way changed or affected the rights of the defendant. In such a case we think no further answer was required, as was held in Salisbury v. Miller, supra, and that defendant, in answering, had no right to include new’ matter in the answer. The original answer covered the particular defenses to the original bill, and the court was not, therefore, in error in striking the amended answer from the files.
The writ must be denied.
The other Justices concurred. | [
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] |
Hooker, J.
The plaintiff appeals from a judgment in defendants’ favor in an action of ejectment. The finding of facts shows that on February 3, 1866, Jacob Bear, a widower, became the owner of certain lands, subject to a mortgage for $500, held by James C. Bishop, and that he entered and resided upon them until his death, which occurred October 1, 1868. Soon after February 3, 1866, Jacob Bear married Malissa Martin, who was at that time the mother of the plaintiff, Joseph Martin, and two daughters. On March 25, 1867, Jacob Bear deeded the land to Malissa Bear. The conveyance was a warranty deed, but contained the following provision:
“This conveyance is made, however, with this express understanding, that if the said Malissa Bear abandons and leaves the said Jacob Bear at any time before the said Bear’s death, then and in such case the above-described premises is to revert back and become the property of the said Jacob Bear, provided the said Jacob Bean, his heirs or assigns, shall pay the said Malissa Bear the sum of two hundred and fifty dollars, with interest from this date; and it is further agreed between the parties that, in case the said Jacob Bear shall die leaving the said Malissa Bear a widow, then and in such case the above-described premises shall belong to the said Malissa Bear during her lifetime, and at her death to revert and become the property of the heirs at law of the said Jacob Bear, provided said heirs at law shall pay to the heirs of the said Malissa Bear the said sum of two hundred and fifty dollars, with interest.”
Subsequently, Mr. and Mrs. Bear executed two mortgages upon the land to James W. Mizner, one for $80, and one for $96.80; one being given in 1867, and the other in 1868. After Jacob Bear’s death, Malissa conveyed the land to James W. Mizner by quitclaim deed dated September 16, 1870. At this time he was the owner of the two mortgages given to him. Elizabeth and Samuel Bear, children of Jacob Bear by a former wife, conveyed the premises by guardian to Mizner, on March 4, 1872, and two days later Mizner and wife conveyed them to their daughter, Julia A. Gilson, subject to the mortgages, and on April 15, 1875, she conveyed them to John Libbing, and on April 6, 1880, he conveyed them to the defendants. Each grantee occupied the premises from the reception of his or her deed until they were conveyed to another. Malissa Bear died in October, 1896. She left surviving her the above-mentioned plaintiff, and Joseph Martin, and a grandchild whose mother was a daughter of Malissa by her former marriage. There has been no payment of $250 by the heirs of Jacob Bear to the heirs of Malissa Bear.
The court found, as propositions of law applicable to the case:
1. That,, as between the parties to this suit, the morR gages did not merge in the title received by Mizner, and are a valid lien upon the premises.
2. That Malissa Bear took title in fee, subject to the right of reversion, either to Jacob Bear or his heirs, upon the happening of the events mentioned in the deed.
3. That none of these events happened, and her deed to Mizner conveyed title in fee simple, subject to the mortgages upon the lands.
It is contended by the plaintiff that the deed from Jacob Bear conveyed only a conditional life estate to Malissa Bear, with* remainder to her heirs, subject ■ to a condition subsequent. Counsel for .the defendants maintain that she took a title in fee simple, subject to a reversion upon condition subsequent.
The deed was a warranty deed, and in its granting clause conveyed an absolute title in fee simple to Malissa Bear. But this was subject to a limitation in the habendum, which is so clear and unequivocal as to leave no doubt of the intention upon the part of Jacob Bear to limit the absolute grant. See Downing v. Birney, 112 Mich. 474 (70 N. W. 1006). The habendum does not contain the term “remainder,” but does contain the word “revert,” under circumstances which imply an intent that a qualified fee should pass to Malissa Bear. Had Malissa Bear continued to live with Jacob Bear until the time of her death, leaving him surviving, the condition would have been discharged in favor of her heirs, or her assigns if she had previously conveyed her interest. It was only upon one of two conditions that the heirs of Jacob Bear could acquire this property, viz.: (1) That she abandon Jacob Bear during his life; (2) that she survive him. In either of these cases the land would or might revert to Jacob Bear or his heirs upon payment to the heirs of Malissa of $250. Upon this possibility rests the claim of the plaintiff. He argues that he is entitled to this land because the heirs of Jacob, who had some reversionary rights under Jacob Bear’s deed, have not cared to assert them by paying $250 to the heirs of Malissa. There is nothing in the deed which grants to the heirs of Malissa any title to the property except by way of inheritance from her. This she cut off by her deed.
But this title which she conveyed was subject to the right of Jacob Bear’s heirs to acquire the property upon her death by paying $250, to which right the last two mortgage interests were also subject. Had the deed provided that the $250 should be paid to her heirs or assigns, there would be no difficulty. But the provision, being for payment to her heirs only, gives some plausibility to the claim that it was designed that they should have a charge upon this land. But we think the deed should not receive such a construction, and, if it were to be thus construed, it would not follow that they have title or right to possession. Had she died without conveying to Mizner, the land would have descended to her heirs, subject to the condition and the mortgages. But, as she conveyed it, there was nothing to descend, and her grantee had a perfect title, subject to the rights of Jacob Bear’s heirs, which he has acquired.
There is no necessity for discussing the question of merger.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Moore, J.
Stephen Lellis, plaintiff’s intestate, was a switchman at work in the yards of the Michigan Central Railroad Company in Detroit. A car load of timber had been loaded at Cadillac, Mich., upon a flat car. The Ann Arbor Railroad Company brought this car to Ann Arbor, where it was transferred to the Michigan Central Railroad, and conveyed by it to Detroit. There were pockets on the sides of the flat car, 4 inches by 4 inches in size, into which to put stakes to hold the load in place. It is claimed the persons loading the car used for stakes 2x4 scantling, joining the tops together by nailing a strip of board thereto. During the switching of the car in the yard at Detroit, one or more of these stakes gave way. Some of the timbers fell upon Mr. Lellis, who received injuries from which he soon thereafter died. His widow was appointed administratrix, and brought.this suit. The circuit judge directed a verdict in favor of the defendants. The case is brought here by writ of error.
It is the claim of the defendants that the stakes are not part of the equipment of the car, but are part of the load. One witness so swore. It is also claimed that it is a matter of common knowledge upon the part of those at all familiar with the loading and shipping of lumber and timber upon flat cars in this State that the stakes are no part of the car, but the stakes are furnished by the shipper, and, when the timber or lumber is unloaded, the stakes are not returned with the empty flat car, but a new set of stakes is provided each time the car is loaded. It is said that, the stakes being regarded as a part of _ the load, the company was not liable. The Michigan Central Railroad employed an inspector, whose duty it was to inspect the cars upon their arrival at the junction before the cars passed into the switching yard. This inspector, Mr. Fen-wick, was on duty when this car arrived. It was the duty of the inspector, if he found a car was not in a condition to go forward safely, to mark it, “Rejected,” and send it to the transfer house. A record is kept of the rejected cars, but no record is kept of those which are not rejected. The record did not show that this car was marked, “Rejected.” It is said, if the inspection was faulty, and would have revealed the defect if the inspector was not negligent, the negligence of the inspector was the negligence of a fellow-servant, and the plaintiff cannot recover,—citing Smith v. Potter, 46 Mich. 258 (9 N. W. 273, 41 Am. Rep. 161); Dewey v. Railway Co., 97 Mich. 329 (56 N. W. 756, 22 L. R. A. 292, 37 Am. St. Rep. 348); Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32).
The defendant, the Ann Arbor Railroad Company is not liable, under the authority of Fowles v. Briggs, 116 Mich. 425 (74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537). The question whether it was the duty of that company to' furnish and equip its cars with stakes is not necessarily in the case, and upon it, therefore, we express no opinion.
If the defendant the Michigan Central Railroad Company is liable, it must be because it failed to provide inspection which would have disclosed to the inspector the dangerous condition of this load. It is established by the testimony that this company did provide a competent inspector. He either failed to make any inspection, or made a faulty one. In either case, under the decisions of this court, the defendant is relieved from any liability. This inspector and Mr. Lellis, the switchman, were fellow-servants engaged in the same common employment. This is not a case involving the duty to furnish safe machinery, and to see that it is kept in proper repair; it is a case involving the duty of a railroad company which is daily receiving, as it is bound to do, cars from other companies for immediate transshipment over its own road. Its duty towards its employés is to provide a competent inspector to inspect these cars when so received, and to determine whether they are in proper condition for transshipment,— this for the reason, as is well known, that cars are apt to become injured while being transported. Immediate supervision in such cases by “either the ultimate or representative principal” is impossible. When a company has employed such £,n inspector, it has performed its full duty. The rule is a just and reasonable one. Employés understand this, and contract with reference to it. They know that the master is not liable where it has employed competent servants to perform the work of the same common employment. ' The rule is so well stated by the late Justice Campbell in Smith v. Potter, 46 Mich. 258 (9 N. W. 273, 41 Am. Rep. 161), that I quote it:
“In such a business as requires the employment of a multitude of persons, beyond the possible constant supervision of either the ultimate or representative principal, there can be no negligence, without the failure to use such precautions in choosing agents and guarding against perils as diligent prudence and foresight require. When the principal has done all that can be reasonably required of him to prevent risks to his servants, he has done all that he owes them. In the present case he appears, beyond dispute, to have done all this; and if the inspectors committed an error, or were guilty of negligence, he is not to blame for it. The work done is .to be done at all hours, and at every place where there are railroad connections with other roads. It is not a duty of management or general supervision, but a task for which nothing is required but fidelity, and mechanical knowledge of a comparatively limited kind. It is such work as would seldom be delegated to an officer of extensive responsibility, who has other interests to look after. But, whatever be its quality, it was in this case not claimed to have been placed in wrong hands. Nothing more could be asked of the employer.”
The facts in that case are not materially different from those in the present.
It was also said in Dewey v. Railway Co., 97 Mich. 334 (56 N. W. 757, 22 L. R. A. 294, 37 Am. St. Rep. 351), Mr. Justice Long delivering the opinion :
“The master must undoubtedly exercise care in the selection of inspectors to see that cars are not improperly loaded or overburdened, so that they are dangerous to employes; but, after this has been done, it cannot be claimed that the master is to be held responsible for the faithful performance of the inspectors’ duty. Any other rule than this would make railroad companies insurers of the lives and limbs of employés.”
Is not this case within the reasoning of the Potter Case? In that case the deadwoods of one car, which was rather lower than the other, had been loosened, and were leaning down, so that the deadwoods of the lower car went partially under those of the higher one, catching the plaintiff’s arm. Whether the car was started out by the other road in this condition, does not appear. Would it have made any difference had this been the case ? Is the receiving railroad liable when another road has transferred to it a car defective in construction, and not liable when the defect has occurred during the transshipment? Is not the duty of the inspector the same in both cases ? Is he not as much bound to reject the car in one case as in the other ? Can the receiving company act in any other way than through an inspector ? It does not have, cannot have, and is not by law required to have any other employe than an inspector to determine when cars received from another road are in condition fit for transportation over its own road. Suppose a case where the stakes used were originally sufficient, but one or more had become broken by accident in transportation, and new stakes supplied by the trainmen, which were insufficient; would the receiving road be liable for the failure of judgment or neglect on the part of the inspector ?
The case of Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111), has no bearing upon the question now before the court. The question of inspection now before us was not involved in the case. The brake chain, furnished by the defendant company itself, was found to be insufficient in size and strength. The company sought to defend on the ground that it had provided a suitable person to test and inspect the chaih. The Potter Case was not mentioned in the decision, and there was no occasion for referring to it.
In Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572), the sole question was the duty of the defendants — ■ lumber manufacturers — to construct safe docks. Held, that the duty could not be' delegated to an inspector. That decision has nothing to do either with the facts or the principle of this. Smith v. Potter, supra, was cited with approval and distinguished. Mr. Justice Morse, who wrote the leading opinion, cast no "doubt upon the Potter Case. Chief Justice Sherwood concurred in the result. Justice Champlin concurred in reversing the judgment because in that case he did not think the duty of inspection could be delegated, while Justice Campbell concurred in reversal for errors upon the record. The only doctrine, therefore, established by that case is that the defendants could not delegate their duty to construct safe docks, so as to relieve themselves from liability. Smith v. Potter, supra, has been cited with approval by this court in the following cases: Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32); Brewer v. Railway Co., 56 Mich. 627 (23 N. W. 440); Hunn v. Railroad Co., 78 Mich. 513, 518 (44 N. W. 502, 7 L. R. A. 500); Peterson v. Railway Co., 67 Mich. 102 (34 N. W. 260, 11 Am. St. Rep. 564); Hewitt v. Railroad Co., 67 Mich. 61 (34 N. W. 659); Illick v. Railroad Co., 67 Mich. 632 (35 N. W. 708); Adams v. Iron Cliffs Co., 78 Mich. 271, 289 (44 N. W. 270, 18 Am. St. Rep. 441); Van Dusen v. Letellier, 78 Mich. 492, 504 (44 N. W. 572); Balhoff v. Railroad Co., 106 Mich. 606, 614 (65 N. W. 592); McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597).
The judgment is affirmed.
The other Justices concurred. | [
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] |
Campbeli J.:
The first objection to the recovery by the plaintiffs is made upon the ground that, by omitting to name any person to whom the guaranty of collection was made, the contract failed to comply with the Statute of Frauds, which requires a writing.
There are many cases in which a liability may be created against a person for the debt of another, without mentioning the name of any creditor; the guarantor’s proposition being in the nature of an open offer closed by acceptance of it. And Mr. Burge lays it down as a general proposition, that the name of the creditor to be secured may be established by parol. — Burge on Suretyship, 31, citing Bate- man v. Phillips, 15 East 272. There would seem, to be no good reason for holding such a guaranty as the one before us void, if it were held to come within the statute.
• But counsel have inadvertently overlooked the fact that when the owner of negotiable paper sells it, and accompanies the sale by a guaranty, his undertaking being founded on a new consideration enuring to his own benefit, and not to that of the maker of the note, has been held in this state to take the case out of the operation of the statute entirely. This was decided in Jones v. Palmer, 1 Doug. Mich. 379. The same doctrine has been long recognized in New York. — Brown v. Curtiss, 2 Comst. 225. See also a collection of cases in a note to the latter case, in 2 Comst. 588: also Brown on St. of Fr., §165. And Parsons adopts the same views. — 2 Pars. on Cont. 306.
The guaranty being one of collection, and ’not of payment, it is claimed that the facts in the case do not establish the inability of the plaintiff to collect of the principal debtor.
It can hardly be contended that a guaranty of collection requires suit to be brought in' any particular one of several courts which have jurisdiction. The remedies differ in substance, as well as in form, in various tribunals. One moves more rapidly than another, and sometimes one may reach property beyond the process of another. It would, as it seems to us, be importing a new element into this contract to construe it as requiring a suit in a court of record.
A transcript may be filed of a justice’s judgment for less than one hundred dollars, in order to reach real estate, as well as where the judgment exceeds one hundred dollars. And we see no very substantial reason why evidence that a transcript would be of no use for want of property, may not as well be allowed in one case as in the other. It was held in Backus v. Shipherd, 11 Wend. 629, that a transcript • need not be filed where there is no real estate, and that the return of an execution unsatisfied is prima facie evidence of non - collectabillity of a debt within the exclusive jurisdiction of a justice. Whether the return would be prima facie evidence here of inability to collect, we do not decide, as the facts are found, and no such question is raised. But the law does not generally require useless proceedings, and we do not think any thing more than a justice’s execution is necessary, where it appears that nothing can be reached.
The case of Beecher v. Baldy, 7 Mich. 488, decides that if a lot actually owned and occupied by a defendant in execution is worth less than fifteen hundred dollars, and is not greater In size than the law requires for exemption, it is exempt from execution without the necessity of any step on the part of the debtor. The defendant in the justice’s judgment having no other real estate but such an exempted homestead, a transcript would have furnished no means for reaching it, and would have been a needless expense.
Let it be certified to the Circuit Court for the County of Ingham, that the plaintiff is entitled to judgment upon the facts found.
Martin Ch. J., and Manning J., concurred.
Cheistiancy J., did not sit in this case. | [
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] |
Cheistianct J.:
The plaintiff’s counsel, upon the argument of this cause, seemed to concede that, if the plaintiff was a stockholder or member of the company, he would be bound by the resolution of the 11th of November, for the payment of the interest in bonds instead of money; and hence, he insists that the certificate upon which the action is brought, is not properly a certificate of stock, but merely evidence of a conditional subscription; and that the plaintiff would not become a stockholder until the condition should be performed by the opening of the road to Lake Michigan.
We think the certificate, if valid (a point we shall presently consider) is in every proper sense an absolute certificate of stock, with an agreement incorporated in it for the payment of semi - annual interest; and that it constituted the plaintiff a stockholder and a member of the company.
But as the case does not show that the plaintiff ever assented to, or acquiesced in, the resolution of the company, we can see no plausible ground for holding him bound by the resolution.'
The stipulation in the certificate, for the payment of interest, constituted a contract between the company and the plaintiff, as an individual: it created the relation of debtor and creditor to the extent of the semi-annual interest. The company could no more change, affect or -modify, his rights or their liability under this contract, by a resolution or by-law, without his individual consent, than they could in the same way affect their contract with or liability to a stranger : — Revere v. Boston Copper Company, 15 Pick. 363; Ins. Co. v. Conner, 17 Pa. St. 136 ; American Bank v. Baker, 4 Met. 176.
The authorities cited on the part of the defendants have no bearing upon this question; they only show the general right of the majority to bind the individual stockholders in all matters legitimately within the corporate powers of the company, and subject to the law of the land: not to make their own bonds a tender in 'payment of an acknowledged indebtedness to an individual, whether a stockholder or not. The power of the company to issue stock with such a stipulation for interest, is not denied by the defendant’s counsel; but he insists that it is not within the ordinary powers of the president and treasurer to issue stock of this kind, without special authority from the company; and hence, to bind the company, that their authority should be shown.
We do not deem it necessary to enter upon the consideration of this question, since ,the power of the corporation to have authorized it, is not disputed. If they could authorize their officers to do it, they can ratify their acts when done; and the very resolution upon which the defendant relies for a defense, very clearly recognizes the validity of - this interest-bearing stock, and thereby ratifies it, if it needed ratification. The company can not deny that this resolution applies to this identical stock, since they prove it, and rely upon it as a defense to an action upon this certificate. The judgment of the Circuit Court must be reversed, and a new trial granted.
Martin Ch. J., and Manning J., concurred.
Campbell J., did not sit, being a stockholder in the company. | [
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Martin, Oh. J.:
By a general statute of this state relative to corpora- tions (Comp. Laws, Ch. 13), provision is made for the sale upon execution of the franchises of a class of corporations within which this defendant is embraced. These provisions are substantially as follows: When any judgment shall be recovered against any turnpike or other corporation authorized to receive toll, the franchise of such corporation, with all the rights and privileges thereof, together with all their corporate property, both real and personal, may be taken on execution and sold at public auction. This sale of the franchise, however, is not to the highest bidder, as in ordinary sales upon execution, but to the person who shall satisfy the execution, with all legal fees and expenses thereon, and shall agree to take such franchise for the shortest period of time, and to receive during that time all such toll as the corporation would, by law, be entitled to demand. The officer’s return upon the execution transfers to such purchaser all the privileges and immunities of the corporation, so far as relates to the right of demanding toll, and he is required to deliver immediately after such sale, to the purchaser, possession of all the toll houses and gates of the corporation, in whatever county situated; and the purchaser may thereafter demand and receive all the tolls which may accrue during the time limited by the terms of his purchase, as the corporation might had not such sale been made; and he may recover any penalties imposed by law for the injury of the franchise, or from any other cause, which the corporation would have been entitled to recover during such time; the corporation being debarred for such time of that right. In other respects the statute retains to the corporation the same powers, and imposes upon it the discharge of the same duties, and the same liabilities to penalties and forfeitures, as existed before such sale; and it allows the corporation, within three months after such sale, to redeem the franchise, by paying the amount paid therefor, with ten per cent, interest, but without any allowance for the tolls received by the purchaser.
Now, at the common law, the franchises of a corporation were not subject to seizure and sale upon execution, but could only be reached by proceedings in equity. Such being the case, the sheriff derived Ms authority to seize and sell solely from this special statute; and he can not proceed under the general law concerning executions. This statute defines who shall be deemed to be the highest bidder, and its obvious intent is that the purchase under the execution shall only be by one who shall pay the amount demanded by the execution, with the legal fees, and shall offer to take such franchise for the shortest period of time. The francMse then is not sold absolutely, as property is under the ordinary executions issued upon judgments, but for a limited period of time; and is acquired by the purchaser for the purposes of reimbursement and Mdemnity for his payment of the debt; and competh tion in bidding is confined to this question of time.
The corporation is not deprived of its absolute title to-the franchise, nor does the purchaser acquire any, except the right to receive the tolls for a limited period; and he does not assume, nor have imposed upon him, any of the duties and obligations of the corporation.
If a sale can not be made by a sheriff upon these terms, it is his duty to return the, execution unsatisfied for want of bidders; upon which the creditor has his remedy against the corporation, or against '„the stockholders, by proceedmgs authorized by other provisions of the statute.
In strikmg off the franchise to Owen, for $60, as the. highest bidder, when the amount of the execution exceeded $600, the sheriff exceeded his authority, and the sale was void. Nor do the facts set forth M the affidavits “cure the mvalidity.”’ Indeed, it is impossible to conceive of any acts or facts wMch will render, valid that which is wholly void. The parties may, by contract, secure to the purchaser the same rights which he would have acqmred under the sale if valid; but such contract would not render thp sale valid. And this is the distinction between void 'and voidable acts. Acquiescence may give validity to the latter, but never can to the former.'
The individual stockholders were under no obligation to direct the sheriff in the discharge of his duties, nor to protest against that which they knew to be a nullity, or of the character of which they wei-e ignorant.
There is nothing like acquiescence by the corporation indicated by such silence of its members, or by their use of the road and the payment of tolls afterwards. Their e.onvenience or necessities may have required the latter, and it would be a monstrous doctrine to hold, that such necessities of the individual should compromise or extinguish the rights of the corporation. As individuals, they did not represent the aggregate body, nor act as its agents or representatives; and they could not, by their acts or omissions, bind it.
Nor will the fact that Owen has, since the pretended purchase, expended large sums in repairs upon the road, if true, cure such invalidity, both for the reasons above given, and because, if he acted in the best faith, yet he made them voluntarily, without any legal obligation to do so, and upon property not his, but which he held under a void sale.
The questions must be answered in the negative.
The other Justices concurred. | [
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] |
Campbell J.;
It appears in this case, that the plaintiffs in error, being in arrears for rent, and having left the demised premises, the defendant in error gave the key of the house to one Harvey Burns, who was employed to take care of the place and occupy it until defendant in error could rent it. She brings an action for rent for a period including the time when Burns was in possession.
There is no proof in the case from which an inference could be legitimately drawn, that the entry of defendant in error was by consent of her tenants, or under any arrangement with them. This being so, and the entry being followed by a continuous possession, which was inconsistent with the possessory title assured to the tenants under the lease, that possession amounts very clearly to an eviction:— Lewis v. Payn, 4 Wend. 423 ; Dyett v. Pendleton, 8 Cow. 72; Lawrence v. French, 25 Wend. 443. A tortious entry not followed by possession stands on a different footing, and is a mere trespass. Ibid.
So far as the present case is concerned, it makes no difference whether the action of the defendant in error be considered as an entry on condition broken or otherwise, If she be regarded as entering on condition broken, that would signify an intention to terminate the lease entirely, If she regarded the lease as still continuing, the right to rent-was supended during the occupancy:- — Taylor on L. & T. §§378, 380. In the absence of any evidence showing an understanding with the tenants, she had no right to reassume possession, whether the premises were vacant or not, if she designed to regard the lease as continuing. The plaintiffs in error had the right, therefore, to have the instructions given which they asked of the court be low, and the refusal of the court to give them was erroneous.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Christiancy J.:
The information charges the prisoner with uttering- and passing as true, a counterfeit bank bill, purporting to have been issued “ by the Agricultural Bank, an incorporated banking company in the State of Illinois,” with intent to injure the person to whom the bill was passed. The only section of the statute creating or defining the offense is section six, chapter 182 of Compiled Laws, p. 1526. This section, by its reference to section four of the same chapter, has the effect to incorporate section four, so far as respects the description of the bill and of the bank. This section four is in the following words: “Everyperson who shall falsely make, utter, forge or counterfeit any bank bill or promissory note,' payable to the bearer thereof, or to the order of any person, issued by any incorporated banking company in this state, or in any of the British Provinces of North America, or in any other state or country, or payable therein at the office of any banking company incorporated by any law of the United States or of any other state, with intent to injure or defraud any person, shall be punished,” &o. It is obvious that the words, “ issued by any incorporated banking company,” when applied to the charge for uttering and passing, under the sixth section, can not be taken literally, without confining the operation of the section to cases in which the bills have been made counterfeit by alteration from the genuine; since, if actually “issued" by the bank,' they must, in all other cases, be genuine; yet it is' clear that the sixth section was intended to be as broad as the fourth, which expressly extends to falsely making and forging. This apparent want of logical accuracy arises from grouping together in the same sentence, in the sixth sec tion, the case of altering a genuine bill with that of the false making or forging. The phrase “issued by,” &c., when applied to the offense of uttering and passing, must, then, either be construed as equivalent to the words, “purporting to be issued,” &c., or “in the similitude of the bills issued by,” &o. The first construction would not require the existence of any bank; the latter would imply the necessity of its existence. This being a criminal statute, we adopt the latter, as the more limited construction And to this construction the information conforms.
It is clear that where the charge is for uttering and passing, the bank must be described as an “ incorporated banking company.” The same is true also of having in possession ten or more counterfeit bills, under section five, as well as for falsely making counterfeiting, &e., under section four.
But as to the offense of bringing into this state or having in possession with intent to utter, &o., under section eight, it would be sufficient to describe the bank as “ established” in the places mentioned, without averring it to be incorporated.
Section ten of the same chapter, after enumerating specifically all the foregoing offenses mentioned in sections 4, 5, 6 and 8, including the offense here in question, and dispensing with the evidence of the president and cashier, if out of the state or more than forty miles from the place of trial, and allowing the bills to be proved counterfeit by the testimony of any person acquainted with their signa-' tures, or who has knowledge of the difference in appearance of the true and counterfeit bills, then concludes with the following provision (inserted by amendment April 7th, 1851): “and the lawful existence of any bank out of this state shall be presumed upon evidence that such bank is actually engaged in the business of a bank” (for such- I understand to be the operative words of the amendment, notwithstanding the discrepancy between the words declared by the prior portion of the act, to be inserted, and those actually inserted in the section as amended. — Sue haws of 1851, pp. 1C 9, 170; Constitution, Art. 4, §25). Now, as the provision here quoted applies to this offense, and to the hank here in question, and it is quite apparent that its chief object was to dispense with the strict proof of the legal existence of incorporations which might be required at common law, its effect must be, we think, to dispense with all proof upon this point except that which shall be sufficient to show “ that the bank is actually engaged in the business of a bank.” Upon satisfactory evidence being given of this fact, the statute presumes the lawful existence of the bank, and no evidence need be given touching the legality of its existence.
The Recorder charged the jury that, in order to convict, they must be satisfied from the testimony that said Agricultural Bank existed. But that general reputation in the community of its existence, and the fact (that its bills were passing current from hand to -hand in the business transactions of the day, were sufficient evidence of the existence of the bank, for the consideration of the jury; and if they were satisfied from such testimony that there was such a bank as the Agricultural Bank, it would be sufficient evidence to establish that fact. To this charge the defendant excepted.
It will be noticed here, that the only fact in controversy, so far as this exception is concerned, was whether there was de facto a bank “ engaged in the business of a bank;” and if the evidence in question showing the circulation of its bills as current in the community, and the reputation of its existence, was admissible at all as tending to show this fact, then its weight was for the jury; and the charge of the Recorder was correct. The whole question then is reduced to that of its admissibility, as tending to show this fact.
It is to be recollected that no court in the state has the power to compel the attendance of witnesses from another state, or to take their deposition in a criminal case, unless the defendant takes a commission for that purpose. It is for this reason, and to avoid the necessity of calling witnesses from a distance, even within the state, that this statute has dispensed with strict proof upon the question whether the bill is genuine or counterfeit; a point upon which there is much greater liability of erring to the defendant’s prejudice. And unless such testimony as was here adduced can be admitted, the conviction of knaves and counterfeiters will, in many cases, be rendered impossible.
This consideration must not, it is true, be carried so far as to admit Testimony unsatisfactory in its nature, or which may be calculated, from its uncertainty, to endanger the innocent. But we can see no reasonable apprehension of danger, nor any substantial liability to error, from the admission of testimony of the character here in question. It is the same evidence upon which every man relies in the ordinary business transactions of life; upon the faith of which lie parts with his property, and trusts with confidence his most important pecuniary interests. ■ There is no subject upon which business men, and especially bankers and brokers, are likely to be so well informed. Their own pecuniary, interests compel the most eager and rigid scrutiny, without which they could not safely transact business for a single day. The thermometer is not more sensitive to changes of temperature than the public mind to every thing and to every rumor which is calculated to depreciate the credit of the bills which circulate in the community as money; and nothing, certainly, could tend more to depreciate the credit of such bills than the fact that they were not issued by any institution or association doing business de facto.
So general and so intimate are the business relations of the people, at least through all of the states north of the Ohio, and east of the Mississippi, and such are the facilities for the transmission of intelligence by railroad and the electric telegraph, that an imposition of this kind would not be likely to succeed for forty-eight hours without being detected, at all the great commercial points at least.
We think, therefore, the evidence given in this case, showing the general circulation of the bills of this bank as money, and the reputation of its existence, was clearly admissible; that such evidence raises a strong, even a violent presumption of the existence of such an institution de facto, and that it was engaged in thejausiness of a bank ; that if less direct, yet, coming from several witnesses, it is even more satisfactory than the testimony of a single witness who might have been at the bank and seen them issue and redeem bills. And taking into consideration the extreme improbability that any one will counterfeit the bills of a fictitious institution, or of one not “engaged in the business of a bank,” or that he would attempt to pass such counterfeit bills, knowing' them to be such, we can see no reasonable apprehension of danger from such testimony.
The conclusion at which we have arrived will be found fully sustained by the following cases: Johnson v. People, 4 Denio, 364; Sasser v. State, 13 Ohio, 486; and Reed v. State, 15 Ohio, 211. See also as bearing less directly upon the question, but as throwing light upon it, — People v. Caryl, 12 Wend. 547; People v. Chadwick, 2 Park. Cr. R. 163; People v. Davis, 21 Wend. 309.
Several of the cases cited by the counsel for plaintiff in error against this conclusion, when carefully considered with reference to the difference between the statutes affecting them and our own statute, will be found very strongly to confirm it. See especially State v. Carr, 5 N. H. 367. Arid none of the cases in the United States, cited by the plaintiff in error, when considered with reference to our statute, will be found to conflict with that conclusion.
No error appearing in the record, the judgment of the Recorder’s Court must be affirmed.
The other Justices concurred. | [
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Campbell J.:
The whole of this case depends upon the nature of the instrument, executed by Barstow & Nash, to Hall & Page, which was held by the court below to be a valid chattel mortgage.
The instrument bears a close resemblance to the one considered by the Supreme Court of the United States, in the case of Hunt v. Rousmanier, 8 Wheat. 174,'*'and again in Hunt v. Rousmanier’s Adm. 1 Peters, 1. It was decided in the latter case, that even in equity, an instrument must stand as written, if deliberately adopted by the parties, although they mistook its legal intent; the mistake being one of law merely; and especially so when the rights of creditors intervene. We are bound therefore to look for the intent of this agreement to the paper itself, and not beyond it.
It is not a pledge, because there was no possession given; and it is not a mortgage, for it does not purport to change, in any way, the title to the property, which was to remain throughout in the makers. It is nothing but a naked power, not coupled with any present interest, and which could never operate to give Hall & Page any rights in the property itself, until reduced to possession. The levy having ■ been made before this, and while the entire title was in the attachment debtors, must prevail over it.
The court below erred in holding the instrument valid as a mortgage, and the judgment must therefore be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Martin Cii. J.:
By §101 of act No. 32 of the session of 1858, (S. JO. pp. 186, 189) the Legislature attempted to confer upon Circuit Court Commissioners judicial powers equal to the combined powers of courts of law and of equity. By §16 of Art. 6 of the Constitution, the Legislature could only invest these officers with powers not exceeding those of a Circuit Judge at chambers; and this attempt to clothe them with these superior powers, is in. direct conflict with this constitutional provision.
The judgment of the Circuit Court Commissioner is reversed, with costs.
The other Justices concurred. | [
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Grant, J.
Were these jurors disqualified? is the sole question presented. Section 6, after providing the number, qualifications, and method of drawing the jurors, provides:
“The practice and proceedings under this act, except as herein provided, relative to impaneling, summoning, and excusing jurors and talesmen, and imposing penalties or fines upon them for non-attendance, shall be the same as the practice and proceedings of the circuit courts of the State relative to petit jurors in civil cases in such courts, except that peremptory challenges shall not be allowed.”
Section 5 of the law in regard to jurors in the Wayne circuit court contains the following:
“No person shall be returned or shall be qualified to be or become one of a panel of petit or grand jurors in any court of record in Wayne county who, within three years prior thereto, has been or acted as a member of a panel of petit or grand jurors, whether summoned on the original panel or added thereto as talesman, in a court of record, except as otherwise provided in section twenty-one; and it shall be the duty of each of said courts, on the return day of the venire, to inquire of the jurors summoned if any of them have served as jurors during the preceding three years, and to excuse from service any jurors who have so served.” Act No. 204, Pub. Acts 1893.
Section 6 expressly fixes the qualifications of jurors in these condemnation proceedings, and contains no such restrictions as are found in the- other act.- The words “practice and proceedings” do not refer to the qualification of jurors, but solely to the manner of “impaneling, summoning, and excusing” them.
The challenge was properly overruled, and the judgment is affirmed.
The other Justices concurred. | [
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Moore, J.
This case has been in this court once before, and is reported in 122 Mich. 567 (81 N. W. 556). In an opinion by Hooker, J., it was held the contract sued upon was void under the statute of frauds; that the action being assumpsit for the breach of an alleged warranty, and no contract relations ever having existed between the parties to the record, the defendant could not be sued in this form of action, but plaintiff’s only remedy, if any, against this defendant, was an action on the case for the alleged fraud and deceit. Judgment having passed for the plaintiff below, it was reversed, and no new trial ordered. On a motion for a rehearing, counsel for appellee called the court’s attention to a recent statute (3 Comp. Laws, § 10421) which provides for an action of assumpsit in certain cases where formerly only an action on the case could be brought. In an opinion reported in 122 Mich. 573 (82 N. W. 827), the court directed a new trial. The case was remanded to the circuit court, where, on a second trial, with the same declaration, plaintiff recovered another verdict and judgment. The general history of the case is so nearly alike in both trials that a detailed statement will be made unnecessary by a reference to the opinion of the court in 122 Mich. 567 (81 N. W. 556).
The defendant claims that, upon the record as it stands, no recovery can be had, and the circuit judge should have directed a verdict in his favor:
1. Becausó, as to all questions affecting the real merits of the case, the matter is res adjudicata.
2. Because 3 Comp. Laws, § 10421, did not warrant a retrial of the case upon the same declaration.
3. Because 3 Comp. Laws, § 10421, does not authorize an action of assumpsit for a mere naked tort.
As to the first of these reasons, the record discloses that, upon the former trial, the plaintiff sought to recover for a breach of the contract, and this court held that,' as there were no contract relations between the parties, defendant could not be guilty of a breach of the contract. Upon this trial the plaintiff sought to recover, not for a breach of the contract, but for fraud and deceit, which was not the same issue which was litigated before.
It is insisted by defendant that, before he could be held liable, the declaration should have been amended so as to bring him within the terms of the statute. The statute reads:
“ The People of the State of Michigan enact, that in all cases where, by the fraudulent representations or conduct of any person, an injury has been or shall be pro duced, either to the person, property, or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”
It would doubtless be better pleading to refer to the statute in the declaration in such a way as to advise the defendant that plaintiff claimed he was within its provisions. In this case the declaration set up the representations made by the defendant, which she claimed were false and fraudulent, and for which she might bring an action on the case for fraud and deceit. Having done this, she brought herself within the terms of the statute, and, if the proof warranted it, would be entitled to recover.
As to the third proposition, counsel says:
“If this suit had been planted against Newcomb, I can very well see how an action of assumpsit for fraud and deceit, if any, might be maintained under this statute. As against him the plaintiff would have her choice of three remedies: Assumpsit for breach of warranty; an action on the case for fraud and deceit; or, waiving the tort, an action of assumpsit for the latter. But by what fiction of law a promise can be implied against this defendant, when in all he said and did he was simply the mouthpiece of Newcomb, is beyond my power to discern. That he is liable for his own tort, if any, no one will dispute; but that you can turn a contract, to which he was not a party, into a tort, and then shift it back into a new implied contract, and by virtue of the alleged tort make him a party to it, thereby laying the foundation for an action of assumpsit, is a species of legal legerdemain which is not easily understood, and ought not to be tolerated,” — citing Emerson v. Spring Co., 100 Mich. 133 (58 N. W. 659), and Bedier v. Fuller, 116 Mich. 128 (74 N. W. 506).
The first of these cases arose before the statute of 1897 was passed. The litigation in the other case began long before the statute was passed. The opinions in both cases were based upon the law as it existed before the enactment of the statute. The language of the statute is not ambiguous, and, while it is anomalous to say that one who perpetrates a fraud or practices deceit by implication promises to pay any damages that may result therefrom, we are not prepared to say the legislature may not provide that, for damages growing out of fraud and deceit, assumpsit may be maintained. Hallett v. Gordon, 122 Mich. 573 (82 N. W. 827).
Complaint is made of the rule of damages the court gave to the jury. His statement of the rule was not such a statement as was calculated to prejudice the rights of the defendant.
Judgment is affirmed.
The other Justices concurred. | [
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Montgomery, O. J.
The original bill in this case was-filed to quiet complainant’s title, which he claims to own by virtue of a tax title for the taxes of 1893. Decree-passed in favor of the complainant, and later on the defendant bank filed a petition for a rehearing, which the court took under advisement, but finally denied. An appeal is taken both from the original decree and from the order refusing a rehearing.
It is contended that the tax title is invalid for the following reasons:
1. Under the decision in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656).
2. Because the land was never legally bid to the State for the taxes of 1893.
3. Because the complainant did not pay the taxes for 1895 at the time he purchased.
' 4. Because there was no legal notice published of the State tax land sale in 1896, at which time Munroe bought.
5. It is also contended on the part of the defendants that the complainant was not in a position to purchase a tax title, and file a bill against defendants based on his alleged possession of the premises, because prior to his purchase of the tax title he had obtained, through one Jenner, a license from Mr. Jenison to build a street railway across these premises, under which license he had built such street railway, and was maintaining and operating it on these premises at the time he tried to devest the title of his licensor by purchasing the alleged tax title.
It is claimed that, at the time the proceedings were taken to foreclose the lien for the taxes of 1893, the lands had been previously bid in to the State for the taxes of 1892, and were so held, and that, therefore, the sale for the taxes of 1893 is invalid, under the decision in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656). We do not think this question can be raised fin this collateral proceeding. This is a bill filed to quiet title. The complainant makes his title under an unreversed decree. This defense seeks to attack that title by averring that the court erred in granting the decree. The question is not different from that which would arise in an action of ejectment. In either case it is a collateral attack. Peninsular Sav. Bank v. Ward, 118 Mich. 87, 93 (79 N. W. 911). It is suggested that the amended answer, if a rehearing be granted, is in the nature of a bill of review. But it is to be borne in mind that tbe State was interested in tbe original proceeding. Tbe auditor general was a party to that proceeding. If the decree is vacated, the State will be called upon to reimburse the purchaser a,t the tax sale. The only proper way of raising the question would be by interposing in that proceeding.
It is said that the lands were never properly offered for sale, because, when offered, the purchaser was required to take the same descriptions of land from the State tax land list, and that, as the previous sales to the State were void, the land was never properly sold. We think this position cannot be maintained. On the face of the records, the lands were held under previous State bids; and we think it is not the intention of the law that a sale under a regular decree shall be vitiated because the purchaser is also required to pay the taxes apparently due the State under previous sales.
It is also claimed that the title of complainant fails because the purchaser failed at the time of the purchase to pay the taxes of 1895, which had been returned delinquent and remained unpaid. Defendants rely in support of this contention upon the case of Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134). But this case was distinguished in Berkey v. Burchard, 119 Mich. 105 (79 N. W. 908), in which case it was held that the rule in Hughes v. Jordan does not apply to a purchase of the State’s title on a public sale by the county treasurer. Counsel urge at considerable length that, under the language of section 70 of the tax law (Act No. 206, Pub. Acts 1893),, the same rule should obtain as to taxes returned delinquent as was applied in Hughes v. Jordan. But the case of Hughes v. Jordan rested upon section 84 of the act, and the case of Berkey v. Burchard was intended to cover all cases of sales by the county treasurer.
The infirmity alleged in the notice of the sale at which complainant purchased is this: The notice was published on November 14th, 21st, and 28th, and on December 5th, and the sale took place on December 7th; and it is claimed that, inasmuch as the first publication was less than four weeks prior to the sale, the notice was insufficient. Counsel rely upon the case of Bacon v. Kennedy, 56 Mich. 329 (22 N. W. 824), to sustain their contention. In that case it was held that, on a statutory foreclosure, the notice should be published for 12 successive weeks, and that the sale could not take place in less than 12 weeks from the first publication. It was said in reaching this conclusion, “ The statute does not say that notice shall merely be published 12 times, 'once a week, but once a week £ for 12 successive weeks.’ ” The language of section 79 of the tax law, as it stood when this proceeding was had, was as follows: “The auditor general shall cause tobe published for four weeks successively, which shall be construed to mean four publications once a week, next previous to the first Monday of December in the years provided by this act, a notice,” etc. It will be seen that the publication next previous to the first Monday could not be a full week prior to Monday. It would be during the week. And so with the preceding weeks. The publication must be once during each of the weeks. We think that, under this statute, a publication once a week, occurring four times next previous to the first Monday, is valid, though less than a week transpired between the last publication and the day of sale, and less than four weeks between the first publication and the day of sale. The statute itself prescribes its own rule of construction.
But one other question remains to be considered. It is contended by the defendants that the complainant’s possession was derived through a license which reads as follows:
“For and in consideration of the construction of a street railway to be constructed by George Jenner through Washington street, in the city of Grand Haven, along Water street and lake shore to Highland Park, in said city of Grand Haven, I hereby consent that said street railway may cross any real estate belonging to me on the lake shore between the westerly terminus on Water street and the said Highland Park.
“Dated April 15, 1895.”
The above was in typewriting. There was added with a pen:
“ I hereby sign the above without consenting or in any way assigning any rights that may have accrued'to me by trust deed from J. W. Boynton.”
And this was signed by Luman Jenison. It is claimed that Jenner was acting for complainant in securing this license, and that, having gone in under the license, complainant could not become a purchaser of an outstanding title.
We think this contention fails, for the reason that we do not find that the license covered the land in question. We are satisfied that the lands l’eferred to as held by trust deed from Boynton were the identical lands here involved. While the testimony of Mr. Jenison is not very clear, he does state that the writing he gave Jenner would be according to the facts as they were at that time. There is testimony of a surrender by Boynton of his contracts to Jenison, although the contracts are not produced; but it is evident from this testimony that this surrender must have been after the execution of the above license.
The record shows that, long before the original bill was filed, the defendant Winegar had parted with his title to the land. When brought into court, he disclaimed. But the complainant continued to prosecute his suit against him, and a decree was entered in complainant’s favor against him, as well as against the other defendants, for costs. We think in this respect the decree was erroneous, and the defendant Winegar will be permitted to recover his costs of this court, and those incurred in the circuit after the filing of the disclaimer, to be taxed. In other respects the decree will be affirmed, and complainant will recover costs against the other defendants.
The other Justices concurred.
But see Youngs v. Povey, 127 Mich. 299, par. 2, and cases there cited. | [
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Hooker, J.
John Hasbrouck died testate in the year 1869, possessed of considerable personal- property, but no real estate. He left a widow, Rachel, and several sons and daughters. No executor was named in his will, but two of his sons, viz., Joseph B. and John J., the defendants herein, were, appointed administrators'with the will annexed, the will having been duly admitted to probate. The estate was appraised-at $12,092.93, and claims aggregating $4,046.88 were allowed by commissioners and paid. Rachel died on December 8, 1896. The administrators having filed no account in probate court, the appellants (two daughters of John Hasbrouck, deceased) filed a bill in chancery against them for an accounting in 1898. That bill was dismissed. On January 21, 1899, at the instance of the appellants, the administrators were cited to appear in probate court and render an account, which they did. A hearing was had, and that court made an order allowing said administrators to be credited with the full amount of the principal of said estate. The appellants appealed to the circuit court, where the cause was tried by the court without a jury, and a written finding of fact and law was filed, which was a substantial affirmance of the order of the probate court. A request was made for amended findings, and the case is before us on error.
The record shows that the will contains the following provisions, viz.:
“First. I hereby give and bequeath to my beloved wife, Rachel Ann, all my property, real and personal, to have during her life, or as long as she remains my widow.
“Second. After paying all my debts and funeral expenses :
“Third. I hereby give and devise to my children, James Henry Hasbrouck, Joseph B. Hasbrouck, John Jamison Hasbrouck, Rebecca Maria Ennis, Elizabeth Traphagan Fonda, Martha Sickles Hasbrouck, and to my five grandchildren, Nelson Hasbrouck, Anna Hasbrouck, Jimmy Hasbrouck, Jessie Fonda Hasbrouck, and the youngest, name unknown, children of my son David Hasbrouck, and to their heirs and assigns, all the real and personal of my estate, both real and personal, to be divided into seven equal shares, each child, their heirs and assigns, to have and receive one share, and said five grandchildren in the right of their father one share; and in the making of the said several shares my son David Hasbrouck is to be charged an indebtedness to my estate in the sum of twelve hundred dollars, it being for money advanced by me during my lifetime for his benefit; also my son James Henry Hasbrouck is to be charged with indebtedness to my estate in the sum of five hundred dollars, being for money advanced by me to him during my lifetime.
“Fourth. After the decease of my wife, Rachel Ann Hasbrouck, I give and devise to my said children, James Henry Hasbrouck, Joseph B. Hasbrouck, John Jamison Hasbrouck, Rebecca Maria Ennis, Elizabeth Traphagan Fonda, Martha Sickles Hasbrouck, and my five grandchildren, Nelson Hasbrouck, Anna Hasbrouck, Jimmy Hasbrouck, Jessie Fonda Hasbrouck, and one, name unknown, all my estate, both real and personal, that may revert to my estate on the decease of my said wife, to be divided among them in the proportion as provided in the above bequest made direct to them.”
It is the claim of the appellees that this will gave to Rachel the right to the possession and control of all personal property of the estate after the payment of the debts. Appellants insist that it gave her a right to the income only, and that it was the duty of the administrators to retain the possession and control of the property of the estate, and to pay to the widow only the income.
The appellees claim that the proofs show that the property which came to the hands of the administrators was delivered by them to the widow, and that no portion 'or residue of it has ever come back into their possession. The appellants claim that there is no evidence in the record tending to show this.
The appellants further contend that, if the administrators lawfully turned over a portion of the estate, they should be required to account for the residue, and that the order of the circuit judge was for less than the record shows to be unaccounted for.
The appellees claim that, if it be held that the widow had no right to the principal of the estate, the same has been paid to her with full knowledge and acquiescence of the appellants, and has been used by her, and that they should be estopped from claiming that such payment was unlawful.
Upon the argument it was urged by the appellants’ counsel that we should review the merits as contained in the findings of fact. On the other hand, appellees insist that the findings must be treated as final upon all questions of fact where there is dispute in the testimony. We are of the opinion that the latter is the correct practice, and must treat the findings of fact as conclusive where supported by testimony. We find evidence tending to show that all of the property except the amount necessary to pay claims was given to Rachel, and that the appellants had knowledge of such fact.
The question of construction of the will relates to the right of the administrators to give the property into the possession of the widow. It is not a question of her absolute right to the property alone, as in the case of Cousino v. Cousino, 86 Mich. 323 (48 N. W. 1084). The will in the present case did not purport to convey to the widow an unqualified title to this property, but we think the intention to give her the custody of the property, and the expectation that she might use some of the principal, is shown by the language of the will. The testator gives her the property to have during her widowhood, and he gives to others all of the property that may revert to his estate. The former expression implies custody and right to use, and the latter suggests uncertainty as to the amount that may come back to his estate. The rule invoked by the appellants that, where personal estate is money, the one entitled to its use cannot demand its custody from the executor, is not applicable where the language of the will indicates not only a right to consume the estate if necessary, but a right to the custody as well. Our own Reports contain cases supporting this conclusion, and it is therefore unnecessary to refer to those of other courts. Proctor v. Robinson, 35 Mich. 284; Sutphen v. Ellis, Id. 446; Patterson v. Stewart, 38 Mich. 402; Glover v. Reid, 80 Mich. 228 (45 N. W. 91); MacDonald v. Hanna, 100 Mich. 412 (59 N. W. 171). Several of these cases sustain the claim that a bequest for life does not convey absolute title, but at the same time hold that it confers a right to possession and control, under wills similar to the one before us. In others such intention is clearer; while in two recent cases the opposite intention is deduced from the wills, and the right to control and use the principal at will denied. Hull v. Hull, 122 Mich. 338 (81 N. W. 89); Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).
Having determined that the administrators might lawfully deliver the property to the widow, the question of estoppel need not be discussed.
There are left to consider some questions in relation to the account as rendered, for, while the court has found that all of the estate was delivered to Rachel, he held that the administrators should account for some items. In his third finding he states that in 1869 Rachel purchased a house and lot, for which the administrators paid from the estate the sum of $2,100, which sum was afterwards increased by the expenditure of $1,870 to rebuild the house, which was wrecked by a cyclone.- The record does not show any controversy over this, except as it is involved in appellants’ claim that it was a misapplication of funds, and this has been already covered by what has been said.
The court found that a claim of $300 was allowed' against the estate in favor of Joseph B. Hasbrouck, of which $200 was paid, and that there is due the administrators for services $220.92. It was also found that Rachel loaned to William Ennis $800, taking his promissory note, upon which $50 has been paid. She also loaned to John J. Hasbrouck, one of the administrators, $700, taking therefor a real-estate mortgage, no part of which has been paid. Joseph B. Hasbrouck received as rent for the premises bought by Rachel $510 before her death, and $192.90 after, and paid out $70.75 for insurance and funeral expenses. He also paid out $97.36 for necessaries for Rachel, and for taxes and repairs $88.67. Both were paid during Rachel’s life. In 1892 Rachel went to live with Joseph, and remained until her death, promising to pay for board and care. The court found the value of the services and board was $601.25.
The court determined that, upon final settlement, Joseph should be paid $100 for the claim allowed, and the item for care and maintenance, also the item for money .paid by him for debts .of Rachel before 1892, after deducting amounts received for house rent, and interest upon money loaned belonging to the estate, received before the death of Rachel; also that the administrators should be allowed the amount found due for services. They were required to account for money received since the death of Rachel for house ren^, and interest on money loaned, less the expenses of the funeral of Rachel; and it was held that the loans made to Ennis and John by Rachel, and the remaining assets of John Hasbrouck’s estate, should be accounted for in probate court.
It is contended that the item for the care of Rachel should not be a charge upon this estate, but should be presented against the estate. The charge is, in our opinion, a proper one, being equivalent to money paid for her support.
Error is assigned on the refusal of the court to find how much interest was received on the Shafer mortgage by the administrators, and what' was done with it. The court found that all of the property of the estate was given to the widow, except the money paid for the house and lot, to which she took title. This covers the Shafer mortgage.
An error of $50 in the amount of John J. Hasbrouck’s mortgage is cdnceded, and it is claimed that the sixth finding fails to credit Ennis with the full amount paid Rachel by him upon the note given her. The last is unimportant, as Ennis is not a party, and therefore not bound by the finding. As to the mortgage referred to, the sixth finding may be treated as amended by making the amount $750 instead of $700. With this modification, the order will be affirmed. Neither party will recover costs of this court.
Montgomery, O. J., and Moore, J., concurred. Long and Grant, JJ., did not sit. | [
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Long, J.
This proceeding is brought in this court by the attorney general by information in the nature of quo warranto on the relation of William 0. Maybury, mayor of Detroit, and others, to oust the respondent from the office of commissioner of parks and boulevards of the city of Detroit.
Prior to 1901 there existed in the city of Detroit a board of commissioners of parks and boulevards, consisting of four persons nominated by the mayor and approved by the common council. The legislature in 1901 abolished this board, and provided for a single commissioner, to be appointed by the common council. Act No. 417, Local Acts 1901. It is claimed by counsel for relators that the body of the act of 1901 provides for radical changes not mentioned in the title, thus rendering the act void under the provisions of section 20, art. 4, of the Constitution of this State, which provides that “no law shall embrace more than one object, which shall be expressed in its title.”
The title of the act is:
“ An act to amend sections one, two, three, four,” etc., “of an act entitled ‘An act supplemental to the charter ■of the city of Detroit’, and relating to parks, boulevards, and other public grounds in said city, and to repeal act number three hundred and seventy-four of the local acts of eighteen hundred and seventy-nine, entitled “An act to provide for the establishment and maintenance of a broad street or boulevard about the limits of the city of Detroit,” ’ ” etc.
The act fixes the term of the office of the commissioner at four years. It also provides that at the end of that term, or in case of a vacancy, the mayor shall appoint. We find nothing in the act that might not have been incorporated in the original act. The power granted to the council under the new act is fairly within the title of the act amended. The act giving the council the power to appoint the commissioner of parks and boulevards has a natural connection with, and is not foreign to the act amended, “ relating to parks, boulevards, and other pub- lie grounds in said city.” It was said in Holden v. Osceola Co. Sup’rs, 77 Mich. 204 (43 N. W. 970):
“Most of the great changes in our city organizations have come in under laws which did no more than to indicate by their titles a purpose to incorporate, or reincorpórate, or revise the corporate charter of the municipality dealt with. Anything which is meant to form a perma- ' nent element in municipal arrangements is pertinent to the1 incorporation.”
It was held in City of Detroit v. Wayne Circuit Judge, 112 Mich. 319 (70 N. W. 894), that “it is competent to introduce by amendment anything which might have been introduced in the original act;” and the same' rule was also laid down in Fort Street Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631). The contention made cannot be sustained.
It is contended by relators :
“That the city of Detroit enjoys the right of local self-government by means of a mayor, vested with the executive power of nomination of all city officers other than ministerial, and by means of a council, vested with legislative powers, but not with the power of appointment of city officers other than ministerial; that the city of Detroit enjoyed this right of local self-government, with this division of powers, at and before the time of the adoption of the Constitution of 1850, which instrument recognizes and confirms this right, and was adopted subject to that right; so that the legislative power of the State cannot be exer-' cised to take away that right, and to take away from the mayor any part of the executive power, and bestow it upon the council; that, consequently, the act under which the respondent claims title to his office by appointment of the council is not of constitutional validity.”
The legislature has not attempted by the act to deprive the citizens of Detroit of their right to local self-government. The members of the common council of the city, as much as the mayor, are the immediate representatives of the citizens. They are elected by the direct vote of the people, and represent the people, and are in as close touch with the people as is the mayor; and since the citizens of any community cannot perform any function of government in a collective capacity, and can act only through their agents, it would seem impossible to confer the power to act upon any municipal agents more nearly representative than the common council. It was said by Mr. Justice Campbell in Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202):
“ A city is, and must be, as I conceive, a unit for purposes of government; and all bodies employed in the service of the municipality, and not directly representing the freemen, must act as agencies subordinate to the council.”
But counsel for relators contend that the common council of Detroit is' a legislative body, and cannot constitutionally be vested with the power to appoint an administrative officer; that the power to appoint to office is an executive function, and can be exercised only by the mayor. That question was discussed in People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103). Mr. Justice ChrisTIANCY, speaking for the court, said:
“As to this mode of appointment being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power cannot always be defined by any fixed standard in the abstract. What would come within the executive power in our form of government would fall within the legislative in another, and vice versa. The question here is whether, under our Constitution, it is executive or legislative; and, as the Constitution has not confided the appointment of these or the like officers to the executive authorities, and has left it to the legislative discretion whether to create such offices, and how they shall be filled, it cannot be truly said that such an appointment is any more in the nature of the exercise of an executive than of a legislative power.”
It has been repeatedly held in other States that the power of appointment to office is not essentially an executive function, and may, therefore, in the absence of constitutional restriction, be vested in departments other than the executive. State v. Swift, 11 Nev. 128; People v. Morgan, 90 Ill. 558; People v. Freeman, 80 Cal. 233 (22 Pac. 173, 13 Am. St. Rep. 122); People v. Langdon, 8 Cal. 16; Mayor, etc., of Baltimore v. State, 15 Md. 376, 455, 456 (74 Am. Dec. 572); Fox v. McDonald, 101 Ala. 51 (13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98); People v. Woodruff, 32 N. Y. 355, 356; Biggs v. McBride, 17 Or. 640, 648 (21 Pac. 878, 5 L. R. A. 115); State v. George, 22 Or. 142, 151 (29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586); People v. Hoffman, 116 Ill. 587, 601 (5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793); State v. Boucher, 3 N. Dak. 389 (56 N. W. 142, 21 L. R. A. 539). These cases support the rule laid down by Mr. Justice Christiancy in the Hurlbut Case.
The legislature of this State has many times conferred upon the common council of Detroit the absolute right to appoint administrative officers independently of any action of the mayor. The act creating the board of water commissioners, passed in 1853, vested in the common council the authority to appoint members of the board. Act No. 90, Laws 1853. At this time the mayor was a member of the common council, but in 1857 he ceased to be a member. Notwithstanding this, the appointment of the members of the water commission was still retained in the hands of the common council, and the mayor had no voice in the appointment. Act No. 55, Laws 1857, chap. 2, § 3. This was the condition of the city charter up to 1880. Charter 1880, § 77. In 1881 an act was passed for the express purpose of giving the mayor the right to nominate the members of the water commission. Act No. 418, Local Acts 1881. It also appears that, under the city charter of 1857, the common council was authorized to appoint a city controller. Act No. 55, Laws 1857, chap. 2, § 2. At this time the mayor was not a member of the council. Id. chap. 5, § 1. The common council continued to appoint the city controller by resolution, and independently of the right of the mayor to nominate, up to 1880. In 1881 an act was passed giving the mayor the right to nominate the city controller. Act No. 405, Local Acts 1881, § 2. But up to 1881 the authority to appoint the city controller and the members of the board of water commissioners was vested absolutely in the common council. The mayor had no voice in the selection of these administrative officers. The common council was also authorized to appoint one or more street commissioners anda marshal. Act No. 55, Laws 1857, chap. 2, § 2; Act No. 136, Laws 1861, § 2.
There is no provision of the Constitution which makes it imperative that the selection of these administrative officers must be confided to the executive officer of the city. The Constitution does provide, by section 14, art. 15, that “judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct.” The Constitution does not provide, however, either directly or indirectly, the manner in which city and village officers shall be appointed. People v. Hurlbut, 24 Mich. 63 (9 Am. Rep. 103). It follows that the right to appoint them is not inherent in the executive or any other branch of the city government. That question is left to the discretion of the legislature to determine which branch of the local government shall exercise the power of appointment.
Counsel for relators cite the case of Commissioners of Parks & Boulevards of Detroit v. Common Council of Detroit, 80 Mich. 663 (45 N. W. 508), as sustaining the contention that the power of appointment could not be, given by the legislature to the common council. That case does not sustain such contention. There the authority had been conferred by the legislature on the park commission, and under the act could not be directly exercised by the council; but the power of the legislature to confer upon the- common council appointive power was not questioned.
Section 1, art. 4, of the Constitution, provides that “the legislative power is vested in a senate and house of representatives. ” Counsel for relators contend that this includes the whole legislative power within the State, including that delegated to the legislative bodies of municipal corporations ; and that, as the legislature cannot exercise any but legislative powers, it can delegate only such powers to a common council, and that an act conferring administrative functions upon it would be void under the provision of the Constitution above quoted. The history of legislation in this State shows that the legislature has'never so construed this provision, and any such construction would overturn most of the city charters in the State. ' The general act for the incorporation of cities provides: “The following officers shall be appointed by the council, viz.: A city attorney, city surveyor, engineer of fire department, and three school inspectors.” 1 How. Stat. § 2427. It is true that in most cases the mayor is the presiding officer of the council, but he is allowed to vote only in case of a tie. It is also true that during a long period the mayor of Detroit was a member of the common council, but as such he was a member of the legislative body of the municipality, and was not then performing executive duties.
Mr. Justice Cooley said in Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202):
“The Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the State, from considerations of general policy, as well as those which pertain to the local benefit and local desires.”
We find no provision of the Constitution which prohibits the legislature from conferring upon the common council of Detroit the power to make this appointment, and certainly the legislative construction of the Constitution from 1850 to the present time has been in favor of such power.
But it is contended by counsel for relators that the city of Detroit enjoyed the right of local self-government at the time of the adoption of the Constitution of 1850, with the division of powers vesting the mayor with the execu tive power of nomination of all city officers other than ministerial, and vesting the council with legislative powers, but not with the power of appointment of city officers other than ministerial; that, therefore, the mayor’s power of appointment then existing must now be recognized, and the legislature cannot, by legislative enactment, take such power from him. We think there is no force in this contention. As early as 1824 the territorial legislature placed the power of appointment of administrative officers in the city of Detroit in the common council. At that time the common council consisted of the mayor, recorder, and the five aldermen of the city; and the majority of the council was given the power to make by-laws and ordinances, and was also empowered to appoint the administrative officers of the city. This power continued in the council at the time of the adoption of the Constitution of 1850. The mayor was a member of the legislative body, and in the naming of the administrative officers of the city was not acting in any executive capacity. It cannot be said that the people, in adopting the Constitution, recognized the exclusive right in the mayor of Detroit to appoint the administrative officers of the city. It would be as logical to claim that the right in 1850 to make such appointment rested in the common council, and that the legislature could not take away that right from it. That question, we think, needs no further consideration.
We are satisfied that the act is valid, and that it was the legitimate exercise of legislative discretion in taking the power of appointment from the mayor and placing it in the common council. The respondent’s title to the office must be confirmed, with costs.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). Authority to settle a lawsuit does not imply authority on the part of the attorney to make contracts for future employment. Mr. Russel, the attorney for the company, had nothing whatever to do with operating the road, or the employment or discharge of employés. His sole duty was connected with legal matters. Corporations usually have such a general attorney, to whom they refer their legal matters, and ask for advice. His authority is limited to what is customary or necessary in such transactions. Mechem, Ag. §§ 285, 286; Upton v. Suffolk County Mills, 11 Cush. 586 (59 Am. Dec. 163). No authority is cited holding that an attorney at law is, by virtue of his employment, authorized to settle a suit against his client by entering into life contracts, or any contract affecting the future status between the claimant and the client. This contract is a most unusual one, to sustain which the proof should be clear and explicit. One seeking to uphold such a contract must show either express authority in the agent to make it, or a clear ratification. Neither is shown. In Gamacho v. Engraving Co., 37 N. Y. Supp. 725, it was held, in regard to even a general manager, that no presumption exists that he has “the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the corporation in enormous obligations and for long periods of time.” It has been held that even directors have no authority to make contracts beyond the statutory terms of office. Carney v. Insurance Co., 162 N. Y. 453 (57 N. E. 78, 49 L. R. A. 471, 76 Am. St. Rep. 347). This case is expressly ruled by Maxson v. Railroad Co., 117 Mich. 218 (75 N. W. 459), where we distinguished and limited the application of the case of Brighton v. Railway Co. 103 Mich. 420 (61 N. W. 550).
Judgment affirmed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). Upon cross-examination plaintiff was asked , if her daughter had an accident claim against the city of Detroit. Her answer was, “That has nothing to do with this.” Upon the question bein£ put the second time, she asked, “ Do I have to answer that question ?” to which her attorney replied, “Answer it, certainly, if- he wants to know.” To the question shh then answered, “Yes.” Her husband testified, without objection, that he had two negligence injury claims pending. After plaintiff rested her case, her attorney moved to strike out the above testimony, and the motion was overruled. Her attorney not only raised no objection to the admission of this testimony, but invited it. He was not taken by surprise, and, if the testimony is different from that which he expected would be elicited by the questions, the plaintiff must take the consequences. It was too late then to move to strike it out.
Complaint is made that the argument of counsel for the defendant to the jury was objectionable. The objectionable language is that “they [referring to plaintiff and her witnesses] are in the business of bringing damage suits, and it is apparent from the testimony in the case. * * * It is to be considered by you as bearing upon the good faith of whether or not these people are in this business, or whether they are honestly and legitimately entitled here to this action. They cannot make their living- in that sort of way.” The testimony of other suits being admitted without objection, and being introduced for no other purpose than to show the character of the witnesses and their interest in the case, we think the argument was entirely legitimate. It was not of that intemperate character calculated to unduly prejudice a jury in favor of a railroad corporation and against a crippled pláintiff, who is a woman. The defense was that the claim was a fraudulent one, and the jury so found. When fraud is involved, a wide latitude is allowed in the admission of testimony and arguments of counsel.
It is assigned as error that the court gave certain objectionable requests on the part of the defendant. The counsel is mistaken in his assertion that these requests were given. The judge stated that he was requested to give them, but said that they were inapplicable to the case, and were not controlling, giving the reason why, viz., that if plaintiff was in the act of alighting when the car was still, and it was started suddenly, that would constitute negligence and entitle plaintiff to recover.
There are other assignments of error, which we do not consider of sufficient importance to discuss. We find no error in the admission of testimony or the instructions of the court. The case was fairly submitted, and the judgment is affirmed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). I think the court was correct in directing a verdict for the defendant, and in the instruction quoted gave the sound rule of law applicable to the case. In addition to the facts stated in the opinion of the circuit judge, the plaintiff testified that, when he had reached the curb, there was nothing to hinder his seeing the car a long way; that there was nothing to obstruct his vision; that he might have seen the car if he had looked. If he had looked, and seen the car approaching in such close proximity, it is conceded that he would have been guilty of contributory negligence in attempting to cross in front of it. The distance from the curb line to the south rail was 25 feet. A glance to the east, occupying but a fraction of a second, would have shown him the approaching car. His view to the west was unobstructed as he approached the street. He knew there was no car coming from that direction. He knew that his only danger was from the east. He chose to rely upon his glance to the east, when he could see a few feet only of the track. It is clear from the testimony that he should have expected a car from the east about that time.
It requires no argument to show that greater diligence is required by travelers crossing highways on which are street cars than upon those where there are none. The public demands rapid transit, and ponderous cars are required and permitted to be used. They must go faster than the ordinary vehicles, and are permitted to do so by the ordinances of every city, unless it be in the most crowded thoroughfares. They cannot be stopped as speedily as vehicles drawn by horses. There is a reciprocal duty on the part of the street-railway companies, through their motormen, to watch and keep their cars under control as far as practicable.
Is it reasonable to permit plaintiff to recover when the slightest care upon his own part would have avoided the accident? There is no claim of intentional or willful wrong on the part of the motorman. I find no probative evidence in the record that the gong was not sounded. Two or three witnesses say they did not hear it, but they do not testify that they were listening, or paying any attention; on the contrary, it is evident they were not. The whole affair happened in a few seconds from the time the plaintiff reached the line of vision so that he could see the car and the motorman could see him. The nose of his horse was then 15 feet from the track. At what point was this motorman chargeable with knowledge that plaintiff intended to drive across the track in front of him? Not until the motorman had reason to believe that plaintiff did not intend to stop was he called upon to apply his brakes and shut off the current. Plaintiff’s horse was on the walk. He could have stopped his horse with perfect safety when his nose was within three feet of the line of the car. The negligence of the plaintiff is conceded, and, in my judgment, it is nothing short of gross negligence. His negligent act, which resulted in his injury, was almost simultaneous with the act of the motorman, if he was guilty of any; and the two negligent acts caused the disaster. This is a case of simultaneous negligence. If it be held that the motorman should have seen and known that this plaintiff was unconscious of danger, — unconscious of the approaching car, — and therefore guilty of willful negligence in running him down, what becomes of the doctrine of contributory negligence, which is firmly established by the numerous decisions of this court ? We have distinctly repudiated the doctrine of comparative negligence. I think the case falls squarely within that of Richter v. Harper, 95 Mich. 221 (54 N. W. 768), written by my Brother Montgomery, in which he said:
“It is urged by plaintiff’s counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff; it being claimed that, where the negligence of the defendant is gross or willful, the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this State.”
The case, in my judgment, comes expressly within the doctrine established by the following decisions of this court: Hine v. Railway Co., 115 Mich. 204 (73 N. W. 116); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); McGee v. Railway Co., 102 Mich. 107 (60 N. W., 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Hills v. Foote, 125 Mich. 241 (84 N. W. 139).
This is not a case for the application of the doctrine that plaintiff may recover, notwithstanding his own negligence exposed him to risk, if the injury was caused by the negligent act of the defendant after he had become aware of plaintiff’s danger. Such a case was that of Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996), where plaintiff’s milk sleigh stood close to the track while he was engaged in lifting a can out of his sleigh to transfer it to the sleigh of another. Neither is it the case of Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278), in which the plaintiff looked 75 or 80 feet, and judged that he had time to cross before a car would come. When one can readily see danger immediately threatening, and can easily avoid it, it is his duty to do so; and, if he is injured, he alone must bear the consequences.
The judgment is affirmed.
Montgomery, C. J., Hooker and Long, JJ., concurred. Moore, J., took no part in the decision. | [
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Moore, J.
In March, 1899, William T. Johnston,
and James Stewart, for the King Carpet-Sweeper Company, filed a bill in chancery against Charles King and Walter E. Moore in the superior court of Grand Rapids, substantially alleging:
“That on the 30th day of February, A. D. 1897, Charles King and Walter E. Moore entered into a contract with William T. Johnston to organize a joint-stock company, to be known as the King Carpet-Sweeper Company, of the capital stock of which the said Charles King and Walter E. Moore were to receive two-fifths for and in consideration of the assignment to said company of certain American and foreign patents therein named, together with any and all improvements thereon of which they might become possessed, for full particulars of which agreement reference is made to the said contract, a copy thereof being made a part of this bill.
“That the company was duly organized in accordance with said agreement, and the two-fifths of the capital stock of the same turned over and transferred to the said Charles King and Walter E. Moore, and, as your orators are informed and believe, all and every other of the obligations of said contract to-be performed on the part of the said William T. Johnston and the King Carpet-Sweeper Company have been so performed in good faith, and in accordance with the terms and conditions of the same.
“ That the said Charles King,- subsequent to the making of said contract, and acting under the provisions thereof, did claim to invent an improvement in carpet sweepers which is an improvement on the devices shown in the patents enumerated in said contract, and is included in the terms of the said contract under the head of the improvements upon the said patents, which said improvements said Charles King and Walter E. Moore thereby agreed to convey and turn over to the King Carpet-Sweeper Company.
“That on or about the 17th day of May, 1898, the said Charles King made application in due. form for a patent of the United States on said alleged invention and improvement, and assigned one-half of the same to the said Walter E. Moore, and thereupon, after due proceedings had, there was issued a patent of the United States, numbered 616,870, and dated December 37, 1898, to the said Charles King and Walter E. Moore, which said patent describes and claims the said invention and improvement, and which patent, by virtue of the aforesaid contract, they, the said Charles King and Walter E. Moore, are in equity and good conscience in duty bound to assign, set over, and convey to the said King Carpet-Sweeper Company.”
The prayer for relief is that the said defendants may be restrained by an injunction from selling or in any wise disposing of the title to the said patent of the United States, No. 616,870, dated December 27, 1898, granted to-Charles King and Walter E. Moore; also that said defendants and others may be enjoined from granting any license of any nature to any person or persons claimed and granted under and by virtue of said patent, until the further-order of the court.
“That it be decreed that the defendants, and each of them, shall specifically perform the agreement so made and entered into by them as aforesaid with your orators, your orators being ready and willing, and hereby offering, to specifically perform the said agreement in all things on their part and behalf.
“ That it be decreed that the defendants assign, convey, and set over unto the said King Carpet-Sweeper Company the entire right, title, and interest in and to the patent of the United States for improvement in carpet sweepers, numbered 616,870, and dated December 27, 1898, and granted to Charles King and Walter E. Moore.”
The contract referred to in the bill reads as follows:
“ Whereas, Charles King and Walter E. Moore are the ^ owners of letters patent number 563,388, issued July 7, ’ 1896, and 575,960, issued January 26, 1897, containing improvements in carpet sweepers, the same having been issued from the patent office at Washington, D. C.; and
“ Whereas, they are also the owners of letters patent number 257,886, issued October 26, 1896, by the French republic, and letters patent number 14,106, dated June 25, 1896, issued by the kingdom of Great Britain; and
“ Whereas, said Charles King and Walter E. Moore have this day conveyed to William T. Johnston an undivided one-fifth (1-5) interest in and to said letters patent, and all improvements thereon, for the stated consideration of four thousand (4,000) dollars; and
“ Whereas, the said William T. Johnston, in payment of the consideration aforesaid, makes the agreements hereinafter set forth to be performed on his part:
“It is therefore mutually agreed between the said Charles King and Walter E. Moore and William T. Johnston that the patents aforesaid, and all improvements thereon, shall be transferred and assigned to a corporation hereafter to be organized, to be known as the King Carpet-Sweeper Company, or by such other name as may be hereafter decided upon; and it is further mutually agreed that, by whatever name said corporation shall be organized under, the name of King shall appear upon the sweepers to be manufactured under the patents aforesaid.
“It is further mutually agreed between the parties hereto that, upon the organization of said company, the patents aforesaid shall he assigned thereto for two-fifths (2-5) of the capital stock to be issued by said company, to be divided between the parties as their interest in said patents shall appear.
“And it is further mutually agreed that the assignment and deed aforesaid to said letters patent from the said Charles King and Walter E. Moore to said William T. Johnston shall be placed in escrow until the satisfactory performance of the covenants and agreements herein specified to he performed by the said Johnston.
“ The said William T. Johnston, in consideration of the premises, agrees to organize a joint-stock company under the laws of the State of Michigan, with a capital stock of not less than fifty thousand (50,000) dollars, of which the parties hereto shall hold two-fifths (2-5), and that he will perfect such organization on or before six months from the date hereof; and, further, that all subscriptions for stock in said company shall be bona fide, and the entire amount thereof shall be subscribed by good and responsible parties.
“ The said Charles King and Walter E. Moore agree that, on the organization of said company as aforesaid, they will cause to be delivered to said William T. Johnston the deed deposited in escrow as aforesaid; and it is mutually agreed between the parties hereto that, in case of failure on the part of the said William T. Johnston to perfect said organization, the deed aforesaid shall be redelivered to the said Charles King and Walter E. Moore, and by them destroyed.”
The answer of Mr. Moore was by his guardian, who alleged the insanity of Mr. Moore, and the inability of the guardian to learn from him the facts. Mr. King answered fully to the bill, admitting the making of the contract,—
“But denies that it was a lawful and binding contract, by reason of the fraud practiced upon this defendant by the said William T. Johnston at the time of making the same, as hereinafter more fully set forth. He denies that, by the terms of said agreement, said defendants were to assign to the King Carpet-Sweeper Company, when organized, in addition to the patents mentioned therein, any and all improvements thereon of which they might become possessed, as alleged in said paragraph.
“ He denies that the King Carpet-Sweeper Company was organized in accordance with said contract and agreement, and he denies that the stock turned over to these defendants on such organization was in accordance therewith. He denies that the obligations mentioned in said contract to be performed by the said William T. Johnston, or any of them, were performed by him, and he avers that they never have been performed. He further avers that the organization of said King Carpet-Sweeper Company was perfected by others, who were interested in said business before the making of said contract with said Johnston, and that such other persons, on their own behalf, and without knowledge of said agreement, and without the material assistance of said Johnston, organized said company, and issued stock to said defendants, upon an altogether different basis than mentioned in said agreement. And he further avers that, in consideration of said Johnston’s agreement to secure a certain amount of capital from outside sources to conduct said business, the said Johnston was given a portion of the capital stock issued by said concern, and was made one of the incorporators thereof; but that said Johnston never secured a single dollar of outside capital, nor contributed a single dollar of his own for said stock, or towards the conduct of said business, but, on the contrary, through his manipulation of the affairs of the concern, he became the manager thereof, and from that time forth, and until the winding up of the business of said concern by a sale under chattel mortgage of all its assets, as hereinafter set forth, drew regularly his salary as such manager. He denies that said complainants have in good faith, or in any other way, performed the conditions of said agreement in accordance with the terms and conditions of the same, as alleged in said paragraph two.
“He admits that, subsequent to the making of said contract, he invented an improvement in carpet sweepers, but he denies that he was acting under the terms of said contract in inventing the same, or that the same is enumerated therein; and he denies that said defendants, by-said contract, thereby agreed to turn said invention over to the King Carpet-Sweeper Company, or to any one else, as alleged in paragraph three.
“He admits the filing of an application for a patent on or about May 17, 1898, the assignment of a one-half interest therein to the defendant Walter E. Moore, and the issuing to these defendants of a patent of the United States numbered 616,870, as alleged in the fourth paragraph of said bill; but he denies that said invention belongs to the King Carpet-Sweeper Company, or that these defendants are in equity and good conscience bound to assign, set over, and convey said patent to said concern by virtue of said contract, or for any other reason.
“Pie denies that he has ever been requested to assign said patent to the King Carpet-Sweeper Company, but avers that he would have refused so to do had any such request been made. And he further avers that these defendants are not now the owners of said patent numbered 616.870, and have not been the owners thereof since the 6th day of February, 1899; that on said date the said defendants, for a valuable consideration, to them in hand paid, duly sold, assigned, and set over to the Automatic Sweeper Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, all their right, title, and interest in and to said patent numbered 616.870, and that the said Automatic Sweeper Company is now the absolute owner thereof, and was such owner at the time of the commencement of this suit.
“That, at the time said contract was entered into, the said William T. Johnston represented and claimed to these defendants that he had control of at least $50,000 capital, which he could and would secure towards the organization of a company thereafter to be organized to manufacture carpet sweepers under the patents then owned by these defendants, and mentioned in the contract aforesaid, and that he would procure bona fide subscriptions to the stock of such corporation to the amount of at least $50,000. But he avers that said Johnston did not at said time have control of $50,000, or any sum whatever, and that the representations so made to defendants were false and fraudulent, and were intended to and did mislead defendants into signing said contract; all of which they would not have done had they known the truth, which they did not know, but relied wholly upon the representations so made as aforesaid. That said Johnston never secured a single bona fide subscriber for stock to the organization afterwards formed. Further, that the assignment and deed mentioned in said contract, left in escrow, to be delivered to said Johnston on the satisfactory performance by him of the covenants and agreements mentioned in said contract, was never called for by said Johnston, and was subsequently redelivered to these defendants on account of the éarly abandonment by said Johnston of said contract.
“That the organization of the King Carpet-Sweeper Company took place on the 25th day of February, 1897, that being the day on which the articles of association were signed and filed, which was only five days after the making of said alleged contract with said Johnston; that the capital stock of said company was $60,000, divided into 6,000 shares of $10 each, of which these defendants subscribed for and received 1,260 each, the said Johnston 480, John G. Kalmbach 500, and James Stewart 200,— making in all 3,700 shares; that these defendants, together with said Kalmbach and Stewart, had for some time prior to said organization been manufacturing carpet sweepers under the defendants’ said patents by virtue of ah agreement then existing between them; that by reason of said Johnston’s claims and representations, made to said Kalmbach and Stewart as well as to these defendants, that he had control of a large amount of capital, which he could and would bring into said corporation by subscriptions for stock thereafter to be made, 480 shares of the capital stock of said company were issued to him, for which he never paid a single dollar, nor did he ever secure a single dollar to be subscribed for capital stock in said company.
“That, after its organization as aforesaid, said company commenced doing business, and that these defendants were employed by it, — the said Moore as its secretary, and this defendant as its traveling salesman; that the said Johnston took charge of the office as manager; that on or about the 14th day of December, 1897, these defendants, together with said Kalmbach, Stewart, and John ston, joined in an assignment of two of the letters patent mentioned in said alleged contract, and an application then pending in the patent office at Washington, to the King Carpet-Sweeper Company, and it then and thereby became the owner thereof; that, soon after such assignment, said King Carpet-Sweeper Company, without the knowledge of this defendant, gave a trust mortgage covering all its assets and property to the said John G. Kalmbach, to secure advances he had made to the company from time to time, which mortgage was subsequently foreclosed, and the entire assets and property of said company sold to the said James Stewart for the sum of $3,600; and this defendant avers, on the statements made by said Stewart subsequent to his alleged purchase, that the said Johnston and Kalmbach became, and are still, joint owners with him of said assets and property.
“.That said King Carpet-Sweeper Company exists only in name; that it has absolutely no property, and has not conducted business since the sale aforesaid, which took place in June, 1898; that it practically ceased doing business several months before said last-named date; and that in the month of April, or thereabouts, and after the giving of said chattel mortgage, the services of this defendant and said Moore were dispensed with, and they were discharged, and from that time they had nothing whatever to do with or to say concerning the management of said company, but the same was managed and conducted by the said Johnston, Stewart, and Kalmbach.
‘ ‘ That the procuring of said assignment December 14, 1897, the giving of said chattel mortgage February 1, 1898, the discharge of these defendants in April, 1898, the filing of said mortgage May 28, 1898, the foreclosure of the same, the. purchase of all the assets and property by said Stewart, the interest therein of said Johnston and Kalmbach, together with the wrongful manipulation of said business by all three of said parties during the time it was a going concern, all constitute an improper and unlawful effort on the part of said parties, and particularly of the complainant herein, William T. Johnston, to fraudulently dispossess these defendants of their interest in said company, in all of which they, and particularly the said Johnston, have succeeded; and defendant therefore avers that on account thereof the said Johnston does not come into this court with clean hands, and is not entitled to any relief whatsoever at the hands of this court.
“That on the 27th day of January, 1899, these defendants filed their bill of complaint in the circuit court of the United States for the Western district of Michigan, Southern division, against the above-named James Stewart and the King Carpet-Sweeper Company for infringement of the patent numbered 616,870, so issued as aforesaid to these defendants December 27, 1898, which suit is still pending; and that on April 1, 1899, defendants in said cause, James Stewart and the King Carpet-Sweeper Company, filed their plea therein, containing substantially the same allegations as to title to said patent being in the King Carpet-Sweeper Company as are set forth in the bill of complaint in this cause; and on the same day this suit was commenced in the superior court of Grand Rapids, and a temporary restraining order was issued on the filing of the bill herein, which last suit was commenced, as this defendant verily believes, and therefore avers, for the express purpose of annoying and harassing these defendants, and causing them unnecessary and additional expense, without any just cause whatsoever. And this defendant prays the benefit of this answer in the nature of a cross-bill, and that said complainants may be required to pay such damages as this court may award, in addition to the taxable costs herein, for the unnecessary and malicious prosecution of this suit, and that this defendant may have such other and such further relief in the premises as may be just and equitable under the circumstances.”
Upon the coming in of this answer an amended bill was filed, in which William T. Johnston, James Stewart, and the King Carpet-Sweeper Company were complainants. It alleged the making of the agreement of February 20th; that the deed was placed in escrow ;• — ■
“That thereupon, and without allowing six months, or any other reasonable time, for the performance on the part of said Johnston of the said agreements, and at the suggestion and urgent solicitation of said King and Moore, on, to wit, the 24th day of February, A. D. 1897, the King Carpet-Sweeper Company was organized, and that then and there the terms and conditions of said contract were modified by mutual agreement and consent, ¿nd without objection on the part of said King and Moore, whereby the said company was capitalized at $60,000, divided into 6,000 shares of $10 each, of which the parties to the said contract (King, Moore, and Johnston) received one-half of the entire capital stock, divided as follows: King and Moore, each, 1,260 shares, and Johnston 480 shares, John G. Kalmbach received 500 shares, and James Stewart received 200 shares; and the remainder of the capital stock, 2,300 shares, was turned over to the said company as treasury stock, to be sold by the said company from time to time, as occasion required, and thereafter was offered for sale by said company as its treasury stock. That at that time, or at any other time, there was never any understanding or agreement to release said King and Moore, or either of them, from any obligation to assign any patent or patents or any invention which they agreed to assign either to said Johnston or to the King Carpet-Sweeper Company.
“ That the consideration on which said stock was issued to the respective parties was as follows: For the interests of said King and Moore, the respective interests in the patents and improvements involved in said contract heretofore referred to; for the interest of said Johnston, the one-fifth interest conveyed by and enumerated in the deed in escrow, referred to in said contract; and your orators further show said interests of King, Moore, and Johnston were eventually conveyed to said company by an assignment in writing, dated on or about the 14th day of December, 1897, and signed by the said Charles King, Walter E. Moore, William T. Johnston, John G. Kalmbach, and James Stewart. The interests of said Stewart and Kalmbach were paid for in part by certain property turned in and sold to said company, and the balance paid in by them in cash.
“That on the 9th day of March, 1897, the organization of said company was perfected by adopting the by-laws, and the election of the following officers: James Stewart, president; William T. Johnston, vice-president and manager; John G. Kalmbach, treasurer; Walter E. Moore, secretary; and the election of a board of directors consisting of the above-named officers, together with Charles King.
“That forthwith, upon perfecting the organization of the King Carpet-Sweeper Company, said Charles King was duly employed, under an agreement made, as salesman and inventor for said company, at the salary of #1,200 per year, and that a part of his duties was to invent and perfect carpet-sweeper devices for the use and benefit of tbe said company; and that he, the said Charles King, continued to act in said capacity as salesman and inventor until on or about the 10th day of February, 1898, when his services were dispensed with.
‘ ‘ That a short time after the said King was thus employed as aforesaid, to wit, on or about April, A. D. 1897, and during the time thus employed as inventor, the said King did invent and make certain alleged improvements in carpet-sweeper devices, which your orators believe are improvements on the devices shown in the patents heretofore and in said contract enumerated, which said improvements were turned over to the King Carpet-Sweeper Company, to be embodied in the goods made by it; and that said King also acknowledged by word and act the ownership of and title to the said invention to be in the King Carpet-Sweeper Company, and from that time forward never questioned the said title or ownership, or made objection to the use of the said invention by said company, until on or about January, A. D. 1899, although fully advised of its use and its claim to ownership thereof; which said improvements are described in the patent to these defendants numbered 616,870, and dated December 27, 1898.
“ That the said King Carpet-Sweeper Company accepted the said invention in good faith as its property, and paid •said King his salary in full as salesman and inventor while in its employ; and that it has since made and sold a considerable quantity of carpet sweepers containing and embodying said alleged invention, and continues to make and sell the same.
“That said King, while in the employ of said company, talked and acted in good faith about taking out a patent on said alleged invention for the use and benefit of the King Carpet-Sweeper Company, and excused delay for the reason that he needed time to perfect other features of alleged novelty to accompany the same in the application for patent, notably an improved ‘pan dump,’ so called.
“ That on or about the 17th day of May, 1898, the said King did make application for letters patent of the United States, and did, in violation of the rights of your orators, assign and transfer an undivided one-half interest in and to the same to said . Walter E. Moore, and that the said Moore took the same with full knowledge of the rights of your orators in the premises. And your orators further show that" the said Charles King, well knowing the prem ises and your orators’ rights, and acknowledging the same as aforesaid, did neglect to inform your orators, or any of them, of his said application for a patent, or assign the same, as in good conscience bound to do, but caused the patent to issue to himself and the said Moore, the same being No. 616,870, dated December 27, 1898, and thereupon served notice of infringement upon your orators, and brought suit upon the said patent in the United States circuit court for the Western district of Michigan, to the great damage of your orators, and without just cause; and, your orators verily believe, maliciously, and without any right so to do.
“ That, under and by virtue of the contract hereinbefore referred to, it was the duty of the said Charles King and his alleged assignee, the said Walter E. Moore, to transfer and assign to your orator the King Carpet-Sweeper Company the aforesaid patent No. 616,870, hereinbefore described; that your orator the said King Carpet-Sweeper Company duly demanded an assignment of the aforesaid patent to said company according to the terms of said contract, but, notwithstanding their duty in that behalf, the said defendants, King and Moore, refused, neglected, and still continue to refuse and neglect, to transfer and assign said patent to the aforesaid King Carpet-Sweeper Company ; and your orator the King Carpet-Sweeper Company is informed and believes, and therefore expressly charges, the said company is entitled to have said contract specifically enforced against the defendants, King and Moore, and that they be required to assign said patent, and all improvements thereon, to said company.
“That on or about the 1st day of February, A. D. 1898, the said King Carpet-Sweeper Company did make and execute a trust mortgage in good faith, to secure bona fide creditors, to John G. Kalmbach, and that said mortgage covered and included the said alleged invention, with the knowledge and consent of the defendants herein; and your orators further show that said mortgage was duly foreclosed, and the property covered thereby lawfully sold, for a good and valuable consideration, to James Stewart, one of the complainants herein, whereby he became the equitable and lawful owner of the invention in controversy, and the patent thereon; and your orators further show that the making of said mortgage was with the full knowledge and consent and connivance of the said defendants, and in good faith as between all parties concerned.
“Your orators further show, upon information and belief, that the said defendants, further conspiring to defraud your orators of their rights and title in and to said invention, and in and to said letters patent therefor, are conspiring to sell, assign, and convey said patent and improvements, or to make license, to parties unknown to your orators; that they fear,” etc.; and have prayed for the same relief substantially as prayed in the first bill.
The answer of defendant Moore was made by his guardian, and was substantially the same as was made to the first bill. In addition to the allegations contained in his first answer, defendant King set up certain proceedings had in a suit pending in the United States court, and alleged that the defendants, in February, 1899, had assigned patent No. 616,870 to the Automatic Sweeper Company. The Automatic Sweeper Company was made a party defendant. The testimony was taken in open court. It is very voluminous. After hearing it all, the circuit judge dismissed the bill of complaint.
It would not profit any one to recite in detail the testimony. It appears from the record that prior to February 20, 1897, Charles King had- obtained patents for certain improvements in carpet sweepers, and had then pending certain applications for further improvements. He had assigned to Walter E. Moore an interest in these patents and the applications. King and Moore had employed these improvements in the manufacture of some sweepers, under a contract with Mr. Kalmbach and Mr. Stewart. They had first agreed to make a thousand sweepers, and, when these were finished, had decided to buy material, and go on and make another thousand. A short time before February 20, 1897, an item appeared in the papers stating that William T. Johnston was about organizing a stock company for the manufacture of carpet sweepers. Conversations followed between Johnston, King, and Moore, which led to the making of the written contract of February 20, 1897.
It is impossible to read this contract in the light of the circumstances without concluding that, when King and Moore signed it, they supposed 'Johnston could bring into the company that was to be organized $30,000 of bona fide subscriptions, which would enable the business to go on until it should he established. There is nothing in the record which would warrant the inference that King and Moore ever consented to such a modification of this contract as would bind them to make these conveyances, and at the same time release the obligation to bring into the company capital sufficient to enable it to do business. A company was organized, but it was not organized along the lines of the agreement. The contract which was left in escrow was never delivered. A company was organized with a capital of $60,000. Four hundred and eighty shares of stock were assigned to Mr. Johnston, for which he paid nothing. He says it was assigned to him because of his being an experienced man, who had been with the Bissell Carpet-Sweeper Company a good many years. Mr. King says it was assigned to him because he represented that he could bring to the company a large amount of capital stock. The action of King and Moore is inexplainable except upon the theory that the organization of this company would result in obtaining sufficient capital to go on with the business. There was $23,000 of treasury stock. It remained unsold. The company was soon in debt. In January, 1898, while Mr. King was in New York, a trust mortgage was given to Mr. Kalmbach. In February Mr. Moore and Mr. King were discharged from the service of the company. In June the mortgage was foreclosed. The property was bid in by Stewart for $3,600, no part of which he has yet ever paid. And the complainants now ask a decree as prayed, for in the bill. It is not worth while to go more into detail in relation to this transaction. It is sufficient to say that we agree with the circuit judge that, under the proofs in the case, the bill of complaint ought to be dismissed.
The decree of the court below is affirmed, with costs.
Montgomery, C. J., Hooker and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The sole question involved in this case is whether a summons issued from justice’s court against a nonresident on the 7th day of the month, and served upon the same day, and returnable on the 10th day of the month, one of the intervening days being Sunday, confers jurisdiction upon the justice to render a valid judgment. Counsel for plaintiff insist that it does, citing Chaddock v. Barry, 93 Mich. 542 (53 N. W. 785, 18 L. R. A. 337), and Crozier v. Allen, 117 Mich. 171 (75 N. W. 300); while counsel for defendant insists the precise question was passed upon in Everts v. Fisk, 44 Mich. 515 (7 N. W. 81), where it was held such a service of a short summons was void. See Sallee v. Ireland, 9 Mich. 154; In re Powers’ Appeal, 29 Mich. 504; Tiffany, Justice’s Guide (5th Ed.), 32. We think the case is ruled by Chaddock v. Barry and Crozier v. Allen, which, in effect, overrule the earlier cases.
Judgment reversed, and judgment in justice’s court affirmed.
The other Justices concurred. | [
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Hooker, J.
The plaintiff worked at a boring machine in defendant’s factory, in proximity to a brick wall, beyond which was the boiler-room of the establishment. An explosion of the boiler caused the wall to fall upon and injui’e him. He recovered a judgment against the defendant in an action for negligence, and defendant has appealed.
The declaration, as originally filed, counted upon the. wanton and negligent maintenance of a weak boiler and an undue pressure. Plaintiff’s proofs were made, and after the denial of a motion to direct'a verdict on behalf of the defendant, and, the introduction of some testimony by the defense, a count was added by leave of the court, charging the defendant with wantonly and negligently employing an unqualified man for engineer, who attempted to remedy a defect in the safety valve, and that, by reason of his attempted and unskillful repairs, the explosion resulted. It is contended that the plaintiff failed to make aprima facie case, and that the verdict should have been dii’ected.
There was testimony tending to show that the boiler was not one which could be safely subjected to a pressure of over 60 pounds, that it was run with a safety valve set to blow off at 90 pounds, and that the boiler, immediately before the explosion, carried over 80 pounds of steam, and that this was necessary to perform the work expected of it, and that the defendant knew and directed it. There was also testimony that an inspection of the boiler, made after the explosion, indicated, in the opinion of the witnesses, that the explosion was from over steam pressure. Error is assigned upon the admission of some of this testimony, but, assuming it to be admissible, we think it made a case for the jury. We find no evidence of wantonness, and we are not advised that the case went to the jury upon that theory.
The boiler had been in use a number of years, having been made about 1888, and a year later repaired, by a boiler maker named Brobst. The boiler was in charge of an engineer, and there was testimony tending to show that he was a competent-man. There was also proof that it was usual for the engineers employed similarly to clean and inspect their boilers at proper intervals, and to make adjustments and ordinary repairs of the boilers and machinery under their charge, and that such was the custom of the defendant’s engineer. It was shown, and not disputed, that in January, 1898, a tube began leaking in this boiler. A qualified person was employed to make repairs, and upon examination the back head of the boiler was found to be fractured. The defendant’s manager was informed of it, and advised that it should have a new head. He replied:
“ ‘ Well,’ says he, ‘ we are very busy in the shop, but I want things right.’ He says, ‘Can you hurry things along ? ’ I said, ‘ It won’t take much longer; we will put on a double gang, and work the job night and day;’ and so he consented, saying, ‘Yes, I won’t run no chances; I want it right.’ He said he wouldn’t run any chances; he wanted the boiler made safe; and we took the head out and examined the shell inside; had it cleaned inside; pounded it with a harnmei*, and sounded all over, and had the scale pounded off, and the boiler makers and I went inside and underneath, and examined it to see if there were any corroded places in the boiler shell, and we didn’t find any. Then the job was worked with a double gang, — a gang over there nights and daytimes. There were from nine to twelve men working on the job at that time, and we all- conceded it was a good, safe repaired boiler. When I turned the boiler over to Mr. Hodges, after we got through repairing it, in my opinion it was safe and sound, and I pronounced the boiler safe. Before I turned the boiler over to Mr. Hodges, I applied upon it a hydraulic test of 125 pounds pressure. According to my experience, after a boiler is subjected to 125 pounds hydraulic pressure, it would be safe at between 90 to 100 pounds. It would be safe, in my opinion, to work every day at 90 to 100 pounds. When I had the head out of the boiler, and made the examination, in hammering I did not discover any flaws or lagging or blistering in the shell. This work was done by myself and the man who worked under me. I was right in under the boiler and on the inside myself after the head was taken out, and I saw no defects of the character mentioned. When the hydraulic pressure was put upon the boiler, I discovered no leaking of water through the seams. There was a slight sweating from the new work, and a little in the •calking where the new head was put in. That is generally so when you fill a boiler up. The sweating is produced by the difference in the temperature on the inside ■of the boiler and that on the outside.
“Q. I say when the boiler had been completed you considered it a safe and sufficient boiler, did you not ?
“A. Yes, sir.”
This testimony was uncontradicted, so far as the statements of fact contained in it are concerned. The engineer testified that the boiler always blew off at 90 pounds; that it did so the morning of the accident; that, on the day of the accident, the safety valve and steam gauge were in perfect working order, and that, four or five seconds before the accident, he had between 80 and 85 pounds of steam; that he had just looked at the steam, and turned around, when the explosion occurred.
The boiler maker, Brobst, was called as a witness for the plaintiff. He testified that he made the boiler in 1888 or 1889, — possibly 1887. A year later he took it to his shop, and repaired it. It had been fired without water, and the bottom had sagged down. He put a new bottom into it and fixed it as good as new. He next saw it after the explosion, and looked the plates and tubes over, to see if he could determine the cause of the explosion. He was asked the result of his observation, and, under objection, was allowed to state:
“From what I.could find- on the boiler, the explosion was caused by overpressure, — overloading.”
He afterwards stated the reasons and evidences which led him to believe that it did not result from low water. He testified that the plates were very hard and crystalized, and was then asked:
“ Q. Did you notice any other peculiarity about the explosion ?
“A. Nothing to indicate anything else, only that the boiler had an overload, — more than she could carry. From the plates there was no indication of low water.”
He also testified that the hydrostatic test is the only practicable one to make after repairing a boiler, and should enable a boiler maker to know whether the boiler is capable of standing any pressure. He testified that his examination, after the accident, showed the boiler clean, free from scale, and in fair condition, and he could discover nothing which indicated a want of proper care. He gave it as his opinion that from 50 to 60 pounds of steam would be a big load for that boiler to carry. He also testified that', when he repaired the boiler, he made it as good as a new one, and put on 150 pounds hydraulic test.
There was evidence tending to show that, some weeks before the accident, the safety valve leaked steam. After grinding the seat without remedying the trouble, the engineer discovered that the valve did not sit down square,, owing, as he thought, to the effect of the weight, which was on one side. Thereupon he put on a lever and ball on the opposite side, which cured it, not increasing the pressure necessary to raise the valve. He testified that it worked all right, and blew off at 90 pounds the day of the accident, and that he did this work without instruction. Brobst testified that he never saw a valve fixed that way, and that in his opinion it was not safe.
Brobst was also permitted to testify to a conversation with Hodges, defendant’s manager, when he was at the scene of the accident, after the explosion. He said:
“A. He was standing alongside of the brick pile there where the boiler stood; had some men working there; and I said to him, ‘It is quite a bad accident you had here.’ He said, ‘Yes.’ I said, ‘It might have been worse.’ He said, ‘Yes; it might have been worse.’ I said, ‘What steam pressure were you carrying ?’ He said, ‘ The engineer said we had 95 pounds.’
“ Mr. McGarry: I believe that is hearsay; I will object to it as hearsay.
“ The Court: It may be received.
“Mr. McGarry: Note an exception.
“The Witness (continuing): He says, ‘ It came on cold the last couple of days, and we had to run the pressure up in order to heat the building and do our work.’ He said, ‘We have a new boiler ordered, but have been unable to get it in.’
“Mr. McGarry: I object to tíiat as absolutely incompetent and irrelevant.
“ The Court: It will be received.
“Mr. McGarry: Note an exception. . I move to strike out that statement.
“The Court: Overruled.
“Mr. McGarry: Note an exception.
“ Q. Was there anything further said ?
“A. That was about all the conversation I had with him. I walked over to the boiler, and looked it over. I told him 95 pounds was awful big pressure to carry on that old boiler.
“Mr. 'McGarry: I object to it as incompetent.
“ The Court: The objection is overruled.
“Mr. McGarry: Note an exception.
“ Q. Go on.
“A. I told him 95 pounds was-too much to carry on that boiler. He said, ‘Yes;’ that they had run the pressure up for the last couple of days on account of being cold, but the new boiler that they had ordered they hadn’t been able to get in yet.
“ Q. Was there nothing further said ?
“A. That was about all.
“Mr. McGarry: I move to strike out the entire testimony of the witness in reference to the conversation with John Hodges.
“ The Court: Overruled.
“ Mr. McGarry: Note an exception.”
Several questions are raised upon the testimony of Brobst. It is said that it was error to permit him to express an opinion upon the cause of the accident, or upon the safety of the valve as repaired; but we think that the former was proper, in view of his explanation and reasons subsequently given. As to the repair of the valve, it was a mechanical device, original with the maker apparently, and only experts would be competent to determine its efficacy or safety. Brobst was shown to be competent to testify upon the subject as an expert.
The alleged statements of Hodges were received as admissions of the defendant corporation. They were not made in any transaction in the line of his duty, but occurred, if at all, in a casual conversation after the expío sion. Hodges was an agent of the company, and as such had no authority to bind it by admissions of this character, which did not accompany any official act. See Andrews v. Mining Co., 114 Mich. 379 (72 N. W. 242), and cases cited; Peek v. Novelty Works, 29 Mich. 313; Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 89; Maxson v. Railroad Co., 117 Mich. 222 (75 N. W. 459). See, also, Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 255 (47 N. W. 104); Bond v. Railroad Co., 62 Mich. 651 (29 N. W. 482, 4 Am. St. Rep. 885); Roux v. Lumber Co., 94 Mich. 611 (54 N. W. 492).
It is said by plaintiff’s counsel that the latter case sustains their position. That case recognizes the general rule stated above, but holds that the error was cured by the subsequent testimony of the agent alleged to have made the admission. This case should be distinguished, as it falls within the rule laid down in the opinion of Mr. Justice Moore in the case of Van Alstine v. Kaniecki, 109 Mich. 322 (67 N. W. 502). As in that case, this testimony was offered as substantive admissions of the principal. Not only that, but the witness was permitted to state his opinions, then and there expressed to the agent, as to the matter under discussion. This testimony was clearly erroneous and injurious.
We think it unnecessary to discuss the other assignments of error. The judgment is reversed, and a new' trial ordered.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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] |
Long, J.
The complainant was the granddaughter of Ei-astus Hathaway, who died February 18, 1894, in Branch county. His estate consisted of real and personal property inventoried at about $8,000. The defendant is the widow of deceased. Mr. Hathaway made his last will August 6, 1892. Mrs. Hathaway was named executrix. The will was admitted to probate, and on April 4, 1895, she filed her final account as executrix, which was allowed on the same day by the probate court of Branch county.
The fourth paragraph of the will provides:
“I give, devise, and bequeath to my wife, Electa A. Hathaway, the use of the west forty-five acres of land in Burlington township, Calhoun county, Michigan, deeded tome December 39,1881, by Frederick Hoeltzel and wife, during her natural life. I also give to her absolutely one-third of the above-mentioned forty-five acres. The other two-thirds I direct that it shall be divided as follows: One part, or fifteen acres, to my granddaughter, Annie Woolsey [the complainant], and one part, or fifteen acres, to the children of my son, Wallace E. Hathaway. The above-mentioned forty-five acres are subject to a mortgage of $600, which must be paid from the avails of said lands, and no division of said forty-five acres shall be made until the death of my said wife.”
The above mortgage referred to in the will was given by said deceased to the defendant on the same day that the will was made and executed, but was not recorded until after the death of Mr. Hathaway. In October, 1897, more than two years after the filing of her final account as executrix, the defendant foreclosed the mortgage by advertisement, and bid in the 45 acres of land at the sheriff’s sale on January 35, 1898, for $908, being the amount claimed under the mortgage. The sheriff’s deed was made to her and recorded on the same day.
On June 30, 1898, the complainant filed the bill in this cause, charging that defendant obtained the mortgage by fraud and undue influence and without consideration; that the said 45 acres are in a high state of cultivation,' and very productive, and have yielded large rents and profits, which have been sequestered by defendant, and no account made thereof; and that the avails of said lands have not been used to pay said mortgage, as required by said will. On information and belief, it is charged that, since the death of Mr. Hathaway, the avails of the land have been sufficient to pay the mortgage and interest due thereon. The prayer of the bill is that the mortgage be decreed to have been obtained by fraud and undue influence, and be set aside for that reason; that defendant render a true account of the avails of the said 45 acres of land since the death of Mr. Hathaway, and that the same be applied to the payment and discharge of said mortgage; that the sale of the premises under the foreclosure, and the sheriff’s deed, be set aside and canceled.
The defendant by her answer denies that the mortgage was obtained by fraud or undue influence, but, on the contrary, alleges that the mortgage was given to secure the sum of $600, loaned by her to her husband, and that the same was money belonging to her in her own right. She denies also that the 45 acres were productive, and alleges that at the death of Mr. Hathaway only about 12 acres of it were under cultivation, the rest being an old slashing, from which all the timber of any value had been taken, and that one-half of said 45 acres yet remains in that condition; that she expended her own money in clearing up what has been cleared; that she has been unable to realize from the avails of the land more than sufficient to pay the taxes on it; that the improved half of the 45 acres rents for only $10 a year; that, being unable to realize anything from the avails of the land to pay the mortgage, and the principal and interest on the mortgage being equivalent to the value of the land, she commenced the foreclosure proceedings in order to obtain the amount due her thereunder.
The cause was heard in the court below on pleadings and proofs, and complainant’s bill dismissed.
We think the court below was not in error in dismissing this bill. The defendant, by the terms of the will, was entitled to the use and benefit of the whole 45 acres of land during her natural life. We think it cannot be contended under such circumstances that it was the intent of the testator that the mortgage was to be paid from the rents and profits of the land. He had already given the rents and profits to the widow. He did not intend to apply them to any other purpose. The language is that the mortgage must be paid from the “avails of said lands.” The word “avails’’was evidently used by the testator to signify that the mortgage was not to be paid from the assets of the estate generally, but from the land itself. The further provision of the same paragraph, emphasizes that intention, as it says: “No division of
said forty-five acres shall be made until the death of my said wife.” The condition of the title to the 45 acres at the death of the testator was this: The widow had a life estate. The complainant and the children of the son, Wallace, had the remainder after the death of the widow. The land was subject to this $600 mortgage, which the testator provided by the will should be paid out of the land, and not out of the assets of the estate generally. We think the use made by the testator of the word “ avails ” in other portions of the will makes manifest the construction of that word as we now construe it. In the third clause of the will he provides:
“I direct that the east half of what is known as the ‘ Collins Farm ’ be sold to pay a certain mortgage given by me to Caroline E. Hurd, and the avails, over and above the amount necessary to liquidate said mortgage, I give, devise, and bequeath to the children of my said son, Wallace,” etc.
Then follows the clause in reference to the 45-acre tract. To forbid the executrix paying the mortgage out of the general assets, the will further provides that, after paying his just debts “ that are not secured by mortgage,” the residue shall go to the widow.
But, aside from these considerations, we think the court very properly dismissed complainant’s bill. The executrix filed her final account three years prior to the filing of this bill, and presumably accounted for all assets in her hands belonging to the estate. Her account was allowed and settled in the probate court. That court had jurisdiction of the matter, and no appeal was ever taken from the order there made. The matters thus determined are res adjudicada '. Fingleton v. Kent Circuit Judge, 116 Mich. 211 (74 N. W. 473); Byrne v. Hume, 84 Mich. 185 (47 N. W. 679).
For another reason the present bill will not lie. The land is situated in Calhoun county. The bill was filed in Branch county. The statute (1 Comp. Laws, § 434) provides that “ every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local.” It has frequently been held that, under this statute, a bill in equity affecting interests in real estate must be filed in the county where the lands, or some part of them, are situated. Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351), and cases there cited.
The decree below must be affirmed, with costs.
Geant, J., concurred with Long, J. Montgomeey, C. J., and Mooee, J., concurred in the result. Hookee, J., concurred in the result upon the last point. | [
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] |
Montgomery, C. J.
This is a bill filed with a double aspect. It is a judgment creditor’s bill, and also seeks to reach property conveyed by the defendant George H. Hammond to his wife, Belle F. Hammond, without consideration, and which is alleged to have had the effect to defraud creditors. The evidence shows a judgment, issue of execution, return nulla bona, the issue of a second execution, and a levy upon the property, which consists of a stock farm in the county of Washtenaw. It is conceded by the defendants that the conveyance from George H. Hammond to his wife was without consideration, and a mere gift. This conveyance was made on the 31st of October, 1893. The indebtedness upon which the judg ment was rendered was incurred on June 30, 1893, and-due in one year from date. The judgment was obtained ■on November 21,1894, and execution was promptly issued, ■and was returned unsatisfied on the 30th of January, 1895*. /
The learned circuit judge was of the opinion that the evidence shows that George H.' Hammond, at the time of the conveyance to his wife, had abundant property to satisfy his creditors. We do not so read the record. It is true, it appears that there stood in the name of George H. Hammond a considerable' amount of property, but the testimony shows that this was trust property as to all but a ■one-eighth share in it, and that George H. Hammond had •disposed of a large portion of the property originally held in trust, and was under obligation to account to his cestuis que trustent for the proceeds. It also shows that, at a somewhat later date, he was indebted to the estate of his deceased father in the sum of about $50,000.
Under the statute (3 Comp. Laws, § 10203) the burden of proof was cast upon the defendant to show that the transaction of deeding this valuable property to his wife without consideration was in all respects bona fide, and this duty he could only perform by showing that, at the -time of the transfer, he had sufficient property remaining in his hands to pay his indebtedness. Mr. Hammond did not himself take the stand, and the record is barren of testimony as to the extent of his indebtedness. We think he has not sustained the burden which the statute casts upon him. See Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085).
The decree of the court below will be reversed, and a ■decree entered in this court setting aside the conveyance of the stock farm as to complainant, and providing for a receiver to take charge of the estate of George H. Hammond.
Hooker, Moore, and Long, JJ., concurred. . Grant, J., did not sit. | [
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] |
Graves J.
This was ejectment by defendant in error to recover ber dower in certain lands which her late husband, Philip Klein, inherited from his father, Jacob Klein.
Jacob Klein, the ancestor, died in September, 1845, seized of the premises and leaving a widow, Mina- Klein, and a son, the before mentioned Philip Klein. After the ■death of Jacob, the ancestor, and in 1846, another son was born, who received the name of Jacob. These sons inherited the land subject to the dower right of their mother, Mina Klein, and the three were tenants in common. In 1849 the widow, Mina Klein, intermarried with one Charles Wenks, and is still his wife. Philip, her eldest son,, married the plaintiff below, and died at East Saginaw, in June, 1871.
These facts were proved on the trial and were not disputed, and they made a prima facie ease for judgment in favor of Mrs. Klein. This is not questioned. The subject-for discussion arose upon the ground taken on the part of the defense. The plaintiff in error who was defendant-below, proved by himself, that he bought the tract left by the elder Klein, of Charles Wenks in 1867, for $6,400,. which was a fair price; that he made the purchase in good faith, in ignorance of any claim against the land, and still holds as such purchaser. He then proved, by Wenks,. that he bought the tract in 1867, at a sale by a circuit-court commissioner, under a decree of the circuit court for the county of Wayne in chancery, for something over-16,400, and that he sold to Griener as stated by him, and that the price was a fair one. Griener also submitted evidence of guardian accounts against Philip and Jacob Klein,, as allowed in the probate court for Wayne county, which represented an unpaid balance on the 8th of August, 1866,. against Philip of $2,813 58, and against Jacob of $3,473 58..
He then offered in evidence certain proceedings in partition-under the statute, taken in the circuit court for the county of Wayne in chancery, by Philip Klein as complainant, against Jacob Klein and Mina Wenks, defendants,, to partition the tract, and in which case the whole land was sold under a decree therefor. The defendant in error, Mrs. Klein, was not a party to that case, and the evidence-appears to have been offered to establish that the decree.- and sale barred her right.
The evidence was excluded on objection, and this ruling-is the only matter complained of. There is nothing in the record to indicate that this rejected proof was proffered with any other view than to make out by it that Mrs.. Klein’s dower in the land was extinguished by the decree and sale in partition, and no suggestion has been made here by counsel that it was intended or supposed to be available for any thing else. As there is nothing in the character of' the controversy, or any thing relating to jurisdiction, to jus tify our departure from the usual course of deciding according to the view taken of the points actually made, rather than upon a ground not presented below or claimed on review, I think we are not warranted in seeking to convict the judgment of error, by supposing some ground for the admission of the excluded evidence which the complaining party does not seem to have suggested, or to have thought proper or consistent with the real facts when he made his offer, and a ground, moreover, which was not passed on by the court below, and is not put forward here.
Hence, if it be now said that the statute (Comp. L., § 4275) makes an alienation by the husband during coverture a circumstance affecting the allowance of dower, and that the evidence was admissible in the aspect of the ease shown by that provision; or if it be said that it is possible in carrying out partition proceedings to set money proceeds from one portion against lands allotted for another, to produce equality of division, and that the evidence was consequently admissible, the answer is that the evidence was not offered on any such ground, and that no question of the kind upon its propriety is introduced into the case.
Moreover, the circumstances, as exhibited, show, I think, that the true state of facts afforded no basis for the admission of the evidence on any such theory. The sale in partition was of. the entire tract, and for a round sum, and there was no allotment of land against money, and the provision regulating the allowance of dower in case of alienation by the husband provides simply that the lands shall be estimated, in setting out dower, according to the value at the time of alienation, if they have been enhanced in value subsequent to such alienation. It was not claimed, and it does not appear, that any such enhancement had occurred here. There was, then, no basis for the evidence on this hypothesis. It is not unworthy of notice in this connection that this statute regulating the allowance of dower in case of alienation by the husband during coverture was intended to give a rule to govern the commissioners in set ting out the dower, and not to affect the trial of the right to dower.
Whether the inquiry might not be proper at some stage, before the court trying the right, in a case appearing to involve or alleged to involve the conditions specified in the statute, in order, and simply in order, to obtain a right basis for the frame of the commission to be issued to the commissioners, it is quite unnecessary to decide, until some case is presented which requires it. It may be that the inquiry would regularly be for the court after verdict establishing the right, and not earlier. The Federal court in this state decided in 1855 that the jury had nothing to do with this question of value on the trial of the right' in ejectment, and that it was for the commissioners to admeasure the value. — Johnston v. Vandyke, 6 McLean, 422.
If we were permitted to indulge in conjecture, either to impugn or to sustain the exclusion of the evidence of sale in partition, there would be no difficulty in supporting the exclusion. But we are not at liberty to suppose something not hinted at by the record, to sustain or overturn the judgment.
Passing these considerations, we come to the point actually presented by the case, and it is this: Was Mrs. Klein’s dower right extinguished by the judicial sale in the ease in which she was not a party F
The affirmative of this proposition must be supported by those who maintain that the offered evidence was wrongly excluded, and it can be supported only by establishing that the legislature intended that her. right should be cut off through a sale in partition proceedings carried on without' her being a party, or being represented in any way. And if the result indicated was meditated by the legislature, the design must be looked for in the law respecting partition, since it must be admitted that there is no other law favoring such a consequence. And if the law regulating partition is required to operate in that manner, it must be admitted to be a law of an exceptional and unusual chárac fcer, and in opposition to the general spirit of our legislation.
What is it in legal contemplation that a married woman has relative to lands of which her husband is seized during the continuance of the matrimonial union? The law is positive that “ the widow of every deceased person shall be entitled to dower, or the use during her natural life of one-third part of all the lands whereof her husband was séized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.” — Comp. L., § 4269.
The state of marriage, and the seizin of the husband of an estate of inheritance during the marriage, are two of the facts in the series which constitute her title, and the existence of these two facts, which commence her title, confer upon her a valuable right. — Newhall v. Lynn Five Cents Saving Bk., 101 Mass., 428. It is a right favored both by courts of law and equity. — Thompson v. Morrow, 5 S. & R., 289. It has been deemed sufficient to warrant a bill by her to redeem from a mortgage given by herself and husband, — Davis v. Wetherell, 18 Allen, 60, — and on the strength of it the court, in Burns v. Lynde, 6 Allen, 805, sustained her bill to set aside a deed which she had signed in blank, and which purported to release her right. In Kelly v. Harrison, 2 Johns. Cases, 29, the supreme court of New York decided that the right was one which the separation of this country from the British Empire by the revolution did not determine, though as a consequence of that war and separation the wife became an alien. And in Cranson v. Cranson, 4 Mich., 230, our predecessors held that where the husband, before marriage, made conveyance to prevent the right from attaching, it was of sufficient value to support a writ by her to assert it after the death of the husband. Indeed, the evidence is everywhere abundant to show that the law has not only regarded the right as one of appreciable and legal value, but that the courts have ever looked upon it with favor, and have always recognized it as something worthy and sufficiently tangible to be guarded and protected. Among other cases, see Mills v. Van Voorhies, 20 N. Y., 412; Swaine v. Perine, 5 Johns. Ch., 482 ; Tabele v. Tabele, 1 Johns. Ch., 45. It is a principle universally admitted, that the husband cannot deprive her of it, and that she can only be divested by authority of the state, or by or in consequence of her own voluntary act.
Before acceding to the view that such a right may be extinguished through a suit in partition by the husband, instituted and carried to completion without her being a party or being represented, and without her having any chance to be heard, we ought to find the rule of law compelling it, most clear and decisive.
It may be said that the provisions of the partition, law are not so framed and arranged, unless we go outside and supplement the law by judicial legislation, as to make it practicable to guard the wife’s right, whether she be a party or not, where a sale becomes necessary.
Were this to be admitted, it would not follow that we should assume the legislature to have intended that the right should be invaded and destroyed in her absence. At the utmost, nothing further could be inferred than that having made no adequate provision to protect her right in the event of a sale, it was not designed that a sale should interfere with the right.
It is doubtless true that whichever way we turn we are exposed to much embarrassment. But the difficulties, however formidable, which array themselves against the view that she may be a party and receive protection, are merely difficulties connected with remedy and procedure, while those which attend the theory that her right may be taken from her without her being a party or in a situation'to be heard, are such as undermine the substance of justice. “No man’s right,” say the court in Buck v. Sherman, “can be legally affected without notice, actual or constructive.” — 2 Doug., 176. The rule is believed to be universal, that a decree in equity is not binding on one' not a party or in any way represented by, or in privity with a party. — Brown v. Wyncoop, 2 Blackf., 230; Shaw v. Hoadley, 8 Blackf., 165; Brainard v. Cooper, 6 Seld., 356; Com. v. Cambridge, 4 Mass., 627; Bradstreet v. Neptune Ins. Co., 3 Sum,., 600; Mallow v. Hinde, 12 Wheat., 193; Barney v. Baltimore City, 6 Wall., 280; Hunt v. Wickliffe, 2 Pet., 201; Giffard v. Hort, 1 Sch. & Lef., 386; Wheeler v. Morris, 2 Bos., 524.
If driven to cboose between a denial or subversion of justice and a mere amplification of a remedy in equity in perfect harmony with the principles which govern the court in settlement cases and others similar. I think we ought not to hesitate about adopting the latter. Eecurring to the statute of partition, I think it is difficult to read it without feeling that it was not meant to cut off the wife’s right in her absence as a party. The complainant is required to set forth in the bill the right of “every person who, by any contingency contained in any devise, grant, or otherwise, may be or become entitled to any beneficial interest in the premises.” — Comp. L., § 6269.
This provision certainly, I think, includes the right possessed by the wife, and I find nothing elsewhere to lead me to think that the clause would be satisfied by a reading which did not include it. Why require this right to be set forth, if its existence was not to affect results, and if it was intended that the right should be wholly ignored? But the next section provides that every one having any such “interest” may be made a party. Now this section was intended to cover the same ground as to parties as that covered by the preceding section as to rights and interests, and it had for its obvious purpose a requirement to bring in as parties all the owners of all the rights and interests which the preceding section ordered to be set forth.
These regulations appear to me to cover the case of the wife, and they evince a purpose in the legislature to provide in broad terms for bringing in every one possessing a right liable to be disturbed and so substantial as to be capable of influencing the result. And this anxiety for the bringing in of all persons having rights or interests is further manifested by the cautious insertion of explicit directions for making and notifying new or additional parties,
Proceeding to another part of the statute, it will be observed that it is very precise in declaring who shall be bound by the final decree, when the premises are divided. These regulations are contained in § 6296 and the section next following. By the first of these sections the decree is made conclusive on, first, all parties named therein, and their legal representatives, who shall at the time have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises, after the termination of any particular estate therein, or who, by any contingency contained in any will or grant, or otherwise, may be or become entitled to any beneficial interest in the premises, or who shall have any interest in any undivided share of the premises as tenant for years, for life, by the courtesy, or in dower; second, all persons interested in the premises, who may be unknown, to whom notice shall have been given by personal service, or by publishing the same as is hereinbefore directed; and, third, all other persons claiming from such parties or persons, or either of them.
This section passes over exactly the same ground relative to rights and interests as that comprehended by the previous provisions, which regulate the setting forth of rights and interests, and make it needful to bring in as parties the owners of such rights and interests. And unless the former provisions include the right of the wife, it follows that this section, which ordains 'what rights and parties will be bound, will not apply to it. And, on the other hand, if this section is held to apply to the right of the wife, it can only be done on principles and reasoning which must make the other provisions include the wife and her right. The second provision is precisely co-extensive with the former ones, and the effect which it gives to the decree upon parties and rights is just such as must be legally appropriate as the end and consequence of proceedings begun as directed and regularly carried out.
Now if these various provisions as to what rights are to be set out, as to the persons to be made parties, and as to the effect of the decree when the land is divided, do not include, the case of a married woman in the position of Mrs. Klein, then she would not be precluded even by decree and partition of the land.
This result is rendered unavoidable by the terms of the section immediately following that last quoted from. For it declares explicitly that such decree and partition shall not preclude any person except such as are specified in the last preceding section, from claiming any title to the premises in question, or from controverting the title or interest of the parties between whom such partition shall be made. —Comp. L., § 6297.
If, then, the statute does not intend that a married woman in the position of Mrs. Klein may be a party, if her condition is not included, it is then- plain, from the terms of this same statute, that she cannot be “precluded” even when there is no sale, and where nothing more is done than to reduce the holdings in common to holdings in severalty. And it will follow that no decree and partition are possible under this statute, which will preclude a wife in the situation the defendant in error occupied. If, however, as I think, the right of the married woman is within the description given in the statute, and she may be made a party, and her right as connected with the rights of others be justly dealt with, then she may be reached by being made a party, and on being made a party she may be bound by the decree.
Leaving this branch of the statute, and turning to that portion which relates to a sale, we come to the provisions which declare the effect to be given to the conveyance which is authorized. These provisions are contained in two sections (Comp. L., §§ 6321, 6322), and as they are important, they are here quoted.
“Such conveyances, so executed, shall be recorded in the^ county where the premises are situated; and shall be a bar, both in law and equity, against all persons interested in any way, who shall have been named as parties in the said proceedings, and against all such parties as were unknown, if notice of the order to appear and answer shall have been given by such publication or service of notice as is herein-before directed; and against all other persons claiming from such parties, or either of them.”
“Such conveyances shall also be a bar against all persons having specific liens on any undivided share or interest therein, who shall have been made parties to the proceedings ; but no creditor having any • such specific lien shall be affected by such sale or conveyance, unless he' shall have been made a party to the proceedings.”
In providing in terms that parties and privies should be bound, the legislature left it to be implied that no others should be, and it' seems impossible to read the chapter without seeing in every part of it the evidence of a design to adhere to the principle imbedded in our jurisprudence, which requires that a person shall have a chance to be heard before any valuable right of his shall be extinguished by or through judicial action. In view of the provisions which have been cited, and their objects and subjects, it may be laid down with confidence that we should find in them, if anywhere, the marks of a design to disregard this principle, if it was meant to be disregarded. But we'do not find any thing of the kind. On the contrary, they afford strong evidence of an opposite purpose.
And this is the material consideration. That the course to be pursued to guard the woman’s right is not delineated, that difficulties will intersect the path of the court in seeking to protect it, is a matter of secondary importance. If the end is required, if the right is to have protection, the means must be found. Such is the result to which I am led, upon general principles, and on a survey of this statute. But there is still another consideration not to be overlooked.
This statute of partition, except some slight changes and additions not affecting our present inquiry, was brought into our code in 1846, and we took it in substance, and for the most part in the very words, from the revision made in New York in 1830. And in adopting it in 1846, it is reasonable to assume that our legislature recognized and accepted the doctrine there settled touching the practicability of making the wife a party, and as to the effect of her not being one. — Cooley on Const. Lim., 52, and cases cited.
Now, as early as 1832 the chancellor - of New York decided that the wife was a competent party in partition under this law, and that unless she was made a party her light, to dower would not be cut off by decree and sale.— Wilkinson v. Parish, 3 Paige, 653. It is true that, in 1833 one of the vice chancellors held that the right of the wife could not be cut off by decree and sale, even if she were a party; Mathews v. Mathews, 1 Ed. Ch.,565; and in Jackson v. Edwards in 1839 where the purchaser refused to accept conveyance on the ground, among others, that the wife, though a party, was not barred, the same vice chancellor adhered to his decision in Mathews v. Mathews. But the chancellor overruled this doctrine and held that when she was joined as a party her right was capable of being protected through control of the proceeds of the sale, and that the decree could bind her and preclude her from setting up her right against the land. — 7 Paige, 586. In this view, it appears from a note to the case, Chief Justice Savage concurred. In the same year the case was carried by appeal to the court for the correction of errors, where but two opinions were given, one by Judge Bronson, and the other by Senator Verplanck, an able man. Judge Bronson was of opinion that the right was one of sufficient value to be regarded, and that it could not be extinguished by sale on partition in a case in which she should not be a party, but entertaining some doubt as to the practicability of working out protection for her in partition, he was in- dined to question whether her right could be excluded from the land, even in case of her being a party. Senator Verplanck agreed that her right could not be extinguished by a proceeding to which she was not a party, but he concurred with the chancellor and Judge Savage, in holding that it could be if she were a party. — Jackson v. Edwards, 22 Wend., 498.
From this summary it will be seen that the judges were all agreed that the right could not be extinguished by a proceeding to which the wife was not a party, and that they only differed as to whether that result could be attained, even if she were a party. Upon the point that her right would remain if not made a party, the law was considered as fully settled and closed from 1832 to 1846, when we transferred the statute to our code, and the same view has ever since been adhered to.— Willard’s Eq., 703; Mills v. Van Voorhies, 20 N. Y., 412 ; Waite’s Table of Cases, 310. Whether the theory or scheme propounded by Chancellor Walworth, for a transfer of the right to the fund produced by the sale, was appropriate, or even the wisest, is wholly beside the present question.
It is true that in 1840 the New York legislature amended the general partition law, and added regulations in the spirit of the view of Chancellor Walworth relative to the way of working out the protection everybody admitted to be already due to the right, but this is a consideration in no respect important. That the wife’s right could not be cut off without her being a party was fully, deliberately and notoriously settled under and upon the law as it stood before and as we accepted it. And the main purpose of the amendment was to clear away doubts on another point and give legislative sanction to the doctrine judicially announced, that the right could be transferred to the fund raised by the sale, and absolutely severed from the land, through proceedings in partition embracing the wife as a party. No inference certainly can be drawn from it under the light shed by adjudications, that any one supposed that the right could be destroyed in the absence of the wife as a party.
The examination might be extended and many additional reasons given for the result. But this opinion has been already carried to greater length than was intended, and much greater perhaps than it should have been. But the importance of the question, and some difference of views among the members of the court, have been thought to justify some latitude of discussion. After the best consideration I have been able to give to the subject, I arrive at the conviction that the sale in partition, when the wife was not a party, was analogous to a private sale or alienation by the husband alone,'and was not a bar'to her right; that we are not authorized to say that the legislature meant to ctít off the right through a sale in partition proceedings to which the wife was not a party, and that the court of chancery has power in partition proceedings to guard her right without departing from its principles. It is due to candor to say, that when the case was submitted to the court, my mind was inclined the other way. But further reflection has led me to the result stated, and it follows that in my view the judgment should be affirmed, with costs.
Cooley, J., and Christiancy, Ch. J., concurred.
Campbell, J.
The most important question presented by the record in this cause, relates to the effect of a partition sale upon the rights of a married woman whose husband is made a party to a partition suit of lands in which he is tenant in common, — the wife not having been made a party, and surviving her husband.
I think there can be no doubt the court erred, on any theory of the case, in shutting out evidence of the partition proceedings altogether. By so doing, he left it to the jury to be disposed of as if the husband had died seized. The partition sale certainly operated as an alienation by the husband, whether it conveyed the wife’s dower or not; and the dower in lands aliened during coverture is allowed on a different basis from that in lands of which the husband died seized. — Comp. L., § 4275. It is also not impossible
in cases of sale, that more or less of the cash proceeds may be distributed so as to make equality of partition in such manner that one tenant may get more than his share of land, by having paid or allowed against it a portion of the money proceeds. In such case the widow’s dower in the land which he gets might be all or more than all she would have had in case there had been no sale. I can see no ground for excluding the partition proceedings, on . any theory of the right of dower.
But the main question, and the one which will most affect the parties, is whether the sale extinguished the wife’s prospective claim, so that after her husband’s death it cannot be recognized.
There is some difficulty in arriving at any result which will not present perplexities. But upon the best consideration I have been able to give the subject, I am compelled to the conclusion that the dower is extinguished. And I think that without further statutory provisions, the result must be, either that the right is destroyed by the sale, whether she was or was not a party to the proceedings, or else that it cannot be destroyed in any event, even if she is made a party.
In New York, and in some other states, there, are now statutes providing directly for such cases. But prior to 1810 the decisions were conflicting, and it was impossible to tell just what the law was. The view of Chancellor 'Walworth was that the statutes provided sufficiently, both for ascertaining and protecting such a right, and required the wives of tenants in common to be made parties. But there was never any agreement on this doctrine. — See Jackson v. Edwards, 7 Paige, 391; S. C., 22 Wend, 498 ; 1 Scribner on Dower, 328-342.
It is not conceivable that a statute of partition can be designed to provide for a sale that cannot in some way be made to pass a perfect title. Such an idea is not admissible. It is equally clear to my mind that if no way is provided for securing to any class of person scompensation for,, or protection in, their contingent rights, the only conclusion must be that they are cut off, if it is lawful to do that. And of the right of legislatures to bar inchoate rights of' dorver, there is no dispute. The only inquiry must be whether they have done it in this instance.
The language which provides for setting up in the bill contingent, as well as present interests, is broad enough to-cover such a case, if such is the intention derived from the entire statute. — Comp. L., § 6269. But section 6270, which directs who may be made parties, and declares that every person “ entitled to dorver in such premises, if the same has not been admeasured, may be made a party to such suit,” would seem to indicate that the dower must be vested, and inferentially exclude any inchoate and contingent right.. No great stress, horvever, ought to be laid on single phrases.. I do not base an opinion on any thing but the act taken as a Avhole, which explains this as it does some other provisions. There are a few sections Avhich have a special bearing.
Section 31 (Comp. L., § 6296) of the chapter, declaring what parties shall be bound by a decree in partition, uses in regard to contingent interests the same language used in § 6269, — that is, — “ who, by any contingency contained in any will or grant, or otherwise, may be or become entitled to any beneficial interest in the premises.” It then goes on to provide especially for all undivided interests, as “tenants for years, for life, by the courtesy, or in dower.” Here the term “dower” is again used expressly, and used, as in § 6270, to signify a present interest. If the inchoate right is referred to, it would be among the contingent rights mentioned above. But it Avould still be unimportant whether included in that term or not, because where a partition is actually made without sale, no one claims that the- dower would not be transferred at tbe husband’s death to-the parcel allotted to him in lieu of his moiety, independent of this provision.
We are, after all, remitted to the provisions referring directly to sales, to determine what rights are included. And it is needless to say that if a married woman is to be-made a party in right of her inchoate interest, there is no case of a future estate* requiring more attention. But, as-I read the statute, it makes no provision whatever for her benefit.
By section 6299 the court is required to give order for the investment of so much of the proceeds, for the benefit of “any unknown owners, any infants, any parties out of the state, or any tenants for life, in doioer. or by the courtesy.” A “tenant in dower” cannot mean a woman whose husband is living.
Section 68H directs what amount shall be invested for an estate in dower. It is “one-third of the proceeds of the sale of the premises, or of the sale of the undivided share thereof, in which such estate shall be.” By section 6827 the income is to be paid annually to the parties entitled to such estates, during their lives.
Throughout this whole statute there is no reference directly to the wives of tenants in common, and there is no-provision directing how their contingent rights shall be protected in the proceeds of sale.
Inasmuch as it is a fundamental rule in equity, that no-one can sue or be sued without a vested interest, any bill making a married woman a party under such circumstances would be demurrable unless made good by statute. I think the statute should be more definite than this to justify such a result. If she is made a party it is for a several and not for a joint interest, and one in which her husband does-not represent her, or else the joinder would be useless.
Again, it is anomalous to require her to be made a party under this statute, when it is only in exceptional cases that it can ever make any difference. Sales are not to be ex pected in.' ordinary cases, but only when the property is indivisible.
Moreover, when this statute was first passed, the interests •and powers of married women were different from what they are now. They could not sue or answer in their own name without either husband or next friend, except in •divorce cases, and so peculiar a case as partition of lands, in which they had no separate estate in existence, called for some special provisions, not only as to the suit itself, but as to all investments and payments under it.
A married woman cannot now, and never could, contract concerning her dower interest except by deed. She never could be estopped by a judgment against her, or for her, merely because she sued or was sued in her own name. Her disabilities have been removed as to her torts and contracts, where the latter relate to her separate property (in which this right is not included), but her general disabilities remain. And if she is bound by being made a party to a partition suit, and bound to accept any provision made for her by the decree, it is by a radical change in the law, which is not only an innovation, but such a serious one that there ought to be a very clear and express warrant for it.
I think that if a woman’s rights were saved against a sale to which she was not a party of record, they could not be barred at all. It seems to me far more dangerous to assume that a court of equity can enlarge and invent supplements to the statute of partitions, than to accept any of the alternatives.
There is also a serious difficulty arising out of the statute creating dower. The invalidity of the sale is placed, and properly so, upon the provision that the widow shall be endowed of all lands of her husband,'owned during marriagei “'unless she is lawfully barred thereof.” — Comp. L., § 4269. This statute points out how dower may be barred, and the only way there mentioned is by joining in a deed with her husband. There is no process known to the old statute, or common law, whereby a married woman can have her dower cut off or transferred, merely by becoming a party to a suit at law or in equity. It is not, it seems to me, safe to give such a force to legal proceedings on-any doubtful words of a statute that makes no allusion to; the subject in terms.
I think the statute does intend to cut off the contingent rights of all persons by partition sales, but that this is to-be done without any reference to whether they are parties- or not, and that it is the only result which will give beneficial effect to the proceedings in regard to either tenants in common or purchasers. It is a necessary inference from the nature of partition.
It is one of the incidents of every tenancy in common, that partition can be compelled if the parties refuse to-make it, and that they can make it themselves if they choose. A widow, at common law, had dower in lands aliened, as well 'as in those of which her husband died seized, and could not release her dower during coverture by deed or release. It required a special proceeding. There is as much objection in principle, to changing her right without her consent or privity, from an undivided to a specified estate, as to selling it. Each is a direct interference with it, which she might not be willing to assent to, if she had her way. But there is no dispute but that a partition of lands, carried out by the parties, or by legal proceedings, bound her dower, although there was no possible way of making her a party to such proceedings, either at common law or in equity. See authorities collected in 1 Scribner on Dower, 327, and notes 1 and 2. The right to partition was as inseparable ' from the estate as that of survivorship in an estate held by husband and wife by one grant. Her dower attended her husband’s estate, and was .affected by all of its transformations under the partition. In equity, and by voluntary partitions, the dower in an undivided share in many parcels might be transferred to an entirety in a single parcel, .thereby becoming extinguished in several freeholds. This was done- without her acting or being heard. Her right was subject to the contingency of partition, as well as of survivorship.
The provision of the statutes adding a much needed ■safeguard against partitions, which could profit no one without it, must be construed, on all ordinary principles, ■as binding the same interests by one process that would be bound by another. Before sales were provided for, it might easily happen, and often did happen, that a small parcel of land was so divided up as to be absolutely worthless. Any tenant insisting on it could compel the division, however absurdly it might turn out. A right of dower in such a fragment of land would be of no value at all, when, if left undivided, all the tenants might have received aliquot shares in a profitable rent. But there was no way of preventing the mischief.
It was just this mischief, of making ruinous subdivisions, that the statute was intended to remedy. And the remedy would fail, unless the whole estate is transformed by the sale into the money which is the proceeds of the sale. It was designed to substitute for that which could not be ■divided to advantage, something else that could be. To leave the land subject to any burdens, is to leave the partition incomplete, and to sell but a part, instead of the whole of the estate. The whole tenancy in common was intended to vest in the money, by a total conversion of the fund. And the statute provides for a distribution, expressly on that basis, by equal shares. It provides for
no deductions from a husband’s share because his wife is not joined. If the property sells for less than it otherwise would, because of such non-joinder, the loss falls as heavily on the rest of the tenants as on him. Upon this the statute is positive, and the provisions for equal distribution are of themselves quite conclusive. Any construction that throws upon others than the husband, the consequences of the non-joinder of his wife, would lead to great injustice.
The courts of Ohio and Missouri have put this in a very forcible light, in Weaver v. Gregg, 6 Oh. St., 547, and Lee v. Lindell, 22 Missouri, 202. It is shown plainly that unless the sale binds everybody, the loss falls as severely on the other tenants as on the husband, and that the reduction in the purchase price is divided among all the tenants, instead of being confined to his share.
This is not such a construction as will carry out the beneficial purposes of the statute. If equities are preserved at all to the wife, the natural resort would seem to be to claim a life interest in the proper share of his personal assets. During his life his right to the use 'of the estate is quite as sacred as her contingent dower afterwards. It may be that dower cannot be extended to personalty in that way. This is very likely, but it is quite as much within the power of equity to enforce it then without a statute, as to enforce it before the husband’s death without a statute.
When land is taken for public uses, dower is extinguished, not becuse it is so expressly declared, but because the whole title is required to serve the purposes in view.— Moore v. City of New York, 4 Seld., 110. There being power in the legislature to divest it entirely if they choose, the appropriation to a purpose inconsistent with such a claim destroys it. The purpose of changing an estate into personalty for a use which required the whole estate to be transmuted in order to make the partition complete, is quite as lawful and quite as natural as the use of lands for any other purpose required by public policy which would absorb them completely. And there is no occasion or reason for seeking any escape from the legislative will in one case more than in another. It is important for all parties that good titles should be made and good prices realized, and that partitions should not be governed by different rules as to parties, merely because they may or may not happen to require land to be sold, in order to accomplish a severance of the common tenancy.
If we are to balance hardships (which is not an entirely safe process), there is seldom any loss to the wife by reason of such a change. The whole law of dower is full of in consistencies. If land is exchanged for land, dower attaches to but one parcel. If land is sold for money, and a new purchase of land is made, dower attaches to both. If the husband, though never worth more than the value of one estate, should sell lands frequently, and keep on selling and purchasing on the same capital, without obtaining a release of dower with each sale, his wife’s dower in one-thii*d, if she survives him, may be worth more than he was ever worth in his life.
It is most likely the question before us never occurred to the legislature at all, and we may as well imagine one thing as another as to what they would have done if they had thought of it. The only construction must be drawn from what they have said. When the question divided the New York courts, the legislature in 1840 made a special provision in favor of the wife’s interest. When we revised our statutes in 1846, and adopted a law substantially like the older law of New York, we did not adopt that amendment, which was found necessary to give efficacy to the theory of' Chancellor Walworth, which has not obtained any general adhesion, and which is, I think, unwarranted, as a mere' judicial invention. The Ohio decision seems to me much more practical, and much less productive of mischief.
I think the judgment should be reversed. | [
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Graves, J.
The Fort Wayne, Jackson & Cincinnati Railroad Company, a Michigan corporation, consolidated with the Fort Wayne, Jackson & Saginaw Railroad Company, a corporation of Indiana, and the two companies, when so consolidated, took the style of the latter company. The plaintiff in error, prior to the consolidation, and at or before the 7th of December, 1868, became a subscriber to the capital stock of the Michigan company, and having refused to pay his subscription, this suit was brought by the consolidated company, the defendant in error, to collect it.
They recovered in the court below, and the plaintiff in error insists that he was not liable. The first ground of defense relates to the legality of the supposed incorporation of the Michigan company under the general railroad law.
The general act, as passed in 1855 (Sess. L. 1855, p. 158), required that the affidavit of the amount subscribed, and the amount paid in, to be annexed to the articles filed in the office of the secretary of state, should be made by at least three of the directors, but the amendatory act of 1867 (Sess. L. 1867, p. 90) required this affidavit to be made by at least one-half of the directors. The promoters of the Michigan company framed their articles in the summer of 1868 and therein provided for nine directors; but failing to notice the change made by the act of 1867, they proceeded to file their articles with an affidavit attached made by three only of the directors, when it should have been made by five, in order to comply with the act as amended. They seem not to have discovered this error until the following winter, when, and on the 19th of January, they annexed to the articles on file an affidavit made by five directors, and they there stated that their first affidavit was made by too small a number through inadverence. In this interval between the 26th of September, 1868, when the articles were filed, and the 19th of January, 1869, when the second affidavit was annexed, the company had completed a formal organization and had steadily and very actively prosecuted their enterprise. The commissioners named in the articles to open books of subscription had been zealously engaged, and by the 7th of December, 1868, had obtained actual subscriptions to an amount above six thousand dollars per mile for the whole road intended to be built by such company. Among these subscriptions was that of the plaintiff in error, and all were formally accepted by the company. The plaintiff in error contends that the company were not' legally incorporated and empowered to receive subscriptions under the articles as first filed, in consequence of the insufficiency of the first affidavit, and that under the circumstances the filing of the second affidavit on the 19th of January, and subsequent to his subscription, superseded the first proceeding and operated to establish the corporation as of that date. His counsel argued very ingeniously in favor of their position and against an adverse application of our decision in Swartwout v. Michigan Air Line R. R. Co., 24 Mich., 389; but we think the doctrine of that case is clearly opposed to the defense made here.
The projectors of this company seem in good faith to have, undertaken to incorporate themselves under a law authorizing them to do so, and they appear to have truly supposed that they had consummated a valid incorporation. On the faith of this belief they in fact organized and exercised corporate functions; incurred expense and liabilities, and in various ways extensively promoted their contemplated enterprise.
The plaintiff in error met and contracted with them on the footing that they were legally incorporated and competent to receive subscriptions, and gave the weight of his name to their project and pretentions. He became a -subscriber for stock on the books opened by the commissioners, and voluntarily put himself in a position to claim the rights of a stockholder.
In thus agreeing with the company for stock and to pay for it, he encouraged the making, in accordance with the articles, whatever future expenditures might reasonably be expedient and needful iu furtherance of the scheme, and virtually admitted, as between himself and the company, that an incorporation had been consummated. The action of the company was continuous from the time when the articles were first filed, and its identity was never lost or changed.
The filing of the second affidavit was a measure designed solely to correct an irregularity, and not to indicate the launch of another company. In view of all the circumstances, we think the plaintiff in error was not at liberty to contest his liability on any point dependent on the fact that the affidavit first filed was made by three of the directors only. And this conclusion we consider as rendered proper by our decision in the case of Swartwout v. Michigan Air Line R. R. Co., to which we refer as exhibiting very fully the views we entertain on this branch of the case.
When the opinion there given is examined, it will be observed that a distinction was plainly marked between the right of a subscriber for stock when sued for his subscription, to insist upon irregularities in the incidents connected with the preparation and filing of the articles, and in the routine affairs of the company, and his right to set up a failure by the corporation to obtain the requisite amount of capital stock. His position as an agreeing party with the company as a corporation — as a joint associate in the enterprise, and as one who has given countenance, impulse and credit to the movement in its aspect of one which is regular and legal — may justly preclude him from setting up irregularities like those first mentioned, in order that he may cast upon others his share of a common burden which he helped to induce. But the very nature of his undertaking as a subscriber for stock implies a different relation and a different obligation as respects his right to object that an insufficient amount of stock has been subscribed.
In that case the objection is not inconsistent with the supposition of a regularly organized corporation in the exercise of its corporate functions. But it implies very correctly that the undertaking of a subscriber to the capital stock is to pay up for his stock only on the condition that the aggregate amount of capital stock made necessary by statute is actually subscribed, and substantially asserts that such amount has not been obtained. It insists upon a fundamental term of the contract itself, and not upon irregularities adduced to show that the company the subscriber treated with and held out as a corporation was not one, and hence that his formal undertaking was no contract at all.
The point next to be noticed requires no discussion. It relates to the admission of the subscription books to prove that six thousand dollars per mile had been Subscribed, and the position taken is, that the showing of the subscription per mile could be made only by specific proof of each subscription, and that the books opened and kept by the commissioners were not proper evidence. The subscription sued on was specially proved, and we are satisfied that the books were admissible to show the other subscriptions and the amount per mile. The books in question are of the nature of official registers, and the subscriptions contained in them were taken under the sanction of official duty. We think the right to use them as evidence to prove how much per mile had been subscribed, in this action against a subscriber, is entirely clear. — 1 Greenleaf’s Ev., §§ 483, 484; Groesbeck v. Seeley, 13 Mich., 329; 2 Cow. and H. Notes, p. 1156, note 800.
The remaining objection open to the plaintiff in error upon this record and now insisted on, is that it was not alleged, and did not appear, that six thousand dollars per mile had been subscribed for the entire' road of the companies as consolidated.
As already stated, it did appear that more than six thousand dollars per mile were subscribed for the road of the Michigan company, and which road was all within the limits of this state. The point of this objection is, then, that it was not shown that six thousand dollars per mile had been subscribed for the road in Indiana, and which the Indiana company were incorporated to construct. This objection appears to us to be clearly untenable. The legislature of Michigan in regulating this subject acted upon their own views of the policy best suited to the interests of this state, and they did not assume to determine what would or would not be expedient elsewhere.
The provision in our statute as to the amount per mile necessary to be subscribed has exclusive reference to corporations created here for the construction of roads within our own borders, and was not intended to have any extraterritorial operation. And the circumstance that the company in this state has consolidated with a company created in Indiana to construct a road there, cannot serve to make this regulation attach as a condition to the body owing its existence to Indiana.
Some objections were suggested on the argument to the regularity of the calls, but the point does not appear to have been made on alleging error. We therefore refrain from considering that subject.
As no error is shown, the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Graves, Ch. J.
This is an appeal by defendants from a decree of the circuit court for the county of Oakland in chancery.
The suit grew out of a contention respecting the distribution of a fund derived from the sale of certain coal oil property in Pennsylvania. The property disposed of was obtained in one of the many speculative joint adventures which became so common a few years since; and' after some vicissitudes it was conveyed away, and the complainant asserted a right to participate in the proceeds, but this claim was denied by the parties who had the handling of • the fund.
The earnestness of the defense, and the age and experience of the counsel engaged in it, suggested the propriety of delaying a determination until we should be able to re-examine the whole record with critical attention. That task has now been performed. A complete detail of the cause and of the transactions connected with the subject in dispute would be extremely tedious and would expand our opinion beyond reasonable limits. We find it requisite to content ourselves with a glance at some of the main features. There are some matters which have been dwelt upon which do not appear to us as of any practical importance in the case. Among these we may mention the .proceeding called an arbitration.
On the 15th of September, 1860, tbe defendant Jesse A. Héydrick, an operator in oil enterprises, and who resided in Pennsylvania, and appears to have then owned or controlled certain interests in Venango county in that, state, was in Pontiac, and he then and there entered into a contract in writing with the defendants Beardsley, Voorheis, Peck, Morris, Millis, and Charles B. Boughner, to convey to them certain of the interests he so owned or controlled, for fifteen thousand dollars. This consideration was to be paid as follows: three thousand dollars in thirty days, three thousand seven hundred and fifty dollars in six months, three thousand seven hundred and fifty dollars in one year, and four thousand five hundred dollars in oil. This was the initial movement, and on the footing of it a .joint stock company was organized at Pontiac on the 26th of the same month. The constitution of the company consisted of fifteen written articles. They declared that the company should be called the “Wolverine Oil Company;” that the capital stock should be fifteen thousand dollars, in ■thirty shares of five hundred dollars each, and that each share should entitle the holder to one-thirtieth part of all the property which should or might in any wise belong to the company, whether held by any, either, or all of its officers, or by any person or persons in trust for the benefit of the company. This provision as to the right of the share-holder was made fundamental. The articles further provided for a board of directors, a president, secretary and treasurer, and for other agencies. Many precise regulations were embodied relative to management and intended to advance the enterprise of the projectors. The facts tend to show that the interest secured by the agreement with Heydrick was to enure to the company, and that they were to stand in the shoes of those who contracted with him. It is impossible to reflect on the circumstances without being persuaded that the formation of the company was closely connected with this contract, and that the purpose .just mentioned was formed and understood by all concerned. The articles were sealed and subscribed and the stock taken by the following persons: Isaac I. Voorheis, two shares; John D. Millis, three shares; Charles B. Boughner, three shares; Orville C. Morris, three shares; Clark Beardsley, two shares.; Theodore O. Armstrong, one share; John G. Durkee, one share; Edward W. Peck, three shares; Moses G. Spear, one share; Isaac L. Smith, one share; Jesse A. Heydrick ten shares.
The company organized and proceeded to carry out their plan. All the shareholders except Heydrick lived in Oakland county, and the company seem to have treated that as their true domicile. As he resided in Pennsylvania he does not appear to have taken a personal part in their subsequent business meetings in Pontiac. He was nevertheless a member of the company and jointly interested in its property and affairs. The directors met from time to time and made and collected large assessments on the shares. Assessments were made on Heydrick’s shares with the rest, up to the 10th of June, 1862, at which time it appears from the company books the directors assumed to make an assessment of twenty-five dollars and ten cents on each share of the company “ owned in Oakland county.”
As after this, however, assessments were sometimes mqde on all the shares and sometimes not, this exceptional mode of assessment is not easily explained by the record. It .is possible that Heydrick, when these special occasions arose, may have paid or advanced an equivalent, or been in some position which, in the opinion of the directors, made it improper to assess him in view of the purpose which the assess-’ ment contemplated. Iu any possible aspect of the matter, it is, however, without influence. In the fall of 1860> Boughner, who was one of the directors, was dispatched t.o 'Pennsylvania as a special agent of the company, to attend to their interests and to take conveyance of such landed and other interests as they were entitled to or should procure.
Besides the authority springing from the articles, he was furnished with a power of attorney executed under seal, by Beardsley, Voorheis, Smith, Peck, Spear, Armstrong, Durkee, and Miliis. This instrument as drawn, included the name of Heydrick, and his name and description as a shareholder was left to stand in it when it was executed and delivered. He was probably in Pennsylvania and his signature was not put to it. Boughner, however, the donee of the power, through some inadvertence, signed it. On the back of this paper Boughner made a declaration in writing under seal, apparently for the benefit and protection of those who employed him and for whom he was to act, that he would execute and perform the business entrusted to him “for the use and benefit of the parties to, and members of, the Wolverine Oil Company.” By this all the members were recognized as interested in what was to be done, and not a part of them merely. Morris subsequently executed and transmitted a similar power. Boughner repaired to Venango, and in a short time obtained valuable interests and which seem to have consisted of two-thirds of the properties described in Heydrick’s contract, and to have been turned over pursuant to that contract. These grants, or whatever they were, ran to Boughner. As by the agreement Heydrick was to hold an interest of one-third, and by the articles, the property, by whomsoever held, if stock, would belong to the company, and Heydrick had one-third of the shares, it seems to have been understood that he might retain the legal title to one-third. We gather that he did so. The consideration for the transfer to Boughner was derived from the company, and the property was in fact that of the company, and was so considered by all concerned. The ownership of a few shares changed. On the 11th of April, 1861, the defendant Kell am became a shareholder, he having purchased one of the shares originally taken by Morris, and the defendant Andrews, about November, 1864, acquired the three shares of Boughner. The complainant, sometime between the 12th of July, 1861, and the 29th of November, 1864, became owner of one of the shares originally taken by Heydrick. During all this time, so far as we can gather from the record, the property .composing capital stock remained a common fund, and in which every shareholder had an undivided interest. These new proprietors all lived in Oakland county, and as a consequence of complainant’s purchase, there came to be twenty-one, instead of twenty Oakland county shareholders. The complainant never subscribed the articles. He was, however, regularly put down, recognized and assessed as a shareholder on and after the date last mentioned.
On that day a meeting of the stockholders was held, at which were represented sixteen of the thirty shares, and among them his share. The meeting was adjourned over to the 30th of November, at which time the same shares appear to have been represented.
At this meeting Andrews, who, as before stated, had succeeded to the interest of Boughner, was chosen director in Boughner’s place, and likewise appointed agent “ with power to sell the interest of the stockholders of the Wolverine Oil Company residing in Oakland county, provided a satisfactory sale could be made.” The meeting expressed itself by resolution, to the effect that no proposition for a sale should be favorably entertained which should offer less than four thousand dollars for each and every share of said company owned in Oakland county. The movements which occurred at this time indicate that there had been overtures to purchase, from some quarter, or at least that something had happened to cause an expectation that offers to buy would be made. The key to the idea of selling the Oakland county interests as separate and distinct from any other, would seem to be that there were grounds for thinking that Heydrick, who controlled all the other shares and lived in Pennsylvania, and was an operator in oil enterprises, was disposed to buy for himself or others. The inference that the Oakland shareholders were acting upon the notion that Heydrick was to be the purchaser, is strengthened by what soon happened. He did buy. Besides, it is to be noticed, that in the summer of 1864, Voorheis had been sent down as agent, and the company were apprised that'he meditated a sale of a portion of the interest of the “company” for twenty thousand dollars. They thereupon directed their secretary to advise him not to sell any part of "our interest, in parcels” and not to offer the whole for less than from one hundred to two hundred thousand dollars.
Yoorheis continued to make efforts to effectuate a sale, and at this juncture, and for some reason the record does not explain, the company deemed it expedient to send Andrews down also. He was provided with a power of attorney subscribed by Armstrong, Beardsley, Smith, Kellam,' Millis, Spear, Peck, Morris, and complainant, and Morris subjoined to his signature the significant qualification, — ■ “with the understanding that it shan’t be sold less than eighty-four thousand dollars, — twenty-one shares.”
The names of Yoorheis and Heydrick were inserted in the body of this paper as shareholders, and were not erased when it came to be executed and delivered. They were then in Pennsylvania, and did not subscribe. Those who did subscribe must have regarded them as jointly connected in the business. The efforts and negotiations on this occasion appear to have ended in a sale and transfer of all property which had inured to the company in their transactions with Heydrick. The matter is left somewhat obscure by the record, but enough appears to show that Heydrick conducted the negotiations for the buyer, or buyers, and that he either acted as principal or was allowed to deal with the affair as one who was purchasing, wholly or in part, for his own benefit. If any thing belonging to the company stood in his name, the equitable right of the company to it was meant to be cut off by his purchase. It seems to have been the intent to vest in the transferees the whole beneficial interest to which the company had claim, so as to leave nothing which certificates could represent beyond the fund received in exchange, and to so manage the matter that Heydrick could have no interest in that. The trade was not a sale of stock. It was a com píete relinquishment of the ultimate capital and property of the company. "When it was consummated the “Wolverine Oil Company” had not simply changed its stockholders. It had parted with its estate. It does not appear that any thing was left for certificates to represent but the fund taken in exchange. Yoorheis, who seems to have been chief negotiator for the company, first reported that he had sold for eighty-four thousand dollars. A slip occurred, however, and he finally got sixty-two thousand dollars in cash and four thousand shares of oil stock, which is probably worthless. He received the money in Pennsylvania, and at once paid over to Peck twelve thousand dollars as for his share. After his return, and on the 22d of July, 1865, a meeting of the stockholders and directors of the company was held at Pontiac, at which time Yoorheis, Armstrong, Andrews, Morris, Peck, Beardsley, Millis, Smith and the complainant were present. It was there voted by the directors that sixty-two thousand dollars should be divided among the Oakland county stockholders, embracing twenty-one shares. This included the complainant’s share. At the same time an assessment was made and paid of four dollars seventy-six cents on each of such twenty-one shares to pay an allowed claim of Boughner. On the 12th of August the directors again met at Pontiac, and allowed several claims against the company, including one to Yoorheis for his services and expenses. They also assessed each of the Oakland county shares fifty-two dollars and three cents to defray expenses.
On the 18th of September following, however, another meeting of the stockholders and directors was held, at which time Yoorheis, Andrews, Peck (by- proxy), Morris, Kellam, Millis, Smith, Spear, Beardsley and complainant were present. On this occasion it was resolved that the doings of the meeting on the 22d of July should be rescinded and held for naught, — Morris, Yoorheis and complainant resisting. A similar course was pursued in relation to the proceedings of the meeting of the 12th of August, Voorheis resisting. At this time a vote of censure was also passed against Voorheis, and he was removed from his office of agent and director. They did not go so far as to return the assessment made and collected on the 22d of July. By these and other movements it became apparent that a controlling number of the associates were determined that the complainant should receive no share of the fund realized by the sale, and at length his right to participation was definitely denied.
In February, 1866, the complainant filed his first bill, but omitted to make Heydrick a party. A demurrer was interposed, and the court sustained the demurrer. The bill was then amended by making Heydrick a party, and was again met by demurrer. This, however, was overruled, and all the defendants answered except Heydrick, and the bill as to him was taken as confessed.
We do not consider it necessary to reproduce the matter of the bill, or even to specify the essential parts of it. It proceeds upon the supposition that the complainant and the other associates were, as between themselves, for the purpose of dealing with their community rights in a court of equity, to be considered as partners, and it seeks a winding up of the affairs and an equitable application and appropriation of the effects.
A number of objections were pressed with much earnestness at the hearing. One of them may be here •noticed. It was said that the associates were not partners. They certainly had no corporate character,, and yet they were embarked in a common undertaking for their common profit, and this common undertaking was sustained, and was agreed to be sustained, by money advanced by each. That their relation and position were such as to justify a court of equity, in order to settle their disputes respecting the distribution of a common fund, to treat them as partners, is a point settled by overwhelming authority. We cite a few of the cases and books bearing on the point.— Beaumont v. Meredith, 3 Ves. & Beames, 180 ; Wallworth v. Holt, 4 Myl. & C., 619; Womersley v. Merrit, L. R., 4 Eq. Cases, 695; Richardson v. Hastings, 7 Beav., 323, S. C. id., 301; Whitman v. Porter, 107 Mass., 522; Taft v. Ward, 106 Mass., 518; Harper v. Raymond, 3 Bos., 29; Mann v. Butler, 2 Barb. Ch. R., 362 ; Townsend v. Goewey, 19 Wend., 424 Cross v. Jackson, 5 Hill, 478; 3 Kent's Com., p. 26; Story on Part., §§ 76, 77, 164, 213; Burgan v. Lyell, 2 Mich., 102; Clagett v. Kilbourne, 1 Black, 346; Brown v. Curtis, 5 Mason, 421; Adams Eq., 247, 239, 240; Willards Eq., chap. 10; Story, Eq. J., §§ 1243, 1255, 1256; Brown v. Gilman, 4 Wheat., 255.
In February, 1872, tbe court made an interlocutory decree adjudging that the associates were partners in interest in the property and effects of the Wolverine oil company ; that their respective interests were co-extensive with the shares they severally held, and that complainant held one share. The decree set forth and declared who were shareholders, and the quantity of interest of each individual ; that Heydrick owned and controlled nine shares independently, and governed the interest which they represented, in a manner distinct from the interest represented by the other twenty-one shares owned in Michigan; that Yoorheis acting as agent for the shareholders living in Michigan, and holding twenty-one shares, sold such shares, with the property they represented, and received a large sum of money and other property, and that the fund so obtained equitably belonged to the complainant and the other Michigan shareholders in the ratio of their shares, and that it ought to be divided among the owners after an adjustment of claims and demands between members and against the company.
The decree then proceeded to refer it to a commissioner to ascertain and report what sales, when and for what amount, had been made of any of the property, shares or effects of the company by Yoorheis or any of the other defendants except Heydrick, the disposition made of the proceeds, the amount passed over to any of the defendants, and whether Voorheis still had any property of any kind derived from any such sale, and whether there were any, and if so what, debts against the company which ought to be paid out of the fund.
The commissioner made his report under this decretal order on the 22d of November, 1872. He found and reported that on or about the 9th of February, 1865, Voorheis, acting as the agent of the Michigan stockholders, sold certain property belonging to them, and received therefor in cash sixty thousand dollars; that he also received in cash from Heydrick two thousand dollars and four thousand shares of stock of the Heydrick Bros, oil company; that at a meeting of the Michigan shareholders, July 22d, 1865, they recognized the sum of sixty-two thousand dollars as the amount received in cash by Voorbies as belonging to the Michigan shareholders, including complainant.
The commissioner further found that Voorheis paid to Millis, as company treasurer, for Andrews, eight thousand seven hundred dollars; for Spear, two thousand nine hundred dollars; for Smith, two thousand nine hundred dollars; for Armstrong, two thousand nine hundred dollars; and for Millis himself, eight thousand seven hundred dollars; making twenty-six thousand and one hundred dollars; that he paid to Beardsley, six thousand dollars; to Morris, five thousand five hundred dollars; to Kellam, two. thousand nine hundred dollars; to Peck, twelve thousand dollars; to complainant, three hundred dollars; being a total of fifty-two thousand eight hundred dollars paid over to shareholders. He also found that when Voorheis received this money the company owed him nine hundred and sixteen dollars and niue cents, and were otherwise indebted, as near as could be ascertained, to the amount of one hundred and seventy-six dollars and fifty-three cents; that after deducting what was due him for services, Voorheis had in his hands eight thousand two hundred and eighty-three dollars and nine-one cents, besides the oil stock in the Heydrick & Brothers oil company. The commissioner then stated the sum each shareholder was entitled to on the 22d of July, 1865, the over-payments and deficiencies in sums paid,'the interest on the different sums, and the rectifications in the distribution which the principles of the decree required.
No objections appear to have been taken before the commissioner, to the draft or scheme of his report in any particular’, and no exceptions appear to have been filed or suggested to the final report in the court below. Neither was there any motion to set it aside or refer it back. If not incorrect or inconsistent upon its face it was entitled .to great weight. The defendants, if dissatisfied with it, should have excepted or taken some other action appropriate to the objection. — Rule 79; Suydam v. Dequindre, Walk. Ch., 23; Dean v. Emerson, 102 Mass., 480; Tyler v. Simmons, 6 Paige, 127; Daubeny v. Coghlan, 12 Sim., 507; Morgan v. Evans, 3 Clk. & Fin., 159, and Am. notes; Mason v. Crosby, 8 Wood, & M., 258; Story v. Livingston, 13 Pet., 359, 375; Harding v. Handy, 11 Wheat., 103, 126. The general rule is that the report of a master, or commissioner acting as master, is received as true when no exception is taken.
The report standing confirmed under the rule, the case came on on the equity reserved and for further directions, on the 15th of March, 1873, when the court made a final decree. And it was adjudged that sixty-two thousand dollars, less the debts of the company, found to be one thousand ninety-three dollars and sixty-two cents, should be divided among the holders of the twenty-one shares, including complainant, according to the amounts held by them respectively, and according to the detailed statement on that subject in the report, and making two thousand nine hundred dollars and thirty cents as the share of complainant; that such sum should be paid to him with interest from July 22d,'1865, which would give to him at the date of the report, three thousand nine hundred and thirty-five dollars and twelve cents as his share of the fund, principal and interest; that Peck had received three thousand two hundred and ninety-nine dollars and ten cents in excess of his share, and that within sixty days from the date of the decree he should pay into court such excess, with interest from July 22d, 1865; that Beardsley had received one hundred and ninety-nine dollars and forty cents too much, and should refund in like manner; that if such sums, or enough thereof to equal the amount decreed to complainant, should be got into court, the sum going to complainant should be paid to him thereout and the balance to Voorheis to cover the deficiency of his share; that in the event of a failure to get from Peck and Beardsley enough to pay complainant pursuant to the decree, Voorheis should pay him his quota within the ten days next succeeding the end of the sixty days given them for payment by the decree; that it not appearing that the four thousand shares of oil stock obtained and held by Voorheis possessed any intrinsic value, he must place it in court to await further directions. It was also adjudged that complainant should recover costs against Beardsley, Voorheis, Millis, Andrews, Peck, Morris, Armstrong, Smith, Spear, and Kellam, and that the decree might be enforced by executions. Without pretending to exactness we have here given a substantial summary of the commissioner’s report and of the final decree.
The court seems to have adopted the theory that the right of Heydrick in the property owned by or held for the company was not in community with the rights of the ■other associates, and that in the ultimate disposition which •was made, no change was worked in respect to his holding, .or the nature of it, if he still continued a formal proprietor-; and that the change actually produced only comprehended the property rights represented by the twenty-one .Michigan proprietors. Now it is totally unimportant in iregard -to the result whether this view is embraced, or whether we adopt the construction before suggested, and which .-appears to me to be authorized, that the arrangement in Pennsylvania was meant to change the status of the entire property of tlie “Wolverine Oil Company” and place its tangible estate under a different control; that the arrangement carried out by or through Heydrick for a sale, divested the Wolverine oil company of the substance theretofore represented by shares, and that Heydrick’s holding for the company then ceased, and if he continued to hold for any body besides himself, it was for other parties. The question however, as before intimated, is without practical importance, and what is now advanced upon it is to be regarded as simply the impression of one member of the court.
We do not think it needful to discuss in detail the various objections which were pressed on our attention at the hearing, because, after a patient examination of the record we discover no substantial fault in the decree. After this inspection we find that the material grounds of the criticism of the defendants are removed by the application of principles now well settled. It appears to us very clear that the true controversy was one for equitable cognizance. See authorities before cited, also, Kelsey v. Holly, 16 Pet., 269. We also think it clearly established that the Yoorhies sale was not a mere transfer of individual stockholding rights, of certificates held as the evidence that the holders were entitled to interests in the general stock, and which certificates were capable of being transferred without lessening or increasing the property of the company. But it was a final cession of the ultimate fund or property of the company, of that very property which the shares represented.
That the legal title stood in a third person was of no consequence. The property was in equity that of the company, and no one questioned the right of the company.— Hoxie v. Carr, 1 Sum., 173; 2 Bowier Inst., p. 94, par. 1457. If a quantity of oil had been drawn from a company well it must have belonged to the company, and ultimately to the shareholders according to their respective stockholding rights. The same must be true of the well itself, and of the other property.' There were no several rights in the common estate. They were all joint. No set of share holders were entitled to any separate portion. Bach had an undivided interest in whatever belonged to the company, and this could not be altered by turning the common property into cash. Such a step might be one towards a state of things to favor a division, but in itself it could operate no further than as a change in< the form of the company property. — Clagelt v. Kilbourne, and other cases.
It is extremely clear that Heydrick, who held all the shares not owned in Oakland county, had no interest in the fund produced by the sale. He never claimed to have any, and the defendants do not suggest that he was entitled to participate in it. However his exclusion is accounted for, it is a fact insisted upon virtually on all sides, and the consequence is that twenty-one shareholders only are left to partake of the proceeds of the sale of the oil property.
By the constitution of’the company the ownership of a certificate carried with it an undivided interest in all company property, whether such property should stand in the name of the company or in some, other name; and this special consequence of the fact of ownership of a certificate was not designed to be affected, and was not affected, by mere non-subscription of the articles. No other construction can be placed on them. — Adams Eq., 242; Harper v. Raymond, 3 Bos., 29.
The complainant owned a certificate. The fact stands admitted by the company records. A mass, certainly, if not the whole of the property in which he had an undivided interest as such owner was converted into money by the assent of every one of the shareholders of the whole thirty shares. The transaction thus assented to, and which resulted in the conversion, was meant to extinguish and did extinguish the right of the shares still controlled by Heydricks to participation in the new fund produced by the sale to him. . There were nine of these shares then controlled by Heydrick. Twenty-one shares, with complainant’s, were unexcluded. But it is claimed that twenty of these are entitled to the whole fund, to the exclusion of the twenty-first share, owned by complainant. We do not see how any such division can be forced upon him. On the contrary, we think he was legally and equitably entitled to a ratable share of the fund. — 2 Bouvier’s Inst., pages 135, 136, 130, 131, 132, 133 ; Story, Eq. J., §§ 1243, 1255, 1256.
We have have not stopped to dilate on the company proceedings in recognizing him whenever burdens were to be borne, and in treating him as a legal member, even when, so far at least as appears, there was no company property to be represented by certificates, other than the fund produced by the Voorheis sale, and still maintaining that he had no interest whatever in the fund.
The decree of the court below should be affirmed, with such variations in regal'd to time as the delay caused by the appeal has made proper, and the complainant should recover his costs in this court, of the defendants who appealed. The cause should be remanded for the execution of the decree.
Campbell and Cooley, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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Graves, J.
One Charles Otto, a laborer for plaintiff in error, was accidentally struck, while in their service, by one of their cars, and seriously injured. The yard-master of the company, Mr. Theil, who had charge of the business and men in the yard where Otto was at work at the time, caused him to be immediately removed to his boarding-house, and also procured the defendant in error, who was a surgeon, to attend him. Doctor Taft thereupon rendered services for which he charged the company two hundred and twenty dollars. Payment of the bill was refused, and he sued the company and recovered, and the case -is now before us upon writ of error and bill of exceptions.
As the company insist that the evidence, all of which is embraced by the bill of exceptions, had no tendency to show a liability on their part, that question is naturally .the first to be considered. Their position is that Otto was in their service, and that prima facie they were not therefore liable to him on account of the injury, and as a consequence were not bound to provide or pay for medical services which the injury necessitated; that under these circumstances, no authority can be implied, from the nature of his employment, in any agent of the company, to bind them by an agreement to pay Doctor Taft for his services, and that the only evidence of authority was of that kind.
There is evidence in the record tending to show that Thiel informed the doctor that he employed him on behalf of the company, that he reported the fact to the superintendent, Mr. Merritt, and that the latter gave such employment his sanction. "We may, then, assume for the purpose of this question, that Thiel the yard-master,, and Merritt the superintendent, employed the doctor to attend Otto, and promised that the company should pay him. The question presented is purely one of agency, and however strong may be the force of imperfect obligation on the company, or however we may‘feel as to what humanity may dictate, the court can go no further than the law goes. Unless the plaintiffs in error were in law bound by the doings of their agents Theil and' Merritt, they were not liable; and unless those agents were authorized to contract for the company to pay the doctor for his services about Otto, the plaintiffs in error were not in law bound.
It was an indispensable part, therefore, of the case of defendant in error to show such authority. Was it shown ? There was no evidence of Theil’s authority further than this: He testified that he had charge of the yard, made up trains in the yard and had a right to employ men for all purposes they were required for in the yard and to do his part of the business, and. to discharge them; '.that he had employed brakemen for himself and also for the road trains; that his authority consisted in employing men in liis department.
Now, the affairs of a railroad corporation must necessarily be carried on through agents and servants of various grades, and having powers classified and regulated in a manner to correspond with the nature and arrangement of duties. And in the absence of evidence of either express delegation or of usage, the authority of the particular agent must be inferred from facts connected with the business .and position.
There is certainly nothing in the evidence respecting the business required of Theil, or in his position in the company’s service, which suggests his possession of authority to bind by contracts for professional services. He was a mere yard-master, charged with local and very circumscribed •duties, and those duties do not appear to have had any connection with the employment of professional assistance for the company.
In respect to Mr. Merritt, who in the record is called superintendent, the case is somewhat different. It is, of course, correct to say that the office of superintendent may be made to embrace an authority to employ and pay surgeons in such a case as this. And I think it is not too much to add that it was the duty of the company to keep lodged where it could be seasonably exerted a discretionary power for meeting such emergencies, and that in the interests of humanity it ought to be used cheerfully and liberally.
But the question here is not upon the duty of the company to confer this discretionary power upon some one, but it is whether, upon the facts before the court, there was ground for finding that Mr. Merritt was the possessor of that pow;er. Now, upon that subject there was absolutely no fact to go upon, except that as a servant of the company his title was that of superintendent. There was no evidence of express delegation, or of usage .in this company, or of circumstances tending to show either the nature or scope of his powers and duties. The circle of his authority was in no way or sense outlined. Everything was left to inference or implication from the solitary and nearly barren fact that he was an agent called superintendent in this particular corporation. Upon this isolated fact can we lay it down as law, that Mr. Merritt must be taken to have had not merely the ordinary powers of control and management pertaining to superintendency, but the larger and more imperial power to bind the treasury of the company to bestow what in law would have to be considered as something originally resting on imperfect obligation P
As we have nothing to indicate the nature and scope of Mr. Merritt’s agency in this company, except the name it bore, we are not in a situation to make the inference, unless on appealing to general usage the name is found to denote the authority. If agencies containing the high authority claimed are ascertained to have been usually so denominated, and agencies so named are found to have usually embraced it, it.may be admissible to consider the name as some evidence of the power. If, however, on the contrary, the particular agencies covering such high authority have sometimes been so denominated and sometimes not, if agencies having this particular name have sometimes included this power and sometimes not, if there has been no uniform rulé in .that regard, it appears to me we should not be at liberty to infer the possession of the power from a bare knowledge of the name.
Now it is well known that the superior powers of control and management, and especially such of them as bear upon extraordinary outlays and liabilities, are variously arranged, distributed and classified; and that the interior corporate arrangements and regulations of railroad companies follow no model, and differ greatly in different companies, and that the same companies do not constantly adhere to a single plan. Modifications of the system of administration are frequently made. There is no uniformity of plan, as between different companies, as to the precise amount of power indicated by thq names of agencies, and the same company does not always follow the same course in that respect. Some powers, from their nature, may be reasonably looked for in one department, or as connected with one position, and others may be expected to belong elsewhere. But there are many special and peculiar powers, of which that in question is one, which do not regularly or naturally place themselves under pre-recognized titular heads, and they are subject to distribution among the superior agencies of each company, according to its views of policy. The name chosen by one company to cover such powers, cannot be safely predicted from a knowledge of the regulations on that subject in another company.
In some companies the superior managing officer is called manager, or general manager, in others managing director, in others president, and in others still, superintendent. There may be, and probably are, companies in which the main active agent bears some other title. Even in companies in which there is an agent called superintendent, the name does not represent the same or any thing like the same powers and duties in all cases. In some eases the president or other official has an authority which covers much of the ground which is occupied by the power of the superintendent in others. The name, then, is no sufficient guide on a question of this kind. Admitting that some superintendents have the power claimed for Mr. Merritt, I think it cannot be inferred from thence, and thence only, that Mr. Merritt possessed it.
The class of powers to which this belongs has been arranged capriciously, and the name superintendent has not uniformly been employed as an exponent of such power.
It would be quite as sound reasoning, it seems to me, to infer from a knowledge of the powers of the presidents of France and Mexico to involve their governments, a like power in the president of the United States to involve ours.
On the whole, I am constrained to think that the case failed upon the question of authority to bind the company, and that the judgment should therefore be reversed, with costs, and a new trial ordered.
Campbell, J., concurred.
Cooley, J.
Taft brought suit against the railway company to recover the amount of his bill as a physician and surgeon, for services rendered to a servant of the company who had been injured in its service. The injury was caused by the man being run over by the company’s cars, and the services consisted in the amputation of a limb, the binding up of severe wounds and brúises, and attendance upon, and care for them afterwards, while medical care was required.
The disputed question in the circuit court was, whether the railway company had ever employed the plaintiff to perform these services. His testimony went to show that he was first called upon to attend the injured person by the company’s yard-master, at the place where the injury occurred, who assumed to speak on behalf of the company, and whose action was subsequently ratified by the general superintendent. The testimony for the defense, on the other hand, tended to show that the plaintiff was never employed on behalf of the railway company, and that neither the yard-master nor the superintendent had authority for this purpose. The argument for the railway company assumes that no agent or employe of the company can have authority to call in a surgeon to attend upon a person in their employ who has the misfortune to be injured in their service, unless specially empowered by the directors to make contracts of that peculiar nature. On the other hand, the plaintiff in the suit below contends that the general superintendent must be assumed, by virtue of his office, to have the requisite authority for this purpose; and upon that assumption the case seems to have been fairly submitted to the jury.
There are in this state more than three thousand miles of railway, operated by means of several hundred steam engines and several thousand cars. The railway companies own a considerable number of manufacturing and repair shops, some of which are very extensive, and they employ in different capacities many thousand men. Their business is peculiarly dangerous, and the liability of persons in their employ to serious accidents with or without any fault of their own, is constant. A large proportion of their employes are men of limited means, who depend upon their daily labor for the support of themselves and of their families, and an accident which disables one is likely to leave more or less persons in a destitute and dependent position. It is a rule of law, settled on grounds of public policy as much as on contract, that one who enters the service of another takes upon himself all the usual risks incident to the employment, and consequently that the servants of a railroad company cannot recover damages of the company for injuries received in their service in consequence of negligent conduct of another servant, as a passenger upon the company’s road or any third person might do.
If, therefore, any thing is paid by the company to the injured servant in such cases, it is by way of gratuity, and not by way of compensation. This rule is subject to an exception which will be mentioned hereafter. The business of such a company is managed by a board of directors, which will meet annually, and as much oftener as the necessities of the corporation may' seem to require, but it is not expected to be constantly, or even very often in session. It is the legislative body of the corporation, and will lay down general rules for the management of its business, and appoint executive officers to give them effect. It is reasonable to presume that the rules established by this board will be those supposed to be necessary to advance and protect the interests of the company, and that its members will not be solicitous to establish those which will impose burdens upon the company, even though a duty-might rest upon the company to bear such burdens. And even if we were to assume that the directors would be willing and desirous to provide for the discharge of all the moral obligations fairly resting upon the company, and that providing medical or surgical aid to an injured, employe was one of these, it is doubtful if the subject would be deemed of sufficient importance to the interests of the company to occupy the attention of a board, which, from the nature of the case, can be expected only to meet at considerable intervals, and to discuss and settle general principles and the most important matters, leaving details to executive officers and subordinates.
The result very likely is, if the position taken by the railway company in this case is sustained, that if a laborer for any one of the railway corporations in this state, in any of their yards or machine shops, or on any of their trains or tracks, is run over or injured by one of their trains or by any of their dangerous machinery, in consequence of the neglect or default of some other servant or agent of the company, there is not only no legal obligation resting upon the company to provide him the necessary medical or surg ical care and assistance, but there is not, unless the board of directors should happen to be in session, even the necessary power for the purpose in the hands of any officer of the company, and the injured person may be left where he has fallen or been stricken down, to suffer and perhaps to die of neglect, though the officers of the company might be willing and disposed to recognize and discharge any moral obligation resting upon the company to aid him if it were within the scope of their agency to do so.
If there is any exception to this sweeping statement, it will probably be found in the case of some company which keeps a physician and surgeon regularly employed in its own service, who would perhaps be expected to look after such cases; though doubtless the principal reason for such employment, where it exists, is to protect the company against unfounded or excessive demands by persons for whose injuries the company is or may be responsible, rather than to give aid in cases like the present.
There can be no doubt that it is within the scope of somebody’s employment for a railway company to cause a beast which is injured in carriage or run over at a crossing to be picked up and have the attention proper and suitable to its case; and if no one is authorized to do as much for the faithful servant of the company who is in like manner injured, but all persons in its service are impliedly forbidden to incur on its behalf any expense beyond what may be necessary to remove him out of the way of their trains or machinery — even to convey him to his house, or to save his life by binding up a threatening wound — then if such is the law, the courts must not hesitate to apply it, even though it be impossible to avoid feeling that it ought not to be the law, and that no business of this extensive and hazardous nature ought to be suffered to be carried on with no one for the major part of the time empowered to recognize and perform a duty which, at least on moral grounds, is so obvious and imperative.
But we do not think such is the law. On the cou trarv, wo think it is within the general scope of the employment of a railway superintendent to make such a contract as the jury have found was made, in this case, and that no evidence to prove a special authorization is requisite. The nature of the powers of a railway superintendent is indicated by the title to his office. He has the general superintendence of the business of the corporation, and is the immediate representative of the corporation in all business transactions with the public. This is the general fact, though there are undoubtedly cases where these general powers are, in part at least, conferred upon the president, or some other officer.
There is no evidence that this case was exceptional, and wc must consequently assume that this superintendent had the usual powers of general supervision. In all that pertains to the general management and operation of the road he speaks and acts for the company, and he must decide for it, and may make contracts on its behalf in the emergencies which unexpectedly arise, connected with, or growing out of the running of their trains, the transportation of persons or property, and the management and control of servants. He hires servants and he discharges them, and if he negligently or knowingly employs incompetent or reckless servants, or purchases and uses unfit machinery, his negligence is not to be regarded as the negligence of an agent merely, but of the company itself, in whose place and stead he stands and acts; and an inferior agent who receives an injury in consequence of such negligent action on his part may recover damages from the company as for its own wrong. These are well understood rules, and we know of no limitation upon his powers which confines him to a recognition of obligations of a strictly legal nature only, or which can forbid his meeting and providing for the moral obligations which the employer, if a natural person, ought in common humanity to recognize and provide for, whether required by law to do so or not.
Nor do we understand what rule there can be, either of law or reason, to preclude the courts taking judicial notice of the powers of a superintendent of a railroad, as it has often been held they may of those of the cashier of a bank. See Farmers and Mechanics’ Bank v. Troy City Bank, 1 Doug., 457. In fact the courts do often take judicial notice of the powers even of inferior officers. No one, for instance, would think it necessary to make proof that a freight agent may enter into a contract for the carriage of cattle, though the name of his agency no more points out the scope of his duties than does that of the superintendent indicate his general supervision. And if we were to require proof of all such matters when called upon to decide the various questions touching the powers, duties and modes of business of railway companies, we should find ourselves utterly powerless in the great majority of railway cases which come before us, to deal intelligently with the questions raised. But in fact we do habitually take notice of these things, as the whole community does in dealing with these corporations; and a refusal to do so would be not only a refusal to do what we do constantly in other cases, but it would, often amount to a denial of justice.
We shall not stop to prove that there is a strong moral obligation resting upon any one engaged in a dangerous business, to do what may be immediately necessary to save-life or prevent an injury becoming irreparable, when an accident happens to a person in his employ. We shall assume this to be too obvious to require argument, though at the same time we shall concede most fully that the question how far the obligation will require the employer to go in the expenditure of money for medical or surgical care, for the assistance of nurses, or for other provision for the injured person’s necessities, must generally be one to be-determined by the employer alone.
We do not subscribe to the doctrine, that because persons associate together to conduct a' business as a corporation, therefore they are to be held to any stricter rules, or to be treated with any less liberality by courts or juries, than they should be if they were to carry on the same business without taking upon themselves corporate powers. Neither on the other hand do we believe that the artificial person should be exempt from any of the obligations, either legal or moral, which a natural person, engaged in the same business, would be subject to, except so far as the legislation under which it is created shall have exempted it, or that when its managing authorities have attempted to make a moral obligation fairly resting upon the corporation and growing out of its business the reason for entering into a legal contract under circumstances which would render it legal in the case of a natural person, it should be allowed to repudiate the contract on any pretence of want of power to make it. The same rules ought to apply alike to both, and reasons of public policy of the most conclusive nature require that corporations should not be at liberty to plead peculiar exemptions in these cases.
This precise question has been judicially passed upon in several cases, and it is gratifying to know that the rule of justice and of public policy, which seems to us so obvious, has been recognized elsewhere with a single exception, and that in a court of inferior jurisdiction. In Stephenson v. New York and Harlem R. R. Co., 2 Duer, 341, it was decided that it was not within the general authority of the superintendent of a railroad “to arrange and liquidate claims made against, the company for the negligence of its servants in running its trains, or to contract with third persons, as its agent, to repair or remedy the consequences of such negligence.” And accordingly it was held that the superintendent could not contract on behalf of the company for medical assistance to a child run over by the cars of the company. This decision, so far as we know, stands alone, and we hazard nothing in. saying that it is opposed to the general, if not universal, practice of railroad companies in similar cases. Not only is it generally understood that the superintendent .of the company may in such cases, as its agent, contract to repair or remedy the consequences of the negligence of other agents and servants of the company, but it is usually regarded as proper and prudent that he should proceed to do so immediately, and thereby, preclude litigation" in every instance in which parties are disposed to be reasonable and to adjust, on a proper basis, any" claims they may have for injuries caused by the negligence of the railroad employes.
It would be a surprise, probably, to most superintendents, to be told they had no power to adjust any such claims, and to most boards of directors to be told that they could only confer such power by express and special delegation.
On the other hand, in Walker v. The Great Western R. Co., Law Rep., 2 Exch., 228, it was held that the general manager of the railway company has, as incidental to his employment, authority to bind the company to pay for the surgical attendance, bestowed at his request, on a servant of the company injured by an accident on their railway. The court appear to have thought the case almost too plain for argument; and in distinguishing it from Cox v. Midland Counties R. Co., 3 Exch., 268, where it was held a station master had no such authority, it was pointed out that the law regarding the mode of contracting by corporations has been greatly modified since that decision was made; as if it might now be open to discussion whether even in case" of a station master the rule might not be different. In Toledo, Wabash & Western R. R. Co. v. Rodrigues, 47 Ills., 188, a case in all its facts strikingly analogous to the present, the railroad company was held liable. The court avoid expressing an opinion whether the station master had authority to make such a contract, but they say of the general superintendent that he is “clothed, and must necessarily be, with large specific as well as discretionary powers. As his title implies, he "has a general superintendence of the business affairs of the road, and we deem it but a reasonable inference to conclude that this was within the scope of those powers, and when exercised that the company must be held liable. The corporation is governed, within the limits of its charter, by the adoption of rules and regulations for the purpose. These regulations govern the action of its officers. By them they confer powers and impose duties on their various agents and officers; and by this means they exercise their franchises. These regulations are private, and not accessible to the public, and hence the difficulty of other persons showing, except by inference or circumstantial evidence, that any ■officer performs any act within the scope of his authority. It would therefore not be reasonable to require positive proof of such authority. That fact must be left to proof as in other cases. And when it is known that the general superintendent manages all the business of the road within his department, and binds the company by contracts ■on its behalf, in regard to its general business, it may be safely inferred that such a contract as this was within the scope of bis authority.” We agree' with this case fully, except in one particular. We doubt the right of the railroad company to show that authority to provide for such •cases has been withheld from the superintendent, unless they go farther and show that they have conferred it upon some other officer. We think it their duty to have some officer or agent, at all times, competent to exercise a discretionary authority in such cases, and that on grounds of public policy they should not be suffered to do otherwise.
The case last referred to was followed in Toledo, Wabash & Western R. R. Co. v. Prince, 50 Ills., 26. There the station agent employed the surgeon and reported the case to the superintendent, and it was held that unless that officer dissented from the action of the station agent, and directed the agent to inform the surgeon, his neglect to do so would be .an implied ratification of the employment. And the court remark that “although a railway company is under no legal obligations to provide medical attendance for persons injured in its service, yet this would be so reasonable a thing to do, where the wounded employe is dependent upon his daily labor for his support, that a jury will generally find, even upon somewhat slight evidence, that the act of the station agent in employing the surgical skill necessary to save human life was ratified by his superiors.”
It is proper to say, however, that we are not at liberty to conclude from the mere fact of the injured person being the servant of the company that he can have no redress for his injuries. This is the general rule, unquestionably; but it is always possible that his case may be an exception to the general rule, and that he may be able to show that his injury came from the negligent employment by the company of reckless or incompetent servants or worthless machinery. But we are not disposed to attach importance to that circumstance, though it is evident, even on the argument made on behalf of the railway company, the proper officer might contract with a surgeon for such services if the company were responsible for the injury, and that the making or ratification of the contract by the superintendent might reasonably be regarded as some evidence that in his opinion the company might be liable, or at least that the question was sufficiently in doubt to warrant some expenditure of money to remedy the injury.
These views dispose of the case unless the court erred in refusing to instruct the jury that unless they should find the plaintiff was employed by some authorized agent of the company, or that such authorized agent consented to such employment on behalf of the company, the plaintiff cannot recover. This proposition is correct, but the judge has already correctly instructed the jury as to the grounds on which the plaintiff might recover, and probably the only reason why it was not given in these words was that they left out of view the important fact that in this case the plaintiff relied, not upon an original employment by the superintendent, but upon a ratification of an unauthorized employment by a subordinate. The judge might well have supposed that a charge in these words might lead the jury to think the ratification unimportant. Taken as a whole, we think the charge laid down correct rules, and could not have misled the jury to the prejudice of the company.
In our opinion the judgment of the circuit court should be affirmed, with costs. | [
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Campbell, J.
Plaintiff sued defendant upon a guaranty of collection upon.a promissory note of one hundred dollars. The note was made by William R. Bennett, dated December 13, 1868, and. payable six months after date to I. M. Eotaling, or bearer, with use. Defendant Earring, being then the bearer, sold the note to one Mitchell on the 30th day of February, 1869, and endorsed thereon the following guaranty: “For value received I guarantee the collection of the within note. E. E. Earring, February 30, 1869.” Plaintiff afterwards became bearer of the note, and having sued the maker and failed to collect it from him, brought the present action in his own name, against the guarantor.
The court below decided that the guaranty could not be sued by any but the first holder, and that plaintiff could not bring an action on it in his own name. No one can suppose, when a guaranty is given in the unrestricted form used here, that it was not intended to pass with the note, which was payable to bearer. The rules which prevent its negotiability, in the strict sense of that term, have never been supposed to interfere with its assignment. All personal claims of this sort are assignable, but at common law they were taken subject to equities, and could only be -sued in the name of the first person receiving the guaranty, for the use of the real owner. But the real owner was always entitled to control and enforce them, and to use his •assignor’s name for that purpose.
By a statute passed in 1863 (Comp. L., § 5775), it was provided that the assignee of any chose in action not negotiable might sue and recover upon it in his own name) subject to any equities arising before notice of the assignment.
By an act taking effect in July, 1869, subsequent to the date of this guaranty (Comp. L., § 1564), it was provided that all guaranties of payment or collection of negotiable paper should themselves be negotiable and pass with such paper, but subject to any equities between the guarantor and. ¡•the person to whom the guaranty was made, and that the holder might sue in his own name. The only difference between these statutes seem to be in dispensing with the necessity of allegations concerning the assignment, which, are necessary in tracing title to paper not negotiable; whereas, in suits on negotiable paper the title may be averred more briefly, and in such a case as this by a simple averment of such a delivery as would make one the legal bearer. So far as any transfer of rights is concerned, the last statute does not really make any new provision. It relates to form and not to substance, and is purely remedial.
The declaration does not set forth any assignment, but avers the guaranty to have been delivered to plaintiff. It was drawn under the statute of 1869. It would not have been sufficient under the statute of 1863, if the objection had been seasonably taken. The charge of the court and the objections taken on the trial do not seem to have rested on this ground, but on the ground that such a guaranty could not be transferred at all. If the defect in the declaration had been relied on as not showing an assignment» it would have been a matter of course to allow an amendment to introduce a proper averment.
If the statute of 1869 had any effect on the rights of parties, it could not be allowed to apply to existing contracts. But so far as it relates to the method and form of suing, there is no reason why it should not apply as well to existing as to future contracts. The law of 1863 was expressly made applicable to both, and it is doing no violence to the terms of the later statute to give it the same scope. As plaintiff could have sued in his own name on this guaranty if the law of 1869 had never been passed, its only effect in his case is to allow a simpler form for alleging his ownership in the paper. There is no rule of propriety or justice violated by such a change, and we think the intention of the legislature in the language they have used maybe fairly carried out by applying it to existing rights-There is always difficulty in retaining different remedies for precisely similar rights, and it ought not to be required, unless the language of the statute will allow no other course.
We think the rulings were erroneous under either statute, and the judgment must be ’reversed, with costs, and a new trial granted.
Cooley, J., and Graves, Ch. J., concurred.
Christiancy, J., did not sit in this case. | [
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Boyle, J.
We granted leave to appeal to examine the Legislature’s use of the phrase “proximate cause” in MCL 418.375(2); MSA 17.237(375)(2), which provides for survivor’s benefits under the worker’s compensation act. We decline to take up the cudgel with regard to the dissent’s scholarly exploration of the evils of judicial legislation or to reconsider the holding in Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994). Because the circumstances of decedent’s death were within the range of compensable consequences under subsection 375(2), we reverse the decision of the Court of Appeals and reinstate the decision of the magistrate.
i
Plaintiffs decedent, Keith Hagerman, worked as a millwright for defendant from April 16, 1984, until December 20, 1989. Decedent sustained a back injury at work on August 25, 1987, while trying to move a five hundred pound barrel. He returned to work, but sustained further aggravating injury to his back until he could no longer work as of December 20, 1989. Defendant paid benefits from decedent’s last day of work until his death on March 28, 1990.
As part of the medical treatment of the injury, decedent’s doctor ordered a myelogram to diagnose the extent of the injury and indicate the desirability of surgery. When decedent underwent this diagnostic medical procedure on March 7, 1990, a nurse advised him that successful recovery from the myelogram required that he consume large quantities of water before and after the procedure. As a result of this medical advice, after leaving the hospital, decedent consumed a sixteen ounce glass of water every ninety minutes.
Decedent suffered from high blood pressure for which he was taking the diuretic drag Aldoril. On the nights of March 8 and 9, decedent was hospitalized. It is undisputed that the high water intake, combined with the diuretic action of the Aldoril, depleted the sodium levels in his body, causing convulsions or seizures, that decedent aspirated gastric contents into his lungs as a result of the convulsions or seizures, which caused pneumonia and coma, and that decedent died of cardiac arrest on March 28, 1990.
Decedent’s widow sought death benefits on April 12, 1990. Under subsection 375(2) of the worker’s compensation act, when death is not immediate, the survivor seeking death benefits must show that a work-related injury was the “proximate cause” of the death. The magistrate awarded plaintiff benefits, concluding that the requirements of subsection 375(2) had been met by “[a] chain of medical causation [that was], although unexpected and unusual, . . . clear and unbroken.” Citing 1 Larson, Workers’ Compensation, § 13.21, the magistrate reasoned that “[t]he great weight of authority recognizes that the adverse consequences of medical management of a work related condition results in a compensable circumstance.” The magistrate specifically held:
[T]he myelogram was necessitated by the work related injury. It is not an intervening, superseding event, unrelated to the original injury. It does not break the chain of causation. It is but one event occurring in an unbroken sequence of events flowing from, and necessitated by, the injury.
The Worker’s Compensation Appellate Commission reversed, concluding that the death “was the result of medication designed to control his high blood pressure, a preexisting condition. . . . [T]he medication was an independent cause which lead [sic] to plaintiff’s death.” 1993 Mich ACO 845, 847. The Court of Appeals originally reversed in a peremptory order, but, on subsequent plenary consideration, the Court affirmed the wcac, concluding that plaintiff had failed to establish that decedent’s death was proximately caused by the work-related injury. 209 Mich App 667; 531 NW2d 832 (1995).
Plaintiff sought leave to appeal in this Court. We remanded for reconsideration in light of Dedes v Asch, supra, in which we held that the phrase “the proximate cause” in the governmental immunity statute, MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), does not require the plaintiff to establish that the defendant’s conduct was the sole proximate cause of plaintiff’s injuries. 451 Mich 874 (1996). On remand, the Court of Appeals did not apply Dedes. Rather, on further examination of the proximate cause issue, the Court of Appeals affirmed the wcac, concluding that the work-related injury and the myelogram were not substantial factors in the death and that public policy could not support holding defendant to a duty to protect decedent from the harm suffered. 218 Mich App 19; 553 NW2d 623 (1996). Thus, both the WCAC and the Court of Appeals essentially attributed the death to the preexisting medical condition. We conclude that the Court of Appeals erred. The evidence was sufficient to support the magistrate’s conclusion that the injury was the primary moving or substantial cause of the death. We vacate and affirm the decision of the magistrate.
n
A
“[T]he findings of the magistrate are conclusive when supported by substantial, competent, and material evidence . . . .” Goff v Bil-Mar Foods (After Remand), 454 Mich 507, 511; 563 NW2d 214 (1997). “The question we are faced with on judicial appellate review ... is ‘whether the WCAC acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate’s decision was or was not supported by competent, material, and substantial evidence on the whole record.’ ” Id., quoting Holden v Ford Motor Co, 439 Mich 257, 267-268; 484 NW2d 227 (1992). In applying subsection 375(2) in the instant case, and upholding the decision of the WCAC, the Court of Appeals employed an erroneous legal framework and based its decision on erroneous legal reasoning. Questions of law are reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
B
“[F]or centuries judges, lawyers and writers have used the phrase ‘proximate cause’ to indicate a cause of which the law will take notice.” Perkins & Boyce, Criminal Law (3d ed), p 774. We attribute no greater or lesser intent to the Legislature in enacting § 375 than to ensure “legally recognized cause.” Id. at 776. Construing the text reasonably to contain all that it fairly means, we find no basis to conclude that legally recognized cause under subsection 375(2) means sole proximate cause.
We need not revisit our decision in Bedes, supra, that “[t]he word ‘the’ before ‘proximate cause’ is not to be read to limit recovery if the plaintiff or another is also a cause . . . [or] to prevent a defendant from claiming comparative negligence . . . .” Id. at 118. Rather, for purposes of the question presented here, we need only observe that our reading of subsection 375(2) is consistent with the dictionary definitions of “a” and “the.”
A. . . . The word “a” has varying meanings and uses. “A” means “one” or “any,” but less emphatically than either. . . . [Black’s Law Dictionary (5th ed), p 1.]
The. An article which particularizes the subject spoken of. “Grammatical niceties should not be resorted to without necessity; but it would be extending liberality to an unwarrantable length to confound the articles “a” and “the.” The most unlettered persons understand that “a” is indefinite, but “the” refers to a certain object. [Id. at 1324.][ ]
“Proximate cause” generally refers to the “primaiy or moving cause.” Id. at 1103. Therefore, while “a” force might be one of a series of causes, “the” primary or moving force, does not logically or linguistically negate the existence of other forces. Stated otherwise, use of the term “the” to modify the object “proximate cause” does not compel the conclusion that the phrase means sole cause. Recognition of the fact that “proximate cause” means, in broad terms, “primary cause,” requires us to also acknowledge the existence of other legally recognizable causes. Thus, we refuse defendant’s invitation to engraft the word “sole” onto the statute between “the” and “proximate cause” and instead look to the common law to understand the meaning of the phrase “the proximate cause” in the wdca.
1. THE historical context
A conclusion that the Legislature intended sole causation in subsection 375(2) would not only ignore the text of the statute, it would also be inconsistent with concurrent causation principles predating the enactment of the predecessor of subsection 375(2) in 1912. The law has consistently recognized that there may be more than one proximate cause.
The worker’s compensation act eliminates contributory negligence (unless wilful) as a defense in death cases and thus explicitly refutes any contention that the Legislature employed the phrase “the proximate cause” in 1912 as a reference to contributory negligence principles that existed at the time. Post at 762-763. Moreover any suggestion that principles of the doctrine of contributory negligence support the Legislature’s intention to apply a standard of “sole” causation bespeaks a misunderstanding of common-law contributory negligence, which was an affirmative defense that barred the plaintiff from recovery. There is no foundation in the common law for the notion that, because contributory negligence was a defense, the acts of the defendant on which liability was premised were required to be the sole cause of injury. In other words, while contributory negligence was an independent intervening cause that would bar recovery, if there was no contributory negligence, the defendant might or might not be responsible, depending on whether the injury was proximately caused by the act that was alleged to impose liability. It is axiomatic that the existence of concurrent proximate causes at common law did not bar recovery.
As early as Gage v Pontiac, O & N R Co, 105 Mich 335; 63 NW 318 (1895), this Court recognized the existence of concurrent proximate causes contributing to the plaintiff’s injury. The plaintiff was injured when she was thrown from her carriage after the horse drawing the carriage, while crossing a bridge, “made a sudden shy[ ] to the right,” id. at 339, and went over the side of the bridge. The plaintiff claimed the absence of guardrails on the bridge was the proximate cause of her injuries, while the defendant maintained it was the horse’s shy that proximately caused the injuries. The Court held:
[I]t cannot be said, as a matter of law, that the mere shying of the horse, and not the improper and dangerous condition of the highway, was the proximate cause of the injury. They were apparently concurring causes, — the one, the shying of the horse, where neither party can be said to be in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant company is responsible. [Id. at 342.]
The Court supported its decision not to disturb the jury’s decision on appeal with reference to Houfe v Town of Fulton, 29 Wis 296 (1871):
[In that case], it was held that where, besides the defect in the highway, there is another proximate cause contributing directly to produce the injury, which cause is not attributable to plaintiff’s negligence nor that of any third person, the town is still liable in case the jury find that the damage would not have been sustained but for the defect in the way. [Gage, supra at 343 (emphasis added).]
The common-law understanding of concurrent proximate causation has obtained through recent statutory modifications. Thus, in 1946, this Court, relying in part on Gage, unanimously stated:
“Since a concurring cause may be a proximate cause, the rule is that one is liable to respond in damages for an injury which was the natural and probable result of the concurrence of his negligence with the negligence of another, or with an act of God or pure accident, or with an inanimate cause, notwithstanding his lack of responsibility for the other cause.” [Brackins v Olympia, Inc, 316 Mich 275, 281; 25 NW2d 197 (1946).]
The Brackins Court’s discussion of this rule also included the specific acknowledgment not only that there may be more than one proximate cause, but that where this is the case, the negligent wrongdoers cause may be referred to as “the proximate cause”:
“[T]here may be two or more concurrent and directly cooperative and efficient proximate causes of an injury. Negligence which was operative at the time an injury was inflicted may constitute the proximate cause of the injury and be actionable, notwithstanding it concurred with the act of a third person to produce the injury.” [Id. (emphasis added).][ ]
Thus, construing the phrase, “the proximate cause” to require sole proximate cause would contradict the common law’s longstanding recognition of the fact that, “there may be two or more concurrent and directly cooperative and efficient proximate causes of an injury.” Id. Absent some persuasive support that the Legislature intended to deviate from the common law’s established recognition of concurrent proximate causation, we have neither textual nor historical basis to construe subsection 375(2) to require a showing of “sole” proximate causation.
Having determined that there is no basis to conclude that the Legislature intended the phrase “the proximate cause” to mean the sole cause, we offer some additional observations before turning to the application of § 375 to the facts before us.
2. THE LIMIT OF PROXIMATE CAUSE IS A MATTER OF PUBLIC POLICY
Proximate causation is not determined by “application of some rule-of-thumb.” Perkins & Boyce, supra at 779. “[SJolutions dependent upon purely mechanical rules would produce absurd results . . . .” Id. Perkins & Boyce explain the difficult task of determining the boundaries of legally recognized causation:
Whether the term used is “proximate cause,” “legal cause,” “jural cause,” or some equivalent, the idea sought to be expressed is “legally-recognized cause,” which should be promptly tested by the question, — legally recognized for what purpose? The matters of policy which determine just where the limitations of juridical recognition shall be placed upon the broad field of actual cause, are grounded partly upon expediency and partly upon notions of fairness and justice, although even proximate cause must be distinguished from the concept of responsibility. Since the boundary lines of proximate cause are governed by these considerations they may, and in fact do, vary according to the jural consequences of the particular kind of case involved. The line of demarcation between causes which will be recognized as proximate and those which will be disregarded as remote “is really a flexible line.” “Legal causation reaches further” in some types of cases than it does in others. It reaches further in tort actions based upon intentional harm than in those resulting from negligence, and neither of the boundaries so established is necessarily controlling in other types of cases, such as actions for breach of contract, those under Workmens’ Compensation Acts, or criminal prosecutions. [Id. at 776 (emphasis added).]
Thus, the limit of proximate cause is a question of public policy, and its boundaries depend on the type of case in which the Court is asked to determine those boundaries.
c
The parties claim that no authority from this Court establishes the boundaries of proximate causation under subsection 375(2). The defendant argues, consistent with the decision of the Court of Appeals, that we should apply principles of tort law to determine the boundaries of proximate cause under the act, or defer to the wcac’s findings of fact. The Court of Appeals held “that as a matter of public policy defendant should not be held to have a duty to protect plaintiff’s husband from the harm he suffered in the instant case.” 218 Mich App 24. We hold, as a matter of public policy, considering our historical treatment of proximate cause in tort and worker’s compensation cases, that death is within the range of compensable consequences if the injury was a substantial factor in the death, and, we acknowledge, in the absence of a universally applicable test for proximate cause, that such decisions will almost always turn on the facts and circumstances presented in a given case. See, e.g., Stoll v Laubengayer, 174 Mich 701, 704; 140 NW 532 (1913). Here, because the work-related injury began a clear and unbroken chain of events that led to the decedent’s death, the injury was a substantial factor. In other words, we conclude that the magistrate applied the correct legal standard and that the conclusions were supported by competent, material, and substantial evidence on the whole record.
In reaching its conclusion, the Court of Appeals applied the substantial-factor test commonly employed to determine proximate causation in negligence cases:
When a number of factors contribute to produce an injury, one actor’s negligence will not be considered a proximate cause of harm unless it was a substantial factor in producing the injury. . . . Among the factors to be considered is whether the actor’s conduct created a force or series of forces that were in continuous and active operation up to the time of the harm, or created a situation harmless in itself unless acted upon by other forces for which the actor is not responsible. ... We conclude that the back injury and myelogram did not constitute a substantial factor in producing the injury, and so did not proximately cause the injury. [218 Mich App 23 (emphasis added).]
We agree with the Court of Appeals that the substantial-factor test is relevant in determining proximate causation. However, we do not agree with the Court’s application in the instant case, nor with its endorsement of the wcac’s failure to recognize that preexisting conditions will not bar recovery. Section 141 excludes the decedent’s contributory negligence as an intervening cause under § 375. The phrase “proximate cause” in subsection 375(2) does not exclude death benefits where the events leading to the death flow in a clear and unbroken chain of causation; thus, decedent’s death falls within the range of compensable consequences. We reject the decision of the wcac because it fails to comply with the legal requirement that the employer take the employee as he finds him, with all preexisting conditions and frailties, for the purpose of determining compensation. The evidentiary issue is one of remoteness, that is, whether there is sufficient evidence to show a clear and unbroken chain of causation so that the injury was a directly and substantially related cause of the death.
D
Subsection 375(2) adopts a higher standard for awarding benefits than that adopted in § 301.
Subsection 375(2) requires an analysis of whether death was proximately caused by the original injury. Subsection 301(1) requires only the question whether the injury arose out of and in the course of employment. The inquiry into whether a clear and unbroken chain of causation sufficient to show the injury was a directly and substantially related cause of death (subsection 375[2]) is not the same as an inquiry into whether there is a mere causal nexus between the injury or employment (subsection 301[1]).
For example, in Hammons v Highland Park Police Dep’t, 421 Mich 1, 9; 364 NW2d 575 (1984), the Court held death by suicide compensable as a personal injury arising out of and in the course of employment where there was an adequate causal nexus between the suicide and the work-related injury. The question of intervening causation under subsection 375(2) was not presented in Hammons, which was apparently treated as an immediate death case. However, recovery of death benefits in nonimmediate death cases requires an additional hurdle beyond the “arising out of and in the course of employment” causal nexus, namely, proximate cause and the absence of intervening or superseding causes, such as decedent’s wilful conduct, sufficient to break the chain of causation. Thus, for example, death by suicide, if wilful, would appear to be noncompensable under subsection 375(2). The phrase “proximate cause” is an inherently limiting phrase.
Certain general principles govern any inquiry into the applicability of a provision of the worker’s compensation act. Particularly relevant here are two often-cited principles: First, the worker’s compensation act is remedial in nature, and must be “liberally construed to grant rather than deny benefits.” Sobotka v Chrysler Corp (After Remand), 447 Mich 1, 20, n 18; 523 NW2d 454 (1994) (Boyle, J., lead opinion); see, also, Gardner v Van Buren Public Schools, 445 Mich 23, 49; 517 NW2d 1 (1994). Second, for the purpose of determining compensability of an injury or death, courts will require that employers take their employees as they find them. Zaremba v Chrysler Corp, 377 Mich 226, 231-232; 139 NW2d 745 (1966). These general principles apply to both injury and subsequent death cases, as does abrogation of the defenses of contributory negligence, negligence of a coemployee, and assumption of the risk under § 141.
MCL 418.301(1); MSA 17.237(301)(1) provides the general rule for causation under the act:
An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee, compensation shall be paid to the employee’s dependents as provided in this act.
Justice Williams, writing for the Court, eloquently reminded us of the implications of the Legislature’s selection of the “arising out of and in the course of employment” standard for causation in supplying a system for compensation of injured employees and, in cases of death, the dependents of those employees:
In fact, it might be said that workmen’s compensation, like the gentle rain from heaven, falls upon the just and unjust alike so long as the injury arose out of and in the employment ambience. [Thomas v Certified Refrigeration, Inc, 392 Mich 623, 637; 221 NW2d 378 (1974).]
Section 301 imposes liability where the injury arises out of the employment without reference to fault. Subsection 375(2) likewise imposes liability without respect to fault, but requires closer examination of the causal connection. However, in concluding that the defendant’s preexisting condition was the sole legally causative factor in his death, the approach taken by the Court of Appeals and the wcac elides the principle that an injured employee’s preexisting weaknesses, here the decedent’s high blood pressure, are irrelevant to the inquiry into causation, and it avoids both the legal and factual inquiry regarding independent intervening cause.
The magistrate correctly observed that “[t]he great weight of authority recognizes that the adverse consequences of medical management of a work related condition results in a compensable circumstance.” Larson states:
It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant’s condition, or death, resulting from [for example] antibiotics, antitoxins, sedatives, pain-killers, anesthesia, electrical treatments, or corrective or exploratory surgery. [Larson, supra, § 13.21(a), pp 3-699 to 3-711.]
We have followed this rule at least since our decision in Oleszek v Ford Motor Co, 217 Mich 318; 186 NW 719 (1922). There, we held that the plaintiff could recover where he ultimately lost his leg because of infection after suffering an injury of his ankle at work. The plaintiff’s original injury was fairly minor, but subsequent infection after several attempts at treatment resulted in amputation. We stated:
Where there is a right of recovery due to the original injury and the disability at the time of the hearing is directly traceable thereto, the intervention of other and aggravating causes by which such disability has been increased, if the claimant is not himself to blame therefor, is no bar to his recovery. . . . The rule is thus stated . . . :
“Where the immediate agency causing the death or second injury is one which the first ir\jury rendered it essential to employ, the employer has been held liable for the resulting death or injury.” [Id. at 321-322.]
Thus, we concluded that the relevant inquiry focused on whether “disability . . . was caused by, or directly traceable to, the injury resulting from the accident,” id. at 322, and precluded plaintiff from suing for damages at law, i.e., for negligence. The Court of Appeals correctly recognized that under Oleszek, “[a]n employer is hable for additional injuries or complications that result when an employee submits to medical procedures necessitated by work-related injuries.” 218 Mich App 22-23. However, the Court of Appeals and the wcac erred in denying compensation on the legal basis that, because decedent had a preexisting condition, the results here were too remote.
In the presence of a causal relationship not so attenuated that a court can permissibly conclude that the original injury was not a moving or substantial cause of the ultimate injury, a court cannot conclude under traditional definitions of proximate cause that necessary medical treatment that resulted in death is not legally cognizable. Larson’s view of the uniform rule regarding aggravating medical consequences and Oleszek is consistent with these definitions.
Moreover, it is well established that an employee has a “duty to minimize . . . damages by obtaining proper medical or surgical treatment.” Smith v Jones, 382 Mich 176, 186; 169 NW2d 308 (1969). Absent unreasonable risk, an employee must submit to reasonable medical treatment or “release his employers from the obligation to maintain him.” Kricinovich v American Car & Foundry Co, 192 Mich 687, 690; 159 NW 362 (1916). See, also, Workers’ Compensation: Reasonableness of employee’s refusal of medical services tendered by employer, 72 ALR4th 905. In light of the fact that injured employees are required by law to submit to medical treatment, we decline to conclude that the Legislature intended to curtail the right to death benefits by imposing a requirement of sole proximate cause where medical complications result in death. We reaffirm our holding in Oleszek, that the consequences of medical treatment, even where those consequences result in death, are within the range of compensable consequences where the chain of causation is clear and unbroken.
Although Oleszek did not directly involve nonimmediate death benefits under subsection 375(2), the Court’s reference to death is consistent with cases decided directly under subsection 375(2) or its predecessors, before and after Oleszek.
In Swanson v Oliver Iron Mining Co, 266 Mich 121, 122; 253 NW 239 (1934), the plaintiff sought death benefits in the form of “the 300 weeks’ compensation that had been awarded to her [deceased] husband . . . .” The decedent was injured in an explosion at the mine where he worked. He recovered and was able to walk on crutches, but did not work again. The decedent received compensation for the injury from 1927 until his death in 1932. Justice POTTER, writing for a unanimous Court, addressed the exact issue we address today: “whether the injury suffered by . . . plaintiff’s husband . . . was the proximate cause of his death . . . .’’Id. at 122. The Court held:
The question is whether the injury accelerated his death; whether, by reason of the injury suffered by him, his death occurred sooner than it probably otherwise would. There was testimony indicating the injury suffered lowered his vitality and probably shortened his life. This was sufficient. [Id.]
In Neumeier v City of Menominee, 293 Mich 646; 292 NW 511 (1940), the Court addressed the death benefits question of proximate cause again and sustained an award of death benefits. The decedent dropped a plank on the toes of his right foot at work in 1936. He failed to seek immediate medical attention, and, within a month, gangrene developed, “necessitating the amputation of one toe.” Id. at 648. The gangrene progressed and the decedent’s right leg was amputated approximately one month later. While this terminated the infection, the decedent died about sixteen months later. “The causes of death were thrombosis of the popliteal artery of his left leg, chronic myocarditis, arteriosclerosis and toxemia from a tumor in his mouth.” Id. at 648 (emphasis added). In determining “whether . . . there [was] any competent testimony to support the . . . award,” id., the Court rejected the argument that the death benefits statute required a showing of sole proximate cau sation and sustained an award under 1929 CL 8428, a predecessor of § 375:
It is true that [the treating physician’s] testimony does not indicate that the injury was the sole cause of death. But in view of the decisions of this court, if there is competent testimony that the injury accelerated his death it is sufficient to be a proximate cause under the statute .... [Id. at 649.][ ]
The Court addressed the same issue again in Byrne v Clark Equipment Co, 302 Mich 167; 4 NW2d 509 (1942). There, the decedent developed a hernia at work that required surgical repair. However, during the operation, the surgeon also decided to remove the decedent’s appendix for reasons without apparent connection to the hernia injury. The decedent developed a postoperative infection and died of peritonitis. Plaintiff, decedent’s wife, sought death benefits under a predecessor of subsection 375(2), 1929 CL 8428. Applying the proximate cause language in that section, the Court vacated an award of death benefits because the administrative tribunal found “that the source of the infection resulting in the death of the decedent is unknown and that it is not necessary to determine the source of such infection.” Byrne at 176 (emphasis added). The Court held:
[P]laintiff has failed to sustain the burden of proving that the original hernia injury, through direct causal connection with the operation and resulting infection, was the proximate cause of her decedent’s death. [Id. at 177.]
The Byrne Court reasoned that an award would be appropriate if plaintiff could show proximate cause through a direct causal connection between “the injury causing the hernia and the infection resulting from the operation for its repair,” but that an award would not be appropriate if the infection resulted from the independent appendix removal procedure. Id. Because the record did not reveal any evidence regarding the source of the infection, the plaintiff could not show that death was proximately caused by the injury, and an award could not be sustained.
The conceptual framework uniting cases involving worker’s compensation death benefits claims is acceleration of death on the basis of direct causal connection with the work-related injury. Whether concluding that acceleration of death is sufficient or that a direct causal connection is required, from the earliest days of this Court’s interpretation of the worker’s compensation act, see, e.g., Fitzgerald v Lozier Motor Co, 187 Mich 660, 666; 154 NW 67 (1915), through Oleszek (1922), Swanson (1934), Neumeier (1940), Byrne (1942), and the other cases cited above, the decisions present a clear and consistent understanding of proximate cause. In view of the overwhelming weight of the authorities, within our state and elsewhere, see, e.g., Anderson v Industrial Ins Comm of Washington, 116 Wash 421; 199 P 747 (1921), we reject both the conclusion of the Court of Appeals in sustaining the decision of the wcac and the sole causation approach of the dissent.
Where the plaintiff can show a direct causal connection between the work-related injury and the subsequent death, or a sequence of events that, while unexpected and unusual, are not uninterrupted by causes so unexpected as to break the chain of causation, the plaintiff has met the threshold requirement for proximate cause as a matter of law under subsection 375(2). Testimony may establish a basis for finding that the death was not factually related to the original injury, but preexisting medical conditions are not sufficient as a matter of law to break the chain of causation. Likewise, aggravating medical consequences will not break the chain of causation where the injury necessitates foreseeable medical treatment and there is an evidentiary foundation that supports the conclusion that there was a clear and unbroken chain of events leading to death.
E
We find the facts and circumstances of this case to be more like Neumeier than Byrne. The magistrate held that the death arose directly as a result of the decedent’s compliance with the law and the advice of medical professionals in undergoing a myelogram and drinking plenty of water thereafter in order to properly treat or diagnose his work-related back injury. We agree with the magistrate’s interpretation of the law, and we find his award supported by competent evidence, i.e., Dr. Dodson’s report/testimony. The fact that decedent ingested an excessive amount of water is, on this record, irrelevant because contributory negligence is not a defense and defendant does not contend that decedent’s conduct was an independent intervening cause. That decedent was complying with the legal requirement that he undergo reasonable medical treatment or forfeit his right to benefits precludes us from concluding that benefits are not payable where the complication resulting from the treatment ordered was death.
The magistrate correctly concluded that decedent’s death was sufficiently traceable to the work-related injury to fall within the compensable range of consequences under subsection 375(2). The magistrate’s ruling amounts to a finding that each step in the chain of causation was dependent on the existence of the work-related injury and its required treatment and that there was no intervening superseding cause sufficient to break the chain of causation. Consistent with the text of subsection 375(2), and long-established jurisprudence on the meaning of proximate cause, we decline defendant’s invitation to read the phrase “proximate cause” to mean sole cause so as to yield a different result, and we specifically reject the notion that decedent’s preexisting medical condition may be considered a superseding cause under these circumstances.
m
The magistrate applied the correct legal standard in considering whether the chain of medical causation was “clear and unbroken” and whether that chain established that the death resulted from “the adverse consequences of medical management of a work related condition . . . .” The evidence supported the magistrate’s conclusion that the death was sufficiently traceable to the work-related injury to establish com pensability. We reverse the decision of the Court of Appeals and reinstate the magistrate’s award of benefits.
Mallett, C.J., and Cavanagh and Kelly, JJ., concurred with Boyle, J.
MCL 418.375; MSA 17.237(375) provides in relevant part:
(1) The death of the injured employee before the expiration of the period within which he or she would receive weekly payments shall be considered to end the disability and all liability for the remainder of such payments which he or she would have received in case he or she had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.
(2) If the injury received by such employee was the proximate cause of his or her death, and the deceased employee leaves dependents . . . , the death benefit shall be a sum sufficient ... to make the total compensation for the injury and death exclusive of medical . . . and rehabilitation services, and expenses . . . equal to the full amount which such dependents would have been entitled to receive under the provisions of section 321, in case the injury had resulted in immediate death.
MCL 418.321; MSA 17.237(321) provides for computation of death benefits at eighty percent of the employee’s after tax weekly wage for a period of five hundred weeks for persons wholly dependent on the decedent and for benefits in proportion to the level of dependency for persons partially dependent on the decedent.
We decline the invitation to reconsider Bedes, which involved a different context. Furthermore, the relevance of a discourse on the obligation to effectuate legislative intent is not apparent, given that the dispute here is really a matter of how the law ought to be applied to the facts. Whether we characterize the standard as one of primary causation, consistent with our jurisprudence on the subject, or as one of “sole” proximate causation, consistent with the dissenting opinion, the result would be the same. Although the dissent implies that some “extrinsic force,” 'post at 759, intervened to cause the death so that the injury resulted from the unfolding of “a series of tragic and unlikely events,” id. at 754, the dissent never identifies the extrinsic force interrupting the chain of causation and differentiating this case from our earlier jurisprudence. The decedent’s hypertension and medication cannot be so identified because they are part of a preexisting condition. The defendant takes the employee as he finds him. The myelogram was necessitated by the injury, making it, along with its complications, a foreseeable consequence of the injury that does not interrupt the chain of causation. Decedent’s ingestion of water indicates compliance with the necessary treatment (another foreseeable consequence of the injury), and an allegation of excessive ingestion would amount to an allegation of contributory negligence not legally recognizable under the wdca. None of the relevant “forces” was “extrinsic” (or a superseding cause) because none of them could have caused the death alone or concurrently with the other causes independently of the single occurrence that irrefutably set in motion the chain of events leading to Mr. Hagerman’s death. Thus, even if we adopted the “sole” proximate causation standard advocated by defendant and the dissent, the conclusion would be inescapable that the single legally recognized primary and proximate cause of Mr. Hagerman’s death was the work-related irqury that is not too remote, given the clear and unbroken nature of the chain of events directly tying the death to the injury. Although tragic and unlikely, the chain is direct and the consequences are not so remote as to preclude liability under subsection 375(2).
The magistrate found that decedent sustained a work-related back injury, that the work-related injury necessitated the myelogram, that decedent’s ingestion of large amounts of water was consistent with the medical recommendations he received in association with the myelogram, and that he died from a combination of sodium deficiency and aspiration pneumonia resulting from the myelogram.
While “factual determinations of the commission, if acting within the scope of its powers, shall be conclusive,” Goff, supra at 512, de novo judicial review is appropriate where an incorrect legal standard is employed. The wcac concluded that the magistrate “applied an incorrect legal standard,” 1993 Mich ACO 846 and reversed the award of death benefits because it believed that death “was the result of medication designed to control [decedent’s] high blood pressure, a preexisting condition.” Id. at 847. As explained below, the view that attributing the death to a preexisting condition defeats causation under these circumstances is legally erroneous.
The dissent questions our reference to Black’s. However, we find no real inconsistency between its discussion and that to which the dissent refers. Given that “proximate cause” is a term of art, resort to a legal dictionary in a discussion of its meaning and application is appropriate.
Proximate cause, whether informed by the substantial factor test, or the discussion of intervening and superseding causes, by acknowledging the possibility of concurrent proximate causes, is foreign to the notion that some factor must be the sole proximate cause. See, e.g., Welch v Jackson & Battle Creek Traction Co, 154 Mich 399, 407-408; 117 NW 898 (1908).
MCL 418.141; MSA 17.237(141) states:
In an action to recover damages for personal injury sustained by an employee in the course of his employment or for death resulting from personal injuries so sustained it shall not be a defense:
(a) That the employee was negligent, unless it shall appear that such negligence was wilful.
(b) That the injury was caused by the negligence of a fellow employee.
(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.
The dissent contends that Stoll v Laubengayer, 174 Mich 701, 706; 140 NW 532 (1913), established the general rule of the day that proximate cause was defined as “the immediate efficient, direct cause preceding the injury.” However, as noted below, that was merely one of several definitions considered in Stoll, and the rule to be gleaned from that case is that proximate cause is a case-by-case analysis. The Stoll Court recognized that, as of 1913, the year after enactment of the wdca, “[n]o general or authoritative definition [of proximate cause] ha[d] been evolved . . . .” Id. at 704. Nevertheless, the language cited by the dissent does not require proof of the sole cause or the last cause preceding the injury. Rather, the key word being “efficient,” it references primary cause. Moreover, that description fits the facts and circumstances of Stoll because it described the influence of plaintiff’s decedent’s act in voluntarily riding her sleigh down an incline.
The Random House College Dictionary defines “shy,” as it relates to horses, as “to start back or aside, as in fear.” Id. at 1220.
See, e.g., MCL 600.6304; MSA 27A.6304 (comparative fault). By utilizing pure comparative negligence, the Legislature leaves defendants seeking to avoid liability altogether with one argument regarding the plaintiffs conduct — that the plaintiff was one hundred percent at fault for the alleged damages, i.e., that plaintiff’s conduct was the sole cause of the injuries for which he seeks recovery.
Lest there be any doubt about the applicability of these concurrent proximate causation rules at the time the Legislature enacted the predecessor to subsection 375(2) in 1912, see Cavanaugh v Michigan Central R Co, 175 Mich 156, 160; 141 NW 539 (1913), where Justice Bird’s dissent reflected on Justice Cooley’s treatment of the issue in his treatise on Torts:
“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. . . . It is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong, and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption, he must show, not only that the same loss might have happened, but that it must have happened if the act complained of had not be done . . . .”
Although the Cavanaugh majority disagreed regarding the result that Justice Bird would have reached, the discussion from Cooley authoritatively supports our understanding of the nature of the proximate cause inquiry circa 1912. Cf. Stoll, n 8 supra at 704 (observing the absence of a general and authoritative definition of proximate cause applicable in all cases, instead looking to the peculiar facts and circumstances of the given case).
Indeed while the dissent suggests that our holding launches a judicial missile of unbridled judicial activism that will precipitate further revisionist thinking, the claim is vastly overblown. The dissent is unable to cite a single case standing for the proposition that “the proximate cause” means sole proximate cause. The claim that we are “fundamental[ly] unwilling[] to apply the plain meaning of the text as written by the Legislature,” post at 756, is both unfounded and ironic. It is the dissent that would conflate the word “the” into “sole” to fundamentally alter the legal landscape created by the Legislature. Our understanding of the phrase “proximate cause” is the understanding expressed by this Court before, after, and contemporaneously with enactment of the wdca. This understanding informed the context in which the act was written. Given that “proximate cause” is, as the dissent acknowledges, a “term of art,” id. at 752, that has its origins in the common law, we conclude that the Legislature’s understanding of the phrase was consistent with this Court’s jurisprudence applying it case by case, and not with the dissent’s insistence on the unsupportable and unsupported conclusion that “the” means “the sole.” The heroic effort of the dissent notwithstanding, the inquiry into proximate causation is a question of remoteness, not semantics.
Indeed, it was noted about the time the Legislature enacted the worker’s compensation act that “all attempts hitherto made at laying down universal tests [for proximate cause] of a more definite and more specific nature have resulted in propounding rules which are demonstra bly erroneous.” Smith, Legal cause in actions of tort, 25 Harv L R 303, 317 (1912). Even earlier, Chief Justice Cooley noted in passing, “The application of the rule that the proximate, not the remote cause is to be regarded, is obscure and difficult in many cases . . . .” Lewis v Flint & P M R Co, 54 Mich 55, 64; 19 NW 744 (1884).
See, e.g., Davis v Thornton, 384 Mich 138, 146; 180 NW2d 11 (1970) (“Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination”); Palsgraf v Long Island R Co, 248 NY 339, 352; 162 NE 99 (1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point”); see also, Williamson v Waldman, 150 NJ 232, 245; 696 A2d 14 (1997) (“[T]he limit of proximate cause is, ultimately, an issue of law and similarly entails a consideration of public policy and fairness”); Marsh v Commonwealth Land Title Ins Co, 57 Wash App 610, 622; 789 P2d 792 (1990), review den 115 Wash 2d 1025 (1990).
See Goff, supra at 511-512.
In Stoll, supra at 705, while recognizing that this Court had “never apparently attempted to accurately define the term ‘proximate cause,’ ” the Court acknowledged the principle announced in Borck v Michigan Bolt & Nut Works, 111 Mich 129, 133; 69 NW 254 (1896):
The damage to be recovered in an action must always be the natural and proximate consequence of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote.
We respectfully disagree with the dissent’s conclusion that the injury was too remote in this case. Under these circumstances, neither the preexisting hypertension and medication therefor nor the decedent’s compliance with medical advice he received was sufficient to stand alone as the cause of the death, independent of the injury necessitating the myelogram.
The rule is well settled and generally accepted. See, e.g., In re Madden, 222 Mass 487, 493-494; 111 NE 379 (1916).
We find defendant’s argument that benefits were paid voluntarily and that no one forced or persuaded decedent to undergo the myelogram unpersuasive. The obligation to mitigate is an independent obligation imposed on a plaintiff by law.
The decedent in the present case died only three months after the injury.
The Neumeier Court cited Rickard v Bridgeman-Russell Co, 288 Mich 175, 178; 284 NW 689 (1939), in which the question of proximate cause in a death benefit case was again held to turn on whether the injury probably accelerated death. The Rickard Court references five more cases that support this understanding of proximate cause in worker’s compensation cases. For example, in Waite v Fisher Body Corp, 225 Mich 161, 163; 196 NW 189 (1923), the Court defined proximate cause as “ ‘the cause which directly set in motion the train of events which brought about the death.’ ” See also Monk v Charcoal Iron Co of America, 246 Mich 193, 195-196; 224 NW 354 (1929) (sustaining an award of death benefits in an immediate death case while recognizing that the shock and excitement contributing to the decedent’s heart attack, in the presence of a possible “previous [heart] disease,” need not have been “the sole, proximate cause”). Id. at 197.
The dissent overlooks this distinction in its analysis of Byrne by oversimplifying the facts of that case. Moreover, the dissent fails to identify what independent factor in this case caused the decedent’s death or broke the chain of causation. In Byrne, there was no recognizable legal relationship between the injury and the death because of the ambiguity raised by the doctor’s decision to remove plaintiff’s appendix independently of the work-related injury. Thus, the Court applied the following rule:
“Where two inferences equally consistent with the facts arise . . . , one involving liability on the part of the employer . . . and the other relieving him from liability, the [plaintiff] must fail.” [Id. at 178.]
In this case there is a clear and legally recognizable relationship among the injury, the ordered medical treatment, and the ultimate resulting complication of death. If the injury required a myelogram, and, in the process of administering that treatment, the doctor engaged in a course of conduct that constituted an independent intervening cause as a matter of law or if there was testimony that the conduct might have caused decedent’s death, the situation would be entirely different because, like Byrne, the case would involve an ambiguity relevant to independent, intervening causation that might rise to the level of superseding cause. This is not such a case. This case involves a clear and unbroken chain of events, set in motion by the work-related injury, and not so attenuated as to justify a conclusion that the injury was too remote to stand as the legal cause of death under the wdca.
Welch, Worker’s Compensation in Michigan: Law & Practice, § 7.6, p 7-8, asserts that Noble v Ford Motor Co, 152 Mich App 622; 394 NW2d 50 (1986), altered our jurisprudence in this area. While we agree with the Noble Court that subsection 375(2) requires an inquiry separate and distinct from that which occurs under § 301, we find that the result in that case, that plaintiff had failed to show proximate cause, was driven by the plaintiff’s inability to differentiate to any extent between the decedent’s cigarette smoking and his occupational health risks for the purposes of showing causation. We agree with the results in Noble and in Barnes v Campbell, Wyant & Cannon Foundry Co, 188 Mich App 46; 469 NW2d 7 (1991), which also involved a decedent who was a heavy smoker. However, because we find them similar to Byrne, we would not interpret them as departing to any great extent from our earlier proximate cause jurisprudence.
Our opinion in Dean v Chrysler Corp, 434 Mich 655; 455 NW2d 699 (1990), is not implicated here. | [
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Per Curiam.
After being injured in an automobile accident, the plaintiff filed suit in circuit court. A jury awarded damages, finding that the plaintiff had proven one theory of liability but not another. The Court of Appeals vacated the circuit court judgment on the ground that the jury’s findings were inconsistent. We reverse the judgment of the Court of Appeals and remand the case for consideration of the other issues raised on appeal.
i
On October 21, 1985, plaintiff Arthur Lagalo was driving his 1982 diesel Chevette when he noticed a brightly illuminated dashboard warning light, indicating a brake problem. Within the hour, he took the car to a Midas repair shop, where he was advised that he needed a new master brake cylinder. Seeking a second opinion, he drove to a Muffler Man facility, where he was given the same advice. He told the Muffler Man staff to make the repair. They installed a cylinder that had been remanufactured by defendant Allied Corporation.
Mr. Lagalo says that, after the car was repaired but before he left Muffler Man, he noticed that the brake warning light appeared still to be dimly lit. The car was checked again, and he was advised not to worry. Mr. Lagalo says he had no further contact with Muffler Man until after the accident.
The owner of the Muffler Man facility has a different recollection. He says that the brakes were fine when Mr. Lagalo left the repair shop. During the evening, however, Mr. Lagalo telephoned to say that the brake light was on again. The owner told Mr. Lagalo to bring the car back to Muffler Man. Mr. Lagalo agreed to return, but never did.
In either event, Mr. Lagalo drove the car without incident for more than a week.
In the first hours of October 31, 1985, Mr. Lagalo was driving along a Bay City street. He was wearing his seat belt, was not speeding, and had not been drinking. As he approached the stop sign at a “t” intersection, he depressed the brake pedal. Nothing happened. He tried again, to no avail. The car rolled through the intersection, striking a concrete abutment. The defendant suffered significant back injuries.
Mr. Lagalo filed a complaint and several amended complaints in circuit court. After settling or dismissing most of his claims, he went to trial in late March and early April 1992. He argued to a jury that defendant Allied Corporation had been negligent in the manufacture of the master cylinder, and that Allied had breached the implied warranty of fitness.
The verdict form used in this case required the jury to answer several questions, including these:
1(a) Was the defendant negligent?
answer: YES
1(b) Did the defendant breach its implied warranty?
ANSWER: NO
2. Was the defendant’s negligence and/or breach of implied warranty a proximate cause of an injury to the plaintiff?
ANSWER: YES
The jury found present damages of $78,021.98 and future damages totaling $2,476,786. The jury also found that thirty-seven percent of the combined negligence in this matter was attributable to Mr. Lagalo. After calculating setoffs required by MCL 600.6306; MSA 27A.6306, the circuit court entered a judgment for Mr. Lagalo in the amount of $716,232.96.
Allied filed a motion for judgment notwithstanding the verdict. Alternatively, it sought a new trial or a remittitur. Arguing in support of its motion, Allied characterized the jury’s findings — that it had been negligent, but that it had not breached the implied warranty — as “inconsistent, self-contradictory, and irreconcilable.” However, the circuit court denied the motion.
The Court of Appeals vacated the circuit court judgment. 218 Mich App 490; 554 NW2d 352 (1996). Agreeing with Allied that the jury findings were irreconcilable, the Court remanded the case for a new trial.
Mr. Lagalo has applied to this Court for leave to appeal.
n
In Granger v Fruehauf Corp, 429 Mich 1; 412 NW2d 199 (1987), a jury likewise found negligence but no breach of the implied warranty of fitness. There, too, the Court of Appeals set aside a judgment for the plaintiff on the ground that the verdicts were legally inconsistent. As we reinstated the judgment of the circuit court, we explained that “[i]f there is an interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is not inconsistent.” 429 Mich 7. We further stated:
[I]t is fundamental that every attempt must be made to harmonize a jury’s verdicts. Only where verdicts are so logically and legally inconsistent that they cannot be reconciled will they be set aside, see, e.g., Izzo v Weiss, 270 Mich 372, 375; 259 NW 295 (1935), quoting from Foster v Gaffield, 34 Mich 356, 357 (1876), and Gallick v Baltimore & O R Co, 372 US 108, 119; 83 S Ct 659; 9 L Ed 2d 618 (1963). [429 Mich 9.]
The circuit court recognized in the present case its obligation to make every effort to reconcile the seemingly inconsistent verdicts. Observing that negligence and breach of implied warranty are separate causes of action with separate elements, the court explained:
For example, in the present case, one of the elements in the breach of warranty claim required the jury to find that “the master brake cylinder was not reasonably fit for the use or purpose anticipated or reasonably foreseeable by the defendant at the time it left the defendant’s control.” The jury, by focusing on the literal meaning of these words, could have properly concluded that at the time the master brake cylinder left the defendant’s control, it was reasonably fit for its intended use. However, as indicated by [a mechanic’s] testimony, a minimal amount of use could have rendered the cylinder unsafe. Thus, the jury could have concluded that, at the exact moment that the master brake cylinder left defendant’s control, it was fit for its intended purpose. As a result, the jury could properly conclude that no breach of warranty claim existed. This does not mean, however, that defendant could not be found negligent in its manufacturing of the master brake cylinder since the evidence indicated that said cylinder became unsafe after a minimal amount of use. [Emphasis in original.]
The Court of Appeals took a different approach. In a detailed opinion, the Court closely examined the causes of action presented by Mr. Lagalo, as well as a variety of prior appellate cases discussing those theories. In the end, the Court declared itself “unable to reconcile these jury verdicts.” 218 Mich App 499. With regard to the analysis offered by the circuit court, the Court of Appeals said:
We also reject plaintiff’s attempt to harmonize the jury verdicts by arguing that the master cylinder could have been in good working order when it left defendant’s control, but subsequently could have been rendered unsafe ten days later. This distinction is illusory. Whether an action is based on negligence or breach of implied warranty, the plaintiff must show that the defect existed at the time the product left the manufacturer. Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235, 241-242; 109 NW2d 918 (1961); Reeves v Cincinnati, Inc [176 Mich App 181, 184; 439 NW2d 326 (1989)]. Thus, in this case, if defendant was negligent, then the master cylinder was defective when it left defendant’s control — by definition then, defendant breached its implied warranty. [218 Mich App 499 (emphasis in original).]
m
The Court of Appeals opinion recites the important principles recounted in Granger. And it reflects a thoughtful look at the difficult distinction between negligence and breach of warranty in the context of a manufacturing defect. What is missing, however, is sufficient grounding of the analysis in the particular factual context of the case at bar.
In Granger, it was plausible for the jury to find negligence, but not breach of warranty. A trailer was sold as new equipment in 1969, and then (after being reacquired by Fruehauf) was sold again “as is” to the plaintiff’s employer in 1975. In fact, the plaintiff was personally involved in his employer’s decision to purchase that particular trailer. In both 1969 and 1975, the trailer obviously was the product of Fruehauf’s design process, and thus a jury could find design negligence in the wake of the 1975 sale. However, on the facts of that particular case, the jury very reasonably could conclude that the implied warranty of fitness attached only to the 1969 sale, not to the 1975 “as is” sale to plaintiff’s employer.
In the same manner, the present case requires a careful look, beyond the legal principles underlying the plaintiff’s causes of action, at how those princi pies were argued and applied in the context of this specific case.
In closing argument, defense counsel began by talking about the medical evidence. He then talked about the brake light and the facts of the accident. Next he turned to the issue whether there had been a showing of negligence in the manufacturing process:
There is also a theory called negligent manufacture, and under that theory it is the duty of Allied to exercise the reasonable care of any prudent manufacturer in producing this component. The — and in this regard, I really can’t sum up the quality control procedures any better than [the facilities manager for Allied] did, but I would conclude that when you have 100 percent testing and you go through all the planning and procedures that they do, that you’ve certainly complied with the standard of care of a reasonable manufacturer. And, of course, there’s not been any contradictory evidence to say that other manufacturers do it differently or better, or that what was done by Allied was somehow improper or inadequate.
After some additional comments regarding negligence and a short discussion of the fact that the master cylinder had somehow been lost in the days following the accident, defense counsel moved toward the conclusion of his argument:
To close then, it’s defendant’s position there is no defect in the cylinder itself, the system failed because of problems unrelated to manufacturing and out of our control. Plaintiff was not disadvantaged, again, because neither of us had the actual component. He could have asked an engineer to comment, and he did not do so. The product, even if it malfunctioned, was fit for its anticipated and intended use because, ironically here, it is anticipated that this product will fail. It’s anticipated that at some point, whether it be 10 days or five years, that the master cylinder will fail. The product is designed for safety and it is here where plaintiff was provided a warning and a 10 day safety margin at which, any point in that time, he could have turned around and avoided the injury. This is all any manufacturer can do. This product was certainly fit for the reasons anticipated. [Emphasis supplied.]
The instructions given to the jury clearly delineated the separate nature of the two causes of action; the court told the jurors that there could be injury without negligence and that the implied warranty was tied to the anticipated use of the product. In these respects, the argument of defense counsel and the instructions to the jury were consistent.
Again, the teaching of Granger is that “[i]f there is an interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is not inconsistent.” 429 Mich 7. In the present case, defense counsel argued that there was no negli gence in the maimfactming process because every reasonable process-related precaution was in place. And he argued that there was no breach of implied warranty because the implied promise was not that the master cylinder would never fail, but that it would not fail without a safety margin — and for more than a week after the installation of the master cylinder Mr. Lagalo drove his car with the brake light on, failing to heed the advice to bring his car back to Muffler Man.
On the record of this case, it is plausible to suppose that the jury was persuaded by defense counsel's argument regarding the breach of implied warranty, but was unpersuaded by his argument concerning negligence. The jury may have concluded that the implied warranty was not breached, in light of the period during which Mr. Lagalo could have obtained a second repair in safety; at the same time, the jury may have been satisfied that the failure of the product reflected a failure to manufacture the product in a reasonable manner. Accordingly, we are satisfied that the verdict rendered by the jury is not logically inconsistent or irreconcilable.
For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of the other issues raised by the parties on appeal and cross appeal. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred.
At trial, the defendant sought to persuade the jury that Mr. Lagalo’s back condition was the product of prior injuries and other causes unrelated to the accident. However, the jury found the injuries to have been proximately caused by the defendant’s conduct.
As indicated, Allied had remanufactured the master cylinder. However, it does not suggest that the applicable standard of care is different than if it had built the cylinder as an original product.
Reh den November 19, 1996 (Docket No. 172606).
In light of that holding, the Court of Appeals found it unnecessary to decide the other issues raised on appeal by the parties.
The court rules provide both for a general verdict and for special verdicts. MCR 2.512, 2.514. As in Granger, it is simplest to refer sometimes to the verdict and sometimes to the verdicts. In light of the court rules, we trust the meaning is clear.
The present ease involves a claim of negligent manufacture, whereas Granger primarily involved a claim of negligent design.
In Granger, the plaintiff was injured in an accident involving a high-sided, open-topped highway semitrailer. Such a trailer is used for cargo that is higher than the trailer sides, or to facilitate loading and unloading with a crane. Once loaded, the top of the trailer is often enclosed with a tarpaulin. The plaintiff was injured in a fall from the trailer after he had unrolled the tarp. He argued that the trailer was poorly designed because there was no ladder or other ready means of access to the top.
The defendant had a duty to use reasonable care at the time it manufactured the master brake cylinder so as to eliminate unreasonable risks of harm or injury which were reasonably foreseeable.
However, the defendant had no duty to manufacture a master brake cylinder to eliminate reasonable risks of harm or injury or risks that were not reasonably foreseeable.
Reasonable care means that degree of care which a reasonably prudent manufacturer would exercise under the circumstances which you find existed in this case. It is for you to decide, based on the evidence, what a reasonably prudent manufacturer would do or would not do under those circumstances.
A failure to fulfill the duty to use reasonable care is negligence.
When I use the words “implied warranty,” I mean a duty imposed by law which requires that the manufacturer’s product be reasonably fit for the purpose and use intended or reasonably foreseeable by the manufacturer.
A product is “defective” where the product is not reasonably safe for the use intended, anticipated, or reasonably foreseeable.
To implement the teaching of Granger, one must consider the evidence in the full context of the case, including the arguments of counsel, the instructions given by the court, and, if appropriate, the pleadings.
Since a defective product can reflect negligence in the design or manufacturing process, and can also give rise to a breach of implied warranty, the two theories of liability are often seen as closely related. However, we have noted on several occasions that these indeed are separate causes of action, with different elements. Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88-91; 273 NW2d 476 (1979); Prentis v Yale Mfg Co, 421 Mich 670, 692-693; 365 NW2d 176 (1984); Granger at 11, n 7; Gregory v Cincinnati, Inc, 450 Mich 1, 12; 538 NW2d 325; 47 ALR5th 877 (1995). The argument offered in this case by defense counsel well illustrates the distinction outlined in Prentis, where we said that “the negligence theory generally focuses on the defendant’s conduct, requiring a showing that it was unreasonable, while warranty generally focuses upon the fitness of the product, irrespective of the defendant’s conduct.” 421 Mich 692. Sale of a defective product can breach an implied warranty, but it would not reflect negligence in the design or manufacturing process if the producer has acted reasonably at every stage. Conversely, a negligently manufactured product would not breach an implied warranty if the nature or timing of its failure were not inconsistent with the terms of the implied warranty.
In the unique circumstances of the present case, we thus do not accept the statement by the Court of Appeals that “if defendant breached its duty of reasonable care by manufacturing a defective master cylinder that caused plaintiff’s accident, then necessarily the master cylinder was not fit for its intended and anticipated use.” 218 Mich App 496. | [
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Grates, Ch. J.
Macomber held a chattel mortgage, given to him by one Hewing, on a stock of goods. The mortgage fell due, hut Macomber suffered the mortgagor to continue in possession. Saxton was a deputy sheriff, and executions were put into his hands against Hewing, the mortgagor, for collection. He seized the mortgaged goods upon the executions, and Macomber at once dispossessed him through a writ of replevin, by which this suit was commenced. The suit was tried by the court upon an agreed statement of facts, and it was expressly stipulated that if the court should find that Saxton was lawfully entitled to the possession by virtue of the levy, and the plaintiff not entitled, that then judgment should be given for Saxton for three hundred and ninety-one dollars and thirty-nine cents.
Macomber presented certain points of law under rule eighty-seven to be passed on by the court. The court omitted to make any response to these points, and simply awarded judgment in favor of Saxton for the sum expressed in the stipulation. Macomber then sued out a writ of error.
The record is peculiar. The objections relate to supposed findings and omissions to find by the court, and to the giving of judgment for three hundred and ninety-one dollars and thirty-nine cents for the defendant. It does not appear that any request was preferred for'a finding of facts, and the only objection or exception appearing in the record is contained in what is called a bill of exceptions.
This document sets forth the agreed statement of facts, a copy of the chattel mortgage and of a note which accompanied it, the propositions of law submitted by the plaintiff, and the judgment given. It then contains this passage: “To which judgment of the court counsel for the plaintiff did duly except.” And no other objection or exception anywhere appears.
We think that Cary v. Hewitt, 26 Mich., 228, is a direct authority that Saxton was entitled to the possession as against Macomber when the suit was commenced, and that being so, the stipulation of the parties was conclusive as to the judgment to be given. It was an admission of record. It superseded all inquiry into the value of the interest to which the levies attached, and precluded the plaintiff from contending that Saxton’s right was one possessing only a nominal value.
The omission of the court to respond to the propositions .of law submitted worked no prejudice to the plaintiff. As upon the agreed facts the defendant was entitled to have the law found in his favor touching the right of possession at the commencement of the suit, and as the agreed consequence of such a finding was regular in law and was carried out in the judgment, we discover no grounds for disturbing the proceedings.
The judgment should be affirmed, with costs.
Cooley and Campbell, J.J., concurred.
Christiancy, J., did not sit in this case. | [
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] |
Dethmers, C. J.
Plaintiff, a third class school district, filed its bill of complaint on January 31, 1961, seeking to enjoin defendant county board of supervisors from submitting to the electors the question of annexing 2 portions of Paris township in Kent county, also included within the boundaries of plaintiff school district, to the city of Grand Rapids and to compel submission of the question of annexing to the city of Wyoming certain territory including part of said 2 portions of Paris township. From an order dismissing the bill of complaint plaintiff appeals here. .
Necessary to consideration of the legal problems presented is the following sequence of events:
(1) At an election on December 8, 1959, following approval by the defendant of petitions therefor, the electors voted down a proposal to detach certain territory from Paris township and annex it to the city of Grand Rapids.
(2) On November 29, 1960, a petition to annex a part of that same territory to the city of Wyoming was filed with the clerk of the board of supervisors. It bore the signatures of qualified electors who were freeholders residing in the city of Wyoming and the township of Paris totaling not less than 1% of the population of the 2 units, with not less than 10 from each unit and a total from the 2 of not less than 100. It was not signed by taxpayers assessed for real property taxes within the area proposed to be annexed equal in number to 35% of the total number of names which appeared on the assessment rolls for that purpose in that area.
(3) On December 5,1960, petitions were similarly filed to annex to the city of Grand Rapids a part of the territory involved in each of the above 1959 and November, 1960, petitions. The December 5, 1960, petitions did bear the signatures of 35% of those assessed for real property taxes on the assessment rolls in the area to be annexed.
(4) Since the trial court’s hearing and decision in this cause on February 7,1961, the matter of annexation to the city of Grand Rapids, in accord with the December 5, 1960, petitions, was submitted on April 3, 1961, and carried by the electors.
Section 8 of PA 1909, No 279 (OLS 1956, § 117.8 [Stat Ann 1959 Cum Supp § 5.2087]), provides:
“Said petition shall be addressed to the board 'of supervisors of the county in which the territory to be affected by such proposed incorporation, consolidation or change of boundaries is located, * * * and if, before final action thereon, it shall apear to said board or a majority thereof that said petition or the signing thereof does not conform to this act, or contains incorrect statements, no further proceedings pursuant to said petition shall be had, but, if it shall appear that said petition conforms in all respects to the provisions of this act, and that the statements contained therein are true, said board of supervisors shall, by resolution, provide that the question of making the proposed incorporation, consolidation or change of boundaries shall be submitted to the qualified electors * * * Provided further, That a petition covering the same territory, or part thereof, shall not be considered by the board of supervisors oftener than once in every 2 years, unless such petition shall have been signed by a number of taxpayers assessed for real property taxes within the area proposed to be annexed whose names appear on the latest assessment rolls therein under the requirements of the general property tax, equal to 35% of the total number of names which appear on the assessment rolls.”
Section 8a (CLS 1956, § 117.8a [Stat Ann 1959 Cum Supp § 5.2087(1)]) provides:
“In case a petition has been filed with the clerk pursuant to section 8, and subsequently another petition is filed by other petitioners proposing to affect the same territory in whole or part, then the subsequently filed petition shall not be submitted to the electors while in conflict with the prior petition: Provided, however, That if such prior petition on file is one on which the board of supervisors has not finally set the date for an election, and such subsequent petition has been filed as a substitute therefor encompassing all of the same territory and having among its signers at least 4/5 of the qualified petitioners shown on such prior petition, then the board shall act on such subsequent petition in the place and stead of said prior one. If the board finds that said substitute petition complies with the provisions of this act, an election shall be called thereon; otherwise the election shall be held on such prior petition if it complies with this act.”
Plaintiff school district is interested because the city of Grand Rapids comprises a second class school district and, under the applicable statute, territory annexed to that city is also thereby annexed to. its school district and, hence, would he detached from plaintiff here. On the other hand, the city of Wyoming does not comprise a second class school district and, accordingly, annexation of a part of plaintiff’s territory to it would leave plaintiff without loss of territory.
Plaintiff urges that the inhibition of section 8 against the supervisors’ consideration of a petition covering the same territory, or part thereof, oftener than once in 2 years, unless there is compliance with the 35% provision, applies, if at all, only to proposed annexation of the same territory, or part thereof, to the same city and not if the second proposal he for annexation to a different city than the first. Plaintiff says the statutory language is, in this respect, ambiguous and that, for that reason, citing cases, it requires construction or interpretation. Its reasoning that the statute is ambiguous seems far less clear than does the language of the statute itself.
We have already said that the 2-year restriction applies, not to petitions for incorporation or consolidation but solely to those for annexation. Severance v. Oakland County Board of Supervisors, 351 Mich 173; Attorney General v. Township of Wyoming, 352 Mich 649; Goethal v. Kent County Supervisors, 361 Mich 104. The petitions filed on the 3 different dates herein mentioned are, thus, of the kind covered by the statutory 2-year restriction. That the same territory, or parts thereof, is covered in each of the 3 petitions is conceded. The language of the statute, applicable, as we have held, only to annexation petitions, expressly making the restriction applicable to petitions covering the same territory, or parts thereof, does not limit the restriction to a successive petition within 2 years for annexation to the same city named in the petition pre viously filed. Having expressed no such limitation, we conclude that none was intended by the legislature. Plaintiff warns that this amounts to a pernicious oversimplification. Must the plain and simple language of the statute be made complex? May we insert a limitation not included in the unambiguous statutory language? By no means.
Plaintiff reasons that the literal reading of the statute leads to an absurd result; that the evil sought to be avoided by the legislature was the repeated bombarding of the electorate with proposals to annex to the same city, repetition of which would tend to have a coercive effect. May it not equally have been the legislative thought that, after 1 adverse decision by the voters, such would be the effect on township residents content to remain in that status, regardless of whether the drive or campaign in each successive instance were for annexation to 1 or to different cities? Could the intent have been to afford them some peace and surcease from pressures, some time to ponder the problems involved before being called on again to vote on the subject of joining some city? Such possibility precludes holding, as plaintiff urges, that the literal meaning of the statute is absurd and that plaintiff’s interpretation only can be considered reasonable and valid. We think the trial court correct in holding that the restriction applied to the Wyoming petitions, rendering them ineligible for consideration by the board of supervisors or submission to the electorate.
Do the quoted provisions of section 8a bar submission to the electors of the proposed annexation to Grand Rapids so long as the previously filed Wyoming petitions remain unsubmitted? If the latter are not entitled to submission to the voters, they cannot stand as a bar to submission of a proposal presented by petitions which do qualify. Furthermore, as the trial court observed, the in liibition of section 8a applies to instances in which the previous petitions have been filed pursuant to section 8. Here the Wyoming petitions were not so filed, because they did not meet the 35% requirement contained in section 8.
It follows that the defendant was required by statute to submit to the electors the proposal to annex to the city of Grand Eapids, as set forth in the petitions filed on December 5, 1960.
Defendant urges a lack of jurisdiction in the court in equity, suggesting quo warranto as the plaintiff’s exclusive remedy. Cited are Youells v. Morrish, 218 Mich 194; Anderson v. Levin, 218 Mich 225; Lake v. Township of North Branch, 314 Mich 140; Finlayson v. Township of West Bloomfield, 320 Mich 350; Heidelmeyer v. Village of Oakwood, 222 Mich 331. Among other distinguishing features is the fact that in each of those cases the action was filed after the challenged election had been held, while in the instant case this action was filed before the election. Nor comparable cases, see Kalamazoo Township v. Kalamazoo Stipervisors, 349 Mich 273, and Village of Inkster v. Wayne County Supervisors, 363 Mich 165. We think this matter properly brought before and disposed of by the court in chancery.
Affirmed. No costs, a public question being involved.
Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
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] |
Carr, J.
This suit involves the construction of an addition to the Dickinson County Memorial Hospital. The bill of complaint filed by plaintiffs alleged that in 1958 the board of supervisors authorized the preparation of plans for the desired addition to the hospital, which is located in the 400 block of Woodward avenue in the city of Iron Mountain. An election was called within the county to pass on the question of granting authorization to the board of supervisors to issue bonds not exceeding the amount of $900,000, with a second proposal granting authority to said board to levy a tax for the payment of' said bonds. Said election, as appeared from the averments of the bill of complaint, was held February 16, 1959, both proposals submitted being decided affirmatively.
It is claimed that the plans originally prepared by a hospital construction consultant contemplated the erection of the proposed addition to the existing west wing of the hospital, the addition to run in a north and south direction. It is further claimed that in June, 1959, the board of trustees abandoned the original plan and adopted a new plan for an addition to the north wing of the hospital along Detroit avenue, which plaintiffs assert is the rear of the hospital. The city of Iron Mountain had in force and effect at the time a zoning ordinance requiring a setback line in a rear yard of 20 feet. The pro posed plans as adopted by the defendant board, and ■which defendant is now seeking to carry ont, called for an addition to the hospital to a point 4-1/2 feet from Detroit avenne on one end and approximately 8 feet on the other. It is not disputed that such plan of construction violates the municipal zoning ordinance if such ordinance is applicable.
Plaintiffs’ pleading further alleged that they are the owners of real estate assessed for taxes, and, in particular, that plaintiff DeGaynor is the owner and occupant of a residence immediately north and across the street from the proposed addition as now planned. In his behalf it was asserted that he will suffer irreparable injury as a result of such construction if permitted. The property of said plaintiff and the hospital property as well were classified in the zoning ordinance as residential “A”. It was further averred by plaintiffs that the new addition would extend 170 feet along Detroit avenue. Injunctive relief was asked against defendant, both temporary and permanent.
On the filing of the bill of complaint an order was granted plaintiffs requiring defendant board to show cause why a temporary injunction should not issue as prayed, said order containing a restraining clause. Defendant did not file answer to plaintiffs’ pleading but submitted a motion to set aside the restraining order and to dismiss the bill of complaint. It was alleged as the grounds thereof that the provisions of the zoning ordinance of the city of Iron Mountain were not applicable to the construction of the county hospital or of the addition thereto. In the alternative, it was claimed that the defendant had been granted a “valid building permit” by the city engineer of Iron Mountain on May 6,1960, and that said permit had not been reversed by the municipal zoning board of appeals, a 2/3 vote for such reversal being required. It was also asserted in defendant’s motion that plaintiffs were guilty of laches in the filing of the bill of complaint, that the damages claimed by them were conjectural in nature, and that if an injunction were granted as sought by the plaintiffs additional expenditure of public funds would be required and delay would occur in furnishing the contemplated hospital facilities. In support of the latter claims the affidavit of the chairman of defendant board was filed with the motion.
A hearing on the motion to dismiss the bill was-had before the circuit judge on June 2, 1960. Following the taking of some testimony the circuit judge-indicated that he did not think it necessary to proceed further, and that he had decided to dispose-of the controversy on the basis of legal questions-rather than on the proofs. He agreed with defendant’s contention that the zoning ordinance of the city of Iron Mountain was not applicable to defendant, that plaintiffs were guilty of laches, and that the defendant board had not abused the discretion vested in it by statute. An order was accordingly entered dissolving the restraining order and dismissing the bill of complaint. From such order plaintiffs have appealed.
The basic question at issue in the case is whether the zoning ordinance of the city applied to the building operations of the defendant. Defendant is operating subject to the provisions of PA 1913, No 350, as amended. Said act provides for the appointment of a board of trustees and defines its powers and duties. The following clause in section 4 (CL 1948, § 331.154 [Stat Ann 1956 Rev § 14.1134]) is significant:
“The board of hospital trustees shall make and' adopt such by-laws, rules and regulations for its own guidance and for the government of the hospital as may he deemed expedient for the economic and equitable conduct thereof not inconsistent with this act, and the ordinances of the city or town wherein such public hospital is located.”
It will be noted that the legislature made specific reference to local ordinances, and we find nothing in the statute indicating that an exception was intended to be made with reference to municipal zoning ordinances.
The authority of a city or village to adopt a zoning ordinance likewise rests on statute. Krajenke Buick Sales v. Hamtramck City Engineer, 322 Mich 250. Such authority was expressly conferred by PA 1921, No 207. Section 2 of said act (GL 1948, § 125.582 [Stat Ann 1958 Rev § 5.2932]) is significant as indicating the scope of the police powers granted. It reads as follows:
“The legislative body of cities and villages may regulate and limit the height and bulk of buildings hereafter erected, and regulate and determine the area of yards, courts, and other open spaces, and for such purposes divide any city or village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this, section. Such regulations shall be uniform for each class of buildings throughout each district, but the regulations in 1 district may differ from those in other districts. Such regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the general trend and character of building and population development.”
It is well-settled by repeated decisions of this Court that provisions of a zoning ordinance must be reasonable in their application. In the instant case no claim is made that the setback provision relating to rear yards or courts is arbitrary or unreasonable. Rather, it is defendant’s contention that it is not bound to observe the restrictions imposed by municipal ordinances. With such claim we cannot agree. In granting authority to municipalities to enact and to enforce zoning ordinances the legislature did not ,see fit to provide for exceptions to the exercise of such power. Had it been intended that boards of trustees of county hospitals, organized under the statute above cited, could erect structures in disregard of valid regulations prescribed by ordinances, .and of general application, we think specific provision to that end would have been made. Implying .any such intent is at variance with the provision of the statute above set forth requiring the boards ■of trustees of county hospitals to give recognition to local ordinances. The trial court was in error in holding that the ordinance was not applicable to the ■defendant. The fact that the county hospital act in section 8 thereof (CL 1948, § 331.158 [Stat Ann 1956 Rev § 14.1137]) requires that plans and specifications adopted by the board of trustees must be approved by the State board of health does not alter the situation. Such provision has no reference to location or to zoning ordinance requirements.
It appears that until differences of opinion arose the defendant board recognized the application of the ordinance and the necessity of complying there,with. Under date of April 6, 1960, an application for a building permit was made by the construction ■company to which defendant had awarded a contract for the construction of the contemplated extension. The application was denied by the city engineer, and the zoning board of appeals of the city sustained such action. On May 6th following the contractor filed a second application showing plans for a setback of 8 feet from Detroit avenue on the east end of the proposed addition, and 12-1/2 feet on the west end. Apparently such action was based on the theory that Detroit avenue was not at the rear of the hospital but, rather, along 1 side of it. Such claim is not consistent with the testimony taken on the hearing before the circuit judge. It was there stated, and not controverted, that the hospital fronted on Woodward avenue, that is, that the entrance was on the south side and that, in consequence, Detroit avenue was at the rear. On the basis of the statements made in the application, the building permit was granted by the engineer, and the appeal board failed to overrule such action by the required 2/3 vote.
Apparently such permit was not at the time deemed satisfactory or sufficient, and on May 20, 1960, the construction company again made application for a building permit requesting the right to construct the addition 4-1/2 feet back from Detroit avenue. Such permit was denied, and the action of the city engineer was sustained. On May 23d, however, 2 days prior to the action of the board of appeals, the contractor began excavating for the north addition. The bill of complaint was filed May 27th and a temporary restraining order, as above noted, was issued at that time with an order to show cause why a temporary injunction should not be granted.
As before noted, defendant in its motion to dismiss the bill of complaint relied on the claim that it had a valid permit granted by the city engineer on May 6, 1960. Said permit was obviously open to question on the ground that the application therefor referred to the location of the addition to the hospital as on the side of the existing building rather than on the rear. It was granted on the assumption that the representation was correct, and that the •ordinance would not be violated by an 8-foot setback. However, the plan under which defendant actually proceeded called for a setback of 4-1/2 feet, as the third application for a permit indicated. Under the factual situation as presented to the court by the motion to dismiss the bill of complaint, the permit issued by the city engineer on May 6, 1960, was of no force and effect. Based on an application that did not correctly state the facts, as was clearly indicated by the later application for a permit filed by the contractor, it may not be regarded as a valid permit, and certainly did not authorize the defendant and its contractor to proceed with a construction with a setback at the rear of the hospital of only 4 — 1/2 feet instead of the 20 feet required by the zoning ordinance. The city engineer was without authority to grant a permit in violation of the ordinance of the city under which it was sought.
A similar situation was involved in Building Commission of the City of Detroit v. Kunin, 181 Mich 604 (Ann Cas 1916C, 959), in which this Court affirmed a decree of the circuit court granting injunctive relief to prevent a violation of the city building code. The Court quoted with approval the following statement from the opinion of the circuit judge (pp 612, 613) :
“What, then, is the situation of the defendants? They procured a permit which had no legal status, since no such authorization is warranted by the ordinance. The defendants must be held to have had notice of this. All persons dealing with municipalities and their agents act with constructive, if not actual, knowledge of the limitations upon the delegated powers of cities and their instrumentalities. The defendants took nothing with their permit. It was an extralegal instrument. Of itself, it was without efficacy.”
The above case was followed in Fass v. City of Highland Park, 326 Mich 19, in which analogous cases from other courts were cited. See, also, Cook v. Bandeen, 356 Mich 328, 333.
The permit of May 6, 1960, being in violation of the ordinance, the failure of the zoning board of appeals to set it aside by the requisite 2/3 vote of the members of said board is without legal significance. Strictly speaking, there was nothing before said board. It follows that the claim made on behalf of defendant that the permit became final 5 days after the appeal board undertook to take action is without merit. Failure to overrule an invalid act did not result in giving force and effect to such act. It was in violation of the ordinance, and it was not within the power of the appeal board to sustain it. The situation presented in Tireman-Joy-Chicago Improvement Association v. Chernick, 361 Mich 211, is not analogous to that in the case at bar. The claim there made was that the appeal board in exercising the authority to grant variances from prescribed regulations had acted arbitrarily and improperly. The right of the appeal board to exercise jurisdiction on application for variances was not in question. In the case at bar the permit issued by the city engineer was invalid because not authorized by the ordinance of the city.
On the face of the record that we have before us it may not be said that plaintiffs were guilty of laches in filing their suit. Laches is an affirmative defense and must be pleaded and proved accordingly. It does not appear that any testimony taken before the circuit judge on the hearing of defendant’s motion to dismiss was directed to this issue. As yet plaintiffs have had no opportunity to prove the damages that they claim in their bill of complaint.
It is to be regretted that expense and additional costs may have resulted from the procedure followed in this case. Nonetheless the issues presented must be determined insofar as it is possible to do so. The case is remanded to the circuit court with directions to set aside the order dismissing the bill of complaint, with leave to defendant to file its answer within 15 days after such remand, for trial on the issues of fact raised by the parties in their pleadings. In view of the nature of the controversy, no costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
CL 1948, § 331.151 et seq., as last amended by PA 1960, No 43’. (see Stat Ann 1956 Rev and Stat Ann 1959 Cum Supp § 14.1131 et seq.).
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Smith, J.
The case before us involves the determination of the content and meaning of a contract. Specifically, the question is whether the installation of black iron pipe, rather than galvanized pipe, was called for by the contract made between the parties hereto. The specifications in the general contract for the construction of a shopping center required that “all water piping shall be standard weight galvanized steel pipe.” It is asserted that the general heating contractor, T. H. Brehm Co., plaintiff and appellant, had authorized a variation from this requirement in its contract with the plumbing contractor, J. R. Hilbert Co., Inc., defendant and appellee, to effect a reduction in price.
In response to a request from Brebm for bids on tbe proposed plumbing work, Hilbert bad originally submitted a bid for $23,703. Brebm regarded tbis as too bigh. Accordingly a meeting was arranged to discuss possible adjustments. As a result of tbis meeting Hilbert submitted an amended proposal containing a lower bid, namely, $21,628, and, subsequently, a purchase order specifying this figure was sent by Brehm to Hilbert. Both parties agree that it is the meaning of the purchase order on which this case turns. It reads, in its entirety, as follows:
“For the sum of $21,628 you are to furnish and install the following at the J. C. Penney Store, Michigan Miracle Mile.
“Steam heat as per plans and specifications (Powermaster 100 HP packaged boiler) condensate pump, unit heaters, force flos, radiation, steam and condensate piping, cooling tower piping, gas and water from adjacent to boiler room. Supply necessary labor and material to install tenant’s pressing equipment.”
Standing alone this order settles nothing as to-the controversy before us. Something, obviously,, has caused a reduction in price from $23,703 to-$21,628 and it would be a reasonable assumption that the terms of the purchase order reflect the changes made. Yet without the past background of the higher bid and the attempted adjustment thereof the-terms employed are without significance. Why, for example, is the term “packaged boiler” now employed? Since the issue before us involves piping, the question also arises as to why the distinction is made in the purchase order between “steam and condensate piping” and “cooling tower piping.”
We have noted that it was as a result of the conference as to price, above mentioned, that certain adjustments in the proposal were made in order to-secure a lower bid. They are summarized in defendant’s exhibit 2, set forth in the margin hereof, and are further exemplified in Hilbert’s work sheet. A reduction in price of $1,465 from an interim bid or computation was accomplished by a saving with respect to the boiler, in the use of a packaged boiler instead of the nonpackaged boiler called for by the plans and specifications, by the use, in a portion of the installation, of black iron pipe instead of galvanized, and by a reduction in markup. The work sheet showed a $205 reduction under a notation reading “galv to blk condenser piping”. That the substitution of the black iron piping was proposed as one of the economy measures there can be no serious question. Beference thereto will be found in the amended proposal itself in the words “Included is 4,000 for cooling water piping J. C. Penney — Blk. iron pipes.” The work sheet, as we have noted, reflects this change and the precise saving to be effected by it.
It is equally clear that Brehm, through its agent, sales manager Prank Vatalaro (who negotiated the contract with Hilbert and supervised its execution) accepted the changes thus made. Subsequent to the submission of the amended bid, Hilbert was permitted to go to work immediately on the job, in reliance upon the verbal agreement reached. The purchase order above quoted, when received some 2 months later, caused no misgivings to Hilbert since it was consistent with the agreement thus reached. The steam heat (“the wet heat part of the job”) was to be “as per plans and specifications,” which specifications, as we have seen, included galvanized piping. However, the expression “steam heat” does not, by Brehm’s own admission, include the cooling tower. The purchase order then speaks of the packaged boiler, the condensate pump, the pressing equipment, the steam and condensate piping, and (differentiated therefrom, presumably in the light of the agreement reached with respect thereto) the “cooling tower piping.” Such piping, black iron rather than galvanized, was installed in due course. No objection to such installation, or, indeed, to any of the other items adjusted in accordance with the amended quotation, was made by Brehm. The latter’s agent, Mr. Vatalaro, found no fault with the black iron pipe. "When asked if he was satisfied with the black iron pipe, he stated, “If the J. C. Penney Company [lessee of the premises] was satisfied with it, it was perfectly all right with me.” As a matter of fact, the “punch” list (a list of work considered not properly completed) sent by Brehm to Hilbert as late as October 28, 1957, after completion of the work in September of that year, makes no reference to the substitution of black iron piping, although it does list the lack of a bleed-off line in the very installation (the cooling tower) in which black iron piping had been installed. We observe in passing that insofar as the J. C. Penney Company’s approval or disapproval is concerned, Hilbert was not under contract with Penney, but with Brehm.
We agree with the circuit judge that it was error for the trial court to exclude the work sheet used by Hilbert in figuring his reductions from the original price. It was made contemporaneously with the amended proposal, in the presence of all interested parties, and was material and relevant to the issues controverted.
The short of it is that Hilbert, as a result of the agreement reached orally at the conference, and later confirmed by the terms of the purchase order, which have definite content only in the light of the circumstances under which they were used, installed black iron piping in the cooling tower. Brehm’s contention that such installation was a violation of their contract is without merit. As the circuit court properly concluded,-there was no breach of contract, since the agreement of the parties contemplated that Hilbert install black iron pipe as the cooler water piping. Thus, as the circuit court ruled, there is a clear preponderance of evidence, properly admissible, that the installation of black iron pipe was in strict conformity with the agreement of the parties and not in violation thereof.
It is unnecessary to consider additional questions raised. The judgment of the circuit court is affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
Tlie bid was made in the form of a letter:
“October 8, 1956
■“T. H. Brehm Company, Inc.
•“21380 Coolidge Highway,
“Oak Park, Michigan
“Attention: Mr. Thomas Brehm
“Reference: Miraele Mile Stores
Oakland County, Michigan
•“Gentlemen :
“Confirming our conversation of October 5th, we propose to furnish neeessary materials and labor to install piping and equipment as detailed below for the sum of:
“J. C. Penney Company .............. $23,703
“Kresge Company ...................... 12,908
“Total
$36,611
“The following is a divisional breakdown as agreed:
“By T. H. Brehm Company:
“Burnish and set cooling tower
“ “ “ heating and ventilating units
“ “ “ all coils
“ “ “ chillers and pumps
“ all sheetmetal and breaehings
“ all insulation ■
“ refrigeration cycle
“ temperature controls
“By J. R. Hilbert Company:
“Burnish and set boilers
“ “ “ condensate pumps
“ “ “ unit heaters, force flos and radiation
“ all steam and condensate piping
“ cooling tower (J. C. Penney) piping
“ gas and water make-up from adjacent to boiler
rooms
“ [In pencil] gas burners (sub)
“We trust the above completely clarifies the scope of responsibilities for each company and thank you for the opportunity to submit this quotation.
“Very truly yours,
“J. R. Hilbert Company, Inc.
“R. N. O’Loughlin
•“RNO/ak”
“Nov 26 56
“T. H. Brehm
“We shall furnish labor and material necessary to install pressing equipment for the Penney store as part of our price, herewith quoted.
“The pressing equipment shall be furnished by owners and delivered to the site. Equipment shall include pressing machine, buffer, condensation and boiler with blow-off basin, and all steam specialties-such as valves, traps,’strainer pressure gauge, tubing, et cetera.
“Drain for blow-off basin, and gas for boiler shall be provided by plumber.
“Stack for boiler is necessary (by T. H. Brehm Co.).
“Kresge 12,300 [in pencil]
+ 160.00 if possible
“J. C. Penney 21,628
“33,928
“Included is 4,000 for cooling water piping
“3. C. Penney — Blk. iron pipes.
“Kresge — Plans & Spee.
“Penney — Powermaster 100 HP Insulation of jacket.
“also condensate package units.
“G. Robektson”
See Maryland Casualty Co. v. Moon, 231 Mich 56. | [
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O’CONNELL, J.
Defendant appeals as of right his sentence of 8 to 15 years’ imprisonment for his jury-based conviction of involuntary manslaughter, MCL 750.321. We affirm defendant’s sentence, but remand the case to the trial court for the ministerial task of correcting the presentence investigation report (PSIR).
Defendant first argues that the trial court abused its discretion by imposing a 10-month upward departure from the sentencing guidelines. Defendant maintains that the guidelines adequately accounted for his conduct and that the trial court failed to articulate a substantial and compelling reason for the departure. We review for abuse of discretion the trial court’s conclusion that there was a substantial and compelling reason to depart from the guidelines. People v Hardy, 494 Mich 430, 438 n 17; 835 NW2d 340 (2013). A trial court “ ‘may depart from the appropriate sentence range established under the sentencing guidelines set forth in MCL [777.1 et seq.'] if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.’ ” People v Babcock, 469 Mich 247, 256; 666 NW2d 231 (2003), quoting MCL 769.34(3) (alteration in original). A substantial and compelling reason must be based on objective and verifiable factors. People v Horn, 279 Mich App 31, 43; 755 NW2d 212 (2008). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.” Id. at 43 n 6. “The reasons for departure must also be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.” People v Anderson, 298 Mich App 178, 183; 825 NW2d 678 (2012) (quotation marks and citation omitted). Further, as intended by the Legislature, a substantial and compelling reason exists only in exceptional cases. Babcock, 469 Mich at 257. Lastly, the “departure must be proportionate to the defendant’s conduct and criminal history. The trial court must justify the particular departure it made by explaining why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been.” People v Portellos, 298 Mich App 431, 453; 827 NW2d 725 (2012) (quotation marks and citations omitted).
Defendant’s 8-year minimum term of imprisonment is an upward departure from the recommended sentencing guidelines range of 43 to 86 months. The trial court articulated the following reasons for the departure: (1) that defendant had violated court orders regarding contact with the victim, (2) that the sentencing guidelines did not reflect the extent of defendant’s prior altercations with the victim, (3) that defendant killed the victim in the presence of their children, and then left the residence while the children attempted to revive the victim, and (4) that during and after the offense, defendant showed no concern for the physical or emotional well-being of the children.
This Court has previously concluded that the psychological injury suffered by the victim’s family members, the demonstration of escalating violence toward the victim, and the existence of a probation violation constitute objective and verifiable reasons to depart from the guidelines. See, e.g., People v Corrin, 489 Mich 855 (2011); Horn, 279 Mich App at 48; People v Schaafsma, 267 Mich App 184, 185-186; 704 NW2d 115 (2005). The trial court’s reasons for the departure are objective and verifiable. Further, considering the exceptional nature of the crime, the trial court’s stated reasons keenly and irresistibly grab this Court’s attention in support of the upward departure.
Defendant argues that his conduct has been adequately accounted for by the sentencing guidelines. In departing from the sentencing guidelines, a trial court may “not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b) (emphasis added). While prior record and offense variables may account for defendant’s past criminal record and the psychological injury to the victim’s family, given the unique circumstances at hand, the escalation of the domestic-violence conduct toward the victim, the fact that the crime occurred in plain view of the children, and that defendant left his children alone with the trauma of attempting to revive their mother, the trial court did not err by finding that the prior record and offense variables inadequately accounted for defendant’s conduct.
Defendant also argues that the trial court based its departure on improper factors, i.e., defendant’s gender and a belief that defendant was guilty of the greater offense of second-degree murder. A trial court may not base a departure on a defendant’s gender or make an independent finding regarding whether a defendant is guilty of another offense and justify the departure on that basis. MCL 769.34(3)(a); People v Glover, 154 Mich App 22, 45; 397 NW2d 199 (1986), overruled in part on other grounds by People v Hawthorne, 474 Mich 174; 713 NW2d 724 (2006). While the trial court discussed the jury’s verdict, the trial court’s comments did not suggest or reveal an intention to base the departure on a perceived belief that the jury was wrong. Moreover, a review of the record does not suggest that the trial court departed from the guidelines because of defendant’s gender. Indeed, the trial judge shared her opinion regarding domestic violence cases but, again, those comments do not suggest or reveal an intention to depart on that basis. Accordingly, the trial court did not abuse its discretion by departing upward from the sentencing guidelines range.
In a supplemental brief, defendant argues that the trial court engaged in judicial fact-finding, which, according to defendant, violated the new rule in Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013). This Court recently held that the decision in Alleyne does not implicate Michigan’s sentencing scheme. See People v Herron, 303 Mich App 392; 845 NW2d 533 (2013). This Court is bound to follow Herron, and accordingly, I decline to address the argument in defendant’s supplemental brief.
At sentencing, defendant challenged the accuracy of the information in the PSIR, and the trial court agreed to make four corrections to the report. The PSIR has been amended and all but one of the changes has been made. Specifically, the PSIR still contains the following sentence: “[K.L.] told the police that her father was choking her mother in the master bedroom upstairs.” Therefore, this Court remands for the ministerial task of making the correction to the PSIR and orders the trial court to transmit a corrected copy of the report to the Department of Corrections. See People v Martinez (After Remand), 210 Mich App 199, 203; 532 NW2d 863 (1995), overruling on other grounds recognized by People v Edgett, 220 Mich App 686, 692-694; 560 NW2d 360 (1996).
We affirm defendant’s sentence, but remand for the ministerial task of correcting the PSIR. We do not retain jurisdiction. | [
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MARKEY, P.J.
These consolidated appeals are before this Court for consideration as on leave granted. Each case concerns the jurisdiction of the district court under MCL 600.8301(1) when a plaintiff presents evidence and argument of damages far in excess of the district court’s $25,000 amount-in-controversy jurisdictional limit. In Docket No. 301783, plaintiffs Get Well Medical Transport, Frogressive Rehab Center and Carol Reints, Inc., appeal the order of Wayne Circuit Judge Robert Colombo, Jr., reversing a district court judgment in their favor following a jury trial and remanding for a new trial. In Docket No. 301784, plaintiff Charles Moody appeals the same order of Judge Colombo vacating the judgment in Moody’s favor because the district court lacked subject-matter jurisdiction and remanding to the district court to either dismiss the case or transfer it to the circuit court. Similarly, in Docket No. 308723, plaintiff Linda C. Hodge appeals the order of Wayne Circuit Judge Brian R. Sullivan vacating a district court judgment in her favor in the amount of $25,000 plus interest following a jury verdict of $85,957 against defendant State Farm Mutual Automobile Insurance Company. We affirm.
I. FACTS AND PROCEEDINGS
Moody filed his complaint for no-fault benefits in 36th District Court on September 15, 2008. Paragraph 3 of his complaint alleges that he “claims damages do not exceed $25,000.00.” The complaint’s prayer for relief sought “damages in whatever amount Plaintiff is found to be entitled not in excess of [$]25,000.00, plus interest, costs, and no-fault attorney fees.”
The providers filed their complaint in 36th District Court on June 11, 2009, seeking payment for “reasonably necessary products, services and accommodations” that they provided Moody as a result of the motor vehicle accident. Get Well Medical Transport, Progressive Rehab Center and Carol Reints, Inc., sought no-fault benefits in the amounts, respectively, of $5,604; $14,845; and $2,533.14, for a combined total claim for damages of $21,982.14.
While still awaiting discovery regarding the extent of Moody’s claims, Home Owners moved on July 29, 2009, to consolidate Moody’s case with that of the providers. An order doing so was entered without objection. Meanwhile, Home Owners filed several motions to compel discovery. The district court finally entered an order compelling signed answers to Homeowners’ interrogatories on October 6,2009, to which Moody responded on October 12, 2009. In his answers to the interrogatories, Moody indicated that, in addition to a $32,447.23 bill from Henry Ford Hospital, he also intended to present to the jury damage claims for over $110,000 in lost wages and over $262,800 in attendant-care benefits.
In light of Moody’s answers to the interrogatories and subsequent depositions taken just before trial, Home Owners, on the day trial was scheduled to commence, raised the issue of the trial court’s subject-matter jurisdiction because it appeared certain Moody intended to claim damages far exceeding the $25,000 jurisdictional limit of the district court under MCL 600.8301(1). Home Owners asserted several arguments, including (1) when Moody’s counsel presented argument and evidence of damages in excess of $25,000, the district court would lose jurisdiction, and defendant would move for summary disposition under MCR 2.116(C)(4) (the court lacks jurisdiction of the subject matter); (2) Moody’s action could be transferred to circuit court under MCR 2.227(A)(1); and (3) if Moody’s counsel were permitted to present argument and evidence of damages in excess of $25,000, Home Owners should be allowed to impeach Moody’s claims through evidence or by judicial notice of the fact that the district court’s jurisdiction is limited to claims not exceeding $25,000.
The district court ruled that it would not restrict Moody’s counsel in the evidence or argument he could present, and that if the jury returned a verdict for Moody in excess of $25,000, it would cure the jurisdictional problem by limiting the judgment to $25,000, exclusive of attorney fees, interest, and costs. Furthermore, the district court ruled that it would not take judicial notice of the district court’s jurisdictional limit and that defense counsel could not advise the jury of it. Finally, the district court ruled it would not transfer Moody’s action to the circuit court. The district court entered a hand written order that provided: “This action will not be transferred to circuit court. Each plaintiffs complaint is limited to the jurisdictional dollar amount of $25,000 exclusive of attorney fees, interest and costs. Defendant will be precluded from advising [the] jury of [the] court’s jurisdictional limits.”
During his opening statement, Moody’s counsel repeatedly told the jury that if Home Owners were required to pay no-fault benefits, it could obtain reimbursement from the assigned claims facility. After defense counsel’s third objection to the comments, the district court ruled it would not preclude the argument but that it would permit defense counsel to argue in its opening statement that Home Owners would not be entitled to reimbursement from the assigned claims facility. And that is what defense counsel did. The providers’ counsel supported Moody’s counsel on this point in his opening statement, indicating that he understood that an insurance company could obtain reimbursement from the assigned claims facility if it were determined within one or two years that the company should not have been paying the claim in the first place.
The main issue at trial was whether at the time of the accident Moody was “domiciled in the same household” as his father and stepmother, whom Home Owners insured, or whether Moody lived with his mother in Detroit. The trial extended over three weeks, and Moody’s counsel presented evidence of no-fault claims far in excess of $25,000. In addition to the proofs of the $32,447.23 hospital bill from Henry Ford, Moody presented evidence of lost wages of $28,288 to $29,298.28, replacement services of $14,600, and claims of attendant care for $192,720. After presentation of this evidence, Home Owners twice renewed its motion for summary disposition under MCR 2.116(C)(4) because Moody’s claims for damages far exceeded the district court’s $25,000 jurisdictional limit; the district again denied Home Owners’ motions.
The jury found against Home Owners on its coverage defense, deciding that Moody lived with his father and stepmother at the time of the accident; that issue has not been appealed. The jury awarded Moody $32,447.23 for the hospital expense. But the jury found that Moody did not sustain any lost wages nor did he incur any attendant-care expenses. The jury further found that Moody’s allowable expenses were not overdue. When entering its judgment, the district court reduced the award to $25,000, the court’s jurisdictional limit. The jury awarded the providers the amounts that they sought: $5,604 to Get Well, $13,845 to Progressive Rehab, and $2,533.14 to Carol Reints, Inc. Home Owners appealed in the circuit court.
Judge Colombo heard oral argument on Home Owners’ appeal on October 19, 2010, and issued a lengthy opinion from the bench. Judge Colombo considered that MCL 600.605 provides that circuit courts have original jurisdiction over “all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court,” and that MCL 600.8301(1) provides that the “district court has exclusive jurisdiction in civil actions when the amount in controversy does not exceed $25,000.00.” The circuit court concluded that it was inappropriate for the district court to allow a plaintiff to present evidence of damages greater than the district court’s jurisdictional limit, noting that although district courts formerly were permitted to award damages in excess of the limit when a case was remanded from the circuit court, the statute authorizing that practice, former MCL 600.641, had been repealed. Judge Colombo also noted that Moody was bound by his pleadings, which alleged damages of not more than $25,000. Accordingly, “Moody could not present damage proofs that exceeded $25,000.”
Judge Colombo also rejected Moody’s reliance on the principle that a court’s subject-matter jurisdiction is determined only by the allegations in the plaintiffs complaint. Instead, Judge Colombo reasoned that a court must at all times question its own jurisdiction over parties, the subject matter of the action, and the limits of the relief that it may grant. Further, when a court determines that it lacks jurisdiction, it should not pursue the matter further except to dismiss the action or transfer it to the proper court. The circuit court opined:
Once [Home Owners] raised the issue of the district court’s jurisdiction, the district court was obliged to determine whether it had subject matter jurisdiction. The district court concluded that it had jurisdiction because it could reduce any verdict to $25,000. This was clearly error on the part of the district court. It had no jurisdiction to try Moody’s case when the damage proofs exceeded its jurisdiction.
Judge Colombo also stated he believed that Moody’s counsel engaged in forum shopping as a matter of strategy in hopes of having a better opportunity to win on the issue of residence. Judge Colombo summarized his reasons for reversing the judgment for Moody:
The facts iri this case are too compelling to do anything but to set aside the jury verdict and the judgment in this case. Counsel for Moody presented damage proofs of hundreds of thousand dollars [sic] in excess of the district court’s jurisdictional amount. His proofs did not comply with his pleadings. He attempted to proceed in district court, even though the district court was without jurisdiction and [he] improperly engaged in forum shopping.... The only appropriate remedy is reversal of the jury verdict and the judgment under all the circumstances in this case. The case is remanded to the district court to either dismiss the Moody case for lack of jurisdiction or transfer it to [the circuit court] pursuant to MCR 2.227.
The circuit court also ruled that the judgment for the providers must be reversed and the case remanded for a new trial because the providers’ claims were so intertwined with Moody’s case for which the district court lacked jurisdiction. The circuit court reasoned that because the providers’ case was consolidated with Moody’s case, “significant evidence was admitted in the case that normally would not have been admitted in the medical providers’ case.” The court believed that the presentation of the extra evidence “may have affected the outcome on both the issues of residence and damages.”
With respect to Home Owners’ claims regarding improper comments by Moody’s counsel at trial, Judge Colombo opined that error warranting reversal occurred when Moody’s counsel purposefully interjected the irrelevant issue of the assigned claims facility. The court concluded that the cumulative effect of counsel’s comments, particularly regarding the assigned claims facility and subrogation, deprived Home Owners of a fair trial. Accordingly, in addition to finding that the district court lacked subject-matter jurisdiction, the circuit court ordered a new trial on the basis that counsel’s improper comments deprived Home Owners of a fair trial. Also, for this additional reason, Judge Colombo reversed as to all plaintiffs and ordered a new trial.
The appeal in Docket No. 308723 presents the same central legal issue as in Docket Nos. 301783 and 301784 regarding the district court’s jurisdiction under MCL 600.8301(1). Plaintiff Linda C. Hodge brought an action in 36th District Court asserting a first-party no-fault claim and presented proof of damages far in excess of the district court’s $25,000 jurisdictional limit. The jury returned a verdict of $85,957 against defendant State Farm Mutual Automobile Insurance Company, and on October 1, 2010, the district court entered a judgment of $25,000 plus interest against State Farm. State Farm appealed in the circuit court, which held a hearing on December 16, 2011. Judge Brian R. Sullivan reversed and issued an order on February 1, 2012, providing in pertinent part that “[t]he amount in controversy in this case was in excess of the $25,000.00” jurisdictional limit of MCL 600.8301. The circuit court ordered that “the jury verdict and subsequent judgment... is reversed and vacated for the reason that the court lacked jurisdiction over the subject matter because the amount in controversy exceeded the district court’s jurisdictional limits contained in MCL 600.8301[.]”
II. THE DISTRICT COURT’S JURISDICTION
The central issue in all three appeals pertains to the application of MCL 600.8301(1), which provides: “The district court has exclusive jurisdiction in civil actions when the amount in controversy does not exceed $25,000.00.” Whether the district court has subject-matter jurisdiction on the facts presented is a question of law reviewed de novo. Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich 46, 51; 832 NW2d 728 (2013). Likewise, the interpretation and application of both statutes and court rules are questions of law that are reviewed de novo. Id.; Chen v Wayne State Univ, 284 Mich App 172, 191; 771 NW2d 820 (2009).
We conclude that nothing in MCL 600.8301(1), MCR 2.227(A)(1), or MCR 2.116(C)(4) requires that a court limit its jurisdictional query to the amount in controversy alleged in the pleadings. Here, plaintiffs Moody and Hodge patently claimed damages far in excess of the $25,000 amount-in-controversy limit of the district court’s jurisdiction throughout litigation. The district court judges presiding over these actions were duty-bound to recognize the limits of their subject-matter jurisdiction, In re Fraser Estate, 288 Mich 392, 394; 285 NW 1 (1939), and either dismiss the cases brought by Moody and Hodge or transfer them to the circuit court, Fox v Univ of Michigan Bd of Regents, 375 Mich 238, 242; 134 NW2d 146 (1965), and MCR 2.227(A)(1). Because the district court judges failed to either dismiss these cases that were patently outside their subject-matter jurisdiction or transfer them to the circuit court, the subsequent judgments — and on the facts presented here, also the judgment on the providers’ claims — are void. In re Hatcher, 443 Mich 426, 438; 505 NW2d 834 (1993), Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 544; 260 NW 908 (1935), and Altman v Nelson, 197 Mich App 467, 472-473; 495 NW2d 826 (1992).
These cases are governed by principles of statutory construction, which apply to both statutes and court rules. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009); Brausch v Brausch, 283 Mich App 339, 352; 770 NW2d 77 (2009). “The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent as expressed by the language of the statute.” Ferguson v Pioneer State Mut Ins Co, 273 Mich App 47, 51; 731 NW2d 94 (2006). Similarly, the language used in a court rule and its place within the organization of the Michigan Court Rules is important. Henry, 484 Mich at 495. Thus, when addressing how to construe a statute or a court rule, one must first look to the language used and give the words their plain and ordinary meaning unless defined otherwise. Lafarge Midwest, Inc v Detroit, 290 Mich App 240, 246; 801 NW2d 629 (2010); Ferguson, 273 Mich App at 51-52. In this regard, when words are undefined, one may properly consult a dictionary concerning their plain and ordinary meaning. Cairns v East Lansing, 275 Mich App 102, 107; 738 NW2d 246 (2007). When the language used in a court rule or statute is clear and unambiguous, no further interpretation is either necessary or permitted. People v Lown, 488 Mich 242, 254-255; 794 NW2d 9 (2011); Ferguson, 273 Mich App at 52. The overarching rule of statutory construction is that a court must enforce clear and unambiguous statutory provisions as written. Johnson v Recca, 492 Mich 169, 175; 821 NW2d 520 (2012). Furthermore, when a court interprets a statute, it may not read anything into an unambiguous statute that is not within the Legislature’s manifest intent as derived from the words used in the statute itself. People v Breidenbach, 489 Mich 1, 10; 798 NW2d 738 (2011); Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 218; 801 NW2d 35 (2011).
The circuit court is the primary court in Michigan having jurisdiction over civil cases. MCL 600.605 pro vides, “Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.” MCL 600.8301(1) provides for an exception for bringing civil actions in district court “when the amount in controversy does not exceed $25,000.00.” The critical phrase “amount in controversy” and the critical word “controversy” are not defined by statute or Michigan caselaw. See Szyszlo v Akowitz, 296 Mich App 40, 51; 818 NW2d 424 (2012). But this Court has suggested that “amount in controversy” is “based on the damages claimed.” Id. See also Etefia v Credit Technologies, Inc, 245 Mich App 466, 475; 628 NW2d 577 (2001).
The word “amount” clearly refers to a dollar value because the district court’s jurisdictional limit is stated in the dollar value of $25,000. The plain and ordinary meaning of “controversy” is confirmed by consulting a dictionary which defines it as “a [usually] prolonged public dispute concerning a matter of opinion.” Random House Webster’s College Dictionary (1996). Also, “controversy” is defined in The American Heritage Dictionary of the English Language (new college ed., 1981), as “[a] dispute, especially a lengthy and public one, between sides holding opposing views.” Both dictionaries list “argument” as the synonym of “controversy.” These dictionaries also define, respectively, “controvert” — the verb version of “controversy” — as “to argue against; dispute; deny; oppose. .. .; debate; [and] discuss,” and “[t]o raise arguments against; voice opposition to; deny [and] [t]o argue or dispute about; to debate.” Also, because the phrase “amount in controversy” concerns a court’s jurisdiction, it may have acquired a “peculiar and appropriate meaning in the law,” MCL 8.3a, so it is also appropriate consult a legal dictionary. People v Steele, 283 Mich App 472, 488 n 2; 769 NW2d 256 (2009). Black’s Law Dictionary (9th ed), defines “amount in controversy” as “[t]he damages claimed or relief demanded by the injured party in a lawsuit.” But Black’s also defines the word “controversy” to mean “[a] disagreement or a dispute, [especially] in public [or] [a] justiciable dispute.” Id. Likewise, Black’s Law Dictionary defines “controvert” as “[t]o dispute or contest[.]” Id.
On the basis of these definitions, we conclude that the plain, ordinary, and legal meaning of “amount in controversy” under MCL 600.8301(1) is the amount the parties to a lawsuit dispute, argue about, or debate during the litigation. While the amount in controversy in a lawsuit will most often be determined by reviewing the amount of damages or injuries a party claims in his or her pleadings, the statute does not explicitly state this. Indeed, the statute does not provide any method for determining the amount in controversy. “[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute'itself.” Breidenbach, 489 Mich at 10 (quotation marks and citation omitted). If the Legislature had intended to establish that the limits of the district court’s jurisdiction were to be determined solely on the basis of the amount demanded in the complaint, it could easily have done so, but it did not. Rather, the Legislature used the phrase “amount in controversy,” which is the dollar value of the damages that are disputed in the lawsuit. Stated otherwise, it is the amount the parties argue about, debate, or controvert. Here, Moody’s pretrial discovery answers, the arguments of Moody’s counsel before trial, and the presentation of evidence at trial, all showed that the amount in controversy in that case far ex ceeded the $25,000 subject-matter jurisdiction of the district court. MCL 600.8301(1). Hodge similarly presented evidence of damages far exceeding the $25,000 subject-matter jurisdiction of the district court. Without subject-matter jurisdiction over Moody’s and Hodge’s complaints, the only actions the district court judges could have properly taken would have been to dismiss the cases, MCR 2.116(C)(4), or transfer them to the circuit court, MCR 2.227(A)(1). See Fox, 375 Mich at 242; Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 399; 651 NW2d 756 (2002).
We find appellants’ arguments to the contrary unpersuasive. First, appellants cite several cases for the proposition that subject-matter jurisdiction is determined only by the allegations in the plaintiffs complaint and prayer for relief. See Fox v Martin, 287 Mich 147, 151; 283 NW 9 (1938) (“Jurisdiction does not depend upon the facts, but upon the allegations.”); Zimmerman v Miller, 206 Mich 599, 604-605; 173 NW 364 (1919); Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 586; 644 NW2d 54 (2002) (“ ‘A court’s subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint.’ ”), quoting Grubb Creek Action Comm v Shiawassee Co Drain Comm’r, 218 Mich App 665, 668; 554 NW2d 612 (1996); and Altman, 197 Mich App at 472 (“Jurisdiction always depends on the allegations and never upon the facts.”). None of these cases is factually similar to the ones at hand — in which a plaintiff has set forth in the complaint a request for relief up to the $25,000 jurisdictional limit of the district court, knowing that the true amount sought exceeded $25,000, and then presented to the jury evidence of and argument for damages far exceeding the jurisdictional limit of the court. Rather, the cited cases address the point in time when a court’s jurisdiction is initially determined and also whether the subject matter of the suit other than the amount in controversy is cognizable in the circuit court. See Fox, 287 Mich at 153 (effort to foreclose on an expired lien); Trost, 249 Mich App at 587 (libel action); Grubb Creek Action Comm, 218 Mich App at 666 (review of drain board’s determination of necessity); and Altman, 197 Mich App 473-474 (a paternity and custody action). In Zimmerman, for instance, the issue was whether the circuit court lost jurisdiction because the plaintiff alleging breach of contract failed to establish damages more than the court’s jurisdictional minimum. The Court held on the basis of longstanding caselaw that the “jurisdiction of the court is determined by the amount demanded in the plaintiffs pleadings, not by the sum actually recoverable or that found by the judge or jury on the trial. . ..” Zimmerman, 206 Mich at 604-605. Properly understood, these cases stand for the proposition that what the plaintiff alleges he or she will be able to prove at trial, not what the fact-finder later determines (or the amount entered in a judgment), establishes the amount in controversy for the purpose of determining the court’s subject-matter jurisdiction.
This principle has ancient roots in Michigan, sprouting from Strong v Daniels, 3 Mich 466, 471 (1855), which held “upon general principles . . . that jurisdiction must be determined from the record, and, where it depends on amount, by the sum claimed in the declaration or writ.” The Court in a later case stated the rule that “the damages claimed in the declaration or process, and not the amount found by the court or jury upon trial, must be the test of jurisdiction. . . .” Inkster v Carver, 16 Mich 484, 487-488 (1868). So, according to these early cases, determining a court’s jurisdiction at the outset on the basis of what the plaintiff believed he or she could prove was “the only practical rule . ...” Id. at 488.
The rule requiring the determination of the jurisdictional amount on the basis of the plaintiffs allegations does not support, as here, a plaintiffs artfully pleading a claim for relief ostensibly within the limits of the district court’s subject-matter jurisdiction but then placing in dispute through evidence and argument at trial an amount of damages much greater than the court’s jurisdictional limit. Furthermore, appellants’ contention that the subject-matter jurisdiction of the court may be determined by the amount ultimately awarded by the court, i.e., by limiting judgment to the jurisdictional amount, is contrary to the longstanding rule adopted in Strong of determining the subject-matter jurisdiction of the court by the amount in controversy before trial and the determination of the facts by a judge or jury. We recognize dicta in Strong about a jury’s ability to award more than the jurisdictional limit of the court, but the Strong Court’s holding was that jurisdiction is determined using the amount claimed before the facts are determined. Moreover, the implication of appellants’ argument — that subject-matter jurisdiction may be conferred by artful pleading and by limiting a judgment to the district court’s jurisdictional limit after the facts are determined — violates the principle that the parties to a lawsuit cannot confer jurisdiction on a court that does not have it. In re Hatcher, 443 Mich at 433. A plaintiff may not merely say some magic words and confer jurisdiction where it otherwise would not exist. In fact, a “court must make its own determination regarding the existence of a statutory basis for jurisdiction.” Id. And the court must make this jurisdictional determination before the fact-finding of the trial has concluded. See Fox, 287 Mich 151-152; Zimmerman, 206 Mich at 604-605.
Appellants cite other cases regarding federal district court jurisdictional limits, the removal of state court actions to the federal district court, and cases involving entry of default judgments that are simply not relevant to interpreting MCL 600.8301(1) or the Michigan Court Rules. Furthermore, the case of Brooks v Mammo, 254 Mich App 486, 489-492, 494 n 3; 657 NW2d 793 (2002), had such a unique procedural history — including the repeal and amendment of pertinent statutes and a trial court that declined to exercise jurisdiction that it actually possessed — that the Court itself referred to Brooks as presenting a “factual oddity.” Therefore, Brooks has virtually no value in deciding the issues presented in these appeals, which involve a very different scenario. The case of Krawczyk v Detroit Auto Inter-Ins Exch, 117 Mich App 155; 323 NW2d 633 (1982), rev’d in part on other grounds 418 Mich 231 (1983), also does not assist appellants’ argument. The defendant in Krawczyk did not initially contend that the district court lacked subject-matter jurisdiction, only that judgment could not be entered for more than the district court’s jurisdictional limits. Krawczyk, 117 Mich App at 162. The Court held that certain benefits were not recoverable, thus reducing the judgment amount, exclusive of interest, costs, and attorney fees, to within the district court’s jurisdictional limits. Id. at 163. Our Supreme Court affirmed in part and reversed in part this Court’s decision regarding recoverable no-fault benefits, but it did not address the issue of the district court’s jurisdictional limits. Krawczyk, 418 Mich at 236.
We also find that Clohset v No Name Corp (On Remand), 302 Mich App 550; 840 NW2d 375 (2013), does not alter our analysis of the issues presented in these cases because it is factually unique and addresses the district court’s “more specific” equitable jurisdiction regarding “claims arising under chapter 57 of the Revised Judicature Act (RJA), MCL 600.5701 et seq., which concerns proceedings to recover possession of premises.” Clohset, 302 Mich App at 560. The Court held that because the district court’s equitable jurisdiction under MCL 600.8302(1) and (3) was invoked, that specific jurisdictional grant took precedence over the more general jurisdictional grant provided in MCL 600.8301(1). Clohset, 302 Mich App at 561-562. Therefore, the Court held the district court had jurisdiction to enter the parties’ stipulated consent judgment even though it would have otherwise exceeded the jurisdictional limit of MCL 600.8301(1). Id. at 562-563. The court reasoned that if the district court erred entering the stipulated judgment, the defendant could not collaterally attack the error “in the ‘exercise of jurisdiction.’ ” Clohset, 302 Mich App at 564, citing Bowie v Arder, 441 Mich 23, 49; 490 NW2d 568 (1992), quoting Jackson City Bank, 271 Mich at 545. The Clohset court further noted that a consent judgment is different from a judgment after trial because it represents the agreement of the parties, and, absent fraud, mistake, or unconscionable advantage, it cannot be appealed or set aside without the consent of the parties. Id. at 565-566, 572-573. Finally, the Court found applicable the principle that a party may not participate in and harbor error. Id. at 566-567. In sum, because the present cases do not involve summary proceedings, the equitable jurisdiction of the district court under MCL 600.8302, or the entry of a stipulated consent judgment, Clohset has no application to the circumstances presented in the instant cases.
Appellants’ arguments also fail when considered in light of pertinent court rules. Before the trial of these cases, it was patent to the parties and the district court judges that Moody and Hodge were asserting claims for damages far in excess of the district court’s jurisdictional limit of $25,000. Given that “a court is continually obliged to question sua sponte its own jurisdiction over a person, the subject matter of an action, or the limits of the relief it may afford,” Yee, 251 Mich App at 399, the district court judges should have either dismissed these cases or transferred them to circuit court pursuant to MCR 2.227(A)(1), which provides:
When the court in which a civil action is pending determines that it lacks jurisdiction of the subject matter of the action, but that some other Michigan court would have jurisdiction of the action, the court may order the action transferred to the other court in a place where venue would be proper. If the question of jurisdiction is raised by the court on its own initiative, the action may not be transferred until the parties are given notice and an opportunity to be heard on the jurisdictional issue. [Emphasis added.]
The court rule provides no particular manner in which a court “determines that it lacks jurisdiction of the subject matter of the action .. . .” Rather, it only provides that if the court acts sua sponte regarding its determination, the parties must be “given notice and an opportunity to be heard on the jurisdictional issue.” MCR 2.227(A)(1). Further, the court rule plainly requires that the court may consider matters other than the pleadings when considering whether it has subject-matter jurisdiction and whether it must either dismiss or transfer a case to court having jurisdiction. MCR 2.227(A)(1) does not restrict a court in its jurisdictional determination to a review of the pleadings, and such a requirement may not be read into the rule when not derived from its manifest intent as evidenced by the words of the rule itself. See Breidenbach, 489 Mich at 10; Mich Ed Ass’n, 489 Mich at 218; Henry, 484 Mich at 495.
Also pertinent is MCE 2.116(C)(4), which provides that summary disposition may be entered when “[t]he court lacks jurisdiction of the subject matter.” Home Owners moved for summary disposition under this rule in Moody’s case after he presented evidence of damages far in excess of the district court’s subject-matter jurisdictional limit of $25,000. A motion brought on the grounds of lack of subject-matter jurisdiction may be brought at any time. MCE 2.116(D)(3); Hillsdale Co Senior Servs, 494 Mich at 51 n 3. The determination whether the court has jurisdiction when a motion under MCE 2.116(C)(4) is brought is explicitly not restricted to the pleadings alone. MCE 2.116(G)(5) provides (with emphasis added): “The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(l)-(7) or (10).” See also Toaz v Dep’t of Treasury, 280 Mich App 457, 459; 760 NW2d 325 (2008); L & L Wine & Liquor Corp v Liquor Control Comm, 274 Mich App 354, 356; 733 NW2d 107 (2007). Because Moody and Hodge claimed and presented evidence of damages far in excess of $25,000, “it was the [district] court’s duty to take notice of its lack of subject-matter jurisdiction and dismiss [the cases] pursuant to MCE 2.116(C)(4).” Yee, 251 Mich App at 399.
To summarize, there is nothing in MCL 600.8301(1), MCE 2.227(A)(1), or MCE 2.116(C)(4) that limits the district court’s duty-bound jurisdictional query to the pleadings. Plaintiffs Moody and Hodge plainly claimed damages far in excess of the $25,000 “amount in con troversy” limit of the district court’s subject-matter jurisdiction. The district court judges were required to either dismiss each plaintiffs case or transfer it to the circuit court. See Fox, 375 Mich at 242; MCR 2.227(A)(1); MCR 2.116(C)(4). Because the district court judges failed to do either, the subsequent district court judgments — including that with respect to the providers’ claims that were consolidated with those of Moody — are void for want of subject-matter jurisdiction. Fox, 375 Mich at 242; Jackson City Bank & Trust Co, 271 Mich at 544.
III. DOCKET NO. 301783
The providers argue that they may bring a direct claim against Home Owners for no-fault benefits. See Lakeland Neurocare Ctrs v State Farm Mut Auto Ins Co, 250 Mich App 35; 645 NW2d 59 (2002). Furthermore, the providers note that even their combined claims did not exceed the court’s $25,000 jurisdictional limit and that it was Home Owners that moved to consolidate the providers’ claims with those of Moody. Therefore, the providers argue, under the “invited error” doctrine, see People v Jones, 468 Mich 345, 352 n 6; 662 NW2d 376 (2003), Home Owners cannot complain of any taint from consolidation of the providers’ case with Moody’s case as the circuit court held.
We find that the providers’ invited-error argument is without merit. In Jones, 468 Mich at 52 n 6, the Court noted that “ ‘[i]nvited error’ is typically said to occur when a party’s own affirmative conduct directly causes the error.” Under the invited-error doctrine, appellate relief is generally not available because “when a party invites the error, he waives his right to seek appellate review, and any error is extinguished.” Id. A related rule is that “error requiring reversal may only be predicated on the trial court’s actions and not upon alleged error to which the aggrieved party contributed by plan or negligence.” Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003). See also Smith v Musgrove, 372 Mich 329, 337; 125 NW2d 869 (1964) (“Error to be reversible must be error of the trial judge; not error to which the aggrieved appellant has contributed by planned or neglectful omission of action on his part.”).
Waiver is the intentional relinquishment or abandonment of a known right. Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 374; 666 NW2d 251 (2003). Here, Home Owners moved to consolidate the providers’ case with Moody’s case before discovery disclosed that Moody’s claims for damages were far in excess of the district court’s jurisdictional limit. After discovery disclosed that the amount in controversy with respect to Moody’s claims exceeded the district court’s jurisdictional limit, Home Owners brought the issue to the attention of the court and requested that Moody’s claims be transferred to circuit court. Further, when Moody’s counsel presented evidence of claims exceeding the court’s jurisdictional limit, Home Owners moved for summary disposition under MCR 2.116(C)(4) because Moody claimed damages far in excess of the district court’s $25,0000 jurisdictional limit. Thus, as a factual matter, Home Owners did not waive its jurisdictional arguments and preserved its claim that the district court erred by denying severance of Moody’s claims or by not dismissing them.
Moreover, defects in subject-matter jurisdiction cannot be waived and may be raised at any time. Hillsdale Co Senior Servs, 494 Mich at 51 n 3. Because subject-matter jurisdiction “concerns the court’s power to hear a case, it is not subject to waiver.” Lown, 488 Mich at 268. In addition, a court must at all times be cognizant of its own jurisdiction and sua sponte question whether it has jurisdiction over a person or the subject matter of an action. Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999); Yee, 251 Mich App at 399. “When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void.” Fox, 375 Mich at 242.
In the providers’ case, based on pretrial discovery, it was patently obvious before the trial began, to the district court and to the parties, that Moody’s claims for damages far exceeded the $25,000 amount-in-controversy jurisdictional limit of MCL 600.8301(1). Given the clear evidence supporting the determination that Moody’s claims for damages exceeded the district court’s subject-matter jurisdiction, the district court should have dismissed Moody’s claims. Fox, 375 Mich at 242. Alternatively, under the Michigan Court Rules, the district court could have transferred Moody’s case to the circuit court. MCR 2.227(A)(1). Because the district court failed to either dismiss Moody’s claims or transfer them to circuit court, the subsequent proceedings, including the consolidated providers’ claims, were void. Fox, 375 Mich at 242.
We also reject the providers’ argument that their claims may be saved by severing them after the fact of trial and judgment from the extra-jurisdictional claims of Moody. While the providers may bring an independent cause of action against a no-fault insurer, the providers’ claims against Home Owners are completely derivative of and dependent on Moody’s having a valid claim of no-fault benefits against Home Owners. Specifically, the providers’ claims are dependent on establishing Moody’s claim that he suffered “accidental bodily injury arising out of the. . . use of a motor vehicle,” MCL 500.3105(1), that they provided “reasonably necessary products, services and accommodations for [Moody’s] care, recovery, or rehabilitation,” MCL 500.3107(l)(a), and that at the time of the accident, Moody was “domiciled in the same household” as his father who was insured by Home Owners, MCL 500.3114(1). The providers’ and Moody’s claims with respect to the requisites of Home Owners’ liability are therefore identical. Because there is an identity between Moody’s claims and those of the providers and because the claims were consolidated for trial, we consider them merged for the purpose of determining the amount in controversy under MCL 600.8301(1). The providers cite Boyd v Nelson Credit Ctrs, Inc, 132 Mich App 774, 780-781; 348 NW2d 25 (1984), for the proposition that the claims of individual plaintiffs may not be aggregated to satisfy the circuit court’s jurisdictional minimum amount in controversy. We note that Boyd has precedential effect under the rule of stare decisis, MCR 7.215(C)(2), but because it was decided before November 1990, Boyd is not binding precedent, MCR 7.215(J)(1). Further, because the providers’ claims are derivative of Moody’s claims, we find applicable the exception noted in Boyd that permits aggregating the claims of a single plaintiff for the purpose of determining whether a court has subject-matter jurisdiction because the amount-in-controversy limitation is satisfied or, as here, exceeded. Boyd, 132 Mich App at 781.
This analysis is also consistent with the general rule that when the claims of multiple parties are consolidated to facilitate the presentation of proofs, the cases are not merged into one cause. They retain their own separate identities. See Armstrong v Commercial Carriers, Inc, 341 Mich 45, 52; 67 NW2d 194 (1954). But this Court has observed that when cases are consoli dated under MCR 2.505(A) because of “a substantial and controlling common question of law or fact,” the “court rule is silent with regard to whether the consolidated cases are effectively merged into a single case.” Chen, 284 Mich App at 195. The Court in Chen, citing 3 Longhofer, Michigan Court Rules Practice (5th ed), § 2505.3, p 79, discussed two situations. In one, the consolidated cases are ordered tried together “ ‘but each retains its separate character and requires the entry of a separate judgment.’ ” Chen, 284 Mich App at 195, quoting Longhofer, § 2505.3, p 79. But in the other situation, when actions that are “ ‘normally between the same parties’ ” are consolidated, the “ ‘actions are joined together to form a single action in which a single judgment is entered.’ ” Chen, 284 Mich App at 195, quoting Longhofer, § 2505.3, p 79 (emphasis added). This latter situation exists “where several actions are pending between the same parties stating claims which could have been brought in separate counts of a single claim.” People ex rel Conservation Director v Babcock, 38 Mich App 336, 342; 196 NW2d 489 (1972).
Here, there is virtual identity between the providers’ and Moody’s claims, and Moody could have brought all the claims in a single case in which a single judgment was entered. Indeed, it is Moody’s claim against Home Owners that the providers are allowed to assert because the no-fault act states that “benefits are payable to or for the benefit of an injured person,” MCL 500.3112. See Lakeland Neurocare Ctrs, 250 Mich App at 38-40. But the providers’ claims actually belong to Moody because “the right to bring an action for personal protection insurance [PIP] benefits, including claims for attendant care services, belongs to the injured party.” Hatcher v State Farm MutAuto Ins Co, 269 Mich App 596, 600; 712 NW2d 744 (2006). Thus, the injured party may waive by agreement his or her claim against an insurer for no-fault benefits, and a service provider is bound by the waiver. See Mich Head & Spine Institute, PC v State Farm Mut Auto Ins Co, 299 Mich App 442, 447-449; 830 NW2d 781 (2013). If an injured party waives a PIP claim, a service provider’s remedy is to seek payment from the injured person. Id. at 449-450.
We conclude on the basis of the foregoing analysis that there is such an identity between the providers’ and Moody’s claims that consolidation for trial resulted in merging the claims for purpose of determining the amount in controversy under MCL 600.8301(1). Because the providers’ claims are derivative of Moody’s claims, the consolidated claims are the equivalent of a single plaintiff asserting multiple claims against a single defendant. See Boyd, 132 Mich App at 781.
In sum, Home Owners did not waive its objection to the district court’s jurisdiction by initially moving to consolidate the claims of Moody and the providers. The fact that the providers’ combined claims were within the district court’s $25,000 jurisdictional limit does not cure the jurisdictional defect arising from consolidating the providers’ claims with those of Moody given that the amount in controversy with regard to the consolidated claims clearly exceeded the district court’s $25,000 subject-matter jurisdiction. See MCL 600.8301(1). The entire judgment that included both the providers’ and Moody’s claims was void. See Fox, 375 Mich at 242; Jackson City Bank & Trust Co, 271 Mich at 544. Also, as discussed next, the circuit court did not err by finding that Home Owners was denied a fair trial by counsel’s improper remarks, which independently warranted reversal and remand for a new trial concerning the providers’ claims. See Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-103; 330 NW2d 638 (1982).
IV DOCKET NOS. 301783 AND 301784: COUNSEL MISCONDUCT
A. PRESERVATION
Moody and the providers argue that Home Owners failed to preserve this issue for appeal and, in fact, waived the issue. Appellants contend that while Home Owners asserted in the trial court and on appeal in the circuit court that alleged attorney misconduct entitled it to a directed verdict, Home Owners did not request a new trial in either court. We disagree.
Contrary to appellants’ argument, Home Owners preserved for appeal the issue of Moody’s counsel’s improper remarks to the jury when Home Owners objected and obtained a ruling on the issue from the trial court. Generally, an issue is properly preserved if it is raised before, addressed by, or decided by the lower court or administrative tribunal. Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010). And, in Reetz, 416 Mich at 101-102, the Court referred to the appellate preservation requirement as the “no objection — no ruling — no error presented” rule. Reetz could be read as generally requiring a request for a curative instruction or a motion for a mistrial to preserve appellate review of remarks by counsel. But appellate review without such actions may be granted when counsel’s remarks are so improper that they might have denied a party a fair trial. Id. at 100. Thus, “incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction.” Id. at 101.
In these cases, the district court judge abdicated both her responsibility to control the trial proceedings, MCR 2.513(B), and to instruct the jury regarding the law, MCR 2.512(B). See Reetz, 416 Mich at 103 n 9 (“[T]he trial court has a duty to assure that all parties who come before it receive a fair trial. Consequently, if counsel exceeds the proper bounds of argument, a judge should interrupt to correct counsel and take any curative measures which are necessary.”); Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 293; 602 NW2d 854 (1999) (“The trial court has a duty to assure that the parties before it receive a fair trial.”). It is apparent from the record that the district court judge presiding over Moody’s case simply allowed Moody’s counsel to present conflicting views on an irrelevant issue and that a defense request for a curative instruction would have been futile. Although a motion for a mistrial would have been appropriate, it was not mandatory. Reetz, 416 Mich at 102. As a result, this record demonstrates that Home Owners’ counsel sufficiently preserved for appellate review the issue of improper remarks of counsel.
B. STANDARD OF REVIEW
Appellate review of claims of misconduct by counsel is de novo to determine whether a party was denied a fair trial. See Reetz, 416 Mich at 100. Analysis of such claims requires two steps: (1) did error occur and (2) does it require reversal. Id. at 102-103; Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996). “A lawyer’s comments will usually not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence on the verdict.” Ellsworth v Hotel Corp of America, 236 Mich App 185, 191; 600 NW2d 129 (1999). Stated otherwise, “[rjeversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury’s attention from the issues involved.” Hunt, 217 Mich App at 95. Proper instructions to the jury will cure most, but not all, misconduct by counsel. See Reetz, 416 Mich at 106.
On this issue, the circuit court sitting in its appellate capacity also made a pertinent finding of fact: “Counsel for Moody purposely injected an irrelevant issue to prejudice [Home Owners] and to erroneously suggest to the jury that [Home Owners] may not be liable for any of the claims and can recover from a third-party source.” A lower court’s finding of fact is reviewed on appeal for clear error. MCR 2.613(C). “A finding is clearly erroneous if the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made.” Hughes v Almena Twp, 284 Mich App 50, 60; 771 NW2d 453 (2009).
C. DISCUSSION
Based on our determination that the judgment entered in these cases is void, this issue may be moot. An issue is moot when a judicial determination cannot have any practical legal effect on the existing controversy. People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187 (2010). But this Court “may review a moot issue if it is publicly significant and likely to recur, yet may evade judicial review.” Gen Motors Corp, 290 Mich App at 386. That is the case here. We conclude that the circuit court did not clearly err regarding the facts and did not commit legal error by concluding that the improper remarks of Moody’s counsel, in which the providers’ counsel joined, denied Home Owners a fair trial, thus warranting reversal and remand for a new trial.
Moody’s appellate counsel concedes for the purposes of this appeal that his trial counsel’s comments regarding the assigned claims facility were “either wrong or irrelevant.” We agree that counsel’s arguments were both wrong and irrelevant. Home Owners’ policy insuring Moody’s father requires it to pay Moody PIP benefits if Moody were determined to be “domiciled in the same household” as his father. MCL 500.3114(1). The assigned claims facility is not liable for no-fault benefits unless
no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, the personal protection insurance applicable to the injury cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. [MCL 500.3172(1).]
Furthermore, the insurer to which a claim is assigned, if it pays benefits, “is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.” Id.
This record supports that the circuit court did not clearly err by holding that Moody’s counsel “purposely injected an irrelevant issue to prejudice [Home Owners] and to erroneously suggest to the jury that [Home Owners] may not be liable for any of the claims and can recover from a third-party source.” This finding warrants granting a new trial. See Ellsworth, 236 Mich App at 191; Hunt, 217 Mich App at 95. The district court judge “failed to instruct the jury to ignore these refer enees and the references were so numerous that it is doubtful any instruction would have been effective.” Reetz, 416 Mich at 106.
As noted already, appellants’ arguments regarding preservation fail. Appellants’ arguments regarding waiver and due process must also fail. Home Owners did not and could not waive the circuit court’s authority to grant appropriate relief on appeal of improper remarks of counsel that deny a fair trial. Although Home Owners requested in the district court and on appeal to the circuit court that a verdict be directed in its favor, rather than requesting a new trial, the underlying issue of counsel misconduct was nonetheless preserved and presented on appeal. Appellants’ contention that they were denied due process regarding this issue is without merit. The essential requisites of procedural due process are adequate notice, an opportunity to be heard, and a fair and impartial tribunal. Hughes, 284 Mich App at 69. Appellants received ample notice and opportunity to be heard on this issue, and nothing suggests that the circuit court was not fair and impartial. Thus, appellants were not denied due process of law.
Moreover, the circuit court possessed the authority to grant a new trial. MCR 7.112 provides that in its appellate capacity “the circuit court may grant relief as provided in MCR 7.216,” which in turn provides in pertinent part that the Court of Appeals may, “in its discretion, and on the terms it deems just” enter “any judgment or order or grant further or different relief as the case may require^]” MCR 7.216(A)(7). Misconduct by a party’s attorney that denies another party a fair trial is a basis for granting a new trial. See MCR 2.611(A)(1)(a) and (b); Reetz, 416 Mich at 100; Badalamenti, 237 Mich App at 289-290. Consequently, we affirm the circuit court’s alternative basis for granting Home Owners relief in these cases.
v conclusion
In all three cases, we affirm the circuit court’s ruling that the district court lacked subject-matter jurisdiction under MCL 600.8301(1). Consequently, the district court judgments are void, and we affirm the circuit court orders vacating those judgments.
We also hold that all no-fault claims for benefits due a single injured party based on the same accidental injuries must be aggregated for the purpose of determining compliance with the district court’s subject-matter jurisdiction under MCL 600.8301(1). Consequently, we affirm the circuit court’s order vacating the judgment for the providers in Docket No. 301783.
Finally, we affirm the circuit court’s determination in Docket Nos. 301783 and 301784 that counsel misconduct denied Home Owners a fair trial and independently warranted reversal and remand for new trial.
We remand to the circuit court for further proceedings consistent with this opinion. As the prevailing parties, appellees may tax costs under MCR 7.219. We do not retain jurisdiction.
Fitzgerald and Owens, JJ., concurred with Markey, EJ.
See Hodge v State Farm Mut Auto Ins Co, 493 Mich 937 (2013); Moody v Getwell Med Transp, 491 Mich 923 (2012). This Court entered an order on April 3, 2013, consolidating the appeal in Docket No. 308723 with those in Docket Nos. 301783 and 301784.
“Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised hy the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.” Fraser, 288 Mich at 394.
“When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void.” Fox, 375 Mich at 242.
“[A] proven lack of subject matter jurisdiction renders a judgment void.” Hatcher, 443 Mich at 438.
“When there is a want of jurisdiction over the parties, or the subject-matter, no matter what formalities may have been taken hy the trial court, the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly.” Jackson City Bank, 271 Mich at 544.
“When there is a want of jurisdiction over the parties or the subject matter, no matter what formalities may have been taken by the triad court, the action is void because of its want of jurisdiction.” Altman, 197 Mich App at 472-473.
The Court opined: “It is well settled in actions commenced before a justice of the peace, that the test of jurisdiction is the sum demanded in the writ or declaration, and the justice will not be ousted of his jurisdiction by the jury returning a verdict, or by proof of damages beyond his jurisdiction. In such case the excess may be remitted, and judgment rendered for the balance.” Strong, 3 Mich at 473. | [
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] |
Hooker, J.
Burt & Hurlburt, jewelers in Detroit, took from Arthur Bassett a written lease for 10 years of a store building in Detroit. Bassett afterwards sold the premises, subject to the lease, assigning his interest therein, to the plaintiff. After occupying a few years, Burt & Hurlburt failed. In a short time the business was resumed by a corporation organized for the purpose, under the name of the Burt & Hurlburt Company, which, after some years’ occupancy, also failed, and abandoned the premises. Plaintiff thereafter rented the place so far as it could, and at the close of the term brought this action against the defendants to recover the rent due according to the terms of the lease, giving credit for the amounts received from the renting. The defendants claimed that upon their failure they informed plaintiff of the fact, and that they could not pay rent longer, but that they were expecting that a corporation would be formed to continue their business, and, if so, plaintiff could probably rent the premises to it; that, after the corporation was formed, it was treated by the plaintiff as its tenant, and that the effect was an acceptance of the company by plaintiff as its tenant. They also claim that the plaintiff afterwards accepted a surrender of the lease from the company,,and took possession. The jury found a verdict for the defendants, and the plaintiff has appealed.
There was evidence showing that the plaintiff was informed that Burt & Hurlburt had failed, and could not continue to occupy .the premises, and that thereafter a concern known as the Burt & Hurlburt Company occupied and paid rent. It does not appear that the plaintiff assented to release Burt & Hurlburt, or that it had any dealings with the Burt & Hurlburt Company, further than to make bills against and collect rent from it during the time it occupied. The checks of the company were delivered by one of the defendants, who took part in the business, after the company was formed, as an employé, if nothing more; and what rights the company had it acquired from Burt & Hurlburt, and not from any new leasing by the plaintiff. We think that the testimony did not warrant the instruction contained in defendants’ fifth request, viz.:
“If it was agreed between Arthur Bassett, the original lessor of the lease in question, and the partnership doing business under the firm name of Burt & Hurlburt, that Burt & Hurlburt should abandon the premises, and the premises should be leased by Bassett to a new corporation, if a new corporation was formed, and assumed the name of Burt & Hurlburt Company, and said Bassett accepted Burt & Hurlburt Company as tenants, and rendered his bills to that corporation for his rent, and received from that corporation its checks for said rent, then there was a surrender and cancellation of the lease by operation of law, and the verdict in that case will be for defendants.”
Other requests upon the same subject were not supported by the evidence. Schieffelin v. Carpenter, 15 Wend. 400; Foley v. Dwyer, 122 Mich. 587 (81 N. W. 569); Wineman v. Phillips, 93 Mich. 223 (53 N. W. 168); Stewart v. Sprague, 71 Mich. 50 (38 N. W. 673).
It is contended that the court should have directed a verdict for the plaintiff, as requested. We think otherwise, as there is testimony tending to show a surrender of the lease and occupancy by the plaintiff after the failure of the Burt & Hurlburt Company. Baumier v. Antiau, 65 Mich. 31 (31 N. W. 888).
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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Long, J.
This is an appeal from an order of the court below overruling a demurrer. It appears by the bill that complainant’s father entered into an agreement with defendant for the purchase of a tract of land in Lewis county, State of New York, towards which purchase defendant furnished $5,000 in money; receiving as the evidence of the transaction a receipt from the father of complainant, as follows:
“Received of James A. Boyd five thousand dollars ($5,000) in full for the purchase of 1,000 acres of timber land located in Lewis county, State of New York. If I fail to get the land, the money to be returned to the said James A. Boyd. ■
“Jackson, Mich., June 9th, 1890.
“Hugh Richard.”
The purchase of land as contemplated was made by Mr. Richard in connection with complainant and another person; Mr. Richard, Sr., taking a one-fourth interest in the 20,000 acres of land in said Lewis county. After the purchase, defendant was informed thereof, and a mutual understanding existed between the parties that he owned or was entitled to an undivided one-twentieth interest in these lands. Mr. Richard, Sr'., died August 3, 1893, and his interest was devised to complainant and his two sisters. No change has been made with respect to the interest of defendant, and his claim to an undivided one-twentieth interest in said lands is distinctively affirmed by the bill, and the conveyance thereof in accordance with the understanding is tendered by the bill. October 14, 1896, complainant loaned defendant $500, taking an ordinary promissory note therefor, payable in six months, with interest. October 17th defendant obtained the signature of complainant as accommodation maker upon a note of $2,000, payable six months after date, with interest at 7 per cent., which note was subsequently purchased by complainant, and is still held by him, unpaid. The amount due thereon, together with the amount due upon the first promissory note before mentioned, was, at the date of filing the bill, $2,926.11. October 18th the receipt given by Hugh Richard, before set forth, was delivered to complainant, being indorsed by defendant as follows:
“For value received, I, James A. Boyd, of Tecumseh, Michigan, hereby sell, assign, set over, grant, and convey unto Wm. A. Richard, of Jackson, Michigan, all my right, title, and interest in and to the within receipt of Hugh Richard to me for five thousand dollars, together with all benefit and advantage to be derived therefrom in my favor.
“In witness whereof, I hereunto set my hand and seal this 18th day of October, 1896.
“James A. Boyd. [L. S.]”
As a part of the same transaction, the following paper was given by complainant to defendant:
“I, Wm. A. Richard, of Jackson, Michigan, hereby acknowledge that I have received from J. A. Boyd, of Tecumseh, Michigan, this day, an assignment from him to me of his right, title, and interest in and to the receipt of which the following is a copy:
“‘Received of J. A. Boyd five thousand dollars in full for the purchase of 1,000 acres of timber land located in Lewis county, N. Y. If I fail to get the land, the money to be returned to J. A. Boyd.
“ ‘Jackson, Michigan, June 9, 1890.
“ ‘Hugh*Riohard.’
—“And that said assignment, although absolute and unconditional in form, is in truth and in fact delivered by him and received by me as a security for the purposes following:
“First. To secure the repayment by him to me of his note to me for $500 and interest on the terms stated in said note.
“ Second. To secure the payment at the maturity thereof of one note for $2,000 made by said J. A. Boyd and myself to the Tecumseh State Savings Bank, of Tecumseh, which note is the proper debt of said J. A. Boyd, of Tecumseh, Michigan, — the said Wm. A. Richard signing such note as security in fact, — and that, upon payment of said two notes in full by said J. A. Boyd as aforesaid, I hereby covenant, promise, and agree to and with said J. A. Boyd to assign said receipt, promptly and without delay, to said J. A. Boyd.
“Witness my hand and seal this 18th day of October, 1896.
“Wm. A. Richard.”
The bill further avers that it was the understanding of the parties that the defendant should pay and discharge one-twentieth of all the taxes assessed upon the aforesaid real estate described in said bill, but that defendant has defaulted in this agreement, and complainant has been compelled to advance certain sums for such purposes, which he asks to have added to his lien upon said receipt and agreement; and he therefore asks, because of the nonpayment of the amounts mentioned, for foreclosure of such lien.
Defendant demurred to the bill of complainant upon the ground that want of jurisdiction was apparent upon the hill, that its real purpose was for the foreclosure of an equitable mortgage upon land situated wholly outside the State of Michigan, and that jurisdiction thereof was in the courts of New York. The court overruled the demurrer, from which appeal is taken.
It is the claim of counsel for defendant that this bill is filed for the foreclosure of a lien or an equitable mortgage on an interest in lands lying outside the State; that it is a proceeding in rem, and local, and that this court cannot grant relief without determining the amount of complainant’s lien upon the land, and ordering a sale of the land for its satisfaction; that the laws of New York, as well as Michigan, make the action local, and forbid its trial save in the county where the land lies. On the other hand, it is the contention of counsel for complainant that all the parties live in Michigan; that personal service was had upon the defendant in this State, and, all the parties being within the jurisdiction of the court, their rights can be directly acted upon; that no lands are specifically described in the receipt, and no lands would he directly affected by a sale of the paper; that complainant’s security is a lien upon this receipt or contract, which is the only subject of sale or transfer sought; and that the court is not required to deal directly with land, or with any interest in land, but with the right and title of defendant in and to this receipt or contract. ■
The prayer of the bill is that—
“The interest of the said defendant to said lands, and all his rights and interests by virtue of said receipt and agreement and the subsequent understandings of the parties, and their dealings in reference thereto, and their action in reliance thereon, including the payment of taxes with reference to such proportions, be adjudicated and decreed to be the right to have conveyance of an undivided one-twentieth part and parcel of the sum total of the said described tracts of land. ”
It is also prayed that, in default of the payment of the sums due the complainant, that the —
“Defendant, and all persons claiming or to claim from or under him, may be foreclosed and barred of and from all equity of redemption or claim of, in, or to said agreement and contract made and delivered to him by the said Hugh Richard.”
It is then prayed that the receipt or contract be sold, and the proceeds applied to the payment of complainant’s claim; that the decree may be in such form as shall be necessary to enable him to enforce his security for such indebtedness; and that he may become the purchaser of the agreement, and be fully subrogated to and vested with all the rights of defendant.
It is clear that the relief asked by the bill is the foreclosure of a lien or an equitable mortgage on an interest in lands lying outside the State. It sets up the ownership by the defendant of an equitable estate in common in these lands, the transfer thereof by defendant to complainant as security for moneys advanced, and asks that defendant be foreclosed by the decree in this cause from his interest .therein. This proceeding is one in rem, and local. This court cannot grant relief without determining the amount of complainant’s lien upon the land, and ordering a sale of it for the satisfaction of the lien. This, under the laws of New York as well as of this State, makes the action local, and forbids its trial except in the county where the lands lie. The Code of Civil Procedure of the State of New York, by section 982, provides that “an action must be tried in the county in which the subject of the action, or some part thereof, is situated.” Our statute provides, “Actions for the recovery of any real estate, or for the recovery of the possession of real estate, * * * shall be tried in the county where the subject of the action shall be situated.” 3 Comp. Laws 1897, § 10216, subd. 1. Under a similar statute to that of New York, the supreme court of Indiana determined that a suit for the specific performance of a land contract must’ be commenced in the county where the land was situated. Parker v. McAllister, 14 Ind. 12. In New York the court, in Roche v. Marvin, 92 N. Y. 398, defined the distinction between the relief under a contract which was transitory and the relief which under this statute was local in character, and held that those were local actions which were brought to enforce a lien against real estate. The same rule is laid down in Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351).
The claim made by counsel for complainant cannot prevail. The claim made by the bill contradicts the theory of counsel. The case made by the bill is an attempted foreclosure of this lien, and it will not do for counsel to say now that the court is not required to deal directly with the land, or any interest in the land. If the theory of the bill is correct, the complainant has already a lien upon the land, and the attempt is to foreclose it. It is not like a case where the complainant seeks to compel the defendant to turn over to him a security, so he may foreclose it, or to reform a deed. Here the complainant is in possession of the security, and he is seeking to foreclose it. He must be remitted to the county where the land lies. He cannot enforce it in the courts of this State.
The court should have sustained the demurrer to complainant’s bill. . The decree must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts.
The other Justices concurred. | [
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Long, J.
Plaintiff: recovered judgment in the Calhoun circuit court against Elliott Sprague, husband of Maria Sprague, on December 13, 1897, for $263.92. The judgment not being paid, he sued out a writ of garnishment against Maria Sprague. On service of the writ she filed a disclosure denying-all liability. Plaintiff then filed and served upon her written interrogatories. To these interrogatories Mrs. Sprague filed answers. The plaintiff then served notice of the framing of statutory issues in garnishment, and the cause was tried upon those issues, resulting in verdict and judgment for plaintiff for $263.92, being the amount of the judgment against the principal defendant. Defendant brings error.
The plaintiff on the trial introduced testimony tending to show that for several years, and up to 1890, Elliott Sprague had been the owner of the undivided*two-thirds interest in a farm worth from $9,000 to $10,000. Before 1890 it appears that he bought a herd of cattle of one George Perry, agreeing to pay $3,000 therefor. A note was given for this amount, which fell due about March 20,1890. On March 21st Sprague filed a bill against Perry, his attorney, Radford, and collecting agent, Davis, and the owner of the note, William D. Johnson, in the Calhoun circuit court, in chancery, to restrain them from taking any proceedings to collect the note. The defendants secured an order removing the case to the United States court on April 30th following. On April 1, 1890, Sprague made a deed conveying all his real estate to his wife, Maria Sprague. The deed was not recorded until June 13, 1890. There was considerable personal property on the farm, which the garnishee defendant also claims.
The plaintiff’s case was tried upon the theory that the fa.rm and personal property were conveyed to Mrs. Sprague to defraud creditors. It is not necessary to set forth the evidence given on the trial by the plaintiff. It is sufficient to say that it had a strong tendency to establish the fact that Mrs. Sprague had property and effects in her hands belonging to her husband. On the trial, the plaintiff called Mrs. Sprague as a witness. An objection was interposed on the part of the husband that the wife could not testify without the consent of the husband, and this objection was sustained. It was also contended that the husband could not testify without the consent of the wife, and in consequence of this the husband was not sworn. Both Mr. and Mrs. Sprague were present during the trial, and neither was sworn, nor did they offer any testimony in the case. The court, in its charge to the jury, stated that the disclosures made by Mrs. Sprague should be taken as true by the jury, except as overcome by the plaintiff’s evidence. The only question of fact submitted by the court to the jury was whether the garnishee defendant had property or effects in her hands belonging to her husband sufficient to pay this judgment, and the jury determined by their verdict that she had.
Under the facts shown by this record, we think the defendant has no right to complain of this verdict. Some special questions were submitted to the jury, but we think they do not affect the general verdict. We have examined' the case with care, and find no errors which call for a reversal.
The judgment must be affirmed.
The other Justices concurred. | [
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Montgomery, C. J.
Complainant, being a resident of Clinton county, filed her bill against the defendants, two of whom reside in Kent county, and the third of whom has departed from the State, to enforce a redelivery of a deed of conveyance to lands in Ottawa county. She alleges that the defendants George A. Roberts and Hannah Roberts, husband and wife, and the parents of George W. Roberts, her husband, were the owners of 230 acres of land in Ottawa county, and executed and delivered a deed of an undivided one-half of the premises to their said son, her husband, George W. Roberts, and that he entered into the possession of the premises, and remained in possession thereof until about December 1, 1899. • She further, shows that in 1897 she was married to said George W. Roberts, and lived with him as his wife until December 1, 1899. She further shows that about December 1, 1899, her husband fraudulently procured her signature to a deed of conveyance of a large amount of' valuable real estate in the State of Washington, and sold a large amount of his personal property, and made a pretended conveyance of the remainder thereof to his father and brother, obtaining upwards of $4,000 in cash or its equivalent, and shortly afterwards departed from the State, leaving and intending to leave her without any means of support, and deserting her, without cause. She further shows that, because of such desertion, she filed her petition in the Clinton circuit court, in chancery, to obtain alimony and support under the statute. She further alleges that, after the departure of her husband, she discovered that the deed conveying the undivided one-half of the 230 acres above mentioned as situated in Ottawa county was not recorded, but found its way back into the possession of George A. Roberts; that she requested that the deed be placed on record, and offered to pay the expense thereof, and also asked Roberts and his wife to exe cute a new deed to be placed upon record, so that her dower interest therein may appear of record and be protected, and also so that she may enforce her rights under the statute to maintenance and support out of her husband’s real estate,' all of which reasonable requests defendants George A. Roberts and wife refused. She prays for a decree declaring the existence of the deed from George A. Roberts and wife to her husband; directing the defendants to place it upon record at her expense; that, in default thereof, a decree of the court, when made, shall operate the same as the record of the original deed, — and also adds a prayer for general relief. The defendants George A. Roberts and Hannah Roberts appear and'file their plea, and the defendant George W. Roberts does not appear. The plea sets up, in substance, that because the pleading defendants reside in Kent county, and the land is in Ottawa county, the Clinton circuit court, in chancery, has no jurisdiction of the subject-matter of the suit. Upon argument the plea was allowed, and complainant’s bill dismissed, with costs. From this decree she appeals to this court.
Section 434, 1 Comp. Laws 1897, provides that every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter. is local. Is the subject-matter of this suit local ? It is evident that no direct interest in this land can be established in this proceeding. What is sought is that the court compel the production of a paper (a title deed) in which complainant has an interest. It is not averred that the defendants George A. and Hannah Roberts have any legal title or equitable title in the property, or that any conveyance from them is necessary. The complainant is content with the title as it exists. The cause of action is no more local than would be replevin for title deeds. The proceeding is, in either case, to enforce personal liability. See Davis v. Parker, 14 Allen, 94; Johnson v. Gibson, 116 Ill. 294, 302 (6 N. E. 205, 209); Mitchell v. Bunch, 2 Paige, 606 (22 Am. Dec. 669); Brown v. Desmond, 100 Mass. 267. The case is unlike tbe cases cited by defendants’ counsel. In each of the cases cited, the title was directly involved, and the attempt was to reach the interest of defendant. It is also unlike Richard v. Boyd, ante, 396 (83 N. W. 106), as in that case the purpose of the proceeding was to foreclose a lien on land situated in another State.
The decree dismissing the bill is reversed, and the plea overruled, with costs of this court and of the hearing below to complainant. The case will be remanded for further proceedings.
The other Justices concurred.
Viz.: Godfrey v. White, 43 Mich. 171 (5 N. W. 243); Krolik v. Bulkley, 58 Mich. 407 (29 N. W. 205); Rankin v. Rothschild, 78 Mich. 10 (43 N. W. 1077); Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351). | [
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] |
Hooker, J.
The complainant is assignee, for collection, of a judgment rendered on the 8th day of December, 1877, by the supreme court of the State of New York, in favor of Ira W. Watkins, against one George Barker. This is a proceeding said to be of the nature of a creditor’s bill, and is an attempt to reach a legacy to said Barker in the hands of the executrix of the will containing the bequest. The case has been before us once upon demurrer (see 118 Mich. 448 [76 N. W. 979]), and some of the questions raised upon this record are concluded by our former opinion. After the former hearing an amended bill was filed, and it is now urged that the statute of limitations ran against the New York judgment before said amended bill was filed, and that the proceeding is therefore barred. If it was not barred when the original bill was filed, this defense depends upon whether the amended bill is to be considered as introducing a new cause of action, in analogy to the case of Gorman v. Newaygo Circuit Judge, 27 Mich. 138. Several later cases apply the rule clearly laid down in the Gorman Case, viz., that the action is barred only when a new and different cause of action is introduced by the amendment, and never when it can fairly be said to be the same cause of action as that originally set up. Wingert v. Wayne Circuit Judge, 101 Mich. 397 (59 N. W. 662, 45 Am. St. Rep. 417); Johnston v. Insurance Co., 106 Mich. 98 (64 N. W. 5); Pratt v. Montcalm Circuit Judge, 105 Mich. 501, 502 (63 N. W. 506); Loranger v. Davidson, 110 Mich. 607 (68 N. W. 426); Smalley v. Terra-Cotta Co., 113 Mich. 149 (71 N. W. 466). There was no new cause of action introduced by the amendment.
The point is also made that this suit is barred under the Michigan statute. The record shows that the suit was begun about 19 years after the rendition of the New York judgment, and under the Michigan statute (3 Comp. Laws 1897, § 9734) it was necessary to bring an action upon it within 10-years. Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334). The lapse of 19 years before suit, which appears on the face of the bill, is necessarily fatal to complainant’s suit, unless it is saved by section 9736, which is as follows:
“If, at the time when any cause of action mentioned in this chapter shall accrue against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor after such person shall come into this State; and if, after any cause of action shall have accrued, the person against whom-it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.”
Under the case of Ayres v. Hubbard, 71 Mich. 599 (40 N. W. 10), the burden is upon the complainant to show such exception. See, also, 2 Greenl. Ev. § 431, note 1. There is no proof in this case, to which our attention is called, that shows that Barker ever resided in Michigan. Counsel for defendant so asserts in his brief, and complainant’s counsel content themselves with saying :
“Appellant argues that continuous nonresidence of Barker was not proved.' Such proof was unnecessary. Complainant showed that he was a nonresident at a certain time, and that he is now. This raises a presumption of continuous nonresidence, until it is rebutted by proof to the contrary by appellant. It was not claimed by the appellant at the hearing below that Barker ever resided in Michigan, and in fact she has obligingly informed us in her demurrer to the original bill that he never has resided in this State.”
They do not point out this proof.
The demurrer is not before us, and we are not, therefore, advised of its contents; but, if it were, we could not take it as an admission of the fact mentioned. It was apparently so taken upon the former hearing for the purpose of determining the sufficiency of the bill of complaint, but it can be considered an admission for no other purpose. A demurrer is said to admit all of the allegations of the bill, but that is not for the purpose of a trial of the merits; it is only for the determination of the sufficiency of the paper demurred to. If it were otherwise, it'might be claimed that it was unnecessary to prove any of the statements of the bill, because they were admitted by the demurrer. Under our former decision, proof of nonresidence was admissible under the bill, but the necessity of proof was not dispensed with. There was some hearsay testimony that Barker lived in Arkansas, and an opinion sxpressed that he never lived in Michigan; but this was taken under objection, and should be given no weight. It was, however, shown that he lived in Tioga county, N. Y., “until the spring of 1878,” when the testimony clearly implies that he left there. We have not found testimony tending to prove that he has not ever since resided in Michigan. We must therefore hold that the complainant has not shown the case to be within the exception of the statute. This is fatal, and it is unnecessary to discuss other questions raised.
The decree is reversed, with costs of both courts.
The oth§r Justices concurred. | [
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Montgomery, C. J.
On the 12th day of December, 1891, complainant executed to one Ella H, Sprague his note, secured by a mortgage on complainant’s farm, in the sum of $1,085, which was subsequently assigned to defendant. The defendant commenced foreclosure proceedings, and this bill is filed to restrain such proceedings, for an accounting, and to obtain a decree declaring that nothing is due. The bill sets up that complainant became the owner of the land described in 1863, having purchased the same of one Warn; that the land was then subject to a mortgage of $81.23, which complainant assumed, and also gave a purchase-money mortgage to Warn of $143.-72; that these two mortgages were afterwards assigned to defendant; that in August, 1869, the two mortgages were taken up, and a mortgage of $233.14 was given, the rate of interest being changed from 7 per cent, to 10 per cent.; that on the 12th of January, 1877, the complainant again gave a new mortgage of $410; that this mortgage ran along until December 12, 1891, when complainant renewed for $1,085. The bill sets up that payments in sufficient sums to satisfy the original mortgages had been made to defendant before the execution of the present mortgage at all, and that he has paid considerable sums since for which defendant ought to account. It is conceded that, whoever may have been the apparent owner of the mortgage debt, the defendant has been the real owner at all times. The complainant charges that he was misled by defendant’s computations in making the payments and renewals, relying on the defendant’s honesty, but was greatly deceived by him. The circuit court granted relief in part, decreeing that the amount due at the date of filing the bill was $742.98, and that on payment of that sum complainant would be entitled, to a discharge. From this decree both parties appeal. The cir cuit judge treated the mortgage of 1877 as a settlement of previous dealings, saying that it was impossible to go back of that date, and get at the facts satisfactorily. From this conclusion, complainant appeals.
Defendant was, at the date of the taking of the testimony, 82 years of age and nearly blind. The only memorandum which he was able to find on his books which throws any light on the subject was one of July 1,1876, which shows the amount due at that time to be $387. This sum, with interest added to January 12, 1877, would amount to substantially the $410 for which the mortgage of that date was given. We have met with the same difficulty in going back of that date that confronted the circuit judge.
The complainant claims that the computation of interest on the first mortgages should be at the rate of 7 per cent., while defendant claims that interest at a much higher rate was exacted and agreed upon. This claim, if true, accounts in large part, if not wholly, for the difference between the parties, and, if such payments have been voluntarily made, we are not justified, after this lapse of time, in disturbing the account. See Gardner v. Matteson, 38 Mich. 200; Smith v. Stoddard, 10 Mich. 148 (81 Am. Dec. 778).
We think the circuit judge was right in taking this date for the starting point, if complainant was entitled to any relief. Defendant contends that the mortgage of 1891 is conclusive as to the amount then due. The question involved relates to the consideration of the mortgage now held by defendant. The only consideration for that mortgage is the sum remaining unpaid on the one of January 12, 1877. Of necessity, we are called upon, therefore, to ascertain how much was due on that mortgage in order to learn how much is due on the present one. The circuit judge, in ascertaining the amount due, computed interest on deferred payments of interest under the mortgage of 1877 down to December 12, 1891, but made no rest there, and continued to compute interest on the sum due at the maturity of the first mortgage down to date. We think this is error. Whatever remained unpaid on the 1877 mortgage on the 12th of December, 1891, was then due. The parties saw fit to extend the time of its payment two years, with interest payable annually at 7 per cent. This was computed, and it is not inequitable that the terms of the mortgage be enforced so far as they relate to interest.
The decree will be modified by stating the amount due on July 12, 1899, as $942.62, and in all other respects affirmed. We award no costs to either party in this court.
The other Justices concurred. | [
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The Chief Justice:
From inspection of the bond, and the endorsement of the circuit court commissioner upon it of his approval, we are satisfied that there has been a substantial compliance with the statute.
The statute prescribes that, within the forty days allowed for claiming and entering an appeal, the appellant shall file with the register ivho entered the decree appealed from, a bond to the appellee, with sufficient sureties, to be approved by the commissioner, or a judge of the circuit court, and in such sum as such commissioner or judge shall direct, conditioned, &c. A proper bond was filed within the prescribed time, and the commissioner’s endorsement upon it of his approval, in the absence of any statutory requirement of a special endorsement, is evidence of a full compliance on the part of the appellant with the requirements of law. Appeals are to be favored, rather than discouraged; and no technical nicety, in construing the acts of others than the appellant, should be permitted to defeat his rights. The bond having been presented to the commissioner for his approval, he must be presumed to have known his duty, and in endorsing an approval, to have intended to discharge all his duties, viz: that of approval of the sureties, and of the penal sum; which latter would be tantamount to a direction of the amount. It is true that were a bond presented to an attorney for his opinion as to its sufficiency in form and substance, he would regard only the body of the instrument, and not inquire as to the sufficiency of the sum, or the ability of the sureties, for the reason that such would not legitimately fall within Ms professional cognizance. But when such bond is presented to an officer having certain duties respecting it prescribed by law, and he approves it, either in general words, or such as are used in this case, such approval should, upon every principle of equity and right, be presumed to have been made with full understanding of his duties, and held to embrace every thing .within his jurisdiction. The language of this endorsement was evidently meant to include all this, and not as qualifying such approval. The motion is denied.
We disregard entirely the affidavits presented, as not proper on this motion. | [
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Wing J.:
One of the errors alleged is, that the defendant’s account book in which the entries were made by himself, were received in evidence. It is objected that the ad" mission of this evidence is not authorized by the common law, nor by the statutes of this state.
This species of evidence is received in almost every court of the United States, under what Mr. Greenleaf calls the American rule. It is said the principles of the rule were introduced into this country from Holland, by the first settlers of New England, and that the rule itself is supposed to. be founded upon a kind of moral necessity. It now forms a part of what may be called the American common law.
From the earliest settlement of this state, we have recognized the New York rule as expounded and established in Vosburgh v. Thayer, 12 Johns. 461. And now after it has existed with us, as a rule of evidence, upwards of thirty years, we do not feel competent to discard it, and return to the common law rule, even if a change was desirable. "With the expediency of the rule we have nothing to do: we take it as we find it, and have no apologies to make for it.
According to this rule, the books of account of the party can not be admitted, unless a foundation is first laid by proving that the party had no clerk, that some of the articles charged have been delivered, that the books produced, are the account books of the party; and he must prove by those who have dealt and settled accounts with him, that he keeps fair and honest accounts.
The witness, Theodore Evans, testified that the books produced were the account books of the defendant. It is not directly proved that the defendant kept no clerk; but the nature of the business and the mode in which it was conducted, as described by the witness, establishes the fact that he kept no clerk. The witness says it was his business to tally the brick when hauled away by the teams; that he counted and tallied all the brick that were loaded, and kept an account of them on a tally book or slate (which he did not preserve), and on the evening of the same day (usually) or the next day, he reported the number to the defendant, who entered it in his ac count book. This witness made no entries or charges in the ¡books. We. think this case is brought within the scope of the decision in the case of Sickles v. Mather, 20 Wend. 72. In that case the witness testified that he had long been in the employment of the plaintiff as foreman in his factory, and had delivered all the brick the plaintiff had sold, and made memoranda of his sales on a slate which he kept at the factory during the day, from which plaintiff made entries in his book in the evening or the next day. The court held that the foreman, was not in any sense a clerk for the purpose of verifying the books. A clerk could connect them with the sales, and his original entries (to the general accuracy of which he could make oath) became themselves evidence of what he may have forgotten.
It is further objected that the tally book and slate kept by Theodore Evans were not produced: that the evidence shows Theodore Evans kept a tally-book, and this should have been produced. But we think there' is nothing in this objection. No inference can be reasonably drawn from the evidence of this witness that the tally book is in the possession of either the witness or defendant, or that it was preserved. The witness says he kept his memoranda on a tally-book or slate, which he did not preserve; they are both classed together as if alike destroyed.
The objection also assumes that the entries in the books produced were not the original entries. It is claimed that the memoranda on the tally-book or slate kepit by Theodore Evans, were the original entries, so far as they extended. But these temporary memoranda were made preparatory to permanent, evidence : they are not regarded as original entries. Charges made in books, as these were, in the regular course of business, at or near the time of the transaction, are considered to be original entries: Sickles v. Mather, 20 Wend. 72; 1 Smith's Lead. Cas. 232, 235; 1 Greenl. Ev. §117, note; 12 Pick. 139; 13 Mass. 427; Cow. & Hill's Notes, 682 ; Kelley's R. 232.
It is alleged as error that the evidence of Granger and Reed was received. The hill of exceptions shows, that in charging the brick the names of the teamsters who hauled them were set opposite the charges. Only a part of the teamsters were called by defendant as witnesses, and it Was objected the books should not be received in evidence until all who delivered brick were sworn, or their absence accounted for.
It was assumed that, if called, they could not remember the number of brick' delivered by them respectively, and to establish this fact, or make it probable, witnesses Were called, and testified in substance, that it would not be possible for a teamster, hauling three or four loads of brick a day, to testify from recollection what quantity of brick he delivered. To this ruling of the court admitting this evidence, and also admitting the books in evidence without calling the other teamsters, who delivered a large portion of the brick, plaintiff in error excepted.
The evidence of Granger and Reed, as given, was improperly received. They were not called as experts, and if they were they could not be received to give evidence as experts on such a subject: — 1 Greenl. Ev. §440. IJpon the other point we have found but two cases which sustain the ruling of the court: — In Curren v. Crawford, 4 S. & R. 6, the plaintiff owned a lime kiln, and had sold lime to the defendant; he produced his account books in evidence, in which the charges were made by himself, and in part from memoranda furnished to him by his teamster; he testified he was present when some of the wagons were loaded with lime for defendant, but he was not always present when the wagons were loaded; the lime he did not see loaded he generally saw delivered. It was objected that the teamster was the best evidence of the delivery of the lime. The court held that it was not necessary to fortify the hooks by the oath of the teamster, and the books were admitted. In Jones v. Long, 3 Watts, 326, the plaintiff-offered his books in evidence, and stated on his voir dire that he dug coal for the defendant, which was hauled by the servant of the defendant, who rendered to him an account every day of the loads hauled, which were entered by him in his book. It was objected as in this case, that the teamster should be called, as the best evidence. But the court held it was not necessary. They say “the books were not evidence per se: all that can be said is, that the weight of evidence furnished may be diminished before the jury by the non-production of the wagoner. It is not probable that the wagoner, after a lapse of time, would have thrown any light upon the quantity transferred daily: the same objection was made and overruled in Curren v. Crawford.” The same court in Koughley v. Brewer, 16 S. & R., in remarking upon the case of Curren v. Crawford, say “It has long been settled to receive books of original entries: in that case the court went one step farther, and received entries of lime sent from a kiln, and these entries must have been made several hours before the lime was delivered, and without any absolute certainty that the lime would be delivered; but it was necessary to receive such evidence or impose difficulties on the business which would be great to the seller, and materially increase the price to the buyer.”
These are the only cases we have found in which the delivery of the property was made by an agent, and entered by the principal, and the books were received in evidence without calling the agent as a witness. They are in conflict with Kessler v. McConachy, 1 Rawle, 441; Smith v. Lane, 12 S. & R. 80, and many other decisions in the same state collected in Cowen & Hill’s Notes, 694. The courts of other states appear not to have allowed so great a latitude in evidence.
In Ingraham v. Bockius, 9 S. & R. 285; Koughley v. Brewer, 16 S. & R.; Kessler v. McConachy, 1 Rawle 441; Mor ris v. Bridge, 3 Cush. 343; Smith v. Sanford, 12 Pick. 139; Faxon v. Hollis, 13 Mass. 427; Smith v. Lane, 12 S. & R. 80, and Sickles v. Mather, 20 Wend. 72, the goods were delivered by foremen or servants, and entries were made in the boobs of the principal from their memoranda, but the agents or servants were called to prove the delivery, and it would seem that upon principle this should be required. The common law regards the entries of parties in their own boobs as less than secondary evidence; as hearsay evidence of their own fabrication; and they are not regarded by our courts as primary evidence. They are not received as satisfactory proof of charges, but only as proof of things which, from their nature, are not susceptible of higher proof There is no warrant for this court to go beyond the necessity, upon which the practice is founded. The boobs are introduced for the purpose of proving the delivery of the articles, or the service performed. In the states (except Pennsylvania) where the suj>pletory oath of the party is received, he must swear that the articles were delivered by himself, or that he bnew of their delivery, and that he made the entries. It is obvious that where he can not do this, he can not give evidence in support of his boobs, and consequently they can not be received; and in our state, where the party is not permitted to swear to his charges, where it is apparent that the delivery of the articles was not made by himself, but by a third person, he should be called to prove it, or the result should be the same, unless it is made to appear that his testimony can not be had. The fact that it may be highly improbable that the person who may have delivered the property would remember the quantity, would furnish no sufficient reason why he ■should not be called. The main fact to be ascertained or proved, is, that the articles have been delivered. It is only upon failure to prove the delivery of the articles by the agent when called, that the boobs are received, as the next best evidence. This was apparently the only rea son for the admission of the books in the eases last cited. The witnesses in those cases proved the delivery of the articles. charged, but could not prove the quantity or number, and therefore the books were received. If the witnesses could have proved both the delivery and the quantity or number of the articles, there could have been no good reason for the reception of the books.
In this case we can indulge in no presumption which can dispense with the teamsters, or some one acquainted with the same facts, as witnesses. They were engaged in delivering brick to the plaintiff four or five months; the defendant knows their names, for he has them on his books; and if they could not remember how many they delivered, they can not but remember that they delivered to the plaintiff all the brick that were loaded and counted for that purpose, and which were tallied by Evans. This would be a very important link in the chain of circumstances, to prove a sale and delivery of the articles charged. The teamsters can prove the delivery. Evans proves the number loaded and hauled away, and that he reported them to the defendant, who entered them in his books: this makes up the res gestae. To dispense with this evidence would be to set at naught a very valuable rule of the common law. This class of evidence is so slight at best, that no extension of the rule beyond the apparent necessity of the case should be allowed. Judge Harris in remarking upon this class of evidence in Larue v. Rowland, 7 Barb. 107, says “ the account books of a pa’-ty are received in evidence only upon the presumption that no other proof exists. They are regarded as the weakest and most suspicious kind of evidence, and that too of the lowest grade, and should always be received with extreme caution.” In speaking of the suppletory oath which is required of the party in some of the states, he says he concurs with Judge Cowen in believing that, frail as such proof must be, the law can hardly be censured for think ing it would be but little fortified by the suppletory oath of an interested and excited party.”
It is alleged that the books of account of the defend ant were received in evidence without his proving that he kept honest and fair accounts. The witnesses to this point were O. B. Smith and Joseph Granger. They both swear they had accounts with the defendant, and had settled with him on bills produced. The first says he never saw the books produced in court, but he found the bills presented correct. The latter witness says he “found the amounts of the bills correct —found him to keep 'correct books.” It is obvious witness had no other knowledge on this point besides what he gained from the bills. We have examined the reports of New York and New Jersey (where our rule prevails) with a view to ascertain the course of decisions upon this point.
It is very evident, we think, from the cases in the New York reports, that the practice in that state has been to require proof of settlements by the books of the party, and that he keeps honest and fair accounts. We can not find any case in which this has been directly decided, but in nearly all of the cases in which this kind of evidence was received, it appears to have been proved that the witness knew the parties books, and had settled by them. This appeared in the leading case of Vosburgh v. Thayer. It was proved in Linnell v. Foot, 11 Wend. 569, that the witnesses “ had dealt with the plaintiff, and that he kept fair and honest books.” In Sickles v. Mather, 20 Wend. 72, the witnesses “had dealt extensively with the plaintiff, and had settled accounts with him, which they always found to be correct, and that he kept honest and fair books.” In Larue v. Rowland, 1 Barb. 107, the witnesses testify that they “had dealt with the plaintiff, and settled with him from his books, and found their accounts upon his books all right.” In Beattie v. Qua, 15 Barb. 133, the witnesses had “dealt with the plaintiff, and had settled with him; and they swore he kept honest booxs of account.” In McAllister v. Reab, 4 Wend. 483, the clerk of the plaintiff testified that he had been present at several settlements, with different persons, and never heard any complaint of the correctness of plaintiffs books. These are all the cases we have found in which the evidence is stated. The great uniformity that is shown to exist in all of them upon this subject, shows clearly, we think, the understanding of the profession in that state to be that settlements by the books are to be proved, for the purpose of giving character to the books, and identifying them, instead of directing the proof to the character of the party whose books they are. The character of the party for integrity and fairness is not in question except so far as his books are concerned, and as it is the object to ascertain the general fairness and correctness of the books which are offered, it would seem that the proof should be connected with and point to them.
We have found a case reported in Kelley, 232, in which a lumber account was kept on a sheet or a part of a sheet of paper, which was appended to the writ, and which the plaintiff swore were his original entries kept by himself: they were received in evidence as such — proof being introduced showing the plaintiff was in the habit of keeping correct accounts. Witnesses were called, who proved that they had settled with him on presentation of their accounts, and they found them to be correct. In this case, the entries were made in part from memoranda on slates reported to the plaintiff. The witnesses settled by the plaintiff’s bills. If any inference can be drawn from the case as to the character of the bills presented, it is, that these bills, as well as that attached to the writ, were the original entries also on sheets. The party had no books, otherwise the sheet attached to the writ would not have been admitted. We can not perceive how the evidence received in this case tends to establish the honesty or fairness of the books. It was not shown that the bills were transcribed from the books in question. Theodore Evans swore that the books were defendant’s books of account in which he charged brick delivered by him, and from which he made out his bills. If it can be claimed that this clearly conveys the idea that the witness knew defendant made out his bills from this book, it does not show that the bills which were settled by the witnesses were transcribed from them, or from any book or account kept by defendant; for it was not shown that these books contained any accounts against those witnesses, and therefore we can not perceive how the evidence tended to support the books, or to lay a foundation for their reception by the court.
In addition to these views, we state our conviction that it has been the practice in this state for very many years, and as long as books of account have been received in evidence, to require evidence of the correctness and fairness of the books offered, founded on information gained by an actual inspection of and settlement by them. We see no good cause (if we have the power) to change a practice which, is so well settled, and has prevailed so long amongst us.
Judgment reversed.
Present and concurring Pratt P. J., Green, Johnson, Martin, Copeland and Bacon JJ. Douglass J. did not participate, having decided the cause in the court below. | [
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] |
Christiancy J.:
The non-resident highivay taxes which the township treasurer was, by the mandamus, commanded to pay over to the relator, were not raised by virtue of the act of February 10th, 1855, but were assessed and collected under the general highway tax law; and this general law, but for the act of 1855, required the money to be expended in the several road districts, in which and for which it was raised. The act of 1855 undertook to divert the tax, after it should be collected, from the purposes for which it was assessed, and to authorize its expenditure in any part of the county upon the particular road described in the act, by commissioners “whose duty it shall be to superintend the expenditure of such sum of money.”
The act does not assume to operate upon the taxes till actually collected and in the hands of the township treasurer, or the overseers of highways; but when so collected, authorizes the commissioners to demand it, and requires the treasurer and the .overseers, in whose hands it may be, to pay it over to the commissioners, for the purposes of the act. The commissioners are not authorized to make contracts on the faith of the money before received by them, but merely to superintend its expenditure, after they have received it.
Admitting, for the purposes of this case (without intending to affirm) the constitutional validity of this very questionable legislation, and admitting also the right of the relator alone, as one of the commissioners, while this act remained in force, to call for this money, and to institute this proceeding, still it is manifest'that both his right to demand, and the duty of the treasurer to pay to him, this money, were created by the act of 1855, and rested upon that alone. Independent of this act, neither the right nor the duty had any existence.
The commissioner never obtained possession of the money: it still remains in the hands of the treasurer, who disputes his right: and while this dispute is in progress, and in course of litigation, the Legislature, by the act of 1859, amend the act of 1855, by striking out from that act the township in which the taxes in question were raised, and by repealing “all acts and iDarts of acts which contravene, or are inconsistent” with, the act of 1855, as amended, without any saving of rights accrued or suits commenced. If the money were now to be paid to the commissioners, they could expend no part of it in this township, where before they might, if they had seen fit, have expended the whole.
As the right of the commissioners, and the duty of the treasurer, were created by and entirely dependent upon the act, when that ceased to exist, the right and the duty expired with it. — See Town of Guilford v. Supervisors of Chenango, 3 Kern. 143 ; Commonwealth v. Duane, 1 Binney, 601; Stoever v. Immal, 1 Watts, 258; Norris v. Crocker, 13 How. 438; Hampton v. Commonwealth, 19 Pa. St. 329; Williams v. County Commissioners, 35 Me. 345; Butler v. Palmer, 1 Hill, 330 ; Sedgwick on Const. and Stat. Law, 129. This disposes of the case, and leaves us no apology for the discussion of the other questions relied upon by the plaintiff in error. The judgment of the Circuit Court must be reversed.
The other Justices concurred. | [
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Cheistiancy J.:
The main question in this case was, whether the paper of May & Cloyes was received by the plaintiffs below in payment of their claim against the defendants ? That the paper must have been so received by the plaintiffs, to make it operate as such payment, was admitted by the defendants’ request to charge, and it does not appear to have been a disputed question. But the real question in connection with this point was, by what kind of evidence it was competent for the defendants to show that the paper in question was so received? The defendants’ counsel requested the court to charge, “that it was not absolutely necessary to show an express agreement on the part of the plaintiffs' to receive the note of May & Cloyes in payment of their claims against the defendants; but that if they find, from all the circumstances of the case, and the subsequent acts of the plaintiffs in ¿regard to said note, and in taking new notes of the makers, and extending the time of payment, they had acted and treated said notes as their own, and as received in payment of their claim, then the jury are authorized to take such facts into consideration, and find that the note was received by the plaintiffs in payment — if the evidence satisfies them that such was the fact.”
This request raised the question, what kind of evidence the jury were authorized to consider as bearing upon the question of the receipt of the note in payment, And this was a very material question, in the aspect in which the case appeared upon the evidence. This charge the court refused to give; but did charge that the receipt of the note by the plaintiffs would not discharge the defendants, “ unless the plaintiffs received the notes in payment;” and this is the whole of the charge in reference to the question of the reception of the notes by the plaintiffs. This charge, though correct, so far as it went, entirely evaded the question of the kind of evidence which it was competent for the jury to consider as bearing upon the point in dispute, and left to the jury only a question about which there was no controversy.
But this charge, taken in connection with the request to charge, and the refusal of that request, necessarily, we think, left the jury to infer that it was necessary to show an ex~ press agreement on the part of the plaintiffs to receive the paper in payment, and that they would not be authorized to find that it was so received, from all the circumstances and the subsequent acts of the parties, referred to in the request. And they must also have inferred, that an express agreement must be shown by direct evidence.
We do not understand this to be the law. We are aware of no rule, and can discover no reason, why direct evidence of an express agreement should be required in such a case. If such was the understanding and assent of the parties, it was sufficient. And that such was the understanding of the parties, may, we think, be proved by the subsequent acts and conduct, of the parties, as well as by direct proof. The weight of such evidence, is, of course, a question for the jury. We think the request of the defendants presented substantially the correct view of the law, and the court should so have charged.
The judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Christian cy J.:
Several errors are assigned in this cause, but as the second is sufficient to dispose of the cause for want of jurisdiction, we do not propose to express an opinion upon the others.
Whether the Circuit Judge of the seventh judicial circuit could, within his own circuit, take jurisdiction of the proceedings for the discharge of bail upon a surrender of the principal, in an action pending in the fourth judicial circuit, is a question which admits of much doubt. The language of the statute (Comp. L. §4152), if not limited by the nature of the proceedings or the objects of the jurisdiction, is broad enough to admit of a construction conferring the power. But we have been wholly unable to discover any reason in the nature of the proceedings, or the object to be attained by them, which would call for such an enactment, or require such a construction. Considered with reference to the reasons for the proceeding, and the rights and convenience of parties, there would seem to be very strong reasons for confining the jurisdiction of the Circuit Judges in such cases to their respective circuits. And the bail may always take the principal into the circuit where the action is pending, by virtue of the bail piece alone, in every case where the order of a Judge would authorize him to be taken there and delivered to the sheriff.
But conceding the power of the Judge of the seventh circuit to take cognizance, within his own circuit, of the proceedings for the surrender of the defendant, and the discharge of his special bail, in an action pending in the fourth circuit, did he acquire jurisdiction of those proceedings in this particular case?
The whole proceeding for the surrender of a defendant by his bail in a civil cause, and for their discharge in consequence oí such surrender, is sjDecial, regulated by, and entirely dependent upon the statute. The officer before whom the proceedings take place has no authority except what the statute gives him. And if the case presented does not come within all the requisites prescribed by the statute, he has no jurisdiction. And every thing necessary to confer jurisdiction must affirmatively appear upon the record.— Wight v. Warner, 1 Doug. Mich. 384; Clark v. Holmes, Ibid. 390 ; Chandler v. Nash, 5 Mich. 409.
The statute [Comp. L. & 4153) provides that “the proceedings to effect such surrender shall be as follows:” and then proceeds to establish specifically and minutely the mode of proceeding, and among other things requires:
1st. That “ there shall be produced to the officer” two copies of the '■'•bailpiece" upon one of which his order of commitment is required to be endorsed. 2d. That the order discharging the bail (when granted) shall be endorsed on the second copy “ of the bail piece! 3d. That this last copy of the “ bail piece," with the proceedings and order endorsed thereon, and having attached to it the certificate of the sheriff, &c., “shall be immediately filed in the office of the clerk of the court; and until so filed the liability of the bail shall continue.”
If the statute had' left it in doubt, whether the “recognizance of Special bail” might or might not be the instrument referred to, as the “ bail piece” or if it had not clearly distinguished between them, there might possibly be some ground for contending that copies of the “recognizance” might satisfy the statute requirement of copies of the “ bail pieceP
But the statute (Comp. L. §§4134 and 4135) very clearly distinguishes between the two instruments; gives, in extenso, the form of each, and declares that each shall be in substance in the form which it prescribes. And so far from being identical, either in form or substance, they are entirely different in both. The recognizance is a written acknowledgment, before an officer, of the liability of the bail to the plaintiff in a certain contingency, and for the plaintiff’s benefit; and is to be filed in the court where the action is pending. The bail piece is an instrument which the bail have a right to demand of the officer taldng the recognizance, stating that the principal is delivered to the bail. It is the evidence of their right to his custody; it is delivered to them, and not filed in court, unless upon a surrender of the principal as above stated. There is therefore, no possible ground for confounding the identity of the two instruments, nor for supposing the Legislature, when they mentioned the one, intended the other. The language which requires these proceedings to be upon the “ bail piece” is entirely consistent with the whole scope of the statute, and too plain, positive and! unambiguous, to admit of any construction. To say that copies of the recognizance might serve as an equally safe basis of these proceedings, is to use an argument which might have been very legitimate before the Legislature who enacted the statute, but which can have no weight with the judiciary whose province is to declare, and not to make the law.
If the Judge, in the case now,f before us, could proceed upon the copies of the recognizance, instead of the bail piece, it is difficult to see why the same latitude of construction would not authorize him to dispense with both, and to proceed upon a copy of the capias and parol evidence.
As no copy of the bail piece was produced to him in any stage of the proceedings, his jurisdiction, we think, never attached, and all the proceedings before him were void.
The other Justices concurred. | [
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Campbell J.:
The defense of this case, as presented in the court below, was based upon a claim that the accused was only chargeable with excusable or justifiable homicide. And as most of the questions raised before us involve the consideration of the same subject, it may be necessary to examine somewhat carefully into the rules which divide homicide into its various heads, and determine the character of each act of slaying.
The facts are claimed, by the counsel for the accused, to have a tendency to establish the act as innocent on various grounds: first, as excusable in defence of himself or his servant; second, as justifiable in repelling a riotous attack, and third, as justifiable in resisting a felony.
The first inquiry necessary, is one which applies equally to all of the grounds of defense; and is whether the necessity of taking life, in order to excuse or justify the slayer, must be one arising out of actual and imminent danger; or whether he may act-upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken.
Human life is. not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion. But the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to ensure its general protection. They are designed to prevent reckless and wicked men from assailing peaceable members of society, by exposing them to the danger of fatal resistance at the hands of those whom they wantonly attack, and put in peril or fear of great injury or death. And such rules, in order to be of any value, must be in some reasonable degree accommodated to human character and necessity. They should not be allowed to entrap or mislead those whose misfortunes compel a resort to them.
Were a man charged with crime to be held to a knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The jury, by a careful sifting of witnesses on both sides, in cool blood, and ■ aided by the comments of court and counsel, may arrive at a tolerably just conclusion on the circumstances of an assault. But the prisoner, who is to justify himself, can hardly be expected to be entirely cool in a deadly affray, or in all cases to have1 great courage or large intellect; and can not well see the true meaning of all that occurs at the time; while he can know nothing whatever concerning what has occurred elsewhere, or concerning the designs of his assailants, any more than can be inferred from appearances. And the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts unless their ignorance arises from fault or negligence.
A criminal intent is a necessary ingredient of every crime. And therefore it is well remarked by Baron Parke in Regina v. Thurborn, 2 C. & K. 832, that “as the rule of law, founded on justice and reason, is that actus non facit reum nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him.” And Mr. Bishop has expressed the same rule very clearly, by declaring that “in all cases where a party, without fault or carelessness, is misled concerning facts, and acts as he would be justified in doing if the facts were what he believed them to be, he is legally as he is morally innocent : — 1 Bish. Cr. L. § 242.
These principles have always been recognized, and are sustained by numerous authorities; but they need no vindication, and a further citation would • add nothing to the clear and intelligible statements already referred to. And from an examination of some of the charges given, we are very much inclined to believe that the court beloAV entertained the same views, at least as to some branches of the defense. But as some of the charges actually given, and particularly those in response to the first and second instructions requested, negative this rule, and the jury upon those must have been misled, we must regard these charges as erroneous unless they were inapplicable to the ease altogether. Their applicability will be presently considered.
In order to determine the materiality of the questions of law raised, it becomes necessary to determine under what circumstances homicide is excusable or justifiable. In doing this, it will be proper -to advert merely to those instances which may bo regarded as coming nearest to the circumstances of the case before us. The other cases we are not called upon to define or consider; and what we say is to be interpreted by the case before us.
The only variety of excusable homicide (as contra-distinguished from justifiable homicide at common law) which we need advert to, is that which is technically termed homicide se aid saa defendendo, and which embraces the defense of one’s own life, or that of his family, relatives or dependants, within those relations whore the law permits the defense of others as of one’s self. Practically, so far as punishment is concerned, there is no distinction with us between excusable and justifiable homicide; but' a resort to common law distinctions will nevertheless be convenient, in order to illustrate the difference between the various instances of homicide in repelling assaults, according as they are or are not felonious. Homicide se defendendo was excusable at common law when it occurred in a sudden affray, or in repelling an attack not made with a felonious design. According to Mr. Hawkins, it was excusable and not justifiable because, occurring in a quarrel, it generally assumed some fault on both sides : — Hawk. P. C., B. 1 Ch. 28, § 24. In these cases, the original assault not being with a feloni ous intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused unless the slayer does all which is reasonably in ;Ms power to avoid the necessity of extreme resistance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his adversary’s way, and has no right to stand up and > resist if he can safely retreat or escape: — See 2 Bish. Cr. L. §§543 to 552, 560 to 562, 564 to 568; People v. Sullivan, 3 Seld. 396; 1 Russ. Cr. 660 et seq. Mr Russell lays ylown the rule very concisely as follows (p. 661) : “The party assaulted must there-' fore flee, as far as he conveniently can, either by reason of some wall, ditch, or other - impediment, or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm; and then, in his defense, he may hill his assailant instantly. Before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that that defense was necessary; that he did all he could to avoid it; and that it was necessary to 2motect his own life, or to protect himself from such serious bodily harm as would give him a reasonable a2>prehension that Ms life was in immediate danger. If he used the wea2^on havmg no other means -of resistance, and no means of escape, in such case, if he retreated as far as he could, he would be justified.” A man may defend Ms family, his servants or his master, whenever he may defend himself. How much further this mutual right exists, it is unnecessary in this case to consider: — See 2 Bish. Cr. L. §581, and cases cited; 1 Russ. Cr. 662; 4 Bl. Com. 184.
There are many curious and nice questions concerning the extent of the right of self defence, where the assailed party is in fault. But as neither Pond nor Cull were in any way to blame in bringing about the events of Friday night, which led to the shooting of Blanchard, it is not important to examine them. The danger to be resisted must be to life, or of serious bodily harm of a permanent character; and it must be unavoidable by other means, Of course we refer to means within the power of the slayer, so far as he is able to judge from the circumstan-' ces as they appear to him at the time.
A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as im the other cases, he must not take life if he can otherwise arrest or repel the assailant: — 2 Bish. Cr. L. § 569; 3 Greenl. Ev. §117; Hawk. P. C., B. 1 Ch. 28, §23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.
The essential difference between excusable and justifiable homicide rests not merely in the fact that at common law the one was felonious, although j>ardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a public duty; and the question of personal danger did not necessarily arise, although it does generally.
It is held to be the duty of every one who sees a felony attempted by violence, to prevent it if possible; and in the performance of this duty, .which is an active one, there is a legal right to use all necessary means to make the resistance effectual. Where a felonious act is not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification, for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony; and in those it is lawful to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue Ms adversary, if necessary, till he finds himself out of danger. Life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here, precisely as in all other cases.
It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offense, which requires the combination of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who can not otherwise suppress them, or defend themselves from them, may justify homicide in killing them, as it is their right and duty to aid in preserving the |>eace. And perhaps no case can arise where a felonious attempt by a single individual will be as likely to inspire terror as .the turbulent acts of rioters. And a very limited knowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke resistance, they are not likely to stop at half way measures, or to scan closely the dividing line between felonies and misdemeanors. But when the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression; and a man who defends himself, his family or his property, under such circumstances, is justified in making as complete a defense as is necessary.
When we look at the facts of this case, we find very-strong circumstances to bring the, act of Pond within each of the defenses we have referred to. Without stopping to recapitulate the testimony in full or in detail, we have these leading features presented: Without any cause or provocation given by Pond, we find Plant, Robilliard and Blanchard, combining with an expressed intention to do him personal violence. On Thursday evening this gang, with from fifteen to twenty associates, having been hunting for Pond, found him at a neighbors, and having got him out of doors, surrounded him, while Plant struck him with his fist, and kicked him in the breast, with insulting language, evidently designed to draw him into a fight. He escaped from them, and ran away into the woods, and succeeded in avoiding them that night. That same night they tore down the door of the net-house, where his servants were asleep, in search of him; and not finding him there, went to the house; the whole rabble being with them; and wanted Pond, and expressed themselves determined to have him; but refused to tell his wife what they wanted of him. Not finding him there, they started off elsewhere in search of him. This was between nine and ten o’clock at night. About noon of Friday, Plant and Blanchard met Pond, when Plant threatened again to. whip him; and then went up to him, told him not to say anything, and that if he did he would give him slaps or kicks. Plant then took a stone in his hand, and threatened if Pond spoke, to throw it at him. Pond said nothing, but went home quietly, and Plant went off and was heard making further threats soon after. Friday night neither Pond nor his family went to bed, being in fear of violence. Between one and two o’clock that night, Plant, Robilliard and Blanchard went to the net-house, and partially tore it down, while Whitney and Cull were in it. They then went to the house where Pond, his wife and children were, shook the door, and said they wanted Pond. Pond concealed himself under the bed, and his wife demanded what they wanted of him, saying he was not there; when Plant shook the door again, and ordered Mrs. Pond to open it; saying they wanted to search the house. She refusing, they resorted to artifice, asking for various articles of food, and objecting to receiving them except through the door. Plant then repeatedly commanded her to open the door, saying if she did not, she would regret it. On opening the door from six to twelve inches, by sliding the cord, to hand them some sugar, which they demanded, they did not take the .sugar, but Plant seized Mrs. Pond’s arm, and squeezed it until she fainted. Not succeeding in getting into the house, they then left for Ward’s, and Pond went to the house of his brother-in-law, and borrowed a double barreled shot gun loaded with pigeon shot, and returned home. While at Ward’s, Blanchard told the latter that they had tom down part of Pond’s net-house, and had left the rest so that when they went back they would have the rest of the fun. Blanchard also said, “I want to see Gust. Pond: he abused an Irishman, and I want to abuse him just as bad as he abused the Irishman. Pond has to be abused any way.” He also said to Ward, “ this is good bread, I don’t know but it may be the last piece of bread I’ll eat.’’ Plant also made threats. A short time after returning, they were heard to'say they were going back again; were going to find him and to whip him, or have the soul out of him. It is to be remarked that we have their language as rendered by an interpreter, who was evidently illiterate, or at least incompetent to translate into very good English; and it is impossible for us to determine the exact force of what was said.
The party then went back to^ Pond’s, and asked admittance to search for him. His wife refused to let them in. They immediately went to the net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed on the floor, and began choking him. Cull demanded who it was, but received no answer. Blanchard and Robilliard had commenced tearing down the boards. Pond went to the door and hallooed, “Who is tearing down my net-house ?” to which there was no answer. The voices of a woman and child were heard crying, and the woman’s voice was heard twice to cry out “ for God’s sake!” Cull’s voice was also heard from the net - house, not speaking, but hallooing as if he was in pain. Pond cried out loudly “ leave or I’ll shoot.” The noise continuing, he gave the same warning again, and in a few seconds shot off one barrel of the gun. Blanchard was found dead the next morning. Pond took immediate steps to surrender himself to justice.
A question was raised whether the net-house was a dwelling or a part of the dwelling of Pond. We think it was. It was near the other building, and was used not only for preserving the nets which were used in the ordinary occupation of Pond, as a fisherman, but also as a permanent dormitory for his servants. It was held in The People v. Taylor, 2 Mich. 250, that a fence was not necessary to include buildings within the curtilage, if within a space no larger than that usually occupied for the purposes of the dwelling and customary out - buildings. It is a very common thing in the newer parts of the country, where, from the nature of the materials used, a large build, ing is not readily made, 'to have two or more small buildings, with one or two rooms in each, instead of a large building divided into apartments.
We can not, upon a consideration of the facts manifest ; from the bill of exceptions, regard the charges asked by/ the defense as abstract or inapplicable to the case. It was for the jury to consider the whole chain of proof; but if they believed the evidence as spread out upon the , case, we feel constrained to say that there are very few \ of the precedents which have shown stronger grounds of ! justification than those which are found here. Instead'1 of reckless ferocity, the facts display a very commendable ; moderation.
Apart from its character as a dwelling, which was denied by the court below, the attack upon the net-house for the_ purpose of destroying it, was a violent and forcible felony. And the fact that it is a statutory and not common law felony, does not, in our view, change its character. Rape and many other of the most atrocious felonious assaults, are statutory felonies only, and yet no one ever doubted the right to resist them, unto death. And a breaking into a house with the design of stealing the most trifling article, being common law burglary, was likewise allowed to be resisted in like manner, if necessary. We think there is no reason for making any distinctions between common law and statute felonies in this respect, if they are forcible and violent. So far as the manifest danger to Pond himself, and to Cull, is concerned, the justification would fall within the common law.
It is claimed by the prisoner’s counsel, that we are authorized to pronounce upon the case the judgment which the facts warrant. Had the facts spread out in the bill of exceptions been found as a special verdict by the jury, this would be true. But as the case stands, we can only consider them as bearing upon the instructions given or refused. The errors being in the rulings, and not in the record outside of the bill of exceptions, we can do nothing more, in reversing the judgment,£than to order a new trial. The District Judge has ruled upon the law questions in such a way as to present them all fairly as questions not before decided in this state. We think there was error in requiring the actual instead of apparent and reasonably _¡ founded causes of apprehension of injury; in holding that the protection of the net-house could not be made by using a dangerous weapon; and that the conduct of the assailing party was not felonious; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resisting a felony.
We do not deem it necessary to pass upon the minor points, as we do not suppose the authorities will deem it important to proceed further, unless the facts are very different from those presented.
The judgment below must be reversed .and a new trial granted.
Manning and Christiancy JJ., concurred.
Martin Cn. J., concurred in the result. | [
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Manning J.:
Defendant was indicted for a public nuisance, and on his conviction, an order was made by the court, under-§1347 of Compiled Laws; for removing the nuisance, which is a mill dam; and the case is before us on a writ of error. ,
A question arose on the argument, whether the order-for the removal of the dam was a final judgment on which a writ of error would lie. We think it is. A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein: — 1 Bouv. Inst. 264: and the statute relative to writs of error uses the words “final judgment or determination.”
The punishment for a public nuisance is imprisonment or fine, or both, under section 5958 of Compiled Laws, and, in the discretion of the court, the destruction or re-* moval of the nuisance, when it is injurious to public health, at the Expense of the defendant, under the directioL. §1347
The removal of the nuisance is not a necessary part of the punishment. It is left discretionary with the court, It is a power that may or may not be exercised; but when exercised, it must be at the time of imposing the fine or imprisonment, and form a part of the same judgment. We can not think the Legislature intended the power should continue to exist after defendant had been fined or imprisoned, as it would leave it in the power of the court, at any time thereafter, to' inflict a second punishment. Nor can we suppose it the intention of the statute that the order should precede the judgment for imprisonment or a fine, as it would involve the absurdity of a ■double punishment, or of two distinct judgments, each punitory in its nature, given at different times, for one and the same offense.
For these reasons, as there is no judgment for imprisonment or a fine, we regard the order for the removal of the dam as erroneous. And here the question arises, whether, the error being in the judgment itself, and not in a part of the record preceding the judgment, we can do any thing more than reverse the judgment. We clearly have no power to correct the error by rendering such judgment as the court below should have given; and oases were cited to show the record cannot be remitted to the court below for that purpose: — 2 Met. 419; 5 B. & C. 395; 7 Adol. & El. 58.
We should feel bound by these cases, if the plaintiff in error had placed himself in a position to demand, as a matter of strict right, a reversal of the judgment on the ground stated. This he has failed to do, for no complaint is made by him of the judgment itself, in his assignment of errors, and if any of the alleged errors assigned on the bill of exceptions are sustained, the judgment may be reversed on that account, and the cause be remitted to the ■court below for a new trial.
Twenty one errors are assigned in all. Five of them, from seventeen to twenty one inclusive, are errors alleged to have been committed byathe court, mlrefusing to grant a new trial. The affidavits on which the motion was made, have been returned with the record and bill of exceptions, into this court; but as they form no part of the record, or bill of exceptions, we can not look into them for the purpose of determining whether the court erred or not in, denying the motion.
All of the other assignments of error are on the bill of exceptions. The first and second are on the refusal of the court to allow one of the jurors to be asked what his opinion was respecting mill dams generally, in that part of the country; and in permitting him to be sworn as a juror, after stating that he had formed an opinion as to whether mill ponds in that part of the country were nuisances, &e. The bill of exceptions states, that after the jury had been called, the court asked defendant’s counsel if he had objection to any of the jurors, and that he asked them whether they or any of them had formed or expressed any opinion respecting the guilt or innocence of the defendant, of the charges contained in the indictment; and that one of the jurors stated that he had formed, and had, an opinion as to whether or not mill ponds in that part of the country, with which he was acquainted, were nuisances, when the water covered a large ..surface, &cv The defendant’s counsel then asked, What is your opinion respecting mill dams generally in this part of the country? The question was objected to, and the objection sustained by the court. Defendant’s counsel then objected to the competency of the juror, which was also overruled. It does not appear the juror was challenged, or that his, answers to the questions put to him were on oath. The whole proceeding was irregular. He should have been, challenged, and sworn to answer such questions as might be put to him, touching his competency as a juror in the cause. As this was not done, there is no question of law in this part of the bill of exceptions to be reviewed.
The third error assigned, is that Lucius Beall was al lowed to serve as a juror. He was challenged, and on his voir dire, stated that he had formed, and had, an opinion that mill dams generally in that part of the country were nuisances, and created malaria, and thereby produced disease; and when the water is dammed up, and the pond covers a large surface, and is filled with vegetable and other filthy or decaying matter, it is a cause of disease: that all the mill dams with which he was acquainted, he believed to be nuisances, and that they produced disease: that he was acquainted with only three or four mill dams in that section of the country, and he believed that all the mill dams with which he was acquainted were nuisances, and produced disease and sickness; that he was not much acquainted with the dam in question, and had not formed or expressed any opinion regarding it.
It is quite evident that, with his preconceived notions against mill dams in that section of the country, he could not sit and hear the evidence and weigh it with the impartiality a juror should. The question of nuisance or no nuisance is one of fact to be found by the jury; and he says that, in his opinion, mill dams generally in that part of the country are nuisances, and produce disease, and that all the mill dams with which he is acquainted, he believes to be nuisances. By this we understand that, in his opinion, as a general rule, mill dams are nuisances, and such as are not are exceptions to the rule. We think the juror should have been rejected.
The court likewise erred in not permitting defendant’s counsel to ask Randall, a witness for the People, whether there was not an agreement between him and others who had sued defendant for flowing their land, to suspend the prosecution of their suits until defendant was tried on the indictment; and also in not allowing defendant to prove by the witness that, after the civil suits were commenced, there was an agreement between the parties to such suits to get defendant indicted, and in that way procure a removal of the dam. The evidence was admissible to show the interest of the witness in the public prosecution, and the influence it might have on his testimony for the People.
The court should have permitted defendant to prove by Gilbert, that Aldrich, Shoudler, and Barnhart, were acquitted on the merits on the trial of the indictment against them for a nuisance, when they were the owners of the dam. The evidence should have been admitted to go to the jury for their consideration, in connection with the record showing their acquittal. As two distinct facts must be proved to sustain an indictment for a nuisance, viz: the nuisance, and defendant’s connection with it in a way to make him criminally liable, it was competent for defendant to show, in the way he proposed, on what ground the acquittal was had-
And the court afterwards erred in charging the jury that the former indictment and acquittal under it had nothing to do with the pending prosecution. The court, we think, should have charged, that the record of the former prosecution was evidence the dam was not a nuisance at the time the indictment mentioned in it was found, but not that the dam had not since become a nuisance, by some change in the use of it, or otherwise.
Judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). The court held that the $315 was a reasonable allowance for the services rendered. Kelator claims that his fees for these two items are fixed by section 11219, 3 Comp. Laws. The clauses of the statute relied on are that the commissioner shall be allowed “for drawing every report, and all schedules to be thereto annexed, in pursuance of an order of reference to him (except in case of reference to compute amount due on mortgage), 20 cents for each folio,” and “for certifying each exhibit shown to a witness, 25 cents.”
The relator, as master in chancery, was not acting in a ministerial, but' in a judicial, capacity. He was not directed by the order to take and return to the court testimony for its action. It is doubtful if he was required to reduce to writing any testimony which he deemed it proper to take. He was to pass upon the various receipts and expenditures of the receiver’s account, and determine whether they were legal, correct, and proper. All the exhibits were already in court, and were not shown a witness, within the meaning of the statute.
The order denying the petition was correct, and the writ is denied.
The other Justices concurred. | [
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] |
Moore, J.
The plaintiff obtained a judgment of $150 against defendant. The case is brought here by writ of error. The plaintiff is engaged in the confectionery and bakery business. The defendant is a corporation organized under and in pursuance of the laws of the State of Michigan, doing an accident and sick-benefit insurance business, with its principal office located at the city of Grand Rapids, Mich. In October, A. D. 1894, the plaintiff joined the defendant association. There was issued to him a policy of insurance containing the following agreement :
ct First. If, at any time after this certificate has been in continuous force and effect for ninety consecutive days, said member shall, through any sickness or disease mentioned in Schedule A on the back of this certificate, beginning after the expiration of the above term, become totally disabled, and such disability shall, independent of all other causes, wholly and continuously disable and prevent said member from prosecuting any and all .kinds of business, upon satisfactory proofs to the association of such total and continuous disability said member shall be entitled to receive at the rate of ten dollars per week,, after the first week, during the time he is continuously confined to his bed, or continuously confined to the house, and subject to the personal calls of a registered physician in good stand ing, not to exceed thirty weeks in any one illness. But if the same member is sick for thirty continuous days, which sickness begins after ninety days from date of certificate, he shall receive, under the terms of this certificate, payment from the date of sickness, without deduction for the first week.”
The diseases covered by Schedule A, among many others, are inflammation of the lungs and la grippe.
The plaintiff kept up his payments from October, 1894, to the 12th day of September, A. D. 1899, paying in advance. It is the claim of the plaintiff that, as the result of la grippe, he had a hemorrhage, which made it necessary for him to call a doctor, and that his illness continued so that he is entitled to recover for a period of 15 weeks. After his illness began, the company was notified of it; and one of its physicians visited the plaintiff and obtained some of his sputum, which the physician examined, and also submitted to another physician, both of whom concluded the plaintiff’s disease was consumption. On the 22d of January, 1900, the manager of the company wrote Mrs. Hoffman, among other things:
“There are two reasons why this claim, in accordance with Mr. Hoffman’s policy contract, is not a legal claim against this association: In the first place, we do not, and never have, paid for consumption. In the second place, article 1, on the face of Mr. Hoffman’s policy, states that the claimant,, in order to be entitled to benefits, must be entirely confined to the house. In accordance with the above statements, Mr. Hoffman’s claim against this association has been rejected.”
In his testimony as a witness the manager testified, among other things:
‘ ‘ The reason I would not submit to paying this claim was because the physicians claimed that he had consumption. I had arrived at the conclusion that the doctors knew what ailed him. I refused to pay the claim because he had hemorrhage of the lungs. The doctors said that resulted in consumption.”
The articles of association provided for an arbitra tion in case the validity of a claim was in question. March 19, 1900, a stipulation was filed in which it was stated plaintiff asserted a claim which defendant disputed, waiving an arbitration, and consenting that suit might be brought, and that a judgment of the court should be binding upon the parties.
It is the claim of defendant that:
“In order to entitle the plaintiff to maintain a suit upon his policy, he must show:
“1. His sickness, and its nature and duration.
“ 2. That it was one of the diseases mentioned in Schedule A of his certificate.
“3. That these facts must be made to appear in a final proof furnished to the association within 30 days after the end of the sickness for which indemnity is claimed.
“4. That a period of three months, stipulated for the investigation of the claim by the association after receipt of the final proofs, has elapsed.”
The first two of these propositions áre true; but in view of the rejection of the claim, not because of the failure tO' comply with the last two propositions, but because it was claimed plaintiff had a disease not within the terms of the policy, and because he was not entirely confined to the house,- we think defendant cannot now insist upon a compliance with the third and fourth propositions. The case is ruled by O'Brien v. Insurance Co., 52 Mich. 131 (17 N. W. 726); Young v. Insurance Co., 92 Mich. 71 (52 N. W. 454).
It is insisted the court erred in charging the jury as te the degree of illness required to entitle plaintiff to recover. It is said by counsel:
“The standard of the degree and severity of the illness during which the policy holder was entitled to recover indemnity, as expressed in the contract itself, is that he must be continuously confined to his house, and subject to the personal calls of a registered physician in good standing. The meaning of this language, upon its face, is very plain. He must be so ill as to need the attendance of a physician at his house. It is difficult to see how the language of the contract can be construed to mean anything else without doing violence to the plain meaning of the words employed.”
The court charged the jury as follows:
“First, then, what is meant by the provision in this policy, ‘continuously confined to the house, and subject to the personal calls of a registered physician in good standing ? ’ A contract of insurance is to receive a reasonable construction, so as to effectuate the purpose for which it was made. At the .same time, the proper force and effect should be given to all the language used, for the purpose of guarding the association against fraud and imposture. Provisions such as the one under consideration are inserted for this express purpose, as well' as for other purposes.
“The object to be accomplished by this contract is to indemnify the plaintiff from loss from total or continuous disability to prosecute any and all kinds of business! And it is provided, in substance, that he shall receive $10 per week during the time he is continuously confined to the house, subject to the calls of a physician in good standing. That the plaintiff was totally and continuously disabled from prosecuting any business during the time claimed does not appear to be questioned by the defendant in this case. But it insists that he was not continuously confined to his house. Was he, or was he not ? That is the question.
“I charge you, gentlemen, that, to constitute a compliance with this provision, it is not necessary that the plaintiff should remain in the house continuously during the entire time of disability; that to step out of doors now and then, or to occasionally go to the office of his physician, would not be a violation of this clause, or defeat plaintiff’s right of recovery. It may, be that an occasional airing is essential to a speedy recovery. A rule which would make nugatory a contract having for its special object indemnity on account of sickness, because the insured took an occasional and necessary airing, would be unreasonable. Was the plaintiff sick, and with a disease covered by his policy, to the extent that he was totally disabled from prosecuting any business ? and was he continuously confined to his house on account of such sickness, to the extent that he was necessarily and in good faith there the larger portion of his time, and only went forth either from necessity for consultation with, or by direction of, the physician in whose charge and care he was ? An answer to this question will determine this branch of the case. * * *
“ So, gentlemen, I charge you that if you find from the testimony in. this case that the plaintiff was continuously confined to his home on account of a sickness or disease covered by the terms of his policy, to the extent that he was necessarily, in good faith, there the larger portion of the time, and only went forth either from necessity for consultation with, or by direction of, his physician, Dr. Barth, in whose charge and care he was, if you so find, then and in that case the plaintiff is entitled to recover for the term so continuously confined, at the rate fixed in the policy, — $10 per week.”
Questions of a similar character to this were involved in Turner v. Casualty Co., 112 Mich. 425 (70 N. W. 898, 67 Am. St. Rep. 428), and Hohn v. Casualty Co., 115 Mich. 79 (72 N. W. 1105). A reference to these cases will make an extended discussion here unnecessary. The charge of the court followed these cases.
It is said the record does not justify the suggestion of the court that plaintiff left his home and went to Chicago-by the advice of his physician. Counsel must have overlooked the testimony of Mrs. Hoffman, who said:
“ He had a hemorrhage at that time. It was September 11th. He was taken to his bed at that time. He was in the house from that time — oh, six weeks, I guess, or something like that — until he went to Chicago. He went down to the doctor’s to. get some medicine, and the doctor thought it would be a good change for him to get out, because we lived at the rear of the store, and to get away from business. He thought it would help him. He was not able to do any work during this time. I think the date when he went away was about the 25th of October. He didn’t go out only just the day before, when he went for a walk, or he went away. He went to Chicago because the doctor advised him to. He thought it would be good for him.”
The plaintiff was a witness and was present at the trial. There was a conflict in the testimony as to whether his illness was consumption or not. The judge said to the jury:
“If you find that the plaintiff, during the time of his disability, was suffering with the disease known as ‘ consumption,’ I charge you that he cannot recover under any circumstances in this case, and your verdict must be, ‘No cause of action.’”
The question was submitted to them. We think the case was properly tried.
Judgment is affirmed.
Long and Grant, JJ., concurred with Moore, J. | [
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Grant, J.
(after stating the facts). The court very clearly instructed the jury in accordance with the rule in Friar v. Smith, 120 Mich. 411 (79 N. W. 633, 46 L. R. A. 229). There was evidence that neither the defendant nor his vendee had any knowledge that either was paying plaintiff a commission. Plaintiff, under his own testimony, was not a middle man, under the rule of that case. He negotiated the trade himself with the defendant, who did not know who the real vendee was until he had executed his contract to the plaintiff.'
Plaintiff was not a real-estate dealer, and never attempted to negotiate a sale before. This fact, and his relations and dealings with the defendant, were competent ■evidence for the jury to consider in determining whether, even under the plaintiff’s own statement, there was an implied contract of employment.
Judgment affirmed.
The other Justices concurred. | [
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] |
Moore, J.
Prior to February, 1898, Mrs. Waters,-one of the complainants, was the owner of a lot and two houses in the city of Grand Rapids, upon which there was due and unpaid a mortgage for the principal sum of $4,000, and $485 of interest and back taxes. The defendant was the owner of two lots, which were unincumbered. Mrs. Waters, through her husband, the other complainant, who acted as her agent, placed this property with Mr. Griffiths, a real-estate agent, for sale or exchange. He had some talk with defendant about trading his two lots for the interest Mrs. Waters had in her property. Mr. Gillies, Mr. Griffiths, and Mr. Waters looked at the property of Mrs. Waters; and, after some negotiations, about which the parties differ, on the 11th of February, 1898, Mrs. "Waters made a warranty deed of her lot and two houses to Mr. Gillies, which deed, among other things, states:
“First party shall warrant and defend the same against all lawful claims whatsoever, except a certain mortgage of $4,000 and accrued interest thereon, recorded in L. 156, on p. 424, and also the taxes for the years 1895, 1896, and 1897.”
There is no assumption of or agreement to pay any part of the incumbrance by second party in this deed. This deed was not recorded.
Upon the same date Mr. Gillies made to Mrs. Waters a warranty deed of the two lots, and she gave him a note reading as follows:
“$485.00. Grand Rapids, Mich., Feb. 11th,'1898.
“Three years after date I promise to pay to the order of A. R. Gillies four hundred and eighty-five dollars at the Fourth National Bank, value received, interest at seven per cent, per annum, payable semi-annually until paid. Lillie A. Waters.
“Secured by real-estate mortgage.”
—And a mortgage upon the two lots to secure the payment of this note; the mortgage stating, “ This mortgage is given as part of the purchase price of the above premises.”
On the following day Mr. and Mrs. Waters gave to Mr. Gillies a quitclaim deed of the lot and two houses; Mr. Gillies assigning, as a reason why he wanted it, that he wanted the signature of Mr. Waters to the conveyance giving him title. This deed was put upon record. Mr. Griffiths was paid a commission of $50 by Mrs. Waters. He received no compensation from the defendant. On the 11th of August, 1899, Mrs. Waters conveyed to Mr. Waters an undivided one-half interest to the property Mr. Gillies had deeded to her, “intending that the parties be tenants by the entirety.”
After Mrs. Waters made the deed to Mr. Gillies, he put the property under the control of Mr. Griffiths, who caused some repairs to be made to the premises, and collected the rent for Mr. Gillies, but paid nothing upon the mortgage or upon the back taxes. The $4,000 mortgage was owned by a bank, which commenced foreclosure proceedings June 32, 1898. Mr. Waters owned the mortgaged premises before his wife did, and signed the note and mortgage held by the bank. The bank, when it .commenced foreclosure proceedings, notified Mr. Waters it would ask for a personal decree against him, and took such a decree November 8, 1898, in which a sale was authorized after June 9, 1899. The property was advertised to be sold August 12, 1899. On the 10th of August Mr. Waters caused $505 to be paid to the bank, the payment of which, he claims, entitled himself and Mrs. Waters to a discharge of the mortgage Mrs. Waters had given to Mr. Gillies; and, upon the latter’s refusal to discharge the mortgage, the complainants, filed this bill to obtain a discharge. Mr. Gillies answered to the bill, and filed a cross-bill asking for a foreclosure of the mortgage. The case was tried in open court. A decree was entered dismissing the cross-bill and canceling the' mortgage. The case is appealed to this court by the defendant.
The testimony is very contradictory. The claim of the solicitors for complainants is:
“ The decree in this case is right for two reasons:
“1. The consideration for the $485 mortgage was that Gillies was to take care of the back taxes and interest against the Crescent-avenue property to that amount, which Waters was primarily and personally bound to pay. Gillies failed to take care of the $485. On the other hand, Waters was obliged to, and did, pay the amount, with interest. Therefore the consideration for the mortgage has utterly failed. It would be inequitable to enforce it, and it should be discharged.
“2. Mr. Waters, having been obliged to pay the $485 which Gillies should have paid, is entitled, in equity, to set this off against the note and mortgage, and the mortgage should be discharged.”
On the part of the defendant it is claimed that, while he took the property from Mrs. Waters subject to the mortgage and back taxes, he did not assume them, and was under no obligation to pay them; that he did not agree to pay the $485, and such an agreement was not the consideration for the mortgage. He asserts that in the trade the parties valued Mrs. Waters’ real estate at $5,000, upon which there were incumbrances, including the taxes, amounting to $4,485, leaving an equity in the property of $515; that his two lots were valued at $1,000, and after deducting from that amount the equity in the real estate of Mrs. Waters, $515, it left $485; that for his two lots she traded him her equity in her real estate, of $515, and gave him a mortgage back on his two lots, of $485, making the $1,000 at which his lots were valued in the trade. He insists the mortgage was given just as stated in the mortgage, as part of the purchase price of the premises.
Mrs. Waters and Mr. Gillies did not see each other or have any talk with each other in relation to the trade. The claim of complainants, so far as the record goes, is based upon the testimony of Mr. and Mrs. Waters. The former testified: “Mr. Griffiths came into the store the next morningand said that Mr. Gillies would not trade the property in that way unless the back taxes and interest were paid up. I told Mr. Griffiths that I could not pay him; that I did not have the money to take out of my business, and I could not pay the taxes and interest at that time, but that if he would pay them I would give him a mortgage back on these lots to secure him for the amount of the taxes and interest, provided Mrs. Waters was willing;” .and that this was agreed to. He testified he had examined the record before giving his testimony, and found the quitclaim deed upon record, but the warranty deed was not recorded; that he read the warranty deed through before it was signed, and knew the difference between simply conveying subject to an incumbrance and assuming the incumbrance; and that there was a statement in the warranty deed that Mr. Gillies was to pay up the taxes for 1895, 1896, and 1897, and the interest on the mortgage.
Mrs. Waters testified as to what occurred when the papers were brought to the house for her signature, in response to questions put to her, as follows:
“Q. What was the talk? What was said at that time between the three of you there about the back taxes and the interest on the hill property ?
“Mr. Wolf: That is objected to as before, — as being Incompetent, irrelevant, and immaterial.
“A. Mr. Griffiths explained to me as it was in the deed, —that they were to pay the 1895, 1896, and 1897 taxes and interest, and we were to give a mortgage on the south property for a guard for them.
“Q. As a guard for them?
“A. Yes, sir; because Mr. Waters did not feel able to spare the money, and rather than do it he would prefer to give a mortgage on the lots.
“Q. Do you remember how much, or about how much, those items figured up ?
“A. About $485.
“Q. Who figured them up ?
“A. I think they both figured them up together.
“Q. Mr. Waters and Mr. Griffiths?
“A. Yes, sir.
“Q. Can you say whether anything on that subject was put in the deed ?
“A. It was; it was in the deed.
“Q. State as near as you can what was in the deed,— what the deed said about that.
“A. I don’t know as I could do that.
“Q. Not the exact words, but the substance of it.
“A. I remember very emphatically, more than anything else but the interest, of seeing these figures on the deed at the last end of the deed.
“Q. ’95, ’96, and’97?
“A. Yes, sir; it was 1898 then, but the 1898 taxes were not due. Mr. Griffiths spoke of it.
“Q. But the exact language that was used there, you can’t give?
“A. No, sir.’’
When the warranty deed was produced, it was evident the parties were mistaken as to what it contained. Doubtless they were honestly mistaken, but it is a test of their recollection of what occurred. Mr. Griffiths and Mr. Gillies both testified that the mortgage was not given to indemnify Gillies for paying the back taxes and interest, but was given to make the equities in the two properties alike. Mr. Griffiths had been in the real-estate business some years, and was in the habit of drawing deeds and mortgages. As before stated, Mr. Waters knew the difference between accepting a deed subject to incumbrances and accepting one in which the grantee assumed the incumbrances. In view of these facts, it is difficult to account for the statement contained in the deed, if Mr. Gillies agreed to pay the interest and back taxes. If Mr. Gillies agreed to pay the $485 interest and back taxes, one would suppose the agreement would be put in the deed. Another significant fact, though not controlling, is that, some months after the mortgage was given, Mr. Griffiths, acting for Mr. Gillies, informed Mr. Waters that Mr. Gillies desired and expected to sell the mortgage, and, to enable him to do so, desired to borrow an abstract of the property which Mr. Waters had. Mr. Waters let him have the abstract. Other facts appear in the record which, though not important in themselves, taken in connection with the other testimony, lead us to conclude, from a perusal of the entire record, that complainants have failed to establish their case by a preponderance of evidence, and that the preponderance of the evidence is the other way.
The decree of the court below is reversed, and one will be entered here in accordance with the terms of the mortgage.
Montgomery, 0. J., Hooker and Long, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
This action is ejectment. It is complicated by the fact that two separate pieces of property are involved, and as to each numerous titles are to be considered. One description of property, referred to in the case as “acreage property,” is described as the W. § of that part of the N. W. ^ of the N. E. J of section 24, town 4 S., of range 19 W., which lies south of the territorial road. The other property comprises lots in B. C. Lewis and Others’ addition to Benton Harbor, and in block 31 of the original plat of Benton Harbor. The cáse was tried before the court without a jury, and determined upon a special finding of facts and law, to which reference will be had in proper order.
Considering first the acreage property, the title shown by plaintiff was derived through Belmont C. Lewis. Lewis acquired his title by conveyance from Green and Willard, who held a certificate of purchase. After conveying to Lewis, Green and Willard assigned their certificate to James E. Miller, and the lands, were patented to him. It is contended that plaintiff cannot attack this patent in an action of ejectment. The authorities seem to sustain the defendant’s contention that a prior equitable claimant should make his attack upon a' patent from the government by a proceeding in chancery. See Tied. Real Prop. § 746. In this State the legal title must prevail in ejectment. See Buell v. Irwin, 24 Mich. 145; Harrett v. Kinney, 44 Mich. 457 (7 N. W. 63). The court, however, finds that plaintiff, and those under whom he de rives title, had maintained 15 years’ adverse possession, and this would be sufficient to cut off the Miller title, and vest the plaintiff with the legal title as against the Miller claimants.
The court further finds:
“ November 4, 1869, Lewis conveyed an undivided one-half of these lands to one Boughton. Boughton conveyed the same to Hurley and McOmber, August 13, 1883. The title of Hurley and McOmber became vested in the defendant on July 15, 1889. By a chain of deeds the defendant thus apparently became the owner of one undivided one-half of the land.
“ On September 25, 1867, Lewis mortgaged the lands to R. D. Parker. Parker foreclosed his mortgage in chancery, and at the foreclosure sale bid off an undivided one-half of the lands. I find this to be the one-half which Lewis had not conveyed away, and that Boughton and Parker then became the owners, each, of an undivided one-half of the lands. January 16,1882, Parker conveyed to one Cook, and on January 17, 1882, Cook conveyed to the plaintiff. The plaintiff thus became the owner of an undivided one-half, through the Parker deed.
“ The plaintiff, however, entered upon the lands in 1887, and occupied the whole, claiming to be the owner of the whole premises. The foundation of this claim is as follows: When Lewis conveyed to Boughton, November 4, 1869, he took back a mortgage for $3,000 from Boughton upon the lands conveyed. This mortgage was assigned to plaintiff by Lewis, October 21, 1870. The mortgage was foreclosed in chancery, and on April 10, 1877, the plaintiff bid in an undivided one-half at such sale.
“I find that Boughton practically abandoned the premises in 1872, and left Lewis in the sole occupancy. Lewis occupied the same until April, 1874, when he died, leaving a widow. By his will Lewis devised these lands to his widow. She occupied these premises till 1887, when the plaintiff went into possession, and he remained in possession till 1889. June 28, 1887, the widow conveyed the lands to the plaintiff. I find that from 1872 there was adverse possession by Lewis as against Boughton till Lewis’ death, in April, 1874, followed by adverse possession by the widow till she conveyed to the plaintiff, in 1887, and that this was followed by adverse possession by the plaintiff till. 1889. The adverse possession as against Boughton and his privies and grantees, therefore, lasted more than fifteen years.”
The defendant excepts to this finding that title to the Boughton interest was acquired by adverse possession. We cannot discover that this finding is supported by the testimony. It must have been based upon a misapprehension of legal principles. We are not able to find anything showing that Boughton abandoned the premises, unless leaving his co-tenant in charge can be deemed an abandonment. Furthermore, Lewis, having assigned to the plaintiff the mortgage of Boughton, was not in position to assert title by adverse possession against this interest until a right of entry had been acquired by foreclosure ; particularly as, in the meantime, he (Lewis) was a tenant in common with Boughton, and his possession was presumptively in the interest of his co-tenant. We discover no evidence in the record of any actual ouster of Boughton. Furthermore, plaintiff testifies that he took possession under his foreclosure of the Boughton interest, and understood that the remaining Lewis interest, then held by Parker, was entitled to possession of the other 'undivided one-half. This possession of plaintiff was claimed to have been taken in 1877. Wé find that, while the adverse possession found by the court had the effect to cut off the Miller title, it did not defeat the Boughton title, which subsequently vested in the defendant. The commissioner’s deed on foreclosure of the Boughton mortgage did not cover this land at all. The title, therefore, derived through Lewis, was vested one-half in plaintiff and one-half in defendant.
Plaintiff offered in evidence a tax deed to one Ida M. Allen, and a conveyance by her to plaintiff, bearing date December 23, 1897. But the declaration counts on a possession by plaintiff on October 1, 1897, and an ouster by defendants. It was held in De Mill v. Moffat, 49 Mich. 125 (13 N. W. 387), that a recovery could not be had in ejectment on a title acquired by plaintiff after the dates set forth in the declaration as those on which he had possession and defendant entered.
Defendant also offered in evidence tax deeds purporting to be for the taxes assessed on the acreage property in the years 1882, 1887, 1888, and 1889. As to the tax deed for the taxes of 1882, it appeared that the sale was made under the provisions of the tax law of 1885, which was held in Hall v. Perry, 72 Mich. 202 (40 N. W. 324), to be prospective only in its operation. See, also, Humphrey v. Auditor General, 70 Mich. 292 (38 N. W. 214). The deed in question, therefore, was void. As to the tax deeds on sales for taxes of the years 1887 and 1888, the record shows that there were no dollar marks or other indications to show that the figures in the decrees set opposite the descriptions indicated money. These decrees were void, under the rule in Millard v. Truax, 99 Mich. 157 (58 N. W. 70). As to the tax deed for the taxes of 1889, the court proceedings to enforce this tax were taken under the general tax law of 1889, and there was no subpoena issued directed to the party against whom the tax was assessed, and, of course, no return of inability to secure service. The court acquired no jurisdiction to decree the tax, under the case of Fowler v. Campbell, 100 Mich. 398 (59 N. W. 185). See, also, Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250).
This disposes of all the contentions relating to the acreage property, and our conclusion is that as to this property the plaintiff is the owner of an undivided one-half, and defendant of the other one-half.
As to the city property, the defendant makes no claim to any of the lots except through his tax deeds and adverse possession. There is no finding which supports the defendant’s claim of adverse possession. Defendant claims title to lot 13 of block 34 of Lewis’ addition by virtue of a tax deed for the taxes of 1893, sold for said taxes December 2, 1895, the deed to defendant bearing date June 3, 1897. The plaintiff introduced in evidence a certificate of cancellation of said tax deed, made by the auditor general under authority of 1 Comp. Laws, § 3921. That authority existed to so cancel the deed under the certificate has been held in numerous cases. See Kneeland v. Wood, 117 Mich. 174 (75 N. W. 461); Wood v. Bigelow, 115 Mich. 123 (73 N. W. 129); Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160); Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128).
A different question is presented as to lots 1, 2, and 3, block 31, of the original plat of Benton Harbor. Here, also, a certificate of cancellation was offered in evidence, which is of the same effect as in the case of lot 13, block 34, unless defendant’s claim that he entered into possession under these deeds, and had occupied the premises, claiming title, for a period of more than five years before the commencement of this suit, can be sustained. Defendant contends that a title thus acquired by adverse possession cannot be cut off by the cancellation of the tax deed. There is much force in this contention, but, as already stated, there was no finding of adverse possession by defendant. It is true, defendant, by his counsel, presented a request to the court to find that the defendant had been in occupancy of the lots for five years under the tax deeds, and has excepted generally to the refusal of the court to find as requested, and it is stated in the brief of defendant’s counsel that defendant testified without contradiction that prior to the commencement of this suit, for a period of more than five years, he had been in possession of these lots, they being inclosed, with other property he owned, by a fence. A careful reading of the testimony of defendant discloses that he gave no such testimony, nor is any testimony pointed out in the record which supports these statements.
Our conclusion is that the judgment should be affirmed as to the city property, and modified as to the acreage property, so-called. The plaintiff is entitled to recover one-half of the latter. The defendant will recover costs in this court, and the plaintiff will be awarded the costs in the court below.
The other Justices concurred. | [
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