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Per Curiam.
This case involves enforcement of the child support provision contained in the parties’ judgment of divorce. Defendant appeals as of right from an order entered December 6, 1984, which affirmed an assignment of defendant’s wages to cure his child support arrearage. We reverse.
Plaintiff and defendant were divorced on September 25, 1984. Plaintiff was awarded custody of the parties’ two minor children; defendant was ordered to pay child support of $60 per week per child. Pursuant to MCL 552.604; MSA 25.164(4), the judgment of divorce included an income-withholding provision which stated that "in the event a delinquency in the [Child] Support Account exists, upon proper notice an Assignment of Income shall issue”.
When defendant became delinquent in his child support obligation, plaintiff instituted contempt proceedings by filing a motion for an order to show cause. At an October 16, 1984, hearing on the matter before a Friend of the Court referee, plaintiff claimed defendant was approximately $750 in arrears. Defendant admitted he was behind in his payments, but disputed the amount of the arrearage. At the close of the hearing, the referee ordered an assignment of defendant’s wages in the amount of $130 per week.
Defendant’s circuit court appeal of the wage assignment was heard the same day. The court adopted the referee’s decision and accordingly issued an order of wage assignment in the amount of $130 per week. Defendant’s motion for rehearing was heard by the court on November 16, 1984. Defendant asserted that he had not received notice concerning a child support delinquency prior to the October 16 Friend of the Court hearing; plaintiff admitted that the hearing was on her personal show cause motion and not that of the Friend of the Court. The order of wage assignment was affirmed by order dated December 6, 1984.
Defendant does not contest the fact that he was in arrears at the time of the trial court’s order. Instead, he claims that the court followed improper procedure for ordering an assignment of his wages by failing to demand or enforce compliance with the notice provisions of GCR 1963, 727. That rule provides in pertinent part:
".3 Enforcement. The Friend of the Court shall assume responsibility for initiating and carrying on proceedings to enforce all support, visitation, and custody orders and judgments.
".4 Procedure in Support Payment Delinquencies.
"(1) If any person who has been ordered to make payments for the support of minor children has become delinquent in his payments, the Friend of the Court shall advise the delinquent by ordinary mail of such delinquency and demand payment therefor.
■ "(2) If no response is received within 14 days after the date of mailing such letter, the friend of the court may present to the court a petition for an order to show cause returnable within not less than 7 days why the delinquent should not be held in contempt.” (Emphasis added.)
The notice requirement of GCR 1963, 727 is paralleled in certain provisions of the Support and Visitation Enforcement Act (SVEA), MCL 552.601 et seq.; MSA 25.164(1) et seq., as amended by 1985 PA 210. At the time the order of wage assignment was entered, §4 of the SVEA required that support orders entered after July 1, 1983 (such as in the instant case), provide for an order of income withholding which "shall take effect when the requirement of section 7 is met * * *”. MCL 552.604. Section 7 provided:
"(1) If an order of income withholding is entered under section 4 and if the fixed amount of arrearage determined under section 11(1) of the friend of the court act is reached, the office of the friend of the court shall send notice of the arrearage to the payer by ordinary mail to his or her last known address. The notice shall state that the order of income withholding will take effect 14 days after the date of the notice, unless the payer responds by requesting a hearing or by paying the arrearage in full. A copy of the notice shall be sent by ordinary mail to each recipient of support. The payer may, within that 14-day period, request a hearing on the issue of whether the order of income withholding should take effect, in which case the order of income withholding shall be delayed pending the outcome of the hearing.
"(2) A referee or a circuit judge shall hold a hearing requested under this section within 14 days after the date of the request. If at the hearing the payer establishes that extraordinary circumstances beyond the control of the payer prevented fulfillment of the payment obligation, the referee or circuit judge may direct that the order of income withholding be delayed until such time as the referee or judge determines. If the referee or judge finds against the payer, the order of income withholding shall take effect immediately.
"(3) If the hearing provided under subsection (2) is held before a referee, the payer may appeal a decision of the referee to the circuit court within 15 days after the date of the referee’s decision. A circuit judge shall hear the appeal de novo.” MCL 552.607. (Emphasis added.)
Section 11(1) of the Friend of the Court Act, MCL 552.511(1); MSA 25.176(11)(1), referred to in the above statute, requires the office of the Friend of the Court to establish a self-initiating enforcement mechanism which causes a notice of arrearage to be sent upon the accumulation of a fixed amount of arrearage, which at the time of this case was not to exceed eight weeks’ payments.
In our opinion, the SVEA contemplates that an income-withholding provision contained in a judgment of divorce pursuant to MCL 552.604 or by operation of law, see MCL 552.604, as amended by 1985 PA 210, may be triggered only upon notice of an arrearage from the Friend of the Court.
In enacting the SVEA, the Legislature created a near-automatic wage assignment mechanism to enforce child support obligations. We are persuaded that it was not the Legislature’s intent in so doing to create a system whereby the parties themselves may trigger this powerful mechanism by instituting proceedings whenever they wish, independent of a determination and notice of arrearage by the Friend of the Court. This is not to say that a party to a judgment of divorce may not institute his or her own contempt proceedings to enforce the child support provisions of the judgment; clearly such an action survives the act. We merely hold that in order to invoke the automatic wage assignment provisions of the SVEA the statutory procedures outlined in § 7 as quoted above and as amended by 1985 PA 210, including notice of arrearage from the Friend of the Court, must be complied with.
In the instant case, plaintiff elected to institute her own contempt proceedings alleging an arrearage of her own computation rather than to follow the procedures set forth in the SVEA. As we have noted, she was free to do so and the court was free to fashion an appropriate remedy. However, until the notice requirements of MCL 552.607 were met and defendant had an opportunity either to request a § 7 hearing or to pay in full an arrearage calculated by the Friend of the Court, the court was precluded from making effective the income-withholding provision contained in the parties’ judgment of divorce. Since defendant was never given such notice and opportunity for a hearing, we reverse the order of wage assignment.
Plaintiff asserts that she acted appropriately under § 5 of the SVEA, MCL 552.605. We disagree. Section 5 (which was repealed by 1985 PA 210) provided relief for arrearages under support orders entered prior to July 1, 1983, the effective date of the SVEA, and thus is not controlling here. See, McLeod, Summary of the 1982 Friend of the Court Reform Package, 62 SBJ 430, 432 (1983). Plaintiff points to no other authority for the grant of the order of wage assignment in this case, and we are unable to find any. The SVEA does include a contempt sanction, MCL 552.631; MSA 25.164(31), but that procedure may only be initiated when a person who has been ordered to pay support fails to do so and a properly entered order of income withholding has proven unsuccessful. On these facts, therefore, MCL 552.631 is inapplicable.
Reversed. | [
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] |
Per Curiam.
Plaintiff Joseph Fritsch filed this products liability action against defendant, Magnaflux Corporation, for damages suffered as a result of his exposure to atmospheric pollutants manufactured by defendant. Since plaintiff was exposed to the pollutants in the course of his employment with Massey-Ferguson, Inc., all parties and the trial court properly treated this case as a third-party tort action under § 827 of the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq.
Plaintiff was employed from July, 1969, until May of 1982 at Massey-Ferguson. In July of 1982, plaintiff filed a petition for workers’ compensation benefits alleging lung pathology caused by his exposure to the pollutants manufactured by defendant. Intervening plaintiff, Sentry Insurance Company, is Massey-Ferguson’s workers’ compensation insurance carrier. As of the date Sentry filed its claim of appeal in this case, it had not yet paid any benefits on behalf of plaintiff inasmuch as his workers’ compensation claim was still pending.
On September 15, 1982, plaintiff filed the instant action in circuit court against Magnaflux only. The case proceeded through the discovery stages and, on December 18, 1984, a mediation evaluation was returned in favor of plaintiff in the amount of $40,000. Both parties accepted the mediation award and the case was noticed for dismissal on March 1, 1985.
On February 28, 1985, plaintiff and defendant stipulated to the addition of Eileen Fritsch as a party plaintiff and an order to this effect was entered. Plaintiffs then presented an ex parte order allocating the $40,000 judgment as follows: $26,000 to Joseph Fritsch for noneconomic losses, $12,500 to Eileen Fritsch for loss of consortium and $1,500 to Massey-Ferguson and its workers’ compensation carrier "to be held in an interest bearing account until a determination has been made by the Bureau of Workers’ Compensation as to whether Massey-Ferguson is in fact liable to the plaintiffs herein pursuant to the workers’ compensation act, less a one-third attorney fee”. Sentry had not yet intervened at the time this order was entered but has consistently asserted that the case was at all times "closely monitored” by its legal representatives.
Sentry alleges that it learned of the orders adding plaintiff Eileen Fritsch and allocating the judgment award in mid-March through communications with counsel for defendant. On March 21, 1985, Sentry filed motions to intervene and to set aside the order and judgment. Following a hearing, the trial court granted Sentry’s motion to intervene but denied its motion to set aside the judgment, which is now the subject of Sentry’s appeal as of right.
In its motion to set aside the February 28, 1985, order and judgment, Sentry relied on MCR 2.612(C) and alleged that the addition of Eileen Fritsch as a party plaintiff was an act of bad faith on the part of Joseph Fritsch who was attempting to deprive Sentry of its statutory right to offset third-party tort damages. Sentry further alleged that the award of $12,500 in favor of plaintiff Eileen Fritsch is excessive and unsupported by any evidence and that her damages were never considered by the mediation panel in evaluating this case. Sentry finally alleged that its statutory lien was against the entire judgment of $40,000, minus the costs of recovery.
Following argument on Sentry’s motions, the trial court ruled that it would not set aside its earlier order and judgment on grounds which could only properly be asserted by defendant Magnaflux. The court then considered Sentry’s independent interests in the 1985 order, judgment and proceedings and concluded that although Sentry did have a legal interest in the allocation of a portion of the $40,000 judgment to plaintiff Eileen Fritsch, Sentry had lost its right to assert that interest in the circuit court proceeding by its failure to intervene until after entry of the judgment. The court expressly found Sentry guilty of laches and denied its motion to set aside on that basis.
We agree that Sentry cannot assert defendant’s rights as a basis for obtaining relief from the order and judgment. However, we do not agree that Sentry was guilty of laches or was negligent in failing to intervene in this action until after entry of the judgment. Laches is an affirmative defense which bars a lawsuit under the proper circumstances. Technically, laches does not apply in the motion context, but we think that it was appropriate for the trial court to consider the principles underlying that doctrine in determining whether Sentry’s motion to set aside should be heard on the merits.
Sentry’s delay in intervening in this case is justified and easily understood under the circumstances. There is no obligation for a workers’ compensation insurance carrier to intervene in a third-party tort action in order to protect the statutory lien created and guaranteed under MCL 418.827(5); MSA 17.237(827)(5). Ohio Farmer’s Ins Co v Neff, 112 Mich App 53, 57; 315 NW2d 553 (1981). Although it may have been safer and wiser for Sentry to intervene at the onset of these pro ceedings in order to ensure adequate notice of all developments, there was no threat to its interests until the parties stipulated to the addition of Eileen Fritsch as a plaintiff and allocated a portion of the judgment to her for her loss of consortium claim. This development occurred only one day prior to the date set for entry of the judgment and dismissal of the case. When Sentry learned of this development only 2Vz weeks later, motions to intervene and to set aside the judgment were promptly filed. Under these circumstances, we do not find it inequitable to allow Sentry an opportunity to be heard on its objections to the allocation of the third-party judgment. See Lothian v Detroit, 414 Mich 160, 168; 324 NW2d 9 (1982). We therefore reverse the trial court’s order denying Sentry’s motion to set aside the order and judgment of February 28, 1985, and remand for consideration of Sentry’s motion on the merits.
On remand, the trial court will be presented with two distinct challenges to its February 28, 1985, order and judgment. Sentry alleges that the addition of Eileen Fritsch as a plaintiff constitutes an attempt on the part of Joseph Fritsch to avoid the set-off provision of MCL 418.827(5); MSA 17.237(827)(5) and is thus contrary to law. Sentry secondly argues that the trial court’s allocation of $1,500 to an interest-bearing account in favor of Massey-Ferguson and Sentry is inadequate since Sentry has a lien on the entire amount recovered by Joseph Fritsch after deducting the expenses of recovery.
With regard to Sentry’s challenge to the addition of Eileen Fritsch as a party plaintiff, the trial court should on remand consider the general prin ciples governing amendment of pleadings under MCR 2.118(A)(2) and (3) as well as this Court’s opinion in Treadeau v Wausau Area Contractors, Inc, 112 Mich App 130; 316 NW2d 231 (1982), lv den 417 Mich 892 (1983). The court may see fit to conduct an evidentiary hearing on plaintiff Eileen Fritsch’s damages, if any.
Regardless of how the trial court resolves the allocation of damages to plaintiff Eileen Fritsch, it will be necessary to additionally consider Sentry’s claim that it is entitled to a lien upon the entire amount awarded to Joseph Fritsch after the deduction of expenses. Sentry’s rights in this regard are squarely governed by MCL 418.827(5); MSA 17.237(827)(5), which provides:
"In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this action to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.”
The plain and unambiguous language of § 827(5) protects Sentry’s right to offset its workers’ compensation liability by the amount recovered by Joseph Fritsch in one of two ways: reimbursement or credit. On the date that Joseph Fritsch recovers his tort judgment, Sentry is entitled to have deducted from the amount payable to Joseph Fritsch an amount equal to "any amounts paid or payable” as workers’ compensation benefits resulting from the same injury. Joseph Fritsch then receives the balance of the judgment, if any. In this way, Sentry is reimbursed for monies spent directly from the proceeds of Joseph Fritsch’s third-party tort judgment.
The second method of protecting Sentry’s right of setoff is the creation of an automatic credit in favor of Sentry for workers’ compensation benefits that may become payable on behalf of Joseph Fritsch in the future. Thus, where Sentry has made no workers’ compensation disbursements and where none are payable under an order at the time Joseph Fritsch recovers his judgment, Sentry has no right of reimbursement since there is nothing for which Sentry need be reimbursed. Instead, Sentry is entitled to a credit on any future obligation in the amount recovered by Joseph Fritsch after deduction for expenses. Thus, Sentry will be excused from having to disburse workers’ compensation benefits to Joseph Fritsch in the future until its liability exceeds the amount recovered in this third-party tort , action. See Franges v General Motors Corp, 404 Mich 590, 615; 274 NW2d 392 (1979); Land v George Schmidt Co, 122 Mich App 167, 169-170; 333 NW2d 30 (1982), lv den 417 Mich 1083 (1983), and Powell v Keeler Brass Co, 135 Mich App 67, 72; 351 NW2d 896 (1984), lv den 421 Mich 856 (1985).
The judgment entered in this case allocates $1,500 to an interest-bearing account in favor of Sentry and Massey-Ferguson. Given the fact that Sentry had paid nothing in the way of workers’ compensation benefits on behalf of Joseph Fritsch and was under no order to pay benefits up to the time of the tort recovery, we conclude that the allocation of $1,500 in Sentry’s favor was error. On remand, the trial court shall determine the amount, if any, for which Sentry is entitled to be reimbursed from Joseph Fritsch’s award. Reimbursement and future credit should be calculated according to the formula set forth in Franges, supra.
Reversed and remanded.
This assumes that Joseph Fritsch’s workers’ compensation claim is either still pending or has been resolved against Sentry; otherwise, Sentry’s interest in this case is moot.
Implicit in Sentry’s argument is that the trial court should have allocated the entire amount recoverable by Joseph Fritsch to an interest-bearing account in Sentry’s favor. | [
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Shepherd, P.J.
Plaintiff, Edwin Zyskowski, commenced this wrongful death action as personal representative of the estate of his son the deceased, Bruce Zyskowski, who was struck and killed by a motorist during the early morning hours of March 15, 1980, while walking on Outer Drive in Detroit’s River Rouge Park. The complaint alleged negligence against the motorist, defendant Habelmann, and negligence and intentional nuisance against defendants City of Detroit and the Wayne County Board of Road Commissioners for their alleged failure to maintain the street lights along the road. From a March 8, 1984, jury verdict of no cause of action, plaintiff appeals as of right, alleging that there were a number of errors in the trial below.
Decedent was at the home of a friend drinking and playing cards before his death. Decedent’s brother testified that decedent consumed about four mixed drinks before leaving at about 1:30 a.m. He went for a walk in Rouge Park, as he often did at night. At about 3 a.m. he was struck by a vehicle driven by defendant Habelmann in the right southbound lane of Outer Drive about 600 to 800 feet north of Warren Avenue in Detroit. Habelmann testified that he was driving at between 25 to 30 miles per hour when he simultaneously saw and hit a brown object that appeared in his path. Over plaintiff’s objections, the court permitted Wayne County Medical Examiner Dr. Werner Spitz to testify that decedent had a blood alcohol level of .18 percent at the time of his death. Dr. Spitz opined that a person in that condition would likely have impaired judgment, tunnel vision and no depth perception.
Habelmann and the investigating police officer testified that the nearby street lights were not working at the time of the accident. Outer Drive is a county road over which defendant Wayne County Road Commission admitted jurisdiction for maintenance and repair. However, according to the testimony of officials from both the city and the county, although the county owns the lights, the city, pursuant to a 1928 agreement, was responsible for the maintenance and relamping of the lights. There was also testimony by a city official that the lights were strictly intended for ornamental use. Several city and county employees also testified that there had been discussions between the city and the county and within the city about making improvements to the lighting along Outer Drive in Rouge Park.
At the close of the proofs, the trial court directed a verdict for the. city on the negligence count. The jury found no cause of action on the remaining negligence and nuisance counts against all of the defendants. We reverse the verdict on the negligence count as to the county only and remand for a new trial. We affirm the jury’s verdict of no cause of action on the nuisance counts and on the negligence count against defendant driver. We also affirm the directed verdict in favor of the city on the negligence count.
I
Plaintiff first argues that the trial court should have instructed the jury that the county had the duty to maintain the lights along the county road rather than leaving resolution of the duty issue to the jury.
By statute, governmental units are immune from tort liability when engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). The design, construction and maintenance of a road constitutes the exercise of a governmental function. Potes v State Highway Dep't 128 Mich App 765, 768; 341 NW2d 210 (1983). However, a statutory exception to immunity provides that an agency is not immune from liability for improperly maintained roads under the agency’s jurisdiction. MCL 691.1402; MSA 3.996(102) states in part:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” (Emphasis added.)
Jurisdiction over county roads is expressly conferred upon the county in MCL 224.21; MSA 9.121, which provides in part:
"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.”
At trial, the city and county each denied responsibility for maintaining the lighting, although the county admitted that it had responsibility for maintaining Outer Drive, a county road. The case law is clear that MCL 691.1402 is to be strictly construed and "jurisdiction” is given a narrow interpretation. Bennett v Lansing, 52 Mich App 289, 294-295; 217 NW2d 54 (1974), lv den 399 Mich 840 (1977), Potes, supra, p 769. Governmental immunity limits liability to the single governmental agency which has jurisdiction of the road at the time of the accident. 128 Mich App 769. Jurisdiction of county roads is placed exclusively on the county by statute. Moreover, the county cannot divest itself of jurisdiction over county roads by a maintenance agreement with a local municipality, as was the case here. Bennett, supra; Potes, supra; Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich App 492; 333 NW2d 314 (1983). This Court stated in Bennett, supra, pp 295-296 (failure of the city to maintain a traffic light at the intersection of two state trunk lines):
"While at first blush it seems odd that the state must answer for the omission of a local unit of government, it must be remembered that if local units of government were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state.”
Since the city in the present case clearly did not have jurisdiction over Outer Drive, it is immune from tort liability for any alleged failure to properly maintain the road or lighting, and the trial court appropriately entered a directed verdict in favor of the city on the negligence claim. The duty, if any, to maintain the lighting rested with the county and will be addressed next.
Plaintiff requested an instruction "that maintenance of the highway includes maintenance of lighting along the highway”. The trial court refused to give the instruction and instead gave the jury a general instruction that the governmental agency having jurisdiction of the road had a duty to maintain the road in reasonable repair "so that it is reasonably safe and convenient for public travel”.
In effect, the court left the hotly contested issue of duty to maintain the lighting to the jury. We agree with plaintiff that the question of whether the county had a duty to maintain the lighting as part of the maintenance of the road under MCL 691.1402 is a question of law for the court and not a factual issue for the jury. See Anderson v Macomb Road Comm, 143 Mich App 735; 372 NW2d 651 (1985), Moerman v Kalamazoo Road Comm, 129 Mich App 584; 341 NW2d 829 (1983), rev’d on other grounds on reh 141 Mich App 154 (1985). The trial court’s failure to make this legal determination requires reversal.
As noted above, the liability of a governmental agency for injuries caused by improperly maintained roads is purely statutory. The statute, however, imposes an important limitation on liability:
"The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102).
The phrase "improved portion of the highway designed for vehicular traffic” is generally given an expansive interpretation. In Bennett, supra, a traffic light was held to be an integral part of the improved portion of a highway. Similarly, in Salvati v Dep’t of State Highways, 415 Mich 708; 330 NW2d 64 (1982), the Supreme Court held that traffic signs were part of the improved portion of the highway. The Supreme Court stated:
"A traffic sign, once erected, becomes an integral part of the physical structure of the highway, and thus the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs. A governing unit may incur liability under the broad concept of 'traffic sign maintenance’ in the following ways: for failing to properly maintain a sign placed on the roadway, O’Hare v Detroit, 362 Mich 19; 106 NW2d 538 (1960); for failing to erect any sign or warning device at a point of hazard, Bonneville v Alpena, 158 Mich 279; 122 NW 618 (1909); Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969); for positioning an improper system of signs on the roadway, National Bank of Detroit v Dep’t of State Highways, 51 Mich App 415; 215 NW2d 599 (1974); or for placing a sign which inadequately informs approaching motorists of a hazard, Lynes v St Joseph County Road Comm, 29 Mich App 51; 185 NW2d 111 (1970).” (Footnote omitted.) 415 Mich 715.
In Pate v Dep’t of Transportation, 127 Mich App 130, 135; 339 NW2d 3 (1983), this Court, relying on Salvati, held that once a traffic sign is erected, it becomes an integral part of the improved portion of a road and thereafter the statute imposes a duty to maintain the sign in proper repair.
Another panel of this Court recently observed that "the statutory duty extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel”. Moerman, supra, p 562. In the present case it is clear that the lighting on a road affects the safety of motorists using the improved portion of the highway. In many urban areas street lighting is an integral and necessary part of road design. We conclude that once the county installed the lights along Outer Drive, it assumed a duty to maintain the lights in proper repair. While the reasonableness of the county’s actions and the adequacy of the lighting (as well as the cause of the accident) were questions for the jury, the determination of which governmental agency had the statutory duty to repair and maintain the street lighting and whether the lights were part of the "improved portion” of the road were questions for the court. Accordingly the verdict with respect to defendant road commission’s negligence must be reversed.
II
The trial court gave the following instruction to the jury on plaintiffs intentional nuisance claims against both governmental defendants:
"Now a nuisance is a condition which is harmful, offensive or dangerous to persons or property.
"An intentional nuisance is one wherein the creator intended to bring about the condition which is in fact found to be a nuisance.
"Where a party intends to bring about a condition which is dangerous and the party knew or must have known that harm was substantially certain to follow as a result of the defendant’s actions, then that party may be found liable for an intentionally created nuisance.” (Emphasis added.)
Plaintiff had sought an instruction that substituted "might result” for "substantially certain to follow”. On appeal he again asserts that the "might result” instruction is the proper test. This issue is without merit.
The "substantially certain” test can be traced to footnote 2 of Justice Moody’s concurring opinion in Rosario v Lansing, 403 Mich 124, 143; 268 NW2d 230 (1978), which quoted the following language from Prosser, Torts (4th ed), § 87:
"Occasionally [intentional nuisances] proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiffs interests is substantially certain to follow.” (Emphasis in original.)
Since Rosario, this Court has consistently employed the "substantially certain” test given by the trial court in the present case. See Ford v Detroit, 91 Mich App 333; 283 NW2d 739 (1979), Cobb v Fox, 113 Mich App 249, 257-258; 317 NW2d 583 (1982), Ovist v Hancock, 123 Mich App 276, 278-279; 333 NW2d 250 (1983), Pate, supra, p 110 ("substantially likely”); Jenkins v Detroit, 138 Mich App 800, 806; 360 NW2d 304 (1984), Sanford v Detroit, 143 Mich App 194, 199; 371 NW2d 904 (1985).
In Keiswetter v Petoskey, 124 Mich App 590, 597-598; 335 NW2d 94 (1983), lv den 417 Mich 1100.34 (1983), this Court quoted the similar definition found in 4 Restatement Torts 2d, § 825:
"To be 'intentional,’ an invasion of another’s interest in the use and enjoyment of land, or of the public right, need not be inspired by malice or ill will on the actor’s part toward the other. An invasion so inspired is intentional, but so is an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm. It is the knowledge that the actor has at the time he acts or fails to act that determines whether the invasion resulting from his conduct is intentional or unintentional. It is not enough to make an invasion intentional that the actor realizes or should realize that his conduct involves a serious risk or likelihood of causing the invasion. He must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from his conduct.” (Emphasis added.)
The trial court did not err in using the "substantially certain” test rather than plaintiff’s unfounded "might result” instruction.
Ill
Defendant Habelmann offered Wayne County Medical Examiner Dr. Werner Spitz who was allowed to testify that a blood alcohol test performed at this office showed decedent’s blood alcohol content was .18 percent at the time of his death. Dr. Spitz added that, in this condition, a man of decedent’s age and weight would likely have significantly impaired judgment, tunnel vision, and no depth perception. Plaintiff, after voir dire, objected to the admission of this evidence on the ground that the foundation was insufficient. Plaintiff’s primary objection to this evidence is that although Dr. Spitz drew the blood from the body, he did not actually perform the blood alcohol test, and the defendants should have called the lab technician who performed the test, or at least the lab supervisor, Dr. Mumford. The court ruled that it was "satisfied that the integrity of the test result [was] preserved” and that "the proper procedures [had] been followed”.
Dr. Spitz testified that he performed the autopsy on decedent and drew the blood during the autopsy. He testified as to the manner in which the blood was taken and that he personally labeled the containers and put the samples in a refrigerator. Although he had no personal recollection of the event, he testified that the sample was picked up by someone in the laboratory that same day or the next. The laboratory is a division of the medical examiner’s office and located in the same building. Dr. Spitz testified that the alcohol level in the blood is measured by a gas chromatograph and explained what procedures were used and how the machine worked. He identified the name of the lab technician who performed the test and testified that it was done under the supervision of Dr. Mumford, who reviewed and signed the report. Dr. Mumford is in turn supervised by Dr. Spitz. Dr. Spitz further testified that there would never be a single mistake, that if there was a mistake it would affect all of the samples, and that there were control samples used in the procedure.
In Gard v Michigan Produce Haulers, 20 Mich App 402, 407-408; 174 NW2d 73 (1969), lv den 383 Mich 777 (1970), this Court, quoting from Lessenhop v Norton, 261 Iowa 44; 153 NW2d 107 (1967), set forth rules for admissibility of a blood sample analysis:
" '[T]he party seeking introduction must show (1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments used were sterile, (5) that the blood taken was properly preserved or kept, (6) and labeled, and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons under whose supervision the tests were conducted be established.’ ”
The factors set forth in Gard have been utilized since that time, and the Supreme Court subsequently cited the case as setting forth the foundation requirements for admission of blood test results. Hubenschmidt v Shears, 403 Mich 486, 490; 270 NW2d 2 (1978).
This Court has held that compliance with the first six criteria requires the testimony of the individual who took the blood sample. Rose v Paper Mills Trucking Co, 47 Mich App 1, 5; 209 NW2d 305 (1973), Clark v Flint; 60 Mich App 364, 367; 230 NW2d 435 (1975).
There can be no dispute that in this case the first six criteria were met by the testimony of Dr. Spitz. His testimony established that (1) the blood was timely taken, (2) from the body of Bruce Zyskowski (3) by Dr. Spitz, and (4) that the instruments he used were sterile. Additionally, the blood was (5) properly preserved and (6) labeled. Plaintiff argues that the remaining three criteria were not met.
Dr. Spitz did testify to the "method and procedures used” in moving the blood samples from the autopsy room to the lab within the medical examiner’s office, "the method and procedures used in conducting the test”, and "the identity of the person or persons under whose supervision the tests were conducted”.
Plaintiff’s argument is based on the assumption that each of these facts must be established by direct personal observation as to these particular blood samples. We disagree. Each of these three criteria are factual elements whose proof is necessary to lay a foundation for admission of the decedent’s blood alcohol content. Their purpose is to ensure that the blood sample and methods used to analyze the sample were reliable. See Gard, supra; Burke v Angies; Inc, 143 Mich App 683; 373 NW2d 187 (1985). Proof of these facts can be made based on the same evidentiary rules, by either direct or circumstantial evidence, that exist for the proof of any other facts. The proof required to establish these facts should be no greater than that required to prove any other fact at trial.
Dr. Spitz’s testimony was based on his personal knowledge of the routine practice of the medical examiner’s office, including the lab, which was under his auspices. This testimony was relevant and admissible under MRE 406 which provides:
"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
Plaintiff relies on Bauer v Veith, 374 Mich 1, 3; 130 NW2d 897 (1964), in support of his position that firsthand observation of the sample is required. The Supreme Court stated:
"The annotator of McGowan [v City of Los Angeles, 100 Cal App 2d 386: 223 P2d 862; 21 ALR 2d 1206 (1950)] sums up, and we adopt for civil cases as at bar, the consensus of reasoned authority ([21 ALR 2d 1216,] p 1220):
" 'Where it "appears that the various steps in the keeping and transportation” of the specimen, part or object from the time it was taken from the body until the time of analysis "were not traced or shown by the evidence” the identification of the thing analyzed is insufficient and the presumptions that official duty is properly performed and that public records are correct will not supply missing links in the chain.’ ”
Here, unlike in Bauer, Dr. Spitz was able to trace the sample from the time it left his hand, albeit by circumstantial evidence, based on the signature of the lab supervisor and the routine practice of his office.
Recently, this Court held the criteria in Gard were met despite the lack of testimony as to who transported the blood sample from the autopsy room to the laboratory. Burke, supra. The Court stated:
"We will not add a requirement that we must know exactly which of the three men carried the sample. What is crucial is that the methods were reliable, that we know who conducted the test, that the blood was timely taken from the particular individual and labeled, that the instruments were sterile and that the method and procedure used in transporting is known. We do not find this to amount to a break in the chain of custody, as the blood was in the custody of one of the three men. 143 Mich App 688.
However, another panel of this Court recently held that the sole testimony of a witness who compiled the test results of a paternity blood test was not sufficient to lay a foundation for admission since he could only testify to the usual procedures used by others in his department in drawing and identifying the blood samples. Willerick v Hanshalli, 136 Mich App 484, 489-490; 356 NW2d 36 (1984). While we agree that this testimony did not meet the foundational requirements of Gard, we disagree with any implication that testimony of the usual office procedure may not be used to establish the seventh, eighth and ninth requirements.
We conclude that Dr. Spitz’s testimony established all nine of the Gard criteria and the trial court did not abuse its discretion in ruling that a foundation for the blood alcohol test had been laid. We must keep in mind that the purpose of the Gard foundation is to ensure that the sample and the test results are reliable. Dr. Spitz’s testimony provided that assurance.
IV
During trial, in anticipation of the possibility that Dr. Spitz would be asked by defendant Habelmann to testify to the speed of the vehicle based on decedent’s injuries and vehicle damage, plaintiff sought a ruling on Dr. Spitz’s qualification to give such testimony. The court sustained plaintiffs objection but subsequently allowed Dr. Spitz to testify to the damage a vehicle would suffer in striking a pedestrian at various speeds. Dr. Spitz testified that at 25 to 30 miles per hour the pedestrian would be thrown onto the hood and perhaps break the windshield. At 45 miles per hour, the body would land on the roof, but the hood would be undamaged. At 60 miles per hour, the body might end up on the trunk of the car or miss the rear of the vehicle entirely as it fell. Dr. Spitz then stated that he had seen pictures of the damaged automobile in this case as well as a copy of the repair bill, and the police report. Previous evidence at trial indicated that the damage to the vehicle corresponded to the 25 to 30 mile per hour speed.
As counsel began to inquire into past testing done by Dr. Spitz on this subject, plaintiff objected and the court excused the jury. During voir dire, Dr. Spitz stated that he had participated in cadaver tests comparing vehicle speed to damage done to pedestrians and to vehicles and that the medical examiner’s office was doing such tests in conjunction with Wayne State University. He stated that he had previously testified as to his conclusions on vehicle speed based on such date and that, if allowed to offer his opinion, he would testify that Habelmann’s vehicle was moving at between 20 to 30 miles per hour at the time of impact. The trial court refused to allow the testimony, but declined plaintiff’s request made the following day to strike the testimony already given.
Plaintiff now claims that under Jackson v Trogan, 364 Mich 148, 157; 110 NW2d 612 (1961), this was reversible error because the medical examiner was, in effect, permitted to give an opinion on speed of the vehicle based solely on force of im pact. In Jackson, a state police officer who investigated an accident between two vehicles was asked to give his opinion on the speed of one of the vehicles. The officer had been a member of the state police for a little over a year, and testified that he had previously investigated "a few accidents”. 364 Mich 153. Over objection that the officer had not been qualified as an expert, the officer was allowed to opine, based solely upon a chart which correlated length of skid marks with speed of vehicles, that the vehicle in question had been going 80 miles per hour. The officer admitted he did not understand how the values on the chart had been arrived at, and he did not have the chart with him at trial. The Court, in reversing, cited Hinderer v Ann Arbor R Co, 237 Mich 232, 235; 211 NW 734 (1927), wherein the Supreme Court stated: "An estimate of speed based simply on an opinion of the force of impact is not evidence of speed.”
Dr. Spitz’s testimony is distinguishable from that rejected in Jackson. The Court in Jackson was concerned with both the lack of experience of the witness and the lack of a factual foundation. In contrast, Dr. Spitz had personally done tests on the damage to pedestrians and vehicles in relation to vehicle speed. Moreover, Dr. Spitz’s background and the factual basis for his testimony compares favorably with that of other witnesses whose testimony has been held admissible by this Court. See, Snyder v New York Central Transport Co, 4 Mich App 38; 143 NW2d 791 (1966), Anderson v Lippes, 18 Mich App 281; 170 NW2d 908 (1969), Hughes v Allis-Chalmers Corp, 96 Mich App 175, 179; 292 NW2d 514 (1980), Johnson v Secretary of State, 406 Mich 420, 435; 280 NW2d 9 (1979).
Dr. Spitz was well qualified by his knowledge, skill, experience, training and education to offer the testimony Habelmann sought to elicit. MRE 702. We conclude that the court could have admitted Dr. Spitz’s testimony as to vehicle speed. Thus the admission of his testimony, based upon hypothetical vehicle damage that led ineluctably to the same conclusion of vehicle speed, cannot be said to be either an error of law or an abuse of discretion.
In this issue, plaintiff also asserts that it was error for the court to refuse to allow off-duty Detroit Police Officer Thomas Clifford, who happened upon the accident scene shortly after the accident, to offer his opinion as to the speed of the Habelmann vehicle. The officer stated that he was a 15-year veteran of the Detroit Police Department during which time he had occasionally investigated accidents, but never an accident involving fatalities. The court allowed him to testify that, during the course of investigating automobile accidents, he had noticed a correlation between the amount of damage to a vehicle and the speed at which the vehicle was traveling; between how far the clothing of a pedestrian victim is spread out and the speed of the vehicle; and between the speed of the vehicle and the severity of the injury to a pedestrian.
The officer testified that at the scene he estimated the distances of the articles of clothing from the body. He did not measure the distances involved. The court sustained Habelmann’s objection to Officer Clifford’s testimony as to speed of the vehicle on the basis that his experience in such matters was insufficient. Plaintiff subsequently made an offer of proof that Clifford would have testified that defendant was going 45-50 miles per hour before the impact — double the speed limit.
The trial court did not abuse its discretion in determining that Officer Clifford was not qualified to give an opinion on speed. The proffered testi mony more closely fits the facts in Jackson, supra. Officer Clifford had neither the training nor the experience necessary to estimate the speed of Hablemann’s vehicle on the facts available to him. The distinctions between the experience, training and knowledge of the officer and that of Dr. Spitz provide ample justification for the admission of the testimony of one witness and the exclusion of testimony of the other.
V
Over plaintiff’s objection, the trial court instructed the jury on excused violation of the assured clear distance statute due to a sudden emergency. The instruction given conforms with SJI2d 12.01 and 12.02. Plaintiff contends that this was reversible error because no "emergency” existed within the meaning of that term, or, even if an emergency did exist, it was at least in part one of Habelmann’s own making.
Plaintiff relies primarily upon Vander Laan v Miedema, 385 Mich 226; 188 NW2d 564 (1971), in which the Supreme Court clarified the sudden emergency doctrine. In Vander Laan, the Supreme Court stated that to come within the purview of the sudden emergency instruction the circumstances of the accident must present a situation that is unusual or unsuspected.
Habelmann concedes that the circumstances of the instant accident do not fall within the "unusual” prong of the test for sudden emergency. The question then is whether the circumstances of the accident fall within the definition of "unsuspected”.
" 'Unsuspected’ on the other hand connotes a potential peril within the everyday movement of traffic. To come within the narrow confines of the emergency doctrine as 'unsuspected’ it is essential that the potential peril had not been in clear view for any significant length of time, and was totally unexpected. A good example of this can be seen in McKinney v Anderson, supra, [373 Mich 414; 129 NW2d 851 (1964)] where defendant rear-ended a plaintiff’s car which had stopped while pushing a disabled vehicle on the highway. Coming over the crest of a hill, defendant first saw plaintiff’s tail lights when he was 400 feet away. However, defendant did not clearly see the peril of plaintiff’s stopping until he was about 100-200 feet away, at which point it was too late to avoid a collision under the circumstances. Furthermore, the failure of the plaintiff to signal that he was stopping, coupled with the surrounding darkness, made the subsequent peril totally unexpected to the defendant.” Vander Laan, supra, p 232.
Plaintiff argues that the decedent must have been in clear view of Habelmann for a considerable period of time prior to the impact and therefore the potential danger was not "unsuspected”, because Habelmann would have had a clear view of objects to the extent illuminated by his headlights. However, our review of the trial testimony reveals that there was ample evidence that the decedent stepped from the right side of the road into the path of the moving vehicle immediately or shortly before impact, and that Habelmann had no opportunity to stop his vehicle before striking decedent, especially in view of the existing condition of the lighting. In fact, there is nothing in the record to indicate that the decedent was walking or standing in the roadway for any substantial period of time prior to the accident.
A party requesting the sudden emergency instruction is entitled to the instruction if there is any evidence presented of an emergency. Hunter v Szumlanski, 124 Mich App 521, 527; 335 NW2d 75 (1983), rev’d on other grounds 418 Mich 958 (1984); McKinney v Anderson, 373 Mich 414, 419; 129 NW2d 851 (1964). Accordingly, we conclude that the instruction was properly given, based on the evidence presented in this case.
VI
Plaintiff next argues that the trial court erred by denying his request for an instruction on "last clear chance”. SJI2d 14.01. The trial court premised its denial upon three grounds. The court expressed serious doubt about the continuing viability of the doctrine in the wake of the Supreme Court’s adoption of comparative negligence; the court noted that plaintiff had not pled "last clear chance”; and the court questioned whether there was sufficient evidence that Habelmann had the last clear chance to avoid the accident.
We find it unnecessary to consider the issue of whether the doctrine of last clear chance survived the adoption of comparative negligence, since the evidence did not warrant giving the instruction. We note, however, without expressing approval, that at least one panel of this Court has held that the doctrine survives. Wilson v Chesapeake & O R Co, 118 Mich App 123, 128-130; 324 NW2d 552 (1982), lv den 417 Mich 1044 (1983).
In order for last clear chance to apply, there must be evidence that plaintiff was either helpless or inattentive prior to the accident and that defendant had notice that plaintiff was helpless or inattentive. Zeni v Anderson, 397 Mich 117, 152-153; 243 NW2d 270 (1976). If defendant had either actual or constructive knowledge of plaintiff’s helplessness or inattention, then a jury instruction on last clear chance must be given.
In the present case, even it it is assumed that the decedent was either helpless or inattentive, it cannot reasonably be said that Habelmann had either actual or constructive knowledge of the decedent’s helplessness or inattention. There was no evidence to suggest that plaintiffs decedent was in the street and there to be seen in time for Habelmann to avoid the accident. Wilson, supra. Thus, the trial court did not err in refusing to give the instruction.-
VII
The verdict is reversed on the negligence count as to the Wayne County Board of Road Commissioners only and remanded for a new trial. The jury’s verdict of no cause of action in all other respects is affirmed as is the directed verdict in favor of the city. | [
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Per Curiam.
In this appeal as of right, defendant challenges a September 17, 1984, judgment entered pursuant to a jury verdict for plaintiff in the amount of $209,101.60. Defendant requests a new trial limited to the issue of damages, contending that the trial court erred reversibly when it granted plaintiff’s motion in limine and thereby excluded evidence at trial which pertained to profit margins in the construction industry. We affirm.
Defendant, a construction firm which specializes in planning, designing and building health care facilities, was awarded a contract for a 18.5 million dollar alterations and additions project at Gratiot Community Hospital. Defendant entered into a subcontract with plaintiff pursuant to which plaintiff agreed to do all of the concrete and reinforcing steel work. However, prior to actual com mencement of the work but after plaintiff had begun preparations, defendant discovered a longstanding union contract which required that union carpenters be used for this project. Defendant repudiated its subcontract with plaintiff because plaintiff did not employ union carpenters. Thereafter, plaintiff initiated the present breach of contract action.
At trial, plaintiff’s president testified that Kent Concrete, Inc., suffered lost profits totaling $209,101.60 as a result of defendant’s breach of contract. This figure was obtained by subtracting the projected costs associated with performing the contract from the bid price of $692,562. The result reflected a projected profit margin of 31 percent.
Prior to trial, defendant indicated that it would call other concrete subcontractors who had submitted bids on the project in order to refute plaintiff’s calculations. Allegedly, these witnesses would have testified as to (1) the costs of labor and supplies for similar projects and (2) the typical profit margin for construction contracts. However, plaintiff moved in limine to exclude testimony by contractors other than plaintiff and defendant, arguing that such testimony would be irrelevant. Defendant countered, arguing that evidence conerning standard profit margins in the construction industry, which are allegedly between five and ten percent, was relevant because it would tend to show that plaintiffs projected profit was based on erroneous estimates for supplies and labor costs. The trial court granted plaintiffs motion in part, holding:
"IT IS HEREBY DETERMINED that any reference, testimony, evidence or argument relating to profit margin, anticipated profit margin or industry standard of profit margin, by contractors other than Kent Concrete, does not intend [sic] to make the existence of any fact that is of consequence to the determination in this action more probable or less probable than it would be without the evidence, thereby making any such reference, testimony, evidence or argument not relevant therefor,
"IT IS HEREBY ORDERED that any such reference, testimony, evidence or argument is not admissible under MRE 402. '
"IT IS FURTHER DETERMINED that any reference, testimony, evidence or argument relating to the costs of labor and the costs of material as used by Kent in making its calculations for the bid and its calculations of the lost profit for the Gratiot Community Hospital Alterations and Additions project by contractors other than Kent Concrete, does tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without such evidence, thereby making any such reference, testimony, evidence or argument relevant, therefor,
"IT IS HEREBY ORDERED that any such reference, testimony, evidence or argument is admissible under MRE 402.”
The trial court determined that evidence regarding material and labor costs would be relevant to whether plaintiffs calculations as to damages were accurate. However, the trial court did not believe that industry-wide profit margins or anticipated profit margins of other subcontractors would have any significant bearing on the contract which existed between plaintiff and defendant.
Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence”. MRE 401. If relevant, the evidence is admissible. MRE 402. However, evidence will not be deemed relevant unless (1) it is proffered to establish a matter which is "in issue” and (2) it has some probative value with respect to that matter. People v McKinney, 410 Mich 413, 418; 301 NW2d 824 (1981). A trial court has broad discretion when ruling on the relevancy of evidence. Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). Moreover, a trial court’s decision as to admissibility will not be overturned on appeal in the absence of an abuse of that discretion. Tempo, Inc v Rapid Electric Sales & Service, Inc, 132 Mich App 93, 99; 347 NW2d 728 (1984).
In the present case, defendant proffered testimony of other subcontractors on profit margins for the purpose of showing that plaintiff had undervalued labor and supply costs in calculating damages and had thereby overrated its profit margin. Labor and supply costs and plaintiff’s profit margin were matters "in issue” since they pertained to damages which were disputed. However, we do not believe that the trial court abused its discretion in finding that the proffered evidence would not have been particularly probative of these matters. Testimony as to profit margins in general would have little bearing on plaintiff’s projected costs for labor and supplies or on the specific contract between plaintiff and defendant. The parties to this contract were at liberty to agree to terms which might have resulted in an atypical profit margin and, thus, it was a proper exercise of the trial court’s discretion to decide that testimony as to typical profit margins was irrelevant and inadmissible.
We note that the trial court’s opinion and order enabled defendant to challenge plaintiffs damages calculations by calling the other subcontractors to testify as to the costs of labor and supplies, and the quantity of labor necessitated by the contract. Defendant’s assertion that the other subcontractors would not have been permitted to testify as to their own calculations regarding labor and supplies belies the record. Thus, defendant could have attempted to establish that plaintiffs estimated profit margin on this particular contract was excessive if defendant had been able to demonstrate that plaintiff undervalued the factors which formed the basis for its calculations. Accordingly, we do not believe that the trial court’s order "effectively precluded [defendant] from challenging Kent’s testimony concerning damages”, as defendant contends.
Moreover, we note that defendant was able to present the substance of the excluded testimony to the jury. While cross-examining plaintiff’s president, defendant obtained an admission that plaintiffs gross profit margin between 1981 and 1983 was between 8.93 percent and 18.8 percent. Thus, although not particularly relevant to the specific contract at issue, the jury was informed that a profit margin of 31 percent was atypically high for plaintiff. Therefore, even if the trial court had abused its discretion in determining that evidence regarding profit margins in general was irrelevant, we would be inclined to find the error harmless.
Affirmed. Costs to plaintiff.
Plaintiff maintains that defendant failed to preserve this issue for appeal since defendant did not make an offer of proof and the substance of the evidence excluded was not sufficiently apparent or specific from the context, as required by MRE 103(a)(2). However, it was obvious from the context of defendant’s argument that it intended to introduce evidence which would demonstrate that the standard profit margin was significantly lower than the projected profit claimed by plaintiff. This information provided a sufficient basis for the trial court to make an intelligent decision regarding the relevancy of this evidence and enables this Court to review the trial court’s determination. Conlon v Dean, 14 Mich App 415, 424; 165 NW2d 623 (1968), lv den 381 Mich 802 (1969). Accordingly, the issue has been sufficiently preserved for appeal. | [
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Per Curiam.
Defendants Marilyn Swacker and State Farm Insurance Company appeal from a circuit court order affirming the district court’s award of damages to plaintiff, Nancy Nerat. We reverse.
This controversy arose out of a June 16, 1983, accident in which defendant Swacker’s automobile collided with a motorcycle owned by plaintiff. Defendant Swacker was issued a citation for a stop sign violation. No citation was issued to plaintiff’s son, who was the driver of the motorcycle. Plaintiff had no collision insurance coverage on the motorcycle at the time of the accident.
Plaintiff filed a claim against defendant Swacker in the small claims division of the district court, seeking damages in the amount of $228.85, the cost to repair the motorcycle. On petition of defendant Swacker and her automobile insurer, defen dant State Farm Insurance Company, the case was removed to the general civil division of the district court.
Defendants filed a motion for summary judgment, claiming that plaintiffs action was barred by the provisions of the Michigan no-fault act. MCL 500.3101 et seq.; MSA 24.13101 et seq. The motion was denied and plaintiff was awarded damages pursuant to § 3135(2)(d) of the act. MCL 500.3135(2)(d); MSA 24.13135(2)(d). The circuit court affirmed.
Tort liability, arising from the ownership, maintenance or use of an uninsured motor vehicle was generally abolished by Michigan’s no-fault act. MCL 500.3135(2); MSA 24.13135(2). In 1979, the Legislature added § 3135(2)(d), the so-called mini-tort provision:
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by section 3103(3) and (4) was in effect is abolished except as to:
"(d) Damages up to $400.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (3).” MCL 500.3135(2)(d); MSA 24.13135(2)(d). _
The Legislature has declared that "motor vehicle”, as that term is used in the no-fault act, does not include a motorcycle. MCL 500.3101(2)(c); MSA 24.13101(2)(c).
Where statutory language is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded; the Legislature must have intended the meaning it plainly expressed, and the statute must be enforced as written. Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983); Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590, 595; 339 NW2d 470 (1983), reh den 418 Mich 1202 (1984); Lawrence v Dep’t of Corrections, 88 Mich App 167, 171-172; 276 NW2d 554 (1979), lv den 407 Mich 909 (1979).
We find no ambiguity in the mini-tort provision. MCL 50Q.3135(2)(d); MSA 24.13135(2)(d). This statutory exception to the abolition of tort liability applies only to certain damages to motor vehicles. Since the relevant statutory definition of motor vehicle expressly excludes motorcycles, there is no right to sue for motorcycle damage under § 3135(2)(d). MCL 500.3101(2)(c); MSA 24.13101(2)(c).
Reversed. No costs.
Subsections (3) through (5) of § 3135 provide:
"(3) In an action for damages pursuant to subsection (2)(d);
"(a) Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.
"(b) Liability shall not be a component of residual liability, as prescribed in section 3131, for which maintenance of security is required by this act.
"(4) Actions under subsection (2)(d) shall be commenced, whenever legally possible, in the small claims division of district court or the conciliation division of the common pleas court of the city of Detroit or the municipal court. If the defendant or plaintiff removes such an action to a higher court and does not prevail, the judge may assess costs.
"(5) A decision of a court made pursuant to subsection (2)(d), shall not be res judicata in any proceeding to determine any other liability arising from the same circumstances as gave rise to the action brought pursuant to subsection (2)(d).” MCL 500.3135(3X5); MSA 24.13135(3X5). | [
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Per Curiam.
Plaintiff appeals as of right from a circuit court order granting summary judgment for defendants Redford Lanes, Inc., and the West Side Entertainment Corporation, doing business as the Silver Bird Saloon, under GCR 1963, 117.2(3), now MCR 2.116(0(10), on plaintiff’s dramshop action arising out of an automobile accident. Summary judgment was granted for defendants Redford Lanes and the Silver Bird Saloon on the basis of plaintiff’s participation in the intoxication of Scott Roger Fuchs, the driver of the automobile. We reverse and hold that, in order for the act of buying intoxicants consumed by a tortfeasor to constitute active participation in the intoxication of the tortfeasor as a matter of law, the act must occur while the tortfeasor is visibly intoxicated.
Plaintiff testified at his deposition that at about 7:00 p.m. on March 20, 1982, he, Scott Roger Fuchs and several others began drinking at Bill Harley’s house. The group of young men had a few beers at Harley’s house and then, at approximately 9:00 p.m., proceeded to Redford Lanes to play pool and drink beer. While at Redford Lanes, plaintiff and'Fuchs each bought two rounds of beer for each other shortly after their arrival. At approximately midnight, the group left Redford Lanes and went to the Silver Bird Saloon where they continued drinking. Shortly after leaving the Silver Bird Saloon at about 2:00 a.m., the automobile Scott Fuchs was driving and in which plaintiff was a passenger left the road at a high rate of speed and hit a tree. Fuchs and another passenger were killed and plaintiff was injured.
Plaintiff brought a dramshop action against Scott Fuchs’s estate, Redford Lanes and the Silver Bird Saloon. MCL 436.22; MSA 18.993. He alleged that Redford Lanes and the Silver Bird Saloon had served intoxicants to Fuchs while he was visibly intoxicated and that such sale caused or contributed to his intoxication.
Defendants Redford Lanes and Silver Bird Saloon both moved for summary judgment on the ground that plaintiff was an active participant in Fuchs’s intoxication and was therefore a noninnocent party who could not recover under the dram-shop act. In support of its motion for summary judgment, the Silver Bird Saloon presented the following deposition testimony of Matthew Ell-stein, one of the young men in the group drinking the evening of the incident:
"Q How did you pay for your drinks?
”A By cash.
”Q Did everybody pay cash for the drinks?
"A Everybody was buying rounds, yeah.
"Q Would it be accurate to say that you bought Scott Fuchs and Bruno Arciero drinks during the course of the evening?
"A They were there, yeah.
"Q Okay. And would it be accurate to say that you bought them drinks during the course of the evening?
'A I thought that’s what you just asked.
"Q Your answer was a little bit unclear.
'A Yes, I bought them drinks.
”Q Would it be accurate to say that Bruno Arciero bought yourself and Scott Fuchs drinks during the course of the evening?
"A Yes. We all bought rounds. We all went around.
"Q Were rounds bought at the Silver Bird as well as Redford Lanes?
”A Uh-huh, yeah. Probably more so at the Silver Bird.”
In response, plaintiff presented his affidavit in which he stated:
"1. That on the evening of the accident in question, March 19, 1982, I purchased several rounds of beer for myself and a number of friends and acquaintances who were at the Redford Lanes between 9:00 p.m. and 12 midnight. Further, that among those persons for whom rounds were purchased was Scott Roger Fuchs.
"2. That at no time immediately prior to or immediately after the purchasing of those several rounds at the Redford Lanes was Scott Roger Fuchs visibly intoxicated.
"3. That to the best of my recollection Scott Roger Fuchs became visibly intoxicated while at the Silver Bird Saloon between 12:30 a.m. and 2:00 a.m. immediately preceding the accident.
"4. That at no time while I was at the Silver Bird Saloon did I purchase any intoxicating beverages for the decedent driver, Scott Roger Fuchs, nor did I participate in the purchase of any rounds of drinks in which Scott Roger Fuchs participated.”
At the hearing on the motion for summary judgment, Redford Lanes argued that, since plaintiff’s affidavit stated that Fuchs became visibly intoxicated at the Silver Bird Saloon, plaintiff admitted that Redford Lanes did not serve Fuchs while he was visibly intoxicated. Redford Lanes contended that since plaintiff had admitted that Redford Lanes did not violate the dramshop act by serving alcoholic beverages to a visibly intoxicated person, plaintiff could not maintain such an action against Redford Lanes. Plaintiff’s counsel objected to this line of argument at the hearing, correctly contending that this was not the original basis of the motion for summary judgment brought by Redford Lanes. Plaintiffs counsel also asserted that he had a witness, David Bar, whose deposition had not yet been taken, who would testify that Fuchs left Redford Lanes intoxicated. However, plaintiff did not provide any affidavit to this effect.
The central issue at the hearing was whether, for the act of buying drinks or rounds to constitute, as a matter of law, active participation in the intoxication of a tortfeasor, the act must occur while the tortfeasor is visibly intoxicated. Plaintiff argued that to be precluded from recovery under the dramshop act because of active participation in the intoxication of a tortfeasor, the party who buys drinks or rounds for the tortfeasor must do so while the tortfeasor is visibly intoxicated. Defendants argued that the buying of drinks or rounds, even prior to visible intoxication, would be sufficient to render a party, as a matter of law, an active participant and a noninnocent party precluded from recovery under the dramshop act. The circuit court found that plaintiff was an active participant throughout the drinking enterprise and was thus a noninnocent party. The court found it unnecessary to determine at which point Fuchs became intoxicated, and, relying on Kangas v Suchorski, 372 Mich 396; 126 NW2d 803 (1964), and Barrett v Campbell, 131 Mich App 552; 345 NW2d 614 (1983), lv den 419 Mich 877 (1984), granted defendants’ motions for summary judgment. We reverse.
Active participation in the intoxication of a tortfeasor excludes a party from recovery under the dramshop act for injuries caused by the intoxication. For active participation to be found as a matter of law, the participant must play a much more affirmative role than that of drinking companion to the tortfeasor. Dahn v Sheets, 104 Mich 584, 590-591; 305 NW2d 547 (1981), lv den 412 Mich 928 (1982). Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974). The act of buying drinks or rounds may be sufficient to establish active participation. Goss v Richmond, 146 Mich App 610; 381 NW2d 776 (1985); Barrett, supra, p 557.
In the instant case, plaintiff was alleged tortfeasor Fuchs’s drinking companion on the evening in question. Plaintiff also bought Fuchs two rounds of beer. Ignoring for the moment any participation on plaintiff’s part other than plaintiff’s buying of rounds for Fuchs, the question raised in the instant case is whether the act of buying drinks must have occurred while Fuchs was visibly intoxicated for the act to constitute active participation as a matter of law, thus precluding the submission of the question to the finder of fact.
We hold that, in order for participation consisting solely of the act of buying drinks or rounds consumed by the tortfeasor to constitute active participation as a matter of law (thus precluding submission of the issue to the finder of fact), the buying of at least one of the drinks must have occurred while the tortfeasor was visibly intoxicated. The Legislature’s objective in enacting the dramshop act was to discourage the sale of intoxicating beverages to visibly intoxicated persons or minors and to provide for recovery under certain circumstances by those injured as a result of the illegal sale of intoxicating liquor. See Longstreth v Gensel, 423 Mich 675, 684; 377 NW2d 804 (1985); Browder v International Fidelity Ins Co, 413 Mich 603; 321 NW2d 668 (1982); Goss, supra, p 613. It would follow that the mere act of buying intoxicants for either class of persons, i.e., visibly intoxicated persons or minors, which contributes to the intoxication of the person who ultimately injures someone due to his intoxication would render the buyer of the intoxicant a noninnocent party precluded from recovery under the dramshop act. See Goss, supra, p 613. Were we to hold that the mere act of buying drinks for a person prior to visible intoxication of that person is sufficient to render the drink-buyer, as a matter of law, an active participant and an noninnocent party, anyone who bought a drink for another would automatically be precluded from recovery under the dramshop act for injuries caused by the recipient of the drink. For example, a party who bought drinks for a sober or apparently sober person early in the evening, parted ways with that person, and later that evening was somehow injured by that person (who had independently become very drunk) would be precluded from recovery. We cannot agree with this result.
We also point out that, in the cases relied upon by the circuit court in granting summary judgment for defendants Redford Lanes and the Silver Bird Saloon, the plaintiffs who were precluded from recovery as noninnocent parties had paid for several drinks after the intoxication of the tortfeasor. In Rangas, supra, p 398, testimony showed that the plaintiff paid for some of tortfeasor Exelby’s drinks after the plaintiff knew that Exelby had become intoxicated. In Barrett, supra, p 555, this Court indicated in its opinion that the trial court found that the plaintiff had bought rounds for the intoxicated tortfeasor Campbell. Thus, although the Rangas and Barrett opinions do not explicitly state that the tortfeasor was visibly intoxicated when the drinks were bought, we assume that there must have been some external indicia of intoxication (i.e., visible intoxication) from which a conclusion was drawn that the tortfeasor was intoxicated when the drinks were bought.
In the instant case there existed a genuine factual dispute as to whether plaintiff participated in Fuchs’s intoxication by purchasing rounds for him while Fuchs was visibly intoxicated. Defendant Silver Bird Saloon, based on Matthew Ell-stein’s deposition testimony, argued that plaintiff bought rounds for Fuchs at the Silver Bird Saloon, at which time plaintiff admitted in his own affidavit that Fuchs was visibly intoxicated. First, it was not entirely clear from Ellstein’s deposition testimony that plaintiff bought Fuchs drinks specifically at the Silver Bird Saloon. The testimony, which was set forth earlier in this opinion, only established that plaintiff bought drinks for Fuchs during the course of the evening. Secondly, plaintiff’s affidavit expressly denied that plaintiff bought drinks or rounds for Fuchs at any time when Fuchs was visibly intoxicated, and that he did not buy drinks for Fuchs at the Silver Bird Saloon where Fuchs was visibly intoxicated. Thus there existed a disputed material issue of fact as to whether plaintiff bought rounds for Fuchs when Fuchs was visibly intoxicated. The circuit court did not consider this factual dispute since it found that it made no difference as to when plaintiff bought the drinks for Fuchs. The court found that the act of buying the drinks during the ongoing drinking enterprise made plaintiff a noninnocent party, that plaintiff was an active participant throughout, and granted summary judgment on that basis.
As discussed above, when an allegation of active participation is based solely on the act of buying drinks or rounds, for the court to find active participation as a matter of law, rather than submitting the issue to the finder of fact, at least one of the drinks must be bought when the intoxication of the tortfeasor is visible or apparent. In the instant case this fact was in dispute and active participation could not be found as a matter of law based solely on plaintiff’s purchasing of rounds for Fuchs. However, although the sole act of buying rounds or drinks prior to visible intoxication will not constitute active participation as a matter of law, the act of buying drinks even prior to apparent intoxication may contribute to a finding of active participation as a matter of law when coupled with other undisputed activities such as, e.g, a drinking contest proposed by a plaintiff or a plaintiff’s encouragement or dares to a tortfeasor to keep drinking, etc.
We do not mean to imply that the act of buying drinks prior to visible intoxication cannot constitute active participation. The act of buying drinks prior to visible intoxication may constitute active participation in some cases, but, absent other undisputed allegations of participation, this issue should be submitted to the finder of fact, not determined as a matter of law.
In the instant case, the main thrust of the argument by Redford Lanes and the Silver Bird Saloon is that plaintiff was an active participant in that he bought drinks for Fuchs. The only other alleged participation was that of a drinking companion, which in and of itself does not constitute active participation as a matter of law. Dahn, supra. The circuit court did find that plaintiff was "in active participation throughout” but failed to support this conclusion with any additional findings of participation. Assuming, as appropriate on defendant’s motion for summary judgment, that the disputed issue of whether plaintiff bought rounds for Fuchs while Fuchs was visibly intoxicated is resolved in plaintiff’s favor, we find that the act of buying drinks prior to visible intoxication coupled with mere companionship throughout the drinking enterprise is insufficient to establish as a matter of law that plaintiff was an active participant in Fuchs’s intoxication. Reasonable persons could reach different conclusions on these facts as to whether plaintiff was an active participant. Thus this issue should have been submitted to the jury or finder of fact. We therefore find that the court erred in granting summary judgment for defendants Redford Lanes and the Silver Bird Saloon on the basis of its finding that as a matter of law, plaintiff was an active participant in Fuchs’s intoxication._
Redford Lanes additionally argues on appeal that since plaintiff admitted in his affidavit that Fuchs was not visibly intoxicated while at Redford Lanes, Redford Lanes could not have illegálly sold alcoholic beverages to a visibly intoxicated person, i.e., Fuchs, and thus plaintiff could not maintain a dramshop action against Redford Lanes. However, plaintiff’s affidavit, set forth earlier in this opinion, merely states that at no time immediately prior to or immediately after the purchasing of the several rounds at Redford Lanes was Fuchs visibly intoxicated, and that to the best of plaintiff’s recollection Fuchs became visibly intoxicated at the Silver Bird Saloon. The affidavit does not unequivocally state that Fuchs was never visibly intoxicated at Redford Lanes. It does not preclude the possibility that Fuchs became visibly intoxicated subsequent to this consumption of drinks bought by plaintiff and that Redford Lanes served him at that time. In addition, plaintiffs complaint did state that Fuchs was visibly intoxicated at Redford Lanes.
More important, however, is the fact that Redford Lanes did not originally raise this issue on their motion for summary judgment. Instead they brought their motion on the ground that plaintiff was an active participant in Fuchs’s intoxication and therefore a noninnocent party. From the record it appears that the first time the issue was raised was at oral argument during the hearing on Redford Lanes’ motion for summary judgment, at which time plaintiff objected to this new line of argument. Had Redford Lanes raised this argument earlier in its motion for summary judgment, plaintiff may have been able to present affidavits in opposition to this argument. In fact, plaintiffs counsel contended at the hearing that he could produce an affidavit indicating that Fuchs was visibly intoxicated at Redford Lanes. Moreover, the circuit court granted summary judgment for Redford Lanes on the original ground raised for its motion for summary judgment, i.e., that plaintiff was a noninnocent party precluded from recovery under the dramshop act. Thus, although after remand of this case Redford Lanes may be able to find other avenues on which to proceed with this theory, we find that since this issue was not properly raised in its motion for summary judgment and the circuit court did not consider this issue in granting Redford Lanes’ motion, this issue is not properly on appeal.
Reversed and remanded.
When we refer to the act of buying rounds or drinks for a tortfeasor, we are referring to the buying of rounds or drinks which are consumed by the tortfeasor. We do not deal with the question of what effect, if any, the act of buying rounds or drinks for a tortfeasor which he does not consume has on the buyer’s recovery under the dramshop act.
Fuchs, the alleged tortfeasor in the instant case, was 22 years of age at the time of the accident. Thus our holding is limited to active participation in the intoxication of an adult tortfeasor and does not extend to situations involving participation in the intoxication of minors, for whom the act of buying an intoxicant at any time is illegal.
There may arise a situation where the tortfeasor exhibits no physical signs of intoxication such as, e.g., staggering or weaving, but the plaintiff actually knows the tortfeasor is intoxicated. For instance, a seemingly sober tortfeasor admits to the plaintiff that he is drunk. Under such circumstances, we would still find the tortfeasor visibly intoxicated for purposes of the dramshop act. "Visible” intoxication is not limited strictly to “visually”-observed intoxication. For example, slurred speech has been considered an indicator of visible intoxication. See e.g., McKnight v Carter, 144 Mich App 623, 630; 376 NW2d 170 (1985), discussing Lasky v Baker, 126 Mich App 524; 337 NW2d 561 (1983). Thus any external manifestation of intoxication can render a person "visibly” intoxicated.
The mere fact that Fuchs drank alcoholic beverages is not sufficient to establish that he was visibly intoxicated. McKnight, supra, p 629.
Of course, the issue need not be submitted to the jury if the court finds, on undisputed facts, that the plaintiffs actions did not constitute active participation as a matter of law. E.g., the plaintiff buys the tortfeasor his first drink, parts ways with the tortfeasor who becomes intoxicated by drinking for the next 6 hours and then runs into and injures the plaintiff. | [
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Per Curiam.
These appeals, here by leave granted, arise out of a construction contract dispute. The central issue is whether Joba Construction Company, Inc., waived its right to arbitration by maintaining its action in circuit court against the Monroe County Drain Commissioner. In the beginning, Joba was retained by Monroe County to construct, install, and complete water pollution control facilities. The county drain commissioner, Donald Burton, signed the contract on behalf of the county in his official capacity.
Dissatisfied with the quality of performance and the progress of the work, the Monroe County Road Commission issued a stop-work order in December, 1979. Joba thereupon filed a demand for arbitration with the American Arbitration Association pursuant to the contract, originally naming only the drain commissioner as the opposing party. However, the arbitration claim was later amended to include Monroe County as a defendant.
On October 30, 1980, Joba filed a complaint for a writ of mandamus in the Monroe County Circuit Court. The complaint also alleged Burton’s tortious interference with Joba’s contract. An answer and counterclaim were filed by Burton and Monroe County, although the county had not been formally added as a party. Joba simply denied the counterclaim.
Buton moved to prohibit arbitration, arguing that Joba’s right to arbitrate had been waived. The motion was granted and Joba appealed to this Court. This Court vacated the order prohibiting arbitration and held that the waiver issue could only be determined by the arbitrator. Monroe County then applied for leave to appeal to the Supreme Court. The Supreme Court remanded to this Court, directing this Court to determine whether the circuit court or the arbitration tribunal is the proper forum to decide if a party has waived the right to arbitration.
. In an unpublished per curiam opinion (Docket No. 59294, decided September 29, 1982) this Court found that none of the formal procedures for introducing Monroe County as a party were attempted and that the trial court erred in proceeding without correcting that problem. Turning to the waiver issue, this Court concluded that the issue was one for the circuit court to resolve.
During the pendency of the appeal, Monroe County sued Western Casualty & Surety Company, seeking recovery on a performance bond issued by Western and covering the Joba construction contract. Western filed a third-party complaint against Joba, alleging an indemnification agreement.
Following remand of Joba’s mandamus action to the circuit court, Monroe County was added as a defendant in that action. The mandamus action and the performance bond action were then consolidated. Western moved for accelerated judgment and summary judgment on the ground that all of the contract claims had been submitted to arbitration. The motions were denied and constitute the basis for the delayed appeal by leave in Docket No. 80439. Joba moved for accelerated judgment, arguing that the court lacked jurisdiction and that an arbitration action was pending between the parties. The circuit court denied the motion and stayed arbitration, enjoining the parties from participating in it. The denial of that Joba motion and the denial of Joba’s motion for a rehearing form the basis for delayed appeal by leave in Docket No. 80438.
The contract between Joba and Monroe County provided that all "claims, disputes, and other matters in question arising out of, or relating to, the contract documents or the breach thereof * * * shall be decided by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association”. Construction Industry Arbitration Rule 47 provides:
"No judicial proceedings by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.
"The AAA is not a necessary party in judicial proceedings relating to the arbitration.
"Parties to these Rules shall be deemed to have consented that judgment upon the award rendered by the arbitrator(s) may be entered in and Federal or State Court having jurisdiction thereof.”
The issue is whether Joba lost its right to arbitrate by commencing its court action and by insisting on both courses of action following this Court’s earlier opinion.
The contract had the necessary language to bring this matter within statutory arbitration. See MCL 600.5001 et seq.; MSA 27A.5001 et seq. The chapter on statutory arbitration, however, does not diminish or in any manner affect the equitable power of any court over arbitrators, awards, etc. MCL 600.5035; MSA 27A.3035. Thus, the judiciary has a broad role in arbitration.
A party may waive any of its contractual rights, including the right to arbitrate. A waiver may be express or it may be implied when a party actively participates in a litigation or acts in a manner inconsistent with its right to proceed to arbitration. Bielski v Wolverine Ins Co, 379 Mich 280; 150 NW2d 788 (1967); Capital Mortgage Corp v Coopers & Lybrand, 142 Mich App 531; 369 NW2d 922 (1985).
In this case, Joba evinced considerable behavior inconsistent with its right to proceed to arbitration. After requesting arbitration, Joba filed a complaint in circuit court, naming only Burton as defendant, asking for some of the same relief it requested in arbitration. When answering the counterclaim filed by Burton and Monroe County, Joba did not raise arbitration as a defense. In addition, Joba was involved in discovery beyond answering the interrogatories of Burton and Monroe County. Joba submitted interrogatories to Burton and the county on February 8, 1983. Pursuing discovery is regarded as being inconsistent with demanding arbitration, since discovery is not generally available in arbitration. SCA Services, Inc v General Mill Supply Co, 129 Mich App 224, 231; 341 NW2d 480 (1983), Iv den 419 Mich 895 (1984). See also DeSapio v Kohlmeyer, 35 NY2d 402; 362 NYS2d 843; 321 NE2d 770 (1974), wherein the defendant waived the right to arbitration of a dispute involved in the judicial action by utilizing judicial discovery procedures and thereby affirmatively accepting the judicial forum.
Rule 47 should be considered as a factor. However, if it were to be interpreted to mean that no court proceeding could ever constitute a waiver of arbitration, it would run afoul of MCL 600.5035; MSA 27A.5035. In this case, Joba’s conduct amounted to a waiver of arbitration despite the existence of Rule 47.
In its opinion, the lower court articulated one further reason for prohibiting arbitration in this case: judicial economy. The object of arbitration is the final disposition of differences between parties in a faster, less expensive, more expeditious man ner than is available in ordinary court proceedings. 5 Am Jur 2d, Arbitration and Award, § 1, p 519. The issues involved in the judicial proceedings, with the exception of Burton’s individual counterclaim for abuse of process, are essentially the same as those involved in the arbitration proceeding. There is no right to arbitration for the abuse of process claim, nor is there a right of arbitration of the issues in the action on the performance bond. Therefore, some of the claims will have to be heard in circuit court. As the lower court stated: "No purpose would be served by requiring the same evidence and presentations before both the arbitration panel and the circuit court.”
Affirmed. | [
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] |
Cooley, J.
The bill in this case was filed for the purpose of establishing an equitable title of the complainant in certain lands in the county of Kalamazoo, the legal title to which was in his father, Adrian Van Wert, at the time of his decease. The defendants constitute, with complainant, all the persons interested in the estate of Adrian Van Wert, being his widow, heirs at law and administrators.
The land in question was purchased from the state, and the original certificate was taken in the name of complainant, hut was assigned to the father, as complainant avers, for the purpose of giving to his parents assurance of his intention to fully keep and faithfully perform an agreement he had previously made with them for their comfortable support during their life-time, and to secure to them a home, and thereby gratify a childish desire of said Adrian to have the title to said land in his own name. The defendants object that the case made by the bill is one of a parol trust in lands, which is void by tbe statute. — Comp. L. 1871, § 4692. While complainant insists, on the other hand, that the transaction, as set out in the bill, was equivalent to a mortgage with a parol defeasance, which would be valid under previous decisions in this state.— Wadsworth v. Loranger, Har. Ch., 114; Emerson v. Atwater, 7 Mich., 12.
The allegations of the bill are not so explicit as they might have been, but we are of opinion that they make out a sufficient case. We cannot say the same of the evidence. To establish an equitable right in lands in opposition to the muniments of title, the parol evidence of the understanding of the parties ought to be very clear and distinct, and should leave ns in no doubt regarding the precise terms of the agreement. Such is not the case here. Much of complainant’s evidence is inadmissible, because it related to matters which, if true, must have been equally within the knowledge of his father in his life-time. — Comp. L. 1871, § 5968; Kimball v. Kimball, 16 Mich., 211. The other evidence upon which he must mainly rely, was that of his mother and his brother David. His mother’s testimony was exceedingly vague and unsatisfactory, and David’s action relative to a division of the estate was too inconsistent with his testimony, to enable us to feel a reasonable degree of security in relying upon if. We feel compelled, therefore, to deny the relief prayed, though we cannot resist the conviction that there are strong probabilities favoring the equities complainant asserts.
The statute makes the costs in chancery cases subject to the discretion of the court, except in a few specified cases.—Comp. L. 1871, § 7386; see also § 7405. We think this a case in which it would be proper that they should be paid by the estate; as much so as it would have been if a doubtful claim, made in good faith in the probate court and within its jurisdiction, had been determined there in the course of the proceedings for the settlement of the estate. This case was not within the jurisdiction of the probate court, and it became necessary to resort to equity for its solution; but wm have not been convinced of any want of good faith in bringing it, and the taxable costs attending it may very properly be regarded as a part of the necessary expenses in the administration, of the estate, under the peculiar circumstances. The decree below will consequently be so far modified as to make the taxable costs of all parties a charge against the estate, and in all other respects affirmed.
Campbell, J., and Graves, Ch. J., concurred.
Christianct, J., did not sit in this case. | [
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] |
Per Curiam.
The record in this case is fatally defective in not showing service of notice on the several persons entitled thereto. In People v. Highway Commissioners of Nankin, 14 Mich., 528, it was decided that a mere general allegation that notice was duly served on the persons entitled, without naming the persons, was only an assertion of a conclusion of law, and wholly insufficient. We have always since followed this decision, and have seen no reason to doubt its correctness.
Proceedings reversed. | [
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] |
Campbell, J.
Plaintiff sued as administrator of Thomas Gumbleton, to recover damages for the death of Gumbleton, who was killed by cars backed upon defendant’s premises on a track running therefrom to the central railroad lands opposite. The track in question crosses Woodbridge street, Detroit, at right angles, to defendant’s mill on the north side of the street, crossing the sidewalk and running back close to a line fence, which leaves no room for any one to pass or stand between it and the cars when backing up. Gumbleton was going to his work along Woodbridge street, and, as nearly as it can be determined, was struck by the cars, which were suddenly backed up after standing still, and was crushed against the fence. The whole transaction seems to have occurred when it was somewhat dark, early on a winter morning, and no one noticed it, or saw the bodies of Gumbleton and a companion killed at the same time, until more than an hour after, when the cars were moved.
The court below directed a verdict for the defendant, without assigning reasons, and the grounds alleged to support the ruling are-: first, that there was contributory negligence; and, second, that the cars were run by the Michigan Central railroad and not by the defendant, who is claimed not to have been responsible- for the neglect of the railroad.
We have found no evidence of negligence in GumbletonThe testimony indicates that he was crossing while the cars were standing still, and that they were suddenly started by the locomotive pushing against them to back them up. A passenger along the sidewalk of a public street has a right to expect some warning before any sudden movement of this kind, and there should be very plain proof of negligence to bind him under such circumstances. The track was not a part of the business track of the Central railroad, and no regular trains ran there. Any use of this special track must have been subordinated to the rights of the general public. It does not stand on the same footing with an ordinary track. If there was any testimony from which a jury could infer negligence in Gumbleton, — which we have not discovered, — it was not such as to shut the case-from the jury.
The railway track was built under a license given by the city of Detroit, upon somewhat stringent conditions to prevent accident, and no one but the defendant had any right to build or maintain it. It was built for defendant’s business, and to be lawfully used for no purpose but to carry freight for the defendant.
Under these circumstances, all persons using the track for such purposes, used it as the agents of defendant, and defendant was liable for their conduct. The relation of principal and agent, or master and servant, may exist between a corporation and an employer, as well as between individuals; and the use of a special franchise, under the direction and for the purposes of its owner, can never be maintained except as his act. This we have held repeatedly in regard to railroad tracks. It was so held in Gardner v. Smith, 7 Mich. R., 410, and in Bay City & E. Sag. R. R. Co., v. Austin, 21 Mich., 390; and the same principle was recognized in Continental Improvement Co. v. Ives, 30 Mich., 448, and Grand Rapids & Indiana R. R. Co. v. Southwick, id., 444.
The Central Railroad Company, when performing its service for defendant, was not engaged in the performance of its own business under its charter, but was employed in a special and temporary service, differing in no sense from what might have been rendered by men or horses in drawing or pushing cars for defendant on defendant’s premises. It was in no sense an independent and separate business, and the only authority under which it was justified or exercised was the city ordinance which granted the privilege to defendant. The case is stronger than that of Detroit v. Corey, 9 Mich., 165, where there was an independent contractor for whose default the city was held liable, as not at liberty to cast off its own duty of guarding against peril. The defendant was clearly bound to see to the safe use of its own franchise.
The judgment must be reversed, with costs, and a new trial granted.
Cooley, J., and Grates, Ch. J., concurred.
Christiancy, J., did not sit in this case/ | [
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Christiancy, J.
Admitting for the present that Ihe circuit judge was right in his findings, both of fact and law, upon every other point; that the title did not pass to plaintiff until the logs were delivered afloat in the stream, and that they would have had the right to rescind had they done so with sufficient promptness, the main, the previous question, upon which the whole case must turn, is whether they had the right to rescind at the late day, and under the circumstances, when they attempted to exercise that right.
If the finding of the judge was correct, that “the testimony shows that said five-hundred-dollar payments ” [of September 2d and November 12th, 1872] “were made by the plaintiffs to the defendants upon the assurance by the defendant, through Rogers, that the logs were all afloat, or nearly so; that the plaintiffs knew nothing to the contrary,, and relied upon these assurances,” then the delay in exercising the right to rescind, or their tardiness in attempting it, may be sufficiently explained and excused. And we are bound to hold this finding of fact correct and conclusive, if there was any evidence in the case tending to sustain it as a whole. But as the evidence is all given in the record, if there be none to sustain this finding, or if any particular and material part of this finding be without evidence to-sustain it, then the finding thus far is not binding, and must be held erroneous.
There was evidence tending to- show that the two fiveImndred-dollar payments alluded to were made by the plaintiffs to the defendant upon the assurance by the defendant that the logs were all afloat, or nearly so; and that the plaintiffs, at the time of those payments (September 2d and November 12th, 1872), knew nothing to the contrary. But the letter of plaintiffs (written by Bates), to which the judge alludes, was written June 10, 1873, about seven months after those payments. And I have searched the record in vain for any evidence tending to prove that when this letter was written by the plaintiffs they relied upon any representations of the defendant, that “ the logs were all afloat, or nearly so,” or that the plaintiffs, after such representations were made, had not, long prior to the writing of this letter, learned the fact that they were not all afloat, or nearly so. It may be true, and there is some evidence to show, that Bates personally (the. member of the firm who wrote the letter) had not, up to the time it was written, learned the fact that the logs were not all, or nearly all, afloat, and that the representations when made were not true. But upon the question of acquiescence, and undue delay in exercising the right to rescind, the firm must be conclusively held to have known every fact material to the question, which any member of the firm knew; and to have had notice of every thing of which any one of them had notice; and any act of any member of the firm, or any letter written by one of them in their name, with reference to any of this business with the defendant, must be treated as the act or letter of the firm.
Now, Gould, one of the members of the firm, on his direct examination, testified as follows: “ The fifth day of July, 1872, I paid them five hundred dollars on our note; I asked Rogers if those logs were afloat, and he said they were, or the biggest part of them, as he understood; I think it was along in August, 1872; I will not be positive; I was at Hubbardston running logs down the creek, and I asked him again about it, and he said he understood they were pretty much all broke in. I paid him five hundred dollars on the note on the fifth of July, and paid him five hundred dollars on a note, and renewed the balance at sixty days. I have not got the date of it. It was endorsed on the note. It was after the fifth of July. We paid in July and subsequent to that, the installments of five hundred dollars each” [referring, as all the testimony shows, to the payments of September 2d and November 12th, 1872], “because we supposed it was due them. I asked Rogers at the time if the logs were afloat, and he said they were, or nearly all; and it was upon the assurance that they had put the logs afloat, that we paid that money. I did not see those logs in the year 1872, after the first time I went to see them in February; I knew they were not put afloat during that year, because I saw them there on the roll-way on the 9th of July, 3873, all except thirty or forty logs.”
Now, thus far it is clear enough that his testimony tends very directly to show that all the money that was paid was paid upon the assurance of the defendant that the logs were all, or nearly all, afloat; and had the testimony been left to stand thus, it would also have tended to show that the letter of the 10th of June, written to the defendant in the name of the firm by Bates, was written in reliance upon the same assurances. The witness gives the time of these conversations with Rogers, when these assurances were made, as the several times when the payments were made, and besides these times, once in August, 1872; and specifies them so particularly as to lead to a strong inference that these were all the times when he claims that there were any such conversations or assurances.
Upon his cross-examination, being shown the letter of his firm to defendant, dated June 30, 1873, he says: “I guess likely Mr. Bates wrote that letter, — one of our firm. I first ascertained those logs were not put afloat, last winter; I think it was along in February last.” The trial being in November, 1873, it was clearly therefore in February, 1873, that he ascertained that the logs were not put afloat. In other words, it was in February, 1878, some three months after the last money had been paid, and some four months before the letter of June 10th was written, and nearly five months before any attempt was made to rescind, that the firm ascertained that the logs had not yet been put afloat; and after learning this fact, it is, of course, idle to talk of any subsequent act of theirs being done or omitted, in reliance upon any of .those representations of the defendant, to which Gould had testified, the last of which was November 12, 1872, all of which they had now learned were untrue, and that the logs had not been afloat as represented. If, therefore, the witness Gould ever saw Rogers after the time to which he had testified on his direct examination, and again received, at such subsequent - time, any new and further assurances of the logs being all afloat or nearly so, it was clearly for his interest, and that of his firm, now to state that such subsequent assurances were made, and the time when, and by whom made. The witness evidently saw the importance of.this, as will presently appear, in view of the letter of June .10th, which he had just admitted. But though he again refers to those assurances in a general way, he does not state that he hád ever, after the 12th November, when the last money was paid, seen Rogers or had any conversation with him; or that he, or any officer of the company, had given any new or further assurances of the kind in question; but simply says, generally, immediately following the portion of his testimony above quoted, “ after we learned they were not afloat, in February last, we did not make any payment; we made no offer of payment to defendants. I asked him (Rogers) if those logs were afloat yet, and he said, he understood they were pretty much all afloat.” He does not here state when he asked Rogers, nor when Rogers told him this; he found no difficulty in stating the time in his direct examination, and the occasion, and the fact of meeting Rogers at those times. And the only fair interpretation, as it seems to me, of the language just quoted, is, that it refers to the assurances and the times spoken of in his direct examination, where the times and particular occasions had been mentioned; and therefore it was unnecessary to repeat them here. Such, it seems to me, is the only fair interpretation to be given to his testimony as a whole. This interpretation is also in full accord with the letter of June 10th, and what must have been Gould’s understanding of his own testimony, in connection, or with reference to, the letter; for he says, “ after we learned they were not afloat, we made no offer of payment to defendant.”
Finally, the counsel for the plaintiffs below, defendants in error, does not, by his brief, claim any different construction of- the language in question, from that which I have adopted.
There certainly is no other evidence in the case showing, or tending to show, any assurances after the 12th of November, 1872, made by defendant, that the logs were afloat. Nor is there any thing tending to show that the plaintiffs, between February, 1873, when they learned the logs were not afloat, and the first of July, when they attempted to repudiate, had any reason to believe that the logs were afloat, or had ever been informed that they were.
Here, then, — independent of the letter of plaintiffs of the 10th June, or any effect to be given to that letter, — is a delay of between four and five months, after the plaintiffs had learned that the logs were not afloat, and that the assurances given to the contrary were not true, before ant attempt is made to rescind. This acquiescence and delay is in no manner excused or explained. If the plaintiffs could have rescinded at all, they could only do so within a reasonable time; and we are bound, I think, in the absence of any evidence excusing it, to notice that this long period of delay was more than could reasonably be required for that purpose. The law is so well settled upon this point, that it would be a waste of time and space to cite authorities.
But the letter of the plaintiffs, of June 1G, 1873, written when the firm had full knowledge that the logs were not yet afloat in February, 1873, shows clearly that at that time the plaintiffs had no intention of rescinding the contract, but led the defendant to believe that they intended to carry it out, and to pay as soon as they could raise the money, and there is no fact shown as occurring after that time, or any new information obtained by them, giving any better grounds for rescinding than they then had.
Finally, it may well be doubted whether the letter or notice given by the plaintiffs to defendant, by which they undertook to rescind, is not, of itself, as much of a confirmation as a rescission of the contract. They could not, in any event, rescind in part, and hold it valid or insist upon it in part, or valid for one purpose and void for another. They must rescind entirely,'or not at all. But here, after declaring their intention to rescind, they say further, “we shall look to you for our damages sustained by your failure to perform the contract according to its terms.”
The court very properly held (and such is obviously the law) that “plaintiffs cannot rescind the contract and then, insist on damages for not performing; for when a contract is rescinded an action will not lie for the breach of it.”
It is very clear, I think, that upon the pleadings and evidence in this case, no action for the purchase price paid can be maintained upon any other basis than that of a rescission.
There being no such rescission established in the present case, the judgment must be reversed, with costs, and a new-trial awarded.
As we are not authorized upon the case before us to assume that evidence can be adduced on a new trial which will establish the right to rescind, and without this the other questions in the case would be immaterial, we do not uotice them here.
Graves, Ch. J., and Cooley, J., concurred. | [
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] |
The court
held that the ruling of the circuit judge was correct, and that the case was within the principle of Harrison v. Sager, 27 Mich., 476.
Judgment affirmed. | [
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Graves, Ch. J.
This application for mandamus has originated in a difference of opinion between the treasurer and the relator, respecting the amount of specific tax wbicb was by law demandable from the company for the year 1873.
The company is a Connecticut corporation, doing business in this state under the regulations prescribed by the legislature, and it claims to be working as a mutual company, without capital stock issued to shareholders, but embracing the holders of policies as members, who are rendered proportionably interested in the property and profits.
It further claims that it aims to afford life insurance to the members at actual cost, and in keeping with this aim, that it sets down in each policy what amounts to a maximum annual premium to be paid, but subject to an “ understanding” that no more shall be exacted for any year than is found necessary to pay the cost of insurance for that year.
That the aggregate of such maximum premiums for the year eighteen hundred and seventy-three, against Michigan parties, was two hundred eighty-seven thousand nineteen dollars and twenty-five cents, but that the company, conforming to the “understanding” and “aim” before mentioned, to restrict exactions fromy the policy-holders to the cost of insurance, reduced the collections for that year to one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents, by crediting on premiums due from policy-holders one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents, the latter sum having been collected in the preceding year, and being the balance left beyond the .cost of insurance.
The point of the case is, whether the tax of three per cent, imposed by the legislature should be calculated on the sum of one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents, actually paid in hand in 1873, or upon the amount made up of that and the sum credited to policy-holders.
The treasurer insists that the tax was required to be on the larger, and the relator that it should be on the smaller of these amounts. The question is one of strict law, and does not depend upon equities, or any individual judgments in regard to state policy in matters of taxation.
We cannot ascertain from the record the precise nature or form of what is generally and vaguely referred to as the “aim” of the company, and the “understanding” that the exactions from policy-holders should be cut down from the definite and certain sums written in the policies, to amounts not predetermined, and depending upon fluctuating circumstances.
Whether this “understanding” is something in a shape to invest the policy-holders with a legal right to resist a call inconsistent with what is said to be the “aim” and “intention,” or whether it is a bare expectation, encouraged by the company, that its controlling agencies, acting upon a sense of what is politic and expedient, will not absolutely retain the excess of collections on premiums over and above the necessities of the company, is in no manner explained This part of the case is extremely dubious and uncertain.
It was observed in argument by relator’s counsel, that in carrying out this scheme of keeping the collections from the policy-holders in each year down to the cost of insurance for the same year, the company get at the cost for the current year, by referring to the preceding year, and adopting the ratable difference between the cost of insurance thereof and the aggregate of maximum premiums.
Without stopping to see what consequences ought to be drawn from this exposition, if well based, it cannot, of course, be expected that in dealing with the case we should espouse any theory or explanation not appearing to us to be fairly warranted by the facts; and, upon consideration, we find it quite impossible to reconcile this argumentative explanation with the interior and implicit nature of the transaction as depicted by the record.
The reasoning referred to assumes or requires that the sum of one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents ivas the real difference between the aggregate of maximum premiums and actual cost of insurance in 1878, though ascertained by a standard afforded by the experience of 1872; and that this sum of one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents was an actual deduction on account of actual operations in 1873, whereby, as insisted, the sum demandable in that year was reduced to one hundred and sixty-nine thousand two hundred'and seventy-five dollars and fifty-eight cents.
In this view the account for 1873 could not have been affected at all by carrying to it and allowing to policyholders a claim in their favor actually produced by the operation of 1872. On the contrary, it must have been complete in itself, and been dealt with as exclusively embodying the operations of 1873. It could neither have been saddled with any demand created and established in 1872, or carved out of the transactions of that year, nor could it have produced any demand to be carried over to 187Í.
When we recur, however, to the explicit stipulation made in the case, we find that, by whatever name called, the deduction, credit or rebate in 1873 was not caused or brought about in this way. The fact, as there set forth, appears to be, that in making up the account for 1873, the balance was not ascertained by relinquishing what there was between the aggregate of written premiums and the cost of insurance for 1873, but by deducting from the aggregate of written premiums for that year the balance in favor of policy-holders brought over from the previous year.
Passing this feature for the present, we observe that the relator insists that the right to tax it rests on the act of 1869, — L. 1869, Vol. 1, p. 124 ; and that by the provisions of that law, the relator was only taxable on the sum of its actual cash receipts on premiums in 1873, and therefore only on the sum of one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents.
They contend that the act of 1871 (L, 1871, Vol. 1, p. 172) could not influence the question, because, first, as they urge, that act does not assume to change the pre-existing rule or re-declare the rule as to the basis of taxation; and second, that if the terms could be considered adequate for such purpose, no such effect could be sanctioned, since to allow the law that operation would be to disappoint the object as expressed in the title, and introduce into the body of the statute an incongruous element.
But even if these difficulties were overcome, they still argue that this act will only permit a tax on actual receipts and such additional amounts, if any, as policy holders are under agreement in the same year to pay on premiums ; that the facts in the record show that the true contract relations between the policy-holders and the company involved nothing further than an agreement that the policyholders should pay in 1873 whatever sum should be ascertained, according to the course of the company, to be sufficient to meet the cost of insurance for that year; and that this sum was so ascertained to be one hundred and sixty-nine thousand two hundred and seventy-five dollars, and fifty-eight cents, and that in paying it the policy-holders paid all they were under agreement to pay, and all the company had any right to exact.
Without admitting what is contended for by the relator in-regard to the scope of the act of 1869, the attorney general urges that the terms of the act of 1871 distinctly establish that the relator’s tax for 1873 was required to be computed, not only on the cash receipts paid in hand in 1873, but also on that portion of the premiums written as payable in that year, and which portion the relator treated as compensated by the equal cash claim against the company held by the policy-holders for excessive collections made and retained in 1872. And he likewise maintains that the statute is susceptible of valid operation in that way, and is not obnoxious to the objections and difficulties drawn by relator’s counsel from the provisions of the constitution.
This reference to the opposite and conflicting positions taken, renders it apparent that, independently of the diversity of views in other particulars, the parties are widely at variance concerning the construction due the transaction which terminated in fixing the balance to be paid in 1873-, and in the payment of it by the policy-holders; and the true nature of that transaction, as developed by the facts stipulated, appears to be called for as an important preliminary.
Because if it should turn out on the facts in this record, that in paying the one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents in 1873 the policy holders paid precisely the whole sum they were under agreement to pay, and that the company in receiving that sum received all it had any right to claim on account of the premiums of 1873, the ground on which the ■state rests its claim must at the least be materially affected, and the process of examination must be shaped to meet that state of things; and on the other hand, if it shoul d be considered that the credit of one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents was a compensation to the company for an ■equal amount due on premiums for 1873, and in substafice •and effect a payment, it must operate decisively against the relator.
Turning now to the agreed facts, we find that the stipulation states “that the nominal premiums clue the company from parties residing in Michigan during the year 1873 amounted to two hundred and eighty-seven thousand nineteen dollars and twenty-five cents; that this sum was secured by the policies issued, but in no other way, and that the company had the right to collect during said year, vi case the business of said company required the same, the whole of said sum ; that the policy-holders of said company were entitled to certain rebates or credits upon the amount paid said company in 1872, being the amount of premiums paid over and above the cost of insurance; which said credits or rebates were deducted from said two hundred and eighty-seven thousand nineteen dollars and twenty-jive cents, leaving a balance of one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents, which ivas the actual amount in cash paid to said company by its policy-holders in 1878. The balance of said first named sum of two hundred and eighty-seven thousand nineteen dollars and twenty-jive cents, being one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents, having been rebated as above”
The transaction, then, was this: the company having the right to avail itself in 1873 of the whole two hundred and eighty-seven thousand nineteen dollars and twenty-five cents if the business required it, considered it necessary to do so, and effected the object in this way: Having collected in 1872 in cash from its policy-holders one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents more than it was entitled to retain, the company actually Icept the money and became debtor to its policy-holders for the amount. This money remained in its treasury, and the company continued to be debtor for it until 1873, when the policy-holders became debtors to the company for the larger sum of two hundred and eighty-seven thousand nineteen dollars and twenty-five cents, the' difference between the two sums being one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents; that the account was then adjusted and settled by deducting the one hundred and seventeen thousand seven hundred and forty-three dollars and sixty-seven cents, which the company had already covered into its treasury and retained and stood debtor for, from the two hundred and eighty-seven thousand nineteen dollars and twenty-five cents which the policy-holders had come to be debtors for to the company, and by the payment of cash in hand from the policy-holders to the company, of the ascertained balance of one hundred and sixty-nine thousand two hundred and :seventy-five dollars and fifty-eight cents.
The facts admitted will authorize no other construction. Was the disposition made of this fund which had come from the policy-holders in money, and for which the company had become their cash debtor, a payment in 1873, when it ceased to be a debt of the company or a credit of the policyholders ?
The formality was not observed of passing the fund specifically by the company to the policy-holders and then taking it back again. Instead of this, the whole process was worked out on paper, but the effect was precisely the same.
When two parties are mutual cash debtors in the same right and at the same time, and desire to avoid circuity of payments and to bring about a reciprocal acquittal of debts, they avoid the ceremony and trouble of as many actual payments as there are debts; and instead of one of the two paying to the other what he owes him, and then receiving back again that which is due to him, they proceed upon the principle of compensation, and each one retains in payment of what is due to him, that which he owes to the other, whether it be for the whole debt, if the sums are equal, or by deducting a lesser debt out of a greater. These compensations, when they fairly and properly occur, are reciprocal payments.
In Spargo’s case, L. R., 8 Ch. App., 407, 5 Eng., 626, it became a question whether certain transactions between a company and a share-holder amounted to “ cash payments ” within the meaning of the “ Companies’ act.” — 30th and 31st Vic.
In discussing the point, Lord Justice James said: “If a transaction resulted in this: that there was on the one side a bona fide debt payable in money at once for the purchase of property, and on the other side a bona fide liability to pay money at once on shares, so that if bank notes had been handed from one side of the table to the other in payment of calls, they might legitimately have been handed back in payment for the property, it did appear to me in Fothergill’s case, and does appear to me now, that this act of parliament did not malee it necessary that the formality should be gone through of the money being handed over and taleen bach again; but that if the two demands are set off against each other, the shares have been paid for in cash. If it come to this, that there was a debt in money payable immediately by the company to the share-holders, and an equal debt payable immediately by the share-holders to the company, and that each was accepted in full payment for the other, the company could have pleaded payment in an action brought against them, and the share-holder could have pleaded ‘payment in cash1 in a corresponding action by the company against him for calls.”
Mellish, Lord Justice, concurred, and added: “Nothing is clearer than that if parties account with each other, and sums are stated to be due on one side and sums to an equal amount due on the other side on that account, and these accounts are settled by both parties, it is exactly the same thing as if the sums due on both sides had been paid. Indeed, it is a general rule of law that in every case where a' transaction resolves itself into paying money by A to B, and the handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards.” — See also Owens v. Denton, 5 Tyrw., 360; Pratt v. Foote, 5 Seld., 433-6; id., 599 ; Domat’s Civil Law, Pt. 1, B. 4, Tit. 2, Cush. Ed.
Without going further, it may be well said, both upon reason and authority, that the excessive collection in 1873, and which*the company retained and finally applied in 1873, was then resolved into a payment upon the premiums of that year, and that for the purpose of the three per cent, tax it was as much a payment on the premiums as the one hundred and sixty-nine thousand two hundred and seventy-five dollars and fifty-eight cents.
Such being the result reached upon the facts, the legal questions concerning the statutes become unimportant in their bearing on the case. Because, under the view taken as to what|was payment on premiums in 1873, whether we contemplate the act of 1869 or that of 1871 as the law to govern, the event must be the same.
If the sum credited to the policy-holders in 1873 was money drawn from them in 1872, and-though due to them was still detained by the company, as the circumstances agreed show, and if this sum is to be considered, as the court think it must, as a payment on premiums in 1873, then the terms of either act would apply to it as a basis for taxation for that year. Still it may be considered best to indicate very briefly, without enlarging on the subject, the impressions now felt concerning the main questions relating to the statutes.
After much reflection we are inclined to think that the seventh section of the act of 1871 does in terms prescribe a basis for taxation differing in substance from that given by the act of 1869, and that the legislature designed, in framing that section, to do something more than to recognize and perpetuate the basis of the last named act. The terms of the first paragraph of the section unquestionably indicate a purpose in the legislature to preserve or keep alive whatever taxing rights had attached under the former law, and this was probably considered as a reasonable precaution to guard against objections that the change wrought an extinguishment or alteration of the rights which had already obtained.
But, be this as it may, the succeeding and remaining portions of the section appear to be positive regulations for the future, and in regard to the basis of taxation, they are not only variant in phraseology from the corresponding provision in the law of 1869, but different in substance.
The terms used clearly appear to enlarge the ground, and to authorize a tax against transactions which the former act did not take in.
By the act of 1869, the tax was to be upon “ all premiums received, in cash or otherwise.” But by the act of 1871, it is authorized and required to be “upon the premiums received ”. and also on such as within the year “shall have been agreed to be paid for any insurance effected, or agreed to be effected or procured”
The form of this provision is positive, and not by way of allusion. It purports to institute a new rule, and not merely to denote, describe or recognize an old one to be retained.
There is reason, then, for concluding that the legislature designed that this provision should supplant the corresponding one of the act of 1869, in regard to the future. The only way to escape from this result, without doing great violence to the language and to settled rules of interpretation, is to suppose a double tax was intended, but this is not deemed an admissible opinion.
The constitutional provision, in regard to the titles of acts, and in regard to the union of separate subjects in the same act, has been so often and so fully considered in this and other states, as to render it quite unnecessary to enter upon a general discussion of the subject in connection with this act of 1871.
There is nothing in the nature or framework of the law to suggest any real ground for excluding it from the class of enactments uniformly sustained against such objections as are raised here.
If this act is obnoxious to these objections, the prior one of 1869 must certainly be so, and we do not understand that counsel regard that law as open to them.
The provisions in the act of 1871 relating to taxation appear to be neither foreign to the object of the residue of the statute, or insufficiently expressed in the title.
In declaring in the language of the title that the act was one “to establish an insurance bureau,” the legislature must be understood as saying, that it was made up of such provisions and details as were deemed suitable for the object; and under such title, and in keeping with, and in furtherance of the single object expressed, it was competent to go further than to enact mere organic provisions. It was certainly admissible to include any just and pertinent regulations respecting the course of action to be observed by the burean as a state agency, towards those engaged in the business of insurance; and it was equally admissible to include any just and appropriate provisions for prescribing the duty due to the state in the matter of taxation from insurance companies. The fundamental principle of the law was, the marking out the reciprocal rights and duties of the state and those carrying on insurance, .and to provide the machinery for administration, in so far as the state by a political agency might properly supervise.
It is unnecessary to add any thing further. The subject is fully treated in the work of my brother Cooley, and the view there taken will not support the objections to the statute. — Cooley on Con. Lim,., 141 to 151, text and notes. See also People v. The State Ins. Co., 19 Mich., 392; Swartwout v. The Michigan Air Line R. R. Co., 24 Mich., 389, and the opinion of my brother Christiancy in People v. Hurlbut, 24 Mich., 54.
The application for mandamus should be denied.
Christiancy and Cooley, JJ., concurred.
Campbell, J., did not sit in this case. | [
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Long, J.
Complainants filed this bill for the purpose of removing a cloud and quieting title to lots 1, 2, 3, and 4 of block 31, Waldron’s addition to the village (now city) of Baton Rapids, this State. The cloud was occasioned through the purchase of a tax title by defendants Harris and Corbin, December 2, 1895, for the taxes of 1893, at which time complainant Porter was in possession by tenant, under a written contract of purchase.
It appears that February 27, 1890, J. M. C. Smith purchased the premises in question from defendants Corbin and Harris for $600,, and gave back a purchase-money mortgage to them for $300, payable in three equal annual installments. Smith sold the premises soon thereafter to Albert Porter on a written contract, under the terms of which Porter was to have possession, and pay the taxes on the premises. Complainant Porter thereafter executed a mortgage upon the premises and other lands for $5,000 to complainant De Golia. In April, 1893, J. M. C. Smith and wife quitclaimed the premises to Herbert H. Hamilton, as cashier of the Michigan State Bank, subject to the contract with Porter. This purchase was made with the funds of the bank, of which Corbin was president, Hamilton cashier, and Harris assistant cashier. December 30, 1895, complainant William Smith purchased the apparent title of Hamilton in the premises, and now claims to hold the same in trust for complainant Porter. May 1, 1893, Porter and wife gave a mortgage to defendant Corbin upon these and other lands for $10,000. It also appears that December 2, 1895, the premises were sold for the delinquent taxes of 1893, and a deed made for the same to defendant Harris on March 5, 1897. It is conceded that defendant Corbin has a half interest in this Harris tax deed.
The main contention of counsel for complainants in relation to the claim of defendants Harris and Corbin is that they, being mortgagees, can acquire no title under this tax deed as against the mortgagor. It appears that the defendants were acting in entire good faith, and the question is purely a legal one. The rule is well settled, we think, that a mortgagee cannot acquire title to the mortgaged premises by purchase at a tax sale; the rule being that such purchase amounts to a payment of the tax, and inures to the benefit of the mortgagor. Our statute (Act No. 306, Pub. Acts 1893, § 53) provides that “any person having a lien on property may, after thirty days from the time the tax is páyable, pay the taxes thereon, and the same may be added to his lien, and recovered, with the rate of interest borne by the lien.” It was held by this court in Boardman v. Boozewinkel, 121 Mich. 320 (80 N. W. 37), that where the purchaser at a tax sale at the time of the purchase was the attorney for the mort-gagee in a foreclosure proceeding on the land sold, and afterwards conveyed his interest by quitclaim to his client, and there being no evidence to show that the attorney claimed title, the purchase amounted to a redemption from the sale in favor of his client, and could not be considered as an independent title. Jones on Mortgages (§ 1134) lays down the rule in its broadest terms'. It is said: “Inasmuch as the mortgagee has the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded merely as such payment, and not as giving him a title.”
In the case of Eck v. Swennumson, 73 Iowa, 423 (35 N. W. 503, 5 Am. St. Rep. 690), it appeared that judgment of foreclosure of a mortgage was obtained March 30, 1881, on a mortgage dated May 37, 1878, and on the same day the judgment was assigned to plaintiff. The premises were sold on execution in February, 1885, and bid in by the plaintiff, to whom a sheriff’s deed duly issued. In November, 1879, the propei’ty was sold for the taxes of 1878, and bid in by the mortgagee, who assigned to a third person. A tax deed was issued to this person, who afterwards conveyed to defendant. It was held that, as the mortgagee had the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded as such payment merely, and could not operate to give him title.
In some of the States it is held that a mortgagee out of possession may acquire a tax title; but in a majority of the States this rule does not prevail, but the rule is that a mortgagee, either in or out of possession, may not acquire it as against the mortgagor or other mortgagees. Especially is this the rule in those States where, by the statute, one having a lien upon the premises is permitted to pay the tax and add the amount to his lien. In Maxfield v. Willey, 46 Mich. 252 (9 N. W. 271), it was held that neither party to a mortgage could cut off the other’s interest by bidding in the premises at a tax sale, if the other objected .thereto.
The relations between complainants and defendants Corbin and Harris were such at the time the premises were bid in for the taxes and deeded to Harris that the transaction must be regarded as a redemption, and Corbin and Harris can claim no title under the tax deed. The amount bid was $24.29, which complainants have been willing to pay, with interest.
The decree of the court below must be affirmed, with costs.
Montgomery, C. J., Moore and Grant, JJ., con. curred. Hooker, J., did not sit. | [
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The Court
held that the relator, by his course, had waived his right to the relief sought.
Writ denied. | [
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Per Curiam.
Charles Nichols was involuntarily committed to the Kalamazoo Regional Psychiatric Hospital on or about April 1, 1979, as a mentally ill person requiring treatment. Pursuant to a demand by the Reimbursement Office of the Department of Mental Health, Agnes Nichols, Charles’s wife and the appellee/cross-appellant herein, produced information concerning assets of the couple. From this information, the office prepared a form, No. DMH 2451 (2/77), titled "Individual and Spouse Financial Liability Determination”, and determined that Charles’s and Agnes’s maximum annual personal liability for Charles’s care was $50,578.82. Our review of the form reveals that it was purportedly mailed to Charles on June 4, 1979, and that Agnes preferred not to sign it. The form further bore the note that the determination could be appealed within 30 days.
Agnes appealed the determination and received an administrative hearing on July 24, 1979. The hearing officer considered Charles’s separate property and reduced the annual liability to $6,068.54. Still dissatisfied, Agnes appealed to the probate court. During the pendency of that appeal, the Department of Mental Health requested a rehearing before the hearing officer. The rehearing was granted and, on October 9, 1979, the hearing officer reinstated the original determination of financial liability.
Charles Nichols died on December 12, 1979. The actual cost of the care rendered to him by the department totalled $17,357.71. Agnes’s appeal to probate court proceeded slowly and culminated in a lengthy and complete opinion, dated January 29, 1982, in which the court reversed the decision of the administrative tribunal and remanded for further proceedings.
The probate court concluded first that the department had failed to completely and correctly prepare the financial liability form, contrary to statute and administrative rules and procedures. The court further held that Agnes was entitled to consideration of her two claims of Charles’s duty to support her and of her married woman’s separate property rights, that her separate property was protected, and that her and Charles’s social security benefits were protected while they were alive. The court also concluded that, although Charles had not appealed the determination of liability, he was entitled to ongoing notice of the proceedings, because collection would be against his assets. Apart from the notice problem, however, the court upheld the continuing jurisdiction of the administrative tribunal pending appeal. Finally, the court declined to address Agnes’s equal protection claim or to hold a de novo hearing.
The department appealed to circuit court and Agnes cross-appealed. The circuit court affirmed the reversal and remand ordered by the probate court but gave further analysis on the issue of protected property. The court noted that Agnes’s separate property was protected at all times, but her and Charles’s social security benefits were protected only while they were still living. The court therefore concluded that Agnes’s separate property should not be considered in determining financial liability, while social security benefits should be included in the determination because they could be levied against following the death of the recipient.
The department appeals to this Court by leave granted and raises the one issue of a married woman’s separate property rights. The department has initially argued that separate property should be includable in the determination of liability regardless of whether the property can ever be attached, but, in its reply brief, the department argues that the Legislature has made the obligation to pay for services the wife’s obligation also. By cross-appeal, Agnes raises several issues, including that of the treatment of her separate property, and we will address the issues seriatim as raised by the cross-appeal.
1. Do the ñnancial liability provisions of the Mental Health Code deny Mrs. Nichols the equal protection of law?
Section 804 of the Mental Health Code, MCL 330.1804; MSA 14.800(804), provides that an indi vidual, the spouse, and the parents are financially liable for services provided to the individual by the department. MCL 330.1800(c); MSA 14.800(800)(c) defines parents as meaning the legal father and mother of an unmarried individual who is less than 18 years of age. Mrs. Nichols does not contest the ability of the Legislature to impose financial liability on the patient or relatives, but she argues that the classification in § 804 is unreasonably underinclusive.
Mrs. Nichols’s argument begins with a forerunner to the present § 804, namely the reimbursement provision of 1963 PA 52, which provided:
"The patient, husband, wife, father, mother, grandfather, grandmother and children of any age, being of sufficient ability, shall jointly and severally be liable for the care and maintenance of any patient.”
The provision was upheld by this Court against an equal protection challenge in In re Raseman Estate, 18 Mich App 91; 170 NW2d 503 (1969), lv den 385 Mich 780 (1971). Considering three factors— causation, benefit and moral duty — the Court concluded that the Legislature had created a proper class to bear the burden of contributing to the support of patients at state mental institutions. 18 Mich App 103-104. Mrs. Nichols now argues:
"Our Michigan Courts have already held that it is proper to include children, grandparents, and parents of adult children in the class and require them to support the patient. This raises the question of whether the moral obligation of children, grandparents, and parents of adult children is less because they are omitted from the statute than if they had been included in the statute. We think their obligation is the same and the legislature, having previously and properly included all of them as a class, cannot now, without arbitrary discrimination, exclude them from any obligation to contribute. The parents of adult children or the grandparents of the children in many cases, are substantially more able to pay for a patient’s support than a spouse or parents of minor children * * *.”
We do not think it is necessary to put Mrs. Nichols’s assumption about moral obligation to the test as we find it reasonable that the Legislature, in § 804, has narrowed the class to those who clearly receive the greatest benefit from the services provided by the state, being in the usual instance members of the patient’s household.
Mrs. Nichols argues that, in any event, she has been denied equal protection of the law because her financial liability is determined in a manner quite different from that of parents. Determination of financial liability is addressed by MCL 330.1818; MSA 14.800(818). Subsections (c) and (d) provide that the ability to pay of a single individual and of a married individual and spouse shall be determined from a consideration of the total financial situation. In contrast, subsection (f) provides that parents’ ability to pay is a portion of income subject to tax. Mrs. Nichols feels aggrieved because, if her and her husband’s taxable income was the basis for their ability to pay, they would allegedly sustain no financial liability.
We find the different approaches to determining financial liability explainable as follows. By § 806(1), parents are made only secondarily liable for services provided to their children. By § 814, parents’ ability to pay is determined on the basis of their total financial situation only if they wilfully refuse to apply for insurance proceeds or other benefits to which their child is entitled. In contrast, a spouse’s liability is not secondary but made joint with that of the patient by § 806(2). We do not find this classification by the Legislature to be palpably arbitrary. In re Raseman Estate, supra, p 104.
2. Was Mrs. Nichols entitled to a trial de novo in either the probate court or the circuit court?
Mrs. Nichols complains that she was required to present her case to a hearing officer who had no authority to hear and did not hear any constitutional issues. All that the probate or circuit court would do was review the record, she states.
Section 104(3) of the Administrative Procedures Act (APA), MCL 24.304(3); MSA 3.560(204)(3), provides that review of a final decision or order of an administrative tribunal in a contested case "shall be confined to the record”. The probate court in the instant case specifically relied on this statutory provision in refusing to address Mrs. Nichols’s equal protection claim. The court stated that the matter should have been raised in the administrative proceeding.
While the APA limits review to the record, it also provides Mrs. Nichols a remedy rendering a de novo court hearing unnecessary. Section 105 of the APA, MCL 24.305; MSA 3.560(205), provides in relevant part:
"If timely application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that an inadequate record was made at the hearing before the agency or that the additional evidence is material, and that there were good reasons for failing to record or present it in the proceeding before the agency, the court shall order the taking of additional evidence before the agency on such conditions as the court deems proper.”
Mrs. Nichols fails to show that she attempted to avail herself or was denied her rights under this statutory provision in order to supplement the record. Accordingly, we hold that she was not denied due process by not having a trial de novo on appeal from the administrative tribunal.
3. Was Mrs. Nichols entitled to a jury trial?
MCL 330.1834; MSA 14.800(834) provides that a determination of financial liability may be contested by means of an administrative hearing held pursuant to the APA. A jury is not made a part of such a hearing and § 104(3) of the APA specifically precludes a jury upon judicial review. Mrs. Nichols argues that these statutory provisions are unconstitutional because they deprive her of a constitutionally guaranteed jury trial. Const 1963, art 1, § 14. She asserts that she is guaranteed a jury because the determination of financial liability is part of an action for collection of money by the state.
We are not persuaded to equate an administrative financial liability determination with a subsequent collection action. We have been presented with no authority to the contrary. Certainly, in some instances a collection action may come right on the heels of a liability determination and, of course, the determination is a necessary precedent to the collection action; nevertheless, we recognize them as separate proceedings.
4. Was Mr. Nichols entitled to notice of these proceedings?
The probate court concluded that Mr. Nichols was entitled to notice and that holding has apparently not been disturbed. The objective of Mrs. Nichols’s argument, however, is to have the proceedings declared null and void from the beginning. This we will not do.
We note that Mr. Nichols was apparently sent a copy of the initial determination of financial liability with its notice of the availability of an appeal. He did not appeal and there is no evidence that he was notified of any further proceedings. However, we believe that Mrs. Nichols is without standing to raise an objection to such lack of notice on his behalf.
5. Does consideration of Mrs. Nichols's separate property violate her rights under Const 1963, art 10, §1?
Const 1963, art 10, § 1 provides that the disabilities of coverture as to property are abolished and that the real and personal property of a married woman "shall not be liable for the debts, obligations or engagements of her husband”. With the exception of City Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973), this Court has consistently interpreted the constitutional provision to mean that all disabilities of coverture have been abolished. Carpenter v Smith, 147 Mich App 560; 383 NW2d 248 (1985), and cases cited therein.
Mrs. Nichols contends that the "Mental Health Code is unconstitutional insofar as it attempts to or authorizes a charge for Charles Nichols’s care to be paid out of her separate property or uses her separate property as a base for determining her ability to pay”. We disagree. Mrs Nichols’s argument is based on a misunderstanding of the code.
Section 804 of the code states that an individual and spouse shall be financially liable for services provided to the individual by the Department of Mental Health. The statute thus makes reimbursement for services provided an obligation of the individual and spouse together, treating husband and wife equally. See also MCL 330.1806(2); MSA 14.800(806)(2). As addressed in In re Raseman Estate, supra, and as we discussed above in Issue 1, the classification of obligors for services provided is supported by considerations of causation, benefit and moral duty. We do not perceive § 804 as an imposition of a disability of coverture.
This conclusion leads us to address the analysis of the circuit court so that the implications of our conclusion are clear. The circuit court noted that the predecessor to the Mental Health Code provided for joint and several liability of the various obligors, but that, a year after Kloostra, supra, the Legislature enacted the code and provided for joint liability of individual and spouse. The court concluded that the proper construction of the code, at least in 1979, was that a spouse is only jointly liable, not jointly and severally liable. We disagree.
The code speaks of joint determination of liability in § 806(2) and of joint ability to pay in § 818, but it does not refer to "joint liability”. Section 802 establishes "financial liability” and § 804 directs that the individual, the spouse and the parents "shall be financially liable”; this language does not suggest anything short of joint and several liability. We read § 806(2), not as a limit on the liability provided by the earlier sections, but as a method for determining liability. Were we to hold otherwise, there would be no provision in the code providing for liability from the individual’s separate estate; yet, it has been an underlying assumption of the parties and the courts below that the individual’s separate estate should be considered in the determination of liability and is subject to legal process.
6. May social security beneñts and teachers’ pensions be considered in determining ability to pay?
Both parties recognize that social security benefits and teachers’ pensions are not subject to legal process while the recipient lives but are no longer protected upon death. Mrs. Nichols would inter pret this protection so broadly as to prevent any consideration of such benefits in the ability-to-pay determination mandated by § 818 of the Mental Health Code, which provides that "ability to pay shall be determined from a consideration of their total financial situation”. However, we conclude that mere consideration of the protected benefits does not constitute subjecting them to legal process. See State Collection Unit v Stewart, 438 A2d 1311 (Md, 1981).
7. May Mrs. Nichols alone be sued on a joint obligation of herself and her husband?
In raising this issue, Mrs. Nichols assumes that she and her husband are joint obligors of a particular contract. In light of our holding on Issue 5 above that the code imposes joint and several liability, Mrs. Nichols’s argument on this issue lacks merit.
Mrs. Nichols’s final issue relates to attorney fees and assumes that she prevails. We need not address this issue because she has not prevailed.
The order of the circuit court remanding to the agency for a new financial liability determination is affirmed with the modification that the agency may consider Mrs. Nichols’s separate property. No costs. | [
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Allen, J.
In an action for battery and use of unreasonable physical force on a student, must the trial judge instruct on battery solely pursuant to the standard jury instructions, and must the trial judge inform the jury that the school code provision dealing with corporal punishment, MCL 380.1312; MSA 15.41312, applies only where the teacher is acting to maintain proper discipline? These questions and others confront us in this case of first impression concerning discipline in the public schools.
On January 23, 1981, plaintiff Frank Dain Willoughby was a student in defendant Roger Lehrbass’s fifth hour advertising class at Freesoil Community School. On that date, before Lehrbass’s class began, the principal asked plaintiff to assist in replacing some doors which had been removed from their hinges. After completing this task, Willoughby walked into the advertising class a few minutes late. According to Lehrbass, another student was giving an oral presentation for the final examination. Willoughby, nevertheless, walked by Lehrbass’s desk and with a sweeping motion of his hand started to brush into the wastebasket a number of folded-up pieces of paper sitting on Lehrbass’s desk. Lehrbass was using the slips of paper to select the order in which the students would give their oral presentations.
As Willoughby swept his hand across the desk, Lehrbass grabbed his arm and instructed him not to touch the papers. Willoughby then intentionally or accidentally kicked the wastebasket over, and, according to Lehrbass, mumbled something which sounded disrespectful.
Willoughby then walked to a seat in the front row around where he usually sat. Although the students did . not have assigned seats, they normally sat in the same area each day. Willoughby testified that he tried one seat in the front row but found it broken or too low. He then headed for some empty seats in the back. When he was halfway there, Lehrbass came up from behind, grabbed his left arm and twisted it behind his back in a "half nelson”. Lehrbass said, "Come on, Frank, let’s go.” Lehrbass began marching Willoughby to the principal’s office.
Lehrbass pushed Willoughby out of the classroom and up the steps. Willoughby said, "Let go, you’re hurting me.” On the landing, Willoughby squirmed loose and said he could find the office himself. However, according to Lehrbass, Willoughby started toward the steps going down— away from the office. (Willoughby’s version was that he turned around to go up the steps.) In any event, Lehrbass then grabbed Willoughby in a "full nelson”, with his arms underneath Willoughby’s armpits and his palms on the back of Willoughby’s neck. Willoughby testified that he heard cracking up and down his back, and felt pain and soreness as Lehrbass pushed against his neck and back.
Lehrbass released Willoughby at the top of the stairs near the principal’s office. Inside the office, Willoughby and Lehrbass each told the principal, defendant James Duvall, their versions of what had transpired. Willoughby asked to call home, but Duvall refused this request. Willoughby then attended his next class, physical education, where he participated in a game of speedball.
Willoughby testified that he consulted a chiropractor that evening because of continuing soreness in his back, neck, and shoulders. He treated with the chiropractor for some time. Subsequently, he saw an orthopedic surgeon who diagnosed his condition as myofascitis, an inflammation of the back muscles or tissues.
Plaintiffs’ complaint, filed July 23, 1981, charged defendants with false imprisonment, negligent hiring and supervision, and gross abuse and use of unreasonable force on Willoughby. These latter allegations were apparently based on MCL 380.1312, which provides in pertinent part:
"(2) A teacher or superintendent may use reasonable physical force on the person of a pupil necessary for the purpose of maintaining proper discipline over pupils in attendance at school.
"(3) A teacher or superintendent shall not be liable in a civil action for the use of physical force on the person of a pupil for the purposes prescribed in this section, except in the case of gross abuse and disregard for the health and safety of the pupil.”
Prior to trial defendants moved for partial summary judgment on the counts alleging false imprisonment and negligent hiring and supervision. The trial court granted this motion on governmental immunity grounds. Subsequently, on April 7, 1983, the trial court granted plaintiffs’ motion to amend their complaint to charge a civil rights violation under 42 USC 1983.
On the first day of trial, April 20, 1983, the trial court dismissed the civil rights count on defendants’ motion. The case proceeded to trial on the intentional tort count, and the jury returned a. verdict of no cause of action in favor of defendants.
Plaintiffs moved for a new trial, judgment notwithstanding the verdict, and rehearing. The trial court denied these motions on July 22, 1983. Plaintiffs filed an application for delayed appeal, which this Court granted on March 29, 1985. Seven issues, the fourth issue being of first impression, are raised on appeal. We discuss them seriatim and affirm.
I
On April 7, 1983, the trial judge allowed plaintiffs to amend their complaint to allege a cause of action under 42 USC 1983, and promptly thereafter plaintiffs filed an amended complaint alleging, inter alia, that prior to January 23, 1981, Roger Lehrbass had "on several occasions engaged in violent, assaultive and intemperate behavior, allegedly for the purpose of disciplining students”. However, on the first day of trial, prior to the commencement of trial proceedings, the court ruled that the civil rights cause of action was not a part of the proceedings. The court explained that the subject was not raised in time for the court to familiarize itself on the federal question and further it was because the court felt there would be confusion as to whether ordinary negligence alone might justify the civil rights claim.
Then, at the hearing in July, 1983, on plaintiffs’ motion for a new trial, the trial judge stated that based on the testimony at trial there was really nothing which would have cause the jury to have decided the case any differently had the civil rights cause of action been heard. The trial court concluded that both because of the lateness in the proceedings when the civil rights action was raised, as well as the court’s observation of the evidence presented, it was satisfied that even though the court could have given a more "expanded reason” prior to the date of trial, it was not wrong to deny the motion for inclusion of the civil rights claim.
Plaintiffs argue that the trial judge committed reversible error based upon the fact that dismissal of the civil rights cause of action cannot be supported by the trial judge’s unfamiliarity with the federal cause of action; the dismissal was inconsistent with the trial judge’s original grant of plaintiffs’ motion to amend their complaint to add the cause of action; and, when viewing the evidence in a light most favorable to plaintiffs, the evidence establishes that plaintiffs had sufficiently pleaded a 42 USC 1983 cause of action.
A major portion of the parties’ briefs on this issue is devoted to how to characterize the trial judge’s action. The standard of review differs depending on whether the court’s action was an involuntary dismissal under MCR 2.504(B), formerly GCR 1963, 504.2, a directed verdict granted under MCR 2.515, formerly GCR 1963, 515.1, a grant of summary judgment under MCR 2.116(0(10), formerly GCR 1963, 117.2(3), or a denial of a motion to amend pleadings. However, in our opinion it makes no difference which way the court’s action is characterized. Assuming, arguendo, that the court erred by refusing to allow plaintiffs to litigate their civil rights claim, any error was harmless based on the fact that the verdict would have been the same in the absence of the assumed error. Knoper v Burton, 383 Mich 62, 68; 173 NW2d 202 (1970); Pelley v Peterbilt Motors Co, 133 Mich App 664, 667; 350 NW2d 787 (1984); MCR 2.613(A).
On a special verdict form the jury specifically found that Lehrbass had not used anything other than reasonable force in disciplining plaintiff Willoughby. In Parratt v Taylor, 451 US 527, 536; 101 S Ct 1908; 68 L Ed 2d 420 (1981), the Court held that suits under 42 USC 1983 must establish that the conduct complained of deprived the aggrieved party of rights, privileges or immunities secured by the Constitution or laws of the United States. In Ingraham v Wright, 420 US 651; 97 S Ct 1401; 51 L Ed 2d 711 (1977), the Supreme Court held that the common law rule allowing a teacher to use reasonable force against a student comports with due process standards. MCL 380.1312; MSA 15.41312, heretofore referred to, basically codifies the common law. Since the jury specifically found that Lehrbass had comported with the Michigan statute, and since the Michigan statute is a codification of the common law which in Ingraham was found not to violate constitutional rights, it is clear that even if the trial judge had allowed the civil rights claim to go to the jury, the jury still would have found no violation under federal law.
II
During voir dire, plaintiffs moved to excuse jurors Jane Myer and Constance Newkirk for cause. The trial court refused the request and plaintiffs excused each juror peremptorily. Plaintiffs claim that the trial court erred based on the fact that the prospective jurors’ responses to questions established that they were biased and, as a result, plaintiffs were forced to use two peremptory challenges that they would not have had to use otherwise. We disagree.
A trial judge has broad discretion in his voir dire examination of a prospective juror, and his decision as to the juror’s impartiality may be reversed on appeal only if it represents a clear abuse of that discretion. McNabb v Green Real Estate Co, 62 Mich App 500, 505-506; 233 NW2d 811 (1975), lv den 395 Mich 774 (1975). Moreover, a juror is presumed to be competent and any party challenging a juror for cause must show that the challenged juror has preconceived opinions or prejudices or other such interests or limitations as would impair his capacity to render a fair and impartial verdict. A trial court must excuse a juror whenever a challenge for cause clearly falls within one of the several grounds established by the court rule. Such a showing is equivalent to a showing of bias or prejudice. McNabb, supra, pp 505-506.
GCR 1963, 511.4, subds (4), (5), and (13), now MCR 2.511(D), subds (4), (5), and (13) state that it is grounds for a challenge for cause where a person shows a state of mind that will prevent him from rendering a just verdict or has formed a positive opinion on the facts of the case or on what the outcome should be, has opinions or conscientious scruples that would improperly influence that person’s verdict, or is interested in a question like the issue to be tried.
Applying the above standards to the facts of this case, it is our opinion that there are not sufficient grounds for this Court to find that the trial judge abused his discretion in refusing to excuse jurors Myer and Newkirk for cause. Myer specifically stated that her background and her acquaintance with her mother-in-law would have no effect on her impartiality. Moreover, Myer is no longer a teacher’s aide and stated that she left the profession because she did not like it. Hence, it does not seem that Myer was unduly interested in a question like the issue to be tried. Based upon the above, there are simply no grounds for finding that the trial judge improperly refused to excuse Myer for cause. Hence no reversible error occurred with regard to the removal of this juror.
A similar situation existed with regard to juror Newkirk. The fact that she had been a teacher for nine years prior to trial and that her husband was presently a teacher in another school district does not, in and of itself, establish that she either had an interest in the litigation or had opinions that would improperly influence her verdict. Newkirk stated that her experience would have no influence on her perception of the evidence nor of the verdict.
Plaintiffs’ characterization of Newkirk’s statements suggests that Newkirk was involved in a situation similar to that in the case presented in the instant trial. However, the transcript reveals that Newkirk only supposed that she and her husband experienced the general discipline problems that any teacher would experience during the course of their professional careers. Hence, it is evident that there was no specific incident where either Newkirk or her husband were faced with a problem involving discipline of the magnitude presented by the instant case.
Ill
Prior to trial, plaintiffs’ attorney brought a motion in limine to prevent the introduction of evidence concerning previous bad acts committed by Willoughby. Specifically, the parties were con cerned about the introduction of evidence concerning a past incident involving a penknife. The parties mutually agreed not to discuss that issue and the trial court then instructed defendants’ attorney not to ask any questions as to the use of a knife. During trial, defendant Lehrbass testified without objection that he had Willoughby in his classes for a total of six different courses.
During closing argument, the following occurred:
”[.Defendants’ attorney, Mr. Ward:] Now, you know, I was interested, I was hoping it would come up in Dr. Ewing’s testimony. On his wall, there’s one on the wall of every doctor’s office in the world, a Hypocratic Oath and as I was listening to him, I looked up there and I saw it and every doctor says that they will hold their teacher equal to their parents in this art. The reason for that is that a doctor can’t practice medicine until he’s a disciplined doctor. Almost the most important part of his skill is discipline. Now, was what Roger Lehrbass did reasonable? I’m just going to ask you to consider this, that this didn’t happen like that. Roger Lehrbass had the benefit of having had that young man in his classroom for three years. He’d had him, I think, in six different courses—
"Mr. Broberg: I’m going to object, your Honor, to Counsel raising this on argument. I believe we had an agreement—
"Mr. Ward: It’s part of the testimony that he knew the young man from six courses.
"The Court: Let’s go into chambers and see. (Whereupon, both Counsel and the Court left the Courtroom at about 9:50 a.m. and returned to the Courtroom at about 9:52 a.m.)”
Plaintiffs argue that the above statement made during closing argument violated the parties’ stipulation and constituted misconduct of defense counsel requiring reversal. Objectionable comments made by counsel which were designed to, and which undoubtedly did, influence the jury improperly and unfairly during trial are grounds for a new trial. Benmark v Steffen, 9 Mich App 416; 157 NW2d 468 (1968); Watson v Montmorency Road Comm, 52 Mich App 258, 260; 217 NW2d 129 (1974). We find no error.
The stipulation only barred evidence of the past incident involving a penknife, or, if read broadly, any evidence with regard to the past bad acts of plaintiff Willoughby. However, defense counsel’s argument only referred to the fact that Willoughby had been in defendant Lehrbass’ classes on a number of previous occasions. There was no indication in defense counsel’s statement that Willoughby had ever engaged in bad acts on previous occasions. Therefore, it is evident that the parties’ stipulation was not violated in any way.
Defense counsel’s statement does not constitute misconduct which prejudiced plaintiffs based upon the fact that the remark was not intended to nor did it violate the parties’ stipulation. Moreover, the remark was well supported by evidence presented on the record, and no prejudice occurred to plaintiffs because defense counsel did not in any way infer that Willoughby had previously engaged in bad acts in defendant Lehrbass’ classroom.
IV
Plaintiffs next claim error in the jury instructions on battery and the School Code provision concerning corporal punishment. On these topics the trial court instructed as follows:
"Now, in this case, the first claim or the first grounds that the Plaintiff asserts against the Defendants pertains to a statute or a law that Michigan has. I’m now going to read the pertinent portions of that statute.
" 'A teacher or a superintendent may use reasonable physical force on the person or the pupil necessary for the purpose of maintaining proper discipline over pupils in attendance at school. A teacher or superintendent shall not be liable in a civil action for the use of physical force on the person or the pupil for the purposes prescribed in this section except in cases of gross abuse and disregard for the health and safety of the pupil.’
"The Plaintiff has the burden of proof: A, That Frank Willoughby was injured because of Mr. Lehrbass; and, B, that teacher Roger Lehrbass acted in a way that was a gross abuse of Frank Willoughby and showed a disregard for Mr. Willoughby’s health and safety.
"If you find that Roger Lehrbass was using reasonable force for the purpose of maintaining proper discipline over Frank Willoughby, then he would not be liable to the Plaintiff because a teacher is not liable in a civil case for the use of reasonable physical force on a pupil to maintain discipline. If you find that Roger Lehrbass actions were a case of gross abuse and he disregarded the health and safety of Frank Willoughby, then Mr. Lehrbass would be liable.
"Next, you should also consider whether Mr. Lehrbass committed the intentional tort of battery against Frank Willoughby. This is the second claim that the Plaintiff has raised against the Defendant. A battery is the wilful and wanton touching of a person against that person’s will. To prove the second matter, the second claim, the Plaintiff Frank D. Willoughby has the burden of proof that: A, Mr. Roger Lehrbass wilfully and wantonly touched him against his will; and, B, That there was a deliberate intention by Mr. Lehrbass to harm Frank Willoughby or a reckless disregard for the safety of Mr. Willoughby involving a high degree of danger to Mr. Willoughby.”
The trial court also submitted to the jury a number of questions on a special verdict form. The first two questions and answers were as follows:
"Question Number 1: Did Roger Lehrbass grossly abuse and disregard the health and safety of Frank D. Willoughby?
"Answer: No (yes or no)
"Question Number 2: Did Roger Lehrbass wilfully and wantonly injure Frank D. Willoughby or recklessly disregard his safety knowing there was a high degree of danger to Frank D. Willoughby?
"Answer: No (yes or no).”
Plaintiffs argue, as they did at trial and in post-trial motions, that the instructions and verdict form were erroneous for a number of reasons. First, plaintiffs maintain that the trial court erred in failing to instruct that under MCL 380.1312 the standard of gross abuse and disregard for the health and safety of the pupil should be applied only if the jury found that defendant Lehrbass used reasonable physical force for the purpose of maintaining proper discipline over Willoughby.
We find this argument lacking in merit. Jury instructions must be read as a whole, not dissected piecemeal and assigned as error in isolated portions. See Dziurlikowski v Morley, 143 Mich App 729, 734; 372 NW2d 648 (1985); Scalabrino v Grand Trunk W R Co, 135 Mich App 758, 765-766; 356 NW2d 258 (1984). If the jury charge is erroneous or inadequate, reversal is required only where failure to reverse would be inconsistent with substantial justice. Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985); MCR 2.613(A).
Here, the trial court read the statute to the jury, clearly informing them that (1) a teacher could use reasonable physical force on a pupil necessary for the purpose of maintaining proper discipline, and (2) the teacher would not be liable for using physical force on a pupil for the purpose prescribed in the statute, i.e., maintaining proper discipline. (Emphasis added.) The trial court could hardly define the law better than by reading the statute exactly as written. The court also referred to the purpose of maintaining proper discipline twice in the paragraph following the burden of proof instruction. Although it may have been preferable to also add this reference when defining the elements of plaintiffs’ burden of proof, we cannot say that the trial court erred in failing to do so.
Plaintiffs next contend that the jury instructions deviated from the standard jury instructions on battery and required a higher level of proof than that in the standard jury instructions or the common law.
SJI2d 115.02 and 115.21 on battery state in relevant part:
"A battery is the wilful or intentional touching of a person against that person’s will [by another/by an object or substance put in motion by another person]. (SJI2d 115.02).
"Plaintiff has the burden of proving that [defendant wilfully and intentionally touched the plaintiff against the plaintiff’s will/defendant put in motion an object or substance that touched the plaintiff against the plaintiff’s will].” (SJI2d 115.21).
As noted above, the trial court’s charge added the following to the standard instruction: "Plaintiff has the burden of proof that * * * there was a deliberate intention by Mr. Lehrbass to harm Frank Willoughby or a reckless disregard for the safety of Mr. Willoughby involving a high degree of danger to Mr. Willoughby.” Plaintiffs objected to this instruction at trial. Defendants responded that plaintiffs were not entitled to any instruction on battery, and that the court’s charge should have been limited to MCL 380.1312.
The trial judge stated that he had supplemented the standard jury instructions on battery with the standard jury instruction on wilful and wanton misconduct, because plaintiffs’ claim was one of intentional tort and plaintiffs’ complaint asserted wilful conduct. The judge found that under MCL 380.1312, a teacher has the right to wilfully and intentionally touch a pupil under certain circumstances. Thus, the judge felt that using the standard jury instructions on battery alone would have confused and misled the jury.
We find no reversible error. Pursuant to GCR 1963, 516.6(2), now MCR 2.516(D)(2), standard jury instructions requested by a party must be given if "(a) they are applicable and (b) they accurately state the applicable law”. The trial judge’s discretion is invoked in determining whether or not standard instructions are accurate and applicable. Socha v Passino, 405 Mich 458, 467; 275 NW2d 243 (1979); Zwiller v Detroit Coca-Cola Bottling Co, 144 Mich App 505, 507; 376 NW2d 137 (1985). "The standard jury instructions do not establish substantive law, and the trial court has the responsibility for determining that their statement of the law is correct.” Scalabrino, supra, p 763, quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated, (2d ed Supp, 1983), p 204. The appellate court should not reverse for violations of MCR 2.516 "unless it concludes that noncompliance with the rule resulted in such unfair prejudice to a complaining party that the failure to vacate the jury verdict would be 'inconsistent with substantial justice’ ”. Johnson v Corbet, supra, p 327, quoting MCR 2.613(A).
In the case at bar, the trial judge did not deviate from or omit any portion of the standard jury instructions on battery. Instead, he supplemented them with other standard instructions on wilful and wanton misconduct which he found applicable because of plaintiffs’ complaint and the nature of this action as one governed by a specific statute on school discipline. We find no abuse of discretion in the judge’s determinations. In the first place, plaintiffs’ complaint did allege wilful and malicious conduct by defendants. Plaintiffs’ second amended complaint charged:
"15. That Defendant Roger Lehrbass, before Plaintiff Frank Willoughby could seat himself in another chair, with unreasonable force and arms wilfully, maliciously, wrongfully and in complete disregard for the health and safety of Plaintiff Frank Willoughby, grabbed Plaintiff Frank Willoughby and placed him in a 'half nelson’, pulling Plaintiff out of the classroom and into the hall, thereby grossly abusing Plaintiff Frank Willoughby.
"16. That Plaintiff informed Defendant that he was hurt by Defendant’s actions, but Defendant Lehrbass would not release Plaintiff Frank Willoughby and continued to unreasonably, wilfully, maliciously and wrongfully hold Plaintiff Frank Willoughby.
"17. That although Plaintiff Frank Willoughby freed himself from Defendant Roger Lehrbass’ grip, Defendant Lehrbass again wilfully, maliciously, wrongfully, with unreasonable force and arms, and in complete disregard for Plaintiff Frank Willoughby’s health and safety, grabbed Plaintiff placing him in a 'full nelson’, wrenching Plaintiff Frank Willoughby’s back and thereby grossly abusing and greatly injuring Plaintiff.”
These allegations clearly went beyond the common law tort of battery as defined in the standard jury instructions. In fact, plaintiffs’ complaint did not mention the word "battery”. Looking to the complaint, the trial judge could properly find that the allegations of wilful, malicious, and wrongful grabbing and holding of Willoughby and of "grossly abusing” him in effect amounted to claims similar to those referred to in SJI2d 14:02.
Furthermore, in fashioning the jury instructions the trial judge had to take into account MCL 380.1312, the school code provision dealing with corporal punishment. As the judge observed, this section expressly permits a certain degree of wilful and intentional touching of a student by a teacher. To instruct on the standard jury instructions for battery alone might indeed have left the jury with the mistaken impression that the tort of battery somehow negated the statutory provisions.
Although there are no published Michigan opinions dealing with corporal punishment of a student, decisions in other jurisdictions are legion. The general rule is that a teacher is immune from liability for reasonable physical force or punishment used on a pupil to maintain discipline. Factors to consider in assessing the reasonableness of the punishment are the nature of the punishment, the child’s age and physical condition, and the teacher’s motive in inflicting the punishment. Anno, Teacher’s Civil Liability for Administering Corporal Punishment to Pupil, 43 ALR2d 469, 472, § 3; Restatement Torts, 2d, §§ 147, 150, 151, 155. See, eg., Tinkham v Kole, 110 NW2d 258 (Iowa, 1961); Roy v Continental Ins Co, 313 So 2d 349 (La App, 1975), writ den 318 So 2d 47 (1975); LaFrentz v Gallagher, 105 Ariz 255; 462 P2d 804 (1970).
Courts have held the above principles applicable in actions for assault and battery, where a state statute permits a teacher to use reasonable physical force to maintain order in the classroom. Simms v School Dist No 1, Multnomah County, 508 P2d 236 (Or App, 1973); Hogenson v Williams, 542 SW2d 456 (Tex Civ App, 1976). Where punishment is excessive or improper, the teacher may be guilty of assault and battery. See Roberts v Way, 398 F Supp 856 (D Vt, 1975); Sansone v Bechtel, 180 Conn 96; 429 A2d 820 (1980); Baikie v Luther High School South, 51 111 App 3d 405; 9 111 Dec 285; 366 NE2d 542 (1977).
We think that in Michigan, as well, the Legislature intended that a teacher might be guilty of assault and battery when his or her conduct exceeds the parameters of the statute. MCL 380.1312. The statute was not intended to abrogate the common-law torts of assault and battery but, rather, was intended to carve a limited exception into the common-law doctrine in order to provide educators with the necessary means of maintaining discipline in the classroom. Here the trial judge adequately instructed the jury on the tort of battery as alleged in plaintiffs’ complaint and on the applicable statutory provisions.
Plaintiffs also claim error in the special verdict form which the trial court submitted to the jury. We find no reversible error. Special verdicts are permitted by GCR 1963, 514, now MCR 2.514. Plaintiffs’ argument is that the special verdict questions reinforced the errors in the instructions. Since we have found no reversible error in the instructions, however, we reject this argument as well.
Finally, plaintiffs briefly claim that the statute, MCL 380.1312, is unconstitutional as a denial of equal protection of the laws. US Const, Am XIV; Const 1963, art 1, § 2. Plaintiffs maintain that there is no reasonable basis for classifying students subject to physical force at school any differently than nonstudents who may sue for battery under a lesser standard of liability.
We find this argument clearly lacking in merit. The law of equal protection was recently summarized in State Treasurer v Wilson, 132 Mich App 648, 651-652; 347 NW2d 770 (1984), Iv gtd 419 Mich 935 (1984):
"The test to be applied to equal protection challenges depends upon the nature of the individual’s interest affected by the legislation. Grano v Ortisi, 86 Mich App 482, 490; 272 NW2d 693 (1978). If the legislation affects a fundamental right or involves a suspect class, the court applies the strict scrutiny test which places the burden on the governmental authority to show that its regulation was justified by a compelling state interest. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). If the legislation affects substantial rights or makes certain classifications, such as based on gender, the court employs a heightened scrutiny test. Under this test, the burden is on those defending the discrimination to show that it serves important governmental objectives and that the discriminatory means employed are substantially related to the achievements of those objectives. Wengler v Druggist Mutual Ins Co, 446 US 142, 150; 100 S Ct 1540; 64 L Ed 2d 107 (1980). If no special right or classification is involved, the rational basis test is employed. Under this test, the party attacking the statu tory classification has the burden of showing that the classification lacks a reasonable basis. If there is a reasonable relationship between the statutory classification and a legitimate state interest, the statute does not violate the Equal Protection Clause. Forest v Parmalee, 402 Mich 348, 356; 262 NW2d 653 (1978).” 132 Mich App 651-652.
Here we find that the legislation does not affect a fundamental right or involve a suspect classification. Whether it affects substantial rights is debatable; the right to be free from wilful and intentional touching is certainly not insubstantial, but may not rise to the level of rights requiring a heightened scrutiny or "means scrutiny” test. We need not decide this question, however, since under either the rational basis or heightened scrutiny test the legislation passes constitutional muster. The statute serves the important governmental objective of maintaining discipline in the schools to ensure a proper environment for education. Allowing the teacher to use limited physical force in certain circumstances is substantially related to achieving this objective. Moreover, there is clearly a reasonable relationship between the classification drawn and the legitimate state interest of maintaining proper discipline. Hence, we must reject plaintiffs’ equal protection challenge.
V and VI
Plaintiffs contend that they are entitled to a new trial under GCR 1963, 527.1(5), now MCR 2.611(A)(1)(e), because the verdict of the jury was contrary to the great weight of the evidence. Where there is competent evidence to support the finding of the jury, its verdict should not be set aside. Bell v Merritt, 118 Mich App 414, 422; 325 NW2d 443 (1982), lv den 417 Mich 954 (1983). The testimony is clear and convincing that young Willoughby was creating a classroom disturbance and that defendant Lehrbass felt that it was necessary to take Willoughby to the school office to restore order. While there is conflicting testimony as to just how much force was necessary to apply to Willoughby on the stairway leading to the office, even Willoughby’s own witness, Michael Morang, testified that Willoughby was arguing with defendant Lehrbass and struggling to get away all the way up the stairs. Based on our review of the record, we find little evidence that defendant Lehrbass’s use of force was unprovoked and unreasonable. Indeed, the weight of the evidence establishes the contrary.
Plaintiffs also argue that they were entitled to a judgment notwithstanding the verdict. According to plaintiffs, reasonable persons would not disagree that defendant Lehrbass employed excessive force. The standard of review for a judgment notwithstanding the verdict is whether reasonable men could differ after viewing the facts most favorably to the opposing party. Mackey v Island of Bob-Lo Co, 39 Mich App 64; 197 NW2d 151 (1972). A judgment notwithstanding the verdict may be granted only where there is insufficient evidence, as a matter of law, to make an issue for the jury. Napier v Jacobs, 145 Mich App 285, 291; 371 NW2d 879 (1985). Because the testimony so clearly discloses conflicting views as to the appropriateness of the degree of force used as well as conflicting views as to whether young Willoughby was indeed injured, reasonable minds could differ. Accordingly, the trial court did not err in denying plaintiffs’ motion for judgment notwithstanding the verdict.
VII
Finally, it is argued that the trial court erred by granting summary judgment in favor of both the corporate defendants and individual defendants on amended counts III and IV on the basis of governmental immunity. Count III of the second amended complaint alleged that defendants Free-soil School Board, Freesoil School District, School Superintendent Dr. L. Vern Hoyt and school principal James R. Duvall were reckless or negligent in failing to properly supervise, train, discipline or instruct defendant Lehrbass with regard to his conduct involving students and, therefore, their failure to properly screen, hire and/or retain defendant Lehrbass resulted in physical injury to plaintiff Frank Dain Willoughby. In count IV plaintiffs alleged that defendants Lehrbass and Duvall falsely imprisoned Willoughby in Duvall’s office when, despite Willoughby’s requests to be released, and for permission to leave Duvall’s office and be permitted to call his parents to obtain assistance, Duvall refused his requests in complete disregard for Willoughby’s health and safety.
Prior to trial, defendants moved for summary judgment contending that counts III and IV should be dismissed based upon the governmental immunity doctrine. The trial judge, on April 19, 1983, issued his opinion granting the motion on the basis of governmental immunity. The trial judge applied pre-Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), case law and determined that defendants’ activities in screening, hiring, and supervising a teacher are activities falling under the statute providing immunity to governmental agencies. Hence, according to the trial judge, dismissal of count III was appropriate based upon the governmental immunity doctrine.
Regarding count IV, the trial judge stated that Duvall’s and Lehrbass’s activities constituted supervisory functions establishing grounds for a finding that immunity existed for such activities.
Plaintiffs argue on appeal that partial summary judgment was inappropriate because the governmental immunity doctrine is not applicable pursuant to the new interpretation of that doctrine in Ross, supra. Because two counts and two distinctive groups, namely the governmental agencies and individual employees of the governmental agencies, are involved, it is necessary that the legal issues be treated separately.
Count III
(A) The School Board and School District
Regarding plaintiffs’ negligent hiring or supervision claim, the appropriate governmental immunity test that must be applied pursuant to Ross is whether the school board and school district were engaged in a governmental function in hiring and supervising defendant Lehrbass. Ross, supra, p 591. A governmental function, according to Ross, is any activity expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross, supra, p 620.
In Regulski v Murphy, a case which was consolidated in the Ross decision, the Supreme Court noted that a school district is required under § 1282 of the School Code of 1976, MCL 380.1 et seq.; MSA 15.4001 et seq., to establish and carry on the departments it deems necessary or desirable, to determine the courses of study to be pursued, and to make reasonable regulations concerning anything necessary for the proper establishment, maintenance, management, and carrying on of public schools including regulations concerning the safety of children while in attendance at school. Ross, pp 649-650. Based upon the fact that the school board in Regulski was expressly authorized to offer a specific building trade course in which a student was injured, the Court found the injuries arose while the school district and its employees were engaged in the exercise or discharge of a governmental function.
In the case at bar, § 1231 of the School Code of 1976 expressly provides that the board of a school district has the authority to hire and contract with qualified teachers and to continue their contracts as it deems appropriate. Hence, it is evident that the school district was engaged in the exercise of a governmental function in hiring and continuing the employment of defendant Lehrbass. Therefore, it was entitled to governmental immunity from tort liability and the trial judge did not err in granting summary judgment on count III.
(B) Superintendent Hoyt and Principal Duvall
Regarding the two named individuals, Ross requires application of the test for individual governmental immunity; namely, whether the individual employees (a) were acting during the course of their employment and acting, or reasonably believed they were acting, within the scope of their authority; (b) acting in good faith; and (c) performing discretionary-decisional, as opposed to ministerial-operational, acts. Ross, supra, p 592.
There is no allegation in the second amended complaint that Hoyt and Duvall were not acting in the course of their employment. Therefore, the first prong of the Ross test is satisfied. In addition, plaintiffs’ second amended complaint merely alleges that defendants wilfully, recklessly, negligently and/or grossly negligently failed to super vise, train and discipline defendant Lehrbass. However, in order to establish bad faith under Ross, it would seem that based upon the policy of the qualified immunity doctrine a plaintiff would have to establish that the governmental actor engaged in malicious or intentionally unlawful behavior. Ross, supra, pp 632-633. Plaintiffs’ mere conclusory allegations that these two defendants wilfully or recklessly or negligently failed to supervise Lehrbass simply are not sufficient to establish bad faith on the part of these defendants. Therefore, the second prong of the Ross analysis was satisfied.
Finally, because the superintendent and principal of a school are vested with broad powers and authority regarding the employment of teachers under the School Code of 1976, e.g., §§ 247, 248, 346, we hold that the principal and superintendent were engaged in discretionary acts in hiring and retaining defendant Lehrbass because they had the power of personal deliberation, decision and judgment. Ross, p 634. Therefore, summary judgment with regard to these two defendants was also appropriately entered pursuant to the doctrine of governmental immunity.
Count IV
(A) Duvall
Count IV alleges that Principal Duvall falsely imprisoned young Willoughby by refusing his requests to leave Duvall’s office and for permission to call his parents. It is not alleged that, in so doing, Duvall was not acting in the course of his employment or that he maliciously or intentionally falsely imprisoned Willoughby. Thus, the first two prongs of the Ross test were satisfied and the question raised boils down to the third prong, viz.: whether Duvall was engaged in a discretionary as opposed to a ministerial act at the time he allegedly held Willoughby in his office.
The duties of a school principal are substantially different than the duties of a school teacher. On a day-to-day level, the job of a principal requires decision making and policy formulation. A number of alternatives were available to Duvall at the time he kept Willoughby in the office. He could have sent Willoughby back to his classroom, imposed a specific punishment upon him, or required Willoughby to remain in the office until he calmed down. Though defendants argue that the decision to discipline is in itself ministerial, the real decision facing Duvall was how to discipline. That involves the exercise of discretion. Accordingly, we believe the trial judge acted properly in granting summary judgment in favor of Duvall based upon governmental immunity.
(B) Lehrbass
In Regulski (consolidated with Ross), supra, the Supreme Court stated that although there was some decision making involved in classroom teaching, it was relatively minor, and that "instruction and supervision are essentially ministerial-operational activities for which there is no immunity from tort liability”. 420 Mich 651. Thus, at first blush it would appear that defendant Lehrbass was not entitled to governmental immunity in falsely imprisoning Willoughby.
However, the uncontroverted testimony at trial was that Lehrbass did not long remain in Duvall’s office. Instead, after giving his version of what transpired in the classroom and the hallway leading to Duvall’s office, Lehrbass returned to his classroom to resume teaching. Willoughby remained in the office with Duvall and again asked to telephone his parents. Thus, when the complaint is read together with the testimony at trial, it is clear that any acts of detaining Willoughby, if indeed there were any, were performed by Duvall.
It is well established that in order to establish the tort of false imprisonment a plaintiff has the burden of proof to establish that he was intentionally and unlawfully restrained against his will. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971). Because plaintiffs did not specifically allege in their complaint that Lehrbass did any act which resulted in the detention of young Willoughby in Duvall’s office and because the proofs showed that Lehrbass soon left Duvall’s office, it would appear that no cause of action regarding false imprisonment exists against Lehrbass.
Therefore, although the trial judge may have incorrectly granted summary judgment in favor of Lehrbass on count IV on the basis of governmental immunity, nevertheless, because the result was appropriate, reversible error did not occur. Albro v Total Petroleum, Inc, 108 Mich App 1; 310 NW2d 252 (1981). Hence, summary judgment in favor of defendant Lehrbass was appropriately entered.
Having found no error mandating reversal, the judgment of the trial court is affirmed. No costs.
See issue IV, infra.
SJI2d 14.02 states:
"Plaintiff charges the defendant with wilful and wanton misconduct.
"The term 'wilful and wanton misconduct’ means more than the failure to use ordinary care. It means conduct which shows [actual or deliberate intention to harm/or/a reckless disregard for the safety of others in the face of circumstances involving a high degree of danger].”
For discussions of common law battery, see Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940); Mitchell v Daly, 133 Mich App 414; 350 NW2d 772 (1984); Overall v Kadella, 138 Mich App 351; 361 NW2d 352 (1984).
Baikie also held that in order to impose liability in an action for assault and battery, the plaintiff must prove wilful and wanton misconduct, which requires an intentional act or an act exhibiting reckless disregard for the safety of others.
The instructions might have been improved by setting forth the factors defining reasonableness, as outlined above. However, with no Michigan law on the subject, no applicable standard jury instructions, and no proper requests from the parties for such instructions, we do not fault the trial judge for failing to further elaborate on the statutory standard of "reasonable physical force”.
"Just as a zebra does not become a horse by being called one, Plaintiff cannot make a supervisory activity into a tort by calling it false imprisonment.”
In Ross the Supreme Court held that lower level officers and employees of governmental units are only given qualified governmental immunity and are only immune from liability if they are (1) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority, (2) are acting in good faith, and (3) are performing discretionarydecisional, as opposed to ministerial-operational, acts. 420 Mich 592. | [
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Per Curiam.
Defendants’ Bruce A. Fox and the Committee to Elect Bruce A. Fox to Circuit Court appeal as of right from a circuit court order enjoining the defendants from publishing signs, circulars or advertisements which would mislead the public into believing that Fox was the incumbent circuit judge in the November, 1984, election in Shiawassee County. We affirm.
On October 30, 1984, plaintiff, the campaign treasurer for the Committee to Elect Gerald D. Lostracco, filed a complaint in Shiawassee County Circuit Court seeking an ex parte preliminary injunction to prevent defendants from engaging in allegedly improper campaign tactics. Both Lostracco and Fox were seeking the office of circuit court judge in Shiawassee County’s November, 1984, election. Defendants, plaintiffs alleged, had posted signs and published circulars and advertisements which were misleading in that they incorrectly gave the impression that defendant Fox was the incumbent circuit judge. The misleading advertisements stated, inter alia, "Bruce A. Fox, Shiawassee Circuit Judge”, "Elect Judge Fox to Circuit Court”, "Elect Judge Bruce A. Fox to Circuit Court”, and "Elect Judge Bruce A. Fox Shiawassee Circuit Judge”. It was alleged that the misleading advertisements violated MCL 168.944; MSA 6.1944, and Professional and Judicial Ethics Opinion No. 74 (March, 1941).
On October 31, 1984, Shiawassee County Circuit Court Judge Peter J. Marutiak disqualified himself from the case. Clinton County Circuit Court Judge Timothy M. Green was immediately appointed to take his place. At the conclusion of the hearing, held November 1, 1984, Judge Green stated he would enjoin defendant Fox from misrepresenting his identity or present position. He found "as a matter of law that the ads run by Mr. Fox violate the Canons of Ethics or the Canons of Judicial Conduct in that they misrepresent his identity, his present position and he shall be enjoined forthwith from any further ads of a similar vein or import”. Months later, on March 5, 1985, Judge Green signed an order stating:
"IT IS HEREBY ORDERED that the Court finds as a matter of law that Defendants’ yard signs, newspaper advertisements, large signs and circulars are, in fact, misleading to the electorate in that the language used therein does give the impression that Defendant Fox is an incumbent Circuit Court Judge when in fact he is not;
"NOW, THEREFORE, IT IS HEREBY ORDERED that the Defendants, BRUCE A FOX and the COMMITTEE TO ELECT BRUCE A. FOX TO CIRCUIT COURT, are hereby enjoined from publishing any signs, circulars, advertisements or other written or oral advertisement containing language which does not specifically inform the public that he is a District Judge so that the public will not be misled into believing that Defendant Fox is the incumbent Circuit Judge.
"IT IS FURTHER ORDERED that Plaintiff shall not make use of this Order in any paid political advertisement during this campaign.”
On appeal, defendants claim that the circuit court was without subject-matter jurisdiction to enjoin a violation of the Code of Judicial Conduct, because, pursuant to Const 1963, art 6, § 30, the Judicial Tenure Commission and the Supreme Court have exclusive jurisdiction over violations of the Code of Judicial Conduct. We disagree. If the plaintiff had not raised anything more than a violation of the Code of Judicial Conduct, the circuit court would have been without jurisdiction to hear the matter. Blackwell v Bayles, 141 Mich App 151; 366 NW2d 13 (1984). Plaintiff, however, also alleged that defendants were engaging in criminal conduct in violation of MCL 168.944; MSA 6.1944, which makes it a misdemeanor for a candidate for public office to give the impression in campaign advertisements that he is the incumbent when in fact he is not. Because the circuit court had jurisdiction to grant an injunction, GCR 1963, 718, we reject defendants’ claim. The circuit court was not divested of subject-matter jurisdiction merely because an allegation of a violation of the Code of Judicial Conduct was attached as one of the grounds for the complaint for injunction.
Defendants next argue that plaintiff failed to establish that he was entitled to injunctive relief. We disagree. Plaintiff showed that he was entitled to equitable relief because defendants’ continued violation of the criminal statute would cause irreparable harm in the election. Based upon our de novo review of the record, Marconeri v Village of Mancelona, 124 Mich App 286, 287-288; 335 NW2d 21 (1983), we believe plaintiff had no other adequate remedy than to seek an injunction. Neither a prosecution for violation of MCL 168.944; MSA 6.1944 nor an investigation by the Judicial Tenure Commission would have stopped the misleading advertisements prior to the election which was one week away when the complaint was filed. Had the defendants’ misleading advertisements been successful, the injury — the loss of votes for plaintiff’s candidate in the election — would have been irreparable and permanent. Because plaintiff proved by a preponderance of the evidence an actual or threatened invasion of his candidate’s right to seek office in a fair election and demonstrated that he had no adequate remedy at law, see Barkau v Ruggirello, 100 Mich App 617, 623; 300 NW2d 342 (1980), injunction was the proper remedy.
We recognize that the court stated on the record that it had granted the injunction because the Fox advertisements violated the Canons of Judicial Conduct. Defendants claim this was impermissible under the rule of Blackwell, supra. However, where the lower court reaches the right result for the wrong reason, we will not disturb the results on appeal. Robertson v City of Detroit, 131 Mich App 594; 345 NW2d 695 (1983).
Next we consider defendants’ contention that the circuit court injunction violated Fox’s right of free speech guaranteed by US Const, Am I and Const 1963, art 1, § 5.
The trial court enjoined defendants from illegally giving the impression that Fox was the incumbent when in fact he was not the incumbent. MCL 168.944; MSA 6.1944 makes such conduct illegal:
"Any candidate for public office who advertises or uses in any campaign material, including radio, television, newspapers, circulars, cards or stationery, the words incumbent, re-elect, re-election, or otherwise indicates, represents or gives the impression that he is the incumbent, when in fact the candidate is not the incumbent is guilty of a misdemeanor punishable as provided in section 934.”
Although both the state and federal constitutions express fundamental personal rights of free speech and expression, the right to freedom of speech or expression is not unlimited. People v Neumayer, 405 Mich 341, 364; 275 NW2d 230 (1979); Heffron v Int’l Society for Krishna Consciousness, Inc, 452 US 640, 647; 101 S Ct 2559; 69 L Ed 2d 298 (1981). Both state and federal law regarding free speech in the political arena provide great protection for speech concerning public affairs. See CBS, Inc v Federal Communications Comm, 453 US 367, 396; 101 S Ct 2813; 69 L Ed 2d 706 (1981); Eyde Construction Co v Meridian Twp, 119 Mich App 792, 794-795; 327 NW2d 364 (1982).
The question of whether the right to free speech in the political arena protects misleading or false statements made by a candidate during an election campaign has received some attention in the federal courts. In Vanasco v Schwartz, 401 F Supp 87, 91 (ED NY, 1975), aff'd 423 US 1041; 96 S Ct 763; 46 L Ed 2d 630 (1976), the federal district court considered the extent to which a state may regulate the speech of those persons seeking public office. Quoting Garrison v Louisiana, 379 US 64, 75; 85 S Ct 209, 216; 13 L Ed 2d 125 (1964), the Court held generally that " 'the knowingly false statement and the false statement made with the reckless disregard of the truth, do not enjoy constitutional protection’ ”. 401 F Supp 92.
Knowing misrepresentations are not constitutionally protected free speech. Here, once the circuit judge determined that defendants’ advertisements were misleading in fact, any republication would have been a knowing misrepresentation. Therefore, we find no infringement on the defendants’ right of free speech in the political arena when the circuit court enjoined such republications.
Finally, we decline to decide defendant Fox’s claim that his campaign materials did not violate Canon 7 of the Code of Judicial Conduct. The Supreme Court and the Judicial Tenure Commission have the exclusive jurisdiction to consider violations of the Code of Judicial Conduct. Blackwell, supra.
Affirmed.
At a hearing on the motion, held November 1, 1984, Judge Fox stated he accepted responsibility for advertisements prepared on his behalf by his election committee. Judge Fox testified that his committee published a correction regarding one of his newspaper advertisements which had stated: "Judge Bruce A. Fox Shiawassee Circuit Judge.” The correction depicted the advertisement as beginning with the word "elect”. | [
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Per Curiam.
In this breach of contract case, the trial court granted defendant’s motion for accelerated judgment, GCR 1963, 116.1(5), now MCR 2.116(C)(7), finding that plaintiff had failed to file suit within one year of the loss and had failed to file a proof of loss statement within 60 days of the loss, MCL 500.2832; MSA 24.12832. We reverse.
On June 28, 1979, a fire completely destroyed plaintiffs’ cottage in Shelby, Michigan. The building was insured under a fire insurance policy plaintiffs had purchased from defendant. Plaintiffs, who lived in Detroit, learned of the fire within 24 hours from friends and immediately made a claim of loss through the agent from whom they had purchased the insurance policy, the Stariha Agency.
Robert S. Pleiss, defendant’s representative, contacted plaintiffs regarding the loss. Pleiss was prepared to determine plaintiffs’ loss based on a policy with a face value of $12,000 until plaintiffs corrected him, pointing out that they had increased the fire insurance coverage to $18,000.
Pleiss prepared a proof of loss statement in the amount of $8,450 and mailed it to plaintiffs for their signatures on August 16, 1979. Plaintiffs objected, requesting the full $18,000. Defendant did not provide plaintiffs with a proof of loss statement in the amount of $18,000, and the 60-day period expired._
Plaintiffs retained an attorney in 1980 and negotiations continued between the parties. The record does not indicate the extent of the negotiations, but plaintiffs argued that there were many telephone conversations and a few letters exchanged. On August 5, 1981, defendant provided plaintiffs with a proof of loss statement in the amount of $9,500, which plaintiffs rejected.
Plaintiffs instituted suit for breach of contract on February 1, 1983. Defendant filed a motion for accelerated judgment, contending that plaintiffs had failed to submit a proof of loss statement within 60 days of the loss and had failed to commence suit within one year of inception of the loss, as required by the contract and statute, MCL 500.2832; MSA 24.12832. Plaintiffs argued that defendant was equitably estopped from raising the limitation period as a defense because defendant had induced plaintiffs to delay filing a proof of loss statement and commencing suit by using negotiations as a dilatory tactic.
At a hearing held December 12, 1983, the trial court granted defendant’s motion and later entered a corresponding order, from which plaintiffs appeal as of right.
I
We first consider whether plaintiffs’ claim was barred by the one-year period of limitation found in the contract and statute, MCL 500.2832; MSA 24.12832.
The policy provides, as authorized by statute:
"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”
Without question, plaintiffs did not commence this suit until February 1, 1983, over SV2 years after the loss.
Faced with this substantial hurdle in the path of recovery on the policy, plaintiffs argue initially that defendant is estopped from asserting the one-year requirement as a bar because of its negotiations with plaintiffs and failure to deny liability until after one year had expired.
To avoid a statute of limitations defense using an estoppel theory, a plaintiff must allege action by the defendant, such as concealment of a cause of action, misrepresentation as to the time in which an action may be brought, or inducement to refrain from bringing an action. Robinson v Associated Truck Lines, Inc, 135 Mich App 571, 576; 355 NW2d 282 (1984). Negotiations, if deliberately intended to forestall commencement of an action, will be considered an inducement sufficient for application of the equitable estoppel theory. Friedberg v Ins Co of North America, 257 Mich 291; 241 NW 183 (1932); Better Valu Homes, Inc v Preferred Mutual Ins Co, 60 Mich App 315; 230 NW2d 412 (1975).
However, even if we assume that negotiations between the date of loss and August 5, 1981, (when the final $9,500 proof of loss was prepared by the insurance company) were intended by the insurer to forestall filing, there is nothing in the record to support a finding that such bad faith negotiations continued thereafter. From August, 1981, to February, 1983 — a period of 18 months — plaintiffs cannot reasonably claim that they were induced by their insurer to forego suit. Therefore, the trial court correctly concluded that defendant was not estopped from asserting that plaintiffs’ action was barred by the expiration of the one-year limitation period.
II
For the first time on appeal, plaintiffs argue that the running of the one-year period of limitation was tolled from the time notice was given to defendant to the time defendant formally denied liability.
Although we could decline to consider this issue since the trial court never had an opportunity to pass upon it, we deem consideration appropriate since it is a question of law for which all the necessary facts have been presented. Ledbetter v Brown City Savings Bank, 141 Mich App 692, 702; 368 NW2d 257 (1985).
In Ford Motor Co v Lumberman’s Mutual Casualty Co, 413 Mich 22, 38; 319 NW2d 320 (1982), the Michigan Supreme Court held that:
"The period of limitation begins to run from the date of the loss, but the running of the period is tolled from the time the insured gives notice until the insurer formally denies liability.”
The question then becomes whether plaintiffs gave defendant sufficient notice to toll the running of the period. Defendant asserts that Ford Motor Co should be read to hold that notice is not effected until a plaintiff submits a sworn proof of loss statement to its insurer. Defendant then argues that plaintiffs never submitted a sworn proof of loss statement and therefore the one-year period was never tolled.
We need not now decide whether "notice” as used in Ford Motor Co requires a sworn proof of loss statement. In this case the insurer itself prepared a proof of loss statement, on August 16, 1979 — 49 days after the loss — followed by prompt, definite, unambiguous and undisputed notice that plaintiffs demanded policy limits of $18,000.
Problems associated with unwritten notice, such as an insurer not knowing whether the insured will ever file a claim or not knowing what loss is claimed and whether it is covered, are not present in this case. Plaintiffs clearly indicated a desire to make a claim, and stressed the fact that they were covered for $18,000. Defendant suggests that it could not have denied plaintiffs’ claim since a claim had not yet formally been made, but the facts indicate that defendant knew plaintiffs were making a claim and knew it to be in the amount of $18,000. We are satisfied that the running of the one-year limitation period was tolled, and therefore a grant of accelerated judgment on this basis would be inappropriate.
Ill
We next decide whether the trial court correctly found the action barred by the 60-day proof of loss requirement. Acknowledging that they never signed such a sworn statement, plaintiffs again argue that defendant is estopped from raising this defense to the action.
In Billy Compton’s affidavit in opposition to defendant’s motion for accelerated judgment he avers that defendant mailed plaintiffs a pre-prepared proof of loss statement in the amount of $8,450 on August 16, 1979, and that plaintiffs notified defendant that this amount was wholly inadequate. The record suggests that defendant possessed the necessary claim forms and distributed them to plaintiffs only in pre-prepared form. Also, defendant’s representative allegedly told plaintiffs that he would investigate the claim and prepare the proof of loss statement. If plaintiffs were unable to obtain blank forms or if defendant refused to prepare one in the claimed amount of $18,000, then defendant should be estopped from claiming expiration of the 60-day period. Defendant’s procedural rules for filing the statement of loss should not be used to the detriment of plaintiffs.
Plaintiffs contend in their memorandum in opposition to defendant’s motion for accelerated judgment that they relied on defendant’s assertions that defendant would prepare the proof of loss statement. Since this raises a question of fact as to whether plaintiffs were able to obtain the necessary forms or whether they were forced to rely upon defendant to provide them, the trial court’s grant of defendant’s motion for accelerated judgment was improper. Hearn v Rickenbacker, 140 Mich App 525, 528; 364 NW2d 371 (1985).
Reversed and remanded. Costs to appellants. | [
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Per Curiam.
On March 8, 1983, plaintiff, Doris Gardner as the personal representative of the estate of Freddie D. Mongeau, deceased, and six other persons who are decedent’s next of kin, brought a wrongful death action for damages against defendants, E. A. Fuller Oaks Corporation, a Michigan corporation (hereafter referred to as defendant) claiming that defendant negligently served intoxicating liquors to another defendant, Willis Dalvin Wood, Jr., and that defendant’s negligence caused the death of the decedent, Freddie David Mongeau. Plaintiff specified that she was not pursuing a claim against defendant under the dramshop act. On January 13, 1984, defendant moved for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), asserting that plaintiff had failed to state a claim upon which relief could be granted. The trial judge denied defendant’s motion for summary judgment. This Court denied defendant’s application for leave to appeal from the trial judge’s order, but on petition for leave to appeal, the Michigan Supreme Court, in lieu of granting leave, remanded the case to this Court for consideration as on leave granted.
Plaintiff’s complaint alleged that defendant was the management agent for the Addison-Oaks Banquet facility on June 6, 1982. Pursuant to a wedding reception contract, defendant provided the meals and beverage service at a reception held on June 6, 1982. Bar service included set-up, napkins, condiments and soft drinks. The wedding party was allowed to supply their own alcoholic beverages for consumption on defendant’s premises. Defendant’s employees acted as bartenders at the reception. Neither defendant nor the owner of the premises (Oakland County) held a liquor license.
Willis Dalvin Wood, Jr., who was a guest at the wedding reception, was allegedly served alcoholic beverages by defendant’s employees while visibly intoxicated. Wood left the reception in his automobile and, while in his intoxicated condition, crossed the center line of the road and struck plaintiff’s decedent, Freddie David Mongeau, who died as a result of the injuries sustained in the accident.
Plaintiff alleges that defendant negligently served alcoholic beverages to Wood and that defendant’s negligent conduct was the direct and proximate cause of Mongeau’s death. Plaintiff bases her claim of negligence on defendant’s alleged violation of a statute, MCL 436.26c(2); MSA 18.997(3)(2), which will be further referred to. In denying defendant’s motion for summary judgment, the trial judge held that plaintiff had stated a valid cause of action.
A motion for summary judgment under GCR 1963, 117.2(1) tests the legal sufficiency of the claim based upon the pleadings alone. The factual allegations of the complaint are to be taken as true, along with any inferences or conclusions that can be drawn therefrom. Summary judgment under this section should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.
On appeal, defendant first argues that MCL 436.26c(2); MSA 18.997(3)(2) does not apply to its operations as a management agent. In making this argument, defendant relies upon court decisions which interpreted the statute prior to its revision in 1980. Before the 1980 revision, the statute provided in pertinent part:
"No person shall maintain, operate, lease or otherwise furnish to other persons any premises or place which is not licensed under this act, wherein such other persons may engage in the drinking of alcoholic beverages, for a fee or for any other consideration, * * (Emphasis added.)
In Beacon Club v Kalamazoo County Sheriff, the Michigan Supreme Court found that the primary purpose of this statute was to regulate the use of intoxicating liquors by forbidding "persons” from furnishing to "bottle clubs” premises not licensed under the act. Following the Beacon Club interpretation, this Court, in Moraco v Wayne County Prosecutor, strictly construed this previous statute as applying only to "persons” who provided "premises” to "bottle clubs”, not to a restaurant which sold food and permitted customers to bring alcoholic beverages onto the premises. The reason for this narrow construction was that the statute was a penal statute and, thus, the term "persons” who furnish "any premises” was held to be too broad to interpret literally.
After the Moraco decision, an amendment to the statute became effective on July 2, 1980. After the amendment, the statute read in pertinent part:
"A person owning, operating, or leasing a commercial establishment selling food which is not licensed under this act shall not allow the consumption of alcoholic liquor on its premises.” MCL 436.26c(2); MSA 18.997(3X2).
This added provision is much more specific in that it covers only "persons owning, operation, or leasing a commercial establishment selling food”. This statutory provision is unambiguous on its face and certainly covers more persons than just those who provide premises to "bottle clubs”. In addition, the term "person” in this statute is not limited by the definition given the term "person” for purposes of MCL 436.22; MSA 18.993 in Guitar v Bieniek. The Guitar definition of "person” did not apply to the term "person” in MCL 436.26c(2); MSA 18.997(3)(2) and does not prevent us from ascribing a broader interpretation to the term "person” as the context of the statutory provision requires.
Under the facts as alleged by plaintiff in this case, it is clear that MCL 436.26c(2); MSA 18.997(3)(2) now applies to defendant and that defendant violated this statute. Defendant corporation is a "person” for purposes of this statute. As previously indicated, the Addison Oaks Banquet facility is a commercial establishment selling food (the meals at the reception). Defendant is the management agent of this commercial establishment selling food and, thus, "operates” the establishment. The establishment is not licensed under the Liquor Control Act.
Next, defendant argues that even if it violated the statute, plaintiff cannot assert this violation as a basis for a negligence action. Defendant claims that the sole civil remedy under the Liquor Control Act lies in the dramshop section. The Michigan Supreme Court recently resolved this issue in Longstreth v Gensel, noting that the Liquor Control Act does not apply only to licensees:
"[F]rom the very inception of the act to the present, the people intended the Liquor Control Commission to exercise complete control of the alcoholic beverage traffic within this state, including (and by implication, not limited to) its retail sale. The title of the act has been given a broad interpretation to effectuate the will of the people. See Beacon Club v Kalamazoo County Sheriff, 332 Mich 412, 420; 52 NW2d 165 (1952). The act does more than merely regulate liquor traffic; it involves the public health, safety, and morals. Turner v Schmidt Brewery Co., 278 Mich 464, 469; 270 NW 750 (1936). Therefore, the act was not intended to apply only to licensees. It was intended to govern the entire regulation of liquor within Michigan.”
The Longstreth Court then went on to specifi cally hold that the plaintiffs claim of negligence based on a violation of MCL 436.33; MSA 18.1004 did not involve an attempt to impose liability on a licensee. Therefore, the Court held that the defendant’s reliance on several cases, holding that MCL 436.22; MSA 18.993 was a plaintiffs exclusive remedy against licensees, was misplaced. The Court noted that:
"Unlike § 22, § 33 is not restricted to the regulation of licensees. To the contrary, § 33 indicates that any person who violates its terms is guilty of a misdemeanor.”
As in Longstreth, plaintiff herein is not attempting to impose liability on a licensee. Plaintiff’s claim of negligence is based on a violation of MCL 436.26c(2); MSA 18.997(3)(2). Thus, defendant’s argument that plaintiffs sole remedy is provided in MCL 436.22; MSA 18.993 is without merit. As is the case with MCL 436.33; MSA 18.1004, application of MCL 436.26c(2); MSA 18.997(3)(2) is not restricted to the regulation of licensees. To the contrary, the statute indicates that any person* who owns, operates, or leases a commercial establishment selling food can violate its terms and be guilty of a misdemeanor under MCL 436.50; MSA 18.1021.
Lastly, defendant asserts that its alleged violation of the statute does not provide a basis for a negligence action. We must determine whether the statute provides a basis for liability where the complaint alleges negligence in the operation of an unlicensed commercial establishment selling food, since the consumption of alcoholic liquor was allowed on the premises. In Zeni v Anderson, the Supreme court held that the proven violation of a penal statute, in certain situations, is prima facie evidence of negligence.
First, we must determine whether the statute is a penal statute for purposes of the Zeni analysis. The mere fact that MCL 436.26c(2); MSA 18.993(3)(2) is not part of the Penal Code does not mean that it cannot be considered penal in nature. MCL 436.50; MSA 18.1021 provides that any person other than a licensee who violates any provisions of the Liquor Control Act is guilty of a misdemeanor. Accordingly, we consider the statute to be a penal statute.
Second, we must determine if the statute and the plaintiff in the within case fit the situation where the violation of a penal statute provides prima facie evidence of negligence. As the Longstreth Court noted, 2 Restatement Torts, 2d, § 286, p 25 states:
"The court may adopt as the standard conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
"(a) to protect a class of persons which includes the «one whose interest is invaded, and
"(b) to protect the particular interest which is invaded, and
"(c) to protect that interest against the kind of harm which has resulted, and
"(d) to protect that interest against the particular hazard from which the harm results.” Longstreth, supra, p 693.
Applying this analysis, we find that the alleged violation of MCL 436.26c(2); MSA 18.997(3)(2) was sufficient to preclude summary judgment. The statute was meant to protect a class of persons. The class of persons protected by the statute extends beyond licensees whose economic interests may be harmed if unlicensed commercial establishments selling food are permitted to allow the consumption of alcohol on their premises. As noted above, the statute, as amended in 1980, regulates more than "bottle club” activity that could threaten the economic interests of licensees. The statute now, in part, protects all persons who come into contact with customers of unlicensed commercial establishments selling food. Plaintiff falls within this protected class.
The statute in part protects a particular interest, i.e., freedom from injury caused by the consumption of alcohol on the premises of an unlicensed commercial establishment selling food. The statute was also intended to protect against the kind of harm which resulted, i.e., injury and death. And lastly, the statute was meant to protect against a particular hazard, i.e., the substantially expanded exposure to harm resulting from the dangerous effects of intoxication if unlicensed commercial establishments selling food were permitted to allow customers to consume alcohol on the premises.
Based on this analysis, we conclude that the trial judge properly determined that plaintiff can maintain a cause of action based on defendant’s violation of MCL 436.26c(2); MSA 18.997(3)(2). The violation of the statute creates a prima facie rebut-table presumption of negligence. We note that plaintiff must still establish before a trier of fact that defendant’s violation of the statute was a proximate cause of plaintiff’s decedent’s death. However, we are unable to state that plaintiff’s cause of action is precluded as a matter of law. Therefore, the trial judge properly denied defen dant’s motion for summary judgment based on plaintiffs failure to state a claim.
Affirmed.
MCL 436.22; MSA 18.993.
422 Mich 851 (1985).
Addison Oaks is an Oakland County owned park located in Addison Township.
Attard v Adamczyk, 141 Mich App 246, 248-249; 367 NW2d 75 (1985).
332 Mich 412; 52 NW2d 165 (1952).
98 Mich App 322; 296 NW2d 246 (1980).
402 Mich 152; 262 NW2d 9 (1978).
Longstreth v Gensel, 423 Mich 675, 683; fn 3; 377 NW2d 804 (1986).
MCL 436.2k; MSA 18.972(11).
MCL 436.1 et seq.; MSA 18.971 et seq.
MCL 436.22; MSA 18.993.
Longstreth, supra, pp 682-683.
423 Mich 685.
397 Mich 117, 128-129; 243 NW2d 270 (1976).
Longstreth, supra, p 692, fn 9.
Longstreth, supra, p 695; Zeni, supra, p 143. | [
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] |
Per Curiam.
Plaintiff appeals as of right from a jury verdict of no cause of action in favor of defendant Clark J. Okulski, D.O., and from a directed verdict in favor of defendant Detroit Osteopathic Hospital Corporation. Plaintiffs decedent, Thomas Heins, was 37 years old on the date of his death. He is survived by his wife and two children. The death certificate stated the cause of death as cardiopulmonary arrest and pulmonary embolism. During the four months preceding his death, he was being treated for hydrocephalus, a brain aliment. It is the plaintiff’s contention that the defendants were negligent in their handling of Thomas’s illness and did not provide the reason able recognized standard of care. On appeal plaintiff contends that error occurred in the jury instructions and in several evidentiary rulings. We do not agree and, therefore, the trial court’s decision is affirmed.
Plaintiff argues that the defense counsel’s closing argument was so improper as to have deprived her of a fair trial. Plaintiffs objections are basically to defense counsel’s use of the word "lying”, that defense counsel interjected his personal opinions and beliefs into the argument, and that he insinuated that Dr. Granger (an expert) was a professional witness. Our review of this issue is guided by Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982).
"When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted.” (Footnotes omitted.)
The allowance of counsel’s use of the word "lying” is not reversible error. The allowance of statements made by counsel in closing argument is not error if the statements are made in response to arguments by opposing counsel. Carbonell v Bluhm, 114 Mich App 216, 221-222; 318 NW2d 659 (1982).
Counsel’s characterization of Dr. Granger as a professional witness was not inappropriate as Dr. Granger testified that his practice was indeed limited to evaluations only. As for the objections to the statements that counsel prefaced with "I believe” and "I think”, the trial court did give a curative instruction informing the jury that the opinions of counsel are not evidence and are not important. We do not find any reversible error.
Plaintiff argues that it was error for the trial court to refuse to allow the amendment of plaintiffs complaint to allege a violation of federal regulations and accreditation guidelines. This issue arose during trial when plaintiff attempted to have the court take judicial notice of certain federal regulations. Counsel for the hospital objected on the basis that a violation of regulations had not been pled. The trial court refused to permit the admission of these regulations into evidence on the grounds that it was now two weeks into the trial and that the defendants were entitled to notice of what they were going to have to defend. Our review of the record reveals that plaintiff was attempting to introduce a new claim of prima facie negligence by violation of a regulation. We can find no error in the trial court’s refusal to deny admission of the regulations and standards. Anderson v Harry’s Army Surplus, Inc, 117 Mich App 601, 608; 324 NW2d 96 (1982).
Plaintiff contends that it was error for the trial court to grant a directed verdict in favor of defendant hospital. We review all the evidence in a light most favorable to the nonmoving party, granting him every reasonable inference. Rushing v Wayne County, 138 Mich App 121, 132; 358 NW2d 904 (1984). We agree with the trial court. All the evidence reveals that plaintiff’s decedent and the physician had a relationship independent of the hospital and that the hospital was merely to be the site where the doctor treated him. Grewe v Mount Clemens General Hospital, 404 Mich 240, 251; 273 NW2d 429 (1978). Accordingly, the hospital would not be liable for any doctor malpractice in the instant case and we find no error.
Plaintiif argues that error occurred when an expert was impeached by use of a text not established as a reliable authority. We have reviewed the testimony and we find that this text was established to be reliable by another expert pursuant to MEE 707. Thus it was not error to have the witness impeached by use of the text.
Plaintiif also claims that the trial court impermissibly vouched for a defense expert witness’s credibility. Plaintiffs counsel was attempting to show that the witness was biased in favor of defendants when the trial court said:
"Well, I think it is apparent to the jury that the witness is giving his opinion of the document [Heins’s medical file] which he read and the questions that were put to him regardless of who put them or some who— someone who submitted the document.”
Plaintiff did not object to these remarks at trial. Considering the context in which these remarks were made, we find no reversible error in the statements. Keefer v C R Bard, Inc, 110 Mich App 563, 577; 313 NW2d 151 (1981). In the instant case the trial judge’s allegedly improper remarks were made after plaintiffs counsel had attempted to impeach the witness’s impartiality by showing his potential bias in favor of malpractice defendants. "* * * [S]uch testimony is only minimally probative of bias and should be carefully scrutinized by the trial court.” Wilson v Stilwill, 411 Mich 587, 601; 309 NW2d 898 (1981). Our review reveals that his statements were aimed at directing the course of the proceedings away from testimony of mini mal probative value. Furthermore, even if the statements were error, the trial judge did tell the jury that he did not mean to give an opinion and that they were the sole judges of the facts. Such an instruction would sufficiently cure any error. Keefer, supra.
Plaintiff contends that the trial court erred in refusing to instruct on more than one proximate cause. The instruction that the judge refused to read was SJI2d 15.03, which reads:
"There may be more than one proximate cause. To be a proximate cause, the claimed negligence of the [defendant/ defendants] need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence.”
The trial judge felt that this instruction was inapplicable as there were not multiple parties in this action. After reviewing the record, we agree that this instruction was not applicable. Warner v General Motors Corp, 137 Mich App 340; 357 NW2d 698 (1984).
Plaintiff also argues that the trial court’s burden-of-proof instruction and the professional-negligence instruction were erroneous. We have carefully reviewed the jury instructions as a whole and when they are read in their entirety we find no error. People v Seabrooks, 135 Mich App 442; 354 NW2d 374 (1984), and People v Wise, 134 Mich App 82, 96; 351 NW2d 255 (1984). Any error that may have occurred was promptly cured. Van Every v Southeastern Michigan Transportation Authority, 142 Mich App 256; 369 NW2d 875 (1985).
Accordingly, the directed verdict in favor of defendant hospital and the jury verdict of no cause of action in favor of defendant Okulski are affirmed.
Affirmed. Costs to appellees. | [
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Allen, P.J.
In this action involving an otherwise satisfactory plea of nolo contendere two questions are presented: Is there sufficient compliance with MCR 6.101(F)(3)(b) where (1) a statement is made on the record by defense counsel, rather than by the court, of why the plea of nolo contendere is made, and (2) the trial court relies on a codefendant’s preliminary examination transcript to establish the factual basis for the offense to which the defendant pleads? That rule reads:
"If the defendant pleads nolo contendere, the court shall not question him or her about his or her participation in the crime. The court shall:
(i) state why a plea of nolo contendere is appropriate; and
(ii) conduct a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.” (Emphasis added.)
On April 24, 1985, defendant pled nolo contendere to the charge of resisting or opposing a police officer in the lawful discharge of his duties, MCL 750.479; MSA 28.747. The plea was given pursuant to a plea bargain under which the people would dismiss a supplemental information charging defendant as a second-felony offender. At the plea-taking proceeding, defendant and Wendell Jacobs, Jr., his attorney, stated on the record that a plea agreement had been worked out under which defendant would plead no contest and the prosecution would dismiss the supplemental information. The trial judge then proceeded to detail to the defendant the litany of rights required under MCR 6.101(F)(1) and (2). The record then reflects the following discussion as to subsection (F)(3) and (4):
"The Court: The court rules further require Mr. Jerry Byrd that you tell me — no, not to this one. This is a plea of nolo contendere. And I — I don’t require you to state anything because the purpose of a nolo contendere plea is that you do not have to make any statement further.
"Now, gentlemen, in support of a plea of nolo contendere, may I make reference to the transcript at the preliminary examination?
"Mr. Dinkleman [Assistant Prosecutor]: Yes, sir, if the Court wishes.
"Mr. Jacobs: Yes, your honor. We have no objection to that. And for the record I would note that the reasons for the nolo contendere plea are the possibili ties of civil liability herein from this incident and therefore we do not wish to make any admissions that could be used.
"Mr. Dinkleman: I should indicate by the way that I believe the transcript will cover this defendant. However, the hearing was only held with respect to the codefendant Sandra Byrd.
"The Court: I see. Is there any objection if I use that there?
"Mr. Jacobs: There is no objection.
"The Court: All right. I have read enough of the transcript to believe that there is a factual basis and I do determine at this time that there is support for the plea of nolo contendere and that you did commit the oifense charged.
"And now Mr. Jacobs, in your judgment has the court complied with Michigan Court Rule 6.101?
"Mr. Jacobs: The court has your honor.
"The Court: Mr. Prosecutor, in your judgment has the court complied with Michigan Court Rule 6.101?
"Mr. Dinkleman: Yes, your honor.”
The court then accepted the plea and ordered a presentence report prepared. On June 6, 1985, defendant was sentenced to a term of two months in the county jail. He appeals as of right raising two issues.
Defendant first argues that because the trial judge himself made no statement on the record as to why a plea of nolo contendere was appropriate the conviction must be reversed. According to defendant, exact compliance with subsection (F)(3)(b)(i) is required. We disagree. As was stated by the Supreme Court in Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), noncompliance with GCR 1963, 785.7, now MCR 6.101(F), governing pleas of guilty and pleas of nolo contendere "may but does not necessarily require reversal. Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.” People v Mitchell, 125 Mich App 475, 480; 336 NW2d 31 (1983). Where "no substantial right of the defendant is involved”, reversal or remand is not necessary. People v Love, 76 Mich App 379, 383; 256 NW2d 602 (1977); Mitchell, p 480.
We do not believe that in the instant case the trial court’s failure to personally recite on the record why the plea of nolo contendere was appropriate is the type of noncompliance which warrants reversal. The reason had already been placed on the record by defendant’s counsel. While we believe that it is necessary that reasons for a nolo plea be stated on the record, it is not necessary that the reasons be recited by the court. Defendant has no "fundamental right” as to who states the reasons. It is obvious from the transcript that the trial judge knew that the court’s acceptance of the plea must be based on a valid reason and that the court accepted and approved the reasons recited by defense counsel.
The identical issue was recently raised in People v Johnson, 150 Mich App 568; — NW2d — (1986). There, as in the instant case, defense counsel stated the reasons why a no contest plea was being offered. This Court rejected defendant’s claim that the failure of the trial judge to himself place the reasons on the record was grounds for remand.
"The fact that the trial court did not reiterate defense counsel’s statement of why the plea was appropriate does not require remand in this case since it is clear from the record that the trial court believed the plea was appropriate because defendant had been drinking at the time of the incident and because of the possibility of future civil litigation resulting from the offense. ' Both are recognized grounds for acceptance of a nolo contendere plea. People v Stevens, 138 Mich App 438, 440; 360 NW2d 216 (1984).” 150 Mich App 570-571.
It is next argued that the trial court’s reliance on the codefendant’s preliminary examination transcript to establish the factual basis was error. Neither party cites authority in support of or against this practice and the issue is clearly one of first impression. As appears from the transcript, it was by stipulation of the parties that the preliminary examination transcript of the codefendant was utilized to establish the facts supporting the plea.
The use of preliminary examination transcripts as the source of factual support for a plea of nolo contendere is well established. People v Chilton, 394 Mich 34; 228 NW2d 210 (1975). That procedure has consistently been recognized by this Court. People v Booth, 86 Mich App 646, 649; 273 NW2d 510 (1978), rev’d on other grounds 414 Mich 343; 324 NW2d 741 (1982), reh den 414 Mich 1112 (1982).
In the instant case a preliminary examination was conducted only in regard to defendant’s codefendant. The codefendant was defendant’s mother who together with defendant resisted a police officer while the officer was enforcing a child custody order. The preliminary examination transcript describes a single set of events in which defendant and his mother each participated. Given these circumstances, we can see no possible prejudice to defendant in the use of the codefendant’s preliminary examination transcript. In our opinion, the preliminary examination fits within the language and meaning of subsection (F)(3)(b)(ii) of the rule.
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Per Curiam.
On February 7, 1983, charging party-appellee, Mid-Michigan Education Association, filed an unfair labor practice charge against respondent-appellant, St. Charles Community Schools. On May 20, 1983, a hearing was held before the Michigan Employment Relations Com mission. On February 7, 1985, MERC issued its decision and order finding that the district had committed an unfair labor practice in violation of MCL 423.210; MSA 17.455(10) when it unilaterally changed the practice of providing married employees with coordination of health insurance benefits under the district’s health insurance plan. The district appealed as of right from that order. This Court remanded the case to MERC for clarification and, on or about July 19, 1985, MERC issued a decision and order on remand articulating the basis for its determination that the district had committed an unfair labor practice.
Like prior contracts, the 1982-83 collective bargaining agreement between the parties contains the following provision:
"The Board agrees to contribute up to a maximum of ninety-five (95%) percent per month toward the total monthly premium cost of hospitalization-medical insurance coverage for each full-time, certified, contracted employee who has authorized a payroll deduction for Blue Cross/Blue Shield, MESSA, GHS (Group Health Service of Michigan) hospitalization-medical insurance or a similar hospitalization-medical insurance plan that is approved by the Board for payroll deduction, provided the teacher is not covered by any other insurance carrier for hospitalization-medical insurance.” (Emphasis added.)
In spite of this provision, the district began to permit coordination of benefits in 1980 in response to a ruling by the Attorney General which concluded that a school district could not deny health care benefits to an employee because the employee’s spouse received insurance from another source. See OAG 1979-1980, No 5645, p 589 (February 5, 1980). At the MERC hearing, several union teachers testified that in 1980 they applied to the district for coordinated benefits and received them until they were notified in 1983 that the district would no longer provide the benefits "[a]s per the agreement between the Union and the Board”.
The superintendent of the district testified at the hearing that the district began to reinforce the provision in 1983 following a decision by the Oakland County Circuit Court which rejected the Attorney General’s conclusion. See Farmington Education Ass’n v Farmington School Dist, 133 Mich App 566; 351 NW2d 242 (1984). He testified that he had participated in the negotiations for the 1982-83 contract and that the union had never demanded coordinated benefits.
On the other hand, the chief negotiator for the union testified that the union did not present a demand for coordination of health insurance benefits because "it was already there”. Though the practice was not spelled out in the contract, past practice had allowed it and the union assumed that the practice would continue.
The question raised in this appeal is whether an employer must bargain about a subject explicitly covered by the contract where the employer has established a practice contrary to the contractual language or whether it may, unilaterally and without bargaining, revert to enforcing the language of the collective bargaining agreement. Under the facts in this case, we find that the district’s past practice of providing health care benefits, although contrary to the contract provision, constituted a term of employment which could not be unilaterally changed.
MERC’s findings of fact are upheld if they are supported by competent, material and substantial evidence on the whole record, but this Court may review the law regardless of the factual findings of the commission. Local 1467, International Ass’n of Firefighters, AFL-CIO v Portage, 134 Mich App 466, 472; 352 NW2d 284 (1982). Review of MERC’s findings must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and do not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably different views, Napoleon Education Ass’n v Napoleon Schools, 125 Mich App 398, 405; 336 NW2d 481 (1983).
The public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., governs labor relations in public employment. Profitt v Wayne-Westland Community Schools, 140 Mich App 499, 502; 364 NW2d 359 (1985). The act prohibits an employer from refusing to bargain collectively with its public employees over subjects like health insurance benefits, which are classified as mandatory subjects of collective bargaining. MCL 423.210(l)(e); MSA 17.455(10)(l)(e). Under PERA, unilateral action concerning such subjects may not be taken by either party absent an impasse in collective bargaining negotiations, Ottawa County v Jaklinski, 423 Mich 1; 377 NW2d 668 (1985); Policemen’s Ass’n v Riverview, 111 Mich App 158, 161; 314 NW2d 463 (1981), lv den 417 Mich 890 (1983), or a clear and unmistakable waiver. Lansing Firefighters Union, Local 421 v Lansing, 133 Mich App 56; 349 NW2d 253 (1984). If a past practice which does not derive from the express terms of a collective bargaining agreement becomes a part of the employer’s structure and condition of employment, it assumes the same significance as other terms of employment and is similarly protected from unilateral change. Technicolor Government Services, Inc v NLRB, 739 F2d 323 (CA 8, 1984).
In the instant case. MERC concluded that since at least 1980 the district had a practice of permitting its teachers with employed spouses to receive coordinated health insurance benefits under the district’s health insurance plan and that such practice constituted an existing term or condition of employment. This finding is supported by competent, material and substantial evidence on the whole record and must be upheld. MCL 423.23(2)(e); MSA 17.454(25)(2)(e); Lansing School Dist v MERC, 117 Mich App 486; 324 NW2d 62 (1982). Moreover, we agree with MERC’s conclusion that since health insurance benefits are a mandatory subject of collective bargaining, Houghton Lake Education Ass’n v Houghton Lake Community Schools, 109 Mich App 1; 310 NW2d 888 (1981), lv den 413 Mich 917 (1982), the district was required to provide the union with notice and an opportunity to bargain before making changes in the existing condition of employment. Policemen’s Ass’n v Riverview, supra.
Because the district instituted the practice and permitted it to continue, knowing that it was contrary to the contract, the district cannot now rely on the contractual language to unilaterally change the practice. The district relies on Twp of Red ford, 1983 MERC Lab Op 479, for the proposition that a past practice can never overcome a specific and contrary contractual provision. However, even if that case were binding precedent on this Court, it is distinguishable on its facts.
We do not accept the district’s contention that a past practice can never be established in the face of a conflicting contractual provision. Rather, we find that when an employer implements and continues a practice which is contrary to a contractual provision, the practice may constitute a term or condition of employment which is not subject to unilateral change.
The district also argues that even if a past practice is established, the union waived its right to bargain on the subject by the clear and unambiguous terms of the contract. We are not persuaded that the principle of waiver is applicable when a condition of employment is found to exist in contravention of a contract provision. However, even when we apply this principle, we do not believe the contractual language at issue was so "clear and explicit” that it constituted a waiver as a matter of law.
In its decision on remand, MERC found that the disputed provision made no explicit reference to coordinated benefit coverage and did not clearly preclude such coverage. In support of its finding, MERC noted that the parties had apparently believed that the language was sufficiently ambiguous to permit coordinated health care coverage since neither party had attempted to change the language during the 1982-83 contract negotiations.
Although the contractual language, standing alone, is not inherently ambiguous, it becomes susceptible to interpretation when examined in connection with the parties’ past practice. "Where past practice has established a meaning for language that is used by the parties in a new agreement, the language will be presumed to have the meaning given to it by past practice”. Pekar v Local 181, International Union of United Brewery, 311 F2d 628, 636 (CA 6, 1962), cert den 373 US 912 (1963). Here, the parties’ incorporation of the disputed contractual provision in their 1982-83 collective bargaining agreement must be viewed in terms of the district’s past practice of providing coordinated health care benefits. Accordingly, the union could have construed the provision as permitting the continuation of the practice. This interpretation is supported by the union negotiator’s claim that the union did not demand coordinated benefits because "it was already there”.
In order for the union to waive its rights to bargain over a term of employment that is a mandatory subject of collective bargaining, the waiver must be "clear and unmistakable”. Lansing Fireñghters, supra, p 66. When viewed in the context of the parties’ past practice, we find the contractual language upon which the district relies is not sufficiently clear and explicit to establish that the union waived its right to bargain over the continuation of coordinated health care benefits.
We also reject the district’s contention that the contract provision precluding modification of the contract by past practice permitted the district to unilaterally enforce the contract regardless of the past practice. We interpret this provision as analogous to a management rights or general waiver clause, either of which is insufficient to establish waiver. Lansing Firefighters, supra, p 66.
Respondent also argues that because the contract was unambiguous, the district was free to unilaterally enforce the contractual provision against the coordination of health insurance benefits. As per our preceding discussion, we reject the district’s argument.
The district next claims that it was denied due process by MERC’s failure to determine whether the union waived its right to bargain. Since MERC specifically addressed this issue in its decision and order on remand, the district’s claim is moot.
Finally, the district argues that even if it breached its contract, it did not commit an unfair labor practice. MCL 423.210(l)(e); MSA 17.455(10)(l)(e) provides that a public employer’s failure to bargain collectively with the representatives of its employees constitutes an unfair labor practice. An employer who takes a unilateral ac tion regarding a mandatory subject of collective bargaining, absent an impasse in negotiations or a waiver, has failed to bargain collectively and consequently has committed an unfair labor practice. International Ass’n of Firefighters v Portage, supra; Lansing Firefighters, supra. MERC’s finding of an unfair labor practice in the present case was based not on a breach of the contract provisions but rather on the district’s failure to bargain regarding a condition of employment which existed independently of the contract. MERC’s finding is not clearly erroneous.
In its brief on appeal, the union requests this Court to find that MERC’s decision and order applies to the parties’ 1983-86 collective bargaining agreement. In support thereof, the union submits the affidavit of its negotiator which asserts that the parties intended MERC’s resolution of the 1982-83 contract provision to resolve the matter for the 1983-86 contract. The district argues that the instant litigation is limited only to the 1982-83 contract. In support of its position, the district submitted (with its motion to modify MERC’s order) the affidavit of Harold Montgomery which asserts that the parties adopted the 1983-86 contract with the understanding that the contract disallowed coordinated benefits. Even assuming that this issue is properly before this Court, we decline to invade MERC’s exclusive function and resolve this factual dispute. MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). However, since we agree with the parties that MERC’s decision and order on remand failed to adequately address questions 1 and 3 put to it by this Court in our June 4, 1985, order for remand, we once again remand this case to MERC for resolution of these issues.
Affirmed in part and remanded. | [
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Per Curiam.
Plaintiff is a public utility which provides electrical services in southeastern Michigan. In providing these services, it operates power generating plants, regulating stations and substations, as well as a network of transmission and distribution lines. Defendant township is located in northern Macomb County and is primarily rural and agricultural. In 1972, plaintiff began planning the Belle River Power Plant in St. Clair County. The proposed plant would consist of two 675-mega-watt units. Plaintiff believed that the existing transmission system would be subject to unacceptably high power flows under certain conditions and, therefore, plaintiff began to plan and design the Saratoga-Jewell Transmission Line. The line was designed to be an extra-high-voltage line which would be energized at 345,000 volts of electricity. It would bisect defendant township in an L-shaped pattern.
In 1979, citizens of the township became aware of plaintiff’s plans to construct the transmission line. The first notice came when individual property owners were contacted by plaintiff regarding potential acquisition of property along the projected right-of-way. Some time later, plaintiff’s representatives approached the township government officials to explain the plans for the transmission line.
On December 2, 1982, the township board of trustees approved a zoning ordinance which amended existing ordinances. The new ordinance required a public utility to receive a special use permit to construct extra-high-voltage energy transmission lines. The ordinance contained several detailed requirements which must be met in order to obtain a permit. Three provisions of the ordinance are the basis of the present dispute. The provisions regulate (1) the minimum width of any extra-high-voltage transmission line corridor, (2) the minimum distance of the line from dwellings, and (3) the maximum noise levels for the line.
On or about April 23, 1983, plaintiff instituted the present suit in Macomb County Circuit Court seeking a declaratory judgment to have those three specific provisions of the township zoning ordinance declared invalid. Plaintiff eventually moved for summary judgment pursuant to GCR 1963, 117.2(3) on the ground that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. One of plaintiff’s contentions was that the township had exceeded the scope of its authority in passing the zoning ordinance. On October 5, 1984, the circuit court issued an opinion granting plaintiffs motion for summary judgment. On November 5, 1984, the court entered an order in accordance with that opinion declaring the provisions of the ordinance to be invalid. Defendants now appeal as of right from the grant of summary judgment. We affirm.
I
The trial court granted summary judgment pursuant to GCR 1963, 117.2(3). Summary judgment pursuant to that subsection is properly granted only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim or defense. Maccabees Mututal Life Ins Co v Dep’t of Treasury, 122 Mich App 660, 663; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983). The court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome. Id. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Id.
Defendants contend that summary judgment was improperly granted in this case because further factual development should have been allowed. We disagree. All material facts were before the court. The sole question before the court was whether the provisions of the ordinance were invalid because they conflicted with state statutes or the state regulatory scheme. The validity of the ordinance provisons can be determined simply by looking at those provisons and the statutes of this state. There was no need for any further factual development.
II
Both plaintiff and defendants focus their arguments on whether the provisons of the ordinance in question are "preempted” by state law. The parties point to the guidelines to be looked at in making a determination whether a statute has or has not preempted a field or regulation as laid out in People v Llewellyn, 401 Mich 314, 322-324; 257 NW2d 902 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978). The parties also point to Detroit Edison Co v Wixom, 382 Mich 673; 172 NW2d 382 (1960), because of its factual similarity to this case.
In Wixom, the Supreme Court noted that a transmission power line height regulation of a municipal zoning ordinance was actually a regulation attempting to control the route or location of the power line. The Supreme Court noted that this Court’s decision in that case, Detroit Edison Co v Wixom, 10 Mich App 218; 159 NW2d 230 (1968), had correctly concluded that a city was not precluded from passing reasonable zoning regulations applying to electric utilities. However, the Supreme Court then held in favor of the power company by stating that the company held a vested right to locate the power lines on the existing right-of-way because it was a prior nonconforming use of the land We believe that Wixom should be limited to its facts. The zoning regulations therein attempted to control location and route. While the Supreme Court stated that this Court had "correctly analyzed the preemption argument”, this Court had dealt with the ordinance as if it were solely a height regulation without realizing that its purpose was to control location and route. We believe that the ultimate holding of the Supreme Court under the facts of the Wixom case is that a city’s reasonable zoning regulations relating to the location and route of electric power lines are not precluded by statutes granting authority to the Michigan Public Service Commission to control other aspects of electrical transmission lines.
The facts of this case are much different. Herein we are faced with a township ordinance which is claimed to be a zoning ordinance regulating land use. However, the township has actually attempted to regulate the safety aspects of the electrical transmission lines of a public utility.
Ill
The question of the validity of the provisions of the ordinance in this case cannot be classified simply as a "preemption” question. In general, the preemption concept works as a limitation on the exercise of inherent police powers by a governmental body when the purported regulations relate to subject matter on which superior governmental authority exists. Cities and villages have the power to adopt resolutions and ordinances relating to municipal concerns, property and government, subject only to the constitution and law. Const 1963, art 7, § 22. Because the adoption of an ordinance by a municipality is "subject to the constitution and law”, such broad power to adopt ordinances relating to municipal concerns may be "preempted” if a state statutory scheme occupies the field of regulation which the municipality seeks to enter. Townships, however, have no police power of their own, but have only those powers and immunities which are provided by law. Const 1963, art 7, § 17, Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300, 304; 312 NW2d 238 (1982), lv den 412 Mich 900 (1982). Their ability to pass laws comes directly from the legislative enactments. As a result, the function of this Court, when township ordinances are involved, appears to be one relating more to statutory construction and interpretation than one of making a determination of preemption.
However, the rules of preemption are not totally irrelevant to zoning disputes. The zoning ordinance involved in the present case is based on the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq. That statute grants townships the power to pass ordinances concerning zoning. Likewise, the Legislature has passed a municipal zoning enabling act since Const 1963, art 7, § 22 does not grant cities power to zone independent of enabling legislation. Dearborn v Dep’t of Social Services, 120 Mich App 125, 131; 327 NW2d 419 (1982), lv den 417 Mich 1078 (1983). The zoning enabling acts give cities and townships broad authority to pass ordinances concerning zoning. This broad statutory authority to pass ordinances is similar to the constitutional authority granted to cities under Const 1963, art 7, § 22. Thus, in attempting to interpret the relevant statutes and to accord them with one another, preemption principles may provide guidance by analogy. The same basic concerns involved in a determination of preemption in regard to other local ordinances may aid in a determination of the validity of township zoning ordinances. Preemption principles indicate that a township should be precluded from enacting a zoning ordinance if there is a direct conflict with a state statutory scheme of if the state statutory scheme occupies the field of regulation which the township seeks to enter. Regardless of the labels which may be attached to our analysis of the validity of the provisions of the ordinance, it is clear that we must look to the statutes of this state and attempt to determine the intent of the Legislature.
IV
The township board of any organized township is given very broad and general authority to adopt zoning ordinances by the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq. That statute must be reconciled with the statutes granting power and jurisdiction to the MPSC over electric transmission lines.
First, MCL 460.6; MSA 22.13(6) vests the MPSC with complete power and jurisdiction to regulate public utilities in the state, including power and jurisdiction to regulate matters pertaining to the operation of public utilities. That portion of the act has been determined by the Supreme Court to be merely an outline of the commission’s jurisdiction and not a grant of specific powers to the commission.
However, the transmission of electricity through highways act, MCL 460.551 et seq.; MSA 22.151 et seq., does grant specific powers to the commission to regulate the transmission of electricity. Section 4 of the act permits the commission to require the filing of detailed specifications covering the types of construction of electric transmission lines. Utilities may then construct the lines according to the commission’s specifications. Section 5 of the act allows the commission to inspect and examine all electrical apparatus already installed and gives the commission power to order improvements in methods employed to transmit electricity. The act consistently limits the commission’s power to regulate by referring to the transmission of electricity in, on, or through "the public highways, streets and places”. The commission has been given the authority to regulate transmission in such places even though a township retains the right reasonably to refuse consent to the initial construction or erection of power lines. See Const 1963, art 7, § 29; MCL 247.183; MSA 9.263, MCL 247.185; MSA 9.265, MCL 460.553; MSA 22.153. This express legislative grant of power to the commission to control the transmission of electricity in, on, or through the public highways, streets and places precludes a township from passing ordinances regarding the same subject matter. Moreover, the limitation on the commission’s power to regulate the transmission of electricity to that which occurs in, on, or through public highways, streets and places indicates a legislative intent that there should be no regulation of the lines on private property. If the MPSC, a specialized agency which could exert uniform control over extensive systems of transmission lines, is not allowed to regulate the safety of transmission lines on private property, we cannot believe that the Legislature would have intended for individual townships to be allowed to do so. We conclude that the provisions of the Township Rural Zoning Act do not empower a township to make safety regulations regarding electric transmission lines.
We do not deem it necessary to attach a formal label such as "preemption” to this case. Whether "preemption” or mere "statutory construction” is involved, the provisions of the township ordinance are invalid. While a township may have other legitimate zoning concerns, such as location and route, a township cannot validly regulate the safety aspects of electrical transmission lines pur suant to its zoning laws. As noted in Detroit Edison Co v Wixom, 382 Mich 673, 682, the commission’s interest is in the character of the construction as it relates to the safety of the proposed line, the capacity of the line, the need for the line, and its total relation to the maintenance of electrical service to the people. The township’s narrow area of concern is for the development of the community through which the line passes.
Because the provisions of the township ordinance are invalid, the trial court properly granted summary judgment in favor of plaintiff. The judgment of the trial court is therefore affirmed.
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After Remand
Per Curiam.
Defendants Williamston Commu nity Schools and Michigan Millers Mutual Insurance Company appeal by leave granted from an August 8, 1984, order of the Workers’ Compensation Appeal Board, awarding plaintiff disability benefits for a disabling back injury.
This case is before this Court a second time after a remand to the Workers’ Compensation Appeal Board for a determination of whether plaintiff’s nonwork-related aggravation of his work-related injuries "was negligent in light of his knowledge of his condition”. See Schaefer v Williamston Community Schools, 117 Mich App 26, 37; 323 NW2d 577 (1982).
On February 5, 1976, plaintiff injured his back while working as a bus driver for defendant Williamston Community Schools. He received workers’ compensation benefits until he returned to work on March 1, 1976. Plaintiff worked for the remainder of the 1975-1976 school year and also worked the entire 1976-1977 school year. Plaintiff testified that he suffered constant back pain after the February, 1976, accident. Plaintiff passed routine physical examinations in September of 1976 and in August of 1977. He did not complain of any back problems to the examining physician at these examinations. In August of 1977, plaintiff moved from his residence. Plaintiff testified that he lifted only light objects, but admitted that it was "something I shouldn’t have done”. Following the summer recess, plaintiff returned to work on September 3, 1977. Plaintiff’s last day of work was September 5, 1977, when he notified his superiors that he was unable to return to work because of intense back pain.
Plaintiff was examined by Dr. McCorvie on September 15, 1977, at which time plaintiff complained about his back. According to McCorvie, plaintiff told him that he had moved into a new house and "had been carrying some heavy boxes and doing a lot of lifting making this move and he injured his back”. McCorvie testified that plaintiff was not specific about what he had lifted. Mc-Corvie stated that x-rays which plaintiff brought with him taken after plaintiff’s February, 1976, accident indicated a severe slippage of the fifth lumbar vertebra on the first sacral segment. Mc-Corvie was of the opinion that the x-rays indicated a very weak spot in plaintiff’s back and that plaintiff’s back probably could not take the lifting of boxes.
Following a hearing, a hearing officer denied plaintiff’s claim for benefits because plaintiff aggravated his back injury by moving personal goods. A divided panel of the Workers’ Compensation Appeal Board reversed the hearing officer’s ruling because plaintiff’s work-related injury "did contribute” to his disability.
On appeal, this Court reversed the board, holding that the board had applied an incorrect legal standard. Schaefer v Williamston Schools, supra. The board was instructed that, if it were found that "plaintiff’s activity in moving household goods was negligent in light of his knowledge of his condition”, he was "not entitled to compensation”. 117 Mich App 37.
On remand, additional deposition testimony was submitted. Plaintiff testified that he did not move anything heavy. He testified that he would pick up something light if it was necessary. Plaintiff testified that he did not know specifically what was wrong with his back; he adjusted his behavior according to what his back permitted him to do. Larry Colpaert testified that he moved plaintiff’s possessions to the new home. He further testified that he did not see plaintiff lift anything.
The board found that "[packing up light-weight objects during his move was not unreasonable or rash behavior under the circumstances and in light of plaintiff’s knowledge about things he had been able to do theretofore”. The board noted that McCorvie conceded that plaintiff "didn’t particularly tell me what it really was, but it caused his back to become very painful”. The board found that McCorvie had assumed that plaintiff was lifting something heavy.
Defendants first claim that the board erred in finding that plaintiff’s activity was not negligent in light of his knowledge of his condition. In reviewing a decision of the board, this Court is charged with reviewing questions of law and deciding whether there is any competent evidence in the record to support the findings of fact made by the board. Const 1963, art 6, § 28, and MCL 418.861; MSA 17.237(861). If the board decides a case in a legally improper framework, using improper standards, we are required to reverse. Schaefer v Williamston Schools, supra, p 30; Galac v Chrysler Corp, 63 Mich App 414; 235 NW2d 359 (1975).
To the extent that defendants argue that the record supports a finding that plaintiff lifted heavy objects while moving, the board’s finding of fact that plaintiff lifted only light objects is supported by competent evidence on the record. We are bound by that determination.
However, defendants’ claim that the board erred in awarding plaintiff disability benefits is not limited to their claim that the board made an incorrect factual finding. Defendants claim that the board applied an incorrect legal standard to the facts of this case. Specifically, defendants claim that the instant case is indistinguishable from Adkins v Rives Plating Corp, 338 Mich 265; 61 NW2d (1953), cited in Schaefer v Williamston Schools, supra, as setting forth the proper standard. for determining when an employee’s non-work-related conduct constitutes an independent, intervening cause of a subsequent injury or aggravation resulting in disability. We disagree.
In Adkins the plaintiff had broken his radius while at work on December 16, 1950. He received compensation for total disability until May 31, 1951, when he returned to work at lighter duties. On September 9, 1.951, the plaintiff refractured his radius when he fell from a bicycle which he was riding on a Sunday afternoon. An expert medical witness testified that at the time of the accident the original fracture had not healed and that the accident resulted in a new fracture through the unhealed old fracture. The Court reversed a compensation award based on the disability resulting from the refracture. The Court reasoned as follows:
"The original injury * * * cannot be said to be the proximate cause of the disability resulting from the second injury. The proximate cause of the second injury was the riding of a bicycle by Adkins which exposed him to the hazards entailed thereby. He certainly was not engaged in his master’s employ on the Sunday in question * * *. There was nothing in the nature of Adkins’ employment which required him to expose himself to such a hazard, and common sense would have dictated that, in his condition, he refrain from such exposure.” 338 Mich pp 270-271.
Unlike the plaintiff in Adkins, plaintiff here, as found by the board, had no reason to know the hazard to which he was exposing himself by picking up light objects. Plaintiff testified he did not know what was wrong with his back; he adjusted his behavior according to what his back permitted him to do. As noted by the board, plaintiff had continued to drive a school bus from the date of his injury, February 5, 1976, through the end of that school year and during the following 1976-1977 school year. Further, he occasionally threw hay for his cows and had snowmobiled during this period. Under these circumstances, we do not believe that it was unreasonable for him to believe that he could lift a few light items while moving.
Defendants place substantial reliance on plaintiff’s testimony that: "I couldn’t pick up any heavy things, I picked up anything that I felt was light * * * which is * * * something I shouldn’t have done.” We do not believe this was an admission. Instead, we agree with the board that this statement, in context, represents only hindsight on the part of plaintiff that he should not have lifted even light objects, and does not represent his state of mind on the date of lifting. As found by the board, plaintiff’s reasonable belief the day he moved was that he should not lift anything heavy. According to the board’s findings of fact, this he did not do.
Defendants next claim that the board’s original order, not modified by the board on remand, which set benefits at $81 per week must be modified to $43.20 per week, or % of the $64.80 average per week which the board found that plaintiff was earning prior to his disability. We agree. Plaintiff conceded at oral argument that $43.20 was the proper benefit amount. The board’s order shall be modified accordingly.
Affirmed, but remanded for a modification of benefits.
The $81 award was based on the minimum compensation set forth in MCL 418.351; MSA 17.237(351) and the adjustment of minimum rates by the director pursuant to MCL 418.355; MSA 17.237(355). Minimum rates are not properly subject to § 355 adjustments. Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), reh gtd 414 Mich 1102 (1982), appeal dis by stipulation March 15, 1983. We acknowledge that one panel of this Court has recently held that Gusler is not binding precedent. See Riley v Northland Geriatric Center, 140 Mich App 72; 362 NW2d 894 (1985). To the extent that Gusler is not binding precedent, we are persuaded by its reasoning. But see Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973). | [
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T. M. Burns, P.J.
This case involves the construction and interpretation of the will of Frank P. Allen, deceased. Allen died in 1983, leaving an estate valued at over $4 million. His nieces, Lillian Quigley and Etta Marie Sanders, appeal as of right from a probate court order directing the executor of Allen’s estate to distribute certain lapsed devises to James Goodwin, Bruce Goodwin, Thomas Goodwin, David Goodwin, and Kathrine Putnam, grandnephews and grandniece of Allen. We reverse.
Allen’s will consisted of five "Items”. Item I provided for payment of the testator’s debts, various general expenses, and the expenses of administration of the estate. Item V provided for an executor. The will contained no residuary clause. The relevant portions of the will provide:
"ITEM II. I give, devise and bequeath to my wife, Grace E. Allen, of the City of Flint, Michigan, if she survives me, all automobiles and personal effects which I may own at the time of my death.
'ITEM III. I give, devise and bequeath to my wife, Grace E. Allen, if she survives me, all of my corporate stock (either common or preferred) owned by myself at the time of my death in the Allen Storage and Moving Company, a Michigan corporation, of Flint, Michigan, and one-third (V3) of all other personal property of every kind and nature which I may own at the time of my death, not previously disposed of herein, and including but not limited to corporate stock, bonds, Certificates of Deposit, Government 'E’ bonds and any bank accounts in my sole name. I also give, devise and bequeath to my wife, Grace E. Allen, if she survives me, one-third (V3) of any real property of which I may die seized, wherever located and wherever situated.
"ITEM IV. The remaining two-thirds (%) of all other personal property of every kind and nature which I may own at the time of my death, and two-thirds (%) of any real property of which I may die seized wherever situated and not previously disposed of herein, I give, devise and bequeath as follows:
"One-third (Va) thereof to my sister, Mildred Allen Weller of Phoenix, Arizona.
"One-third (Va) thereof to be divided equally between the children of Georgetta Allen Goodwin, my deceased sister. The share of any deceased child shall go to their surviving issue in equal shares. If any deceased child leaves no children surviving, such deceased child’s share shall pass to the surviving children of my deceased sister.
"One-third (V3) thereof to my sister, Zeldred Allen Hoose of Fort Meyers, Florida.
"In the event either of my sister do not survive me, her share shall go to her then surviving children. If such deceased sister shall die leaving no issue surviving, then her share shall pass to the survivors of the beneficiaries of this bequest in equal shares.”
Allen’s wife predeceased him. Because of this, a controversy arose regarding who should receive the lapsed devises. We find that the will does not provide for disposition of the property and, therefore, it passes by intestate succession.
While there is no explicit residuary clause in the will, appellees claim that Item IV acts as a residuary clause and that, because they are the surviving issue of a deceased child of Georgetta Allen Goodwin, they are entitled to a portion of the lapsed devises. We disagree.
A fundamental precept which governs the judicial review of wills is that the intent of the testator is to be carried out as nearly as possible. In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983); In re Butterfield Estate, 405 Mich 702, 711; 275 NW2d 262 (1979). Where there is no ambiguity, that intention is to be gleaned from the four corners of the instrument. Id. If a will evinces either a patent or a latent ambiguity, a court may establish intent by considering two outside sources: (1) surrounding circumstances, and (2) rules of construction. Id. We find no ambiguity to exist in this case. The language employed is clear and intelligible and suggests but a single meaning. Item II of the will devises all of the testator’s automobiles and personal effects. The initial part of Item III devises all of the testator’s corporate stock in Allen Storage and Moving Company. The rest of Item III devises one-third of all other property in the estate. Item IV clearly and unambiguously devises the other two-thirds of that property. Item IV does nothing else. While Items II and III devise the property indicated therein to the testator’s wife "if she survives [him]”, nothing in the will indicates what happens to the property if she does not survive the testator. Item IV in no way indicates that the devisees therein are to take the property intended for the wife in the event that she predeceased the testator.
Moreover, no latent ambiguity was shown by the evidence presented to the probate court. That evidence did not create the possibility that the language employed in the will had more than one meaning. Rather, it suggests that the testator simply did not provide for disposition of the property in question in the event that his wife did not survive him.
Appellees suggest that Item IV should be treated as a residuary clause because of a presumption that a testator, in making his will, intends that the will shall provide for the passage of his entire estate to those persons named in the will unless he expressly states that it is his intention that part of the estate shall pass as intestate property. While we agree that there is a presumption against partial intestacy, we believe that such a presumption should not be abused and should not be applied in order to create ambiguities which do not exist. A court may not construe a clear and unambiguous will in such a way as to rewrite it. There is no residuary clause in this will and we refuse to create one.
The trial court erred by concluding that Michigan law would not permit partial intestacy. Michigan law does, of course, "permit” partial intestacy. For instance, if a will disposes of only one small specific item out of a large and valuable estate, it would be absurd to hold that the devisee of that one small item is entitled to the remainder of the estate. The trial court apparently relied on the rule of construction provided in MCL 700.133(3); MSA 27.5133(3) which provides, "A will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.” This rule of construction is to be applied unless a contrary intention is indicated by the will. MCL 700.133(2); MSA 27.5133(2). We must stress that this statutory provision is simply a rule of construction. It is inapplicable when there is nothing to construe. The provision allows a court to construe a will so that property acquired after execution of the will may be disposed of by that will. It does not negate other provisions of the Probate Code which explicitly recognize that a portion of an estate may pass by intestate succession. See MCL 700.104; MSA 27.5104.
As noted earlier, this will did not provide for a disposition of the property in the event that the wife predeceased the testator. We will not use the presumption against intestacy to create a bequest which the testator has clearly failed to indicate. In re Shaw Estate, 138 Mich App 751, 754-755; 360 NW2d 921 (1984), lv den 422 Mich 928 (1985). We cannot create a clause in order to compensate for the testator’s oversight. If we attempted to discover what the testator would have done with the property if he had realized that he did not provide for its disposition, we would no longer be interpreting the will. There is no need for this Court to guess as to what the testator would have done. The rules of intestate succession have specifically provided for situations where a deceased did not provide for the disposition of his property. The Legislature has determined that those of a closer degree of kinship to the deceased should take over those of more remote degree. See MCL 700.106; MSA 27.5106. Because a reading of the will as a whole leaves one with the clear impression that the testator did not provide for an alternate disposition of the property, it passes by intestate succes sion. The decision of the probate court is therefore reversed and the case is remanded for proper disposition of the property.
Reversed and remanded. | [
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] |
Per Curiam.
Petitioners appeal as of right from the Tax Tribunal’s dismissal of their petition and the denial of their motion for rehearing. The tribunal relied on the failure of counsel for petitioners to attend a counsel conference as required by Tax Tribunal Rule 250. We reverse and remand for further proceedings.
On June 29, 1983, petitioners filed a petition seeking tribunal review of respondent’s 1983 property tax assessment of petitioners’ commercial property in Bangor Township. The petition alleged that the assessment was too high notwithstanding that the Bangor Township Board of Review had reduced the original assessment. Respondent filed an answer and prehearing valuation disclosure on July 13, 1983. The petition was amended on April 27, 1984, to include the 1984 assessment.
On March 8, 1984, respondent filed a motion to dismiss the petition, alleging that petitioners had made no arrangements for counsel conference and had not submitted a prehearing valuation disclosure, contrary to tribunal rules. Petitioners contended that respondent was not prejudiced and that the tribunal should exercise its discretion and deny the motion. We note that respondent’s claims of prejudice were that respondent was unable to prepare for hearing and that it was unfair to permit petitioners to have the advantage of examining respondent’s prehearing valuation disclosure weeks or months prior to the preparation of their own. The tribunal denied respondent’s motion to dismiss and stated in its order of April 24, 1984:
"Respondent made no objection to Petitioners’ failure to schedule a counsel conference until approximately 8 months after such an objection would have been appropriate, and
"It further appearing to the Tribunal that Petitioners’ failure has not prejudiced Respondent materially, and that it would best serve the interests of justice to deny the instant motion, therefore
"IT IS ORDERED that Respondent’s Motion to Dismiss be and is hereby DENIED.
"IT IS FURTHER ORDERED that Petitioner and Respondent conduct a counsel conference pursuant to TTR 250 within 30 days of the date of entry of this order, and that Petitioner file a summary thereof within 10 days thereafter.”
Counsel for petitioners and for respondent then agreed to hold a counsel conference on May 14, 1984. However, when that day arrived, petitioners’ counsel requested an adjournment, and respondent’s counsel agreed to adjourn the conference until June 14, 1984. On May 16,1984, respondent’s counsel sent petitioners an evidentiary stipulation and a first set of interrogatories, the latter to be answered and returned within 30 days.
On June 14, 1984, petitioners’ counsel failed to appear for the agreed-to conference. Counsel subsequently acknowledged that his failure to appear was inadvertent, and he explained that he was heavily burdened handling the case load of his partner, who was recuperating from gastric lymphoma. Counsel also alleged that he was willing to participate in a conference and had called respondent’s counsel, who refused to cooperate further.
On June 20, 1984, respondent again filed a motion to dismiss and cited petitioners’ failure to conduct a counsel conference, submit answers to interrogatories, stipulate to the admissibility of specified evidence and provide prehearing valuation disclosures. Respondent claimed prejudice in that it was unable to prepare for hearing or otherwise advance the cause and that petitioners had avoided paying lawful property taxes for at least two years. Respondent claimed that its counsel had put in significant time and effort to prepare for the scheduled May 14, 1984, conference.
Within a few days of respondent’s motion to dismiss being filed, petitioners filed their answers to interrogatories and also answered the motion and denied that respondent was prejudiced. On October 12, 1984, the tribunal entered an order on respondent’s motion, stating in part:
"It further appearing to the Tribunal that although a counsel conference was scheduled for May 14, 1984, pursuant to the Tribunal’s order, such conference was rescheduled by Petitioners for June 14, 1984, but was' not held, and
"It further appearing to the Tribunal that Respon dent has gone through substantial preparation in anticipation of the counsel conference scheduled for June 14, 1984, and
"It further appearing to the Tribunal that counsel for Petitioners has not set forth specific and legitimate reasons why he could not attend the counsel conference scheduled for June 14, 1984, and
"It further appearing to the Tribunal that although the Tribunal is reluctant to grant dismissal, Respondent has suffered substantial prejudice resulting from petitioners’ failure to comply with the Tribunal’s order and Tribunal rules regarding the counsel conference, and
"It further appearing to the Tribunal that failure to comply with Tribunal rules and orders is cause for dismissal pursuant to TTR 247(3),[ ] therefore
"IT IS ORDERED that Respondent’s Motion to Dismiss be and is hereby GRANTED and the above-captioned cause be and is hereby DISMISSED.”
On petitioners’ motion for rehearing and reconsideration, the tribunal acknowledged its discretion pursuant to Tax Tribunal Rule 445 but denied the requested relief, concluding that petitioners had not alleged any reasons justifying rehearing as set forth in GCR 1963, 528.3.
On appeal, petitioners argue that the Tax Tribunal abused its discretion by resorting to the harshest sanction available — dismissal. Petitioners contend that imposition of costs for the delay would have been the appropriate action to take. We agree.
The power of the Tax Tribunal to dismiss a petition because of a petitioner’s noncompliance with a rule or order of the tribunal is unquestionable. Lawrence v Dep’t of Treasury, 128 Mich App 741; 341 NW2d 200 (1983). The tribunal’s actions, however, are reviewable for abuse of discretion. See, e.g., Zenith Industrial Corp v Dep’t of Treasury, 130 Mich App 464; 343 NW2d 495 (1983); Turner v Lansing Twp, 108 Mich App 103, 112-113; 310 NW2d 287 (1981), lv den 413 Mich 871 (1982).
What prejudice has respondent suffered? On April 24, 1984, the tribunal concluded that respondent had not been prejudiced materially. Based on petitioners’ counsel’s failure to attend a conference less than two months later, the tribunal concluded that respondent had suffered substantial prejudice. We find the tribunal’s latter conclusion unsupported by the record.
The tribunal found that respondent’s counsel had gone through substantial preparation for the June 14, 1984, conference. However, the motion and affidavit filed by respondent referred only to substantial preparation for the May 14, 1984, conference. The record is silent as to the need for further significant preparation for the June conference. As to petitioners’ counsel’s unavailability for the May conference, respondent’s counsel agreed to an adjournment and we thus have cause to doubt the substance of the prejudice to respondent. Furthermore, we note that the answers to respondent’s interrogatories were not due by the June 14 conference and, while late, were filed prior to petitioners’ answer to the motion to dismiss. The only prejudice to respondent, therefore, that is apparent on the record and that resulted from petitioners’ counsel’s failure to attend either the May 14 or June 14 scheduled conference is the cost of respondent’s counsel’s wasted preparation time. This cost could readily have been assessed against petitioner.
We conclude that, under the circumstances of this case, the tribunal’s imposition of the harshest available sanction was an abuse of discretion. Accordingly, we reverse and remand for further proceedings. The tribunal may assess costs against petitioners.
Reversed and remanded.
1981 AACS, R 205.1250 provides:
"(1) In all proceedings, except as provided in R 205.1249, [for cases involving equalization, allocation, apportionment, and non-property tax appeals] the petitioner or representative shall arrange for a conference with all other parties or representatives for the following purposes:
"(a) To discuss the possibility of settlement. Petitioner and respondent shall each express a good faith estimate of the true cash value of the subject property.
"(b) To stipulate evidence to the fullest extent to which complete or qualified agreement can be reached, including all material facts that are not, or fairly should not be, in dispute.
"(c) To consider all other matters that may aid in the disposition of the proceeding.
"(2) The conference shall be held within 30 days after the filing of an answer at a time and place mutually agreed to or, if no agreement can be reached, fixed by order of the tribunal.
"(3) The petitioner shall prepare a summary of the results of this conference which shall be served upon all opposing parties and, together with proof of service, filed with the clerk within 10 days after the conference. Any objections to the summary shall be filed with the clerk within 10 days after the filing of the summary.”
1979 AC, R 205.1247 provides:
"(1) When a party has failed to plead, appear, or otherwise proceed as provided by these rules or as required by the tribunal, he may be held in default by the tribunal on motion of another party or on the initiative of the tribunal. Thereafter, the tribunal may enter a decision against the defaulting party upon such terms and conditions as the tribunal deems proper.
"(3) Failure of a petitioner to properly prosecute the appeal or comply with these rules is cause for dismissal.
"(4) Defaults, dismissals or decisions rendered thereon may be set aside by the tribunal for reasons it deems sufficient upon motion made within 20 days of entry of the order of default or dismissal.” | [
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J. C. Ravitz, J.
Plaintiff appeals as of right from judgments of no cause of action in favor of defendants Sisters of Mercy Health Corporation, also known and hereafter referred to as Mercy Hospital, Dr. Alger, Dr. Jui, and Grand Rapids Occupational Medicine, P.C. (GROM). The court directed a verdict for defendant Mercy Hospital at the conclusion of plaintiff’s proofs. The jury verdict in favor of defendant doctors and GROM followed a six-day trial.
Plaintiff injured his back in the course of his employment when his tractor-trailer jackknifed near Cadillac, Michigan on January 7, 1980. He was taken to defendant Mercy Hospital. Plaintiff’s back was x-rayed. An x-ray report prepared by a radiologist at Mercy Hospital stated that there was a "slight loss of vertical height anteriorally at Dll, without buckling of the anterior cortex, and therefore, probably of no significance”. When plaintiff was released from Mercy Hospital on January 15, 1980, still in great pain, he completed a release form provided by defendant Mercy Hospital requesting that his records be forwarded to defendant Alger at Alger’s office address.
When plaintiff returned to his home near Grand Rapids, he visited GROM, of which defendants Jui and Alger were shareholders, for treatment. On January 21, 1980, the first date plaintiff visited GROM, a receptionist of GROM called Mercy Hospital for a verbal report of the x-rays. Her message, presented to Jui with plaintiff’s charts, showed "no fracture”. Jui took a history, made an examination, and diagnosed plaintiff’s problem as a "strain, * * * lumbrosacral and paravertebral muscles and ligaments”. Jui prescribed rest. A copy of the actual x-ray report was requested, but never received. Jui examined plaintiff a second time on January 28, 1980. On February 4, 1980, Jui prescribed gentle exercise. Jui examined plaintiff on two subsequent occasions, February 13 and 26, 1980.
Alger saw plaintiff for the first time on March 17, 1980. On that date, following his examination, he checked for any new x-ray reports. He received a penciled note bearing, verbatim, the language of the x-ray report prepared at Mercy Hospital quoted above. Suspicious of the height loss, he immediately reexamined plaintiff but found no tenderness, deformity, or pain. On March 24, Alger ordered physical therapy. On April 7, concerned because of plaintiff’s lack of progress, Alger referred plaintiff to an orthopedic surgeon, Dr. Ehlert. Sometime near April 7-9, 1980, plaintiff signed a release so that GROM could receive his x-rays and the x-ray report from Mercy Hospital. Those reports arrived at GROM, according to Alger, on April 19. Alger examined the x-rays on April 20. Alger thought they showed a fracture of a vertebra, and he immediately called plaintiff to inform him of this. Alger testified that the exercise program plaintiff had been on would have been contraindicated in the presence of a fresh compression fracture.
The x-rays revealed that defendant had suffered a "compression fracture” of a vertebra in his spine. Ehlert testified that comparison of the x-rays taken at Mercy Hospital in January with x-rays he ordered in April showed that the compression of the 12th vertebra increased from a 30% loss of height in January to a 60% loss of height in April. Ehlert opined that a Jewitt brace could have prevented this additional loss of height and its attendant disability.
Plaintiffs complaint alleged that negligence on the part of defendants resulted in a deterioration from "an initial 20-30% compression fracture of the 12th thoracic vertebra to a current condition with a 60-70% fracture”.
Plaintiffs complaint alleged that Mercy Hospital was negligent in failing to "provide medical records, x-rays and reports accumulated on plaintiff during his stay” to those providing plaintiff with subsequent medical care and treatment and in failing to "report or otherwise communicate the contents without misrepresentation of said medical records * * *”, particularly the fact that plaintiff was suffering from a fracture of the spine.
Plaintiffs complaint alleged that Jui and Alger, and vicariously GROM, were negligent in failing to properly diagnose his condition, failing to order new x-rays, failing to review the initial x-rays, and negligent in prescribing the wrong treatment for his fractured spine.
Plaintiff’s claim against Mercy Hospital
The trial court directed a verdict on this claim at the conclusion of plaintiffs proofs after defendant Mercy Hospital argued that plaintiff had failed to show that its failure to send records or reports was a proximate cause of plaintiffs alleged worsened compression fracture. In reviewing this ruling, we must accord to plaintiff the benefit of viewing the testimony and all legitimate inferences arising therefrom in a light most favorable to plaintiff. If the evidence, when viewed in this manner, establishes a prima facie case, we must reverse. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975).
The proper standard of care expected of a hospital staff toward hospital patients is such reasonable care and attention for their safety as their mental and physical condition may require. See Mounds Park Hospital v Von Eye, 245 F2d 756, 759 (CA 8, 1957); Sylvester v Northwestern Hospital of Minneapolis, 236 Minn 384, 386; 53 NW2d 17, 19 (1952), cited in Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 487; 258 NW2d 527 (1977), rev’d on other grounds 403 Mich 820 (1978). We acknowledge that the causal link here is entirely circumstantial, but find that reasonable minds could differ on the factual question of whether Mercy Hospital’s negligence was a proximate cause of plaintiff’s damages.
Plaintiff was hospitalized at Mercy Hospital for eight days. He was still in great pain when released. He completed a records release form authorizing release of his records to Dr. Alger. Plaintiff saw Jui five times beginning January 21, 1980. Jui misdiagnosed and mistreated plaintiff’s compression fracture, without the benefit of plaintiff’s hospital records and x-rays. With no x-rays from Mercy Hospital, but only a handwritten note with a verbatim description from the Mercy Hospital radiologist’s report, Alger also misdiagnosed and mistreated plaintiff. When Alger saw the x-rays, he immediately recognized a possible fracture. We believe that plaintiff presented sufficient evidence of a causal connection between Mercy Hospital’s negligence and plaintiff’s misdiagnosed injuries and misprescribed treatment to establish a jury question on the issue of proximate cause.
On appeal, defendant Mercy Hospital urges three grounds for sustaining the directed verdict which were not articulated below. A party moving for directed verdict must state specific grounds therefor. See OCR 1963, 515.1. Thus, we believe appellate review is precluded on these three grounds. Our review of these grounds leads us to conclude that they lack merit at any rate. Mercy Hospital unsuccessfully seeks to shift to defendant doctors the duty to prevent harm to plaintiff. First, we believe that it was foreseeable that defendant physicians would wait for records rather than order new x-rays when a release was signed upon discharge and members of the GROM staff verbally requested plaintiffs records. We also decline to shift the duty to defendant doctors under the "learned intermediary” doctrine, heretofore applicable only to prescription drug products liability actions, in this simple negligence claim. Finally, in Michigan, a lapse of time from a tortfeasor’s negligence to the time of injury will not protect a wrongdoer from liability. Parks v Starks, 342 Mich 443, 446-447; 70 NW2d 805 (1955).
Although not dispositive of our reversal of the directed verdict against Mercy Hospital, to prevent further error on retrial, we address plaintiffs claim that the trial court improperly excluded testimony from Jui concerning how his diagnosis and treatment of plaintiff would have differed had he had the Mercy Hospital x-rays initially.
Jui testified by deposition. He was asked what his course of treatment would have been if plaintiff had come into his office on January 21, 1980, with the set of x-rays taken at Mercy Hospital. He responded that he would have ordered new x-rays, or would have shown the x-rays to a radiologist for a second opinion, or would have called an orthopedic consultation. Defense objections that the testimony would be speculative and that the response had no relevance to plaintiffs malpractice claim were sustained and the question and answer were stricken from the record.
Questions of relevance are left to the discretion of the trial court. Birou v Thompson-Brown Co, 67 Mich App 502; 241 NW2d 265, lv den 397 Mich 808 (1976). "Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. We agree that the question and answer had no bearing on the standard of care exercised by Jui, since Jui did not in fact have the benefit of the x-rays on January 21, 1980. However, the question and answer went to the heart of plaintiff’s claim against Mercy Hospital. It tends, in a very direct manner, to show that the hospital’s negligence was at least a partial cause of plaintiff’s present disability. To the extent that the question called for an opinion, Jui, as plaintiff’s treating physician, was qualified by specialized knowledge to "assist the trier of fact to * * * determine a fact in issue”. MRE 702. We find that exclusion of this evidence constituted an abuse of discretion. See e.g., Abbott v Unemployment Compensation Comm, 323 Mich 32; 34 NW2d 542 (1948).
Defendant Mercy Hospital claims that there was no factual predicate for the opinion. We disagree. Jui examined plaintiff on January 21, 1980. The x- rays were in existence and plaintiff had signed a release form to allow the records to be sent to GROM.
With regard to plaintiffs claim that the trial court improperly excluded testimony from Alger concerning what he would have done if he were the treating physician on January 21, we agree that the factual predicate is lacking. Jui, not Alger, was the treating physician on January 21.
Having determined that the directed verdict was improperly granted in favor of defendant Mercy Hospital, we next address plaintiffs appellate argument dealing with his malpractice actions against defendant physicians.
Plaintiff’s claims against defendants Jui and Alger
On appeal, plaintiff claims that the trial court’s failure to give properly requested SJI2d 15.04, 41.02 and 41.03 requires reversal as to defendant physicians and GROM. These instructions go hand-in-hand.
SJI2d 15.04 provides:
"Causation by Multiple Defendants
"You may decide that the conduct of neither, one or both of the defendants was a proximate cause. If you decide that one of the defendants was negligent and that such negligence was a proximate cause of the occurrence, it is not a defense that the conduct of the other defendant also may have been a cause of the occurrence. Each defendant is entitled to separate consideration as to whether his conduct was a proximate cause of the occurrence.”
SJI2d 41.02 and 41.03 provide that where more than one defendant is liable, the damages caused by each defendant shall be separately determined, unless the jury is unable to determine the separate amount caused by each defendant, in which case their verdict shall be for the total damages.
The trial court denied the request for instructions, apparently on the reasoning that any negligence of defendants Jui and Alger was necessarily joint, each defendant being vicariously liable for the acts of the others. The court thus instructed the jury only as follows:
"Your verdict will be for the plaintiff if the defendants were negligent and such negligence was a proximate cause of the plaintiffs injuries and if there were damages. Your verdict will be for the defendants if the defendants were not professionally negligent or did not commit malpractice, or if the defendants were professionally negligent or did commit malpractice, but such professional negligence or malpractice was not a proximate cause of the plaintiffs injuries or damages, or if the plaintiff was not injured or damaged.”
Contrary to the trial court’s ruling, Jui and Alger were not vicariously liable for each other’s acts. Vicarious liability is based upon principal-agent and master-servant relationships and in volves the imputation of negligence of the agent or servant to the principal or master without regard to the fault of the principal or master. Layton v Quinn, 120 Mich App 708, 714; 328 NW2d 95 (1982). Here, no principal-agent or master-servant relationship existed between Alger and Jui. Nor were the physicians here necessarily jointly liable because each allegedly misdiagnosed and misprescribed treatment for plaintiff. Naccarato v Grob, 384 Mich 248, 255; 180 NW2d 788 (1970); Rodgers v Canfield, 272 Mich 562, 565; 262 NW 409 (1935).
Does this error require reversal? Failure of a court to give accurate, applicable and properly requested standard jury instructions does not result in automatic reversal on appeal; a jury verdict should be so vacated only when the failure to do so would be inconsistent with substantial justice. MCR 2.516, 2.613; Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985). We must conclude that the instruction given did not adequately inform the jury that it could consider separately the causal connection between the conduct of each defendant and plaintiffs injuries. The jury could easily have concluded that, unless they found the conduct of both doctors to be a proximate cause, they had to find in favor of both doctors.
What might have been, had this instructional error not occurred, is strictly conjectural. The jury still might have found in favor of both doctors, individually; or, they might have found one doctor liable and not the other.
Insofar as we regard the proofs against Dr. Jui to have been stronger than those against Dr. Alger, who ultimately helped secure an accurate diagnosis and terminate the inappropriate treatment, we have considered the question of whether the error may have redounded to the benefit of Dr. Jui but not Dr. Alger and, therefore, whether we ought to affirm as to the latter. However, such a decision requires a level of omniscience which we clearly lack. A jury, properly charged, might have concluded that Dr. Alger’s active role from at least March 24 until April 20 made him liable.
Since the instructional error taints the verdicts in a manner inconsistent with plaintiffs right to substantial justice, and since we cannot speculate as to what the outcome would have been but for this error, reversal is required as to both Doctors Jui and Alger. On retrial, SJI2d 41.02 and 41.03 should likewise be given.
Finally, we address plaintiffs claim that the trial court improperly admitted evidence of plaintiffs collateral source income. From the record available for our review, plaintiffs motion in limine should be granted at the retrial. If defendants have additional evidence upon which collateral sources of income might arguably be admissible, then upon remand defendants should offer this evidence, plaintiff should be free to offer rebuttal, and the trial court should rule on the admissibility of collateral source income prior to trial.
Reversed and remanded for a new trial.
For a description of the evolution and rationale of this doctrine, see In re Certified Questions, 419 Mich 686, 704-718; 358 NW2d 873 (1984).
Denial of the admission of this testimony during plaintiffs proofs, which testimony was admitted as part of defendant Mercy Hospital’s proofs, served to be doubly damaging to plaintiff at trial. The directed verdict was based on the trial court’s reasoning that plaintiff had failed to show that Mercy Hospital’s negligence was a proximate cause of his injuries. Admission of the testimony during the remaining defendants’ proofs tended to shift the blame to defendant Mercy Hospital which had already been granted a directed verdict. This case is one in which the alleged negligence of one or several defendants is alleged to have proximately caused plaintiffs injuries. Admission of the disputed testimony on retrial will significantly aid the jury in apportioning the damages attributable to any negligent defendant.
SJI2d 41.02 provides:
"Damages to Be Assessed Separately
"If you find one of the defendants to be liable, you shall determine the amount of damages he caused and return a verdict in that amount. If you find more than one of the defendants to be liable, you shall return a separate verdict for the amount of damages you determine each defendant caused.”
SJI2d 41.03 provides:
"Multiple Parties and Pleadings Where Jury May Not Be Able to Apportion Damages.
"However, if you find one or more of the defendants to be liable, and after careful consideration of the evidence you are unable to determine the separate amount of damage each defendant has caused, then you shall not divide the plaintiffs total damages [between/ among] them, but your verdict shall be for the total damages against the one or more defendants whom you find to be liable.
"If you can determine the amount of damage caused solely by a defendant or defendants whom you find not liable, you shall not include those damages in the total amount.” | [
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Per Curiam.
Defendants filed this interlocutory appeal following the trial court’s denial of their motion for summary judgment under GCR 1963, 117.2(1) and (3).
Donald Lisecki was employed by defendant Taco Bell Restaurants, Inc., as a maintenance supervisor until June of 1981, when he sustained an injury to his right knee during the course of the employment. Defendant National Union Fire Insurance Company, through its local servicing agent, Crawford & Company, voluntarily paid workers’ compensation benefits to Lisecki. According to an affidavit submitted with the defendants’ motion, benefits were discontinued on November 16, 1981, when a claims adjuster for Crawford & Company contacted the office of Lisecki’s physician and was informed that Lisecki had been released to return to his full work responsibilities. Lisecki disputes this claim, alleging that he had been released to return only to restricted work. Further, Lisecki claims that he agreed to return to work only at the urging of a co-employee who informed him that he was needed to help train a new employee. In any event, upon his return to work, Lisecki was informed by his supervisor that he had been terminated from his employment. Lisecki further alleges that he was told by the supervisor that he would no longer receive workers’ compensation benefits.
Lisecki filed a petition with the Bureau of Workers’ Disability Compensation on November 9, 1981, seeking a restoration of benefits. He was found to be entitled to an open award of benefits on January 27, 1983. This award was appealed to the Workers’ Compensation Appeal Board by the defendants, where the matter is presently pending.
On April 14,1983, plaintiffs, Lisecki and his wife, Jeannette Lisecki, filed a complaint in the circuit court alleging that the defendants acted in collusion to "wrongfully, wilfully and intentionally” deprive Lisecki of workers’ compensation benefits, as a result of which plaintiffs suffered damages such as mental anguish and emotional distress. Defendants moved for summary judgment, which motion was denied by an order dated November 30, 1984. We reverse.
Plaintiffs’ claim against the defendants is essentially one for the intentional infliction of emotional distress. We note that this Court was presented with a similar situation in Hajciar v Crawford & Co, 142 Mich App 632; 369 NW2d 860 (1985). There, the plaintiff suffered an on-the-job injury which culminated in the amputation of his left leg, rendering him totally disabled. Compensation benefits were paid for several years but were ultimately terminated, allegedly without cause. The plaintiff claimed that benefits were terminated in order to coerce him into redeeming his claim against the defendant for a lump sum payment, an offer he had previously refused. Hajciar, p 634.
The plaintiff filed suit in circuit court alleging, inter alia, that the defendant’s actions constituted the intentional infliction of emotional distress. The circuit court granted the defendant’s motion for summary judgment and this Court affirmed. In a footnote, p 638, the Hajciar Court referred to the following passage from Holmes v Allstate Ins Co, 119 Mich App 710; 326 NW2d 616 (1982), for a description of the tort of intentional infliction of emotional distress:
"The Court [of Appeals] has explicitly adopted the definition found in the Restatement Torts, 2d, § 46, pp 71-72, which provides:
" '(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. * * *’
See Ross v Burns, supra, p 273; Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 390; 239 NW2d 380 (1976); Frishett v State Farm Mutual Automobile Ins Co, 3 Mich App 688, 692; 143 NW2d 612 (1966), lv den 378 Mich 733 (1966).
"As explained in the Restatement, § 46, comment d, p 73:
" 'It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!”
" 'The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ See Warren, supra, pp 390-391.
"In defining the types of situations where these rules may be applied, the Warren Court explained:
" 'The extreme and outrageous character of a defendant’s conduct may arise in a number of situations. It may occur by virtue of an abuse by defendant of a relationship which puts him in a position of actual or apparent authority over plaintiff or gives defendant power to affect plaintiff’s interests. The landlord-tenant relationship is one such situation. The tort may arise where defendant acts notwithstanding the knowledge that plaintiff is peculiarly susceptible to emotional distress because of defendant’s actions. However, conduct may be privileged under some circumstances. For example, an actor is not liable "where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress”. Restatement, supra, §46, comment g, p 76.’ Warren, supra, p 391.” Holmes, pp 714-715.
Relying upon the above-quoted explanation of the tort, the Hajciar Court concluded that the plaintiff in that case "has not alleged conduct of such an extreme degree as to be characterized as outrageous and atrocious”. 142 Mich App 639.
Our Supreme Court has also recently had occasion to consider an intentional infliction of emotional distress claim, although in connection with the denial of no-fault, rather than workers’ compensation, benefits. In Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), the plaintiffs alleged that the defendant insurance company’s failure to provide a form for claiming replacement service benefits, their delay in responding to a claim for benefits, and the ultimate denial of benefits to which the plaintiffs were entitled constituted the extreme and outrageous conduct necessary to establish an intentional infliction of emotional distress claim. The Supreme Court disagreed, stating:
"While Auto-Owners’ conduct is hardly praiseworthy, plaintiffs alleged no more than the failure by Auto-Owners to facilitate the filing of a replacement services claim, a delay of at most six months in responding to the claim as filed, and the denial of benefits owed. Such conduct may properly be considered unreasonable for purposes of assessing the statutory penalty for overdue payments as well as plaintiffs’ attorney fees against Auto-Owners [citing MCL 500.3142(3); MSA 24.13142(3) and MCL 500.3148(1); MSA 24.13148(1)]. However, the record evidence falls 'far short of the conduct which is considered tortiously outrageous.’ [Butt v Detroit Automobile Inter-Ins Exchange, 129 Mich App 211, 219; 341 NW2d 474 (1983)] There is no indication that Auto-Owners set out to harass these plaintiffs, nor does the evidence disclose a course of conduct that may fairly be characterized as 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,’ Restatement Torts, 2d, § 46, comment d, p 73. At most, the dilatory handling of plaintiffs’ claim constitutes 'bad faith’ justifying imposition of the statutory penalties set forth above, but for which this Court has held no separate cause of action can lie. See [Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 423; 295 NW2d 50 (1980)].” 422 Mich 607-608.
We believe the conclusion reached in both Hajc iar and Roberts is appropriate in the case before us. The facts in Hajciar were essentially identical to those presented here, i.e., an allegation by the plaintiff that compensation benefits were wrongfully terminated by the defendants in order to further some ulterior motive of the defendants rather than due to the plaintiffs return to his preinjury wage-earning capacity. While such an allegation, if in fact true, would call into serious question the business practices of the defendants, we agree with the Hajciar Court that such conduct simply cannot be characterized as outrageous and atrocious. An adequate remedy for the defendants’ termination of benefits was available to and exercised by plaintiff Donald Lisecki, i.e., his filing of a petition for hearing with the Bureau of Worker’s Disability Compensation, which resulted in an open award of benefits. We do not believe the tort relied upon by plaintiff was intended to provide damages for this type of conduct. Therefore, the trial court’s denial of the defendants’ motion for summary judgment is reversed.
Reversed.
We note that plaintiffs rely mainly upon Broaddus v Ferndale Fastener Division, Ring Screw Works, 84 Mich App 593; 269 NW2d 689 (1978). However, that reliance is misplaced since Broaddus has no application to the facts of this case. In Broaddus, this Court held that a claim for intentional infliction of emotional distress is not barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). Broaddus, p 600. This holding is entirely correct since the plaintiff in Broaddus, as well as the plaintiffs here, did not seek to recover damages for a personal injury arising out of and in the course of his employment. Rather, he sought a recovery for nonphysical damages arising from the defendants’ failure to provide workers’ compensation benefits to which plaintiff was allegedly entitled. Broaddus did not hold that the failure to pay benefits under the circumstances presented there, or for that matter as presented in the case before us, enables the plaintiff to recover damages for the intentional infliction of emotional distress. Therefore, the case relied upon by plaintiffs in this appeal in fact has no application. | [
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Per Curiam:.
Defendant was convicted by a jury of kidnapping, MCL 750.349; MSA 28.581, and conspiracy to kidnap, MCL 750.157a; MSA 28.354(1). He was sentenced to concurrent terms of 2 to 5 years in prison on each count.
Defendant appealed and, in an unpublished opinion per curiam, we reversed on two grounds. We concluded that the prosecutor’s comments in closing argument that defendant’s presence at trial afforded him an opportunity to fabricate a story and the prosecutor’s questioning of defendant regarding his financial condition required reversal. Docket No. 54321, decided May 2, 1984.
The Supreme Court granted leave, 419 Mich 924 (1984), and, subsequently, reversed this Court’s decision in the companion cases of People v Buckey and People v McWhorter, 424 Mich 1; 378 NW2d 432 (1985). The Supreme Court held that the prosecutor’s comments concerning defendant’s presence at trial and opportunity to fabricate were not improper. 424 Mich 16. The case has been remanded to us to reconsider whether the questioning of defendant concerning his financial condition was error requiring reversal and to consider allegations of error raised by defendant which we did not address in our original opinion.
I
We begin by reconsidering whether the questions concerning defendant’s financial condition constitute error mandating reversal. In People v Henderson, 408 Mich 56; 289 NW2d 376 (1980), the Supreme Court held that evidence of financial condition is not generally admissible to prove motive. However, the Court concluded that evidence of financial condition may be admissible in particular cases. 408 Mich 66. In Henderson, the Court found evidence of the defendant’s financial condition was admissible where the defendant was charged with embezzlement and was gainfully employed in a managerial position. The Court distinguished between evidence of unemployment or poverty and evidence of an atypical shortage of funds.
In the instant case, defendant was an attorney and was seeking to obtain money from the victim, David Nixon. On cross-examination, the prosecutor questioned defendant about whether he was in serious financial trouble at the time of the kidnapping and whether defendant had over $250,000 in debts. Defendant denied any financial difficulty. The prosecutor then asked whether defendant ever was in debt for that amount. Defense counsel objected to evidence of financial difficulty at times other than at the time of the abduction, but the trial court permitted an answer. Defendant again denied being in debt.
We adhere to our original conclusion that the prosecutor’s questions concerning defendant’s financial condition at times other than that of the kidnapping were improper. However, upon reconsideration, we no longer hold the view that the error requires reversal. The only question which concerned a time other than that of the kidnapping was whether defendant had ever owed $250,000, which defendant denied. We conclude that this did not prejudice defendant.
Defendant also raises three additional allegations of prosecutorial misconduct. The first, regarding Nixon’s testimony that defendant asked him not to implicate Doug Suess, was not objected to and appellate review is precluded. People v Hooks, 101 Mich App 673; 300 NW2d 677 (1980).
Defendant challenges the questioning of his secretary, Charlene Crouch, about whether she heard discussions regarding illegal activities at defendant’s office. Following a defense objection, the question was withdrawn. Defendant also challenges the questioning of Crouch on redirect examination regarding whether she had reason to believe defendant was involved in the abduction of Nixon. However, it was defendant who initially brought up the issue of Crouch’s opinion of defendant’s guilt. We find no prejudice in either of these instances.
II
On appeal, defendant challenges the sufficiency of the evidence to support a guilty verdict on the charges of conspiracy to kidnap and aiding and abetting a kidnapping. With regard to the conspiracy charge, there certainly was evidence that defendant intended to combine with Postelwaite and Snyder and specifically intended to kidnap Nixon. See People v Atley, 392 Mich 298; 220 NW2d 465 (1974). Similarly, we believe that the evidence presented to the jury sufficiently supported a guilty verdict.
Ill
Defendant argues that his convictions should be set aside because they are based on testimony the prosecutor knew was false and perjured. This Court has held that reversible error is presented when a prosecutor knowingly presents false testimony. People v Thornton, 80 Mich App 746; 265 NW2d 35 (1978). However, we believe that the instant case is distinguishable from Thornton. In this case, Nixon testified at the preliminary examination that he raised his ransom money from his grandmother. At trial, he admitted that the money Came from the sale of marijuana. However, at the preliminary examination, other prosecution witnesses testified that Nixon was involved in the drug trade.
Unlike Thornton, in this case the prosecutor made no attempt to conceal the fact that Nixon was lying. Moreover, there is no indication, other than the inconsistencies in the preliminary exam testimony, that the prosecutor knew until the day before trial that Nixon had perjured himself. Finally, the version presented at trial was the least helpful to Nixon’s credibility and, since it differed from his prior testimony, afforded defense counsel an opportunity to impeach Nixon. We find no prejudice to defendant.
IV
Defendant next argues that the trial court reversibly erred by refusing to order the prosecutor to obtain documents from federal and out-of-state authorities. Although the modern trend in Michigan is towards broader criminal discovery, we do not believe that this broader discovery extends to requiring the prosecutor to undertake discovery on behalf of defendant. Defense counsel acknowledged that the prosecutor made his entire file available. That exceeded the requirements placed on the prosecutor. The trial court did not err.
V
Defendant’s next argument is that the prosecutor breached an agreement not to charge him with kidnapping. A hearing was held below and the trial court concluded that either there was no definite agreement or, at most, there was an agreement not to charge defendant with kidnapping if he pled guilty to certain federal charges. Defendant made no such plea. The trial court’s decision was not erroneous.
VI
Defendant next complains that the trial court improperly instructed the jury. Defendant argues that the trial court’s instructions regarding specific intent were confusing, the instruction on aiding and abetting was ambiguous, and that the trial court erred in failing to reinstruct the jury on the definition of specific intent.
With respect to the aiding and abetting instruction, defendant failed to object to the instruction at trial, thus precluding appellate review. People v Haney, 86 Mich App 311; 272 NW2d 640 (1978). As for the specific intent instruction, we believe that, after reading the instructions as a whole, the jury was properly instructed in this area. See People v Johnson, 93 Mich App 667; 287 NW2d 311 (1979). Finally, the trial court’s refusal to reinstruct the jury on specific intent was not erroneous since the jury never requested to be reinstructed in this area.
VII
Defendant next argues that reversal is required because Crouch indicated a willingness to undergo hypnosis to refresh her memory. However, the remark was made during defense counsel’s cross-examination of Crouch, it was stricken from the record, and the trial court offered to give a curative instruction which defendant declined. There is no basis for reversal.
VIII
Defendant argues that the prosecutor failed to produce a res gestae witness, namely a waitress in a restaurant that defendant, Crouch and Kenney lunched at during the time Nixon was being held. However, Kenney did not indicate that the kidnapping was discussed at the lunch and defendant and Crouch specifically stated that the abduction was not discussed. At no time did defendant move for endorsement. The waitress observed no part of the criminal transaction, and there is not any connec tion between the waitress and the crime beyond the possibility of overhearing statements which defendant denies were made. See People v Carter, 415 Mich 558; 330 NW2d 314 (1982). The trial court did not err.
IX
Defendant argues that a remand is necessary to consider newly discovered evidence that casts doubt on the truthfulness of certain testimony material to the prosecutor’s case. Defendant’s request for a remand on this issue is supported by an affidavit of one of defendant’s clients, James Lafler. However, the affidavit only raises issues concerning the credibility of certain prosecution witnesses, it does not directly relate to defendant’s guilt. Newly discovered evidence which relates only to witness credibility is not sufficient to require a new trial. People v Boynton, 46 Mich App 748; 208 NW2d 523 (1973).
X
Defendant next argues that a remand is necessary to determine the existence and importance of evidence of concessions made to a prosecution witness. This argument is again based upon new evidence related to witness credibility. No remand is required. Boynton, supra.
XI
Defendant also argues that a remand is required to determine if he was denied effective assistance of counsel due to an alleged conflict of interest arising from his counsel’s cooperating with the counsel of codefendants who ultimately turned state’s evidence. However, defendant has failed to show any basis for prejudice on this issue, and remand is not required.
XII
Defendant next argues that a remand is necessary to determine if there has been a violation of the Interstate Agreement on Detainers Act (IAD), MCL 780.601; MSA 4.147(1). However, defendant never requested a final disposition of his case as required by MCL 780.601, Art III, ¶ (a); MSA 4.147(1), Art III, ¶ (a). Moreover, none of defendant’s claimed violation of the IAD relates to delays after December 1, 1978, when he first became a federal prisoner. Until that time, the IAD was inapplicable. No remand is required.
XIII
This brings us to defendant’s final claim of error: that a remand is necessary to determine whether the jury was improperly influenced when "the trial prosecutor took heroic action to protect the court’s personnel including the jury” when a tornado struck downtown Kalamazoo on May 13, 1980. Defendant concedes this is a novel issue. While admitting the prosecutor’s conduct was commendable, defendant is concerned it may have influenced the jury to the prosecutor’s favor. When the proceedings resumed a week later, defendant was afforded an opportunity to place anything on the record concerning the interruption in the proceedings. Defense counsel made no objections.
We agree the issue is novel, but find no basis for reversal.
Affirmed.
Questions concerning defendant’s financial condition at the time of the kidnapping were, in our opinion, proper under Henderson, supra.
See People v Browning (On Rehearing), 108 Mich App 281; 310 NW2d 365 (1981).
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Per Curiam.
In these consolidated cases, Thomas Reer appeals as of right from the August 13, 1984, judgment of the trial court affirming the finding of the Midland Zoning Board of Appeals which held that the city’s Business A zoning classification did not permit a carry-out restaurant as proposed by Reer. Reer also appeals as of right from the trial judge’s issuance of an injunction against him in favor of plaintiffs Talcott, Burks, and Boots. Defendant City of Midland appeals by leave granted from the May 17, 1984, judgment and order of injunction issued by the trial judge which resulted in estopping defendant City of Midland from enforcing its zoning ordinance.
The trial court’s judgment and order as to Reer are reversed. The trial court’s injunction against the City of Midland is vacated.
Reer requested a building permit to establish a "Good Times Pizza” parlor in the City of Midland. After the city’s building inspector told Reer that a carry-out restaurant was not a permissible use in the Business A zoning district where Reer proposed to build, Reer’s request for an interpretation of the zoning ordinance was heard by the zoning board of appeals on March 29, 1983. By a three-to-one vote, the board determined that a carry-out pizzeria was a permissible use. On April 19, 1983, the city attorney requested the board to reconsider. The board took no action. On April 28, 1983, Reer obtained a building permit and began extensive renovation of the building he proposed to convert into a pizzeria. He also entered into a ten-year lease of the building.
On May 17, 1983, the zoning board of appeals again took no action to reconsider. On June 6, 1983, a group of citizens filed suit against the city asking for a review of the zoning board’s interpretation, contending that the notice requirement of the zoning ordinance had not been followed before the board’s prior determination. After a stipulation for another hearing following proper notice was entered into by the parties, the zoning board reconsidered its prior interpretation on June 28, 1983. By a four-to-zero vote, the board found a carry-out pizzeria was not a permissible use.
Subsequently, the trial court affirmed the zoning board’s interpretation. On grounds of estoppel, the trial judge enjoined the city from enforcing the ordinance. However, the trial court granted a group of private citizens, plaintiffs Talcott, Burks, and Boots, an injunction enjoining Reer from operating the pizzeria.
Our review in these cases in de novo but we accord great weight to the findings of the trial court and zoning board of appeals, due to their opportunity to see and hear the witnesses. The standard for granting appellate relief is whether our review of the record convinces us that we would have reached a different result had we sat as the trial court or zoning board of appeals. Fink v Roseville, 50 Mich App 665; 213 NW2d 864 (1973). See also Schwartz v Flint (After Rem), 120 Mich App 449, 457; 329 NW2d 26 (1982), lv gtd 419 Mich 869 (1984).
When we apply this standard to the record before us, we agree with appellant Reer that the trial court erred in affirming the zoning board of appeals’ interpretation of the zoning ordinance.
When construing provisions of a zoning ordinance, this Court seeks to discover and give effect to the lawmaker’s intent. Bangor Twp v Spresny, 143 Mich App 177; 371 NW2d 517 (1985). Farming- ton Twp v Plyler, 18 Mich App 225, 227; 171 NW2d 40 (1969). The interpretation problem at issue arises when one attempts to' reconcile the definitions in Article II of the ordinance with Article XIV, which regulates land uses within business districts. Section 14.1(a)(12) of Article XIV of the city zoning ordinance provides that "restaurants, excluding drive-ins” are permitted uses in Business A district. Section 2.0 of Article II defines in subsections (50), (51), and (52), réspectively, "restaurant”, "restaurant, carry-out”, and "restaurant, drive-in”.
The city and plaintiffs-appellees contend, and the zoning board of appeals and circuit court held, that the word "restaurants” in § 14.1(a)(12) should be limited to the definition of § 2.0(50), "[a]n establishment where food and drink is served to sit-down customers”. Reer contends that the language in § 14.1(a)(12), "restaurants, excluding drive-ins” requires an inference that § 2.0(51) carry-out restaurants are a permissible use since carry-out restaurants were not expressly excluded.
When interpreting the language of an ordinance to determine the extent of a restriction upon the use of property, the language must be interpreted, where doubt exists regarding legislative intent, in favor of the property owner. Peacock Twp v Panetta, 81 Mich App 733, 736-737; 265 NW2d 810 (1978). Applying this principle of interpretation to Midland’s zoning ordinance, we hold that a carryout pizzeria is a permissible use in a Business A district.
Our holding is buttressed by the following. Fairly read, Article II defines three types of "restaurants”, a "restaurant”, "restaurant, carry-out”, and "restaurant, drive-in”. The language of § 14.1(a)(12), "restaurants, excluding drive-ins”, which expressly excludes drive-ins, suggests that a carry-out restaurant is a permissible use in a Business A district. This interpretation is consistent with the rule of statutory construction that a court must give effect to all words in a statute and may not interpret a statute so as to render some of the terms nugatory. Michigan Hospital Ass’n v Michigan Employment Security Comm, 123 Mich App 667, 671; 333 NW2d 319 (1983). Here, if the §2.0(50) definition of "restaurant” is applied to § 14.1(a)(12), the express exclusion of drive-in restaurants is rendered meaningless.
We believe that this construction is not inconsistent with the rule that a statutory definition supersedes a commonly accepted definition where the statute expressly defines a term utilized throughout the statute. See LeGalley v Bronson Community Schools, 127 Mich App 482, 485; 339 NW2d 223 (1983). Because the statute defines, by qualification, three types of "restaurant” we do not believe that the word "restaurants”, in the plural form in § 14.1(a)(12), must necessarily be limited by the § 2.0(50) definition. Use of both the § 2.0(50) and (51) definitions is reasonable, especially in light of the exclusion of "drive-in” restaurants.
Finally, the interpretation advanced by Reer is consistent with the statement of intent found in § 14.0. The primary intent of the Business A district is to serve the surrounding residential neighborhood with goods and services of day-to-day needs._
Because we find that appellant Reer’s proposed use is a permissible use, we need not consider the other issues raised by appellants Reer and City of Midland.
Reversed as to appellant Reer. The injunctive order granted to plaintiffs Talcott, et al., and the injunction against appellant City of Midland shall be vacated.
We acknowledge that there was testimony before the zoning board of appeals that, at least in the minds of some of the individuals who participated in drafting the ordinance, carry-out restaurants were not compatible with the contemplated permissible uses in Business A. Specifically, it was alleged that the drafters sought to exclude businesses which rely on vehicular traffic. Nonetheless, in light of the language used, and the fact that the language must be interpreted, where doubtful, in favor of the property owner, our review of the record convinces us that we would have reached a different result had we sat as the trier of fact. | [
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R. L. Tahvonen, J.
Defendant United Teachers of Flint, Inc., (UTF) appeals as of right from a circuit court order granting summary judgment in favor of plaintiff, Flint School District, pursuant to GCR 1963, 117.2(3). The lower court vacated an arbitration award which was decided in favor of UTF, finding that the parties’ dispute was not subject to arbitration as a matter of law because UTF had initiated separate unfair labor practice proceedings before the Michigan Employment Relations Commission (MERC), which had exclusive jurisdiction over the subject matter. We hold that UTF invoked the jurisdiction of MERC, and sum mary judgment in favor of the school district was proper. We further hold that, where one dispute is subject to both contractual arbitration procedures and MERC proceedings, the MERC decision is dispositive to the extent that the dispute lies within MERC’s jurisdiction.
I
UTF is the bargaining representative of the teachers employed by the Flint School District. In April and May, 1983, UTF filed grievances contending that the school district had violated the collective bargaining agreement by displacing UTF members and reassigning UTF work to members of another bargaining unit, the Congress of Flint School Administrators. On July 12, 1983, the UTF demanded arbitration of those grievances. Seven days later, on July 19, 1983, UTF filed unfair labor practice charges against the school district with MERC, alleging that the school district had violated § 10 of the public employment relations act (PERA), MCL 423.210; MSA 17.455(10), in that it had "unilaterally and without first notifying and bargaining with the United Teachers of Flint * * * displaced bargaining unit members from their teaching positions”. While the unfair labor practice charges were pending before MERC, the grievances proceeded to arbitration. In May, 1984, the arbitrator issued a ruling in favor of UTF.
The school district instituted the present action in circuit court on July 20, 1984, seeking to vacate the arbitration award and obtain declaratory relief. The MERC hearing officer subsequently, on July 30, 1984, issued an order recommending dismissal of all charges against the school district. On August 20, 1984, the circuit court granted the school district’s motion for summary judgment, set aside the arbitrator’s award, and found that UTF’s institution of unfair labor practice charges before MERC had made the issues nonarbitrable.
In granting the school district’s motion, the trial court relied upon Bay City School Dist v Bay City Education Ass’n, Inc, 133 Mich App 729; 349 NW2d 808 (1984), lv granted 422 Mich 857 (1985), where a panel of this Court read Detroit Fire Fighters Ass’n v City of Detroit, 408 Mich 663; 293 NW2d 278 (1980), to hold that, once a party invokes the jurisdiction of MERC by filing an unfair labor practice charge, the dispute must be conclusively decided by MERC, and grievance arbitration must be terminated. The Court in Bay City School Dist read Detroit Fire Fighters as follows:
"Plaintiff points out that this issue has been thoroughly reviewed in the recent case of Detroit Fire Fighters Ass’n v City of Detroit, 408 Mich 663; 293 NW2d 278 (1980). In that case, the Court held that 'once a party to a public employment collective-bargaining relationship invokes MERC’s jurisdiction under PERA, that party’s complaint should be resolved by MERC in accordance with the statutory processes’, 408 Mich 685. In the present case, defendants have invoked MERC’s exclusive jurisdiction, and any order allowing the matter to be deferred to private arbitration would run counter to the Legislature’s intention in vesting MERC with such jurisdiction. Id. We hold that this dispute must be conclusively decided by MERC and that grievance arbitration must be terminated.” 133 Mich App 731.
On appeal, UTF contends that the trial court erred in vacating the arbitration award, in granting MERC exclusive jurisdiction so as to foreclose arbitration, and in ignoring the public policy favoring arbitration of labor disputes.
II
This case requires that we address issues arising from but not decided by Detroit Fire Fighters, supra. In Detroit Fire Fighters, the Michigan Supreme Court held that MERC could not defer consideration of an unfair labor practice charge pending the conclusion of contractual arbitration under a collective bargaining agreement, Ryan, J., stating:
"We granted leave in this case limited to one issue:
" 'Whether the Michigan Employment Relations Commission may, when presented with allegations of unfair labor practices, defer hearing of those charges until after an arbitration award has been made pursuant to the collective bargaining agreement, where the subject matter of the alleged unfair labor practices is arguably covered by the collective bargaining agreement in question.’
"At the heart of this issue is whether our state Legislature, in enacting the public employment relations act (PERA), intended to authorize the Michigan Employment Relations Commission (MERC) to defer in its resolution of statutory unfair labor practice charges to the contract law determinations of a private arbitrator reached in an informal and recordless setting.
"A review of the statutory scheme for adjudication of unfair labor practice charges in the public sector, and related statutes, leads us to the conclusion that the Legislature did not intend such significant deferral to private arbitration of public sector statutory grievance disputes as would occur pursuant to MERC’s decision and order in this case.
"Accordingly, we hold that MERC’s order deferring its processes in this case pending the outcome of private arbitration should be reversed, and remand this matter to MERC for plenary consideration of the plaintiff’s complaint pursuant to the statutorily provided means.” (Footnotes omitted.) 408 Mich 675-676.
Detroit Fire Fighters did not explicitly determine whether the filing of an unfair labor practice charge with MERC ousts an arbitrator of all further authority to consider grievances filed under the collective bargaining agreement. Nor did Detroit Fire Fighters determine the outcome of a potential conflict between MERC’s findings and an arbitrator’s award. We hold that MERC’s decision controls and supersedes an arbitrator’s award as to matters fully with MERC’s jurisdiction. The Court in Bay City School Dist went too far to the extent that it read Detroit Fire Fighters to suggest that the filing of an unfair labor practice charge with MERC divests a contractual arbitrator of all further authority to consider a grievance under the contract. Detroit Fire Fighters merely indicated that MERC cannot wait for the contractual arbitration process to be concluded before proceeding on an unfair labor practice charge. We do not believe the Court in Detroit Fire Fighters held that the filing of an unfair labor practice charge with MERC divests the contractual arbitrator of all further authority to consider grievance issues arising under the contract. Cf., Redford Twp v Redford Twp Civil Service Comm, 136 Mich App 65; 356 NW2d 270 (1984), lv granted 422 Mich 857 (1985), where another panel of this Court read Detroit Fire Fighters more narrowly to hold that MERC’s jurisdiction is exclusive only where rights guaranteed by PERA alone are in dispute. If the disputed rights were created or protected by both the collective bargaining agreement and PERA, Redford Twp permits continued arbitration notwithstanding MERC’s proceedings.
Ill
Applying our holdings to the instant case, we believe summary judgment was properly granted under GCR 1963, 117.2(3). There were no material factual disputes. While the issues of teacher displacement herein did not become nonarbitrable as a matter of law when the unfair labor practice charges were filed with MERC, as the lower court suggested, MERC did have jurisdiction over the issues for decision. The relief sought and the issues presented for arbitration were essentially the same as those pressed in the unfair labor practice charge before MERC. In both forums, the UTF asserted its teachers were being displaced and requested that the transfers be stopped or rescinded. Because MERC had jurisdiction over the unfair labor practice charge herein, its decision was dispositive.
Summary judgment in favor of plaintiff Flint School District is affirmed.
Bronson, J., concurred in the result only. | [
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] |
Per Curiam.
This case involves an action by the Michigan Department of Corrections to obtain reimbursement from an inmate for the cost of maintaining the inmate while housed in a state prison. The statute involved is the Prison Reimbursement Act (now the State Correctional Facility Reimbursement Act), MCL 800.401 et seq.; MSA 28.1701 et seq. Our previous opinion is reported at 132 Mich App 648; 347 NW2d 770 (1984). In that opinion we affirmed an order of the circuit court which dismissed the case on the ground that the Prison Reimbursement Act was violative of equal protection standards. However, the Supreme Court, in State Treasurer v Wilson, 423 Mich 138; 377 NW2d 703 (1985), reversed our decision upholding the trial court’s finding that the act violated the constitutional guarantee of equal protection of the laws. Because we did not reach a second issue of vagueness, the Supreme Court remanded the case to use for consideration of that issue. The circuit court had held that the Prison Reimbursement Act was unconstitutionally vague in that it lacked sufficient standards for enforcement. We disagree.
The "void for vagueness” doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property, without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. Normally, a statute may be challenged for vagueness on the ground that it (1) is overbroad, impinging on First Amendment freedoms, (2) does not provide fair notice of the conduct proscribed, or (3) is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980), People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984). The United States Supreme Court has stated that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939). However, we have some doubt as to whether traditional vagueness analysis is appropriate in this case. The statute at hand impinges on no First Amendment freedoms, proscribes no conduct, and sets forth no offense which defendant Wilson is accused of having committed. Any alleged "vagueness” in this statute did not cause defendant Wilson to alter his conduct in the slightest. The statute does not require or proscribe the doing of any acts. It merely provides for reimbursement to the state by a prisoner for expenses incurred on behalf of the prisoner.
While traditional analysis may not apply, we will endeavor to address defendant Wilson’s vagueness challenge. In addition to notions of due process, principles relating to statutory construction require some degree of definiteness or certainty in the wording of any statute. While this Court will not hesitate to interpret or construe an ambiguous statute in order to effect the intent of the Legislature, when there is absolutely no reasonable and practical construction which can be given to its langauge, such a statute will be declared void. This is true because the statute simply has no substantive content. However, we must be careful not to unduly restrict the ability of the Legislature to function by declaring a statute void where the legislative intent can be discerned through application of judicial rules of construction.
We do not read MCL 800.404; MSA 28.1704, the challenged provision, in a vacuum, but look to the entire text of the statute to determine whether the requisite certainty exists. Hayes, supra, p 284. Whenever possible, courts should construe statutes in a manner as to render them constitutional. Id. Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981).
We hold that MCL 800.404; MSA 28.1704 is not unconstitutionally vague or otherwise void. Because this section of the statute was amended by 1984 PA 282, we treat defendant’s arguments as if they were addressed to the amended statute which will be applicable on remand. The first portion of § 4 of both the old and new statute allows the proper authorities to file a complaint (petition) in circuit court alleging that a prisoner has assets (an estate) and praying that such assets be subjected to the payment of state expenses. The prisoner is then to be issued an order to show cause why the prayer of the complaint should not be granted.
The statute, before amendment, stated:
"At the time of the hearing, if it appear that such person or prisoner has an estate which ought to be subjected to the claim of the state, the court shall without further notice appoint a guardian of the person and estate of such prisoner if the court deems one necessary for the protection of the rights of all parties so concerned, and the court shall make an order requiring the guardian or any person or corporation so possessed of the estate belonging to said prisoner to appropriate and apply such estate to the payment of so much or such part thereof as may appear to be proper toward reimbursing the state for the expenses theretofore incurred by it on behalf of such prisoner, and such part thereof towards reimbursing the state for the future expenses which it must pay on his behalf, which reimbursement shall not be in excess of the per capita cost of maintaining prisoners in the institution in which said prisoner is an inmate, regard being had to claims of persons having a moral or legal right to maintenance out of the estate of such prisoner.” (Emphasis added.)
Defendant Wilson claims that the emphasized portions of this sentence are vague. The corresponding provisions of the amended statute provide:
"(3) At the time of the hearing on the complaint and order, if it appears that the prisoner has any assets which ought to be subjected to the claim of the state under this act, the court shall issue an order requiring any person, corporation, or other legal entity possessed or having custody of those assets to appropriate and apply the assets or a portion thereof toward reimbursing the state as provided for under this act.
"(4) The amount of reimbursement under this act shall not be in excess of the per capita cost of care for maintaining prisoners in the state correctional facility in which the prisoner is housed.
"(5) At the hearing on the complaint and order and before entering any order on behalf of the state against the defendant, the court shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support.” MCL 800.404, subds (3), (4) and (5); MSA 28.1704, subds (3), (4) and (5).
When read as a whole the statutory provisions are extremely clear, contrary to defendant’s assertions. The trial court must initially determine under subsection (3) whether the prisoner has any assets. The court may not automatically order that any such assets be paid over to the state for the entire amount of the claim. The amount of reimbursement is limited to expenses incurred or to be incurred by the state for the cost of care of the person as a prisoner. It is also limited by subsection (4) to an amount which is not in excess of the per capita cost of care for maintaining prisoners in the facility. Pursuant to subsection (5), the court must also consider legal and moral support obligations and exercise its discretion in that regard. This statute is not vague, but is as reasonably precise as the subject matter permits.
To the extent that defendant Wilson claims that the statute does not provide sufficient standards under which the trial court is to determine the amount of reimbursement, his claim is not' merely one of vagueness, but is one of unconstitutional delegation of legislative authority to the courts. We reject defendant’s contentions. The Legislature has not, by this statute, delegated the power to make law to the courts. See Auditor General v Hall, 300 Mich 215, 221-225; 1 NW2d 516 (1942).
The decision of the trial court is reversed and the case is remanded for further proceedings. | [
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Per Curiam.
Following a jury trial, defendant was convicted of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803, and conspiracy to receive and conceal stolen property over $100, MCL 750.157a; MSA 28.354(1). Defendant was sentenced to 18 months probation, 25 days in jail, 120 hours of community service and a $750 fine and now appeals as of right.
Defendant offers three grounds for reversal. Because we reverse on one of those grounds, it is not necessary to consider the other issues. Defendant asserts that a taped conversation between Leonard Laymon and Susan Roberts, who allegedly sold the stolen merchandise to defendant, and Michael Wawee, a business acquaintance who introduced Laymon and Roberts to the defendant, constituted hearsay and was improperly admitted as evidence against defendant. It is well-settled that admissions and statements are admissible against another defendant if there exists a concert of action between the defendants and the statements are made while the common scheme or plan is still in effect. The two defendants do not actually have to be charged with conspiracy so long as there is independent evidence of the required concert of action. People v Shepherd, 63 Mich App 316, 322; 234 NW2d 502 (1975); People v Marland, 135 Mich App 297, 308; 355 NW2d 378 (1984).
Statements of a coconspirator are hearsay if they are used against another member of the conspiracy. However, a widely recognized exception to this rule allows use of the statements if a prima facie case of conspiracy is established by evidence independent of the alleged hearsay. The rationale for this rule is that the agency relationship between coconspirators charges each conspirator with the admissions of the other. People v Stewart, 397 Mich 1, 9; 242 NW2d 760 (1976), reh on other issues 400 Mich 540; 256 NW2d 31 (1977). Prima facie evidence means evidence which is sufficient to justify, but not compel, an inference of guilt. Stewart, 397 Mich 6, fn 1.
In the instant case there was evidence other than the taped conversation which was sufficient to present a prima facie case of conspiracy. Thus, for this reason the taped conversation fell within the exception to the hearsay rule.
Defendant also argues, however, that the taped conversation was inadmissible because the conspiracy had ended before the conversation was taped on September 1, 1982.
MRE 801(d)(2)(E), which allows admissions and statements of coconspirators to be admissible against other conspirators, specifies that the admissions and statements must be made while the common scheme or plan of the conspiracy is still in eífect. A statement made by a coconspirator is a post-conspiracy declaration, and hence inadmissible hearsay, where the statement was not made to advance the common objective and criminal purpose. People v Trilck, 374 Mich 118, 127-128; 132 NW2d 134 (1965).
There was no evidence elicited at trial which indicated that the conspiracy to receive and conceal stolen property was continuing when the conversation among Laymon, Roberts and Wawee was taped on September 1, 1982. The elements of the crime of conspiracy consist of (1) an agreement (2) to do something unlawful or to do something lawful in an unlawful way. People v Braylock, 118 Mich App 54, 56-57; 324 NW2d 530 (1982). In the instant case the conspiracy consisted of an agreement between Laymon, Roberts, Wawee and defendant that defendant would buy the stolen goods presented by Roberts and Laymon. The act of buying the stolen goods took place on May 25 and on June 14, 1982. According to Laymon’s testimony, the contact he and Roberts had with defendant after approximately June 14 was unconnected to defendant’s purchase of the stolen goods on May 24 and June 14, 1982.
To be certain, Laymon’s and Roberts’s participation in the conspiracy ended when they were arrested in July, 1982. People v Beller, 294 Mich 464, 469; 293 NW 720 (1940). The only evidence available at trial as to a continued conspiracy between Laymon, Roberts and Wawee, or any of them, and defendant, indicates that defendant and Wawee were concentrating on covering up evidence of the original conspiracy. Under Grunewald v United States, 353 US 391, 401-402; 77 S Ct 963; 1 L Ed 2d 931 (1957), these facts cannot be used alone as evidence that the original conspiracy is continuing.
The common enterprise of the conspiracy to receive and conceal the stolen property ended before September 1, 1982. The other acts between defendant and Wawee were aimed only at covering up the initial purchase. These facts are not enough on their own to constitute proof that concealment of the original purchase of the stolen goods was part of the initial agreement. Moreover, the taped conversation was not made to advance the common objective and criminal purpose. Because the conspiracy ended before the taped conversation was made, the transcript of the conversation was nothing more than hearsay and was inadmissible against defendant at trial. Trilck, supra; People v Johnson, 103 Mich App 825; 303 NW2d 908 (1981), lv den 417 Mich 962 (1982).
The admission of the transcript of the taped conversation was reversible error. The trial of this case was largely a credibility contest between the people’s witness and defendant’s witnesses and defendant. Because the transcript contained certain statements made by Wawee, defendant’s witness, from which the jury could infer defendant’s knowledge that the goods were stolen at the time of purchase, and because the tape was made without Wawee’s knowledge, it could have swayed the jury’s decision. In fact, the transcript of the taped conversation was probably the best piece of evidence against defendant in light of the fact that the people’s star witnesses were admitted coconspirators testifying only under a grant of immunity.
The case is, therefore, reversed and a new trial granted.
The transcript of the tape was edited by the trial court for submission to the jury. Of the 26 page transcript, the jury heard only the first 10 pages, from which deletions had been made.
MRE 801(d)(2)(E) provides that a statement by a coconspirator of a party during the course and in furtherance of the conspiracy, on independent proof of the conspiracy, is not hearsay. The rule was promulgated after Shepherd and Stewart were decided, which accounts for the distinction between "a statement which is not hearsay” and "a statement which is an exception to the hearsay rule”. This Court continues to use the Shepherd and Stewart language, notwithstanding citation to MRE 801. See e.g., People v Hall, 102 Mich App 483, 489; 301 NW2d 903 (1980). | [
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Per Curiam.
This case was presented on a stipulation of facts, the relevant portions of which follow.
On June 12, 1982, plaintiff’s 15-year-old son was taken into custody by the police and after medical treatment was released to his parents. In the early evening of that date a shot was heard coming from the son’s bedroom and when plaintiff went to the bedroom he discovered the boy suffering from a self-inflicted gunshot wound. The boy was taken to St. Francis Hospital in Escanaba for emergency care and then to Marquette General Hospital where surgery was performed.
Plaintiffs employer, State Bank of Escanaba, had a group health insurance policy with Allstate Life Insurance Company under which the son was an insured as a result of being a dependent of plaintiff. The Scarborough Insurance Trust was the policy holder for administering its provisions. Medical bills were submitted to the Scarborough Insurance Trust and those from St. Francis Hospital were paid. However, when a report was received from Marquette General Hospital indicating the injury was self-inflicted, payment was denied on the ground that coverage was excluded under the policy for an intentionally self-inflicted injury or sickness while sane or insane. In holding for the plaintiff, the lower court applied the so-called Michigan "Scrivener’s Rule”, finding that an ambiguity existed in the policy and must be construed against the defendant insurer.
Defendants first submit that employee welfare benefit plans, such as involved herein, are governed by the Employee Retirement Income Security Act of 1974, 29 USC 1001 et seq. (ERISA) and that the lower court erred in applying a principle of Michigan insurance law, since state law is preempted by ERISA. The plaintiff, on the other hand, submits that, by reason of a "savings clause” included in the federal legislation which recognizes the authority of states to regulate insurance, state law is not preempted in the interpreting of the insurance policy. While the preemption argument was not raised in the lower court, it will be considered by this Court.
A broad preemption provision is contained in § 514a of ERISA, 29 USC 1144(a), which declares the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan”. However, this preemption is substantially qualified by an "insurance savings clause”, i.e., § 514(b)(2)(A), 29 USC 1144(b)(2)(A) which also broadly states that, with one exception, nothing in ERISA "shall be construed to exempt to relieve any person from any law of any State which regulates insurance, banking or securities”.
The scope and effect of the preemption provision and the savings clause was recently considered by the United States Supreme Court in Metropolitan Life Ins Co v Massachusetts, 471 US —; 105 S Ct 2380; 85 L Ed 2d 728 (1985). Involved therein was a Massachusetts statute which required that specified minimum mental health-care benefits be provided to a Massachusetts resident who is insured under a general insurance policy, an accident or sickness insurance policy, or an employee healthcare plan that covers hospital and surgical expenses. After considering the issue at some length, the United States Supreme Court held the Massachusetts statute was saved from the preemption by the savings clause, since the law regulated insurance. Similarly, in the instant case application of principles of Michigan insurance law are "saved” from the preemption.
The defendants next contend that even if the application of Michigan principles of insurance law is not preempted, nevertheless the trial court erred in determining the policy was ambiguous. It is submitted the policy is clear and unambiguous in its exclusion from coverage benefits for intentionally self-inflicted injuries irrespective of whether the person injured is an employee or dependent. Plaintiff argues that, because the policy is issued to an insured employee and not to the dependent, the benefit is paid to the insured and not the dependent. The exclusion, therefore, for self-inflicted injuries applies only to those inflicted by an employee insured. Plaintiff concludes that, since he as the insured employee did not intentionally inflict an injury on himself and since he is legally obligated to pay his minor son’s medical expenses, he has incurred an expense which is covered under the policy. The trial court in holding for the plaintiff found that the language of the policy did not support defendant’s interpretation or, to the extent it did, it was ambiguous and must be construed against the defendant insurer.
The policy applies to two groups of insured, i.e., employee insureds and dependent insureds. Various portions of the policy apply only to employee insureds. The pertinent exclusion in the policy provides that "no benefit is payable for expense for or in connection with: 1. Intentionally self-inflicted injury or sickness while sane or insane * * (Emphasis added.) Twelve other exclusions follow this exclusion. "Expense” is defined as "a charge which a person is legally obligated to pay * * There is no specific notation that this exclusion applies only to employee insureds.
It is hornbook law that an insurance contract ambiguity is construed against the insurer, and, in particular, exclusionary clauses in insurance policies are to be strictly construed against the insurer. Engel v Credit Life Ins Co, 145 Mich App 55, 61; 377 NW2d 342 (1985). In Raska v Farm Bureau Ins Co, 412 Mich 355, 361-362; 314 NW2d 440 (1982), the Supreme Court stated the following rules for construction of an insurance policy:
"Any clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy.
"A contract is said to be ambiguous when its words may reasonably be understood in different ways.
"If a fair reading of the entire contract of insurance leads one to understand that there is coverage under particular circumstances and another fair reading of it leads one to understand there is no coverage under the same circumstances the contract is ambiguous and should be construed against its drafter and in favor of coverage.
"Yet if a contract, however inartfully worded or clumsily arranged, fairly admits of but one interpretation it may not be said to be ambiguous or, indeed, fatally unclear.”
A fair reading of the insurance contract does not support a conclusion that the policy is ambiguous. The clear intent of defendant insurer throughout the policy is to exclude coverage for intentionally self-inflicted injuries. The exclusion for intentionally self-inflicted injuries is included in the provisions for basic medical, major medical, comprehensive medical, and accident. The policy does not differentiate between employee insureds and dependent insureds with regard to this and all other limitations, and there is no basis for making such a distinction.
Furthermore if, as plaintiff contends, benefits are payable for intentionally self-inflicted injuries incurred by a dependent, then it follows that one of the other twelve limitations, i.e., exclusion for service in the military, participating in a felony, not being under the regular care of a physician, coverage under a workers’ compensation law, routine medical examinations, etc., apply to dependents. Such result is contrary to the clear intent of the policy.
Plaintiff also argues that, because he is obligated to support his minor son and, hence, must pay for his son’s medical expenses, defendant insurer is obligated to reimburse plaintiff. The policy in question is not a general liability policy, and the fact that plaintiff is liable for his son’s expenses does not obligate defendant insurer to reimburse plaintiff for those expenses.
In conclusion, we find the policy unambiguously excludes coverage for injuries which are intentionally self-inflicted by either the employee insured or a dependent insured. The judgment of the lower court is reversed and a judgment in favor of the defendants is granted. | [
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Per Curiam.
Defendant, Phillippe Francois Ball, was charged with malicious destruction of lawns and turf, MCL 750.382; MSA 28.614, and reckless driving, MCL 257.626; MSA 9.2326. Following a jury trial in district court, he was convicted of reckless driving. The jury was unable to reach a verdict on the malicious destruction charge. Defendant appealed to circuit court. There he argued that (1) the evidence did not establish the crime of reckless driving and that (2) the trial court erred in failing to instruct the jury that a missing res gestae witness’s testimony should be presumed favorable to defendant. The circuit court reversed defendant’s conviction because of the district court’s failure to give the res gestae instruction, subject to the prosecutor’s right to seek a post-remand hearing as to whether due diligence had been used to secure the witness’s presence and whether defendant had been prejudiced by the witness’s absence. The circuit court also found that the evidence was sufficient to establish the crime of reckless driving beyond a reasonable doubt. We granted the prosecutor’s application for leave to appeal.
First we consider whether the circuit court erred in applying the res gestae rule to a misdemeanor case such as this one. We believe that the circuit court improperly applied the res gestae rule to this misdemeanor case. The prosecutor’s duty to endorse and produce all res gestae witnesses arises from statute, MCL 767.40; MSA 28.980:
"Sec. 40. All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.”
We stated in People v Chapman, 73 Mich App 547, 553; 252 NW2d 511 (1977), lv den 400 Mich 835 (1977), cert den 434 US 956 (1977), that:
"However, the duty to indorse res gestate witnesses is statutory, MCL 767.40; MSA 28.980, and we are aware of no statute or case requiring the indorsement of witnesses when a misdemeanor prosecution proceeds directly from a complaint rather than an information.”
Under the statute, the duty attaches where a felony prosecution results from an information. Because we find that the prosecutor was under no duty to produce the witness, Ms. McElmeel, we find no reversible error arising from the failure to produce her. Therefore, we think that the circuit court erred in ruling that the res gestae instruction should have been given, and we therefore reverse the circuit court’s reversal of defendant’s conviction and affirm the district court’s conviction of defendant.
Defendant also claims on appeal that the evidence was insufficient to convict him of reckless driving. We cannot consider this improperly raised claim, given defendant’s failure to file a claim of cross-appeal after March 1, 1985, the date that the new court rules became effective and MCR 7.207(A)(1) extended the right of filing cross-appeals to criminal defendants. Moreover, we think that this claim is without merit and that the evidence was sufficient for a rational trier of fact to find defendant guilty of reckless driving beyond a reasonable doubt.
Reversed. | [
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Per Curiam.
Respondent James Draper appeals as of right from a probate court order terminating his parental rights in his daughters Nicole and Stacy. We reverse.
Nicole and Stacy were born to James Draper and Beverly Draper (now Tripp) in 1972 and 1974 respectively. James and Beverly were divorced in 1977 and custody of the girls was awarded to Beverly. Beverly then married Jeffrey Tripp. James married Linda Draper in 1979. James and Linda had two of their own children and also had custody of Linda’s son Jeffrey.
On March 30, 1979, the Department of Social Services filed a petition in the Lenawee County Probate Court alleging that Beverly’s husband physically abused Nicole and Stacy. The probate court determined the allegations to be true and entered an order of disposition placing the girls in foster care. At about the same time, James Draper was criminally charged with physical cruelty to his stepson Jeffrey. On December 31, 1979, he was convicted of the charge and sentenced to prison. He was paroled in April of 1981. On September 11, 1981, Beverly Draper Tripp voluntarily relinquished her parental rights in Nicole and Stacy. The understanding between the parties and the court was that the girls were to remain in foster care pending rehabilitation of James Draper’s parenting skills, with the expectation that Nicole and Stacy would eventually be returned to his custody.
On June 20, 1982, Nicole and Stacy were placed in James Draper’s physical custody at his home in the Upper Peninsula. However, in October of 1982, the girls were again placed in foster care. They were originally placed in a home near James Draper in Houghton County, but in November of 1982 they were placed in a foster home in Lenawee County, at the extreme opposite end of the state.
On January 27, 1984, a hearing was held to determine whether James Draper’s parental rights should be permanently terminated based upon allegations that Draper had physically abused his daughters when they were in his custody and that he had emotionally neglected then by failing to maintain regular contact with them. At the conclusion of the proofs, the probate judge who had presided over the case during all proceedings in Lenawee County held that the children should not be placed in the permanent custody of the court and, thus, that Draper’s parental rights should not be terminated. The judge held that the proofs failed to establish the alleged repeated abuse of Nicole and Stacy, since one spanking of Nicole and two of Stacy was not sufficient evidence of abuse. Moreover, the judge found that the only evidence of Draper’s inability to maintain a home was during his now-ended period of incarceration and that the reason the girls had not been home was because the DSS would not let them go. In response to psychiatric testimony that the parental bond between Draper and his daughters was poor or nonexistent, the judge found that the circumstances did not show neglect and that the court could not terminate parental rights solely on the basis of a lack of parental bond. The court then also scheduled an additional dispositional hearing to determine whether the girls should be returned to Draper’s custody. At that hearing, the judge decided that the girls should not be placed immediately into Draper’s custody, but indicated to him that he was aware that the girls were frightened of Draper and that he intended to gradually rein troduce the family members to each other. At a subsequent rehearing on June 25, 1984, a dispositional order placed the girls back in the Draper home. A similar order was entered after a rehearing on August 27, 1984. The court order required the Drapers to keep appointments for counseling and therapy, to take the children to scheduled appointments and to cooperate in treatment programs for the children.
In January, 1985, the children were removed from the Draper home because of allegations of physical abuse. On January 11, 1985, a petition was filed which contained allegations of physical abuse and emotional neglect by the Drapers. While it was not explicit, the document apparently was filed in an attempt to obtain a hearing during which evidence could be offered in support of the allegations in order to terminate respondents’ parental rights. The specific allegations of the petition were that:
"On or about 1/5/85, Linda Draper struck Nicole Maxine Draper with a stick several times, causing a 2 X 6" bruise to the left hip-buttock.
"On or about 1/10/85, Linda Draper stated she would shoot the children, Mr. Draper and Beth Selke, Protective Services Worker, if anyone tried to remove her children.
"James and Linda Draper fail to meet the emotional needs of Nicole Maxine and Stacy Marie Draper:
"A) Refuse to sign a contract with Family and Children’s Services of the Upper Peninsula outlining specific goals towards improved parenting and family relationships.
"B) Failed to follow through on a referral to Operation Friendship.
"Q Linda Draper, Step-mother, attended four of eight Step Parent group sessions; neither James nor Linda Draper engaged in much interaction with the group.
"D) James and Linda Draper did not attend Parenting Classes offered to them during the summer of 1984.
"James Draper knew or should have known of the physical and emotional abuse of Nichole and Stacy Draper and failed to protect his children from this abuse.”
On January 21, 1985, a brief hearing occurred at which the judge admonished Draper’s failure to install a telephone in his home and attend "Operation Friendship”, suggestions which had been made by the DSS. The court also admonished respondent regarding his alleged failure to make arrangements to attend parenting classes and regarding problems he was having getting his second wife to cooperate. The court stated that Nicole and Stacy wanted to return to their natural mother and that the girls’ foster parents wanted to adopt them. The judge urged Draper to voluntarily relinquish his parental rights. He did not.
On May 3, 1985, a hearing was commenced to determine whether respondent’s parental rights should be terminated. Because the probate judge who had previously presided over the case retired, a new probate court judge presided over the hearing. At the conclusion of the testimony, the second judge terminated respondent’s parental rights. We find that he erred in doing so.
Due process, as well as MCR 5.908(C)(2), requires that parental rights not be terminated unless the state proves by clear and convincing evidence that such termination is warranted. In the Matter of Hinson, 135 Mich App 472, 475; 354 NW2d 794 (1984), a probate judge’s findings in proceedings to terminate parental rights are reviewed under the clearly erroneous standard. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985). An order terminating parental rights under the juvenile code may not be entered unless the court makes findings of facts, states conclusions of law, and includes the statutory basis for the order. MCR 5.914.
In his May 13, 1985, order, the second judge indicated that respondent’s parental rights had been terminated pursuant to subsections (e) and (f) of MCL 712A.19a; MSA 27.3178(598.19a). The relevant statutory language provides:
"Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
"(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.”
The initial hearing provided by § 19 which is referred to above is a rehearing which is to take place not more than six months after entry of an order of disposition which places a child in foster care. At that hearing, the parents of the child must appear. They are required to show efforts made by them to reestablish a home for the child. Section 19 also provides for further follow-up hearings.
In this case, the judge exceeded his authority when he terminated respondent’s parental rights. Under § 19a, the court may make a final determination and order placing a child in the permanent custody of the court only "[w]here a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19”. Neither child in this case had remained in foster care in the temporary custody of the court. Rather, the children had been placed back into respondent’s custody at his home. We note that the June 25, 1984, and August 27, 1984, court orders contained improper and somewhat contradictory wording. The orders indicated that the children were to "remain Temporary Wards of the Court” while at the same time indicating that the children were to be "placed in the home of James Draper” under the supervision of the DSS. Section 18 of the juvenile code, MCL 712A. 18; MSA 27.3178(598.18), provides a list of numerous orders of disposition which may be entered by the probate court if appropriate for the welfare of the child and society in view of the facts proven and ascertained. Such orders may be amended or supplemented as long as a child remains under the jurisdiction of the court. MCL 712A. 19; MSA 27.3178(598.19). In all cases in which custody of a child is removed from the parents, the court must state in the order for disposition or any supplemental order of disposition whether the child is placed in the "temporary or permanent custody” of the court. MCL 712A.20; MSA 27.3178(598.20). In this case, the probate court returned custody of the children to their father. Thus, the children were no longer in the "temporary custody of the court”. However, for some unknown reason, the probate court orders indicated that the children were to remain "temporary wards of the court”. This must be interpreted simply as an acknowledgment by the court that the children still remained under the jurisdiction of the court as provided by statute. The children in this case were no longer committed to care outside of their own home. The essential part of the orders placed the children in their father’s home.
However, in January of 1985, the allegations of physical abuse, apparently caused the court to order temporary detention of the children pending a hearing, as allowed by § 15 of the code, MCL 712A.15; MSA 27.3178(598.15). On January 21, 1985, a brief hearing occurred. However, no real evidence was presented. Nevertheless, the court apparently felt that it was appropriate for the children to again be placed in foster care. While supplemental orders of disposition may be entered under § 19 of the act as long as the children remain under the jurisdiction of the court, such orders are required to remain within the bounds of dispositional authority granted to the court in § 18 of the act. Section 18 allows the court to enter any of the various orders of disposition which are appropriate for the welfare of the child and society "in view of the facts proven and ascertained”.
Even assuming that the children had been properly placed in foster care, the probate court had no authority to terminate respondent’s parental rights under § 19a until a point in time after a rehearing under § 19 took place and it was decided that the children should remain in foster care in the temporary custody of the court. We must condemn the procedures followed in this case. Without a finding that the parental home had become unfit, the probate court nevertheless placed the children in foster care. Respondent was not even granted the courtesy of the statutorily mandated rehearing provided by § 19 before the court proceeded to hold the termination hearing. Even though that hearing should not have been held at that time, the court nevertheless made a final determination and order placing the children in the permanent custody of the court on the basis of subsections (e) and (f) of § 19a.
Subsection (f) provides absolutely no support for the probate court’s order. First, while the court indicated in its final order that subsection (f) provided a statutory basis for the order, there was no earlier indication that it was being considered as a ground for termination. This provision was not mentioned before or during the hearing and the evidence presented was not directed toward proof or disproof of that ground for termination. The petition was for neglect and the hearing was conducted in accordance with that petition. Second, subsection (f) is clearly inapplicable. The children had been placed in the care and custody of their father in his home. While they were thereafter placed in foster care in the temporary custody of the court, two years certainly had not gone by. Furthermore, no rehearing was held. Respondent was not even informed that he needed to establish a reasonable probability that he would be able to reestablish a proper home for the children within the twelve-month period which would follow that two-year period. Third, the trial court made no findings of fact in support of termination under subsection (f). Termination under subsection (f) was therefore totally improper.
The probate court also clearly erred in finding that respondent was unable to provide a fit home for the children by reason of neglect under subsection (e). Entry of an order for permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the children for the long run future. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958). As noted earlier, due process, as well as MCR 5.908(C)(2), requires that parental rights not be terminated unless the state proves by clear and convincing evidence that such termination is warranted. In this case, the probate court’s findings were clearly erroneous. The state did not carry its burden.
The probate judge stated several findings of fact on the record in support of his decision to terminate respondent’s parental rights. First, the judge found that respondent had a history of abusing children and that his 1979 conviction showed a predisposition toward violence to children. This finding was clearly erroneous. Evidence of respondent’s conviction was not presented during the hearing and there was no mention of it until the judge inquired about it after the other proofs had been presented. Draper explained that the charges were brought at the instigation of Linda’s mother, who apparently desired to keep Draper away from Jeffrey. The guardian ad litem took the position that respondent was likely falsely accused in the matter and indicated that he felt that in fairness to respondent the circumstances of his conviction and imprisonment should not be considered in any way against him. The judge responded that he would not consider the conviction, but that he was just curious about it. While in his discretion the judge could have considered the conviction, after indicating that he would not consider it, he should not have done so.
In support of his conclusion that respondent had a history of abusing children, the judge also found that abuse of Nicole took place in 1982. This finding was contrary to an earlier ruling by the first judge to whom the case had originally been assigned that abuse had not been established. No new evidence had been presented to the second judge regarding those incidents.
The probate judge also found that the allegations contained in the January 1985 termination petition indicating that Linda Draper had spanked Nicole on January 5, 1985, were true. The judge was convinced that respondent knew of his wife’s abuse. However, a review of the evidence discloses that respondent was not present during Nicole’s spanking by Linda. The record is devoid of any testimony which would support the judge’s conclusion that respondent knew of the incident. Also, there is no evidence that Linda continually abused the girls. Rather, the testimony discloses a single, unrepeated incident. This is not a case where respondent permitted the continuance of an environment in which the children were likely to be continually abused.
The probate judge further found that respondent had failed to comply with the court orders regarding counseling and parenting classes and that those failures were alone sufficient grounds upon which to terminate his parental rights. We disagree. While the social services worker testified that respondent had failed to attend many weekly counseling sessions and that the sessions were inneffectual due to lack of continuity, when the specific dates of the sessions were reviewed, it became clear that all but four of the thirty documented counseling sessions were attended. The worker did testify that she recalled an unknown number of undocumented sessions that respondent did not attend. Respondent testified that he was unable to attend all of the scheduled counseling sessions because he had started a new job and could not always take time off from work to attend. When he explained his situation to the worker, she indicated that his occasional nonattendance was acceptable. One cancelled meeting was missed because the Drapers could not get a babysitter. They were unable to attend two others because of snowstorms. These facts certainly do not provide clear and convincing evidence of neglect.
Moreover, the probate court erred in determining that the failure to comply with the court orders was alone sufficient grounds upon which to terminate respondent’s parental rights. The probate court may make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular child or children under its jurisdiction. Such orders are incidental to the jurisdiction of the court over the children. MCL 712A.6; MSA 27.3178(598.6). It can be argued that attending parenting classes and counseling sessions might be, in a given case, necessary for the physical, mental, or moral well-being of the children. Such court-imposed requirements are similar to treatment plans often entered into by agreement between parents and the DSS. However, unless such parenting classes are actually needed to improve neglectful behavior, the failure to attend such classes does not establish neglect. In the Matter of Moore, 134 Mich App 586, 598; 351 NW2d 615 (1984). See, also, In the Matter of Mason, 140 Mich App 734; 364 NW2d 301 (1985). We believe that the evidence clearly establishes that respondent made a legitimate effort to comply with the treatment program.
Moreover, his failure to abide by court orders does not establish sufficient grounds for termination since it does not establish willful neglect. Parental rights cannot be terminated for failure to abide by a court order. They can only be terminated based upon a finding of one of the criteria listed in § 19a of the juvenile code. While the failure to comply with the court orders and to attend parenting classes can be considered to the extent that such failures reflect on whether a parent is unable to provide a fit home for a child by reason of neglect, the failure to abide by an order should not be overemphasized and is certainly not determinative of the outcome of the termination hearing. If the court is concerned about compliance with its orders, we note that it has the power to punish for contempt of court. See MCL 712A.26; MSA 27.3178(598.26). A parent may be able to provide a fit home even though he does not abide by a court order.
The probate judge also found that, because respondent had only visited his children three times since they were removed from his home in January of 1985, he had failed to show the required regular contact with his children. We disagree. It was approximately a 530-mile one-way trip from the Draper residence in the upper peninsula to the foster home in Lenawee County. We cannot understand why these children were placed in a foster home so far away from their parent. It is ridiculous to expect a parent to maintain sufficient contact with his children under such circumstances. The probate court and the Department of Social Services should have exercised a little more discretion in this area. While the proceedings concerning these children originally began in Lenawee County, nothing prevented a transfer of jurisdiction or venue to a more appropriate court in the upper peninsula if the probate court or the DSS in Lenawee County did not have the ability to provide for foster care near the parent’s home. The main thrust of the juvenile code is to promote proper relationships between parents and children if at all possible. Such relationships can only be fostered if the parents have reasonable access to their children. MCL 712A.1; MSA 27.3178(598.1) states in part:
"This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child’s welfare and the best interest of the state and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.” (Emphasis added.)
In addition, the Supreme Court has stated:
"The interest of parent and child in their mutual support and society are of basic importance in our society and their relationship occupies a basic position in this society’s hierarchy of values. Clearly any legal adjustment of their mutual rights and obligations affects a fundamental human relationship. The rights at stake are 'protected’ and encompassed within the meaning of the term 'liberty’ as used in the Due Process Clause.”
Reist v Bay Circuit Judge, 396 Mich 326, 341-342; 241 NW2d 55 (1976). In Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388, 1394-1395; 71 L Ed 2d 599, 606 (1982), the United States Supreme Court stated:
"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.”
We find the failure to provide for reasonable access to the children in this case to be outrageous.
The probate judge was also very impressed by the psychiatric and psychological testimony which was presented. Dr. Lawrence Pollack testified in regard to difficulties that the two girls were having. He testified that one cause of the girls’ condition was the lack of a positive parental bond with their father. He indicated that there was a negative bond between Nicole and her father and an ambivalent bond between Stacy and her father. The doctor found that the lack of bonding was significant. He was unable to conclude whether a bond had ever existed between respondent and his daughters. He subscribed to the theory that bonding normally takes place immediately after birth through a child’s first few years. Whether or not the allegations of physical abuse were true would not affect his evaluations. In response to a question asked by the judge, the doctor added that the lack of parental bonding psychologically constituted "emotional neglect”. The judge, in his findings of fact, concluded that the deteriorated relationship between respondent and his daughters constituted emotional neglect under MCL 712A.19a(e); MSA 27.3178(598.19a)(e). We disagree. Under subsection (e), "neglect” necessarily entails some degree of culpability on a parent’s part by either intentional or negligent disregard of a child’s needs. There must be some act or omission that is blameworthy. In the Matter of McDuel, 142 Mich App 479, 485-486; 369 NW2d 912 (1985). A relationship may deteriorate even in the absence of emotional neglect. Apparently, the judge concluded that it was respondent’s fault that no parental bond existed. Yet, the doctor testified that bonding normally takes place in a child’s first few years. Upon the Drapers’ divorce in 1977, custody of the girls was awarded to Beverly Draper. Before respondent was released from prison, the DSS took custody of Nicole and Stacy and they have been in foster homes for a significant amount of time. Furthermore, respondent’s attempts to maintain contact with his daughters were frustrated by the DSS. At one point, he had to resort to court action to obtain visitation with his children. Even though at one point the DSS had a foster home for the girls in Houghton County, the DSS quickly removed the girls to Lenawee County for no apparent reason. It was unconscionable for the DSS and the probate court to move respondent’s daughters over 500 miles from his home and then to condemn him for failing to maintain frequent visitation and develop the consequent bonding. It is not surprising that any bond which might have existed deteriorated and that rebonding did not take place. Finally, the record shows that when respondent had an opportunity to visit with his daughters with reasonable regularity, displays of affection steadily increased.
The fact that Nicole and Stacy might be better off and might establish a bonded relationship with another adult does not support termination of respondent’s parental rights. There must first be clear and convincing evidence of neglect before the best interests of the children may be considered. In the Matter of Schejhal, 131 Mich App 833, 836; 346 NW2d 597 (1984). The suitability of an alternative home is an improper consideration until statutory neglect has been established. In re Mathers, 371 Mich 516, 530; 124 NW2d 878 (1963).
In conclusion, there was very little evidence, let alone clear and convincing evidence, of neglect. The probate court clearly erred in taking permanent custody of the children and terminating respondent’s parental rights. The order terminating respondent’s parental rights is reversed.
The case is remanded to the probate court whereupon the court shall, without delay, return the children to the custody of their father.
Reversed and remanded. | [
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Shepherd, J.
The petitioners, Brenda M. Brown and Mary Bayles, sponsored a petition to recall respondent, Highland Park Mayor Robert B. Blackwell. They filed the petition with the Wayne County Election Commission on July 24, 1984. The petition alleged the following reasons for the recall:
"1. He supported 4.4 mil tax increase proposal.
"2. Mayor has allowed his administration to provide him with a 1984 Lincoln Continental.
"3. Under his supervision his administration supported a $100,000, 15 year loan at one percent (1%) interest to a developer.
"4. He has failed to take effective steps to provide adequate police and fire protection.”
As required by MCL 168.952(3); MSA 6.1952(3), the commission held a meeting to determine whether the reasons for recall, as stated in the petition, were of sufficient clarity to enable respondent and the electors to identify the course of conduct that was the basis of the recall effort. After hearing arguments in favor of and against the petition, the three-member commission unanimously approved the clarity of the reasons stated in the petition.
Respondent appealed from the commission’s determination to the Wayne County Circuit Court, pursuant to MCL 168.952(6); MSA 6.1952(6). Respondent initially maintained that the commission erred in determining that the language in the petition was of sufficient clarity and sought an injunction prohibiting the petitioners from circulating the petition.
On January 7, 1985, petitioners brought a mo tion for summary judgment, pursuant to GCR 1963, 117.2(3), seeking to have the commission’s determination affirmed. In the supplemental brief in support of their motion, petitioners maintained that the statement of reasons in their petition was statutorily sufficient and that judicial review of the sufficiency of the clarity of the statement of reasons in a recall petition, under §952, was in contravention of Const 1963, art 2, § 8.
On March 1, 1985, respondent filed a motion for an injunction to restrain the petitioners from holding a special recall election that the commission had scheduled for April 29, 1985. A hearing was held on respondent’s motion before Wayne County Circuit Court Judge William J. Giovan on March 15, 1985. Arguments at the hearing centered around the constitutionality of § 952, MCL 168.952; MSA 6.1952, which authorizes the commission to review the recall petition for clarity of the statement of reasons contained therein, and the severability of the provision from the remainder of the recall statutory scheme. Respondent’s original posture before the circuit court was that the language in the recall petition was not clear as required by § 952. However, he changed his position in relation to the motion for injunctive relief, arguing that § 952 and other portions of the recall statute were unconstitutional, that the unconstitutional portions were not severable from the rest of the statute, and, consequently, that the entire recall statute, MCL 168.951 et seq.; MSA 6.1951 et seq., was void. According to respondent, since the statute was void, the commission could not process any recall petitions.
The circuit court determined that the review provision was unconstitutional under Const 1963, art 2, § 8, but that it was severable from the remainder of the act. As a result, the court denied respondent’s request for injunctive relief and entered an order dismissing the case on April 15, 1985. Respondent filed this appeal from the circuit court order on April 24, 1985. The recall election was held on April 29, 1985, and respondent was not recalled as a result of that special election. We reverse the circuit court’s holding that § 952 is unconstitutional and affirm the court’s denial of injunctive relief and dismissal of respondent’s action.
Respondent’s position on appeal is that the circuit court correctly determined that judicial or administrative review of the clarity of the reasons for recall stated in a recall petition contravenes Const 1963, art 2, § 8. However, at this juncture respondent departs from the circuit court’s holding and argues that the unconstitutional provisions of the Michigan Election Law are not severable and, therefore, the recall provisions, MCL 168.951 et seq.; MSA 6.1951 et seq., are void. We note initially that the issues raised by respondent are moot, because the recall election has already taken place and respondent was not recalled. As a general rule, our courts will not entertain moot issues or decide moot cases. East Grand Rapids School Dist v Kent County Tax Allocation Board, 415 Mich 381, 390; 330 NW2d 7 (1982). An issue is moot where circumstances render it impossible for the reviewing court to grant any relief. Plumbers & Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 237 (1985). However, this Court will entertain cases that are technically moot if the issues involved are of public significance and are likely to recur in the future and yet evade judicial review. Whitman v Mercy-Memorial Hospital, 128 Mich App 155, 158; 339 NW2d 730 (1983); Socialist Workers Party v Secretary of State, 412 Mich 571, 582; 317 NW2d 1 (1982). The public significance of the issues raised on this appeal are self-evident. Furthermore, the constitutionality of the recall statutes is an issue capable of repetition in the future, and it is unlikely that a public official challenging the act’s constitutionality will obtain appellate review before a recall election is held. Therefore, the fact that the recall election has already taken place does not preclude our review of this appeal. Whitman, supra.
Turning to the merits of respondent’s argument, we note that his challenge to the constitutionality of the pertinent recall statutes is an issue of first impression in this Court. The people’s right to recall an elected official is set forth in Const 1963, art 2, § 8, which provides:
"Sec. 8. Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.” (Emphasis added.)
Article 2, § 8 of the 1963 Constitution revised Const 1908, art 3, § 8 and added the language emphasized above.
The pertinent recall statute enacted pursuant to the above provision, MCL 168.952; MSA 6.1952, provides in pertinent part:
"Sec. 952. (1) The petitions for the recall of an officer shall be in the size and print types required by section 544c, shall be printed, shall state clearly the reason or reasons for the recall which reasons may be typewritten, shall contain a certificate of the circulator which may be printed on the reverse side of the petition, and shall be in a form prescribed by the secretary of state.
"(3) The board of county election commissioners, not less than 10 days nor more than 20 days after submission to it of a petition for recall, shall meet and shall determine whether the reasons for recall stated in the petition are or are not of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct which is the basis for the recall. Failure of the board of county election commissioners to comply with this subsection shall constitute a determination that the reasons for recall stated in the petitions are of sufficient clarity to enable the officer whose recall is being sought and the electors to identify the course of conduct which is the basis for the recall.
"(5) Upon being notified of the reason or reasons for recall by the board of county election commissioners, the officer whose recall is sought and the sponsors of the petition may appear at the meeting and present arguments on the clarity of the reason or reasons. (Emphasis added.)
The early decisions of the Michigan Supreme Court interpreting Const 1908, art 3, § 8, and § 952, construed these provisions to require a valid recall petition to state facts that would constitute nonfeasance, misfeasance, or malfeasance. See Newberg v Donnelly, 235 Mich 531; 209 NW 572 (1926); People, ex rel Elliot v O’Hara, 246 Mich 312; 224 NW 384 (1929); Amberg v Welsh, 325 Mich 285; 38 NW2d 304 (1949). However, the Court retreated from that position in Wallace v Tripp, 358 Mich 668; 101 NW2d 312 (1960), where it held that the sufficiency of reasons in a recall petition is for the determination of the electorate rather than the courts. In so holding, the Wallace Court stated:
"The general rule appears to be that absent specific constitutional or statutory requirements, the sufficiency of reasons in a recall petition is for the determination of the electorate rather than the courts.
"Michigan’s Constitution and statute require a clear statement of reasons for recall based upon an act or acts in the course of conduct in office of the officer whose recall is sought. Beyond this, the Constitution reserves the power of recall to the people.” Id., p 680.
In enacting Const 1963, art 2, § 8, the framers of the constitution embraced the philosophy favoring recalls predicated on any identifiable acts by an elected official, without respect to whether the act or acts in question constituted sufficient justification for having a recall election. Mastin v Oakland County Elections Comm, 128 Mich App 789, 795; 341 NW2d 797 (1983). The convention comment to Const 1963, art 2, § 8 is instructive in that regard:
"This is a revision of the recall provisions of Sec 8, Article III, of the present [1980] constitution strengthening it somewhat by stating that the reasons for a recall shall be a political question, so that courts cannot set aside a recall on the grounds that the reasons for it are in some way inadequate.”
This Court, in Noel v Oakland County Clerk, 92 Mich App 181, 186; 284 NW2d 761 (1979), recognized that Const 1963, art 2, § 8 constitutes an adoption of the Wallace, supra, holding. In Noel, p 187, this Court stated:
"Thus, it appears from the foregoing cases that the reasons set forth in a recall petition need no longer constitute allegations of nonfeasance, misfeasance,’ or malfeasance in office, but that the speciñcity requirements enunciated in Newberg and its progeny remain extant. Indeed, in holding that the sufficiency of the reasons in a recall petition is an electoral rather than a justiciable question, Wallace, supra, at 678, 680, reafffrmed the necessity that the reasons, whatever they may be, must be stated with adequate clarity.” (Emphasis added.)
In the instant case, respondent argues that the clarity requirement of § 952 of the recall statute violates Const 1963, art 2, § 8 because, according to respondent, it allows for judicial review of the substantive merit of the reasons stated for the recall. The trial court agreed with respondent’s position in finding § 952 unconstitutional. In ruling on that issue, the court indicated that the language of § 952 was contrary to what the framers of Const 1963, art 2, § 8 intended, which was to allow the people to recall an elected official in an expeditious manner, unfettered by any judicial review whatsoever. The circuit court also noted that the language of Const 1963, art 2, § 8 does not distinguish between sufficiency for clarity and sufficiency for gravity of conduct. The court further stated that the language of Const 1963, art 2, § 8 leaves it up to the voters to decide whether the reasons stated in the recall petition are clear enough.
Although we do not lightly reject the circuit court’s thoughtful decision, we conclude that it erred in finding § 952 unconstitutional under Const 1963, art 2, § 8. Statutes are presumed to be constitutional. O’Brien v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980). The presumption of constitutionality may even justify a construction of the statute that is rather against a natural inter pretation of the language used, if necessary to sustain the enactment. People v Bandy, 35 Mich App 53, 57; 192 NW2d 115 (1971), lv den 386 Mich 753 (1971).
We conclude that although Const 1963, art 2, § 8 was intended to preclude judicial or administrative review of the substantive merit of the reasons alleged in a recall petition, it was also intended to preserve the statutory requirement that a recall petition must clearly state what those reasons are. There is a significant difference between reviewing a recall petition for clarity of statement and reviewing it for sufficiency of reason. In adopting Const 1963, art 2, § 8, the proponents intended to secure the people’s right to recall an elected official for whatever reason they deemed appropriate, whether the reason or reasons for the recall are rational or irrational. However, a statutory requirement that those reasons be clearly stated does not contravene that intention. Such a requirement serves to put the public official whose recall is sought on notice of the nature of the conduct for which he is sought to be recalled and it is also consistent with a basic policy of informed decision-making in a democratic society.
Furthermore, contrary to the circuit court’s position, administrative and judicial review of a recall petition for clarity of statement of reasons does not frustrate the underlying purpose of the constitutional provision for recall, which is to provide the electorate with a speedy, effective process to remove an unsatisfactory public official. See Schmidt v Genesee County Clerk, 127 Mich App 694, 699; 339 NW2d 526 (1983). Judicial and administrative review of a recall petition is clearly limited to a determination of whether a sufficiently clear statement is present. In re Wayne County Board of Election Comm’rs, 134 Mich App 158, 160; 350 NW2d 752 (1984). This Court has held that doubt as to clarity should be resolved in favor of the proponents of the recall. Schmidt, supra. Moreover, if any one of several allegations contained in the petition is deemed to be sufficiently clear, the petition must be upheld. Molitor v Miller, 102 Mich App 344, 349; 301 NW2d 532 (1980). The foregoing rules demonstrate that the standard of review for clarity of statement is very lenient. Thus, we do not perceive the clarity of statement requirement to be a significant obstacle to the exercise of the recall right. Accordingly, we conclude that the circuit court erred in ruling that § 952 is unconstitutional under Const 1963, art 2, §8.
Respondent also challenges the constitutionality of MCL 168.961; MSA 6.1961 and MCL 168.963; MSA 6.1963, on the same ground that he challenged § 952. Sections 961 and 963 also make reference to the sufficiency of clarity requirement in § 952. The circuit court found these provisions to be unconstitutional. No further analysis is necessary to determine their constitutionality. Suffice it to say that §§ 961 and 963 are constitutional for the same reasons that support the constitutionality of § 952.
Although the circuit court held that § 952 was unconstitutional, it nevertheless denied respondent’s motion for an injunction and dismissed this complaint on the ground that the unconstitutional provision was severable from the remainder of the recall statutory scheme. Because of our resolution of the constitutional issue, we find it unnecessary to address the issue of whether the sections in question are severable. Accordingly, we reverse the circuit court’s holding that § 952 is unconstitutional and affirm the denial of the injunctive relief and the dismissal of respondent’s action.
Reversed in part and affirmed in part.
Prior to its amendments in 1976 and 1982, § 952 provided in pertinent part:
"Sec. 952. All petitions for the recall of an officer shall be in substantially the following form, shall be printed or typewritten and shall state clearly the reason or reasons for said demand.”
Section 961 provides that the filing official will not count the signatures "where the reasons for recall are different than those determined by the board of county election commissioners to be of sufficient clarity”. Section 963 provides that the filing official shall determine the "sufficiency” of the petition within 35 days of its filing. | [
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Per Curiam.
Plaintiff, Salvatore Vitale, instituted this cause of action under the wrongful death statute, MCL 600.2922; MSA 27A.2922, as the personal representative of the estate of his deceased son, Michael D. Vitale. Plaintiffs decedent was 27 years old and mentally retarded. For 15 years he had resided at the Plymouth Center for Human Development, a state-operated facility for the care, education and development of the mentally retarded. On January 4, 1979, a ward attendant noted that Michael acted as if he were going to pass out and also that he had fallen on two occasions. On January 5, 1979, after being advised that Michael had an unsteady gait and was sleeping too much, defendant Reddy, a physician at the Plymouth Center, examined Michael. Michael experienced similar problems on January 7 and 8. On January 8, Dr. Reddy reexamined Michael and adopted the belief that his symptoms were the side effects of his medication. Later on January 8, Michael was urgently transferred to the University of Michigan Hospital where he was examined by Dr. Ronald Bailey.
On Janauary 9, after several tests were performed, Dr. Bailey determined that Michael was suffering from brain-stem problems. Michael had a complete occlusion (closure) of two major arteries leading to a part of the brain. The occlusions were formed by blood clots (thrombosis). The main problem was the total occlusion in the basilar artery. There was also a total occlusion of the left vertebral artery, one of the two arteries leading to the basilar artery. Apparently, such occlusions usually develop over time and evolve from a "partial” to a "total” status. Moreover, total occlusions usually cannot be reversed, but there is some possibility of reversing partial occlusions. In this case, Heparin, a blood thinner, was administered in an attempt to reverse the occlusions. This achieved only minimal results with no substantial improvement.
Because the brain stem is a portion of the brain which, in part, controls the body’s basic cardiovas cular and breathing functions, steps were taken in an attempt to prevent Michael from developing difficulties related to brain stem dysfunction. For instance, a tube was inserted into his trachea in order to mechanically ventilate him. Other action was taken because of some concern over swelling of the brain. However, during the three to three and one-half month period before Michael’s death, he ran into numerous problems. He developed pulmonary edema (accumulation of fluid in the lungs) which was presumed to have been on a neurogenic basis and related to the occlusion. He also experienced several episodes of pneumonia (infection of the lung) and a local infection near the tracheostomy site. He finally developed more pneumonia and status epilepticus (continuous seizure activity). The seizures apparently were not related to the brain stem problems but made hydrating, feeding, maintaining eletrolyte balance and other treatments more difficult. Eventually, Michael had a cardiac arrest (stoppage of the heart). His death occurred on June 4, 1979.
On January 5, 1981, plaintiff filed a complaint in circuit court, naming Dr. Reddy as one of several defendants. He also instituted a cause of action in the Court of Claims against the State of Michigan and the Plymouth Center. The cases were consolidated and the additional defendants who were originally named were dismissed from the suit. Plaintiff’s complaint set forth a wrongful death action, wherein he asserted claims of medical malpractice, intentional tort, violation of the mental health code, and constitutional and civil rights violations.
Plaintiff alleged breaches of many duties by defendants. Allegedly, Dr. Reddy failed to exercise the requisite degree of skill and care when diagnosing and treating Michael. Plaintiff alleged that Dr. Reddy should have recognized Michael’s serious condition earlier than she did and should have ordered him to be transferred sooner to a qualified hospital for prompt diagnosis and treatment. There were many other allegations of failure to properly supervise and provide adequate medical care. There were also allegations that the defendants failed to adopt necessary policies and procedures. Plaintiff alleged that as a direct and proximate result of defendants’ breaches of duties, wilful and wanton violations of duties, violations of the health code, and violations of constitutional rights, Michael was caused to incur extreme pain and suffering and eventual death. Both his estate and family suffered damages because of this.
Trial was scheduled for June 4, 1984, and on that date defendants orally moved for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10), in regard to the element of causation. During oral argument on the motion, plaintiff objected to defendants’ lack of affidavits in support of their motion. Defendant also moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(G)(8), on the basis of governmental immunity. After listening to the parties’ arguments, the trial court granted summary judgment in favor of defendants on the ground that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law on all the claims because plaintiff could not establish the requisite causal connection between defendants’ alleged wrongful acts and plaintiffs decedent’s injuries and death. The court also ruled that governmental immunity barred some of the claims. Plaintiff now appeals as of right.
I
Summary judgment pursuant to GCR 1963, 117.2(3), is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim. Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660, 663; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983). A court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome. 122 Mich App 663. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. 122 Mich App 663.
Defendants moved for summary judgment, arguing that there was no material issue of fact in regard to causation and that they were therefore entitled to judgment as a matter of law. Defendants argued that the undisputed facts indicated that even if they had committed any of the wrongful acts or omissions which were alleged, such acts or omissions were not a cause of Michael’s injuries or death. In support of their argument, defendants relied on the deposition testimony of Dr. Ronald Bailey. Defendants contend, in essence, that Dr. Bailey’s testimony indicates that, even if Michael had been taken to the hospital earlier, he still would have suffered the same injuries and died.
In response, plaintiff submitted no other evidence. Rather, plaintiff argued that defendants were required to produce some medical evidence, by way of deposition or affidavit, that it was probable that Michael would have died from the thrombosis even if the diagnosis had been made earlier. Plaintiff claimed that defendants had submitted no evidence which would show the probability that Michael would have died if the diagnosis had been made earlier. Plaintiff also argued that, even if it was probable that Michael would have died, plaintiff should be able to recover for the "value of the lost chance” of survival. Plaintiff felt that the deposition supported his position.
The trial court held that there was no genuine issue of fact and that defendants were entitled to summary judgment in their favor because the required causal connection did not exist. We believe that the trial court improperly granted summary judgment on this ground.
The wrongful death statute provides for liability whenever the death of a person or injuries resulting in death "shall be caused by wrongful act, neglect or default” and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. MCL 600.2922(1); MSA 27A.2922(1). All actions for such death, or injuries resulting in death, must be brought under that statutory provision. In addition, as a part of every cause of action, whether based on negligence, intentional tort, or any other theory, the wrongful acts or omissions complained of must be the proximate cause of the injuries sustained. Defendants contend that there are un disputed facts which establish that no causal connection exists. We disagree.
Defendants rely on Dr. Bailey’s deposition testimony. A review of his testimony does not indicate that there is no causal connection. The doctor testified that if Michael had been taken to the hospital earlier, there was a possibility, but not a probability, that the thrombosis (blood clotting) could have been reversed, depending on whether there was a total or partial occlusion. This possibility of reversal would exist if the occlusion was only partial. His testimony, while somewhat unclear, also indicated that if there was only a partial occlusion, chances were that the Heparin would prevent the thrombus from getting any larger.
The doctor also testified that in 1979, medical procedures and equipment were not available by which to determine whether the occlusion had been partial or complete on the days prior to the patient’s admission to the hospital. However, the doctor did not indicate whether he, or any other doctor, could supply a professional opinion as to the status of the occlusion on those days. Moreover, defendants submitted no other evidence indicating that the occlusion had been total. In order for defendants to be entitled to summary judgment, it would have been necessary for them to have submitted evidence that the occlusion was total during those days and it also would have been necessary for there to have been no genuine issue in regard to that fact. As an alternative, defendants could also have offered uncontradicted evidence that Michael would have developed the same physical problems at the hospital even if the occlusion were only partial. The bottom line is that defendants needed to show, with undisputed facts, that the injuries and death would have occurred anyway. This they did not do.
Because defendants submitted no evidence in that regard, we must assume that the occlusion was only partial in the days preceding Michael’s admission to the hospital. Dr. Bailey testified that if the occlusion was only partial, chances were that the administration of Heparin would prevent the thrombus from getting any larger. Thus, it is reasonable to conclude that the occlusion would have remained a partial one. Michael’s problems at the hospital occurred at a point in time when he suffered from total occlusion of both of the arteries involved. There is no indication that he would have had the same physical reactions if the occlusion had been only partial. Furthermore, there was no testimony that the same procedures would even have been followed if the occlusion were only partial. Without such evidence, it cannot be said that the requisite causal connection did not exist.
We emphasize the fact that this case was presented to the trial court by a pretrial motion for summary judgment. The result would be different if the deposition were the only evidence submitted at trial. At trial, plaintiff will be required to prove causation by a preponderance of the evidence. He will have to submit evidence indicating that the occlusion was only partial and that injury and death would not have resulted. If plaintiff does not do so, a directed verdict may be proper at that time. However, the question before us is whether summary judgment was properly granted as a matter of law. It was not. The facts presented by defendants, even though not contradicted by plaintiff, do not entitle defendants to judgment as a matter of law.
II
Because this case will be remanded and may proceed to trial, we must, in the interest of justice, consider plaintiffs alternate theory of "value of lost chance”. We find that plaintiff may not presently avail himself of this theory.
This theory is potentially available in situations where a plaintiff cannot prove that a defendant’s actions were the cause of his injuries, but can prove that the defendant’s actions deprived him of a chance to avoid those injuries. For instance, consider the following. A patient has contracted a disease which will eventually, in its natural course, lead to the patient’s death. The patient’s physician knows of an operation which, if performed on this patient, could possibly stop the progression of this disease. However, the odds are that it would not. The nature of this operation is' such that there is minimal risk to the patient from the procedures employed in the operation itself. Assume also that the doctor fails to perform the operation and the patient dies.
Under such circumstances, the patient’s estate will not have a cause of action against the doctor, because it cannot be proven that the doctor’s omission caused the patient’s death. The Supreme Court has defined proximate cause as "that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred”. See McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985). No rational trier of fact could conclude that without the doctor’s omission death would not have occurred. Because it was not probable that the operation would have stopped the progression of the disease, a rational trier of fact must conclude that déath would have occurred even without the doctor’s omission, i.e., even if the doctor had performed the operation.
While the plaintiff in this hypothetical situation cannot prove that the patient’s death was caused by the doctor, the plaintiff can prove that the doctor’s omission in failing to perform the operation caused the patient to lose the "chance” to stop the progression of his disease. If the chance that this patient would be helped by the operation were, for example, a 49% chance, it seems to us that the patient, or his estate, should justifiably be upset that the operation was not performed. While the odds suggest that the operation would not have been successful, there was a very substantial possibility or chance that the operation would have been successful. Assuming that the costs and risks involved with the operation would have been minimal, any rational person would have selected to undergo the operation. However, under traditional analysis, the doctor, or anyone else who caused the patient to lose his chance of recovery, would not be required to respond in damages._
Presently, neither the statutes nor the common law of the State of Michigan recognize a "lost chance” as a compensable injury. Plaintiff would have us create a new rule of law which would allow compensation for the value of a lost chance. While such a rule of law would perhaps lead to just results in some circumstances, we are not able or willing to take the step which plaintiff would have us take. Numerous policy considerations are involved in such a decision. This matter is best left to either the Supreme Court or the Legislature.
Ill
In addition to the grant of summary judgment on the ground of causation, the trial court also granted summary judgment to defendants pursuant to GCR 1963, 117.2(1) for failure to state a claim upon which relief could be granted on the basis of governmental immunity. The trial court held that governmental immunity did not bar the intentional tort claim or any negligence claim as it related to constitutional rights violations. However, the trial court held that governmental immunity otherwise barred plaintiff’s negligence claims, both as to malpractice and violation of statutory duties. The only issue raised before us on appeal is whether governmental immunity bars plaintiff’s negligence claims. We hold that it does as to the state but not as to the doctor.
Under MCL 691.1407; MSA 3.996(107), all governmental agencies are immune from tort liability in all cases wherein the agency is engaged in the exercise or discharge of a governmental function. The operation of a state mental health facility is a governmental function. Ross v Consumers Power Co (On Reh), 420 Mich 567, 620, 642-643; 363 NW2d 641 (1984). The state is therefore protected by governmental immunity.
As to Dr. Reddy, she is protected by governmental immunity only if she acted (1) within the scope of employment, (2) in good faith, and (3) in a discretionary, not ministerial, capacity. We find that Dr. Reddy was performing ministerial-operational acts, as opposed to discretionary-decisional acts. As stated by this Court in Davis v Lhim (On Remand), 147 Mich App 8; — NW2d — (1985): "A professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she had discretion to violate that standard.” Once the doctor chose to conduct an examination and to diagnose plaintiffs decedent, such examination and diagnosis should have been conducted properly. A doctor cannot choose to improperly diagnose a patient. While the doctor can choose the best method for carrying out her duties, the actual performance of those duties must be done in a conscientious and appropriate manner. Thus, Dr. Reddy is not protected by governmental immunity. The failure to properly diagnose does not involve a discretionary medical decision, such as deciding whether a certain treatment is necessary for a patient’s condition. See, e.g., Tobias v Phelps, 144 Mich App 272, 281; 375 NW2d 365 (1985).
As a final matter, we note that plaintiff would have us remand this case to the trial court with instructions that plaintiff be permitted to amend his complaint to allege a breach of contract against the State of Michigan for failing to provide plaintiffs decedent with proper medical care and treatment. Plaintiff did not raise this issue below. We decline to instruct the trial court to permit plaintiff to amend his complaint. Rather, plaintiff shall proceed in accord with MCR 2.118(A) on remand if he desires to amend his complaint.
Conclusion
We affirm the trial court’s grant of summary judgment on plaintiffs negligence claim against the state. As to all other claims, we reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.
Plaintiff argues that the trial court’s grant of summary judgment is subject to automatic reversal because defendants failed to file any affidavits in support of their summary judgment motion pursuant to GCR 1963, 117.2(3). We decline to reverse the grant of summary judgment on this basis. Requiring the submission of affidavits in this case would serve no legitimate purpose. Instead of submitting an affidavit, defendants relied on the deposition testimony of plaintiff’s expert. Furthermore, affidavits are now only one of several alternative documents which may be used to support or oppose the grounds asserted in a motion for summary judgment. See MCR 2.116(G)(2).
Such a situation could possibly arise under the proofs submitted at trial in this case if such proofs consist of the following: (1) proof that the occlusion was only partial in the days preceding Michael’s admission to the hospital; (2) proof that if the thrombus had been stopped before growing larger, but had not been reduced in size, Michael’s injuries and death would still have resulted; and (3) proof that if the occlusion would have been made smaller, i.e., reversed, then Michael would not have received injuries and died. Under those circumstances, proof indicating that there was a possibility, but not a probability, that the thrombus could have been reduced in size if plaintiffs decedent had been taken to the hospital earlier leads to the conclusion that defendants’ wrongful acts or omissions only possibly, but not probably, caused the death and injury of plaintiffs decedent.
If there is proof that it is probable that an operation will save a life, a negligent diagnosis or failure to treat can be a proximate cause of the death. Proof of probability is sufficient. See Harvey v Silber, 300 Mich 510; 2 NW2d 483 (1942). We note that Rogers v Kee, 171 Mich 551; 137 NW 260 (1912), also supports the proposition that a showing of probability of a better recovery provides a sufficient basis from which to infer proximate cause.
We note that in cases where the cause of action is one for wrongful death, the statute requires proof that the wrongful acts or omissions were the cause of death. The statutory provision would not allow a plaintiff to recover in a situation where he could prove only that defendant’s acts or omissions were the cause of a lost chance but could not prove that defendant’s acts or omissions were the cause of death. | [
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Per Curiam.
Plaintiff appeals as of right from an October 11, 1984, order denying plaintiffs motion for reconsideration of an order of summary judgment entered in favor of the defendants.
This case arose out of an incident which oc curred while plaintiff was engaged in performing exterior painting and roofing work for defendant Thomas Khalil at the latter’s home. Plaintiff, then 18 years of age, knew Thomas Khalil as a neighbor but had not previously worked for him. However, he had worked as an attendant in a parking lot owned by defendant Khalil Bros., Inc. Plaintiff and a friend, Raymond Montes, agreed to perform the necessary work for a fee to be determined after the job was completed. It was also agreed that Thomas Khalil would supply all tools and materials.
On September 1, 1977, after determining that a taller ladder was needed to perform the work, plaintiff approached Thomas Khalil with a request for such a ladder. Thomas instructed plaintiff to obtain a key to the "Peanut Factory”, which was owned by Khalil Bros., Inc., from his brother Monier Khalil. Monier informed plaintiff that a ladder was located right inside the door to the Peanut Factory.
After obtaining the ladder, plaintiff and Montes returned to the house and extended the ladder to the point they needed to reach. Plaintiff climbed the ladder while Montes held it at the bottom. Plaintiff intended to enter the attic by means of the ladder and tie a rope around a beam in order to bring tar up to the roof. Plaintiff also intended to tie himself to a safety harness, which he had borrowed from his father. However, while plaintiff was in the attic, Montes left his position at the bottom of the ladder. When plaintiff returned and began ascending the ladder from the attic to the roof, the base of the ladder apparently slipped, at which point it began to "telescope” down. Plaintiff fell, receiving serious injuries which resulted in partial paralysis.
In attacking the order of summary judgment on appeal, plaintiff first contends that the trial court erred in finding the "inherently dangerous activity” doctrine inapplicable to this case. We agree with the trial court. As explained in the recent Michigan Supreme Court case Bosak v Hutchinson, 422 Mich 712; 375 NW2d 333 (1985), "[t]he inherently dangerous activity doctrine is an exception to the general rule that an employer of an independent contractor is not liable for the contractor’s negligence or the negligence of his employees”. Bosak, p 724. Further, the Court noted that:
"Michigan has recognized the exception for activities which reasonably can be foreseen as dangerous to third parties, [citing Grinnell v Carbide & Carbon Chemicals Corp, 282 Mich 509; 276 NW 535 (1937) Watkips v Gabriel Steel Co, 260 Mich 692; 245 NW 801 (1932); Wight v H G Christman Co, 244 Mich 208; 221 NW 314 (1928); Olah v Katz, 234 Mich 112; 207 NW 892 (1926); Inglis v Millersburg Driving Ass’n, 169 Mich 311; 136 NW 443 (1912)] and has, on occasion, allowed the doctrine to be applied to employees of the contractor performing the dangerous work. McDonough v General Motors Corp, 388 Mich 430; 201 NW2d 609 (1972); Vannoy v City of Warren, 15 Mich App 158; 166 NW2d 486 (1968), lv den 382 Mich 768 (1969).” Bosak, p 724.
Also relied upon by the Bosak Court in its efforts to delineate the extent of the doctrine were the following excerpts from the Restatement of Torts, 2d:
" 'One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions, in the contract or otherwise. [2 Restatement Torts, 2d, § 416, p 395.]
" 'One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. [2 Restatement Torts, 2d, § 427, p 415.]’ ” 422 Mich 726.
We note from each of the passages quoted above that the independent contractor himself is not mentioned as a party intended to benefit from the inherently dangerous activity doctrine. Rather, the passages refer to "third parties” or, more generally, "others”, and employees of the contractor. We do not believe that these references were inadvertent since none of the cases cited by the plaintiff involves a recovery by the independent contractor himself for damages sustained as a result of his own negligence in performing the work of the employer. We believe that an important distinction exists between employees of an independent contractor and the independent contractor himself. Since an employee has no control over the manner in which the work is to be performed and must simply carry out the orders and directions of his employer, he stands in a position more closely akin to the innocent bystander, or "third party”. The independent contractor himself, on the other hand, was hired specifically for his ability to perform the work properly and is given complete control over the manner in which the job is to be completed. Thus, where harm occurs as a result of the failure to take "special” precautions in work " 'necessarily involving danger to others, unless great care is used’ ”, Bosak, supra, p 727, quoting Inglis v Millersburg Driving Ass’n, supra, p 331, employees and third parties, not having the authority to ensure that the necessary care is used, are rightfully excepted from the general rule which immunizes the employer of the independent contractor from liability. However, the independent contractor himself in most instances is in a better position to determine when and where "great care” and "special precautions” are warranted and is empowered with the authority to ensure that such care is exercised. Therefore, without considering whether the activity involved herein was in fact "inherently dangerous”, we conclude that the position advanced by plaintiff would result in an unwarranted extension of the "inherently dangerous activity” exception to the immunity afforded employers of independent contractors.
The next issue raised by plaintiff concerns his theory of negligent entrustment, which the trial court rejected as inapplicable to the facts of this case. Michigan courts have adopted the following definition of the theory from 2 Restatement Torts, 2d, § 392:
" 'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them’ ” Moning v Alfono, 400 Mich 425, 443-444; 254 NW2d 759 (1977).
As a result of further refinement of the applicable standard of care in Fredericks v General Motors Corp, 411 Mich 712; 311 NW2d 725 (1981), it is now clear that, in order to prove negligent entrustment, "plaintiffs must show either that defendant knew the entrustee was not to be entrusted or that defendant 'had special knowledge of [the entrustee] which would put defendant on notice’ ”. Buschlen v Ford Motor Co (On Remand), 121 Mich App 113, 117; 328 NW2d 592 (1982), aff'd 421 Mich 192; 364 NW2d 619 (1984), quoting Fredericks, supra, p 720.
Plaintiff argues that, because of his youth (18 years of age) and inexperience, defendants and "[e]ven the most uninformed layperson knew or should have known that [plaintiff] was likely to use the various supplied equipment, specifically the extension ladder, in some unsafe manner”. (Emphasis in original.) As we see it, the success of plaintiffs argument depends upon one’s acceptance of the proposition that an extension ladder is so inherently dangerous that an 18 year old must be presumed incapable of safely using the tool. We cannot accept this argument. An extension ladder is an essentially uncomplicated instrumnent which gains a propensity for danger only because it will allow the user to reach great heights. This danger is most obvious to all but children of tender years whose intellectual capacity does not permit them to reason to such conclusions. We must assume that 18 year olds such as plaintiff have achieved the intellectual development which would take them out of the "tender years” category. Thus, only by proving that the defendants knew plaintiff to be a careless risk-taker who might be expected to use the ladder with little or no concern for his own safety could the plaintiff succeed under the theory of negligent entrustment. The facts as admitted by plaintiff prove this not to be the case. Plaintiff was concerned enough for his own safety to come equipped with a safety harness, which he quite tragically had not begun wearing prior to the accident. Further, plaintiff had the common sense to instruct his assistant to secure the ladder by standing at the base. Under these circumstances, we conclude that plaintiff cannot succeed under the proposed theory because the defendants’ entrustment of the extension ladder to him was in fact entirely reasonable. Therefore, the trial court did not err in granting defendants’ motion for summary judgment as to the theory of negligent entrustment.
Plaintiff next contends that the trial court erred in granting defendants’ motion for summary judgment as to his "retained control” theory of negligence. The theory in question was explained in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), as an exception to the general rule that a landowner is not responsible for injuries caused by a carefully selected independent contractor. The retained control exception provides that "[a]n owner is responsible if he does not truly delegate — if he retains 'control’ of the work — or if, by rule of law or statute, the duty to guard against risk is made 'nondelegable’ ”. Funk, p 101. Whether the duty to guard against a certain risk is to be classified as nondelegable is to be decided on a case-by-case basis.
To begin, we note that the plaintiffs status as the actual independent contractor rather than as an employee of the independent contractor or some third person raises the question whether the "retained control” theory can be utilized by plaintiff as a method of recovery. However, we need not address the question since it is clear that defendants have not retained the degree of control which would justify imposing upon them liability for the injuries sustained by plaintiff. In Funk, General Motors, the owner of a building to be constructed, performed such functions as drawing up building plans, writing contractual specifications and acting as architectural supervisor. Further, a General Motors representative, who was present at the job site daily, could terminate the employment of any prime contractor or subcontractor within 24 hours. Under these facts, the Funk Court noted that "[t]he law does not * * * absolve an owner who acts in a superintending capacity and has knowledge of high degrees of risk faced by construction workers from responsibility for failing to require observance of reasonable safety precautions”. Funk, pp 106-107. (Footnote omitted.) The Court concluded that, despite its designation as owner, the degree of control both retained and exercised by General Motors justified holding it responsible for its own negligence in failing to implement reasonable safety precautions. Funk, p 108.
In contrast to the situation in Funk, the defendants herein exercised no control whatsoever over the performance of the work. The defendants’ involvement was limited entirely to supplying the paint, brushes, and other equipment, including the extension ladder, necessary to perform the work. Defendant Thomas Khalil was not even home on the day of the accident to offer supervisory assistance to the plaintiff. We find no parallel in these facts to the degree of control both retained and exercised by General Motors in Funk,, and we agree with the trial court’s rejection of plaintiff’s "retained control” theory. Parenthetically, we also note that plaintiff’s argument, if successful, would raise an additional issue, i.e., whether his claim would be barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). If defendants had in fact exercised the degree of control alleged by plaintiff in his effort to advance the application of the "retained control” theory, his status as an independent contractor would be very questionable. Under such circumstances, plaintiff would more likely be viewed as an employee of the defendants, in which case his efforts to recover damages under a tort theory would be barred by the exclusive remedy provision. See Dobbs v Journal Co, 137 Mich App 663; 358 NW2d 32 (1984). This provision did not stand as a bar to the plaintiff in Funk because that plaintiff was unquestionably an employee of the subcontractor rather than the landowner, General Motors, and thus his claim against General Motors was not affected by the exclusive remedy provision. Funk, p 99.
Plaintiff next relies upon Musser v East Side Gear & Tool Co, 325 Mich 188; 37 NW2d 890 (1949), to support his argument that his "defective instrumentality” theory should have been pre sented to the jury. The Musser Court cited 35 Am Jur, Master and Servant, § 162, p 591, for the proposition that " 'a contractee who agrees to provide a contractor with a particular instrumentality for the purpose of the stipulated work is ordinarily liable for any injury which a servant of the contractor may sustain, during the progress of the work, by reason of a defect which was known to the principal employer, or which he might have discovered by the exercise of reasonable care, at the time when the instrumentality was turned over to the contractor ”. Musser, p 191. Even assuming the general applicability of this section, we cannot agree with plaintiffs position. Assuming for purposes of. argument that the ladder was owned by defendant Khalil Bros., Inc., as plaintiff contends, his theory is that Khalil Brothers, as purchaser of the ladder from some entity in the chain of distribution, and defendants Thomas and Judith Khalil, whose connection to the ladder is at best that of borrowers, should be held responsible for the manufacturer’s failure to place warning labels on the ladder. We cannot accept this proposition. Since plaintiffs lawsuit is based upon a negligence theory, it is incumbent upon him to trace the alleged defect in the ladder to the hands of the defendants and prove that the defendants’ negligence was the cause of the defect. Marderosian v Stroh Brewery Co, 123 Mich App 719, 724; 333 NW2d 341 (1983). We are convinced that the task cannot be achieved. There is no reason to assume that defendants should have been any more aware of the absence of instructions on the ladder than plaintiff. Furthermore, even if they were consciously aware of the lack of instructions, should they, as mere purchasers and borrowers of the ladder, have known that the absence of such instructions constituted a defect? We think not, and thus plaintiffs reliance on Musser v East Side Gear & Tool Co, supra, does not support his request for a reversal of the trial court’s ruling.
The next theory relied upon by plaintiff is the "business invitee” doctrine, which, according to plaintiff, supports his claim for recovery under the following logic, to wit, that "[b]y ordering [plaintiff! to use toe extension ladder and by failing to instruct him or otherwise insure of its safe use, [defendants] created a dangerous condition on their premises which they should have known about”.
This argument is without merit. As stated most recently in Swartz v Huffmaster Alarms Systems, Inc, 145 Mich App 431; 377 NW2d 393 (1985), the rule in Michigan regarding business invitees is that when one who invites others onto his premises must exercise ordinary care and prudence to keep the premises reasonably safe. Swartz, pp 434-435. The problem with plaintiff’s argument is that he does not point to any dangerous condition with regard to the premises, i.e., the Khalils’ home and surrounding land, but, rather, alleges only a defect in a ladder which plaintiff himself brought onto the land. The ladder was not a fixture and in fact was not even stored at the Khalil residence. Simply put, the premises was not rendered unreasonably dangerous by the introduction of a ladder which did not contain warning labels since the premises itself was entirely unaffected. The "business invitee” doctrine could afford no avenue of relief to plaintiff and plaintiffs argument for its application was thus properly dismissed by the trial court.
Finally, plaintiff argues that a question of fact existed as to whether defendant Khalil Brothers owned the ladder, and thus summary judgment in its favor was improperly granted. We cannot agree. Kahlil Bros., Inc., included with its motion an affidavit of Monier Khalil stating that he, and not the corporation, owned the ladder used by plaintiff. Further, he indicated that the ladder was for his own personal use. This claim is supported by plaintiffs deposition, where he testified that Thomas Khalil instructed him to obtain a key for the "Peanut Factory” from Monier Khalil in order to retrieve the ladder. Monier Khalil then informed him where the ladder was stored.
In any event, we find the question of ownership to be irrelevant. We have considered each of the theories advanced by plaintiff and have concluded that none will offer a basis for relief. Not one of these theories was based in whole or in part upon the ownership of the ladder. Therefore, after giving every reasonable doubt to the plaintiff, we agree with the trial court that no factual development is possible which would support plaintiff’s claim for damages against the defendants. Under these circumstances, a motion for summary judgment is properly granted, and, thus, the lower court’s denial of plaintiff’s motion for reconsideration was appropriate. Anderson v Kemper Ins Co, 128 Mich App 249, 252-253; 340 NW2d 87 (1983).
Affirmed.
See McDonough v General Motors Corp, 388 Mich 430, 455-456; 201 NW2d 609 (1972) (T. E. Brennan, J., dissenting):
"[T]he rule of liability is designed to protect innocent third parties injured by the execution of an inherently dangerous undertaking. The rule is not designed, nor was it ever intended to benefit the contractor who undertakes the dangerous work, or his employees.
"Thus, if I employ a contractor to remove a tree stump from my yard by use of explosives, I am liable to my neighbor whose garage is damaged by the concussion. This is because it is I who have set the project in motion; it is I who have created the unusual peril; it is for my benefit that the explosives were used. As between myself and my neighbor, I ought not to be permitted to plead that it was the contractor’s negligence and not my own which damaged his property.
"But if the contractor should blow up his own turck, I should not be liable. He is the expert in explosives and not me. I had neither the legal right nor the capability to supervise his work. The same would be true if the contractor’s workman had injured himself, or been injured by the carelessness of a fellow workman or the negligence of his employer. Neither the contractor nor his employees are 'other’, as contemplated in Cooley’s statement of the rule. Indeed, they are privy to the contract which creates the peril.”
Although Justice Brennan’s comments insofar as they pertain to an employee of an independent contractor have been rejected by Michigan courts, we believe that the reasoning as it applies to the independent contractor himself is still noteworthy. | [
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M. J. Kelly, J.
This case presents a first impression issue regarding the nature and extent of an employer’s duty to accommodate a handicapped employee under the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq.
We must decide whether the act imposes a duty upon employers to accommodate employees who have become permanently disabled in the course of their employment and can no longer perform the job for which they were hired by (1) placing or attempting to place injured employees in jobs compatible with their limitations, (2) assigning injured employees to other jobs on conditional or probationary terms where necessary, and/or (3) maintaining injured employees on employment status even where no work is available to enable them to apply as "insiders” for positions that may become available in the future. For reasons stated below, we hold that the duty of an employer to accommodate handicapped employees under the handicappers’ act is limited to (1) the alteration of physical structures to allow access to the place of employment and (2) the modification of peripheral duties to allow job performance. The duty to accommodate imposed under the handicappers’ act does not extend to new job placement and/or vocational rehabilitation efforts.
FACTS
Plaintiff was hired as an automotive mechanic by Detroit Edison in 1975. In July and in October of 1978, plaintiff suffered two separate work-related knee injuries, which required surgery on two different occasions in 1979. As necessitated by the injuries and operations, plaintiff was classified temporarily disabled, qualifying him for temporary light duty assignments. Plaintiff returned to his normal duties in October or November of 1979 but underwent a third operation in March of 1980. Again, plaintiff was classified as temporarily disabled büt at that time there was no light duty work available. Until May or June of 1980, plaintiff received full salary and benefits in the form of workers’ compensation benefits plus a company supplement. After that, plaintiff received workers’ compensation benefits only.
In August of 1980, plaintiff was classified permanently disabled and it is undisputed that he was completely unable to perform the duties of an automotive mechanic. While it was defendant’s policy to place temporarily disabled employees in light duty assignments where available, permanently disabled employees did not qualify for such temporary assignments. Pursuant to the terms of a collective bargaining agreement negotiated between defendant and plaintiff’s union and pursuant to company policy, the superintendent of the motor transportation division looked within his division for another position to which plaintiff might be transferred. Upon learning that nothing was available in his immediate division, the superintendent sent a memo dated August 28, 1980, to the employment director requesting a company-wide search for available positions compatible with plaintiff’s limitation. Only one job opening for a position referred to as "Special Clerk-Trombley Warehouse” matched defendant’s physical qualifications but an ad hoc committee formed solely to consider plaintiff’s placement in this position decided that he did not meet two of the five requisite qualifications. Specifically, the committee concluded that plaintiff did not possess the ability to "communicate effectively both orally and in writing” or the ability to "work effectively” with personnel at different levels throughout the company. On September 17, 1980, plaintiff was informed that there were no available positions and, because he was unable to perform his job as automotive mechanic, his employment relationship with defendant was terminated.
Plaintiff filed a grievance with this union which he eventually pursued to arbitration with no success. It was during these grievance proceedings that plaintiff first learned of the Special ClerkTrombley Warehouse opening. Plaintiff subsequently filed this circuit court action under the handicappers’ act and, after a four-day jury trial, obtained a judgment of $115,000 in damages, plus an interest award of $51,770. Plaintiff moved for reinstatement as an employee and for attorney fees. The trial court denied reinstatement and refused to award attorney fees under the act, although attorney fees of $3,750 were awarded under the mediation penalty provision of Wayne County Circuit Court Rule 403.16. Defendant appeals the verdict as of right and plaintiff cross-appeals the order denying reinstatement and attorney fees under the act.
i
Defendant’s primary argument is that the jury verdict rendered in this case is not supported by law. Our review of the record, however, convinces us that plaintiff proceeded at trial on two distinct theories of recovery, only one of which is not supported by any legal basis. Plaintiff generally argued that defendant violated the accommodations provision of the handicappers’ act by failing to make reasonable efforts at placing plaintiff in another position within the company. According to plaintiff, reasonable efforts would have included assigning plaintiff to the Special Clerk-Trombley Warehouse job on a probationary basis or maintaining plaintiff’s employment status in order that he might apply for future openings in the company as a member of the collective bargaining unit.
Plaintiffs second theory of recovery is that the specific decision made by defendant not to offer plaintiff the position of Special Clerk-Trombley Warehouse was solely attributable to his handicap, which is unrelated to his ability to perform that particular job. The precedential significance of this opinion, however, is our consideration of plaintiffs first theory of recovery regarding the nature and extent of the employer’s duty to accommodate and we address that issue first.
Article 2 of the handicappers’ act governs the employment context and provides:
"(1) An employee shall not:
"(a) Fail or refuse to hire, recruit, or promote an individual because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.
"(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.
"(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.
"(d) Fail to refuse to hire, recruit, or promote an individual on the bais of physical or mental examinations that are not directly related to the requirements of the specific job.
"(e) Discharge or take other discriminatory action against an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job.
"(f) Fail or refuse to hire, recruit, or promote an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job.
"(g) Discharge or take other discriminatory action against an individual when adaptive devices or aids may be utilized thereby enabling that individual to perform the specific requirements of the job.” MCL 37.1201(1); MSA 3.550(201)(1).
We note that subsections (f) and (g) impose an accommodation duty requiring the use of adaptive devices or aids where to do so would enable the individual to perform a particular job. The parties agree that this is not the type of accommodation obligation at issue in this case.
Article 1 of the act imposes a more general duty of accommodation and applies not only in the employment context but to the areas of public accommodations, public services, education and housing as well. Section 102(2) provides simply:
"A person shall accommodate a handicapper for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship.” MCL 37.1102(2); MSA 3.550(102)(2).
This provision of the handicappers’ act was adopted by 1980 PA 478 § 1 and became effective on January 20, 1981, several months after plaintiff’s termination in September of 1980. Prior to the 1980 amendment, however, article 2 of the act contained a separate provision governing the accommodation duty in the employment context:
"Nothing in this article shall be interpreted to exempt a person from the obligation to accommodate an employee or applicant with a handicap for employment unless the person demonstrates that the accommoda tion would impose an undue hardship in the conduct of the business.” Formerly MCL 37.1207; MSA 3.550(207), repealed by 1980 PA 478, § 1.
As explained in Carr v General Motors Corp, 135 Mich App 226, 232-233; 353 NW2d 489 (1984), lv granted 422 Mich 934 (1985), the 1980 amendment was intended to extend the accommodation obligation, which already applied in the employment context, to the other areas already listed. Thus, it is clear that, even prior to the effective date of the 1980 amendment, defendant owed its handicapped employees a duty of accommodation and defendant does not really contend otherwise on appeal.
The central controversy in this case concerns the interpretation to be given "the obligation to accommodate an employee or applicant with a handicap for employment”. Where the handicapped employee is initially hired to perform a particular job and sustains injuries in the course of employment such that the employee is physically precluded from continuing in the same job, does "the obligation to accommodate” require the employer to do everything reasonably necessary to place that employee in a new and different job? Our answer is no, notwithstanding several legitimate public policy arguments to the contrary and we arrive at our decision solely by determining the intent of the Legislature, or lack thereof, in enacting MCL 37.1202(2); MSA 3.550(202)(2).
Our primary goal in interpreting any statute is to ascertain and give effect to the intent of the Legislature in enacting the statute. Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959); Cliffs Forest Products Co v Al Disdero Lumber Co, 144 Mich App 215, 222; 375 NW2d 397 (1985). Generally, when the language of a statute is unambiguous, this Court assumes that the Legis lature intended the plain and ordinary meaning of its words and we do not look beyond those words in deciding the issue before us. In re Condemnation of Lands, 133 Mich App 207, 210-211; 349 NW2d 261 (1984), lv den 421 Mich 856 (1985). Where, however, the language of the statute is ambiguous, this Court will consider a variety of factors and apply any one of several principles of statutory construction in giving meaning to the language at issue. We think the term "obligation to accommodate” is so broad as to be ambiguous and we thus look beyond the words employed by the Legislature in an attempt to ascertain the meaning of the accommodation duty under the handicappers’ act.
Plaintiff correctly argues that remedial statutes such as the handicappers’ act must be broadly interpreted to achieve the goal intended which, in this case, is to provide for the "employment of the handicapped to the fullest extent reasonably possible”, Allen v SEMTA, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). We agree that the provisions of the handicappers’ act in general, and the duty to accommodate in particular, should be liberally construed by the judiciary.
We are also cognizant of the public policy arguments in favor of plaintiff’s position. As explained by plaintiff’s expert witness at trial, it is particularly difficult to rehabilitate and place those workers who are skilled and experienced but who have been injured in their jobs and are no longer able to perform the work in which they specialize. Plaintiff’s witness attributes the difficulty in placing these individuals to employer fears regarding workers’ compensation insurance rates and to employer sterotypes regarding employees who have been injured on the job.
It is precisely because we do understand the enormity of the "lost children syndrome”, as referred to by plaintiffs expert witness, that we conclude it is a problem to be solved by the Legislature, not the judiciary, after full and careful consideration of the competing interests involved. Ultimately, the issue to be decided in this case involves the extent of the burden to be placed on employers to provide jobs for employees who, because of injuries sustained on the job, are no longer able to perform the job for which they were hired. A decision in this regard cannot be made without serious consideration of the impact on the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., which provides the exclusive remedy against employers for employees injured in the course of their employment. MCL 418.131; MSA 17.237(131). While we recognize that employment discrimination actions are not barred under the exclusive remedy provision of the workers’ compensation act, see Boscaglia v Michigan Bell Telephone Co, 420 Mich 308; 362 NW2d 642 (1984), that comprehensive statutory scheme cannot be ignored in our interpretation of the accommodation obligation. Given the brevity and ambiguity of the accommodation language in the handicappers’ act, we do not think it provident for the judiciary to adopt plaintiffs position at this time.
Our decision is not inconsistent with other opinions of this Court interpreting the accommodation obligation of MCL 37.1201(2); MSA 3.550(201)(2), contrary to plaintiffs arguments on appeal. In Wardlow v Great Lakes Express Co, 128 Mich App 54, 64; 339 NW2d 670 (1983), lv den 419 Mich 871 (1984), this Court rejected a strict interpretation of the term "handicap” as defined in MCL 37.1103(b); MSA 3.550(103)(b), and held that "the act requires that the employer accommodate the employee for any handicap unless the employer shows that such accommodation will result in undue hardship”. See also Carr v General Motors Corp, supra, adopting a similar interpretation.
Wardlow lends support to our position for two reasons. First, as to the extent of the accommodation obligation. Quoting with approval from a decision of the Michigan Department of Civil Rights, this Court noted:
"The obligation to accommodate a handicapped person is twofold. It concerns both alterations to physical structures and modifications to the job. The first kind of accommodation is necessary to provide access to the place of employment. It may include the installation of a ramp or elevator or the reassignment of parking spaces. The second kind of accommodation is necessary to permit actual performance of the job duties. It may include the reassignment of certain peripheral duties to other employees or the rearrangement of equipment or fixtures in the work area.
"The Handicappers’ Act requires respondent to make reasonable efforts to accommodate a handicapped applicant or employee.” 128 Mich App 65, quoting Michigan Dep’t of Civil Rights ex rel Elizabeth Dingler v General Motors Corp, (No. 37293-E1, decided October 23, 1979).
We agree with the department’s twofold interpretation of the accommodation obligation and we apply it in the instant case.
Second, Wardlow and Carr v General Motors Corp, supra, present the accommodation issue in the context of employee transfers. In Wardlow, plaintiff was a city driver who was laid off in 1978. He responded to the layoff with a request for a transfer to "over-the-road” work and there is no dispute that he would have been granted the transfer because of the applicable seniority rules but for a weight lifting restriction that had been placed on him years earlier. The issue in Wardlow was whether the employer, who denied the transfer because of plaintiffs handicap, had any obligation to accommodate plaintiffs handicap in the over-the-road position in the absence of any undue hardship. We found the employer obligated and remanded the case for further consideration of the undue hardship issue.
In Carr v General Motors Corp, supra, plaintiff was placed on a weight lifting restriction following a back operation in 1972, while employed on defendant’s current product engineering staff. Several years later, plaintiff was offered a job transfer to the dimension group engineering staff, where there was occasional lifting of weights in excess of plaintiffs restriction. Defendant refused to consider accommodating plaintiff who apparently desired the transfer and plaintiff filed suit. This Court found that the trial court had erred in finding no duty to accommodate and remanded for a trial on the merits.
It is significant that in neither Wardlow nor in Carr did plaintiffs assert a right to be transferred on the basis of the handicappers’ act. Both plaintiffs sustained injuries in the time period during which they were employed by the defendants, but the injuries and weight lifting restrictions were apparently compatible with the jobs for which they were hired. In Wardlow, plaintiff sought a transfer on the basis of his seniority rights in order to avoid a layoff. In Carr, plaintiff simply wished to make a career move. Plaintiffs alleged in both Wardlow and in Carr that the denials of the transfer requests were motivated by unlawful discriminatory considerations. Plaintiff thus misconstrues the holdings of Wardlow and Carr as au thority in support of his interpretation of the nature and extent of an employer’s accommodation duties under the handicappers’ act.
n
Our rejection of plaintiffs accommodation theory of recovery does not dispose of this case in its entirety for, as already noted, plaintiff presented two theories of recovery to the jury, one of which we find supported by law. Defendant admits that company policy and the terms of a collective bargaining agreement applicable to plaintiff required some effort at placing plaintiff in another position compatible with his limitations and at a pay rate as close as possible to the rate he received in his former job. Accordingly, defendant identified the Special Clerk-Trombley Warehouse position as one to which plaintiff might be assigned. Plaintiff’s alternative theory at trial was that defendant refrained from offering him the Trombley Warehouse position solely because of his handicap. We think that plaintiff presented sufficient evidence to support a verdict under this theory and the case must be remanded for new trial.
At trial, plaintiff carried the initial burden of proving that defendant withheld the Special ClerkTrombley Warehouse position from him because of his handicap and that the handicap was unrelated to is ability to perform the duties of that job. Since defendant in this case asserted a nondiscriminatory reason for its decision, plaintiff was further obligated to prove that the proffered reason was mere pretext. Bogue v Teledyne Continental Mo tors, 136 Mich App 374, 377-378; 356 NW2d 25 (1984), lv den 421 Mich 861 (1985).
Defendant does not contend that plaintiff is physically unable to perform the Special ClerkTrombley Warehouse duties or that he lacks the necessary background or experience. The central dispute in this contest is whether defendant’s decision to withhold the Special Clerk-Trombley Warehouse position was motivated by business judgment or discriminatory bias. In other words, the issue is one of defendant’s motive and is thus particularly well suited for resolution by a trier of fact. On appeal, we are concerned only with whether plaintiff presented sufficient evidence in support of his second theory of recovery to warrant remand for a new trial on that claim. We conclude that he did.
Plaintiff’s expert witness testified that plaintiff exhibits no character or personality disorder which would prohibit him from working effectively with others. The expert witness further testifed that plaintiff has a low-average reading level and that he is generally qualified for the Special ClerkTrombley Warehouse position. The credibility of this testimony is one for the trier of fact.
Plaintiff introduced the testimony of his union president, Douglas Mcllroy, who testifed that generally, when a union employee became permanently disabled and was thus no longer able to perform the job for which he or she was hired, defendant would notify the union of its efforts to transfer the injured employee to a permanent job consistent with the handicap and provide the union with an opportunity to participate in the committee decision. Mcllroy testified that the union was never contacted in plaintiff’s case and that the union did support the transfer sought by plaintiff
Finally, plaintiff introduced proofs to establish that none of the individuals on the ad hoc committee had ever worked with him or had personal contact with him in any other context. Plaintiff’s work record prior to the onset of his knee injuries was free of any significant disciplinary write-ups or notations. Furthermore, it is undisputed that the committee did not interview plaintiff’s former supervisors or employees and one member of the committee, James Bitinger, superintendent of the motor transportation division, testified that he did not favorably view a work record which included a history of work-related injuries.
iii
Defendant raises two remaining issues. At the beginning of trial, defense counsel unsuccessfully sought to admit into evidence the labor arbitration decision favorable to defendant. The trial court ruled that the arbitration decision was irrelevant and unfairly prejudicial. Defendant argues on appeal that the trial court abused its discretion in excluding this evidence. We do not agree. Even assuming that the proffered evidence is relevant, we cannot say that the court abused its discretion in excluding it as unfairly prejudicial. The arbitration decision did not decide whether plaintiff had been discriminated against under the handicappers’ act and there was a legitimate danger that the jury might be unduly influenced by the arbitration.
Defendant also asserts on appeal that the jury verdict in this case is contrary to the law as set forth in Clifford v Cactus Drilling Corp, 419 Mich 356; 353 NW2d 469 (1984). That case is clearly not applicable to any of the issues raised in this appeal. Clifford v Cactus Drilling involves neither the handicappers’ act nor a collective bargaining agreement.
IV
On cross-appeal, plaintiff argues that the trial court erred in refusing to order plaintiffs reinstatement and in refusing to award attorney fees under the act rather than under the Wayne County Court Rule. It is true that the handicappers’ act authorizes the issuance of injunctive relief, MCL 37.1606(1); MSA 3.550(606X1), as well as the recovery of attorney fees. MCL 37.1606(3); MSA 3.550(606X3). However, prevailing civil rights plaintiffs do not have automatic rights to either of these two forms of relief.
The decision of a trial court to grant or deny reinstatement is a matter of equity and is reviewed de novo. Southeastern Oakland County Incinerator Authority v Avon Twp, 144 Mich App 39; 372 NW2d 678 (1985). The trial court record in this case submitted on appeal does not include a transcript of any hearing on plaintiffs request for reinstatement or attorney fees and we thus do not have the benefit of the court’s analysis. We note, however, that plaintiffs attorney did argue in closing argument that plaintiff was entitled to economic losses of $74,000. The jury returned a verdict of $115,000, plus interest computed at $51,770. We further note that plaintiff does not seek reinstatement to a former position from which he was unlawfully discharged; rather, plaintiffs request is for reinstatement to a job which he has never held and which has been assigned to someone else. Given the nature of the verdict and the difficulty of reinstatement, we do not think we would have arrived at a contrary result had we been presented with the same request.
The award of attorney fees under a civil rights statute is a matter of discretion for the trial court. In exercising its discretion, however, the court should consider a request for attorney fees in light of the legislative purposes involved. See King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). Plaintiffs failure to produce a copy of the transcript of the hearing on his motion for attorney fees precludes appellate review of the court’s denial since we are unable to ascertain the reasons upon which the court relied.
Reversed and remanded for proceedings consistent with this opinion. No costs, a public question being involved.
But see Gloss v General Motors Corp, 138 Mich App 281; 360 NW2d 596 (1984), from which it might be inferred that plaintiff was asserting such a right under the handicappers’ act.
The general verdict of the jury makes it impossible to determine whether the verdict was based on the failure to accommodate theory or on the discrimination theory. Thus, remand for a new trial is necessary. See People v Long (On remand), 419 Mich 636, 649; 359 NW2d 194 (1984). | [
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Per Curiam.
Defendant, Allstate Insurance Company, appeals as of right from a jury verdict in favor of plaintiffs Michael and Fleeta Davis for fire damage to a home which the Davises had sold to plaintiffs Stanley and Harriet VanReken prior to the fire.
The Davises conveyed the property to the VanRekens by warranty deed subject to a mortgage upon which the Davises remained personally liable. The warranty deed was not recorded immediately. After the sale, Allstate continued to insure the home under a homeowner’s policy in the Davises’ name. After the loss occurred, Allstate refused payment, arguing that the Davises had no insurable interest in the property beyond the amount of the underlying mortgage, that Allstate had expressly rejected an attempt by the Davises to assign the insurance policy to the VanRekens, that the house was not owner-occupied as required by the policy, and that the house was rented out at the time of loss, triggering the exclusion forbidding operation of a business on the premises. Prior to trial, Allstate paid the mortgage company the balance due on the mortgage note. The jury awarded $32,500 to the Davises in damages but awarded nothing to the VanRekens.
Stanley VanReken is a real estate investor who buys, sells, and rents single-family dwellings. On July 14, 1979, the Davises conveyed their Detroit home to the VanRekens in exchange for a home located in Warren, which the VanRekens owned. The conveyance was by warranty deed and "subject to” the underlying mortgage. With the sale, the VanRekens took over payments on the monthly mortgage. However, the Davises remained personally liable on the mortgage. Also, as part of the transaction, the VanRekens received an assignment of the funds held in escrow by the mortgage company. Part of each monthly mortgage payment continued to be placed in the escrow account to provide for insurance on the home.
The VanRekens requested an assignment of insurance from the Davises. The Davises’ insurance policy was a homeowner policy and was designed to cover only dwellings which are owner-occupied. The VanRekens bought the home for rental purposes. The VanRekens mailed the assignment request to Allstate. An Allstate underwriter testified that the assignment form itself indicated that the dwelling was not owner-occupied because the VanRekens’ address was different than the address of the insured home. Pursuant to statute, MCL 500.2832; MSA 24.12832, the Davises’ policy expressly prohibited assignments of fire insurance without the written consent of the company. Allstate declined to accept an assignment of the homeowner policy and responded:
"I’m sorry but I cannot honor this assignment because under the terms of a homeowner policy, the named insured must be living in the dwelling. May we help you?
"E. Freeman”
Mr. VanReken testified that, after he received the rejection of assignment, he called Allstate’s office and talked with a B. Hill, and was assured that Allstate would make the necessary arrangements to provide him proper coverage. However, Mr. VanReken could not remember if Hill was male or female or what capacity he or she held. Neither the Davises nor the VanRekens ever received a cancellation notice. The VanRekens did not give any further thought to insurance for the Hilldale home until it was destroyed by fire. Mr. VanReken testified that he owned over 400 homes and did not have the time to follow up on every loose end.
There was evidence that Allstate was negligent in failing to cancel the Davises’ homeowner’s policy when it rejected the request for assignment. Thomas McCloskey, a fire claims specialist for State Farm Insurance Company, testified that he had been in claims evaluations for 16 to 17 years and that he was familiar with the industry standards set by the Melborn Institute. According to these standards, if an insurance company refuses to accept an assignment request, the company has only two options — cancel the contract or rewrite the risk into the proper program of coverage. At first, the Allstate underwriter seemed to imply that, in addition to the two options cited by Mc-Closkey, an insurance company, upon rejecting an assignment, also had the option of simply issuing the rejection and doing nothing else. However, when asked why a company would reject an assignment but not cancel the underlying policy, the Allstate underwriter testified, "rejecting and cancel are kind of synonymous”. Also, a January 26, 1981, letter from Allstate informed the Davises that Allstate was at that time planning to settle with them "as Allstate did fail to cancel the policy upon notification of denial of assignment”.
On April 1, 1980, Allstate renewed the Davises’ homeowner’s policy upon receiving the annual premium from the mortgage company. On May 2, 1980, a fire totally destroyed the house, killing two of the tenants. The surviving tenants have brought wrongful death actions against the VanRekens and the Davises for failure to have smoke alarms in the home, as required by a Detroit ordinance. However, the jury was never informed of the deaths or the other suits. During the course of this litigation, the Davises and the VanRekens have been represented by the same attorney. The instant suit seeks only recovery for damage to the dwelling. No claim has been made for contents. During trial both counsel stipulated to the replacement cost of the house in May, 1980, and agreed that the policy limit was $36,000. Prior to trial, Allstate paid the mortgage company $12,500, the amount outstanding on the mortgage note. However, the jury was informed that this payment was not an admission of liability but was paid because the insurance contract created a direct obligation to the mortgage company which was not dependent on Allstate’s obligation to the insureds.
During closing argument, the plaintiffs argued that Allstate had renewed the Davises homeowner’s policy and accepted the premiums with full knowledge that the home was not owner-occupied; therefore, Allstate should be precluded from denying coverage on that basis after the occurrence of loss. Plaintiffs also argued that Allstate failed to cancel and that, if Allstate had properly canceled, plaintiffs would have secured other insurance.
Allstate argued that the VanRekens could not recover because it had rejected the VanRekens’ request for assignment, that the Davises could not recover because they had transferred all interest to the VanRekens and thus had no insurable interest, and that plaintiffs had violated the terms of the contract because the house was not owner-occupied and because the house was being rented out. Allstate also argued, as it continues to do on appeal, that it had no knowledge before the loss occurred that the house was not owner-occupied. However, according to the answer to question two in the jury verdict form, the jury found otherwise.
In response to Allstate’s argument that plaintiffs had violated the terms of the contract, plaintiffs admitted that the house was being rented, but relied upon a provision in the policy which read:
"This insurance should not be prejudiced by any act or neglect of any person other than insured when such acts or neglect is not within the control of the named insured.”
Plaintiffs argued that the VanRekens had rented the property out and that the Davises’ insurance coverage should not be prejudiced by the VanRekens’ acts, which the Davises could not control.
The jury was given a special verdict form and found as follows:
"1. Did Plaintiffs Michael and Fleeta Davis intend to transfer all of their ownership interest in the 114 East Hilldale property to Plaintiffs Stanley and Harriet VanReken by the execution of the warranty deed dated July 24, 1979?
" Yes
"2. Did Defendant Allstate Insurance Company have knowledge of the actual transfer of the 114 East Hill-dale property prior to the May 2, 1980 fire?
" Yes
"3. Did Defendant Allstate Insurance Company consent, in writing, to an assignment of the subject insurance policy from Plaintiffs Davis to Plaintiffs VanReken?
" No
"4. Is Allstate Insurance Company prevented from denying coverage for any reason based upon the facts in this case?
" Yes
"If your answer to Question No. 3 is 'yes’, skip Question No. 5 and proceed to Question No. 6.
"5. Did Plaintiffs Michael and Fleeta Davis breach their contract of insurance with the Allstate Insurance Company?
" No
"6. Did Plaintiffs Stanley and Harriet VanReken breach their contract of insurance with Defendant Allstate Insurance Company?
” No
"7. If you find for Michael and Fleeta Davis, what were there damages?
” $32,500.00
"8. If you find for Stanley and Harriet VanReken, what were their damages?
"$0"
Throughout the entire proceedings, Allstate consistently maintained that the Davises had no insurable interest beyond the mortgage obligation which had been satisfied. The trial court, however, repeatedly declined to determine the extent of the Davises’ insurance interest. On appeal, Allstate argues that the Davises’ insurable interest was limited to their financial stake in the property, in this case their $12,500 mortgage obligation and, hence, they were not entitled to recover in excess of their financial interest.
We agree with Allstate that Michigan law prohibits recovery on an insurance contract unless the beneficiary has an insurable interest in the subject of the policy. Agricultural Ins Co of Watertown, New York v Montague, 38 Mich 548, 551 (1878); Sun Life Assurance Co of Canada v Allen, 270 Mich 272; 259 NW 281 (1935). It is equally well-established that one’s insurable interest is not determined by the label attached to the insured’s property right, but rather by whether the insured will suffer a pecuniary loss as a result of the destruction of the property. Crossman v American Ins Co of Newark, NJ, 198 Mich 304; 164 NW 428 (1917). While our review of the record suggests that the Davises may have agreed to surrender any proceeds they receive from the insurance company to the VanRekens, this issue was not developed either at trial or on appeal. Rather, the evidence presented at trial established that the Davises’ interest in the property was their $12,500 personal liability on the mortgage obligation.
While generally we would agree that the Davises lacked an insurable interest beyond the mortgage obligation, the unusual facts presented in the instant case preclude us from deciding the case on this basis. The evidence presented at trial established that Allstate received notice of the purported assignment but failed to cancel. Furthermore, expert testimony established that, if an insurer refuses to accept an assignment it has only two alternatives: either cancel the contract or rewrite the policy to include the risk. Finally, not only did Allstate fail to execute either option, but it renewed the Davises’ policy even after informing the VanRekens of the rejection of the assignment.
Based on these facts the jury apparently concluded that the Davises, the named insureds, were entitled to recover under the terms of the insurance contract. In response to the special verdict form the jurors found that, although Allstate did not consent to the assignment, it had knowledge of the property transfer and was prevented from denying coverage. The jury’s verdict is supported by the evidence and we decline to reverse.
In addition, we note that our affirmance does not violate the public policy which underlies the "insurable interest” rule. "Policies of insurance founded upon mere hope and expectation and without some interest in the property, or the life insured, are objectionable as a species of gambling, and so have been called wagering policies.” Cross-man, supra, p 308. This policy has no application to the present case. Far from being a wagering contract, Allstate conceded that the Davises had an insurable interest of $12,500. In addition, as we earlier indicated, the record suggests that the Davises may actually have a pecuniary interest beyond the mere mortgage obligation.
Allstate also claims that, even if recovery is permitted, the jury award was excessive and Allstate’s motion for remittitur should have been granted. Allstate argues that, since the policy limit was $36,000, of which $12,500 had been paid to the mortgage company, the jury award should be reduced to $23,500.
This Court will reverse a trial judge’s decision to grant or deny remittitur only if there has been an abuse of discretion. Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm, 122 Mich App 699; 332 NW2d 474 (1983), lv den 417 Mich 1100.37 (1983). Remittitur should be granted when the verdict has been secured by improper methods, prejudice, or sympathy or where it is so excessive that it shocks the judicial, conscience. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 798; 369 NW2d 223 (1985); GCR 1963, 527.6, now MCR 2.611(E).
In the instant case, the parties stipulated during trial that the policy limit was $36,000 at the time of the fire. It is undisputed that Allstate paid the Davises’ $12,500 obligation on the mortgage note. The jury award of $32,500 combined with the $12,500 payment clearly exceeds the policy limit; hence, we conclude that remittitur should have been granted and the award reduced to $23,500. Gibson v Group Ins Co of Michigan, 142 Mich App 271; 369 NW2d 484 (1985).
Affirmed in part, reversed in part and remanded. | [
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Per Curiam.
Defendant was convicted following a jury trial of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.87; MSA 28.282, and first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). He appeals as of right.
According to the testimony at trial, the complainant finished her work shift at the U. S. Post Office in Lansing at 4:00 a.m. on November 26, 1983, and left for home. While driving in a rural area toward Mason in Ingham County, she noticed a car following closely behind her. She increased her speed to 80 to 85 miles per hour in an attempt to elude the vehicle. During this chase, the other car rammed the back of her car three or four times. She lost control of her car and spun off the road, finally coming to a halt 50 feet from the road in a field. At the same time a car turned about in a driveway and returned to her location.
A man, later identified as the defendant, exited from the car and approached the complainant. He grabbed her neck, choked her, stated that he was going to rape her and threatened to kill her.
The man pulled complainant into the back seat of the car and proceeded to commit various acts of criminal sexual conduct. After threatening to kill her, the man drove away in his car. The complainant sought assistance at a nearby farmhouse and was taken for a medical examination at Sparrow Hospital in Lansing.
I
Defendant’s first argument on appeal is that there was insufficient evidence of personal injury to the complainant to elevate the crime to criminal sexual conduct in the first degree. This claim is without merit.
In reviewing a claim based upon the sufficiency of the evidence, this Court must consider all the evidence in a light most favorable to the prosecution. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979). A verdict should be affirmed if a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. Id.
A person is guilty of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), if that person engages in sexual penetration of another through the use of force or coercion. This crime is elevated to first-degree criminal sexual conduct if force or coercion is used and the victim suffers personal injury. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). "Personal injury” is statutorily defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ”. (Emphasis added.) MCL 750.520a(j); MSA 28.788(1)(j).
In the case at bar, the prosecution contends that the act of criminal sexual conduct was elevated to criminal sexual conduct in the first degree by the bodily injury and mental anguish suffered by the complainant. We agree.
The record indicates that the choking of complainant left visible handprints which lasted several days and caused the complainant to have muscle spasms in her neck. A pelvic examination performed directly after the rape revealed that parts of complainant’s vaginal areas were swollen and torn and would take up to two weeks to heal. It was indicated that these tears were consistent with "very, very, very forceful intercourse”.
This evidence was adequate to sustain a first-degree criminal sexual conduct conviction on the theory of bodily injury. See People v Gwinn, 111 Mich App 223, 239; 314 NW2d 562 (1981), lv den 417 Mich 949 (1983); People v Hollis, 96 Mich App 333, 337; 292 NW2d 538 (1980); People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979), lv den 407 Mich 954 (1980).
Concerning the "mental anguish” factor, various panels of this Court have struggled to find a definition which would not render the statute impermissibly vague. Compare People v Gorney, 99 Mich App 199; 297 NW2d 648 (1980), lv den 410 Mich 911 (1981) (mental anguish must lie extreme) with People v Jenkins, 121 Mich App 195; 328 NW2d 403 (1982) (mental anguish must be significant). Recently, our Supreme Court in People v Petrella, 424 Mich 221, 257; 380 NW2d 11 (1986), settled the matter by holding that the term "mental anguish” under the statute means "extreme or excruciating pain, distress, or suffering of the mind,” and that this meaning does not render the term void for vagueness.
The Supreme Court also listed the following factors which may be considered in determining whether a victim has suffered mental anguish:
"(1) Testimony that the victim was upset, crying, sobbing, or hysterical during or after the assault.
"(2) The need by the victim for psychiatric or psychological care or treatment.
"(3) Some interference with, the victim’s ability to conduct a normal life, such as absence from the workplace.
"(4) Fear for the victim’s life or safety, or that of those near to her.
"(5) Feelings of anger and humiliation by the victim.
"(6) Evidence that the victim was prescribed some sort of medication to treat her anxiety, insomnia, or other symptoms.
"(7) Evidence that the emotional or psychological effects of the assault were long-lasting.
"(8) A lingering fear, anxiety, or apprehension about being in vulnerable situations in which the victim may be subject to another attack.
"(9) The fact that the assailant was the victim’s natural father.” 424 Mich 270-271.
The Supreme Court stressed that no single factor was controlling and that each case must be decided on its own facts. 424 Mich 270.
With these factors in mind, we note that, as a result of the rape, the complainant regularly saw a therapist and experienced marital problems. Further, she is fearful of working at night and relinquished her duties on the night shift, which resulted in a substantial pay cut. We hold that these manifestations of emotional trauma are sufficient to allow a rational trier of fact to find the element of "mental anguish” beyond a reasonable doubt.
Defendant also argues that the jury was incorrectly instructed as to the "mental anguish” element of personal injury. The trial court instructed the jury that:
"Mental anguish means any signiñcant degree of mental distress which has occurred as a result of the alleged incident.”
Defendant contends that the correct definition of mental anguish persuant to People v Simpson, 132 Mich App 259, 265; 347 NW2d 215 (1984), rev’d 424 Mich 221; 380 NW2d 11 (1986), is that mental anguish must be extreme or serious, which is defined as "any significant degree of mental distress greater than that normally attendant to criminal sexual assaults accomplished by force or coercion.”
Defendant’s argument is without merit. People v Simpson, supra, was reversed in the same decision as People v Petrella, supra. Moreover, the Supreme Court expressly disapproved of the above quoted language. We note that under People v Petrella, supra, the instruction that was given by the trial court was erroneous, but we conclude that the error did not prejudice the defendant. We have reviewed the evidence in a light most favorable to the prosecution and determine that a rational trier of fact could find the element of mental anguish as defined in People v Petrella, supra, beyond a reasonable doubt.
II
Defendant’s second argument is that his two convictions violate his right against double jeopardy. We disagree.
Both the federal and Michigan constitutions protect against multiple prosecutions and multiple punishments for the same offense. "The double jeopardy prohibition does not operate to bar the prosecution of two dissimilar offenses that occur at different times.” People v Richard Johnson, 94 Mich App 388, 391; 288 NW2d 436 (1979). See also People v Noth, 33 Mich App 18; 189 NW2d 779 (1971). There is no violation based on double prosecution if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other. People v Johnson, supra; People v Jones, 75 Mich App 261, 270-271; 254 NW2d 863 (1972).
In the case at bar, the defendant was tried and convicted of assault with intent to commit criminal sexual conduct involving penetration on the basis of the acts which occurred during the car chase which resulted in the complainant’s loss of control of her car. The series of events arising after complainant’s car came to rest was the basis of defendant’s conviction for criminal sexual conduct in the first degree.
Unlike the first-degree criminal sexual conduct offense, the assault offense requires proof of specific intent. People v Love, 91 Mich App 495; 283 NW2d 781 (1979). While defendant’s intent to commit sexual penetration was not verbalized until he began the second assault on the complainant, the jury could have found that the intent was manifested prior to that time although its true purpose was not yet evident. Therefore, we conclude that the first assault involving the vehicles was completed before the criminal sexual conduct offense began. Since each offense occurred separately, defendant was not subject to double jeopardy.
Defendant also argues that the information was defective because he was charged under MCL 750.87; MSA 28.282, the general assault with intent to commit a felony statute, and not under the specific statute, assault with intent to commit criminal sexual conduct involving penetration. MCL 750.520g(1); MSA 28.788(7)(1). This issue was not raised below.
An information cannot be challenged for the first time on appeal absent a miscarriage of justice. People v Hernandez, 80 Mich App 465, 467-469; 264 NW2d 343 (1978), lv den. 406 Mich 938 (1979); MCL 769.26; MSA 28.1096.
In the instant case, defendant does not allege that he did not know what felony the assault charge was based on. Moreover, the crimes under both statutes are punishable by not more than ten years imprisonment. Therefore, we find no miscarriage of justice and will not review the issue further.
III
At trial, it was established that a piece of plastic found at the scene of the crimes fit into a hole in the parking light of defendant’s car. Laboratory tests also confirmed that the plastic came from defendant’s car. Defendant now argues that the trial court erred in admitting this evidence at trial. Defendant claims that the parking light was seized pursuant to a consent form which defendant was coerced into signing by a threat which implied that a serach was inevitable. See United States v Boukater, 409 F2d 537, 538 (CA 5, 1969); United States v Faruolo, 506 F2d 490, 493-494 (CA 2, 1974); United States v Agosto, 502 F2d 612, 614 (CA 9, 1974).
From the record it is apparent that defendant twice consented in writing to have his car searched. The first time was on December 16, 1983, when defendant accompanied Detective Stephen McGuire to the police station for questioning and the car was towed to the police station. Between December 16 and December 19, 1983, Officer McGuire inspected defendant’s car to see if a plastic car part found at the scene of the crimes could have come from defendant’s car. The piece of plastic fit into a hole in the parking light. The officer then amended the consent form to include "other parts being necessary for investigative purposes”. Defendant signed this amended form, which we refer to as the "second consent”. Pursuant to an evidentiary hearing, the trial court ruled that the second consent was knowingly, voluntarily and intelligently made and denied suppression of this evidence.
In People v Brown, 127 Mich App 436, 440-441; 339 NW2d 38 (1983), lv den 419 Mich 896 (1984), this Court summarized the law concerning consensual searches:
"Individuals are constitutionally protected from being subjected to unreasonable searches and seizures. All evidence obtained in violation of this protection is inadmissible in a state court. A warrantless search and seizure is per se unreasonable unless shown to fall within one of the various exceptions to the warrant requirement. Consent is one such exception. When consent is alleged, the burden is on the prosecution to prove by clear and positive evidence that the consent was unequivocal and specific, freely and intelligently given. Whether a consent is valid is a question of fact to be decided upon the evidence and all reasonable inferences drawn from it. The totality of the circumstances must be examined. The prosecution need not demonstrate that the defendant had knowledge of the right to refuse to allow the search. Rather, such knowledge is but one factor to be considered in a suppression hearing. Conduct itself can, under proper circumstances, be sufficient to constitute consent.
"A trial court’s conclusion following a suppression hearing will not be overturned unless that conclusion is found to be clearly erroneous. * * * A ruling is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made.” (Citations omitted.)
Applying this standard to the instant case, we do not find that the court clearly erred in denying defendant’s motion to suppress.
Officer McGuire testified that defendant appeared to consent to the second search. The consent form expressly printed the rights defendant was waiving and these rights were read to the defendant. The officer denied threatening that he would strip defendant’s car or that there would remain no residual value to the car if defendant did not sign the form.
Office Wheeler, who was also present during the execution of the second consent, corroborated this testimony. Wheeler testified that at first defendant agreed to sign the consent form, changed his mind, then changed his mind again to sign the form. The last change was influenced by McGuire’s indication that if defendant did not sign the form, McGuire would proceed to get a search warrant. McGuire said the consent was just to expedite the search.
Defendant testified that he was in jail and had just been awakened from sleep to sign the amended form. He claimed that he did not really understand the form and was sleepy and not properly functioning. At the time, defendant had not had the opportunity to speak with an attorney. Defendant testified:
"When I read the additional parts where it says 'other parts as deemed necessary for investigative purpose,’ I asked him, 'What’s that mean?’ And he [Officer McGuire] says, 'It means I can take any parts off your car I want.’
"I said, 'Then you can strip my car so it’s worth nothing to me if I have to sell it to pay for lawyer fees?’ And he [Officer McGuire] says, 'If you don’t sign it, I’ll go to the magistrate, get a search warrant through him and I will strip your car and it will be worth nothing.’ ”
After McGuire’s response, defendant signed the consent form. On cross-examination, defendant was asked:
”Q. Did you understand that you had a constitutional right to refuse to allow a search without a valid search warrant?
"A. I had nothing to hide so I signed it.”
Defendant claimed that the officer had him put December 19 on the form although the actual date was December 17. Defendant admitted that, although he had not carefully read the waiver language the second time, he had read it on December 16. Defendant further conceded that he agreed to allow the police to take photographs and paint samples or anything else on the outside of the vehicle, but that his only objection concerned evidence obtained from the interior of the vehicle.
Under these facts, the trial court held that the second consent was knowingly and voluntarily given. The trial court recognized its duty to determine credibility and found defendant’s testimony to be unworthy of belief. It was the trial court’s opinion that this issue only became of significance to defense counsel when he learned from the prosecutor’s opening statement about the testimony of the lab expert. This observation, combined with the fact that defendant admitted he had no objection to evidence seized from outside the car, persuades us that the trial court’s determination of credibility should not be overturned.
IV
Defendant’s final contention is that the admission of testimony concerning blood typing and glass and paint comparisons was error. Defendant does not challenge the admission of this evidence on the basis that it was obtained through a scientifically unreliable method. See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923). Rather, defendant objects to the admission of this evidence because the inconclusive results allegedly led to speculation and therefore prejudiced defendant’s case.
To support his contention, defendant relies upon the reasoning of People v Sturdivant, 91 Mich App 128, 131, 134; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979), wherein this Court held that blood-typing evidence showing that the accused was included within a class of possible defendants without connecting him in any way to the charged offense had no probative value and its admission was error. We note that several subsequent decisions of this Court conflict with Sturdivant’s holding and would admit such evidence to show possible connections between a defendant and the criminal act. See People v Horton, 99 Mich App 40; 297 NW2d 857 (1980), vacated and remanded on other grounds 410 Mich 865; 301 NW2d 775 (1980); People v White, 102 Mich App 156; 301 NW2d 837 (1980); People v Goree, 132 Mich App 693; 349 NW2d 220 (1984); People v Camon, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982); People v Eaton, 114 Mich App 330; 319 NW2d 344 (1982), lv den 417 Mich 929 (1983); People v Traylor, 145 Mich App 148; 377 NW2d 371 (1985).
We further note that the viability of Sturdivant’s position is dependent upon the Supreme Court’s ultimate decision in People v Young, 418 Mich 1; 340 NW2d 805 (1983), which at the time of this writing is yet forthcoming.
In the present case, we conclude that, even if the admission of this testimony was error, it was harmless beyond a reasonable doubt. It is clear from the record that defendant was convicted upon the strength of the complainant’s identification of both defendant and his vehicle, identifications which were supported by the testimony that a piece of plastic found on the scene conclusively came from the parking light of defendant’s car. This evidence, if believed, was sufficient evidence to convict. Therefore, this issue does not compel reversal.
Affirmed.
US Const, Am V and Am XIV.
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Per Curiam.
Defendant is plaintiffs’ former employer. Plaintiffs’ employment was terminated on October 13, 1977, for falsification of payroll records without plaintiffs’ having an opportunity to express themselves to their superiors except in writing. Plaintiffs sued for breach of an implied contract which plaintiffs asserted provided that they would not be discharged without just cause. Defendant’s motion for summary judgment under GCB 1963, 117.2(3) was denied. Defendant’s motion for a directed verdict at the close of the plaintiffs’ proofs was also denied. The jury found for plaintiffs in the amount of $10,000 for Gloria Ford, $6,625 for Marion Thomas and $5,930 for Doris Hill. The trial court denied defendant’s motion for judgment notwithstanding the verdict. Defendant appeals the denial of these motions. We find that the trial court improperly denied defendant’s motion for directed verdict at the close of plaintiffs’ proofs, and reverse.
"This Court’s review of a denial of a motion for directed verdict is limited to whether the party opposing the motion offered evidence upon which reasonable minds could differ. Perry v Hazel Park Harness Raceway, 123 Mich App 542, 549; 332 NW2d 601 (1983). The test is whether, viewing the facts in a light most favorable to plaintiff, reasonable persons could reach a different conclusion. If so, the case is properly one for the jury. Plaintiff must be given the benefit of every reasonable inference that could be drawn from the evidence. Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223, 229; 123 NW2d 768 (1963). The same standard of review applies where a motion for judgment notwithstanding the verdict has been denied. Anderson, supra; Goins v Ford Motor Co, 131 Mich App 185, 191- 192; 347 NW2d 184 (1983).” Jenkins v American Red Cross, 141 Mich App 785, 792; 369 NW2d 223 (1985).
In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598-599; 292 NW2d 880 (1980), the Supreme Court held:
”1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term — the term is 'indefinite,’ and
"2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements.”
The Court also held:
"Employers are most assuredly free to enter into employment contracts terminable at will without assigning cause. We hold only that an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Toussaint, supra, p 610.
Plaintiffs in this case admitted that they had no contract of employment with defendant. There were no written or oral assurances to them as to job security or length of employment. In fact, the employee handbook specifically provided that employees could be terminated "at any time and for any reason”.
Plaintiffs did not testify that they believed defendant needed just cause to terminate an employee. They did testify that, because of experience with others who had been terminated for poor performance or absenteeism, they expected an "exit interview” giving the employee a chance to tell his or her side of the story. Such an exit interview is provided in the employee handbook. Plaintiffs’ entire claim that defendant could only terminate them for just cause rests on this procedure.
Since there is no express agreement to terminate only for cause, plaintiffs can prevail only if statements of company policy and procedures to that effect have given rise to such rights. Toussaint, supra. We find no basis for such a conclusion in the present case.
The policy stated in the handbook clearly enunciated an "at will” relationship. Therefore, if plaintiffs are to recover, there must be evidence of a contract implied in fact sufficient to overcome the statement in the handbook that employees could be released for any reason at any time.
"A contract implied in fact arises under circumstances which, according to the ordinary course of dealing and common understanding, of men, show a mutual intention to contract. In re Munro’s Estate (1941), 296 Mich 80. A contract is implied in fact where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Miller v Stevens (1923), 224 Mich 626.” Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211-212; 180 NW2d 798 (1970).
The requirements for an employment contract implied in fact were discussed in Schwartz v Michigan Sugar Co, 106 Mich App 471, 477-478; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982):
"[A]n employer’s conduct and other pertinent circumstances may establish an unwritten 'common law’ providing the equivalent of a just cause termination policy. Rules and understandings, promulgated and fostered by the employer, may justify a legitimate claim to continued employment. Toussaint, supra, 617-618, quoting Perry v Sindermann, 408 US 593, 601-603; 92 S Ct 2694; 33 L Ed 2d 570 (1972). Nonetheless, a mere subjective expectancy on the part of an employee will not create such a legitimate claim. Perry, supra. ”
In Schwartz, this Court found summary judgment appropriate because plaintiffs claim was based solely on subjective expectations rather than "a common understanding or mutual intent to contract that employment be continuing but for cause”. 106 Mich App 478. In Longley v Blue Cross & Blue Shield of Michigan, 136 Mich App 336, 341; 356 NW2d 20 (1984), this Court held that "an employee’s admission that she knew that she could be dismissed with or without cause logically and legally precludes her from maintaining that she had any expectation, legitimate or otherwise, or termination only for cause”.
In the present case, such a contract must be implied, if at all, entirely from the fact that the employer chose to give employees an opportunity to be heard rather than terminate them arbitrarily. Such an opportunity is something that any employee may expect, regardless of the nature of the employment contract. The fact that the employer chooses to codify it cannot, in and of itself, transform the "at will” contract into a contract with a "just cause” termination provision. It is as consistent with one as with the other, and is, therefore, not evidence to justify a legitimate expectation in employees that they had a "just cause” termination provision. That being the only basis for plaintiffs’ claim, giving the benefit of every reasonable doubt to plaintiffs, we find no evidence that could create a legitimate expectation on the part of the plaintiffs that the employer agreed to discharge them for just cause only. Consequently, we are persuaded that defendant’s motion for a directed verdict should have been granted.
Reversed and remanded for entry of a directed verdict in defendant’s favor. | [
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Per Curiam.
Plaintiff, Gerald DeGrace, appeals as of right from a May 13, 1985, circuit court order granting defendants’ motions for summary judgment under MCR 2.116(C)(10). DeGrace asserts that the trial court erred in holding that defendants are not compelled by law, MCL 38.511(b); MSA 5.3361(b), to fill the vacant position of Shelby Township chief of police. We disagree and affirm the circuit court.
Background
On June 29, 1983, the Shelby Township Police and Fire Civil Service Commission established an eligibility list for the rank of police chief. DeGrace was tested for the position and obtained the first position on the list. In 1983, the position of police chief became vacant. In November of 1983, Shelby Township Supervisor White, the appointing authority for the civil service positions, requested the commission to establish a list of eligibles for the positions of Chief of the Fire Department and Chief of the Police Department.
With respect to the police chief eligibility list, Supervisor White wrote the commission and requested:
"Please inform me at your earliest convenience the name or names under Act 78 [MCL 38.501 et seq.; MSA 5.3351 et seq.] who may be certified, at this time, to the appointment of the Chief of Police position of Shelby Township.”
At the Shelby Township board of trustees meeting on November 1, 1983, the board voted to abolish the vacant positions of police chief and fire chief and substitute a position of director of public safety. This action was a nullity because it did not conform with MCL 42.9; MSA 5.46(9), the charter townships act.
At its next meeting, the commission refused to certify the list of eligibles for the police chief position. The various parties involved sought legal advice. DeGrace filed suit against the commission on December 19, 1983, seeking a writ of mandamus and superintending control declaring his appointment to the police chief position. The complaint was later amended to add the board and its members as defendants.
The defendants answered that filling the police chief vacancy is discretionary with the board, under MCL 42.12; MSA 5.46(12). The defendants also filed counterclaims seeking a declaratory judgment that the township’s abolition of the police and fire chief positions and substitution of a public safety director was valid.
On March 20, 1984, the board, with the recommendation of Supervisor White, again voted to abolish the positions of police chief and fire chief and asked the commission to set up requirements for testing for a public safety director.
All three parties subsequently filed motions for summary disposition; the board filed on September 5, 1984, under GCR 1963, 116.1(2), now MCR 2.116(C)(4), and GCR 1963, 117.2(1), now MCR 2.116(C)(8); the commission filed on October 1, 1984, under GCR 1963, 116.1(2) and (3), now MCR 2.116(C)(4) and (5), and GCR 1963, 117.2(1), now MCR 2.116(C)(8); and DeGrace filed on December 11, 1984, apparently under GCR 1963, 117.2(3), now MCR 2.116(C)(10). The parties filed numerous briefs in support of their positions, and oral argument was heard on January 2, 1985.
On April 24, 1985, the circuit court issued its opinion considering the parties’ motions. The court found that there was no dispute as to material facts, and granted summary judgment in favor of defendants under MCR 2.116(0(10). The court held:
"This Court is satisfied that defendants’ position is correct. This Court agrees with the Court of Appeals in Small v Saginaw City Manager, 39 Mich App 418, 423; 197 NW2d 850 (1972), that the clear import of MCL 38.511(b) is that the appointing oificer need fill only those positions which he desires to fill. When Small, supra, is read with Charron v Hanus, 44 Mich App 217; 205 NW2d 90 (1972), it is clear that the appointing oificer retains discretion not to fill Civil Service positions for reasons in the public interest.
"The Court is convinced that Supervisor White did not lose his discretion to decline to appoint to the position merely by requesting certification of an eligibility list. Until he actually exercises his authority to appoint, the appointing authority is not under a clear legal duty to fill any position. Since it is clear on this record that Supervisor White did not exercise his authority to appoint to the position, plaintiff’s claims suffer from a deficiency which is impossible to overcome.”
Because this determination was dispositive, the circuit court did not consider defendants’ counterclaims. The order dismissing DeGrace’s suit was entered on May 13, 1985._
Discussion
Plaintiff DeGrace contends on appeal that when an appointing authority requests a certified list of eligibles pursuant to MCL 38.511(b); MSA 5.3361(b), for the purpose of filling a vacant position, the appointing authority cannot subsequently refuse to fill that vacancy.
Section 11 of 1935 PA 78, the police and fire civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq., provides:
"(b) Every position, unless filled by reinstatement, shall be filled only in the following manner: The appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, make the appointment so certified. As each subsequent vacancy occurs, precisely the same procedure shall be followed. When an appointment is made under the provisions of this section, it shall be, in the first instance for the probationary period, as provided in this act. The term 'appointing officer’ as used in this act shall be construed to mean the mayor or principal administrative or executive officer in any city, village or municipality.” MCL 38.511(b); MSA 5.3361(b). (Emphasis added.)
Plaintiff DeGrace maintains that the language of § 11(b) mandates that, upon requesting a certification of eligibles and receiving the list of certified names, an appointing officer "shall * * * make the appointment so certified”, i.e., the officer must fill the vacancy. DeGrace further argues that since, in the instant case, Supervisor White was initially frustrated in his attempt to obtain a certified eligibility list, actual receipt of the list or certified name was not required to trigger the statutory requirement that White fill the position.
This Court has previously answered plaintiff DeGrace’s argument in the negative in Small v Saginaw City Manager, 39 Mich App 418; 197 NW2d 850, lv den 387 Mich 797 (1972). In Small, the plaintiff police officer asserted that the city manager could not delay appointment to a police lieutenant position until a new eligibility list was available. This Court held that the language of § 11(b) allowed the city manager to wait to fill the position. DeGrace argues that the Small decision is inapplicable here, because the question in the instant case is not mere delay but outright refusal to fill a vacant position. However, the basis for the Small holding is broader than the facts in Small, and squarely answers DeGrace’s contention:
"[W]e must give effect to the clear and unequivocal language of MCLA 38.511(b), supra, that 'every position * * * shall be filled only’ in the manner set forth in that section. MCLA 38.511(b), supra, is equally clear that 'the appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill’. The clear import of the section is that the appointing officer need fill only those positions which he desires to fill. Since the term 'appointing officer’ as used in the act means the mayor or principal administrative officer of the city, such a reading of MCLA 38.511(b), supra, is consistent with the power of said officer to revise, alter, and reconstruct departments, including the abolition of positions, in furtherance of the public interest. Savage v City of Detroit, 190 Mich 144 (1916); Fricke v City of Grand Rapids, 278 Mich 323 (1936); Cicotte v Damron, 345 Mich 528 (1956); Thorne v Nicholson, 32 Mich App 223 (1971).
"Since MCLA 38.511(b), supra, is controlling with respect to the manner in which vacancies are to be filled, the phrase 'whenever a position becomes vacant’ as found in MCLA 38.512(b), supra, must be read to mean 'whenever a position which the appointing officer desires to fill, becomes vacant’.
"There being no clear duty on the part of the city manager of Saginaw to fill the vacancy, mandamus was properly denied * * *.” 39 Mich App 422-423.
We agree with and follow the Small decision which we hold is also in agreement with the Attorney General’s longstanding position that § 11(b) does not compel the filling of a vacancy. 2 OAG 1958, No 3902, p 22 (January 22, 1958).
Plaintiff DeGrace also relies on Killingsworth v Police and Fire Dep’t Civil Service Comm, 12 Mich App 340; 162 NW2d 826 (1968), for his proposition that once a request for a list is made, appointment to a vacancy is mandatory. The Killingsworth Court held:
"The sense of 11(b) is that the appointing officer notifies the civil service commission of a vacancy and asks for certification -of eligibles. The commission then certifies from the eligible list the person who has received the highest average at the competitive examination with a period of two years next preceding the date of appointment. The appointing officer is then under the clear mandate of the statute to appoint ’with sole reference to the relative merit and ñtness of the candidate/ The appointment is probationary for six months.” 12 Mich App 348 (Emphasis added.)
DeGrace argues that Killingsworth set forth a "clear mandate” that a vacancy be filled. However, this language in Killingsworth merely states that there is a clear mandate to appoint with reference to the candidates’ merits, not that there is a clear mandate to appoint.
Finally, plaintiff DeGrace challenges the circuit court’s reliance on Charron v Hanus, 44 Mich App 217; 205 NW2d 90 (1972). In Charron, this Court construed § 13 of 1941 PA 370, the county employee civil service act, MCL 38.401 et seq.; MSA 5.1191(1) et seq., which provides a procedure similar to that of § 11 of act 78 for appointment to vacancies in the competitive civil service, except that § 13 of act 370 provides for the certification of an appointment of one of three candidates highest on the eligibility list. MCL 38.413; MSA 5.1191(13). This Court in Charron found that this similar provision did not mandate appointment. Once the eligibility list was presented to the appointing authority it could either make an appointment from those three candidates or could refuse to fill the position. Charron, supra, pp 220-221.
In order to distinguish Charron, supra, plaintiff DeGrace argues that the enhanced public interest in having police and fire protection unfettered by political considerations compels a different construction of § 11 of act 78. However, the declared legislative purposes of act 78, the police and fire civil service act, and act 370, the county employee civil service act, are virtually identical: to provide civil service systems where employees are selected based solely upon merit. MCL 38.401; MSA 5.1191(1); preamble to 1935 PA 78; Valentine v Redford Twp Supervisor, 371 Mich 138, 144; 123 NW2d 227 (1963); Day v Gerds, 54 Mich App 547, 550; 221 NW2d 221 (1974). There is nothing in the legislation to suggest that the integrity and political independence of police officers and firefighters is any more or less important than that of other civil service employees entrusted with public duties.
We hold that, although act 78 requires that all vacant police and firefighter positions be filled with sole regard to the properly assessed merits of the candidates, it contains no requirement that a vacancy be filled. An appointing authority may properly decide that it is not in the public interest to fill a position. Mandamus does not lie to compel the addition of unwanted and unnecessary employees to the public payroll. Small, supra, p 423; cf., Charron, supra, p 220.
Affirmed.
Hybrid motions for "accelerated judgment and for summary judg ment” as were brought by the defendants are not looked upon favorably. Ceplin v Bastian-Blessing Division of Golconda Corp, 90 Mich App 527, 530; 282 NW2d 380 (1979). Plaintiff DeGrace, however, did not object to the wording of the defendants’ motions or the specific basis for the trial court’s order of summary judgment, nor does he raise this issue on appeal. | [
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] |
T. Roumell, J.
Defendant appeals as of right from his February 4, 1985, bench conviction of felonious assault, MCL 750.82; MSA 28.277. Defendant was sentenced on March 8, 1985, to incarceration in the county jail for a term of one year with credit for time served.
On the evening of April 13, 1984, the complainant was doing art work in her dormitory room located on the campus of Eastern Michigan University in Ypsilanti. At approximately 9:05 p.m., defendant entered her room through the open door. When the complainant noticed defendant and asked him what he was doing, he began to pull a pellet gun from underneath his jacket. When the complainant tried to grab the gun in an attempt to force it back into his jacket, defendant overpowered her, drew the gun and pointed it at her. Defendant pushed the complainant and she fell into the bathroom and slammed the door shut. She braced herself against the door and screamed for help.
Kellie Hiller was across the hall in another room when she heard screaming. She went into the hallway, where she saw defendant running from the complainant’s room. Hiller chased defendant until she cornered him, but he pushed her away, drew the gun and aimed it at her. Hiller remained motionless until he fled.
Shortly after the assault, the police apprehended defendant in a local store. At the time of his arrest, defendant possessed a sawed-off Crossman Model 180 pellet gun, loaded with a live .22-caliber bullet. The complainant sustained a scratch on her hand and several bruises as a result of the assault.
At the preliminary examination on April 25, 1984, defendant was bound over to circuit court on a charge of felonious assault. Defendant subsequently filed a motion to quash the information, contending that the prosecutor failed to establish that the gun was a dangerous weapon since it was inoperable at the time of the assault. The circuit court remanded the case to district court for further testimony on the operability of the weapon. At the subsequent preliminary examination held on October 10, 1984, the only witness presented was Detective David Balash, a firearms expert with the Michigan State Police.
Detective Balash testified that he had tested the gun to determine its operability. He stated that the gun was designed to fire .22-caliber pellets and that he determined after testing the gun that it was operable to discharge .22-caliber pellets. He further testified that the pellet gun would be capable of firing a live .22-caliber bullet. He explained that the bore of the gun would accommodate a .22-caliber bullet and that if a person slid the gun’s bolt forward with enough velocity the bolt would strike the rim of the bullet’s cartridge, which was coated with a priming compound, and would detonate the bullet. He opined that this force could cause an explosion which would rupture the gun and discharge the bullet. He did not attempt to fire a .22-caliber bullet for safety reasons. Based upon this testimony, the district court concluded that the pellet gun was a dangerous weapon.
At the bench trial on February 4, 1984, the parties stipulated to the admission of the transcripts of both preliminary examinations and the police report. Defendant was the only witness, and testified that the bullet was jammed in the gun, making the gun inoperable. The circuit court con- eluded that the pellet gun was a dangerous weapon capable of propelling or exploding a bullet and found defendant guilty as charged.
The sole issue on appeal is whether the pellet gun was operable at the time of the assault, and thus a dangerous weapon for purposes of the felonious assault statute, MCL 750.82; MSA 28.277.
In People v Vaines, 310 Mich 500, 505-506; 17 NW2d 729 (1945), our Supreme Court noted the distinction between weapons which are dangerous per se and those articles and instruments which become dangerous only when they are used as weapons, a distinction first made in People v Goolsby, 284 Mich 375, 378; 279 NW 867 (1938). The Vaines Court stated that daggers, metallic knuckles, pistols and similar articles, designed for the purpose of bodily assault or defense, are generally recognized as dangerous weapons per se. Vaines, supra, p 505.
In People v Stevens, 409 Mich 564; 297 NW2d 120 (1980), our Supreme Court reversed the Court of Appeals determination that a completely inoperable pistol could constitute a dangerous weapon so as to support a conviction of felonious assault. The Stevens Court turned to the definition of a firearm contained in MCL 8.3t; MSA 2.212(20) which provides:
"The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, * *
In Stevens, the defendant committed an assault with the use of a starter pistol loaded with eight .22-caliber shells. However, the pistol could not fire because the firing pin had been filed down to prevent firing and the barrel was bored out. Because the gun was incapable of firing a projectile, the Stevens Court concluded that it was not a dangerous weapon.
In People v Doud, 223 Mich 120, 128-129; 193 NW 884 (1923), our Supreme Court held that the prosecution is not required to show that a revolver is, in fact, loaded when a defendant is charged with felonious assault.
Under these authorities, defendant’s pellet gun could be considered a dangerous weapon if it had been properly loaded with a .22-caliber pellet or if it had been unloaded. We conclude that the pellet gun was a dangerous weapon, because expert testimony established that it was operable when loaded with the proper ammunition and that it was capable of propelling the live .22-caliber bullet with the added danger of rupturing the gun. This is not a gun which was so out of repair or plugged that it was incapable of firing a shot. Compare, CJI 17:4:05.
Our decision is not affected by Detective Ba-lash’s testimony that the gun did not hold the .22-caliber bullet when he received it. Apparently, the bullet was removed earlier. The record does not disclose who removed it or when it was removed. We are convinced that this fact would not affect the operability of the gun or the testimony of Detective Balash.
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T. M. Burns, J.
Plaintiffs Leon and Lula Pettis commenced this products liability action against defendant Nalco Chemical Company seeking to recover damages for injuries suffered by Leon when he was splashed with molten steel while performing his job for Jones & Laughlin Steel, Incorporated, in Warren. The case was tried by jury. At the close of plaintiffs’ proofs, defendant moved for a directed verdict. The trial court took the motion under advisement. The jury thereafter returned a verdict in favor of plaintiffs for $757,-558. The trial court subsequently granted defendant’s motion for a directed verdict and entered a judgment of no cause of action. Plaintiffs appeal as of right and defendant has filed a cross-appeal, raising several issues to be addressed in the event that the trial court’s reasoning does not support the grant of a directed verdict.
Plaintiff Leon Pettis was a member of a team of four or five workers who were responsible for preparing and pouring molten steel into each of six molds. Each mold was approximately six feet tall, three feet long and two feet wide. The first four molds were filled without incident, but during the filling of the fifth mold, molten steel exploded out of the mold and seriously burned plaintiff and three other workers.
All of the witnesses agreed that the explosion was due to moisture in the mold. Because the molten steel is. heated to a temperature of about 2,900 to 3,000 degrees, any moisture which comes into contact with it turns very quickly into steam and hydrogen. The tremendous increase in volume when the moisture changes into a gaseous state causes an explosion.
Plaintiff theorized that the explosion was caused by wet Nalcosil in the mold. Nalcosil is a refractory manufactured by defendant. It is used to coat the inside of the mold to protect the mold and to make it easier to separate the ingot from the mold. It is composed of fine sand and water. It also contains methanol to keep it from freezing in the winter. The proper procedure for application of Nalcosil was apparently to spray it on the surface of a warm mold. The water would then evaporate and the silica sand, which is inert at the temperature to which the steel is heated, would remain to protect the mold. It was common knowledge among the workers that moisture in the mold would cause an explosion when the molten steel was poured. All of the employees who testified, including Leon Pettis, were well aware that Nalcosil was not to be applied to a cold mold because it might not dry and the moisture in it would cause an explosion when the steel was poured in.
While the Nalcosil was supposed to be sprayed on, the workers at Jones & Laughlin sometimes poured it on from a five-gallon bucket when the spray gun was clogged. None of the witnesses who testified knew who had applied the Nalcosil or, in fact, whether it actually had been applied on the date of the incident.
The central issues at trial were (1) whether Nalcosil had been applied to the mold; (2) if it had, whether it was the cause of the explosion; and (3) whether defendant should have put a warning label on the Nalcosil container. Plaintiff contended that defendant should have warned of the dangers associated with Nalcosil, including dangers resulting from improper application, and that defendant should have provided directions as to the proper method of application. The trial court’s grant of a directed verdict was based on its finding in relation to the second issue, i.e., that plaintiffs had not proven that Nalcosil was the cause of the explosion.
The standards for directing a verdict are well established. Whenever a fact question exists upon which reasonable persons may differ, the trial judge may not direct a verdict. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Conversely, when no fact question exists, the trial judge is justified in directing a verdict. Id. In deciding whether or not to grant a motion for a directed verdict, the trial judge must accord to the nonmoving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the nonmoving party. Id. If the evidence, when viewed in this manner, establishes a prima facie case, the motion for a directed verdict must be denied. Id.
In order to recover on a failure to warn theory, a plaintiff must prove each of the four elements of negligence: (1) that defendant owed a duty to plaintiff; (2) that defendant violated that duty; (3) that defendant’s breach of duty was a proximate cause of damages suffered by plaintiff; and (4) that plaintiff suffered damages. Warner v General Motors Corp, 137 Mich App 340, 348; 357 NW2d 689 (1984), lv den 422 Mich 852 (1985). The trial court found that plaintiff had presented sufficient evidence to create a question for the jury with respect to defendant’s duty to warn. The court also concluded that, viewed in a light most favorable to the plaintiff, the evidence would support a finding that Nalcosil was used in the mold in question. Nevertheless, the court concluded that a directed verdict should be granted because the testimony indicated that Nalcosil could not have caused the explosion. The trial court referred to plaintiff Leon Pettis’s own testimony wherein he indicated that there may have been a five-minute delay between the initial reaction and the later explosion. The trial court concluded that plaintiffs’ expert testimony indicated that Nalcosil could not have been the cause of the explosion with such a lengthy time delay. We disagree with the trial court’s conclusions.
Plaintiff testified that when the pourer began pouring steel into the fifth mold, he heard a crackling and popping which indicated that the mold was wet. The pourer slowed or stopped the stream of steel for "something like” five minutes and then continued pouring. When the mold was one-third or two-thirds full, the steel exploded out of the mold.
Plaintiff also presented the expert testimony of Dr. Charles Nagler, a metallurgical engineer. He testified that delayed reaction explosions could occur. A delayed reaction could result because of a chilling of the metal after an initial explosion when the metal is first splashed into the mold, and a further evaporation of moisture and explosion when more molten steel is poured into the mold. On cross-examination, Nagler stated that the reaction with Nalcosil would be immediate or over a short period of time and that an explosion would take place "in terms of seconds”. He stated that there could not have been a five-minute delay. However, on redirect examination, Nagler testified that if Nalcosil had been applied by a bucket, there could have been an initial popping caused by an early evaporation and a slight delay before the explosion, during which time moisture puddled at the bottom of the mold would expand and lift the overlying metal as it worked its way out of the mold. That delay could take until the mold was about one-third full.
From this evidence, a jury could conclude that plaintiffs have established the causation element of their prima facie case. According to plaintiff, the mold may have been one-third full when the steel exploded. The expert witness testified that the delayed reaction explosion could have been delayed until the mold was about one-third full. Thus, Nalcosil in the mold could have caused the explosion. While there were possible inconsistencies in both witnesses’ testimony, such inconsistencies are best resolved by the trier of fact. The trial court erred by granting a directed verdict in favor of defendant on causation grounds.
Defendant raises several issues on cross-appeal, contending that a directed verdict or a judgment notwithstanding the verdict should have been granted on other grounds. We note that the standard of review for a judgment notwithstanding the verdict is similar to that for a directed verdict. In reviewing the denial of a motion for a judgment notwithstanding the verdict, this Court must give the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If reasonable minds could honestly disagree as to whether plaintiffs have satisfied their burden of proof, judgment is improper and the question is to be resolved by the trier of fact. In re Brack Estate, 121 Mich App 585, 588; 329 NW2d 432 (1982); Wilson v Chesapeake & O R Co, 118 Mich App 123, 133; 324 NW2d 552 (1982), lv den 417 Mich 1044 (1983).
Defendant first argues that it had no duty to provide a warning to Leon Pettis or to the other employees of Jones & Laughlin. We disagree. A manufacturer’s duty is not just to use reasonable care in the design and manufacture of a product. A manufacturer may have a duty to warn even though a product is perfectly made. A manufacturer is liable in negligence for a failure to warn the purchasers or users of its product about dangers associated with intended uses and also foreseeable misuses. Antcliff v State Employees Credit Union, 414 Mich 624, 637-638; 327 NW2d 814 (1982). A manufacturer’s standard of care includes the dissemination of information, whether styled as warnings or instructions, as is appropriate for the safe use of its product. Id. Such required information must be adequate, accurate, and effective. Id. However, there is no duty to warn or protect against dangers which are obvious to all. Fisher v Johnson Milk Co, Inc, 383 Mich 158, 160; 174 NW2d 752 (1970).
It is well-settled law that the question of duty is to be resolved by the court rather than the jury. Antcliff, supra, p 640. We find that defendant owed a legal duty to provide warnings with its product. While Nalcosil is not classified as a "chemical” by the company, it is not a simple substance which is used in every day life. It is specifically manufactured for use with molten steel. It is not at all obvious to a person of common intelligence that its use could create the danger of an explosion of the steel or of an explosion of such great force as to splatter great quantities of steel out of a large mold. Because the danger of a severe explosion was not obvious, and because it was foreseeable that the product would be applied other than by spraying, there was a duty to warn potential users that over-application of the product could cause an explosion.
Defendant also argues that the failure to warn was not a cause of plaintiffs injuries. While the actual users in this case had knowledge that wet Nalcosil could cause a reaction, they were not aware that the product should not be applied from a bucket and did not know exactly how long it would take the Nalcosil to dry at various temperatures. Even if the testimony establishes a consciousness on the part of the employees of a vague danger, it would not preclude a jury from finding that a warning was nonetheless required to give them a full appreciation of the seriousness of the life-threatening risks involved. Michigan Mutual Ins Co v Heatilator Fireplace, 422 Mich 148, 154; 366 NW2d 202 (1985). The adequacy of a warning is a question for the trier of fact. Fabbrini Family Foods, Inc v United Canning Corp, 90 Mich App 80, 92; 280 NW2d 877 (1979). The jury herein could conclude that the total lack of a warning did not give any of the workers a full appreciation for the seriousness of the risks involved. The jury could rationally conclude that the failure to warn was a proximate cause of plaintiffs injuries. The workers poured the molten steel into the molds even though at least one of them had noticed that Nalcosil was splashed on the outside of one or more of the molds, indicating that it had been applied by a bucket.
Defendant also contends that it was pure speculation and conjecture for the jury to conclude that defendant’s product was in the mold in which the explosion took place. We disagree. While a case may fail for want of proof because an injury occurs which cannot be accounted for and because the occasion of it rests wholly in conjecture, such cases are rare. An injured person should not be denied a right of action where there is room for balancing the probabilities and for drawing reasonable inferences better supported on one side than on the other. See Schedlbauer v Chris-Craft Corp, 381 Mich 217, 230; 160 NW2d 889 (1968), and Holloway v General Motors Corp (On Reh), 403 Mich 614; 271 NW2d 777 (1978). Negligence may be established by circumstantial evidence. Plaintiff testified that Nalcosil was splashed on the outside of one or more, but not all, of the molds on the day of the incident. While he did not know which of the six molds had evidence of the Nalcosil on them, the first four molds were poured without incident. Plaintiffs’ expert testified that both the initial reaction and the later reaction were consistent with a Nalcosil explosion, assuming that the Nalcosil was wet. While defendant presented testimony that wet bricks and cans of mud were often used in the area of the molds, there was no non-speculative evidence that either of those items were in any of the molds on the day of the incident. Under these circumstances, the jury could rationally find that defendant’s product was in the mold and that defendant’s failure to warn was a proximate cause of plaintiff’s injuries.
•Defendant’s next contention is that the trial court erred in allowing plaintiffs’ expert witness, Robert Cunitz, to testify as to what sort of warnings defendant should have given about its product. Defendant objected to his testimony on the ground that there had been no showing that he had any knowledge of the steel or chemical industries. MRE 702 governs the admissibility of expert testimony. Defendant’s objection at trial went to Cunitz’s qualifications to give an expert opinion on warnings. Whether a witness is sufficiently qualified to give expert opinion testimony is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Dybata v Kistler, 140 Mich App 65, 68-69; 362 NW2d 891 (1985). The witness was an industrial psychologist who specialized in safety and had done considerable consulting on various aspects of safety and warnings. He testified to some experience and familiarity with warnings in the chemical industry. The trial court did not abuse its discretion in determining that Cunitz was qualified as an expert to testify about the need for warning labels in regard to defendant’s products.
Finally, defendant contends that there were nu merous irregularities in the trial which mandate a new trial. Defendant’s allegations of procedural error are meritless. Defendant has failed to cite any authority and has provided very little argument in support of its contentions. Because defendant’s positions are posited without citation of authority, we will not consider them. In the Matter of Dixon, 116 Mich App 763, 772; 323 NW2d 549 (1982), remanded on other grounds, 417 Mich 986 (1983).
The trial court’s grant of defendant’s motion for a directed verdict is set aside and the case is remanded to the circuit court for reinstatement of the jury verdict. | [
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Per Curiam.
On August 13, 1984, defendant, Robert Jay Blackburne, pled guilty to possession of cocaine, less than 50 grams, in violation of MCL 333.7403(1) and (2)(a)(iv); MSA 14.15(7403)(1) and (2)(a)(iv), and to carrying a concealed weapon, in violation of MCL 750.227; MSA 28.424. On October 8, 1984, defendant was sentenced to concurrent prison terms of not less than two years nor more than four years for possession of cocaine and not less than two years nor more than five years for carrying a concealed weapon. Defendant appeals from these convictions as of right.
On appeal, defendant claims that the district court erred in not suppressing evidence presented against him at the preliminary examination held on January 10, 1984. After hearing arguments and receiving written briefs from both parties addressing defendant’s motion to suppress the evidence, the district court found that the search and seizure which produced the evidence against defendant was not unreasonable or illegal. The circuit court also denied defendant’s motion to suppress the evidence in an order dated July 10, 1984.
At the outset, we decide whether defendant can raise this issue on appeal after pleading guilty to the charges against him. Presently, there is a split on this issue in recent decisions of this Court and in dicta included in recent decisions of the Michigan Supreme Court. In People v Eubank, this Court held that on appeal a defendant cannot raise the issue of an illegal search and seizure after his plea of guilty has been accepted in the trial court.
However, in People v Alvin Johnson, a 1976 case which allowed a defendant to raise a claim of double jeopardy after pleading guilty, the Michigan Supreme Court stated:
"Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.” (Footnotes omitted, emphasis added.)
In People v Reid, the Supreme Court recently, in 1984, repeated the above-quoted dicta. In Reid, the Court allowed a defendant to raise the issue of an illegal search and seizure after he entered a conditional guilty plea where all the parties agreed that the defendant could raise the issue on appeal.
The Supreme Court squarely addressed the unconditional guilty plea situation presented in this case only in a concurring opinion written by Justice Moody in People v White. In that opinion, Justice Moody said that the decisions in this Court, not allowing defendants to raise the search and seizure issue after entering a plea of guilty, were correct. Justice Moody reasoned that the entry of a guilty plea did away with the need for any separate evidentiary, factual basis to convict defendant. Since the suppression of evidence in this situation would have no effect, the defendant should not be permitted to raise the illegal search and seizure issue after pleading guilty. There should not be any retroactive finding of a lack of jurisdiction based on lack of admissible evidence once a guilty plea has been accepted.
We believe that Justice Moody’s position is the sound, preferable, logical view and that our prior decisions in this Court to that effect are correct. However, the dicta in recent majority opinions of the Michigan Supreme Court seem to indicate that a defendant can raise this issue on appeal even after pleading guilty. In addition, now that conditional guilty pleas are clearly allowed by Reid, supra, this situation involving an unconditional guilty plea is unlikely to occur in the future. And finally, the prosecutor concedes this issue in this case. Against this background, we consider the merits of defendant’s claim of an illegal search and seizure.
In the within case, the record reveals that on December 29, 1983, defendant was a passenger in a car with three other men. The car broke down on 1-94 as the four men were travelling from Detroit to Chicago. The four men walked to a gasoline station and called a tow truck to tow their car to another gas station that was able to make repairs. When the tow truck arrived, the driver refused to transport all four men in the vehicle being towed. Two of the men then had to call a cab to get to the garage where the car would be repaired. Upon driving these two men to the garage, the cab driver overheard a conversation between them. He noted that one of the men was reluctant to enter the cab. The other man said: "It’s all right, the car is going to be okay and don’t worry about the shit, it’s going to be okay.” (Emphasis added.)
After dropping the two men off at the garage, the cab driver contacted a police detective to whom he had given information in the past. The cab driver told the detective about the conversation and that one of the men was a large Cuban who spoke mostly in Spanish and was constantly moving around and acting peculiar. The cab driver also said that he had seen a two-inch thick wad of money, with $100 bills on the outside, in the possession of the Cuban. The cab driver also reported that the broken-down car in which they had been riding had Florida license plates.
Upon receiving this information, the detective relayed it to another detective on the narcotics squad. Based on this information and his two and one-half years of experience as a narcotics officer, the narcotics detective decided to investigate.
The narcotics detective articulated his basis for suspecting that the four men were transporting drugs as follows: the reference of one of the men to "shit” which, in street drug parlance, means any controlled substance; the route defendants were travelling (1-94) was commonly known as a major drug route between Detroit and Chicago where numerous drug arrests had previously occurred; the vehicle driven by the four men had Florida license plates (Florida is a common place of import for drugs destined for Detroit and Chicago); the reluctance of the Cuban man to leave the car; and the observation of a large wad of money.
The detective arranged for assistance from two state police troopers. He briefed the uniformed troopers on the situation and directed them to watch the garage from their patrol car. The detective then went to the garage where the four men were waiting for their car to be repaired. At the garage, the narcotics detective observed the four men and their automobile. One of the four men stepped between him and the car as he tried to get near the car, but he was able to see a knife on the floor of the car. The detective then left the garage.
The repairs on the car were finished and the four men drove out of the garage. While driving out of the garage, the car remained on the wrong side of the center line for a distance of about Vsth of a mile and then pulled into another gas station. The state troopers and the. narcotics detective followed in separate cars, pulled into the gas station, got out of their cars and approached the vehicle with the four men. One trooper asked the driver to get out of the car. As the driver got out of the car, the trooper observed a knife on the floor of the car. He then told the other trooper about the knife. The other trooper also noted that one of the men was sitting on his hands and might have a weapon. The two men on the passenger side got out of the car, and the trooper asked the remaining passenger to also get out.
When all four men were out of the car, one trooper patted down the driver for weapons and noted no hard objects. The other trooper patted down the front seat passenger, defendant herein, finding a handgun in defendant’s belt. The trooper then patted down one of the backseat passengers and felt two hard objects in his pockets. The trooper opened the passenger’s pockets and observed a large amount of money wrapped in rubber bands in one pocket and a brown paper bag folded up with rubber bands around it in the other pocket. The trooper left the items in the passenger’s pockets and called the narcotics detective over to look at the items in the pockets. Based on his police narcotics experience, the detective said he believed the paper bag contained controlled substances. The trooper then seized the paper bag. The other trooper then found exactly the same items on the other rear seat passenger and also seized that paper bag. The narcotics detective opened one of the paper bags and found a white, powdery substance which was later revealed to be cocaine. Defendant was then arrested and charged based on the gun found on him and the cocaine found on the other passengers in the car.
We note first that a trial court’s ruling at a suppression hearing will not be distrubed unless that ruling is found to be clearly erroneous. In determining whether the trial court clearly erred in finding the search and seizure in this case to be reasonable, we will analyze each step in the search process that produced the evidence against defendant.
First, defendant argues that the trial court erred in finding that the initial "stop” of the four men in their car was not unreasonable. Since, at the time of the initial approach by the state troopers, defendant was not under arrest nor was there probable cause for an arrest, our determination of this issue looks to the "stop and frisk” rules enunciated in Terry v Ohio. Under Terry, in making a valid stop, the police officer must have reasonably concluded that criminal activity may be afoot based on specific, articulable, reasonable inferences which he may draw from the facts based on his experience.
In the within case, the state troopers possessed a reasonable suspicion of possible criminal activity at the time of the "stop” based on two specific, articulable grounds. First, the stop could be justified on the basis of a traffic violation, since the car had travelled on the wrong side of the road. But, even if this first ground had been a mere pretext for the stop (a finding which we do not make), the stop was also proper based on the facts noted in detail above. The police officers reasonably suspected that the four men in the car were engaged in drug shipment activity. It should also be noted that the police officers used the least intrusive means possible in approaching the four men. The car was not pulled over on the road or stopped in any way. The car pulled into the gasoline station without the troopers using their lights or otherwise motioning the car to stop. The "stop” in this case consisted merely of the troopers approaching the stopped car on foot in order to ask some questions. Therefore, we conclude that the initial, least intrusive, contact made by the state troopers with the four men in the car was reasonable and legal.
Defendant next asserts that the pat-down searches of himself and the three other men were unreasonable. Again, Terry supplies the standard applicable to this police action. The police officer, in conducting a pat-down search, must have reasonably concluded that the persons with whom he is dealing may be armed and dangerous based on specific, articulable, reasonable inferences drawn from the facts.
The state troopers in this case initiated the pat-down searches on the driver and defendant after observing a knife on the floor of the car and seeing a backseat passenger sitting on his hands. The pat-down searches of the backseat passengers were conducted after a handgun was found on defendant. We find that the state troopers had specific, articulable grounds for conducting the pat-down searches.
In reaching this conclusion, we note that this case is directly analogous to that of Pennsylvania v Mimms, where the Supreme Court held that, once a police officer had legitimately stopped a vehicle, he had the right, without more, to order the driver out of the car and that a bulge in the driver’s jacket permitted the officer to reasonably suspect he was armed and dangerous. The police officer could reasonably conduct a pat-down search for weapons. The observation of the knife on the floor of the car, and the fact that one of the passengers was hiding his hands, certainly rises to the level of a bulge in a jacket and justifies a reasonable suspicion that the four men were armed and dangerous. The police officers’ pat-down searches in the within case were reasonable and legal.
Defendant finally argues that the seizure of the two brown paper bags wrapped in rubber bands from the pockets of the backseat passengers was unreasonable. This final step in the search process in this case presents a situation where police justifiably intrude into an area where a person has a reasonable expectation of privacy and observe evidence or contraband. In such a situation, the police may seize the observed evidence or contraband without obtaining a warrant, provided the three conditions of the doctrine of "plain view” are met, as set out in Coolidge v New Hampshire.
This Court has held that the plain view doctrine requires: (1) prior justification for instrusion into the otherwise protected area; (2) that the evidence is obviously incriminatory or contraband; and (3) that the discovery of the evidence is inadvertent.
Pursuant to our discussion above, the police officers were justified in intruding into the protected area of the passengers’ pockets. Upon conducting the pat-down searches on these passengers, the officers noted two hard objects which may have been weapons. Under such circumstances, the police officers had a right to look inside the pockets to see if the hard objects were in fact weapons.
In addition, the items found in the pockets (the rolled paper bags and wads of money with rubber bands wrapped around them) were obviously incriminatory or contraband for purposes of the plain view doctrine. This Court has clearly stated that to satisfy this element of the plain view doctrine, the officers need only have probable cause to believe that an object is evidence or an implement of a crime. The narcotics detective, upon observing the items, reasonably concluded that the items contained drugs or were evidence of drug activity. This situation is directly analogous to that of People v Ridgeway, where this Court, relying mainly on the officer’s experience and knowledge that tinfoil packets often contain narcotics, found probable cause to exist. The narcotics detective in this case, based on his experience with drug packaging, had probable cause to believe that the items found on the passengers contained drugs and were evidence of a crime.
Furthermore, the discovery of the evidence was inadvertent for purposes of the plain view doctrine. In People v Myshock, this Court adopted the view of the Federal Sixth Circuit Court of Appeals which states that a discovery is inadvertent so long as the officers lacked probable cause to believe that the evidence would be found. Under this theory, even if the police expect to find the evidence but did not know if it was present, the discovery was inadvertent.
We are persuaded by the Myshock reasoning for adoption of this standard. Applying this standard to the facts herein, we conclude that the police officers did not have probable cause to believe that the passengers were carrying drugs when they initiated the search. They did not know they possessed drugs, but only had an articulable suspicion of such a possibility. Therefore, the discovery of the evidence was inadvertent for purposes of the plain view doctrine.
Since we have concluded that all the elements required for the plain view doctrine existed in this case, the seizure of the items found on the two backseat passengers was reasonable and legal.
Based on our analysis of every step taken by the police officers in obtaining the evidence against defendant, we find that the trial court did not clearly err in denying defendant’s motion to suppress the evidence. The search and seizure in this case was not unreasonable or illegal.
Affirmed.
121 Mich App 227, 230; 328 NW2d 408 (1982), which lists other decisions of this Court on this issue; People v Wilkens, 139 Mich App 778, 787; 362 NW2d 862 (1984).
396 Mich 424, 444; 240 NW2d 729 (1976), cert den 429 US 951 (1976).
420 Mich 326; 362 NW2d 655 (1984).
411 Mich 366, 391; 308 NW2d 128 (1981).
People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983); People v Alfafara, 140 Mich App 551, 555-556; 364 NW2d 743 (1985).
392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
People v Parham, 147 Mich App 358; 382 NW2d 786 (1985); People v Sizemore, 132 Mich App 782; 348 NW2d 28 (1984).
Burrell, supra, p 450.
Parham, supra.
434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977).
403 US 443, 465; 91 S Ct 2022; 29 L Ed 2d 564 (1971).
People v Myshock, 116 Mich App 72, 75-76; 321 NW2d 849 (1982); Alfafara, supra. Some panels of this Court have required exigent circumstances as well. See People v Raybon, 125 Mich App 295, 301; 336 NW2d 782 (1983). In this case, as in Alfafara, supra, the car’s mobility provided the exigent circumstances.
Alfafara, supra, p 557.
74 Mich App 306; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977).
Myshock, supra, p 76. | [
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] |
Gribbs, J.
The Detroit Board of Education appeals from the Wayne County Circuit Court order affirming the Michigan Employment Security Commission Board of Review’s decision granting claimant teacher Linda L. Paynes unemployment benefits for the summer school recess period. The De troit School District also appeals from the Wayne County Circuit Court order reversing the MESC Board of Review’s decision which denied claimant teacher Valerie Ann Whalen unemployment benefits for the summer recess pursuant to MCL 421.27(i); MSA 17.529a). MCL 421.27a); MSA 17.529(i) denies employees of state educational facilities unemployment benefits between academic years during school recess periods, referred to as the "school denial period”, when they have reasonable assurance of reemployment the following academic year. The statute provided in pertinent part:
"(1) With respect to service performed in an instructional, research, or principal administrative capacity for * * * an educational institution other than an institution of higher education as defined by section 53(3) [applicable], benefits shall not be paid to an individual based on those services for any week or unemployment * * * under * * * the following [situation]:
"(a) The week commences during the period between 2 successive academic years, * * * the individual performs the service in the first of the academic years * * * and if there is a contract or a reasonable assurance that the individual will perform service in an instructional, research, or principal administrative capacity for an educational institution in the second of the academic years * * (Emphasis added.)
These cases were consolidated on appeal on the parties’ motions. We affirm in part and remand.
BACKGROUND
Claimant Paynes
Linda L. Paynes contracted to teach for the Detroit Board of Education in 1979. Except for a brief layoff period in 1980, she remained a full-time contract teacher until June of 1982, when her employment was terminated due to the depressed economic climate. She received notice of termination on April 20, 1982, along with an application for a position as a regular emergency substitute (RES) teacher. Paynes signed the RES application which was entitled "Agreement for Regular Emergency Substitute Service”, on May 19, 1982. Her last day as a contract teacher was June 30,1982.
An RES teacher is guaranteed employment for every day that the schools are open, but not always at the same school. The benefits given to an RES teacher also differ from those of a contract teacher. A contract teacher receives both medical and dental benefits for him- or herself and dependents, while an RES teacher must choose between medical and dental coverage, which applies only to the employee. An RES teacher is also not entitled to sick leave, leaves of absence or paid holidays. The RES position is for an indefinite period of time, and there are no assurances against layoffs. As an RES teacher, Paynes would have had a decrease in wages from $109 per day to $63 per day.
On August 4, 1982, Paynes filed an application for unemployment benefits. The MESC originally determined that she became unemployed due to summer recess with job assurance for September of 1982. Accordingly, on September 2, 1982, the MESC denied her benefits for the summer of 1982, the "school denial period”, pursuant to MCL 421.27(i); MSA 17.529(i), which denies teachers unemployment benefits during the summer school recess.
Paynes was scheduled to return to work as an RES teacher on September 11, 1982. However, due to an impending strike, all RES teachers were laid off in early September. Paynes attempted to "resign” from her RES position on September 13, 1982. She was informed by the Detroit Public Schools unemployment compensation representative that she did not need to do so to receive unemployment benefits because, upon her layoff in September, reasonable assurance of employment would cease to exist and the school denial period would end. Also, according to the representative, a teacher who had signed the application or agreement would only have to call the school system to strike his or her name off the RES list in order to rescind the application or agreement.
On September 15, 1982, the MESC redetermined that Paynes was eligible for unemployment benefits for the summer months because she was not given reasonable assurance of work in the same or a similar capacity. The board of education protested the redetermination. After a hearing before a referee, a written decision was issued on November 3, 1982, affirming the redetermination. The referee’s decision was summarily affirmed by the MESC Board of Review on November 17, 1983, and summarily affirmed by the Wayne County Circuit Court on August 30, 1984. The board of education appeals as of right. Pursuant to MCL 421.38(3); MSA 17.540(3), the MESC has been made a party for purposes of judicial review.
Claimant Whalen
Valerie Ann Whalen was originally hired on November 1, 1979, by the Detroit School District Board of Education as an emergency substitute teacher, but the following day was reclassified as an RES teacher. On January 21, 1980, she became a contract teacher. In February of 1981, she took a leave of absence due to illness, which leave was to expire on July 1, 1981. On April 29, 1981, she received a layoff notice, effective June 30, 1981, due to economic necessity. The notice of termination informed her that she could apply for a position as an RES teacher the following school year. The letter also stated that, pursuant to the teachers’ collective bargaining agreement, "teachers who are laid off may, upon application, be assigned as regular Emergency Substitute Teachers (RES)”. (Emphasis added.) She signed the enclosed RES application, which, as in claimant Paynes’s case, was entitled "Agreement for Regular Emergency Substitute Service”, on June 5, 1981. According to Whalen, she understood the form she signed to be an application for work. Her decrease in salary as an RES teacher would be from approximately $80 per day to $60 per day.
Whalen filed an application for unemployment benefits on August 14, 1981. On September 8, 1981, she received a letter from the board of education informing her to report to work as an RES teacher the following day. However, at that point she declined the position, preferring to wait for a contract position to become available. On October 8, 1981, the MESC determined that Whalen was eligible for benefits during the summer recess since she did not have reasonable assurance of full-time permanent employment in the 1981-1982 school year as a contract teacher. In a redetermination order dated November 12, 1981, the MESC affirmed her eligibility for summer recess benefits. At the board of education’s request, a hearing was held before an MESC referee on January 5, 1982. The referee’s written decision of January 13, 1982, determined that Whalen did receive reasonable assurance of employment for the 1981-1982 school year and refused to consider the suitability or terms of the employment in its determination. The referee’s decision was affirmed by the MESC Board of Review on October 7, 1982, and rehearing was denied on January 11, 1983.
Whalen appealed to the Wayne County Circuit Court. After a hearing on August 29, 1984, the circuit court reversed the order of the MESC Board of Review, and reinstated the initial determination that Whalen was eligible for unemployment benefits, holding that Whalen did not receive reasonable assurance of employment during the 1981-1982 school year and that suitability of the proferred work is a factor , to consider when determining if the claimant is entitled to summer recess unemployment benefits. An order to that effect was entered on September 24, 1984. The board of education appeals as of right. Pursuant to MCL 421.38(3); MSA 17.548(3), the MESC has been made a party for purposes of appellate review. On appeal, the MESC has reversed its position in this case and urges this Court to affirm the decision of the circuit court.
DISCUSSION
"On appeal from decisions of the board of review, this Court may review questions of law or fact, Const 1963, art 6, § 28; MCL 421.38; MSA 17.540, but it can reverse only if the order or decision is contrary to law or is unsupported by competent, material and substantial evidence on the record. If, as in the case at bar, there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Chrysler Corp v Sellers, 105 Mich App 715, 720; 307 NW2d 708 (1981).” Gormley v General Motors Corp, 125 Mich App 781, 784-785; 336 NW2d 873 (1983).
The common issue in both cases at bar is whether the MESC, in determining if unemployment benefits should be denied to a teacher for the summer recess period pursuant to the school denial period provision, MCL 421.27(i); MSA 17.529®, can consider the terms and suitability of the work offered for the second academic year. We hold that the economic terms and conditions of the proffered employment, such as hours and wages, are appropriate factors for the MESC to consider when determining whether a teacher who has been given an offer or reasonable assurance of reemployment in an instructional, research, or principal administrative capacity for the following academic year is eligible to receive unemployment benefits between school terms.
The purpose of the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., is to safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment. Larkin v Bay City Public Schools, 89 Mich App 199; 280 NW2d 483 (1979), lv den 406 Mich 979 (1979). However, MCL 421.27(i); MSA 17.529(i) excludes certain seasonal employees in the educational system from collecting unemployment benefits between terms and during summer recesses. With respect to teachers, MCL 421.27(i)(1)(a); MSA 17.529(i)(1)(a), cited above, denies unemployment benefits to individuals performing services in an instructional, research, or principal administrative capacity in the first academic year if there exists a contract or reasonable assurance that the individual will perform service in an instructional, research, or principal administrative capacity for the successive second academic year. A reasonable assurance need not be a formal written or oral agreement to rehire. Rieske v Grand Rapids Public Schools, 144 Mich App 790; 376 NW2d 194 (1985).
MCL 421.27(i); MSA 17.529(i), the school denial period provision, is an expression of legislative intent not to protect all persons who might be in a position to claim involuntary unemployment. Michigan State Employees Ass’n v MESC, 94 Mich App 677, 690; 290 NW2d 729 (1980), lv den 408 Mich 952 (1980). By providing for the school denial period, the Legislature has uniformly excluded some seasonal employees from benefits for the purpose of protecting the fiscal integrity of the compensation program and may have held the opinion that teachers and other educational employees know of the seasonal layoff well in advance and are not faced with the same "economic crunch” as those who are unpredictably laid off. Michigan State Employees Ass’n, supra, pp 692-693. This section is designed to safeguard the stability of school district employment funds, Larkin, supra, and to provide economic protection to those teachers who will not be recalled at the start of the school year. Oak Park Education Ass’n v Oak Park Bd of Ed, 132 Mich App 680; 348 NW2d 9 (1984), lv den 419 Mich 912 (1984).
Claimants Paynes and Whalen contend that the provision denying teachers unemployment benefits during the summer months between academic years if they are offered a contract or reasonable assurance that they will perform services in an instructional, research, or principal administrative capacity the following year must include the requirement that the offer or assurance of employment be one for suitable employment. They urge this Court to read the Michigan Employment Security Act as a whole and incorporate the suitability criteria of MCL 421.29; MSA 17.531, which denies benefits for failing without good cause to apply for or accept suitable work, into the school denial period provision of MCL 421.27(i)(1)(a); MSA 17.529(i)(1)(a). MCL 421.29; MSA 17.531 contains the following criteria for suitability:
"(6) In determining whether or not work is suitable for an individual, the commission shall consider the degree of risk involved to the individual’s health, safety, and morals, the individual’s physical fitness and prior training, the individual’s experience and prior earnings, the individual’s length of unemployment and prospects for securing local work in the individual’s customary occupation, and the distance of the available work from the individual’s residence.
"(7) Work shall not be considered suitable and benefits shall not be denied under this act to an otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) if the position offered is vacant due directly to a strike, lockout, or other labor dispute; (b) if the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (c) if as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining a bona fide labor organization.”
The board contends that the school denial period provision and suitablility criteria provision are distinct and separate, and that, had the Legislature intended for suitability to be considered when determining whether a contract, offer, or assurance of employment for the following academic year precludes eligibility for unemployment benefits, it would have expressly done so in the school denial period provision.
The MESC also contends that suitability, as defined in MCL 421.29, subds (6) and (7); MSA 17.531, subds (6) and (7), should not be incorporated into the denial provision. However, recognizing the harsh inequities in allowing denial of unemployment benefits to teachers offered substantially inferior positions, the MESC argues that it is permissible to consider wage disparity between the prior and successive academic years in determining whether there has been a reasonable assurance of employment in an instructional, research, or principal administrative capacity. The MESC in it Manual of Precedents issued a benefit interpretation on June 19, 1978, which stated that more than a 10% reduction in pay between the prior academic year and the successive academic year would negate what would otherwise be a reasonable assurance of employment in the second academic year. Because the MESC is charged with the responsibility for administration of the Michigan Employment Security Act, the MESC argues that its construction of the denial provision is entitled to respectful consideration and should not be overturned without significant reasons. Margreta v Ambassador Steel Co, 380 Mich 513, 521; 158 NW2d 473 (1968).
The reason underlying the MESC’s position that only economic aspects of suitability can be considered is to avoid the denial of approval and certification of its unemployment program by the United States Secretary of Labor and the loss of federal funds and credits which are dependent upon such approval and certification.
To gain the approval and certification of its unemployment program and qualify for such federal benefits, the state unemployment laws must substantially comply with 26 USC 3304(a)(6)(A) which provides in pertinent part:
"compensation is payable on the basis of service * * *, in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subject to such law; except that—
"(i) with respect to services in an instructional, research, or principal administrative capacity for an educational institution * * * compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms (or, when an agreement provides instead for a similar period between two regular but not successive terms, during such period) to any individual if such individual performs such services in the ñrst of such academic years (or terms) and if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms." (Emphasis added.)
The MESC contends that if the suitability criteria contained in MCL 421.29, subds (6) and (7);’ MSA 17.531, subds (6) and (7) are considered in determining the applicability of the school denial provision such consideration will conflict with the United States Department of Labor’s interpretation of 26 USC 3304(a)(6)(A) which was issued in the form of questions and answers on November 13, 1978, by Robert Edwards, acting administrator of the unemployment insurance service:
"4. Question:
”In applying a between-terms denial provision, may consideration be given to the suitability of the work for which a claimant has a reasonable assurance?
"Answer:
"No. The Federal Law requires that the between terms denial provision for teachers, researchers, and principal administrators be applied if the individual has a reasonable assurance of work in any of these capacities. Thus, a former principal who has a reasonable assurance of a teaching position would be subject to the denial. Suitability criteria, including the labor standards, are to be considered at the point when a position becomes available, is offered, and is refused.
"If a State has adopted the optional between-terms denial provision permitted by the FUTA with respect to school workers other than teachers, researchers, and principal administrators, the provision must be applied in the same way. Thus, a librarian with a reasonable assurance of a clerical position, or a secretary with a reasonable assurance of a job on the custodial staff, would be subject to the denial.” (Emphasis added.)
We agree with the MESC that wage disparity should be considered before denying a teacher unemployment benefits when a contract or reasonable assurance of employment in an instructional, research, or principal administrative capacity is proffered for the successive academic year. We also agree with the above "interpretation” of the United States Department of Labor to the extent that, for purposes of the school denial period provision, an offer or reasonable assurance to an employee previously employed in either an instructional, research, or principal administrative capacity of reemployment for the following academic year in any of these three capacities is adequate with respect to the type of employment. Employment in any of these capacities is legislatively deemed to be appropriate with respect to the type of proffered employment. 26 USC 3304(a)(6)(A); MCL 421.270); MSA 17.529(i).
To escape a possible conflict with the federal law, the MESC, as noted above, urges this Court to consider only whether the economic terms of the proffered employment in the successive year are reasonably similar to those of the employment in the preceding year. The MESC relies on the reasoning of the Wisconsin Supreme Court in Leissring v Dep’t of Industry, Labor & Human Relations, 115 Wis 2d 475; 340 NW2d 533 (1983), which interpreted an employment compensation statute similar to that in Michigan. In Leissring, the Wisconsin Supreme Court extensively examined the legislative history of the federal unemploy ment provisions and held that a teacher is ineligible for unemployment benefits only if the teacher has a reasonable assurance of performing services in an instructional, research, or principal administrative capacity for the following year on terms and conditions of employment reasonably similar to those in the preceding year. The Court reasoned:
"It is clear that Congress and the Wisconsin Legislature intended that public school teachers, like other state and governmental employes, receive unemployment compensation benefits if eligible. It is also clear that sec. 108.04(17)(a), Stats., does not totally prohibit teachers from receiving unemployment compensation benefits during a summer period between academic years. The legislative history of sec. 108.04(17)(a), and the fedeal provisions on which it is based, indicate that the intent of the limited disqualification in sec. 108.04(17)(a) is to prevent subsidized summer vacations for those teachers who are employed during one academic year and who are reasonably assured of resuming their employment the following year. There is no indication that the legislature intended the disqualification in sec. 108.04(17)(a) to apply to a teacher employed fulltime who becomes unemployed at the end of the academic year, and whose only prospect of employment at that time is not a continuation of his or her previous contract, but merely an offer of substitute teaching with no guarantee of any hours or wages, or a position having substantially decreased wages and hours.
"Given the history of sec. 108.04(17)(a), Stats., and the general purpose of ch. 108, we hold that the phrase 'reasonable assurance that such employee will perform services in any such capacity’ in sec. 108.04(17)(a) applies to a teacher employed fulltime who is laid off at the end of the academic year only if: 1) he or she has a reasonable assurance of performing services the following year in an instructional, research, or principal administrative capacity; and 2) if the terms and conditions of the employment for the following year are reasonably similar to those of the teacher’s employment in the preceding year. To interpret sec. 108.04(17)(a) as disqualifying the teacher if he or she merely has some assurance of performing any instructional, research, or principal administrative services the following year, no matter how minimal the wages, hours and benefits might be in comparison to the teacher’s wages, hours, and benefits of the preceding year, is not supported by the legislative history, and is contrary to the general purpose of ch. 108.
"A teacher previously employed fulltime who becomes unemployed at the end of an academic year, and whose only employment prospect for the following year is a substitute teaching position involving no guaranteed hours or wages, or a position having a substantial decrease in hours and earning capacity, is immediately confronted with a potential need to find alternative means of economic support. In addition, that individual may need to seek another teaching position in a severely restricted job market. If the teacher wants to secure another fulltime position for the next academic year, he or she must utilize the summer months for this job search, and will need economic aid for this purpose as well. This teacher is confronting a far different situation than the teacher who can look forward to resuming his or her fulltime employment in the fall. If the latter individual seeks unemployment compensation benefits over the summer period, it is possible that he or she is merely seeking a subsidized summer vacation, which sec. 108.04(17)(a), Stats., is intended to prevent. The former teacher, who is unemployed at the end of the year, and realistically may remain unemployed in the fall, is not seeking benefits simply because he or she wants a subsidized summer vacation. Such benefits would likely be needed to meet current and future living expenses and to defray the expenses of seeking new employment. These are precisely the type of circumstances for which unemployment compensation has traditionally been intended. It is unreasonable to assume that this need for unemployment compensation benefits will not arise until the summer period ends.
It is inconsistent to allow a teacher to retain benefit eligibility when he or she refuses substandard employ ment or employment having substantially reduced wages and hours, yet deny eligibility to the teacher during the summer period simply because he or she was offered the possibility of employment with substantially less favorable terms and conditions than those of the teacher’s previous employment.” Leissring, supra, pp 488-492.
We agree with the reasoning in Leissring, supra, and hold that the economic terms and conditions of the employment in the successive year must be reasonably similar to those of the preceding year in order for the ineligibility provision to apply. *6 Thus, we hold that, to be denied unemployment benefits purusant to MCL 421.27(i)(1)(a); MSA 17.529(i)(1)(a), the school denial period provision, (1) a teacher must be reasonably assured of reemployment the following year in an instructional, research, or principal administrative capacity, and (2) the economic terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. See Johnson v Independent School Dist No 535, 291 NW2d 699 (Minn, 1980); Mallon v Employment Div, 41 Or App 479; 599 P2d 1164 (1979).
The next question presented by the parties is whether the referees’ decisions in both cases were supported by competent, material, and substantial evidence on the entire record. MCL 431.38; MSA 17.540.
In claimant Paynes’s case, the board, assuming arguendo that suitability of the terms of the employment can be considered in determining whether a teacher falls within the school denial period provision, argues that the referee’s decision that the RES position was not "suitable” because of the disparity of its economic terms with those of Paynes’s previous contract employment was not supported by the record. We disagree. The referee in claimant Paynes’s case, who was affirmed by the MESC Board of Review and the Wayne County Circuit Court, considered the terms of the RES employment and found that the RES position which resulted in an approximately 40% decrease in remuneration per day did not constitute a reasonable assurance of "suitable” (with respect to wages) reemployment in an instructional capacity. We find that the record supports the referee’s finding of this decrease and supports his determination that Paynes was not given reasonable assurance of reemployment sufficiently comparable with respect to remuneration to preclude her from unemployment benefits under the school denial period provision.
The referee in claimant Whalen’s case, in denying her unemployment benefits, declined to consider the terms of the RES employment in his determination of whether or not plaintiff was precluded from receiving unemployment benefits pursuant to MCL 421.27(i)(1)(a); MSA 17.529(i)(1)(a). Thus we remand her case to the MESC referee for such consideration and redetermination of her eligibility for unemployment benefits.
We find it unnecessary at this time to address the issue of whether or not claimants were reasonably assured of reemployment by virtue of the RES letters and applications. In claimant Paynes’s case, even if the RES letter and application reasonably assured Paynes of reemployment, since the economic terms of the work proffered were not reasonably similar to those of her previous employment, under our two-part test she was not precluded from receiving unemployment benefits by the school denial period provision. Thus this issue in claimant Paynes’s case is moot.
In claimant Whalen’s case, the referee found that the RES application constituted a reasonable assurance of reemployment, i.e., reasonably assured Whalen of reemployment, but did not consider the terms of the employment. The circuit court reversed the referee’s determination of reasonable assurance of reemployment, finding that the RES employment was too speculative to constitute such assurance, and reinstated the original determination that claimant was entitled to unemployment benefits because she was not reasonably assured of reemployment. Contra, Rieske, supra; but see Fort Wayne Community Schools v Review Bd of the Indiana Employment Security Division, 428 NE2d 1379 (Ind App, 1981). However, we do not now consider whether the circuit court erred in reversing the referee’s finding of reasonable assurance because if, on remand, upon consideration of the terms of the RES employment, the referee finds that the terms of the RES employment in claimant Whalen’s case was not sufficiently comparable to those of complainant’s previous employment, this issue, as in complainant Paynes’s case, will be dispositive. However, if the referee does not so find, claimant may appeal this determination through normal channels. However, since the referee has already been reversed by the circuit court on the separate issue of whether claimant Whalen, by virtue of the RES application, was reasonably assured of reemployment, we retain jurisdiction solely to consider the question of whether the RES application in claimant Whalen’s case reasonably assured her of reemployment the following year.
Affirmed in part, reversed in part and remanded._
The MESC has reversed its original position in the circuit court in the Whalen case and supports the granting of unemployment benefits to claimant teachers and affirmance of both circuit court orders.
We point out that a determination of whether a “reasonable assurance” exists is a determination of whether the assurance is reasonable, not whether the employment offered or assured is itself reasonable.
The Federal Unemployment Tax Act (FUTA), 26 USC 3301, et seq., imposes a substantial federal excise tax upon the payrolls of private employers. The employer, however, is entitled to credit against the payroll tax up to 90% of any contributions made during the fiscal year to a certified state unemployment compensation fund. The state remits such contributions to the United States Secretary of the Treasury for inclusion in a federal Unemployment Trust Fund. When the need arises, the Secretary authorizes release of the trust fund monies to the state for payment of unemployment benefits. In addition to receiving and disbursing monies for the payment of unemployment benefits, the Secretary of the Treasury is authorized to make payments to the states from both the FUTA and general tax revenues to aid in the administration of certified state unemployment compensation programs. 42 USC 501-504. Also available to states with certified unemployment programs are federal funds for the mainte nance of public employment offices providing job placement, recruitment and other services to unemployed workers. 29 USC 49 et seq.
We point out that construing the "interpretation” by the Department of Labor as limiting consideration of suitability criteria solely to refusals of offered employment could lead to undesirable results. Under this "interpretation”, a teacher who is offered a contract for employment can either contract for the guaranteed position, or can immediately refuse the employment if he or she views it as unsuitable and, upon a determination that the work is unsuitable, collect unemployment benefits. A teacher receiving a mere "reasonable assurance” of employment could be precluded from collecting unemployment benefits until an offer is actually made which can be refused. It is difficult to see how a "reasonable assurance” of employment, rather than an offer to contract for guaranteed employment, can be "refused” so as to trigger a determination of suitability. A teacher in this position is left without a contract or absolute guarantee of employment and cannot collect unemployment benefits for the period the reasonable assurance is in effect, although the work may be later deemed unsuitable when the reasonable assurance matures into an offer to contract for employment. Thus the payment of unemployment benefits could easily be avoided by extending reasonable assurances of unsuitable employment, rather than firm offers to contract for employment, until the school year begins. We do not envision this as the intent of the Michigan Employment Security Act which was enacted to ameliorate the effects of involuntary unemployment.
We also point out that, for purposes of MCL 421.29(6); MSA 17.531(6), employment in an identical capacity to previous employment is not required for employment to be considered suitable. Although prior training and experience is an aspect of suitability, MCL 421.29(6); MSA 17.531(6), there is no requirement that suitable employment must be employment in a capacity identical to that of a person’s customary or previous occupation.
Leissring, supra, however, did not address the question of whether other suitability criteria should be considered, perhaps also in order to avoid any potential conflict with the federal law.
We point out that whether or not a teacher has been reasonably assured of reemployment and whether or not the reemployment proferred is comparable to the teacher’s previous employment are independent determinations. See fn 2, supra. A teacher may be reasonably assured of reemployment in an instructional capacity, but not reemployment on comparable terms, and in this situation the school denial period provision does not render a teacher ineligible for unemployment benefits.
We hesitate to call economic conditions or terms of employment, such as wages and hours, suitability criteria since we are not, in the instant case, determining whether all suitability factors, as defined in MCL 421.27(i)(1)(a), MSA 17.529(i)(1)(a), are to be considered in applying the school denial period provision. Moreover, we do not wish to invite any conflict with federal law regarding consideration of "suitability” factors. However, in considering "suitability” of the RES employment in the instant case, the referee in claimant Paynes’s case was clearly considering the economic terms of the employment, not other aspects of suitability.
When a teacher actually contracts for a substantially inferior position, there maybe no need to consider the terms of the unemployment for eligibility for unemployment benefits since the teacher is already employed. In the instant case, however, the MESC referees in both cases predominantly characterized the "agreements” signed by claimants as applications, not contracts, for RES positions. The referee in claimant Whalen’s case characterized the agreement as a reasonable assurance of employment, and the circuit court in claimant Whalen’s case necessarily found no contract since it found that the application did not even rise to the level of a reasonable assurance. Moreover, although briefly referring to claimants as having contracted for the RES employment, the board, on appeal, does not argue this point in any meaningful manner. Thus we do not consider the issue of whether claimants actually contracted for work and might thus be precluded from unemployment benefits.
Although the circuit court did hold that suitability of the prof-erred employment should be considered in determining eligibility for unemployment benefits, it did not make any findings on the similarity of terms or suitability of claimant Whalen’s RES employment and did not reverse on this ground. | [
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Per Curiam.
This is an injunctive action to prevent defendants from disposing of solid waste generated in Macomb County at a sanitary landfill located in St. Clair County and owned by defendants William Kettlewell, Bill Kettlewell Excavating Company, Inc., and Eastern Michigan Development Company (hereinafter collectively referred to as Kettlewell). A permanent injunction was issued prohibiting solid waste originating in Macomb County from being put in Kettlewell’s St. Clair County landfill until the amendment of the two counties’ solid waste management plans. In Docket No. 78934, Kettlewell and intervening defendant, The Disposal Company, appeal as of right from that portion of the order enjoining the deposit of solid waste from Macomb County. In Docket No. 79102, plaintiff, the Charter Township of Fort Gratiot appeals as of right from that portion of the injunction which modifies a previously entered consent judgment. The trial court held that the township’s ordinance regulating the landfill is preempted by the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq.
Kettlewell has been operating a landfill since the sixties. In 1979 the township instituted an injunctive action to limit disposal into the landfill to only demolition materials. The trial court felt that the township’s having previously allowed the disposal of other materials estopped them from trying to prevent any further disposal of the same materials. Both parties appealed and while the appeal was pending the parties settled and entered into a consent judgment. The terms allowed Kettlewell to deposit nonhazardous materials allowed under the act, required Kettlewell to comply with the act and the township ordinances, and left the court with continuing jurisdiction.
In June, 1983, The Disposal Company began negotiating with Kettlewell and the South Macomb Disposal Authority for the sale of the site. The township filed a motion to prevent Kettlewell from violating the consent judgment. What Kettlewell would have allegedly violated would have been a DNR rule promulgated pursuant to the act, 1982 AACS, R 299.4711(e)(iii)(C), which provides:
"(e) [Solid waste management] [p]lan selection shall be based on all of the following:
"(iii) Site requirements, including the following requirements:
"(C) A site for a solid waste disposal area that is located in one county, but serves another county, shall be identified in both county solid waste management plans.”
Apparently the Kettlewell landfill was only mentioned in one county’s plan. The court held that requiring both counties to amend their plans to provide for Macomb County waste in St. Clair County landfills was acceptable. Furthermore, the trial judge held that the act preempted any local ordinances and modified the consent judgment.
We first must determine if the trial court erred in ruling that defendants are prohibited from disposing of Macomb County solid waste at the St. Clair County Kettlewell landfill. After a careful review we find no error. We do not find the requirement that both counties’ plans mention the landfill to be in error or unreasonable. MCL 299.430; MSA 13.29(30) provides for the DNR to promulgate rules for the development and form of solid waste management plans. 1982 AACS, R 299.4711(e)(iii)(C) provides that a site located in one county but serving another shall be identified in both counties’ plans. The counties’ plans may be amended to comply with the rules, which would resolve this issue. Defendants’ contention that the plan would have to specifically prohibit this is without merit. County plans state what is permitted in the affirmative rather than including an exhaustive statement of what is prohibited. Independence Twp v Shibowski, 136 Mich App 178; 355 NW2d 903 (1984), lv den 422 Mich 853 (1985).
Defendants also argue that the prohibition against depositing Macomb County solid waste in St. Clair County was unconstitutional. The test to determine if this legislation comports with due process is whether or not the legislation bears a reasonable relationship to a permissible legislative objective. Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), cert den 442 US 934 (1979), after remand 412 Mich 1105 (1982). The challenged legislation is afforded a presumption of constitutionality. We must determine if there is a rational basis for the legislation and if the legislation bears a reasonable relation to the objective. Our review reveals that the legislative objective was to foster comprehensive planning for the disposal of said waste at the local level and to integrate state licensing with those plans so that the disposal of waste within the planning area would be compatible with the local plan. Additionally, enactment of the statutory planning and licensing scheme reasonably relates to the purpose of correcting past planning and licensing inadequacies. By placing primary planning at the county level, the scheme provides for reasoned planning for disposal sites based in part on the county’s proj ected capacities and waste generation rates. Each county is permitted to address local concerns and to adapt its plans to local conditions while at the same time safeguarding parochial decision-making by requiring the plan to be approved for inclusion in the state plan. The rules and the act provide a method whereby a county can develop a plan which is workable and will not be disrupted by future disposal of waste from sources not accounted for during the planning process.
Defendants also contend that the statutory scheme creates two classifications: counties which allow intercounty disposal of solid waste and counties which. do not. However, this argument is without merit. All counties wishing to deposit their waste outside their borders are subject to the requirements that the plans of both the depositing and receiving counties so provide in their plans.
Defendants additionally argue that limiting the disposal of waste at the Kettlewell site so diminished the value of the landfill as to constitute a taking of the land by the government. A diminution in property value, standing alone, does not establish a taking. Village of Euclid, Ohio v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926). See also Kropf v City of Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).
Defendants also allege that the Legislature unconstitutionally delegated its power in conferring upon the DNR the authority to promulgate rules and that, furthermore, the DNR has unconstitutionally delegated legislative power because both have failed to articulate adequate standards. In Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976), the Supreme Court set forth the following principles to apply herein. The first is that the act should be read as a whole; secondly, the standards should be as reason ably precise as the subject matter requires or permits; and, lastly, the statute should be construed in such a way as to be valid. Our review reveals that the act sufficiently meets these standards.
When the rules are read as a whole it is clear that the standards are as precisely drawn as possible. We find defendant’s contentions to be without merit.
Kettlewell argues that the prohibition constitutes an antitrust violation of 15 USC 1, the Sherman Act, which provides in pertinent part that "every contract, combination * * * or conspiracy, in the restraint of trade or commerce among the several states * * * is declared to be illegal.” As defendants’ activities do not involve interstate commerce or substantially affect interstate commerce, this argument is without merit. McDonald v Saint Joseph’s Hospital of Atlanta, Inc, 524 F Supp 122 (ND Ga, 1981).
Next, we must determine if the township ordinances regulating landfill operations are preempted by the act. This issue, has been decided in the affirmative in Southeastern Oakland County Incinerator Authority v Avon Twp, 144 Mich App 39; 372 NW2d 678 (1985).
Lastly, the township argues that the trial court erred in modifying the 1981 consent judgment without the consent of the parties. The consent judgment provided for compliance with township ordinances that have been declared preempted. Southeastern Oakland County Incinerator Authority, supra. The trial court is allowed to relieve a party from a judgment if it is no longer equitable that the judgment should have prospective application. GCR 1963, 528.3, now MCR 2.612(c). We find no error in the modification, especially in light of our decision in Southeastern Oakland County Incinerator Authority, supra.
Accordingly, we affirm the decision of the lower court.
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Per Curiam.
Appellant appeals as of right from an order of the probate court terminating her parental rights to her daughter, Helen Tedder.
Helen Tedder was born on November 26, 1979, seven weeks premature. Until Helen’s discharge from the hospital on December 17, 1979, it is undisputed that appellant spent a great deal of time with Helen and took an active interest in Helen’s care. Appellant’s care of Helen, however, was often inappropriate and inconsistent. Specifically, appellant would interrupt Helen’s feedings before they were completed and she seemed more preoccupied with other concerns than with feeding Helen.
Appellant also refused to take Helen home upon Helen’s discharge from the hospital, claiming that her apartment was unsuitable for the child and that she lacked certain items necessary for Helen’s care such as a vaporizer, telephone and car seat. According to the hospital staff, Helen did not require the claimed necessities for medical reasons. Moreover, a visit by a social worker to appellant’s apartment revealed that the apartment was adequate for the child’s needs at the time. Eventually, appellant agreed to take Helen home but she also protested that if any harm came to Helen it would be the hospital’s responsibility because the hospital was not meeting her needs.
These circumstances led the Department of Social Services to petition on December 26, 1979, for temporary custody of Helen pursuant to MCL 712A.2(b)(1); MSA 27.3178(598.2)(b)(1). Helen was thereafter placed in foster care where she remained until April, 1981, when, at the age of 15 months, she was returned to her mother. During the time Helen was in foster care, appellant satisfactorily complied with various court orders. She obtained adequate housing, visited Helen regularly, and attended parenting classes and psychotherapy sessions. Appellant also appealed from the order placing Helen in foster care, but the order was affirmed by the Ingham Circuit Court.
Joanne Reen was the first social worker assigned to the Tedder case and had regular contact with the Tedders beginning in January, 1982. Reen testified that appellant moved several different times and on home visits Reen often found the Tedder residence messy and cluttered with papers and boxes. On various occasions, appellant told Reen that she would not clean up the residence because it was not her responsibility, or that she would not unpack her belongings because she was dissatisfied with the landlord, housing and neighbors, and was going to move again.
Reen testified that, at times, she and appellant worked well together and at other times they were at odds. When appellant disagreed with Reen, appellant would become verbally aggressive, antagonistic and project blame for her difficulties onto others. During the first year of their relationship, appellant seemed to improve her parenting skills. Reen believed that the therapy in which, as of May, 1981, appellant was voluntarily involved was of great benefit to her.
The relationship between Reen and appellant ultimately broke down by December, 1983. The breakdown occurred over disagreements concerning Helen’s inconsistent attendance at day care and generally because of Joyce’s personality traits. Day care for Helen had been recommended by the court at Reen’s suggestion. Appellant blamed Helen’s inconsistent attendance on the day care’s bus driver who allegedly never picked up Helen on time. Appellant generally expressed dissatisfaction with the day care’s management and ultimately filed a complaint against the day care. Helen was re-enrolled at another day care but by December, 1983, appellant had pulled Helen out of it because "it was a pool of constant infection”.
Reen testified that there has never been any allegations that Helen was not adequately clothed, fed or given medical attention. Helen also had a surprising number of toys to play with considering that appellant was on welfare.
While Reen knew of no instances of physical or intentional emotional abuse, she described examples of how appellant emotionally abused Helen unintentionally. Reen referred to sporadic physical fights between appellant and a neighbor that Helen witnessed. She also referred to an incident related to her by appellant’s former landlord wherein appellant allegedly told Helen to lie about his stepping on Helen’s feet. Reen also testified about another incident concerning a spanking which appellant gave Helen when Helen vomited on a library book. At the time, according to Reen, appellant thought Helen had vomited to get her attention because Helen had done that in the past. Appellant regretted spanking her, when she later realized Helen really had been physically ill.
Reen testified that she was compelled to file for a "change of program” in January, 1984, upon concluding that appellant’s home was no longer acceptable for Helen. At the time, however, she testified that she did not see a need to file for permanent wardship because the interaction between Helen and appellant was generally appropriate.
Pursuant to Reen’s petition for a change of program, Helen was removed from appellant’s care in January, 1984, and Kristen Godby from the DSS was assigned to the case. Godby monitored the visits between mother and child and perceived that their interaction was not a negative one. Her testimony did not establish anything significantly unusual about the relationship between mother and child.
Dr. Dale Ann Singer, Helen’s pediatrician since birth, also testified during the hearing. Dr. Singer testified that she was concerned that Helen was mimicking appellant’s mannerisms and behavior such as scuffing her feet, appearing unkempt, and becoming uncommunicative and inactive in the office. She testified that Helen also gradually became obese.
Dr. Singer testified that appellant’s inconsistency in seeking medical attention for Helen was unusual. She testified that appellant had a pattern of calling the doctor’s office for an appointment claiming that Helen was sick. Then later in the day, she would call back and cancel the appointment. She testified that she also found abnormal the fact that Helen believed that she was removed from her mother’s care because she didn’t keep the newspapers off the floor. Dr. Singer opined that appellant did not have the ability to properly parent Helen. She also stated that she was overwhelmed with the responsibility of being a single parent and would not ever be able to provide a secure home for Helen.
Dr. Gary Stollack, a family clinical psychologist, evaluated the results from court-ordered comprehensive psychological examinations performed on appellant and Helen. From appellant’s responses to these tests, Dr. Stollack concluded that appellant exhibited symptoms of poor ego control. He testified that one moment appellant’s responses indicated a person with a high intelligence, compassion, and sensitivity, then the very next moment, her responses indicated complete absence of control and breakthrough of impulses.
Dr. Stollack’s clinical judgment was that appellant was a paranoid schizophrenic. He explained, however, that many functioning members of society are paranoid schizophrenics. He stated that, moreover, this condition was not conclusive proof of an inability to properly parent a child.
Dr. Stollack testified that Helen was a miniature replica of appellant. He stated that Helen had high intelligence but was grossly immature and suffered from poor ego control.
He described the relationship between Helen and appellant as one vacillating between detachment and extreme dependency. Dr. Stollack stated that he was also generally pessimistic about appellant’s ability to provide an adequate psychological environment for Helen, even with the assistance of the best mental health programs.
Over appellant’s objection, appellant’s current psychologist, Dr. Nolan Singleton, also testified at the hearing. Dr. Singleton testified that he began psychotherapy with appellant in September, 1982. He also testified that he would observe Helen and appellant interact for one hour, then he and appellant would meet separately to discuss what he had observed.
Dr. Singleton described appellant as an extremely litigious person who feels victimized and consistently finds fault with members of the professional community. He diagnosed her as having a paranoid personality disorder which was symptomatic of neither a mental illness nor mental deficiency but was an impairment in her ability to function from day to day.
Dr. Singleton testified that he felt that appellant’s disorder was responsive to therapy although progress would be slow until she overcame her general mistrust of other people. He observed that appellant interacted with Helen better than with other people and that she often demonstrated appropriate parenting of Helen.
Dr. Singleton testified that appellant was able to implement and maintain his suggestions concerning how to control Helen’s behavior. He stated that although he never observed anything in Joyce’s and Helen’s relationship that he would consider "weird” or "strange”, he did observe appellant’s intermittent preoccupation with her per sonal problems which seemed to detract from her attention to Helen. Dr. Singleton stated that he did not feel that this was a major problem, however.
Dr. Singleton testified that there was a chance that appellant could provide a fit home for Helen in spite of her characterological disorder, if Helen could become involved in a good day care program and if appellant received "massive human support” services from DSS.
Other evidence considered by the probate court in this proceeding consisted of reports by various social workers and psychologists who had worked with Helen and/or appellant. A report written by Shealah Treece in 1980 indicated that appellant was hospitalized in 1964 and 1965 for depression resulting from thyroid medication. During her hospitalization she received psychotherapy, electroconvulsive therapy and medication. She was discharged in 1965 because her condition improved but the prognosis was guarded.
Dr. Mary Jane Keller, a psychologist for the Bureau of Vocational Rehabilitation, saw appellant in 1975. She wrote that appellant was one of three children and that both of her parents worked in factories. One brother is severely retarded and now hospitalized. The other brother is a pharmacist. Dr. Keller described appellant as being highly intelligent but suffering from depression and therefore recommended psychotherapy.
In 1978, Dr. Rom Kriauciunas, also evaluated appellant for the Rehabilitation Center. He reported that her work history included 10 years as office-clerical help, one year as a waitress, some babysitting and 3 years as a licensed practical nurse. He found her highly intelligent but with an "immature personality” described as egocentric, irritable and complaining. He further noted that she has a strong feminine interest pattern, is generally passive and has a masochistic willingness to accept burdens. He also remarked that at the time she was enthusiastic and impatient with a mild hyperactivity in her speech and mannerisms. Dr. Kriauciunas recommended that she undergo psychotherapy in order to "free up some of her creative potentials and put her superior intellectual resources to a creative use”.
In 1980, Dr. Keller again evaluated appellant. She concluded from the test results that appellant is litigious, angry, and with profound unmet dependency needs. Dr. Keller also concluded that appellant can be mendacious and has absolutely no insight. Dr. Keller indicated that while appellant has an above average intelligence, she suffers from a thought disorder characterized by circumstantiality, loosening of associations and inappropriate responsiveness to nonrelevant stimuli. Dr. Keller concluded that appellant was profoundly disturbed and recommended that appellant not have sole custody of Helen. Dr. Keller would not say whether appellant’s condition was refractory to treatment until she reviewed more of appellant’s records. Dr. Keller did state, however, that terminating appellant’s parental rights would not be in appellant’s best interests.
Based upon the foregoing evidence, the probate court terminated appellant’s parental rights. The probate court concluded that appellant is not able to provide a fit home for Helen because of neglect, that there has been long-standing neglect, and that appellant is a serious threat to the long-term future and emotional well-being of Helen.
A probate court’s decision to terminate parental rights is reviewed under the clearly erroneous standard. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). In other words, this Court will not set aside findings of fact made by a trial court sitting without a jury unless the findings are clearly erroneous. "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In re Cornet, supra, p 278, quoting Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
In order to terminate parental rights, the trial court must find that at least one of the statutory grounds in subsection 19a of the juvenile code, MCL 712A.19a; MSA 27.3178(598.19a), has been met by clear and convincing evidence. Once the statutory grounds for termination have been met, the trial court must then consider the best interests of the child. In the Matter of Schejbal, 131 Mich App 833, 836; 346 NW2d 597 (1984); In the Matter of McDuel, 142 Mich App 479, 488; 369 NW2d 912 (1985).
The probate court, in the case sub judice, terminated appellant’s rights on the basis of neglect. MCL 712A.19a(e); MSA 27.3178(598.19a)(e). We conclude that terminating appellant’s parental rights on this basis was clearly erroneous.
"[A]n, order for permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the long-run future.” Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958). The word "neglect” as used in the statute entails some degree of culpability by way of either intentional or negligent disregard of the child’s needs. In the Matter of McDuel, supra, p 485. Sheer inability to fulfill parental duties does not constitute neglect. Rather, to be neglectful within the meaning of the statute, the parent must have committed some act or omission which is blameworthy. 142 Mich App 486. See also In the Matter of Moore, 134 Mich App 586, 593; 351 NW2d 615 (1984); In the Matter of Bailey, 125 Mich App 522, 527; 336 NW2d 499 (1983).
While we agree with the probate court that appellant has failed to provide a fit home for Helen, we do not agree that her failure is culpable or blameworthy.
The court wrote that no single act by appellant was so grave as to establish serious neglect of Helen. Rather, it was the compilation of many of appellant’s actions and their effect on Helen and her development in society that established serious neglect of Helen for the long-term future and a serious present deprivation of Helen’s emotional well-being. We summarize and address each of the court’s findings seriatim.
1. Joyce’s Long-Term Characterological Disorder.
The bulk of the trial court’s findings concerned appellant’s characterological disorder and the physical manifestation of this disorder in her personality and day-to-day life.
In In the Matter of McDuel, supra, this Court concluded that the physical incapacity of a parent to provide for the child’s needs does not constitute neglect within the meaning of the statute where there has been no culpable disregard of duty by the parent. In the case at bar, we cannot conclude that a characterological disorder makes the parent any more culpable than a physical incapacity where the proofs do not establish some act or omission which is blameworthy. See also In the Matter of Moore, supra, p 599.
The present record is devoid of any acts or omissions so blameworthy as to rise to the level of culpable neglect. Appellant’s characterological condition appears to have its roots in her childhood and is the result of a long-ingrained pattern of having certain unmet needs. Appellant is cognizant of her problems and has undergone psychotherapy both voluntarily and pursuant to a court order.
Because of her disorder, appellant is continually embroiled in strife with the rest of society but she has carved a special place in her stressful world for Helen. As the probate court found, appellant loves Helen, wants to meet her every need, believes she can provide well for her and raise her appropriately with available supportive services.
While the probate court did find that Helen had been emotionally damaged because of appellant’s disorder, it did not find that the damage was done intentionally. Moreover, it would appear that the involuntary nature of appellant’s disorder combined with appellant’s love for Helen and her willingness to undergo psychotherapy precludes a conclusion of culpable neglect.
2. Unstable and Unsuitable Housing Conditions.
While appellant moved repeatedly after Helen was born and her home was often cluttered, we do not find this to be proof of neglect. Whether the conditions were actually suitable or not, the bulk of the moves were motivated by Joyce’s desire to provide a better environment for Helen. We are loathe to conclude that the manifestation of such a desire constitutes culpable neglect.
3. Other Inconsistencies in Appellant's Parenting.
We know of no parent who is perfect all of the time. The instances cited by the probate court in derogation of appellant’s ability to parent are either the results of honest mistakes or are related to Joyce’s characterological disorder. None of the instances resulted in intentional abuse of Helen.
In summary, we hold that the court’s findings have support in the record but that the findings do not support a conclusion of neglect as defined under the juvenile code. Appellant is an emotionally disturbed person whose condition must certainly improve before Helen is allowed to return to her sole custody, but appellant has done nothing that equates with culpable neglect. Therefore, we reverse the decision of the probate court and reinstate appellant’s parental rights.
The next issue we address is whether the trial court erred in ordering appellant’s treating psychologist, Dr. Singleton, to testify in abrogation of the psychologist-patient privilege. At the termination hearing, the DSS contended that the privilege was abrogated by § 11 of the Child Protection Law, MCL 722.631; MSA 25.248(11). Citing In the Matter of Atkins, 112 Mich App 528; 316 NW2d 477 (1982), lv den 413 Mich 912 (1982), appellant argued that § 11 did not abrogate the privilege because her treatment with her psychologist was not the result of any action taken under the Child Protection Law.
Relying upon In the Matter of Baby X, 97 Mich App 111; 293 NW2d 736 (1980), the probate court ordered appellant’s psychologist to testify, holding that, even if § 11 was not applicable, a parent’s right to confidentiality must give way to the best interests of a child in a neglect proceeding.
We hold that neither the Child Protection Law nor the authority of In the Matter of Baby X, supra, is a correct basis for abrogating the psychologist-patient privilege here and that the trial court erred in ordering appellant’s psychologist to testify.
The Child Protection Law requires certain professionals to report suspected child abuse or neglect to the proper authorities. MCL 722.623; MSA 25.248(3). Section 11 of the act further abrogates all legally recognized privileges except that between attorney and client so that they "shall neither constitute grounds for excusing a report otherwise required to be made nor for excluding evidence in a civil child protective proceeding resulting from a report” made pursuant to the act. MCL 722.631; MSA 25.248(11).
We do not believe that § 11 completely abrogates the psychologist-patient privilege in all child protective proceedings which may have originated by a report made pursuant to the Child Protection Law. Rather, in keeping with the intent of the Legislature to encourage the reporting of child abuse and neglect by all persons, OAG, 1978, No. 5297, p 430, 433 (April 28, 1978), we hold that § 11 abrogates a privilege only where a report is required under the act or where the communications subject to a privilege are offered as evidence of neglect or abuse in a child protective proceeding. See OAG, 1978, No. 5406, pp 724-726 (December 15, 1978).
Because Dr. Singleton’s testimony in the case at bar neither concerned a report made pursuant to the Child Protection Law nor consisted of evidence of neglect or abuse, § 11 is an inappropriate basis for ordering Dr. Singleton to testify in abrogation of the psychologist-patient privilege.
Nor does our decision in In the Matter of Baby X, supra, provide the authority for abrogating such a privilege. The child in that case began exhibiting symptoms of drug withdrawal within 24 hours after its birth, prompting the probate court to take jurisdiction of the child. On appeal, the mother claimed that her right to confidentiality as a drug abuse patient was impaired by the admission into evidence of her drug addiction record.
This Court noted the conflict between Michigan law favoring disclosure of such records in child protective proceedings, MCL 722.631; MSA 28.248(11), and federal law providing confidentiality for drug treatment, 21 USC 1175. The court resolved the conflict between federal and state law on the basis of 25 USC 1175(b)(2)(c) which authorizes abrogation of the privilege against disclosure in 25 USC 1175(a) upon a showing of good cause. The Court thus held that "in neglect proceedings confidentiality must give way to the best interest of the child” where treatment records are "necessary and material” to the state’s proof of neglect. 97 Mich App 120.
In the instant case, there is no Michigan statute which authorizes abrogation of the psychologist-patient privilege upon a showing of good cause. Moreover, Dr. Singleton’s testimony was not "necessary and material” to the state’s proof of neglect. Therefore, the probate court erred in ordering Dr. Singleton to testify on this basis.
The admission of Dr. Singleton’s testimony, however, was harmless beyond a reasonable doubt for the same reason that it should not have been admitted — it was not necessary or material to the state’s proof of neglect. At most, Dr. Singleton’s testimony corroborated the findings of other psychologists whose reports or testimony were admitted in the hearing. The testimony was therefore more cumulative to the evidence than dispositive of the court’s decision to terminate appellant’s parental rights.
Appellant’s final argument on appeal is that the trial court erred in ruling that the Child Protection Law abrogated the confidentiality of DSS records and in ordering the testimony of DSS workers regarding the contents of those records.
At the hearing, the DSS offered its records relating to appellant’s receipt of ADC to show that appellant had changed residences numerous times since Helen’s birth. When called to testify as to the contents of the DSS records, the DSS worker read a prepared objection, referring to both federal and state law providing for the confidentiality of DSS records. In response, the probate court found that while the records were confidential, that confidentiality was abrogated by the Child Protection Law, supra, and ordered the DSS worker to testify.
We agree that the Child Protection Law is not a basis for abrogating the confidentiality attached to these records. The records did not pertain to any evidence of abuse or neglect. (See discussion under second issue, supra.)
However, the admission of this testimony did not prejudice appellant. The DSS worker testified only to appellant’s many addresses, information which could have been secured by any member of the public who submitted a signed application therefor. MCL 400.64(1); MSA 16.464(1). Moreover, through the testimony of other witnesses, evidence that appellant had moved several times was already before the court. Therefore, this issue does not compel reversal.
For the foregoing reasons, the decision of the probate court terminating appellant’s parental rights is reversed._
The identity of the child’s father and his rights are not at issue in this case.
MCL 400.35; MSA 16.435 provides:
"[R]ecords relating to categorical assistance, including medical assistance, shall be confidential and shall not be open to inspection except the state department of social services may promulgate and enforce rules for the use of the records as may be necessary for purposes related to federal, state or local public assistance.”
MCL 400.64(1); MSA 16.464 further provides in pertinent part that "[a] person shall not utter or publish the names, addresses, or other information regarding applicants or recipients except in cases where fraud is charged or wrongful grant of aid is alleged”. These statutes were enacted in compliance with § 402(a)(9) of the federal Social Security Act and § 205.50 of Chapter II, Title 45, Code of Federal Regulations, promulgated to implement that section of the Social Security Act. | [
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Per Curiam.
Defendant, City of Detroit, appeals as of right from a circuit court decision to grant plaintiff Stuart Egan’s motion for summary judgment on his petition for superintending control. Through the petition, plaintiff alleged certain deficiencies in the veteran’s preference act discharge procedures followed by the city. MCL 35.401 et seq.; MSA 4.1221 et seq. Plaintiff, a senior computer systems analyst with the city, was discharged on May 24, 1976, for "official misconduct, habitual, serious or wilful neglect in the performance of duty and incompetency”. As an honorably discharged veteran, plaintiff demanded a hearing under the veteran’s preference act (VPA).
Pursuant to the act, Mayor Coleman Young referred the matter to Alfred Sawaya, supervising assistant corporation counsel with the city law department, for a fact-finding hearing. Hearings were conducted from July 28, 1976, through January 31, 1978, when closing arguments were presented. The city submitted its post-hearing brief on May 3, 1978, but a reply brief was not filed until September 22, 1978. This was apparently due to some concern as to whether Mr. Sawaya would disqualify himself after he allegedly remarked to plaintiff that he would be unable to submit a fair and unbiased report to the mayor. The hearing officer did not submit his report to the mayor until June, 1981, almost three years later. On July 6, 1981, plaintiff filed a circuit court petition for mandamus and injunctive relief, reinstatement and damages. Only then did the city inform plaintiff that the hearing report had been submitted to the mayor June 24, 1981.
When plaintiff sought to obtain a copy of the hearing report, the city refused to produce it until ordered to do so by the circuit court on December 18, 1981. The city, arguing that the report was irrelevant and privileged, unsuccessfully sought an interlocutory appeal to this Court. Plaintiff ultimately received a copy of the Sawaya report in May, 1982. In the interim, on December 4, 1981, the mayor issued his determination sustaining the discharge. On December 16, 1981, plaintiff filed his petition for superintending control with the circuit court.
Alleging that the hearing officer’s report contained no findings of fact, plaintiff moved for summary judgment and a hearing was held on March 25, 1983. Although the trial court agreed that there were no factual findings in the Sawaya report, he initially denied summary judgment on the assumption that the mayor had complied with the procedures set forth in the statute. Plaintiff then filed three requests for admissions with the city seeking to discover whether the mayor had read the hearing transcripts. When the city failed to respond to these discovery requests, plaintiff renewed his summary judgment motion, and the trial court, concluding that the matters in the request for admissions must be deemed admitted, ruled that, since the hearing examiner’s report was inadequate and the mayor did not personally review the transcripts, plaintiff had been denied his right of due process. Defendant’s first two claims on appeal arise from this order.
On January 6, 1984, the circuit court entered an order for reinstatement of plaintiff and he returned to work shortly thereafter. An order and modified order to correct a mathematical mistake in his back pay and benefits award were entered on August 24, 1984, and September 7, 1984. Defendant’s third claim of error concerns this order. Plaintiff has cross-appealed from this order claiming that he has not been made whole by the back pay and benefits awards.
The threshold issue in this case concerns the Michigan veteran’s preference act, and specifically § 402, which outlines the hearing procedures under the act. Section 402 states, in relevant part:
"No" veteran or other soldier, sailor, marine, nurse or member of women’s auxiliaries as indicated in the preceding section holding an office or employment in any public department or public works of the state or any county, city or township or village of the state, * * * shall be removed or suspended, * * * from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * * * before the mayor of any city * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges: * * * Provided, however, That where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within 30 days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act: Provided, however, Said hearing shall be held within 30 days of filing such notice: Provided further, That the mayor of any city * * * may refer any protest where a veteran is removed, transferred, suspended or discharged, to the legal department of- such city or village for a hearing. The legal department shall act as a fact finding body and shall have the power to examine witnesses, administer oaths and do all those things which the mayor could do hereunder: Provided further, That the findings shall be transmitted to the mayor in writing by the legal department, whereupon the mayor shall examine the transcript of the hearing and make a decision based on the transcript thereof * * MCL 35.422; MSA 4.1222.
As noted above, Hearing Officer Sawaya reported the results of plaintiffs VPA hearing to Mayor Young in a letter dated June 24, 1981. By letter dated December 4, 1981, Mayor Young upheld plaintiffs 1976 discharge. Plaintiff then filed a petition for superintending control alleging numerous deficiencies in the city’s discharge procedures. At a hearing held March 25, 1983, plaintiff argued that the hearing officer’s report was in total noncompliance with the statutory language requiring that the hearing officer make findings of fact. Plaintiff suggested that, with such a deficient report, the mayor could not have used the report to facilitate his review of the transcript as is required under the VPA. While agreeing with plaintiffs characterization of the hearing report as totally inadequate, the trial court concluded that summary judgment was not appropriate since the mayor might have based his decision upon his own review of the transcripts without relying upon the inadequate report.
Subsequently, however, plaintiff posed three requests for admissions to the city in an attempt to discover whether Mayor Young had in fact personally reviewed the hearing transcripts. When no response was received from the city, plaintiff renewed his summary judgment motion. In an opinion dated December 12, 1983, the trial court indicated that, due to the city’s failure to respond to the request for admissions, it must be concluded that the mayor did not personally examine the transcript. Thus, plaintiffs summary judgment motion alleging a deprivation of due process hinged upon the sufficiency of the findings of fact made by the hearing examiner. Since these findings were clearly inadequate under the act, the court found that plaintiffs due process rights had been denied.
On appeal, defendant first attacks this finding by arguing that the trial court exceeded the scope of review, which defendant claims is limited to determining whether plaintiffs discharge was supported by competent, material and substantial evidence on the whole record. We agree with defendant that, where the procedures outlined in the act are followed and a proper decision is rendered by the mayor, the circuit court review of that decision is limited to the review function claimed by the defendant. DeGraaf v City of Allegan, 91 Mich App 266, 270-271; 283 NW2d 719 (1979). However, a preliminary issue was presented to the trial court in the instant case, i.e., whether the procedures outlined in § 402 were violated by the defendant. As noted earlier, § 402 provides that, where such matters as these are referred to the city law department, the findings of fact made by the department "shall be transmitted to the mayor in writing * * *, whereupon the mayor shall examine the transcript of the hearing and make a decision based on the transcript thereof * * If, as found by the trial court here, the law department failed to submit fact-findings to the mayor and the mayor did not examine the hearing transcripts, the mayor’s decision could not have been based upon competent, material and substantial evidence in the record.
The essence of defendant’s argument is that so long as the record contains sufficient evidence it is not relevant whether the mayor’s decision resulted from an examination of the record and consideration of the evidence. Aside from the fact that such a proposition ignores the explicit requirements of the statute, the implication is that the circuit court should be expected to undertake a review of the transcripts, which in the present case totalled over 1,100 pages, in order to extricate testimony therefrom which would justify the mayor’s decision. We reject this notion and conclude that the trial court did not exceed the scope of its review when it found that plaintiffs due process rights were denied as a result of the defendant’s violation of the procedures set forth in the VPA.
The next issue concerns the trial court’s conclusion that, by failing to respond to the plaintiffs request for admissions, defendant should be deemed to have admitted the allegations contained therein. The request sought the following information:
"1. Admit that Coleman Young, Mayor of the City of Detroit, in his official capacity did not personally review each and every page of the transcript of the Veteran’s Preference Hearing of Stuart Egan conducted between July 1976 and January 1978, prior to the Mayor’s December 4, 1981 written determination in this action.
"2. Admit that Coleman Young, Mayor of the City of Detroit, in his official capacity did not personally inspect and review each and every exhibit numbered and admitted and incorporated as part of the record of the Veteran’s Preference Hearing of Stuart Egan, conducted between July 1976 and January 1978, prior to the Mayor’s written determination in this action on December 4, 1981.
"3. Admit that any review of the above transcripts, exhibits and/or records was done by a member or members of the administrative staff df the Mayor of the City of Detroit.”
Defendant argues that the request for admissions was an improper inquiry into the mental or decision making processes of the mayor, citing Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, 130 Mich App 470; 344 NW2d 321 (1983). We disagree since we believe that Great Lakes is easily distinguishable. For example, the plaintiffs in that case requested "any document, note, memorandum, letter or similar writing, however characterized, which was in any way relied upon or referred to by either member of the majority” of the Michigan Public Service Commission. Great Lakes, supra, p 490. (Emphasis in original.) In contrast, the request at issue here was not concerned with the mayor’s mental process, but rather was designed only to discover an objective fact, i.e., whether the mayor actually examined the hearing transcripts before rendering his decision, as required by the statute.
Furthermore, we believe that plaintiffs request for admissions could be justified under either of the two exceptions to the "thought process rule”. Great Lakes, supra, p 491. The entirely unreasonable length of time which transpired between plaintiffs request for hearing under the VPA and the mayor’s issuance of a decision upholding the dismissal provides significant indicia of a demonstration of "bad faith or improper behavior” on behalf of the decision makers. Further, the second exception, i.e., "where the administrative record is inadequate to explain the action taken”, Great Lakes, supra, p 491, seems designed specifically for the situation presented here. Defendant does not seriously dispute that the hearing report is bereft of factual findings, and the mayor’s letter uphold ing the dismissal set forth the actual grounds in generic terms, i.e., "official misconduct, habitual, serious and wilful neglect of duty”. We conclude that the trial court did not err in presuming the accuracy of the information contained in plaintiffs request for admissions.
The next issue to be addressed concerns the damage award rendered in this case. In addition to an award of $132,495.26 representing back pay for the period from plaintiffs dismissal in June, 1976, until his reinstatement on January 12, 1984, the trial court awarded $17,887.15 for the cost of fringe benefits lost during the period and social security benefits differential in the amount of $9,182.52. The defendant now argues that the latter two awards were an abuse of the trial court’s discretion since they are not authorized under the VPA. The applicable section of the act, MCL 35.402; MSA 4.1222, provides in pertinent part:
"That where such veteran has been reinstated to his employment * * * then such veteran shall be entitled to receive compensation for the time lost from date of such dismissal or suspension to the date of reinstatement at the same rate of pay received by him at the date of dismissal or suspension.”
Defendant argues that, since the statute language does not refer to fringe benefits and since the reported cases on damages under the VPA do not specifically allow the recovery of such fringe benefits, these monetary awards must be reversed. In short, defendant’s position is that the statutory term "compensation” must be narrowly defined and thus limited solely to the rate of pay at the time of dismissal.
While defendant’s position on this matter is entirely reasonable, we agree with the trial court that the term "compensation” should not be construed so narrowly as to constitute no more than a synonym for "salary”. Although not controlling because it did not involve a construction of the VPA, we believe this Court’s opinion in Gentile v City of Detroit, 139 Mich App 608; 362 NW2d 848 (1984), offers guidance. In Gentile, this Court was asked to consider whether the terms "average final compensation” and "earned compensation”, as used in the city charter, were intended to include various fringe benefits. In construing the terms, the Court borrowed Justice Cooley’s rule of "common understanding”, i.e., that a term should be given the interpretation which "reasonable minds, the great mass of the people themselves, would give it”. Gentile, supra, p 614 (emphasis changed), quoting from Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971). After perusing a variety of cases dealing with similar topics, the Court concluded that only those benefits which would be subject to income taxation as a portion of earned income should be considered a part of plaintiff’s "compensation”. The court treated the various disputed aspects of compensation as follows:
"We have no difficulty with longevity pay, holiday pay, and vacation pay, leave time, ovértime, shift differential and cost of living allowance. They are normal payments made regularly in the course of the plaintiffs’ work for regular work done. Food allowance is reimbursement for out-of-pocket expense and would normally not be considered pay or compensation. Certainly no one thought Uncle Sam should have his cut of this as part of the plaintiffs’ income.
"Hospitalization, medical and dental insurance should not be included. We feel that in common parlance these items are considered true 'fringe benefits’ and not a part of pay or compensation. Again, they are the types of benefits most believe should not be subject to income taxation as a portion of earned income.
"Optical care, life insurance, death benefits, and funeral leave days correspond to hospital and medical insurance. Personal leave days are synonymous to holiday and vacation pay and should be included in the computation. Excuse time, recall pay, sick leave, bonus vacation days and emergency leave days are similar to funeral leave days. They really are bonus benefits for unusual situations and are not normal remuneration for normal work. We feel the common understanding would be that they were something extra and not to be considered as pay or compensation for a basis for a pension system.” 139 Mich App 618-619.
The Court also excluded accrued overtime, vacation and sick leave pay since such payments were "not made regularly during a worker’s tenure with the city”, 139 Mich App 619, quoting Stover v Retirement Bd of the City of St Clair Shores Firemen & Police Pension System, 78 Mich App 409, 412-413; 260 NW2d 112 (1977).
Again, although Gentile is not controlling here, we believe the distinction used to define "compensation” in that case offers a sensible approach to a difficult question. Thus, we conclude that plaintiff should receive as damages for the improper dismissal only those types of lost benefits which would be subject to income taxation as a portion of earned income. Unfortunately, the record here does not clearly indicate specifically which benefits were included by the trial court to make the award of $17,887.15 to plaintiff. However, according to the defendant, the trial court included such items as Blue Cross/Blue Shield coverage. As noted above, we do not believe such a benefit should be included within the term "compensation” under the VPA. Since we are unable to determine from the record before us the precise makeup of the trial court’s award of $17,887.15 in fringe' benefits, we remand this case for reconsideration of that award in light of the definition of the term ."compensation” which we have adopted herein.
The trial court also awarded $9,182.52 for social security contributions allegedly lost during the period of dismissal. The exact method used to reach this figure is unclear, but was apparently based upon the extent to which plaitifFs social security benefits will be reduced due to the absence of contributions into the social security system on his behalf during the period of his dismissal. Utilizing the definition of compensation noted above, we have no difficulty concluding that plaintiff should not have received an award of damages on this basis. Any contribution into the social security system which would have been made by the defendant on plaintiff’s behalf could not, to reasonable minds, be considered compensation to the plaintiff. These contributions are made only by mandate of a federal law which was designed to promote overall societal interests rather than to provide additional compensation to this plaintiff. We have no doubt that, in the absence of these federal laws, plaintiff’s compensation package would not be increased proportionately to make up the differential. In short, we do not. believe that the Legislature intended such an award to be included as damages under the veteran’s preference act.
1 In his cross-appeal, plaintiff complains that the trial court erred in reducing the amount of his award by the sum of money he earned through private consulting work. Plaintiff relies upon Cremer v Alger County Road Comm’rs, 325 Mich 27; 37 NW2d 699 (1949), where the Court dealt with a similar issue as follows:
"There is no merit to defendant’s further contention: 'If plaintiff was wrongfully discharged, his recovery should be reduced by the amount he could earn at general labor for the defendant.’ The reason defendant urges in support of this contention is that it was plaintiff’s 'duty to mitigate the damages by taking other employment.’ The answer is that the statute, which is class legislation favoring honorably discharged veterans, in part reads:
" 'And provided further, That where such veteran has been reinstated to his employment upon the written order of the * * * prosecuting attorney if a county employee, * * * then such veteran shall be entitled to receive compensation for the time lost from date of such dismissal or suspension to the date of reinstatement at the same rate of pay received by him at the date of dismissal or suspension.’
"While it fairly appears that plaintiff declined to return to defendant’s employ as a common laborer, he testified he sought employment elsewhere and stated to one to whom he was applying: T would try anything.’ ” 325 Mich 34.
Even assuming that, pursuant to Cremer, a plaintiff’s failure to mitigate his damages by obtaining like employment cannot be relied upon to reduce his award under the veteran’s preference act, we believe this proposition does not prevent a reduction of the monetary award where plaintiff has in fact had earnings during the period of dismissal. If we were to accept plaintiff’s argument, a veteran who has obtained interim employment at a higher wage during the entire dismissal period would nonetheless be entitled to full back pay for the period. We cannot believe the Legislature intended to bestow such a windfall since damages are generally designed to compensate for harm done. In the scenario suggested above, the improperly dismissed veteran has suffered no harm, at least financially, and thus, while entitled to reinstatement to his former position, he should not receive an award for back pay. Therefore, we conclude that the trial court properly reduced plaintiffs award by the amount of income earned by plaintiff during the period of his dismissal from city employment.
However, we do find merit to plaintiffs argument that his award of back pay should have included automatic salary increases to which he would have been entitled had he not been dismissed by the defendant. Although the VPA provides only for compensation "at the same rate of pay received by him at the date of dismissal”, we believe the Legislature intended any award to include automatic, as opposed to merit, pay increases which the employee would have received. On remand, the trial court should therefore include such pay increases in recalculating the award.
Plaintiff also contends that the trial court abused its discretion in refusing to award him costs and attorney fees pursuant to GCR 1963, 111.6. Our review of the record reveals no such abuse. Minor v Michigan Education Ass’n, 127 Mich App 196; 338 NW2d 913 (1983).
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] |
Per Curiam.
Defendant, Craig James McNabb, was charged with reckless driving, contrary to § 5.14 of the Uniform Traffic Code as adopted by the City of Harbor Springs. On January 14, 1985, defense counsel filed a demand for information, including a demand for a copy of the police report in the case. At a February 5, 1985, pretrial conference, the city attorney offered defense counsel an opportunity to review the report in the city attorney’s office. Defense counsel stated that this was not sufficient and that he wanted an actual copy of the police report. The city attorney refused to provide a copy, stating that he would do so only if ordered by the district court.
Defense counsel then filed in district court a motion for disclosure of the police report and other information necessary for preparation of the defense. The district court denied the motion. Defense counsel then filed for interlocutory leave to appeal to the circuit court. The circuit court, however, denied defendant’s motion. Defendant now appeals by leave granted to this Court. We reverse the lower court decisions and remand this case to the district court for further proceedings.
In In re Bay Prosecutor, 109 Mich App 476; 311 NW2d 399 (1981), lv den 411 Mich 1002 (1981), this Court reinstated a district court dismissal of criminal charges because the prosecutor therein refused to provide a copy of police reports to the defendants. In that regard, the Bay Prosecutor Court stated:
"The problem cannot be cured by the fact that the prosecutor read the police report to defense counsel and was willing to let him see it in the courtroom. Having the report read to the attorney immediately arouses suspicion that the material is being edited or censored. Moreover, such brief exposure to the report, be it in the prosecutor’s office or the courtroom, does not lend itself to the type of study, contemplation, and analysis that the preparation of a criminal matter of this nature requires. Fundamental fairness requires full disclosure, which can be accomplished only by providing copies of the police report.” 109 Mich App 485-486.
We agree with that analysis and hold that fundamental fairness requires that a copy of the report be supplied in this case. The district court therefore abused its discretion in denying defendant’s request.
We note that the city attorney was willing to allow defense counsel unlimited review of the report in the city attorney’s office. However, for some unexplained reason he refused to supply defense counsel with a copy of the report. Thus, the issue in this case is not whether defendant should be allowed access to the information contained in the report. Rather, the question is simply whether defendant is entitled to a printed copy of the report. The city attorney offered no justification for his action, but is apparently playing some sort of game. On the basis of this record, we can discern no legitimate reason for the city attorney to refuse defense counsel’s request for a copy while at the same time supplying the requested information to defense counsel by way of visual display. Without any further information, the cost of copying would appear to be the only burden on the people if a copy were provided. In light of defense counsel’s asserted willingness to pay the reasonable cost of copying, there is no justification for the people’s refusal.
The people contend on appeal that defendant must give a specific reason for needing the police report and that defendant has failed to show facts which would indicate that the information is necessary to a preparation of the defense. The people’s argument is not on point. The question before this Court is not one of whether defendant should be allowed access to the information contained in the report. Throughout the lower court proceedings, the city attorney maintained a continuing offer of disclosure of the information contained in the police report by means of visual review in his office. Moreover, the underlying information is obviously necessary to a preparation of the defense in this case. The information is contained in the initial police report which provided the basis for the prosecution’s case against defendant. While, on rare occasion, a situation might arise where the information contained in such a report would not be necessary to the preparation of a defense, such an occasion would be exceptional.
In accord with People v Denning, 140 Mich App 331; 364 NW2d 325 (1985), we do not intend by this opinion to allow defendants access to all police reports without restriction. Cases may arise with special circumstances or with numerous reports involved. However, we hold that fundamental fairness requires defendants to have access to, and copies of, the initial police report such as the one involved in this case. Without an opportunity for in-depth review of the information regarding the underlying facts of the case as stated by the police officers involved, a defendant may not be able to choose a defense theory under which to proceed.
The case is remanded to the district court, whereupon the prosecution shall without delay provide a copy of the report to defendant. The prosecution shall also turn over to defendant any other information which may aid him in establishing truth at trial.
Remanded. We retain no jurisdiction. | [
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D. E. Holbrook, Jr., P.J.
This action arises from petitioner’s application for general assistance and aid to families with dependent children (AFDC) benefits on behalf of himself, his wife and their three children. His application was denied pursu ant to the Department of Social Services’ (DSS) Assistance Payments Manual (APM), Item 210, which provides in pertinent part that:
"For the three years following an alien’s date of entry into the United States (U.S.), the income and assets of the alien’s sponsor must be considered in determining the ADC/GA eligibility of the alien * * *.
"The income and assets of the sponsor must be evaluated to determine if a portion of the income and assets are deemable, i.e., considered available without proof of actual contribution, to a sponsored alien(s) included in an ADC/GA group.
"The portion of the assets and income of the sponsor that are determined tó be deemable to the alien are considered available to the sponsored alien even if the sponsor does not actually make a contribution or states he has given up sponsorship responsibilities.”
A sponsor is defined in APM, Item 210, as follows:
"A sponsor is a person who signed an affidavit or other statement accepted by the Immigration and Naturalization Service (INS) as an agreement to support an alien as a condition of the alien’s admission for permanent residence in the U.S.”
Petitioner and his family are resident aliens, lawfully residing in the United States for less than three years. Petitioner’s admission was sponsored by his wife’s father. The DSS calculated the sponsor’s income and found that the sponsor’s deemable income exceeded what petitioner needed, and therefore denied the application. Petitioner appealed from the decision to circuit court. At the hearing, petitioner abandoned his claim for AFDC benefits and proceeded only in regard to his claim for general assistance. The circuit court reversed DSS by holding that the policy contained in the APM did indeed violate petitioner’s rights under Const 1963, art 10, § 6, and US Const, Am XIV. The DSS now appeals from the circuit court order.
DSS argues that the purpose of the programs is to make limited public welfare funds available to those people in the greatest need. DSS also argues that the classification in the APM, Item 210, is similar to many other regulations which require the state to hold ineligible those who have persons or entities with legal or moral obligations to them. DSS points to the stepparent income policy which requires that the income of a stepparent who is living in the home of a child on whose behalf assistance is sought is deemed as income available to the child, even if the stepparent has no legal obligation to the child. Likewise, the income of any grandparent, aunt, uncle, cousin, niece or nephew, or others who are living in the same house as a general assistance applicant, is deemed available to the applicant. Thus, DSS contends that the basis of the classification complained of is not alienage, but rather is the existence of a source of income which may be reasonably deemed available to petitioner. We do not agree with DSS and we find that the classification is indeed based on alienage. The other examples DSS gives are applicable to all regardless of citizenship; whereas the APM, Item 210 is only applicable to aliens. Furthermore, the other examples deal with deeming income from others who live in the home of the applicant. We find this regulation to be directed solely at aliens. As the United States Supreme Court said in Nyquist v Mauclet, 432 US 1, 9; 97 S Ct 2120; 53 L Ed 2d 63 (1977):
"The important points are that [that statute] is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class. Cf., Mathews v Lucas, 427 US 495, 504-505, fn 11; 96 S Ct 2755; 49 L Ed 2d 651 (1976); Weber v Aetna Casualty & Surety Co, 406 US 164, 169, 172; 92 S Ct 1400; 31 L Ed 2d 768 (1972).” (Footnotes omitted.)
DSS argues that even if the APM, Item 210, is a classification based upon alienage, it is not an unconstitutional classification. DSS’s arguments relating to the AFDC program are not well taken. Petitioner has abandoned his AFDC claim and we agree that the United States Congress is allowed to treat aliens differently than citizens. Mathews v Diaz, 426 US 67; 96 S Ct 1883; 48 L Ed 2d 478 (1976). However, Michigan’s general assistance program is entirely funded by the state. MCL 400.1 et seq.; MSA 16.401 et seq. Therefore, we are dealing with the state’s ability to treat aliens differently.
Since " '[a]liens as a class are a prime example of a "discrete and insular” minority * * * for whom * * * heightened judicial solicitude is appropriate’ * * * restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny”. Cabell v Chavez-Salido, 454 US 432, 438, 439; 102 S Ct 735; 70 L Ed 2d 677 (1982), quoting Graham v Richardson, 403 US 365, 372; 91 S Ct 1848; 29 L Ed 2d 534 (1971); In re Griffiths, 413 US 717; 93 S Ct 2851; 37 L Ed 2d 910 (1973). Since the classification in the present case affects economic interests, it is inherently suspect and subject to close judicial scrutiny.
In undertaking this close judicial scrutiny, this Court must carefully examine the "governmental interest claimed to justify the discrimination” in order to determine whether the interest is "legitimate and substantial”. Further inquiry must be made to determine whether the "means adopted to achieve the goal are necessary and precisely drawn”. Nyquist, supra, 432 US 7.
While we find the state interest to be legitimate and substantial, the regulation is not precise nor is it necessary to achieve the state goal of insuring that the limited funds go to those most in need. It is undisputed that petitioner’s sponsor is not providing him with funds, thus he and his family are probably quite in need of public funds. A more narrowly drawn policy providing that income actually available to any general assistance applicant from another source (i.e., spouse, sponsor, grandparent, stepparent, etc.) may be considered would protect DSS’s interest in preserving limited funds while assisting those truly in need. Additionally, such a policy would not discriminate between citizens and aliens. We note the United States Supreme Court’s statement that:
" '[justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of [resident] aliens. Aliens like citizens pay taxes and may be called into the armed forces. * * * may live within a state for many years, work in the state and contribute to the economic growth of the state.’ ” Graham, supra, 403 US 376, quoting Leger v Sailer, 321 F Supp 250, 253 (ED Pa, 1970).
We find this issue to be dispositive and thus we do not address petitioner’s argument regarding property rights. Accordingly, the order of the circuit court is affirmed, resulting in the APM, Item 210, being held unconstitutional.
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Per Curiam.
The City of Saginaw appeals as of right from and adverse determination by the Michigan Employment Relations Commission (MERC). The Saginaw Stage Employees Local 35, IATSE had filed the charge with MERC alleging that the city had refused to bargain with the union, contrary to § 10 of the public employment relations act, MCL 423.210(1)(e); MSA 17.455(10)(1)(e).
The union’s members include stagehands, sound and light technicians, projectionists, and other individuals needed to stage theatrical events. Union members were called to perform stagehand work at the Saginaw Civic Center whenever personnel were needed beyond the few full-time stagehands who were employees of the city. Prior to July, 1982, the union’s members, by contract, were the only individuals, with the exception of the previously mentioned full-time employees, who were used for shows at the Saginaw Civic Center. Now the city employs 12 part-time employees to perform the work previously performed by the full-time stagehands and the union’s members. Tenants who stage events at the Saginaw Civic Center are no longer obligated, as they were in the past, to use only the union’s members.
Review of decisions by MERC involves a determination of whether the decision is authorized by law and whether the commission’s findings are supported by competent, material, and substantial evidence on the whole record. Michigan Educational Support Personnel Ass’n v Evart Public Schools, 125 Mich App 71, 73; 336 NW2d 235 (1983); Const 1963, art 6, § 28; MCL 423.23 subds (e) and (f); MSA 17.454(25) subds (e) and (f). MERC’s decision concluded that the union members were employees of the city. We disagree and find that MERC was in error in so holding.
The general characteristics of employers are: (1) that they select and engage the employee; (2) that they pay the wages; (3) that they have the power of dismissal; and (4) that they have power and control over the employee’s conduct. AFSCME v St Clair County, 136 Mich App 721, 736; 357 NW2d 750 (1984), lv granted 422 Mich 856 (1985), quoting from Wayne County Civil Service Comm v Wayne County Bd of Supervisors, 22 Mich App 287, 294; 177 NW2d 449 (1970), rev’d in part 384 Mich 363; 184 NW2d 201 (1971).
Prior to July, 1982, when, based on a tenant’s requirements, additional help was heeded at the civic center, either a city stagehand or the tenant, per instructions from the city, would contact the union. Whoever called would inform the union of the needs for a particular show, such as the number of stagehands, truckloaders, riggers, and sound and light technicians. The union’s business agent would determine who would work a particular show. The union would send a steward only if the number of union members requested had reached a certain amount. If a steward was sent, he supervised, after being given instructions concerning the specific needs of a show. If a steward was not present, city stagehands would direct the union members.
The union members were paid by the hour. Payment was made in a lump sum to the union and then disbursed by the union to its members. If an event in which the union members worked involved no ticket sales, payment was made directly from the tenant to the union. Following events in which tickets were sold, the civic center paid the union a lump sum from an escrow account established from ticket sales.
The union did all hiring and screening of applicants. The union’s business agent determined the classification of individual workers. The city never fired or disciplined a member of the union. Occasionally, the city would specify persons from the union whom they did nor did not want to work a show, but this was done only when requests were made by the tenant.
On these facts, we find that the City of Saginaw was not the employer of the union members. The union determined who worked each show, the tenants paid the wages of the union members, and the city never fired a member of the union. The only time the city had control over the conduct of the union members was when a particular show did not require a large enough number of stagehands to merit sending a union steward to supervise the union members. Thus, based on the Wayne County factors, the city was not the employer and therefore was under no duty to bargain with the union.
Our resolution of this issue makes it unnecessary to address whether the union members were casual employees of the city.
Reversed. | [
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] |
Per Curiam.
This is an interpleader action to determine whether appellant Church, ex-wife of decedent Johnny Wilmore, or appellee lima Wilburn Wilmore, widow of the deceased, is entitled to the proceeds of an insurance policy on the life of the deceased. The policy in question was issued by plaintiff Metropolitan Life Insurance Company. Cross-defendant-appellant Church appeals as of right from the trial court’s award of summary judgment to cross-plaintiff-appellee, pursuant to former GCR 1963, 117.2(3), now MCR 2.116(C)(10). We affirm.
In considering a motion under GCR 1963, 117.2(3), the court must interpret all facts, giving the benefit of any reasonable doubt to the nonmoving party. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). So interpreted, the facts are that on October 25, 1966, before the decedent and Church were married, and before they even contemplated marriage, the decedent made Church the beneficiary of this life insurance policy. The insurance policy listed Church as a "friend”. Church and the decedent were married November 5, 1967. They were divorced on August 6, 1971. The judgment of divorce provided in pertinent part:
"INSURANCE
"IT IS FURTHER ORDERED AND ADJUDGED that any rights of either party in any policy or contract of life, endowment or annuity insurance of the other, as beneficiary, are hereby extinguished unless specifically preserved by this Judgment.”
Decedent did not change his beneficiary after the divorce, and he and Church remained friends. On October 25, 1975, decedent and appellee were married. On August 13, 1983, Mr. Wilmore died. The applicable statute on the date of the WilmoreChurch divorce in 1971 read as follows:
"Hereafter every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment or annuity upon the life of the husband in which she was named or designated as beneficiary, or to which she became entitled by assignment or change of beneñciary during the marriage or in anticipation thereof, whether such contract or policy was heretofore or shall hereafter be written or become effective, and unless otherwise ordered in said decree such policy or contract shall thereupon become and be payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate: Provided, That the company issuing such policy or contract shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless before such payment the company shall have written notice, by or on behalf of the insured or the estate of the insured or one of the heirs of the insured, or any other person having an interest in such policy or contract of a claim thereunder and the aforesaid divorce.” MCL 552.101; MSA 25.131 (emphasis added).
After initially denying appellee’s motion for summary judgment on the ground that whether or not Ms. Church was named as beneficiary in anticipation of marriage created a question of fact, the trial judge, on reconsideration, granted the motion. This appeal resulted.
Appellant argues that MCL 552.101; MSA 25.131 is not applicable to the present case because she was named Mr. Wilmore’s beneficiary due to their friendship and not in anticipation of or during marriage. Appellant succinctly states her position in her appeal brief as follows:
"Cross Defendant-Appellant respectfully submits that if the Legislature of the State of Michigan had intended the statutory phrase, 'in which she was named or designated as beneficiary’, to eliminate the rights of all women who were named as beneficiaries on policies of insurance prior to the time they became the spouses of their later divorced and deceased ex-mates, it would not have included the language, 'or to which she became entitled by assignment or change of beneñciary during the marriage or in anticipation thereof.’ in this enactment of MCLA 552.101.” (Emphasis added.)
In other words, appellant asserts that the language "or to which she became entitled by assignment or change of beneficiary during the marriage or in anticipation thereof’ is unnecessary if the statute was intended to eliminate claims of all women who became beneficiaries prior to the time they were married. It therefore must be, according to appellant, that the Legislature intended women who became beneficiaries before there was any thought of marriage were not within the purview of this statute. Appellant cites no authority for this position.
The interpretation of statutes indeed includes a rule that, if possible, meaning must be given to every word, sentence and section. However, this rule, and all others, are subordinate to the primary goal of determining the intent of the Legislature:
"There seems to be no lack of harmony in the rules governing the interpretation of statues. All are agreed that the primary one is to ascertain and give effect to the intention of the legislature. All others serve but as guides to assist the courts in determining such intent with a greater degree of certainty. If the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. The rule is no less elementary that effect must be given, if possible, to every word, sentence and section. To that end, the entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.” City of Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).
The use of the disjunctive "or to which” in the appellant’s quote above renders the statute unambiguous despite the redundant language. A careful reading of the statute without that language leaves no doubt that the Legislature intended that all rights of the wife in and to the proceeds of any contract of insurance upon the life of the husband, in which the wife who is being divorced was named as beneficiary at the time of the divorce, regardless of when and how she was named, were to be determined by the judgment.
Where the statute is unambiguous the court may not change the plain meaning by interpretation, unless a literal reading would produce an absurd or unjust result. Owendale-Gagetown School Dist v State Board of Education, 413 Mich 1, 8; 317 NW2d 529 (1982). The purpose of the 1939 amendment to MCL 552.101; MSA 25.131 was to resolve the situation where a divorced wife could inadvertently receive the proceeds of a forgotten policy.
"Prior to the addition in 1939 of the above-quoted portion of the statute to MCLA § 552.101, the wife was entitled to the proceeds of the policy when she remained the designated primary beneficiary after a divorce. Ancient Order of Hibernians v Mahon (1922), 221 Mich 213, and Guaranteee Fund Life Association v Willett (1927), 241 Mich 132. The effect of the amendment, as stated in the title to the statute, in the judgment of divorce, and, in the statute itself, was to affect the interest of the wife in the insurance policy and thus cure the situation where a divorced wife could inadvertently receive the proceeds of a perhaps forgotten policy. 'Inadvertently receive’ should be stressed for the statute does not prohibit the husband or divorce judgment itself from retaining or renaming the wife as the primary beneficiary. It simply requires affirmative action on the part of the court or husband to retain the divorced wife as the primary beneficiary and thus eliminate what could be, and usually appears to be, the inadvertent payment of the life insurance proceeds to a divorced wife.” Starbuck v City Bank & Trust Co, 384 Mich 295, 299; 181 NW2d 904 (1970) (emphasis in original).
The legislative purpose, absent the superfluous language, brings the instant case unquestionably within the meaning of the statute because appellant was the beneficiary at the time of the divorce, no affirmative action was taken by the deceased, and the fact that he was married to appellee nearly eight years before his death makes it likely that the failure to change beneficiaries was inadvertent. Giving the statute that meaning in this case does not produce an absurd or unjust result. On the contrary, it gives the proceeds to decedent’s heirs or beneficiaries at the time of his death, rather than to a wife divorced 13 years before; the result that one would expect in the ordinary circumstances of life.
Had the Legislature intended the result for which appellant contends, simply changing the words "or to which” to "provided that” could have accomplished that purpose. That fact, coupled with the language used, outweighs any question arising from the apparent redundancy.
Affirmed. | [
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Shepherd, J.
On April 10, 1985, defendant was arrested in his apartment in Detroit and charged with unarmed robbery, MCL 750.530; MSA 28.798. Defendant filed a motion to suppress all evidence flowing from the alleged illegal arrest, arguing: (1) that his arrest was without probable cause, and (2) that the entry without a warrant into his home to make the arrest violated the Fourth Amendment prohibition against unreasonable searches and seizures. Following an evidentiary hearing, the trial court found that there was probable cause to make the arrest but nevertheless granted defendant’s motion to suppress on the ground that defendant’s brother, who admitted the arresting officers, had no authority to consent to the officers’ entry into the apartment. The prosecution, by leave granted, appeals from the trial court’s order. We reverse and remand for trial.
On April 10, 1985, several police officers went to defendant’s apartment building after receiving an anonymous tip identifying defendant as the perpetrator of a number of purse snatchings in a particular area in Detroit. The caller gave the alleged thiefs name, address and apartment number, as well as his description. Sergeant Wicker took the phone call and later compared the description given by the caller to that given by various victims. After concluding that the descriptions were similar, Sergeant Wicker and three other police officers went to the apartment building to see if there was such an address and to see if the person named by the caller lived there and matched the description.
There is no significant dispute as to what happened when the police arrived. According to Sergeant Wicker, he rang the buzzer for the apartment the caller had identified. After a few seconds, Courtney Matthews, defendant’s brother, came down and answered the door. Wicker told Matthews that he was looking for Stephen Gary and wanted to talk to him. Wicker also testified that he thought he asked Matthews whether he stayed in the apartment and received no answer to that question. Matthews testified that the officers merely identified themselves as police officers and stated that they were looking for Steven Gary. He testified that his response was "I said, yes, he lives upstairs. I said, I am his brother. I said, come on in and I opened the door and let them in”. Wicker and another officer then followed Matthews up the stairs and into the apartment. Once inside the apartment, Matthews called out to defendant, who was in a bedroom, that someone was there to see him. According to Sgt. Wicker, when defendant came into the living room he (Wicker) could see that he matched the general description given by the caller and victims and immediately placed him under arrest. The police subsequently discovered that Matthews was only a visitor in the apartment, not an occupant. Matthews testified that he had come to the apartment about a half hour earlier and happened to answer the door because he was expecting a friend and defendant and defendant’s girlfriend, who lived in the apartment, were both busy. Defendant told Matthews to "go downstairs and let him in”.
Neither party contests the trial court’s finding that there was probable cause to make the arrest, although they disagree as to when probable cause arose. The defendant states that probable cause existed before the entry, while the prosecution states that the police had no probable cause until they saw defendant. We need not decide that issue since we find that the critical issue is whether there was a valid consent to the entry.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. The language of the amendment applies equally to seizures of persons and seizures of property. Payton v New York, 445 US 573, 585; 100 S Ct 1371; 63 L Ed 2d 639 (1980). An arrest without a warrant inside a private home is improper and unreasonable under the Fourth Amendment in the absence of exigent circumstances or consent to the entry. People v Oliver, 417 Mich 366, 379; 338 NW2d 167 (1983). In determining the validity of a consent, the trial court must examine the totality of the circumstances. People v Brown, 127 Mich App 436, 440-441; 339 NW2d 38 (1983), lv den 419 Mich 896 (1984). When the prosecution seeks to justify an entry without a warrant by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the consent was given by a third party who had equal possession or control of the premises. People v Melvin Davis, 146 Mich App 537; 381 NW2d 759 (1985).
On appeal, the prosecution seeks to justify the arrest without a warrant inside the apartment by claiming that Matthews consented to the entry. We agree that Matthews did consent to the entry but disagree that he possessed actual authority to give the consent to admit the officers. However, that conclusion does not end our inquiry. In United States v Matlock, 415 US 164, 177, fn 14; 94 S Ct 988; 39 L Ed 2d 242 (1974), the Supreme Court "expressly left open the question of whether a search without a warrant may be sustained merely upon a showing that the searching officers reasonably, albeit erroneously, believed that the consenting party had sufficient authority over the premises to permit the search”. People v Wagner, 114 Mich App 541, 548-549; 320 NW2d 251 (1982). In analyzing the issue of the apparent authority of a third party to consent to a search, this Court in Wagner applied the test set forth in People v Adams, 53 NY2d 1, 9; 439 NYS2d 877; 422 NE2d 537 (1981):
" 'We would agree that where the* searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that that individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed. * * * We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party’s power or control over the premises or property to be inspected. In such instances, bare reliance on the third party’s authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule.’ ” 114 Mich App 549-550.
In Wagner, we concluded that the police reasonably could not have believed that the consenting third party had a sufficient relationship to the premises to consent to the entry since, when police asked the third party whether he lived in the house, he indicated only that the defendant’s girlfriend rented the house. Id., pp 550, 572. See also, People v Wagner, 104 Mich App 169, 177; 304 NW2d 517 (1981) (connected case).
In the present case, Matthews, who had been told by defendant to allow the entry of a person believed to be Matthews’s friend, appeared at the door to the apartment building after the police rang the buzzer to defendant’s apartment. Matthews invited the officers inside and informed them that defendant did live in the apartment and that he was defendant’s brother. He then led the officers up to the apartment.
We conclude that under these circumstances the officers reasonably could have believed that Matthews did, in fact, have the authority to consent to the search. The police had no independent information which would lead them to question Matthews’s authority to consent to the entry and they were not faced with a situation which would cause a reasonable person to question his authority. We decline to impose an obligation on the police to make a further inquiry than was made here unless the circumstances are such as to " 'cause a reasonable person to question the consenting party’s power or control over the premises or property’ ”. 114 Mich App 549-550. The facts upon which we rely in making this determination are:
(1) There was testimony that the police did make inquiry of Matthews as to whether he lived in the apartment. His failure to respond was ambiguous. At this point the police could not know whether he had authority to admit them.
(2) When Matthews stated that defendant lived there and that he (Matthews) was defendant’s brother a reasonable person could conclude that either Matthews lived there also or that he had authority from whoever was inside to open the main entrance to the building in response to hearing the buzzer.
(3) It soon became obvious that defendant was inside the apartment. The officers could reasonably conclude that if defendant controlled the apartment he had either dispatched or authorized his brother to open the door. Matthews could easily have been led to believe that he had authority to admit anyone who was there. That was precisely the impression he conveyed to the officers.
(4) In any event, it is undisputed that Matthews had actual authority to open the door and admit an outsider. Neither Matthews nor defendant could possibly have been certain of who was at the door when they heard the buzzer. In cases we have examined where the entry has been held improper the person allowing the entry did not have actual authority from the owner or tenant to admit anyone.
The trial court correctly concluded that Matthews did not have the actual authority to allow police officers to enter the defendant’s apartment but its analysis stopped short of considering the critical question of whether he had the apparent authority to consent to admitting the officers. We conclude that the officers’ arrest without a warrant inside the apartment was justified by a reasonable belief, conveyed to them by the objectively observable facts, that Matthews could consent to the entry. Accordingly, we reverse the trail court’s order and remand for trial.
Reversed and remanded. | [
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Per Curiam.
Defendant was convicted following a bench trial of second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to from 12 to 25 years on the murder count, consecutive to the mandatory two-year sentence on the felony-firearm count, and appeals as of right.
On the date of the killing involved in this case, defendant was living with his girlfriend, Garthelia Martin, and her two-year-old child. On a visit by defendant and Ms. Martin that day to the home of defendant’s sister, they encountered the decedent, Raymond Martin. Raymond Martin was Garthelia Martin’s brother, but she had not seen him in ten years, and did not recognize him right away. After she did recognize him, Ms. Martin talked to her brother for 10 or 15 minutes, after which she and defendant returned to their home.
Upon their return home, defendant asked Ms. Martin who the man was. When she told him that the man was her brother, defendant indicated that she was lying. In an apparent fit of jealousy and rage, defendant had Ms. Martin undress from the waist down and lay face down on a bed. He then proceeded to beat her with an electric extension cord. He administered two separate beatings and, on the occasion of the second beating, he bound Ms. Martin before he beat her.
After the second beating, Ms. Martin managed to free herself and escaped from the home by climbing out a kitchen window, leaving her two-year-old behind. Later, she and her brother returned to get the child. The brother, Raymond Martin, had a knife in his right hand. Defendant came off the porch of his and Ms. Martin’s home with a shotgun and shot Raymond Martin in the face, killing him.
Two days after the killing, police officers, who were seeking defendant in order to arrest him for the slaying, located him at an apartment building on Garfield Street in Detroit. Defendant did not reside at the apartment building but had slept there the night before. Defendant’s sister, who had accompanied the police officers to the apartment, called to the defendant and told him to open the door. Defendant came out of the apartment building, and was arrested on the front steps. After his arrest, defendant was read his Miranda rights and made an oral statement. Later, he was again read his rights and gave two written statements. All the statements were inculpatory, and all were admitted at trial over defendant’s objections.
Defendant’s sole claim on appeal is that the trial court clearly erred in ruling that the defendant’s statements were not the product of an illegal arrest and, therefore, were properly admissable in evidence. We disagree and affirm.
This Court will not disturb a trial court’s ruling on a motion to suppress unless the finding is clearly erroneous. People v Mitchell, 138 Mich App 163, 169; 360 NW2d 158 (1984); People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). We find that the trial court’s finding in this case was not clearly erroneous.
The police must have an arrest warrant before entering a suspect’s residence to conduct a routine felony arrest, absent the existence of exigent circumstances or consent. People v Oliver, 417 Mich 366, 377; 338 NW2d 167 (1983). However, if probable cause exists, the police are not required to obtain a warrant before apprehending a suspected felon in a public place. People v Oliver, supra, p 376; United States v Watson, 423 US 411, 423-424; 96 S Ct 820; 46 L Ed 2d 598 (1976). There was no dispute at all in this case that the officers had probable cause to arrest the defendant. Defendant, however, argues that he was "constructively” arrested while still inside the apartment. We disagree.
The record reveals that the arresting officers in this case did not enter the apartment to arrest the defendant. He was arrested on the front steps of the entrance to the apartment building, which was a public place. Defendant exited from the apartment voluntarily, and was neither forced nor coerced to come out. His argument that he was "constructively” arrested while still in the apartment is without merit. It is therefore unnecessary to determine whether he had an expectation of privacy in the apartment.
In addition, even were we to hold that defendant’s arrest was illegal, admission of defendant’s statements would not require reversal in this case. Issues involving the suppression of evidence of statements tainted by antecedent police misconduct are resolved by determining whether there was any causal connection between the alleged illegality and the subsequent statements. People v Blackburn, 135 Mich App 509, 519; 354 NW2d 807 (1984); People v Martin, 94 Mich App 649, 653-654; 290 NW2d 48 (1980), lv den 411 Mich 910 (1981).
The first of the three inculpatory statements made by the defendant was to the arresting officer immediately after he was arrested and after he was read his Miranda rights. The second and third statements were made to a different officer after defendant was again read his rights. No force or coercion was employed by either of the officers and the statements were voluntary. People v Lobaito, 133 Mich App 547, 557; 351 NW2d 233 (1984). There was no need to suppress the statements.
Finally, the evidence in this case was sufficient to convict defendant of second-degree murder and felony-firearm without defendant’s statements. Therefore, their admission, even if erroneous, was harmless error. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972); People v Jimmie McCracken, 100 Mich App 371, 378; 298 NW2d 734 (1980).
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). | [
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Per Curiam.
Defendant pled nolo contendere to a charge of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), in exchange for dismissal of a charge of first-degree criminal sexual conduct, MCL 750.520b(1)(d); MSA 28.788(2)(1)(d), dismissal of a supplemental information and a sentence recommendation of from 7 to 15 years in prison. Defendant appeals as of right, claiming that the trial court failed to comply with GCR 1963, 785.7(3)(b) by not stating its reasons for accepting the nolo contendere plea. We disagree and affirm defendant’s conviction.
A trial court must state its reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogating the defendant regarding his participation in the crime. GCR 1963, 785.7(3)(b); Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975); People v Harvey, 146 Mich App 631; 381 NW2d 779 (1985). Defense counsel stated that the reason for the no contest plea was that "this was an assaultive crime involving civil ramifications and also that all the parties involved in this situation had been drinking”. The trial court accepted defense counsel’s statement and then proceeded to review the transcript of the preliminary examination to determine whether there were facts to support the charge. Convinced that there was a factual basis for the charge of third-degree criminal sexual conduct, the trial court accepted defendant’s plea of nolo contendere.
The fact that the trial court did not reiterate defense counsel’s statement of why the plea was appropriate does not require remand in this case since it is clear from the record that the trial court believed the plea was appropriate because defendant had been drinking at the time of the incident and because of the possibility of future civil litigation resulting from the offense. Both are recognized grounds for acceptance of a nolo contendere plea. People v Stevens, 138 Mich App 438, 440; 360 NW2d 216 (1984).
Affirmed. | [
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Per Curiam.
Plaintiffs appeal as of right from an order of the trial court granting summary judgment in favor of defendant on the basis that plaintiffs were not entitled to assert the defense of usury on a promissory note. We reverse.
This case had its genesis on April 1, 1979, when plaintiffs purchased a business known as "Doug’s Party Store” from Douglas and Arlene Sindlinger. This business was located in Manchester, Michigan, and consisted of a party store and gasoline filling station. The sale was evidence by: (1) a land contract secured by the real estate on which the business was located and carrying an interest, rate of 10% per annum; (2) a promissory note with a 10% per annum interest rate given in exchange for the good will of the business as a going concern, the liquor license, furniture, fixtures, equipment and other property; and (3) a security agreement contained in the promissory note covering all equipment, fixtures and inventory of the business. The documents provided that default on either the land contract or promissory note would be deemed a default on the other document. The 10% interest rates were subject to readjustment after October 6, 1982.
On April 22, 1981, the Sindlingers sold and assigned the three documents to United States Mutual Real Estate Investment Trust. The Sindlingers were required to sign a guaranty agreement in April, 1981. This assignee and plaintiffs amended the promissory note in June, 1983, and specified that the interest rates should not be readjusted for any reason. United States Mutual Real Estate Investment Trust assigned its interest in the three documents to defendant, U.S. Mutual Financial Corporation, on July 29, 1983.
On December 12, 1983, plaintiffs filed a complaint for declaratory relief against defendant alleging that defendant was barred from recovering interest and costs on the promissory note pursuant to MCL 438.32; MSA 19.15(2), because the note’s 10% per annum interest rate on the unpaid balance exceeded the lawful rate of 7% per annum. The complaint also asserted that defendant refused to accept tender of plaintiffs’ monthly payment on December 1, 1983, at the 7% interest rate, and refused to accept the monthly payment made on the related land contract. A motion for a preliminary injunction was filed the same day, requesting that the court order defendant to accept plaintiffs’ payment, that all interest on the promissory note be paid into escrow pending resolution of these proceedings, and that defendant be barred from forfeiting or foreclosing on the land contract. The preliminary injunction was granted on May 30, 1984.
On May 14, 1984, plaintiffs filed a motion for summary judgment, asserting that there was no genuine issue of material fact and that they were entitled to relief as a matter of law pursuant to GCR 1963, 117.2(3), presently MCR 2.116(0(10). On May 22, 1984, defendant moved for summary judgment in its favor asserting that the rate on the promissory note was not usurious because the "business entity” and real estate exceptions applied to the note and that plaintiffs failed to do equity by tendering payment of all principal plus 5% interest.
On April 30, 1985, the trial court granted summary judgment in favor of defendant based upon a lack of usurious intent in the original transaction and upon defendant’s holder in due course status (hereafter "HIDC”). Neither of these issues were specifically raised by the parties.
I
The first issue we address is whether the plaintiffs are entitled to a judgment as a matter of law because the promissory note was usurious when entered into in 1979.
The trial court granted summary judgment under GCR 1963, 117.2(3) on the basis that no genuine issue of material fact exists. Motions under this court rule test whether there is factual support for a claim and should not be granted when there is an issue of material fact. Soderberg v Detroit Bank & Trust Co, 126 Mich App 474, 479; 337 NW2d 264 (1983), lv den 419 Mich 867 (1984).
The trial court must consider the affidavits, pleadings, depositions, admissions and documentary evidence. GCR 1963, 117.3, now MCR 2.116(G)(5). Unlike the moving party, the opposing party is not obligated to make a showing by affidavits. However, there must be some showing by opposing affidavits, testimony, depositions, admissions or documentary evidence that a genuine issue of fact exists. Rizzo v Kretschmer, 389 Mich 363, 373-374; 207 NW2d 316 (1973). The test is whether the kind of record which may be developed, giving the benefit of any reasonable doubt to - the opposing party, will leave an issue upon which reasonable minds may differ. The courts are liberal in finding that a genuine issue of fact exists. Rizzo, supra, p 372. However, the trial court must avoid substituting a trial by affidavit and deposition for a trial by jury. A court is not allowed to make findings of fact or to weigh the credibility of affiants or deponents. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965).
The plaintiffs herein contend that the promissory note is in violation of MCL 438.31; MSA 19.15(1), which sets forth a 7% per annum ceiling on interest rates. Exceptions to this rule are set forth in the act. See e.g., MCL 438.31c; MSA 19.15(1c), MCL 438.61; MSA 19.15(71). MCL 438.32; MSA 19.15(2) provides that the lender or seller shall forfeit any interest, costs or fees if the act is violated and that the borrower or buyer is entitled to recover attorney fees and court costs from the seller, lender or assigns.
The instant trial court relied in part on Wilcox v Moore, 354 Mich 499; 93 NW2d 288 (1958), and Domboorajian v Woodruff, 239 Mich 1; 214 NW 113 (1927), in concluding that the promissory note was not usurious because the facts did not reveal that the original transaction between the plaintiffs and the Sindlingers was unfair and overreaching or that the Sindlingers had a usurious intent. The trial court’s reliance on these decisions was misplaced.
First, the facts and circumstances surrounding the original transaction were not disclosed in the pleadings or documentary evidence. Therefore, the trial court’s determination had no basis in the record.
Second, Wilcox does not stand for the proposition that a court must ascertain whether the agreed-upon interest was fair because there was no overreaching by the lender. Rather, the actual holding of Wilcox was that the court must look beyond form to characterize the real nature of the transaction in order to determine whether the transaction falls within the usury statute. MCL 438.31; MSA 19.15(1). See Farley v Fischer, 137 Mich App 668; 358 NW2d 34 (1984); Heberling v Palmer’s Mobile Feed Service, Inc, 119 Mich App 150; 326 NW2d 404 (1982), lv den 417 Mich 995 (1983).
Similary, usurious intent need only be ascertained when it is not clear from the face of the instrument whether the usury statue is applicable. See Domboorajian v Woodruff, supra; Ferguson v Grand Rapids Land Contract Co, 242 Mich 314; 218 NW 685 (1928). Where, as here, the instrument is patently in violation of the usury statute, there is no need to determine a usurious intent. Indeed, it appears that the intent of the parties is totally irrelevant where the instrument is usurious on its face. Union Trust Co v Radford, 176 Mich 50; 141 NW 1091 (1913); Houghteling v Gogebic Lumber Co, 165 Mich 498; 131 NW 109 (1911).
In the case at bar, it is undisputed that a promissory note with a 10% interest rate per annum was signed in conjunction with the sale of a business. Aside from the fairness of the original transaction between the plaintiffs and the Sindlingers, the interest rate is patently usurious under MCL 438.31; MSA 19.15(1) unless an exception applies. Whether an exception applies is determined by looking beyond form to characterize the real nature of the original transaction. Wilcox, supra. Defendant asserts the applicability of two statutory exceptions and one equitable defense.
A
Is the "Business Entity” Exception Applicable?
Defendant argues that the "business entity” exception of MCL 438.61; MSA 19.15(71) should apply. The statute provides in pertinent part:
"(1) As used in this act 'business entity’ means: (a) A corporation, trust, estate, partnership, cooperative, or association; or (b) A natural person who furnishes to the extender of the credit a sworn statement in writing specifying the type of business and business purpose for which the proceeds of the loan or other extension of credit will be used, but the exemption provided by this act does not apply if the extender of credit has notice that the person signing the sworn statement was not engaged in the business indicated.”
"(3) Notwithstanding the provisions of Act No. 326 of the Public Acts of 1966, it is lawful in connection with an extension of credit to a business entity by any person other than a state or nationally chartered bank, insurance carrier, or finance subsidiary of a manufacturing corporation for the parties to agree in writing to any rate of interest not exceeding 15% per year.”
Defendant’s first basis for contending that this exception is applicable is that plaintiffs constitute a partnership because they jointly acquired and operated a business as co-owners for profit. MCL 449.6; MSA 20.6. Defendant contends that the receipt of profits or losses is prima facie evidence of a partnership. MCL 449.7(4); MSA 20.7(4). Plaintiffs assert that plaintiffs purchased the business as individuals and not as a business entity. Defendant admits no discovery has been performed in this area.
Defendant’s second basis for claiming that plaintiffs are a business entity is the 1983 amendment to the promissory note which contained a sworn statement of business purpose relating back to the 1979 transaction. Plaintiffs assert that the amendment was not intended as a sworn statement of business purpose, but merely to confirm that interest was no longer adjustable but was fixed at 10% per annum. They further contend that the 1983 amendment merely described the transaction and was never provided to the extenders of credit, namely, the Sindlingers. Consequently, the extenders of credit were not provided with a sworn statement of business purpose.
As was stated earlier, this Court must look beyond form to the real nature of the transaction in order to determine whether the exception is applicable to the instrument at bar. Wilcox v Moore, supra. We note that this statutory provision is similiar to the provision enacted to regulate corporate interest agreements, MCL 450.1275; MSA 21.200(275), in that it requires a written agreement in order to exceed the legal interest rate. This Court, in Allan v M & S Mortgage Co, 138 Mich App 28, 40; 359 NW2d 238 (1984), discussed the corporate statute and concluded that it was necessary to look beyond the corporate form and ascertain the true character of the transaction:
"We believe that in Michigan, as in New York, where an individual borrows money through a dummy corporation, to further his own personal or commercial enterprises, the defense of usury is not available. However, where the loan is made to an individual borrower to discharge his personal debts and obligations, and not in furtherance of a corporate or business enterprise, the individual borrower may assert the defense of usury. This doctrine protects both consumers and lenders. Consumers are protected from the practice of second-mortgage lenders insisting that the consumer form a corporation in order to demand usurious rates of interest. On the other hand, innocent lenders would not be subject to claims of usury by borrowers who were in business, but merely did not engage in corporate formalitites.”
Consequently, whether the defense of usury was available to the borrower in Allan depended upon resolution of a question of fact: "whether the corporate form was used to conceal a usurious loan to an individual borrower made to discharge personal debts and obligations of the individual borrower.” Id. Analogously, if the plaintiffs in the instant case were, in fact, furthering their joint business interests through the purchase of the party store, then they should be treated as a business entity within MCL 438.61; MSA 19.15(71). Giving plaintiffs the benefit of a reasonable doubt, we conclude that further factual development is necessary to resolve this issue.
Plaintiffs point out that the business entity exception relied upon by defendant was enacted as an amendment to MCL 438.61; MSA 19.15(71) in 1983. 1983 PA 20. Before that time, the statute allowed only banks, insurance carriers and finance subsidiaries of manufacturing companies to take advantage of the business entity exception. According to plaintiffs, since the Sindlingers were not a qualified lender under the statute when the transaction was executed, regardless of plaintiffs’ status as a business entity, the business entity exception is inapplicable. We disagree.
Usury is a defense which is enforceable through the penal provisions of MCL 438.32; MSA 19.15(2). Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206; 223 NW2d 725 (1974), lv den 393 Mich 809 (1975). As a statutory defense, it is a valuable right, but not a vested right. The holder may be deprived of this by legislative action. Lahti v Fosterling, 357 Mich 578, 588-589; 99 NW2d 490 (1959). As a statutory penalty, it is ineffective if removed before judgment, See Bay City & E S R Co v Austin, 21 Mich 390 (1870); Engle v Shurts, 1 Mich 150 (1848).
Usury is available as a defense only if the instant transaction is subject to the usury statute. MCL 438.31; MSA 19.15(1). Because the amendatory language of 1983 PA 20 brings the Sindlingers into the qualified lenders category of the business entity exemption, even if the defense of usury was available prior to the enactment of 1983 PA 20, once that amendment became effective, that right as to future cases was extinguished. See Michigan Mobile Homeowners Ass’n, supra, pp 219-220. Therefore, if plaintiffs were in fact a business entity, then this section is applicable.
B
Is the "Real Estate” Exception Applicable?
The next exception argued by defendant is MCL 438.31c(11); MSA 19.15(1c)(11), which provides in part that:
"the parties to a note, bond, or other indebtedness of $100,000.00 or more, the bona fide primary security for which is a lien against real property other than a single family residence, or the parties to a land contract of such amount and nature, may agree in writing for the payment of any rate of interest.”
Defendant contends that real estate was the primary security of the promissory note because it secured over 55% of the total purchase price of the business. Plaintiffs assert that the promissory note is explicitly secured by personal property.
Primary security was construed in Macklin v Brown, 111 Mich App 110, 114; 314 NW2d 538 (1981), as meaning security which the creditor would sell first and to which he would look for the greatest yield on the indebtedness due. However, primary security is not necessarily tied to a certain percentage of the indebtedness. Id.
It is undisputed that the promissory note explicitly states that it is secured by a security agreement covering personal property. Therefore, the personal property would be the primary security for the note. See generally, MCL 440.9101 et seq.; MSA 19.9101 et seq. The cross-default terms would not change this result since nothing in the promissory note gives the holder of the note the right to look to the real estate for satisfaction upon default of the promissory note. Therefore, the real estate exception does not apply to this promissory note as a matter of law.
C
Does the Equitable Defense of "Failure to do Equity” Bar Plaintiffs Relief?
Defendant argues that plaintiffs failed to do equity because they have not tendered payment of all principal plus 5% interest. Therefore, according to defendant, plaintiffs’ unclean hands bar them from equitable relief because "one who seeks equity must do equity”. See e.g., Hogan v Hester Investment Co, 257 Mich 627; 241 NW 881 (1932); Michigan Mobile Homeowners Ass’n, supra. Defendant’s argument is without merit. The equitable defense of unclean hands is not available in a case such as this where plaintiffs have not brought an equitable action to set aside the usurious obligation but have brought a declaratory action for determination of their legal rights pursuant to MCL 438.32; MSA 19.15(2). Waldorf v Zinberg, 106 Mich App 159; 307 NW2d 749 (1981).
II
Having found that the transaction could be found to be usurious if further factual development is conclusive of plaintiffs’ nonbusiness entity status, we must review the trial court’s determination that the plaintiffs are nonetheless barred from asserting a usury defense because defendant is a holder in due course (HIDC) of the promissory note.
The trial court determined that defendant was a HIDC because defendant purchased the land contract and promissory note in good faith, relying on the fact that both instruments constituted the sale of a business which could have been accomplished solely by a single land contract. Therefore, pursuant to MCL 438.5; MSA 19.3, defendant took the promissory note free of a usury defense.
We conclude that defendant’s HIDC status was a question of disputed fact so as to preclude its determination in a summary disposition procedure.
A HIDC takes a note free from any usury defense if he takes the note in good faith, for valuable consideration and without actual notice of the usurious taint. MCL 438.5; MSA 19.3. A note which is usurious on its face gives actual notice of the usury defense thereby precluding a HIDC status. See Bird Finance Corp v Lamerson, 303 Mich 422; 6 NW2d 732 (1942) (discussing the notice provision under pre-Uniform Commercial Code Law). Moreover, a finding of good faith is precluded by a party’s failure to make appropriate inquiries where something appears on the face of the instrument or a fact is communicated such that the party could not honestly purchase without inquiry. Muskegon Citizens Loan & Investment Co v Champayne, 257 Mich 427; 241 NW 135 (1932).
In the case at bar, two separate and distinct documents were executed with separate and distinct collateral. The promissory note clearly identified the transaction as relating to the sale of a business and as being secured by personal property. The fact that separate and distinct collateral was the security for each note was underscored by the guaranty agreement signed by the Sindlingers. Defendant had actual notice of the 10% interest rate on the promissory note and actual notice that this note was not secured by real estate. Therefore, defendant was not justified in relying on the real estate exception to the usury statute and could not qualify as a HIDC on this basis.
However, there remains the question of whether plaintiffs constitute a business entity calling into play the business entity exception. MCL 438.61; MSA 19.15(71). Also, regardless of plaintiffs’ business entity status and giving the benefit of a reasonable doubt to defendant, there is also a question of whether defendant justifiably relied upon the business entity exception, thus potentially qualifying defendant as a HIDC entitled to take the note free from a usury defense. Therefore, summary judgment on defendant’s HIDC status cannot be granted in favor of either party.
Reversed and remanded for proceedings not inconsistent with this opinion. We retain no further jurisdiction. | [
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Per Curiam.
On September 29, 1982, defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). On October 21, 1982, defendant was sentenced to from 15 to 60 years imprisonment and now appeals as of right.
The complainant testified that in mid-October, 1981, defendant had either tried to place or did place defendant’s penis into complainant’s mouth. The complainant also testified that defendant had given him money to play video games and that, after the alleged criminal sexual conduct occurred, complainant’s mother wanted to know where complainant obtained the money. At that point, complainant told his mother what had happened at defendant’s apartment regarding the criminal act in question. The next morning, complainant and his mother went to the authorities to explain what defendant had done with complainant.
Under cross-examination, the complainant’s account of what had happened changed. His testimony was likewise impeached with prior inconsistent statements and with evidence of three prior juvenile larceny convictions.
Complainant’s mother testified that one day in mid-October, 1981, complainant arrived home in the late afternoon in possession of a couple of dollar bills. She asked complainant where he had obtained the money and he replied that a guy had given it to him. She again asked complainant who had given him the money and complainant replied that defendant had given it to him. At that point complainant asked his mother whether he would be punished. She informed complainant that he would not be punished, "[b]ut tell me whatever you got to tell me”. So complainant "proceeded then to telling [sic] me about what [defendant] had done to him. * * * He said that he carried some stuff up, a radio upstairs to his apartment, and he said that [defendant] was doing some nasty things to him, but he wouldn’t specify what.” She kept asking questions of complainant until he finally said that defendant "had put his hand on him on his privates”.
Michael Mohler, a school social worker who counselled complainant, also testified. The prosecution used Mohler for the purpose of rehabilitating complainant’s testimony which had been impeached by prior inconsistent statements. Mohler testified over objection that the complainant was an emotionally impaired and learning disabled child. He stated that the complainant had trouble with dates and times, and had no concept of the sequence in which events happened. He also stated, however, that complainant’s recall of events was quite accurate. In addition, if a painful question was asked of complainant, complainant would initially avoid the question with a lie, but complainant would eventually be truthful if pressed. Mohler finally explained that complainant had always been truthful with him.
Defendant’s wife, Alberta Walker, established an alibi for defendant. She testified that on Sunday, October 11, 1981, the day the alleged incident occurred, defendant was with her all day. She stated that, together, they got their children ready for church, went to dinner at approximately 3:00 p.m., and, thereafter, they walked to. the grocery store and watched television. During cross-examination, the prosecution inquired of defendant’s wife why she had not approached the police and told them of this alibi. She responded by saying that "I left that up to his lawyer” and that "I didn’t know I had to [tell the authorities about the alibi].” Over objection, the trial court ruled that this was proper cross-examination.
Defendant testified in his own behalf that on October 8, 1981, complainant had helped him carry the radio up to his apartment and that nothing unusual had happened between them. He also explained that on October 11, 1981, the day this incident allegedly occurred, defendant was with his wife just about all day.
In its charge to the jury, the trial court instructed that the prosecution must prove the elements of the offense beyond a reasonable doubt. It explained that one of the elements of this offense is that defendant engaged in an oral sexual act with the complainant. The court then defined a sexual act as involving "the contact between the mouth of one party and the sex organ of the other. As alleged in this case, a sexual act was committed by contact of the mouth of the complainant, of the young boy, with the sex organ of the defendant”. Later, in reference to the form of the verdict, the court informed the jury that all twelve of its membership had to be convinced beyond a reasonable doubt that defendant had "placed his penis in this boy’s mouth”.
On appeal, defendant argues that the trial court erred when it allowed the complainant’s mother to testify under the tender years exception to the hearsay rule as to what the complainant had reported to her on October 11, 1981, regarding this alleged incident. We agree and reverse on this issue.
In People v Kreiner, 415 Mich 372, 377; 329 NW2d 716 (1982), reh den 417 Mich 1104 (1983), the Supreme Court ruled that the so-called tender years exception did not survive the adoption of the Michigan Rules of Evidence. Defendant’s trial was conducted after the adoption and effective date of the rules of evidence. Accordingly, complainant’s mother’s testimony about statements made to her by complainant was objectionable on hearsay grounds and, from our review of the record, none of the exceptions outlined in MRE 803 apply. Therefore, we are constrained to reverse defendant’s conviction. The issue in defendant’s trial was one of credibility; therefore, we cannot say that this error was harmless.
We address some of defendant’s remaining claims of error to avoid their possible recurrence in the event defendant is retried for this offense.
First, the prosecution may not inquire of defen dant’s wife, over proper objection, why did she not come forward with this alibi earlier. Although it is true that the credibility of an alibi witness may in limited circumstances be impeached concerning his or her failure to come forward with the alibi prior to trial, see, e.g., People v Diaz, 98 Mich App 675, 682-683; 296 NW2d 337 (1980), such limited circumstances did not exist in this case. In other words, in order to impeach an alibi witness with a question why he or she did not come forward earlier, it must have been natural for the witness to do so if the facts were in accordance with his or her testimony. In this case, it was unknown when the complainant was actually molested by defendant. The date of October 11, 1981, was targeted as the date of the offense only after the proceedings were instituted against defendant. Therefore, it would not have been natural for defendant’s wife to come forward with evidence pertaining to what she and her husband did on Sunday, October 11, 1981.
Second, the prosecution may not, over proper objection, use witness Mohler to rehabilitate the complainant’s credibility after the complainant’s testimony is impeached with prior inconsistent statements as was done herein.
' Under MRE 608, the character of a witness may be attacked or supported only by evidence of his reputation for truthfulness or untruthfulness in the community. Mohler did not indicate that he knew of complainant’s reputation in this regard. A character witness cannot testify to his own personal experience and observation, but must confine his testimony to what a person’s reputation is in the community. Mohler, however, testified about his personal contacts with the complainant, rather than complainant’s reputation in the community.
Mohler’s testimony must be limited to explain ing to the jury why complainant was unable to recall exact dates. This is the area in which complainant’s testimony was impeached by defense counsel. Furthermore, under these circumstances, Mohler’s testimony is only permissible if Mohler is presented as a qualified expert witness under MRE 702.
Third, the prosecution may not inquire of witness Michael Donnelly whether he is afraid of either defendant or defendant’s family. Absent any foundation in this regard, either through direct examination or during proper voir dire, the prosecution cannot be permitted to create the illusion by innuendo that witnesses are being intimidated by the defense. People v Osborne, 75 Mich App 600, 602; 256 NW2d 45 (1977), lv den 402 Mich 810 (1977).
Fourth, and finally, we address defendant’s claim that the trial court incorrectly instructed the jury when it explained that, "[t]he first element is that the Defendant engaged in an oral sexual act with the complainant. That is, that the act involved the contact between the mouth of one party and the sex organ of the other. As alleged in this case, a sexual act was committed by contact of the mouth of the complainant, of the young boy, with the sex organ of the Defendant”.
MCL 750.520b(l)(a); MSA 28.788(2)(a) provides:
"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
"(a) That other person is under 13 years of age.”
The definition of "sexual penetration” is found in MCL 750.520a(1); MSA 28.788(1)(1) and is stated as follows:
" 'Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.”
Under this definition, it is conceivable that "oral sex” would be included within the concept of sexual penetration. However, it is better to use the terms commonly understood as being oral sex rather than to provide a different definition therefor, In other words, "cunnilingus” and "fellatio” are express terms included in the statute. When using the term "oral sex”, either cunnilingus or fellatio is usually the concept meant to be addressed. Accordingly, on remand, the trial court should give the statutory definition of "sexual penetration” if defendant is retried for first-degree criminal sexual conduct. See MCL 750.520a(1); MSA 28.788(1)(1). In this way the trial court will avoid any misunderstanding as to what elements the prosecution must prove beyond a reasonable doubt.
Reversed and remanded for proceedings consistent with this opinion._
"Fellatio” is the oral stimulation of the male sex organ and "cunnilingus” is the oral stimulation of the female sex organ. Perkins, Criminal Law (2d ed), p 390. See also Black’s Law Dictionary (4th ed), pp 456, 743; Webster’s Seventh New Collegiate Dictionary, pp 203, 307; The American Heritage Dictionary (New College ed), pp 322, 483; Random House College Dictionary (Revised ed), pp 326, 485. | [
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] |
Per Curiam.
On October 10, 1984, following a jury trial, defendant, Chester Steele, was convicted of two counts of delivery of lysergic acid diethylamide (LSD). MCL 333.7401, subds (1) and (2)(b); MSA 14.15(7401), subds (1) and (2)(b). Defendant was sentenced to from two to seven years’ imprisonment on each count; his sentences were to run concurrently. The defendant was given credit for 27 days served. The defendant now appeals as of right.
On the day before trial, defendant brought a motion to dismiss the charges against him on the ground that he was entrapped by an undercover police officer. At the hearing on the entrapment motion, defendant and his wife both testified. The defendant testified to the following. A friend of a friend brought David Stearns, an undercover Michigan State Trooper, to the defendant’s home. The trooper was introduced to the defendant as David Masters, a drug dealer from Sault Ste. Marie. The defendant stated that Stearns brought beer to the defendant’s home. The defendant drank the beer even though he was an alcoholic and had not had a drink for four years. The defendant also stated that Stearns asked him if he could buy some "acid”. In response to Stearns’ inquiry, the defendant said that he knew nothing about "acid”. Stearns returned to the defendant’s home several times trying to buy drugs. Finally, the defendant offered to take Stearns to a marijuana dealer in Escanaba to "get him [Stearns] out of the house”. Stearns drove himself and defendant to Escanaba to purchase marijuana. Up until that time, defendant claimed that he had only procured marijuana and other drugs for his own use. Defendant claimed that Stearns was the only one who had asked him to procure LSD and large quantities of marijuana. Stearns made these requests after giving defendant marijuana, beer, or "funny pills”. Defendant, believing that Stearns was running the drugs into Canada, decided that he would help Stearns obtain drugs and thereby rid his town of them. Defendant purchased some "acid”. Soon thereafter, Stearns came over to defendant’s house and defendant told him "[H]ey, you’re just the man I want to see * * * [I] got the stuff for you, get it out of here”.
After that initial purchase, defendant described his transactions with Stearns as follows:
"But after that [occasion], I went with him. I said okay, I know where to get it [the drugs]. You park here, give me the money, I’ll go get it for you, I’ll come back to the truck, and away we’d go.”
On cross-examination, defendant described his transactions with Stearns in the same manner.
"[Stearns] told me to go get it [the drugs], and I says okay, this is how much it is. Or like the one time we went over there, stopped, he says, well, go see how much it is. I says I know how much it is. It was four fifty, I believe. I’m not positive, but I says, I know. He says, well, go see anyway.
"I don’t know what the hell he wanted me to do that for, but anyway I went over there, found out, came back, found out there was only — I think there was six of them. And I says she wanted four fifty apiece. So that’s what he got. I went back, he give me the money, went back to the house, got them. And then he took me home * * *.”
Nonetheless, defendant maintained that the only reason he became involved in purchasing drugs for Stearns was that he "kept coming to my house and telling me that he was taking it to Canada, foolproof plan, no problem”.
Defendant’s wife corroborated his testimony in part by stating that defendant had not had a drink in four years. At the time that Stearns had brought beer into defendant’s home, neither defendant nor his wife had told him that defendant had any drinking problems. Defendant’s wife testified that, although defendant at first refused Stearns’ offer of beer, he accepted it after Stearns offered it "a couple [of] more times”. Defendant’s wife also testified that she and defendant had known Stearns for one month before the trip to Escanaba and two months before defendant procured any mescaline for Stearns. Finally, defendant’s wife testified that defendant was merely a user and possessor of drugs and he was not a dealer until he met Stearns.
Following the testimony of defendant’s wife, the prosecutor moved to have defendant’s entrapment motion dismissed because there was no conduct on the part of the police that would be considered entrapment. The prosecutor argued that there was no police conduct which would induce the commission of a crime by one unwilling to commit it and, therefore, there was no entrapment. On the other hand, defendant argued that he had been en trapped because Stearns had induced him to deal an area (procuring acid) when he had previously procured marijuana and other drugs for his own personal use. The trial court granted the prosecutor’s motion to dismiss the entrapment motion.
The defendant’s first claim is that the trial court erred in finding that defendant was not entrapped where the defendant claimed that he was merely a possessor and user of controlled substances before he met the undercover officer.
In People v Turner, 390 Mich 7; 210 NW2d 336 (1973), the Michigan Supreme Court adopted the objective test for entrapment. The objective test focuses on the conduct of the police. The test requires that a trial court dismiss the charges against a defendant when the government agents’ involvement in criminal activities goes beyond the mere offering of an opportunity to commit the offense. The agents’ conduct must be of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it regardless of the character or propensities of the particular person induced. Turner, supra.
In People v D’Angelo, 401 Mich 167, 173-174; 257 NW2d 655 (1977), the Michigan Supreme Court held that the entrapment issue was for the judge to decide and not for the jury. The Court determined that, when the issue of entrapment was raised, the trial court should hold an evidentiary hearing outside of the jury’s presence to decide the issue. At the hearing, the defendant has the burden of proving that he was entrapped by a preponderance of the evidence. D’Angelo, supra, p 182.
In this case, the trial court followed D’Angelo, supra, by holding a separate evidentiary hearing on entrapment. After hearing all the testimony, the trial court granted the prosecutor’s motion for dismissal of the entrapment motion.
In granting the dismissal, the trial judge applied the objective test for entrapment. The trial judge focused on the conduct of the police. The trial judge found:
"First of all, that * * * the police officer, Stearns, did seek out the introduction, did seek out the defendant to make his acquaintance, and that this was in the course of Officer Stearns’ police activities in the investigation of controlled substance offenses.
"Further, that Officer Stearns did seek to ingratiate himself with the defendant. He did this by repeated calls at the defendant’s home, he brought beer to the defendant’s home, offered the beer to the defendant, and smoked marijuana with the defendant at the defendant’s home.
"Officer Stearns also frequently brought up the subject of the purchase of marijuana and 'acid’ in substantial quantities. The officer also indicated and explained that the quantities were desired for export to Canada.
"The officer on several occasions transported the defendant to the neighborhood of places where the defendant made purchases of marijuana for the officer.”
The trial judge further found that there was no evidence that Stearns knew "that the defendant was an alcoholic” and played on this weakness and that "there was no inducing of the defendant to have contact with any controlled substance that he had not had contact with before”.
On the entrapment issue, the trial court’s finding will not be reversed unless it is clearly erroneous. D’Angelo, supra, p 183. See also, MCR 2.613(C), formerly GCR 1963, 517.1. In our opinion, the trial court’s finding on the issue of entrapment was not clearly erroneous.
Defendant’s reliance on People v LaBate, 122 Mich App 644; 332 NW2d 555 (1983), and People v Killian, 117 Mich App 220; 323 NW2d 660 (1982), lv den 414 Mich 944 (1982), is misplaced.
Unlike the defendants in Killian and LaBate, the defendant here did not demonstrate that the police knew that he was only a user of drugs. Although the defendant and his wife both testified that the defendant was only a possessor or user of drugs, the defendant failed to show that the police believed that he was only a user or possessor. Thus, LaBate and Killian are distinguishable.
In this case, the defendant also did not offer evidence that the officer knew that he was a reformed alcoholic. The trial judge did not err when he found that Stearns did not know of the defendant’s drinking problem and, therefore, he could not have used it to his advantage.
The trial judge also did not clearly err in disregarding the marijuana transaction as evidence of a continuing course of entrapment. The defendant was not charged with a marijuana offense. Instead, the trial judge properly focused on the issue of the LSD deliveries. Moreover, even if the trial judge had accepted the defendant’s testimony that the marijuana transaction was tainted, he could have found that the taint was purged because there was at least one month between the marijuana transaction and the LSD transaction with which the defendant was charged.
In the LSD transactions, Stearns only made himself known as one who would buy LSD. Stearns merely afforded the defendant an opportunity to commit the crime. People v Reynolds, 139 Mich App 471, 476; 362 NW2d 763 (1984); People v Alford, 405 Mich 570; 275 NW2d 484 (1979). The defendant was the one who sought out Stearns for the initial delivery. Defendant’s involvement in the transactions was the result of his belief that he would not be caught and his belief that Stearns was not a "narc”.
These deals were not much different than the deals in People v Crawford, 143 Mich App 348; 372 NW2d 550 (1985). In Crawford, the undercover officer repeatedly asked the defendant to arrange for the purchase of PCP. The defendant arranged the deal and the officer drove the defendant to the purchase point. The officer gave the defendant the money and the defendant went by himself to purchase the PCP in order to protect his source. This Court found that even repeated requests for contraband did not constitute entrapment. Moreover, this Court held that the fact that the officer drove the defendant to the pick-up site and paid for the drugs in advance was merely "trivial assistance”. 143 Mich App 357. Finally, this Court found that even the officer’s sharing of drugs with the defendant was not enough "to induce or instigate the commission of a crime by a person not ready and willing to commit it”. Id.
Here, Stearns requested the defendant’s assistance in obtaining LSD. Stearns also drove the defendant to the pick-up site and paid for the LSD. Afterwards, Stearns shared the LSD with the defendant at the defendant’s request. This case is similar to Crawford, supra. There was no error in finding that the defendant was not entrapped and the trial court properly dismissed the entrapment motion.
Furthermore, under D'Angelo, supra, the court did not err when it refused to submit the entrapment issue to the jury.
The defendant’s next claim is that the trial court abused its discretion in refusing to instruct the jury on the lesser offenses of possession and use of LSD.
Delivery of LSD is a felony punishable by im prisonment for not more than seven years. MCL 333.7401, subds (1) and (2)(b); MSA 14.15(7401), subds (1) and (2)(b). Possession of LSD is a misdemeanor punishable by not more than one year in prison. MCL 333.7403, subds (1) and (2)(c); MSA 14.15(7403), subds (1) and (2)(c). The use of LSD is also a misdemeanor, but punishable by imprisonment for not more than six months. MCL 333.7405, subds (1) and (2)(c); MSA 14.15(7405), subds (1) and (2)(c).
The use of misdemeanor instructions is explained in People v Baskin, 145 Mich App 526, 541-542; 378 NW2d 535 (1985):
"The decision to grant or deny a requested instruction on a lesser included offense will be reversed on appeal only upon a finding of a clear abuse of discretion. People v Stephens, 416 Mich 252, 265; 330 NW2d 675 (1982). In general, '[w]henever an adequate request for an appropriate misdemeanor instruction is supported by a rational view of the evidence adduced at trial, the trial judge shall give the requested instruction unless to do so would result in a violation of due process, undue confusion, or some other injustice.’ People v Stephens, supra, p 255.
"The following conditions must be presented for the instruction on a misdemeanor to be appropriate: (1) there must be a proper request; (2) there must be an appropriate relationship between the charged offense and the requested misdemeanor; (3) the requested misdemeanor instruction must be supported by a rational view of the evidence adduced at trial; (4) if the prosecutor requests the instruction, the defendant must have adequate notice of it; and (5) requested instructions must not result in undue confusion or some other injustice. People v Stephens, supra, pp 261-265.”
In the instant case, defendant requested two misdemeanor instructions. The trial court refused to give the instructions after finding that neither charge was supported by a rational view of the evidence and the instructions would, therefore, confuse the jury.
Stephens, supra, required "an appropriate relationship between the charged offense and the requested misdemeanor”. In clarifying the type of relationship that must be shown, the Court stated,
"there must also be an 'inherent’ relationship between the greater and lesser offense, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.” Stephens, supra, p 262, quoting United States v Whitaker, 144 US App DC 344, 349; 447 F2d 314 (1971).
The Court went on to say,
"[t]his requirement is also familiar to our jurisprudence. In People v McDonald, 9 Mich 150, 153 (1861), the Court found the offense of assault, or assault and battery, 'included’ within an indictment charging felonious assault. In People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), the Court referred to 'the common purpose of the statutes’, which protected the same 'societal interest’.” Stephens, supra, p 262.
In People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), the Court distinguished two types of lesser included offenses. The Court found that there were necessarily lesser included offenses and cognate lesser included offenses. A necessarily lesser included offense is one where the greater offense could not be committed without committing the lesser offense. 395 Mich 387. For example, robbery cannot be committed without committing a larceny. Cognate offenses on the other hand share several elements with and are of the same class or category as the greater offense, but they also contain some elements not found in the higher offense. 395 Mich 387. To find that the lesser offense is a cognate offense, the elements shared by the lesser offense and by the greater offense must coincide in the harm to the societal interest to be protected. 395 Mich 390.
In the instant case, use of LSD is not a necessarily lesser included offense of delivery of LSD. Furthermore, a prosecutor need not prove that the defendant possessed LSD in order to prove that the defendant delivered LSD. However, possession of a controlled substance may be a lesser included (cognate) offense of unlawful delivery when the state’s evidence shows that the defendant was in possession of the controlled substance. People v Kamin, 405 Mich 482, 497; 275 NW2d 777 (1979).
Both offenses, use and possession, would be classified as cognate offenses rather than necessarily included lesser offenses of the offense of delivery. The common element in all three offenses is that the defendant did something unlawful with a controlled substance, here LSD, knowing it to be LSD. This common element is aimed at the same societal interest. Each is designed to protect society from the effects of drug abuse. Each crime also requires proof of an element that the others do not. One requires delivery of LSD; one, use of LSD; and one, possession of LSD. Thus, the offenses are cognate offenses and the second condition of Stephens is also met because there is an appropriate relationship between the charged offense and the requested misdemeanors. Stephens, supra, p 262.
As a third element of Stephens, the defendant must show that the requested misdemeanor instruction is "supported by a rational view of the evidence adduced at trial”. Stephens, supra, p 262. The Court stated,
"proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.” 416 Mich 263.
The Court further noted,
"a lesser offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v United States [351 US 131; 76 S Ct 685; 100 L Ed 1013 (1956)]; Sparf v United States, 156 US 51, 63-64; 15 S Ct 273; 39 L Ed 343 (1895). * * * A lesser-included offense instruction is only proper where the charged greater offense instruction requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v United States, supra; Sparf & United States, supra, pp 63, 64. Sansone v United States, 380 US 343, 349-350; 85 S Ct 1004; 13 L Ed 2d 882 (1965).” 416 Mich 263.
Consequently, even if evidence at trial supports the lesser included offense instruction, it need not be given if the factual element of the greater offense which distinguishes it from the lesser offense is not in dispute.
This Court interpreted the third element of Stephens in People v Bragdon, 142 Mich App 197; 369 NW2d 208 (1985). This Court stated in obiter dictum that the trial court properly refused to give an instruction on possession of marijuana when the defendant was charged with delivery of marijuana because there was no disputed factual element differentiating the offense of delivery from the offense of possession. Bragdon, supra, p 200. In Bragdon, the defendant was charged with delivering 0.7 grams of hashish to an undercover officer. The defendant claimed that, although he had de livered the substance to the officer, he believed that the substance was marijuana and not hashish. The defendant argued that he was not a dealer of marijuana because the amount he had sold was so small. The defendant also argued that, if anything, the jury should find him guilty of possession of marijuana.
The instant case is similar. The prosecutor had to show that defendant knowingly delivered a substance which he knew to be LSD. Defendant admitted that he delivered drugs to Stearns, however, defendant believed that he had delivered mescaline and not LSD. Arguably, then, the fact in dispute is not whether defendant delivered, but the nature of the drug which was delivered. The nature of the drug is not the factor which distinguishes delivery of LSD from use or possession of LSD. Therefore, because the factual issue to be resolved in all three charges was the type of drug that defendant possessed and not whether defendant delivered, used, or possessed LSD, the third condition of Stephens was not met.
The trial judge applied this analysis and found that there was no "dispute as to an element that differentiates delivery from possession”. In this case, defendant took the stand and admitted that he delivered drugs to Stearns. Defendant merely denied that the drug he gave Stearns was LSD. At trial, defendant also admitted that he possessed and used mescaline. The fact in dispute then was the type of drug that defendant delivered and not the issue of delivery itself. Because delivery was not in dispute, the trial judge believed that he did not have to instruct the jury on the lesser included offenses.
In proving delivery of LSD, however, the prosecutor must show: (1) that the defendant transferred the substance to another; (2) that the defen dant intended to transfer the substance to another; and (3) that the defendant knew the substance was LSD. See CJI 12:2:03. Thus, the knowledge of the substance was in dispute and, therefore, delivery of LSD would have been in dispute. Because delivery is an element which distinguishes delivery of a controlled substance from possession or use of the controlled substance, the trial court erred in refusing to instruct the jury on possession and use of LSD.
Moreover, even if the trial judge believed that delivery was "undisputed”, the jury was not bound by his determination. In People v Chamblis, 395 Mich 408, 421; 236 NW2d 473 (1975), reh den 396 Mich 976 (1976), the Michigan Supreme Court stated that the jury has an "absolute right to disbelieve all the undisputed evidence”. The Court added:
"[b]ecause the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal [sic, appear?] to the judge as 'undisputed’ need not be believed by a jury.” Emphasis changed. Chamblis, supra, p 420.
Therefore, the jury could have chosen to disbelieve defendant’s admission of delivery and still could have found that defendant possessed or used LSD, even though defendant believed that the drug which he had used or possessed was mescaline. See and compare People v Boles, 420 Mich 851; 358 NW2d 894 (1984), rev’g 127 Mich App 759 (1983).
Judge Maher dissented in part in Bragdon, supra. He believed that the possession of marijuana instruction should have been given under Stephens, reasoning that, in Stephens, the Su preme Court specifically refused to overrule People v Kamin, supra. Bragdon, supra, p 201, citing Stephens, supra, p 258, fn 9. Judge Maher concluded that this Court was bound by Kamin and, therefore, "where a defendant who is charged with delivery of a controlled substance is shown by the state’s evidence to have been in possession of the substance, the trial court must give a requested possession instruction”. Bragdon, supra, pp 201-202 (Maher, J., dissenting). Consequently, Judge Maher would have had the trial judge give the possession charge if it was requested. Bragdon, supra, p 202 (Maher, J., dissenting).
A closer reading of Stephens shows that the Michigan Supreme Court meant to leave untouched its decisions that "require certain lesser included felony instructions even if such instructions are not supportable by any rational view of the evidence * * Stephens, supra, p 258, fn 9 (emphasis added). One of these decisions was Kamin. However, the part of Kamin which was left untouched by Stephens was the part in which the Court held that the trial court erred when it failed to instruct on the cognate offense of larceny from a person when the defendant was charged with armed robbery. Kamin, supra, pp 500-501. Nonetheless, we agree with Judge Maher and would find that, where the state presents evidence that defendant had been in possession of the substance in question, the jury should receive the requested possession instruction.
Here, defendant argued in his opening statement that he was a user or possessor of drugs, but not a dealer. At trial, both Officer Stearns and defendant testified that defendant possessed a substance which the officer called LSD, but which defendant believed was mescaline, before delivering the substance to the officer. Officer Stearns also testified that LSD is known by many street names, including mescaline. Thus, there was sufficient evidence for the jury to find defendant guilty of possession of LSD. Moreover, because knowledge that the substance to be delivered was LSD is an element of the crime of delivery, defendant could argue that delivery was in dispute and that, therefore, if the jury chose to disbelieve that defendant knowingly delivered LSD, it could still find that he possessed it. Consequently, although possession is a misdemeanor rather than a felony, the trial judge should have given the requested jury instruction because the jury could have consistently convicted defendant of possession of LSD and acquitted him of delivery of LSD. Stephens, supra.
On the facts here, use of LSD is also a cognate lesser offense of delivery of LSD. Therefore, defendant would have been entitled to the instruction on use of LSD because the jury could have found defendant guilty of use and not guilty of delivery. Defendant admitted that he had used mescaline. Defendant’s wife also stated that defendant used mescaline. Trooper Stearns testified that LSD was also known by the street name mescaline. Therefore, there was enough factual evidence for the jury to believe defendant was guilty of use of LSD but not of its delivery. Hence, the instructions on the cognate offenses of use and possession of LSD were supported by the evidence and the trial judge should have given them to the jury.
The fourth element of Stephens is not involved in this case because the prosecutor did not ask for the lesser included offense instruction. Stephens, supra, p 264.
The fifth element of Stephens is that the requested instructions do not result in undue confusion for the jury. Stephens, supra, p 264. The trial court must decide in its discretion whether to give a lesser included offense instruction. Here, the trial judge stated that he believed that the requested instructions would confuse the jury. We believe that, where evidence was introduced on the possession and use of LSD offenses, the jury would not have been confused by such an instruction. Moreover, the Michigan Supreme Court has held that "[w]hen a defendant admits criminal involvement, but not to the extent of the charged offense, the jury should have the 'freedom to act according to the evidence’ ”. People v Stephens, 407 Mich 402, 406; 285 NW2d 664 (1979). Consequently, the trial court should have given the requested instructions to the jury.
In People v Daniel Meyers (On Remand), 124 Mich App 148; 335 NW2d 189 (1983), this Court held that when the trial court fails to instruct on a cognate lesser included offense the harmless error rule is applicable. See also, People v Rochowiak, 416 Mich 235, 248-249; 330 NW2d 669 (1982), reh den 417 Mich 1106 (1983). This Court went on to hold that the test is whether the failure to give the requested instruction was prejudicial. Meyers, supra, p 160. In People v Richardson, 409 Mich 126, 141; 293 NW2d 332 (1980), the Michigan Supreme Court held that a trial judge’s refusal to instruct on cognate lesser offenses was to foreclose the jury’s option to convict the defendant in accordance with his own testimony, evidence and theory. Because the jury was, therefore, denied the freedom to act according to the evidence and, moreover, was deprived of any option to convict consistently with the defendant’s testimony, evidence and theory, the trial court’s refusal to give the properly requested lesser offense instructions was prejudicial error. Richardson, supra, p 141.
Here, the trial court did not instruct the jury on any lesser included offenses. The trial court’s re fusal to instruct on the lesser included offenses of possession and use, where the instructions related to the degree of the defendant’s culpability and were compatible with his theory of defense, deprived the jury of any option to convict consistently with the defendant’s testimony, evidence and theory. Therefore, the trial court’s refusal to give the properly requested lesser included offense instructions was prejudicial error. Richardson, supra, p 141.
As we have found it necessary to reverse and remand for a new trial, we need not address defendant’s remaining issue.
Reversed and remanded for a new trial. | [
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Per Curiam.
On March 2, 1981, defendant Insurance Company of North America (INA), as assignee of All-Phase Electric Company, filed suit against defendant John Bischoff alleging that his negligent installation of a security alarm system at a building owned by All-Phase Electric Company was a proximate cause of a substantial fire loss. Plaintiff, St. Paul Insurance Company, the comprehensive general liability insurer for defendant BischofFs business, refused to defend Bischoff in the suit. On May 16, 1983, the trial court entered a consent judgment in the amount of $719,302.87 against Bischoff. The consent judgment provided that all of BischofFs rights against St. Paul were assigned to INA and that the judgment was not to be enforced against any other assets or income of Bischoff.
On August 1, 1981, St. Paul filed the action involved in this appeal, seeking a declaratory judgment against INA and Bischoff on the grounds that it had no duty to defend, or liability to pay any benefits on behalf of Bischoff, in the underlying tort action. On July 5, 1984, the trial court found that St. Paul had breached its duty to defend Bischoff and awarded damages of $3,178.78 in attorney fees and costs to Bischoff. However, the trial court also granted St. Paul’s motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(0(10), and entered a declaratory judgment providing that a policy exclusion in the insurance contract between St. Paul and Bischoff applied in this situation and that, therefore, St. Paul had no obligation to indemnify Bischoff. INA appeals as of right from the trial court’s order granting summary judgment to St. Paul.
INA first argues that plaintiff cannot raise an exclusion in its insurance contract with Bischoff after breaching its duty to defend Bischoff in the underlying tort action. In this connection, we note that plaintiff does not contest the trial court’s finding that it breached its duty to defend Bischoff. However, we also note that, under well-established Michigan law, this Court held in Dochod v Central Mutual Ins Co, that:
"When considering whether the insurer has a duty to defend the insured, it must be remembered that the duty to pay is severable from the duty to defend. Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970). The one is not dependent on the other. That an insurer may ultimately be found not liable, therefore, is a matter separate and apart from its obligation to defend the insured.”
INA argues that this Court should adopt the rule used by courts in Illinois and Connecticut, which provides that an insurer has no right to assert exclusion provisions once it has breached its duty to defend the insured. However, the Michigan decisions compel us to reject INA’s arguments.
In Detroit Edison Co v Michigan Mutual Ins Co, following the earlier 1931 case of Elliott v Casualty Ass’n of America, this Court stated that two options are available to an insurer when it is asked to defend an action brought against its insured:
"It can undertake the defense with notice to the insured that it is reserving the right to challenge its liability on the policy. The second alternative for the insurer is to repudiate liability, refuse to defend and take its chances that there will be a showing that there is no coverage for the insured’s liability.” Detroit Edison, supra, p 145.
This Court’s decision in Detroit Edison, supra, is directly on point to the situation presented in the within case. The insurer in Detroit Edison, like plaintiff herein, chose the second option noted above. Although this Court reversed the trial court in Detroit Edison and found that the insurer had breached its duty to defend its insured, the case was remanded to allow the insurer to make a showing that there was no liability despite a consent judgment entered against the insured. This Court specifically noted that the insurer was permitted to assert that, even if the insured was liable in the underlying suit, the injury was not covered by the policy.
In light of the decisions in Detroit Edison and Elliott, supra, we conclude that the trial court was correct in permitting plaintiff to assert the policy exclusion. Plaintiff’s failure to defend Bischoff did not foreclose plaintiff from showing that it was not liable under the policy._
INA also argues that, even if plaintiff is allowed to assert the policy exclusions in this case, the trial court erred in granting summary judgment to plaintiff based on the application of the "completed operations” exclusion. A motion for summary judgment under GCR 1963, 117.2(3) is to be granted only if there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. The court is to consider the pleadings, depositions, affidavits, admissions and other documentary evidence submitted to it. The court must give the opposing party the benefit of any reasonable doubt and should grant the motion only if satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.
The relevant facts surrounding the underlying negligence action against Bischoff are not in serious dispute. Some time in May, 1978, Bischoff installed a security alarm system at a building owned by All-Phase Electric Company. Between the date of installation and August 18, 1978, All-Phase experienced numerous false alarms with the security system. All-Phase turned the system off on August 18, 1978. On August 19, 1978, an unknown person broke into the All-Phase building and started a fire which damaged the building. The fire damage formed the basis for INA’s tort action against Bischoff.
From the time of installation until August 18, 1978, All-Phase called Bischoff back to the building on two occasions in order to cure the false alarm problem. The first call was a month after installation and the second call was about three weeks prior to the fire. Bischoff did not charge All- Phase for these visits, since he felt that it was his responsibility to adjust the system and assist with any problems. In his deposition, Bischoff claimed that he had never advised All-Phase to turn off the system and that the system was operating immediately after installation and during his later checks.
The policy of insurance between St. Paul and Bischoff contains a "completed operations” exclusion which provides:
" 'completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. 'Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
"(1) when all operations to be performed by or on behalf of the Named Insured under the contract have been completed,
"(2) when all operations to be performed by or on behalf of the Named Insured at the site of the operations have been completed, or
"(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
"Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”
This exclusion is identical to the one reviewed by this Court in Tiano v Aetna Casualty & Surety Co where the exclusionary language was upheld as unambiguous. The Tiano Court went on to hold that such an exclusion precluded recovery from the insurer for injuries arising after operations had been completed.
We agree with the Tiano decision and, in applying the unambiguous terms of the exclusion to the facts in this case, we conclude that the trial court did not err in granting plaintiffs motion for summary judgment. The portion of the work out of which the injury or damage arose (the installation of the security alarm system) had been put to its intended use by All-Phase. Therefore, under alternative (3) of the above-quoted exclusion, the operation performed by Bischoff was complete upon installation. Bischoffs subsequent servicing and adjustment of the otherwise completed system did not render the operation incomplete under the unambiguous language in the last sentence of the exclusion.
Based on the factual situation presented herein, it would be impossible for INA, at trial, to avoid the effect of the policy exclusion in the insurance contract between St. Paul and Bischoff. No issue of material fact exists as to whether the operation performed by Bischoff was "complete” for purposes of the policy exclusion. Consequently, the trial court did not err in granting plaintiffs motion for summary judgment and in entering a declaratory judgment providing that St. Paul had no obligation to indemnify Bischoff.
Affirmed.
81 Mich App 63, 67; 264 NW2d 122 (1978); see also, State Farm Fire & Casualty Co v Huyghe, 144 Mich App 341, 345; 375 NW2d 442 (1985).
102 Mich App 136, 145; 301 NW2d 832 (1980).
254 Mich 282, 285; 236 NW 782 (1931).
Detroit Edison, supra, p 146.
Johnson v Auto-Owners Ins Co, 138 Mich App 813, 815; 360 NW2d 310 (1984).
102 Mich App 177, 188; 301 NW2d 476 (1980). | [
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] |
Per Curiam.
On November 22, 1983, defendant was convicted by a jury of carrying a pistol in a vehicle, MCL 750.227; MSA 28.424, and carrying a pistol concealed on or about his person, id. Sentenced to eight months in the county jail and two years probation, defendant appeals his conviction as of right, raising three issues. We affirm.
At approximately 7:00 p.m. on February 24, 1983, Connie Ritter noticed that a car was moving slowly in front of her house and, upon inspection, discovered a man standing at the end of her driveway. Ritter was apprehensive since, earlier in the day, a number of her relatives had found paper stickers stating "the Ku Klux Klan is watching you” pasted to their homes. Ritter inquired whether the man needed assistance in finding someone, to which he responded he would find the man himself. The car then circled back and the man entered the vehicle. Ritter’s daughter copied the license plate number.
A few minutes later, the defendant and Vivian Varner, an aunt of Ritter’s husband, appeared at Ritter’s front door. Varner handed Ritter one of the Ku Klux Klan stickers and then told Ritter that she would be sorry if Varner received another call from a reporter. The record is unclear as to the nature of the inquiries made by reporters and as to Ritter’s connection with these telephone calls. In any event, Ritter informed Varner that she was the one who would be sorry, at which point the defendant raised his jacket, revealing a handgun tucked into his pants. He then told Ritter that she was the one who would be sorry. After a further exchange of words, Ritter shut the door and called the police. This incident gave rise to the charge against defendant for carrying a concealed weapon on or about his person.
The preceding incident took place in Sturgis, Michigan. At 7:48 p.m., police officers stopped the car occupied by Varner and defendant in Three Rivers, Michigan. Varner’s husband owned the vehicle and was driving, while Varner was riding as a passenger in the front seat. Defendant and David Gosser were situated in the rear seat. On the back window ledge of the vehicle between these two passengers the police discovered a styrofoam box which contained a .44-caliber cap and ball pistol. The box was made for storing firearms and also contained powder, plastic caps, a screwdriver, an extra ball, some wadding and a jackknife.
Defendant admitted visiting Ritter but denied that he displayed a handgun. Further, he admitted that he had loaded the pistol found in the automobile earlier in the day and had placed it in the styrofoam box. However, defendant denied that he had put the box in the car and maintained that he was not aware of its presence in the vehicle. Finding the pistol in the vehicle gave rise to the second charge of carrying a pistol in a vehicle.
Defendant first maintains that his convictions for carrying a pistol concealed on or about his person and carrying a pistol in a vehicle violated the double jeopardy clauses of the United States Constitution, Am V, and the Michigan Constitution, art 1, § 15, since he received multiple punishments for the "same offense”. See People v Robideau, 419 Mich 458, 468; 355 NW2d 592 (1984), quoting North Carolina v Pierce, 394 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Defendant claims that there is no discernible legislative intent to impose multiple punishments for "the criminal offense”. Thus, he goes on to argue that carrying a concealed weapon on his person was a lesser included offense of carrying a weapon in a vehicle and that these two crimes were therefore the same offense under Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), and violative of the federal double jeopardy clause. Alternatively, defendant argues that the Michigan double jeopardy clause was violated, maintaining that the separate convictions were based on common proofs which established a single criminal act.
We find it unnecessary to address defendant’s double jeopardy arguments in depth because we believe that his initial premise is flawed. Specifi cally, he maintains that, because he was allegedly carrying the same concealed weapon on his person and subsequently in the vehicle, he can be found guilty of only one unseverable wrongful act. If we could accept defendant’s premise, we would be inclined to agree that defendant was receiving an unwarranted multiple punishment under state and federal law. If, for example, defendant had the gun concealed on his person while he was in the automobile and this single event resulted in convictions on both charges, the criminal acts would be unseverable and a double jeopardy violation would exist. Such a situation would constitute only one instance of "concealment”. However, for the following reasons we believe that the facts of this case support a finding that defendant committed two separate criminal acts and that he was appropriately punished for each offense, even though both acts might be construed as having occurred during a single criminal transaction.
The purpose of the criminal statute at issue is to protect quarreling persons from being injured by an adversary who might suddenly draw and use a concealed weapon without notice. People v Shelton, 93 Mich App 782, 785; 286 NW2d 922 (1979). In People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), the Court found that the primary purpose of the armed robbery statute was the protection of persons and, therefore, the appropriate unit of prosecution for armed robbery was the number of persons assaulted and robbed. The Court thus concluded that there was no double jeopardy violation in convicting the defendant on two counts of armed robbery where there were two victims in a single holdup.
We acknowledge that, although both the armed robbery statute and the concealed weapon statute are designed to protect persons, there is a significant distinction between the two statutes, in that with the concealed weapons statute there need not be any overt act toward the person of another in order for the offense to be consummated. Nonetheless, we find the analogy to the armed robbery statute useful, since the concern with both statutes is with protecting people. Therefore, we believe that a concealed weapons charge should focus more on the persons put at risk than on the fact that only one weapon was concealed over an extended period of time. Since, in the instant case, Ritter was put at risk during the first offense while the police officers who approached the vehicle were put at risk during the second offense, we find that the facts militate in favor of a finding that these were two severable crimes.
In addition, we find significant the time and place considerations as well as the fact that both offenses were complete in and of themselves, as there were no common elements. The first offense occurred at approximately 7:00 p.m. in Sturgis and was complete before the defendant had ever left Ritter’s premises. Ritter’s testimony was sufficient to establish that defendant was carrying a weapon and that it was concealed on his person. See Shelton, supra, p 785. Proof of this crime was in no way dependent on whether the defendant subsequently carried a weapon in a motor vehicle.
Likewise, a conviction for the second offense in no way required that the elements of the first offense be established. Rather, the prosecutor was required to establish that a weapon was present in a vehicle operated or occupied by the defendant, that defendant knew or was aware of its presence, and that defendant was "carrying” the weapon. People v Courier, 122 Mich App 88, 90; 332 NW2d 421 (1982). The elements of this second offense could not be established merely by proving the elements of the first offense. Moreover this crime took place in a different locality, Three Rivers, and occurred approximately 45 minutes after the first offense was completed. Depending on the route taken, Three Rivers is some 21 to 23 miles northwest of Sturgis.
Finally, we believe that the Legislature may have had an additional purpose for proscribing the carrying of guns in motor vehicles which was of a more specific nature than the general purpose of the statute. Specifically, the Legislature likely wanted to protect police officers from surprise attacks by persons in automobiles who are stopped in the course of the officer’s performance of his duties. This additional purpose provides some indication that the Legislature would view the earlier concealment on the defendant’s person and the subsequent carrying of the weapon in a motor vehicle as two separate crimes. For all these reasons, we do not believe that defendant’s convic tions constituted a violation of either the federal or the state double jeopardy clause.
Defendant next argues that the prosecutor improperly impeached Varner, a non-alibi witness, during cross-examination and made improper comments during closing arguments by making reference to Varner’s refusal to talk to the police. Although there is a split in this Court with respect to the propriety of such impeachment and comments with respect to an alibi witness, see People v Grisham, 125 Mich App 280, 287; 335 NW2d 680 (1983), and cases cited therein, a prosecutor may cross-examine a non-alibi defense witness regarding his failure to come forward prior to trial with the information testified to at trial if the information is of such a nature that the witness would have a natural tendency to come forward with it prior to trial. People v Perkins, 141 Mich App 186, 196; 366 NW2d 94 (1985), lv den 423 Mich 858 (1985).
Varner testified that at no time during the day in question did she see a firearm in the defendant’s waistband. If this fact were true, it would have tended to exonerate the defendant on the charge of carrying a concealed weapon on his person. For the following reasons, we find that this information, which would have provided a complete defense to this crime if it were believed, was of such a nature that Varner would have had a natural tendency to present it prior to trial. First, Varner and the defendant had a close relationship, and thus it is reasonable to believe that she would have exerted some effort to provide authorities with information which would have tended to exculpate defendant. Moreover, since Varner was present during the time that defendant allegedly exhibited the firearm to Ritter, she would have had personal knowledge of these events. In addi tion, Varner’s presence during this episode tended to implicate her in wrongdoing and thus, if she had come forward with the evidence, she might have exonerated herself as well as the defendant. Finally, this is not a situation where the witness had to take the initiative to talk to authorities, as the police came to her home in order to discuss the incident. Under these circumstances, we do not believe that any error occurred by allowing the prosecutor to impeach Varner with evidence that she refused to talk to the police about the incident.
Defendant’s final contention is that there was insufficient evidence to support a finding that defendant "carried” the weapon in the motor vehicle. Proof of this element is essential to a conviction for carrying a weapon in an automobile and may not automatically be inferred from evidence that defendant had knowledge of the weapon’s presence in the vehicle. Courier, supra. However, in People v Butler, 413 Mich 377, 390 fn 11; 319 NW2d 540 (1982), the defendant’s awareness of the weapon was cited as one factor which has in the past been considered in determining whether there is sufficient circumstantial evidence to substantiate the element of "carrying”. Additional factors which have been considered include: (1) the accessibility or proximity of the weapon to the person of the defendant; (2) the defendant’s possession of items which connect him to the weapon, such as ammunition; (3) the defendant’s ownership or operation of the vehicle; and (4) the length of time during which the defendant drove or occupied the vehicle. Id.
In Butler, supra, the Court indicated that, by listing these factors, it was not adopting a test for determining when sufficient evidence of "carrying” was presented. Rather, the Court stated that the contours of this element would remain unsettled and that resolution of the issue would await a future case where the issue was directly presented to the Court. Further, the Court emphasized that it was merely listing factors which had been considered in the past and that it was not expressing any opinion with regard to the importance or relevancy of these factors. Given the Court’s position with respect to the factors which had been considered in the past, it is apparent that a trial court need not find that there was evidence presented on each of the five factors in order to determine that the circumstantial evidence is sufficient to substantiate the element of "carrying”. Moreover, the Court implicitly provided that other factors may be considered where relevant.
In the present case, we believe that the combination of the factors recited in Butler, plus an additional factor, support a finding that the element of "carrying” was sufficiently established. First, defendant was seated in the rear seat on the right-hand side of the vehicle with the styrofoam box on the back window sill directly next to him. Defendant’s proximity to the gun therefore provides some circumstantial evidence that he was the individual "carrying” the gun. The fact that another passenger was just as close to the gun as defendant tends to affect the weight that might be given this factor, but that fact does not preclude its consideration.
Second, defendant testified that he had loaded the gun earlier in the day, had then put it in the styrofoam box and had placed the box on the headboard of Varner’s bed. Although defendant denied having put the box in the vehicle, it would be unreasonable to conclude that defendant was unaware of its presence, since the styrofoam box was in such close proximity to him and was in his plain view and since he should have recognized the box as the container into which he had put the gun earlier in the day. The reasonableness of this conclusion further emerges when a third Butler factor is considered, i.e., the length of time during which defendant occupied the vehicle. Defendant testified that he and the others had left his home at approximately 2:30 or 3:00 p.m. and indicated that they had not returned to the house prior to appearing at Ritter’s home. Thus, it appears that defendant was in the vehicle with the styrofoam box in plain view for approximately four hours. It is difficult to believe that defendant would not have become aware of its presence during this time period.
Finally, Ritter testified that defendant had the firearm in his waistband when he visited her home approximately 45 minutes before the gun was discovered in the vehicle. The defendant’s earlier connection with the firearm provides a reasonable inference that defendant was the person in the vehicle who exerted control over the gun and who was "carrying” the gun. Such an inference is further substantiated by evidence that defendant had loaded the gun earlier in the day, had accompanied Varner when she purchased the gun approximately five days earlier, had occupied the car approximately six times while the gun was inside the car, and had put the gun in the car on at least one prior occasion. Based on all of this evidence, we believe that the jury reasonably could have concluded that defendant was guilty of carrying a pistol in a vehicle.
Defendant maintains that the trial court improperly instructed the jury to consider the nature and extent of defendant’s previous contact with the firearm in determining whether he "carried” the weapon at the time in question. He argues that this was not relevant or probative with re spect to whether the defendant was "carrying” the weapon at this specific time. We believe that such evidence would have some tendency to make the existence of the "carrying” requirement more or less probable than it would be without the evidence. Accordingly, the evidence was relevant under MRE 401 and it was not error to so instruct the jury.
Affirmed.
It should be noted that Varner’s husband consented to the search of the vehicle.
Blockburger, supra, was criticized by the Michigan Supreme Court in Robideau, supra, wherein the propriety of the continued use of this test was questioned in light of inconsistent applications of the test by the United States Supreme Court and other courts.
In support of defendant’s double jeopardy argument based on Michigan law, he cites cases which pre-date Robideau, supra. Robideau stands for the proposition that, where the facts surrounding a crime would support convictions under two distinct statutory provisions, the question of whether double jeopardy exists for the reason of multiple punishments depends on whether the Legislature intended that the crime warrant multiple punishments. Noting that legislative intent could be determined by a variety of traditional means, the Court nonetheless set forth two general principles: (1) where two statutes prohibit violations of the same social norms, it can generally be concluded that the Legislature did not intend multiple punishments; and (2) where one statute incorporates most of the elements of a base statute, building on the base statute by adding aggravating factors and imposing a greater penalty, there is evidence of a legislative intent not to punish a defendant under both statutes. While the Supreme Court did not expressly rule out the common proofs test advanced by defendant as a means for determining legislative intent, its holding at the very least indicates that the test has a precarious status. The Court concluded that a defendant could be doubly punished for first-degree criminal sexual conduct as well as the predicate offense which served to elevate the charge to first-degree criminal sexual conduct, despite the fact that the defendant would necessarily be guilty of the predicate offense if the factfinder found him guilty of first-degree criminal sexual conduct.
Although the record gives rise to an inference that the same weapon was involved in both crimes, this fact was not clearly established at trial. Moreover, in People v Sturgis, 130 Mich App 54, 65; 343 NW2d 230 (1983), lv gtd 422 Mich 857 (1985), the Court rejected the notion that use of the same gun in three severable crimes would trigger double jeopardy concerns.
Even if it were determined that both crimes were performed during a single transaction, the right not to be put in jeopardy twice would only require that all charges arising out of the transaction be tried in a single proceeding. It does not prohibit charging and convicting the defendant of multiple offenses where the defendant committed more than one crime during the course of the single transaction. People v White, 390 Mich 245, 255; 212 NW2d 222 (1973).
Although defendant maintains that the element of "carrying” the weapon in the vehicle was established in part by an inference drawn from the fact that he was the individual "carrying” the weapon earlier in the evening, we do not find this significant. To convict the defendant of both crimes, the jury had to conclude that he was "carrying” the weapon on both occasions. That the jury may have relied in part on an inference drawn from evidence presented to prove one crime in order to find that an element of another crime was established poses, at best, an evidentiary issue, but not a double jeopardy problem. | [
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Per Curiam.
Respondent appeals as of right from a probate court order denying rehearing of a previous order terminating her parental rights to three of her minor children, Lawanda Youtha Sears, born March 20, 1979, Richard Alan Sears, born March 6, 1980, and Robert Anthony Sears, born September 21, 1981. We affirm.
The Department of Social Services filed this petition on September 10, 1984, seeking termination of respondent’s parental rights under MCL 712A.19a, subds (b), (e), and (f); MSA 27.3178(598.19a), subds (b), (e), and (f). A hearing on the petition was conducted before a referee on November 15, 1984, at which Mildred Slaughter, a probation officer from Wayne County Juvenile Court, testified that respondent had left her three children with her aunt in 1981. Since that time, respondent failed to have any contact with the children or with the aunt and failed to provide any support for the children.
Respondent’s aunt, Betty Jane White, corroborated Slaughter’s testimony. She further explained that she and her husband had raised respondent as a child until, at the age of 17, respondent ran away from home. Respondent returned a short time later, pregnant, and remained with White until her first child, James Lee, was born on January 4, 1974. Respondent’s parental rights to James were terminated in 1978 and he was subsequently adopted by White.
After James was born, respondent again departed, leaving James with White. She subsequently returned for a short period with a second child, Tommy, who she also left with White. That child is currently being raised by his father, who is not the father of the minor children in the instant case.
In 1978, respondent married and became pregnant. A few months later, she left her husband and returned to her aunt with her third child, Lawanda Youtha. Respondent eventually moved back to her husband, taking Lawanda with her, but again returned to her aunt in 1980 when her husband was jailed. At that time, respondent brought with her Lawanda and a fourth child, Richard Alan. When respondent’s husband was released from jail, respondent rejoined him, leaving all four children with White.
In 1981, respondent returned to White a final time, pregnant with her fifth child. Robert Anthony Sears was born in September of 1981 and respondent departed in October of 1981, leaving her children behind. Respondent did assist White in obtaining temporary guardianship -’over Lawanda, Richard and Robert in November and December of 1981 but White has not had any contact with respondent since that time and has received no support for the care of the children. Respondent did not appear at the hearing.
An order was entered November 20, 1984, terminating respondent’s parental rights, as recommended by the referee. On the day of the hearing, respondent filed a petition for rehearing. A hearing was conducted on the petition, after which the probate court rejected respondent’s allegation of improper service and affirmed the order terminat ing her parental rights, specifically citing MCL 712A.19a, subds (b) and (e); MSA 27.3178(598.19a), subds (b) and (e). The children’s father, Bernard Sears, has never participated in these proceedings.
At the time the instant petition was filed, respondent’s whereabouts were unknown. Betty Jane White had raised respondent and had custody of her children and had not had any contact with her since late 1981. Months prior to the filing of the petition, the probation officer had attempted to locate respondent through an address provided by White and through addresses obtained from the Detroit Police Department. Letters were sent to three last known addresses in Detroit to no avail. Substituted service was granted and notice was published in the Detroit Legal News on September 20, 1984. The hearing was conducted six weeks later.
The juvenile code provides that:
"Service of summons may be made anywhere in the state personally by the delivery of true copies thereof to the persons summoned: Provided, That if the judge is satisfied that it is impracticable to serve personally such summons or the notice provided for in the preceding section, he may order service by registered mail addressed to their last known addresses, or by publication thereof, or both, as he may direct. It shall be sufficient to confer jurisdiction if (1) personal service is effected at least 72 hours before the date of hearing; (2) registered mail is mailed at least 5 days before the date of hearing if within the state or 14 days if outside of the state; (3) publication is made once in some newspaper printed and circulated in the county in which said court is located at least 1 week before the time ñxed in the summons or notice for the hearing.” MCL 712A.13; MSA 27.3178(598.13). (Emphasis added.)
Following the hearing on respondent’s petition for rehearing, the trial court properly concluded (1) that substituted service by publication was appropriate given respondent’s unknown whereabouts and (2) that the notice period of six weeks was sufficient. Apparently, the crux of respondent’s argument is that she received a letter or document notifying her of the termination hearing on the day the hearing was held. Respondent does not indicate the date posted on the notice and it is undisputed that Slaughter sent out a variety of notices to several addresses as early as July of 1984 in an attempt to make contact with respondent. The fact that one of these notices eventually found its way to respondent on the date that the hearing was conducted is not sufficient reason to disregard the fact that proper service was otherwise effected by publication.
Furthermore, the termination of respondent’s parental rights was proper under MCL 712A.19a(b); MSA 27.3178(598.19a)(b), which authorizes such action where:
"The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial efforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian.”
We agree with the probate court that this is not a typical abandonment case since, in 1981, respondent acted responsibly in recognizing that she was unable to care for her three minor children, in placing them with a responsible adult relative and in arranging for temporary legal guardianship. We further agree with the probate court that had respondent maintained contact with her children or made any effort to assist White with their support during the three-year period prior to the 1984 hearing, this would not be an appropriate case for termination of parental rights. However, at some point respondent’s failure to have anything to do with her children became abandonment and, while that precise moment may be difficult to ascertain, it is clear that the period of abandonment included at a minimum the six months preceding the filing of the petition in this case. We find the presumptive evidence of respondent’s abandonment clear and convincing, In the Matter of Harmon, 140 Mich App 479, 481; 364 NW2d 354 (1985), and we thus cannot say that the probate court’s findings are clearly erroneous. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985).
Affirmed. | [
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] |
Per Curiam.
The City of Detroit appeals as of right from an order of the Michigan Employment Relations Commission. The city had entered into a contract agreement with the Amalgamated Transit Union. The union represents bus drivers that work for the city. Their contract had provided for a two-year wage freeze, from July 1, 1981, to June 30, 1983. On July 1, 1983, a six percent wage increase was to be given to employees. When that date arrived the city unilaterally announced that the increase would not be awarded. The union instituted an unfair labor practice charge and alleged that the city had violated the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. The hearing officer found the city guilty of violating PERA and implemented the wage increase retroactive to July 1, 1983. The union filed an exception to the hearing officer’s order requesting interest on the past due amounts and attorney fees and litigation expenses. MERC granted these two requests.
On appeal the city protests the award , of attorney fees, litigation expenses and interest on the past due payments. It also contests the finding that it had violated PERA. We find no merit in the city’s arguments and affirm the hearing officer.
"In reviewing a final decision of an administrative agency, we are mindful of the limited role afforded us on appeal. Out of due deference for agency expertise on matters within its jurisdiction, an appellate court may reverse the final decision of an administrative agency only where it is found to be contrary to law or unsupported by competent, material, and substantial evidence on the record as a whole. Const 1963, art 6, § 28; MCL 423.216(e); MSA 17.455(16)(e); Chrysler Corp v Sellers, 105 Mich App 715; 307 NW2d 708 (1981). If there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Chrysler Corp, supra, p 720.” Capac Bus Drivers Ass’n v Capac Bd of Ed, 140 Mich App 542, 547; 364 NW2d 739 (1985).
The city’s objection to the hearing officer’s finding that it had violated the PERA has been waived as the city did not preserve this issue for appeal. Robertson v Local Division 26, Amalgamated Transit Union, 91 Mich App 429, 432-433; 283 NW2d 766 (1979); MCL 423.216, subds (b) and (d); MSA 17.455(16), subds (b) and (d). Furthermore there was substantial evidence to support the finding of a PERA violation. Local 1383, International Ass’n of Fire Fighters v City of Warren, 411 Mich 642, 654; 311 NW2d 702 (1981). Accordingly, we find no error.
We have reviewed the record and we do not find error in the decision to award attorney fees. Attorney fees may be ordered "as will effectuate the policies of this act”. MCL 423.216(b); MSA 17.455(16)(b). In the instant case the city’s defense was frivolous and the award of attorney fees proper. NLRB v Food Store Employees Union, 417 US 1; 94 S Ct 2074; 40 L Ed 2d 612 (1974).
The union requests that we assess the city punitive damages for bringing this appeal. We decline to do so.
Accordingly the hearing officer’s decision is affirmed.
Affirmed. Costs to appellee. | [
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D. P. Kerwin, J.
On April 11, 1984, the circuit court entered an order enjoining defendant Emmanuel Baptist Bible Church from operating the defendant Emmanuel Baptist Pre-School without a license, and declaring the pre-school exempt on First Amendment grounds from complying with certain Department of Social Services licensing requirements if and when it seeks licensure. Plaintiff DSS appeals as of right from that portion of the order holding the pre-school partially exempt from compliance. Defendants cross-appeal from that portion of the order enjoining them from operating an unlicensed child care center. We affirm the order requiring licensure, but reverse that part of the order finding exemptions.
I. Background
Defendant Emmanuel Baptist Bible Church is a fundamentalist Baptist church which operates the Emmanuel Baptist Pre-School. In 1974, the church received a provisional license permitting care of up to 20 children, ages 2 Vi to 6 years. Two more provisional licenses were issued in 1975, and the pre-school received regular licensure in 1976. DSS representatives inspected the pre-school in 1978 and noted rule violations of which the church was informed in 1979. Pastor Harold Asiré and Mark Asiré, the pre-school’s principal, informed DSS representatives in May, 1979, that the pre-school no longer desired licensure because of religious principles. The pre-school was delicensed in June, 1979. Notwithstanding, the church continued to operate the pre-school in violation of 1973 PA 116, § 5(1); MCL 722.115(1); MSA 25.358(15)(1).
DSS sought a declaratory judgment holding that the pre-school was subject to the licensing requirements of the child care organizations act, as amended, MCL 722.111 et seq.; MSA 25.358(11) et seq., (the act), and sought to enjoin unlicensed operation of the pre-school. The church alleged as affirmative defenses that the Legislature had improperly delegated licensing authority to the DSS, that the child care organizations act was unconstitutional under the First Amendment as applied to the church and created an excessive entanglement between church and state, and that certain pending administrative rules under the act would infringe upon defendant church’s First Amendment rights. The lower court, after hearing the evidence, ruled that the church should be required to obtain a license to operate its pre-school, but that neither the DSS administrative rules regulating staff qualifications, program and discipline nor the statute regarding inspection of financial records should be utilized if the church sought licensure. The order provided:
"* * * Defendants are bound by the requirements of the child care organization act, 1973 PA 116, as amended; MCL 722.111 et seqMSA 25.258(11) et seq., and the administrative rules promulgated thereunder, pertaining to the licensing of child care centers, subject to the following exceptions:
"1. Defendants should not be required to comply with 1980 AACS R 400.5104(2)(a)(b) & (3) [regarding program director qualifications];
"2. Defendants should not be required to comply with 1980 AACS R 400.5106(l)(c) [regarding fostering positive self-concept];
"3. Defendants should not be required to comply with 1980 AACS R 400.5107(2) to the extent that said rule prohibits the use of corporal punishment, provided Defendants’ use of corporal punishment at the Emmanuel Baptist Pre-School be reasonable under the circumstances and limited in force and duration;
"4. Sections 2(3)(c) and 5(1) of 1973 PA 116; MCL 722.112(3)(c) and 722.115(1); MSA 25.358(12)(3)(c) and 25.358(15X1) should not be strictly enforced against Defendant Emmanuel Baptist Bible Church to the extent that said statutory provisions allow Plaintiff to inspect the financial records of Defendant Church;
"IT IS FURTHER ORDERED that subject to the hereinabove enumerated exceptions, Defendants Emmanuel Baptist Bible Church and Emmanuel Baptist Pre-School * * * are hereby enjoined:
"1. From operating an unlicensed child care center in violation of 1973 PA 116, sec 5(1); MSA 722.115(1); MSA 25.358(15X1);
"2. From preventing the Michigan Department of Social Services from investigating and inspecting the operation of the Emmanuel Baptist Pre-School as a child care center for purposes of determining whether the Emmanuel Baptist Pre-School meets minimum licensing standards and determining whether the health, safety and well-being of the children attending the Emmanuel Baptist Pre-School are being protected.”
DSS now appeals from the four exceptions to application of the administrative rules which were carved out by the lower court. The church cross-appeals, presenting a challange to the entire issue of licensure.
II. The Act and the Rules
The child care organizations act protects children through the licensing and regulation of child care organizations and provides for establishment of standards for child care organizations. Under the act, an entity, such as the church, wishing to operate a child care center must apply for a license. Subsection 2(1) authorizes the DSS to develop rules for the care and protection of children in covered organizations. MCL 722.112(1); MSA 28.358(12)(1). The rules set minimum standards for child care. MCL 722.112(3); MSA 25.358(12)(3).
Prior to June 4, 1980, administrative rules governing child care organizations were those promulgated effective June 14, 1957. See 1979 AC, R 400.120 et seq. Pursuant to subsection 2(1) of the act, DSS promulgated new rules regarding child care licensing, including provisions regarding care of children ages 2 V2 to 5 years, in 1980 AACS, R 400.5101 et seq., effective June 4, 1980, one year after the church relinquished its license for the pre-school. Under Rule 118, applicants or licensees may request an exemption from the administrative rule if there is clear and convincing evidence that they have an alternative which complies with the intent of the rule. 1980 AACS, R 400.5118.
III. Free Exercise of Religion
The church complained in the lower court that the administrative rules and general licensing requirements burdened its exercise of religion and constituted excessive entanglement with its affairs. We undertake our review in light of these complaints, which have been reasserted on appeal.
The First Amendment’s free exercise clause provides that Congress shall make no law "prohibiting the free exercise” of religion. US Const, Am I. While there is an unqualified prohibition against governmental interference with religious beliefs, governmental regulation may lawfully impose an incidental burden on otherwise protected religious conduct. See Wisconsin v Yoder, 406 US 205, 220; 92 S Ct 1526; 32 L Ed 2d 15 (1972); Sherbert v Verner, 374 US 398, 403; 83 S Ct 1790; 10 L Ed 2d 965 (1963); Cantwell v Connecticut, 310 US 296, 303-304; 60 S Ct 900; 84 L Ed 1213 (1940).
A balancing test is employed to determine whether government may regulate conduct prompted by religious belief or principle. Yoder, supra, 406 US 221; Sherbert, supra, 374 US 403, 406. First, the belief, or conduct motivated by the belief, must be religious in nature. Second, the party complaining of a free exercise clause violation must show that the regulations under review impose a substantial burden on the exercise of religion. Third, if the complaining party demonstrates that it is burdened by the regulations, the state must have a compelling state purpose for its laws. Relevant to this prong is an inquiry into whether there exists a less restrictive alternative to the regulation. Sherbert, supra, 374 US 403-407. See, also, Sheridan Road Baptist Church v Dep’t of Education, 132 Mich App 1; 348 NW2d 263 (1984), lv den 419 Mich 916 (1984), reconsideration granted 422 Mich 857 (1985).
A. Licensure Does Not Burden the Church’s Free Exercise of Religion
In the lower court and again on appeal the church asserted that the pre-school is part of its ministry which may be governed by God but not by the state. The lower court held that the burden licensure imposes on the church’s free exercise rights was outweighed by the state’s interest in protecting children. We affirm this ruling.
Indirect financial or regulatory burdens do not necessarily infringe upon the free exercise of religion. Braunfeld v Brown, 366 US 599, 606; 81 S Ct 1144; 6 L Ed 2d 563 (1961). In the licensure and regulation context, a free exercise claim can succeed only where the rule or statute suppresses the exercise of sincere religious beliefs or the dissemination of religious views, as opposed to regulating the manner in which secular activities are conducted. Murdock v Pennsylvania, 319 US 105; 63 S Ct 870; 87 L Ed 1292 (1943); Follett v Town of McCormick, 321 US 573; 64 S Ct 717; 88 L Ed 938 (1944); Cox v New Hampshire, 312 US 569; 61 S Ct 762; 85 L Ed 1049 (1941). Under this test, the free exercise clause has not prevented licensure or regulation of facilities such as day care centers. See, e.g., Roloff Evangelistic Enterprises, Inc v Texas, 556 SW2d 856 (Tex Civ App, 1977), app dismissed 439 US 803; 99 S Ct 58; 58 L Ed 2d 96, reh den 439 US 998; 99 S Ct 601; 58 L Ed 2d 672 (1977).
In the present case, we have no problem with the first and second prongs of the Sherbert test. This claim is undoubtedly rooted in the church’s fundamentalist Christian doctrine. Moreover, regulation poses some burden on the free exercise of religion, but not necessarily the burden as described by the church.
The church assails licensure on the general principle that the state has no right to govern the operations of its educational ministry. While we recognize the freedom to hold religious belief is absolute, the freedom to act is not. Cantwell v Connecticut, supra. The act’s licensing scheme does not regulate the content of the church’s fundamentalist teachings. Rather, it regulates the pre-school’s secular activities as a pre-school — i.e., the physical care of 2 Vz to 5 year olds in attendance there. While the church has shown that it abhors licensure as a general proposition, it has presented no evidence that the BSS has ever attempted to regulate the religious program or suppress the exercise of religious beliefs at the preschool.
Even had a specific burden been demonstrated, we are of the opinion that the state’s compelling interest in protecting and nurturing its very young children, Prince v Massachusetts, 321 US 158; 64 S Ct 438; 88 L Ed 645 (1944), and in licensing and regulating day-care facilities for minor, renders any burden on the church’s exercise of religion a constitutionally permissible one.
For the foregoing reasons, we affirm that portion of the trial court’s order enjoining the church from operating an unlicensed day-care center.
B. Rule 104(2) Burdens the Church’s Free Exercise of Religion But the Burden is Constitutionally Permissible
The church claimed in the lower court that 1980 AACS, R 400.5104(2), which specifies educational qualifications for the program director of a child care organization, unlawfully burdens the free exercise of its religious beliefs. The rule provides, in pertinent part:
"(2) With respect to the qualifications for program director, a center shall comply with either of the following subdivisions:
"(a) A program director shall have completed a minimum of 60 semester hours of credit at an accredited college or university and shall have completed not less than 12 semester hours in child development, child psychology, or early childhood education. * * *
"(b) A program director shall have been awarded the child development associate credential by the child development associate consortium and shall have completed not less than 12 semester hours in child development, child psychology, or early childhood education at an accredited college or university. * * *
"(3) A Center shall keep on file verification of the education qualifications of the program director and the credential qualifications, as applicable.”
The church selects its pre-school director and teaching staff from fundamentalist Christian colleges such as Bob Jones University and Tennessee Temple University, which shun accreditation on Biblical grounds. Persons who have attended accredited schools are acceptable if they are born-again Christians. The lower court held that Rule 104 usurps the church’s prerogative to select staff for its ministerial program and prevents the church from selecting a director from a college which holds beliefs compatible with its own. DSS challenges this ruling. We reverse, as we find that the rule poses a constitutionally insignificant burden on the church’s free exercise of religion.
Rule 104 guards against the risks of operating a child care center under the guidance of an unqualified individual. As applied to the church, the rule regulates who may or may not head a child care center based upon their decision to attend an accredited college or university or a non-accredited fundamentalist school. In this manner it burdens the church’s free exercise of religion. However, the lower court record does not support a finding that Rule 104 as applied imposes a significant burden on defendants’ free exercise of religion. There was evidence that DSS has developed certain steps to determine whether a college or university is "accredited” for the purposes of enforcing 1980 AACS, R 400.5104. Under the policy, the many in-state and out-of-state colleges which accept credits from institutions such as Bob Jones University and Tennessee Temple University provide a means for "accreditation” for those schools. Moreover, under Rule 118, 1980 AACS, R 400.5118, a licensed applicant may be exempted from any administrative rule if there is clear and convincing evidence that an alternative complies with the intent of the administrative rule. These rules, if used by the church, provide a method of avoiding the burdens posed by Rule 104. As the church has two ways to avoid the burden imposed by Rule 104, we do not see the church’s claims as constitutionally significant.
Moreover, the state’s compelling interest in assuring that program directors posses minimal qualifications is of sufficient magnitude to override any burden imposed upon the church in finding teachers from "accredited” institutions. The care and protection of children is a matter of "paramount importance” to the state. Fisher v Fisher, 118 Mich App 227, 232-233; 324 NW2d 582 (1982), lv den 414 Mich 919 (1982); Prince v Massachusetts, supra. There was testimony in the lower court that setting minimum educational standards for program directors in child care centers is a necessary means of protecting the state’s interest in the safety and welfare of pre-school age children. There was also evidence that program quality increases where the program director has more training and that the quality of a child care center hinges directly on the quality of its director.
This Court recognized in Sheridan Road Baptist Church, supra, that the state has an interest in the quality of education, but that the state’s interest must be balanced against the free exercise rights of others. The issue is whether the regulations reasonably effectuate the broader compelling state interest of providing education to all children. 132 Mich App 22. We believe Rule 104 is an eminently reasonable means to foster the state’s interest in providing young children with quality pre-school programs.
C. Rule 106 Does Not Burden the Church’s Free Exercise Rights
1980 AACS, R 400.5106(1)(c) requires child care centers to provide a program which fosters a "positive self-concept” among children:
"Rule 106. (1) A center shall provide a program of daily activities and relationships that offers opportunities for the development growth of each child in the following areas:
"(c) Emotional development, including positive self-concept.” (Emphasis added.)
The church claims this rule unlawfully burdens the free exercise of its religious beliefs. The church teaches children the doctrine of innate depravity of mankind, which holds that all human beings are sinners in need of salvation. In the lower court, the church expressed concern that a DSS inspector might misinterpret the teaching of this doctrine as being contrary to Rule 106(l)(c), and deny or revoke licensure on that basis. The church also assails the rule as promoting "secular humanism”, as opposed to fundamentalist doctrine. The lower court held that the church did not have to comply with Rule 106 because the rule espouses humanistic values which directly conflict with the church’s fundamentalist beliefs.
However, at trial it was established that the church does not oppose a child’s having a positive self-concept, so long as it is within its religious framework. The church’s apparent concern was that non-fundamentalists would not be able to understand that a fundamentalist Christian could have a positive self-concept and also be aware of his depraved condition as a human being. The DSS and the church, it is feared, might clash on this issue time and again in the future. A DSS representative testified that the doctrinal position that each individual is depraved would not contradict the "positive self-concept” rule. The rule, the representative indicated, speaks to the way children are handled, i.e., whether they are belittled or demeaned by adults, or made to feel inferior to other children. DSS did not oppose the teaching of doctrine so long as it is age-appropriate. There was also testimony that almost any reasonable program would stand the test of this rule. Under it, a day care center may adopt the methodology of its choice.
The church evidences great concern about the potential for abuse in the "positive self-concept” rule, but fails to show any actual infringement which has burdened its free exercise of religion. We will not invalidate a statutory scheme merely because it may be subject to an unconstitutional interpretation. Sheridan Road Baptist Church, supra, pp 26-27. Here, we have no specific instance of the state’s intrusion upon the church’s religious doctrinal freedom through imposition of the "positive self-concept” rule. We therefore hold that Rule 106(1)(c) is a rational means to serve the state’s interest in protecting a child’s emotional well-being while at a day care facility, and that the church must be required to abide by it.
D. Rule 107(2) Burdens the Church’s Free Exercise of Religion But the Burden is Outweighed by the State’s Interest in Protecting Children
1980 AACS, R 400.5107 prohibits corporal punishment by a child care center staff member:
"(2) Staff shall be prohibited from using the following as a means of punishment:
"(a) Hitting, shaking , biting, pinching, or inflicting a form of corporal punishment.
"(b) Restricting a child’s movement by binding or tieing him or her.
"(c) Inflicting mental or emotional punishment, such as humiliating, shaming, or threatening a child.
"(d) Depriving a child of meals, snacks, rest, or necessary toilet use.
"(e) Confining a child in an enclosed area, such as a closet, locked room, box, or similar cubicle.”
On May 19, 1980, the DSS issued an interpretative guideline which permits the use of spanking a child care centers under specific circumstances. Instructional Memorandum No. 80-09, which was introduced at trial, provides in pertinent part:
"The interpretation, outlined below, should not be construed to mean that the Department encourages spanking. In fact, technical assistance should be provided to enable licensees to comply by other methods which are clearly preferred.
"Interpretation outline: If spanking is to be used, as a form of discipline, it is to be in accordance with subrule (4) of new Administrative Rule 5107 — Discipline, and in accordance with the following:
"(a) A child is not to be spanked on any part of his or her body, except the buttocks.
"(b) The buttocks are to be protected with the child’s clothing.
"(c) Only the program director of a caregiver is to spank a child.
"(d) No instrument is to be used to spank a child, except the open palm of the program director’s or caregiver’s hand.
"(e) The spanking is to be brief in duration and reasonably light in force.” (Emphasis added.)
The church adheres to a literal interpretation of the Biblical admonition: "Spare the rod, spoil the child”. At the pre-school, teachers spank children using a ping pong paddle, as it is believed that the Biblical injunction requires the use of a "rod” as opposed to the hand. The church asserted in the lower court that Rule 107 unlawfully burdens the free exercise of its religious beliefs. The lower court agreed with the church, ordering that the church need not comply with the rule to the extent that it prohibits the use of corporal punishment, so long as punishment at the pre-school was reasonable under the circumstances and limited in force and duration. In our view, the lower court erred in ruling that the church need not refrain from corporal punishment using a ping pong paddle. Additionally, the lower court failed to balance the state’s interest in enforcing the corporal punishment rule against the burden to the church.
The state’s interest is clear and compelling. The rule protects very young children from physical harm by prohibiting potentially abusive forms of discipline. Child abuse by adults is a major risk to children receiving daily out-of-home care in daycare centers. Children in age ranges 2 Vi to 6 are not likely to protest abusive punishment. Thus, although the prohibition against spanking with a ping pong paddle burdens the church’s free exercise of its religious beliefs, the state’s interest in protecting its very young outweighs the burden. In so holding, we recognize that some practices rooted in religious principle may be dangerous to the health and welfare of certain members of society. See Kansas ex rel Pringle v Heritage Baptist Temple, Inc, 236 Kan 544, 549-550; 693 P2d 1163 (1985). It is not beyond the power of government to prevent such practices through regulation.
E. MCL 722.112(3)(c); MSA 25.358(12)(3)(c) and MCL 722.115(1); MSA 25.358(15)(1) Do Not Burden the Church’s Free Exercise of Its Religious Beliefs
The church claimed in the court below that both MCL 722.112(3)(c); MSA 25.358(12)(3)(c) and MCL 722.115(1); MSA 25.358(15)(1), which authorize the DSS to inspect the financial records of child care organizations, place an unlawful burden on the exercise of its religious beliefs. The two subsections provide:
"(3) The rules promulgated under this act shall be restricted to:
"(c) The general fínancial ability and competence of applicants to provide necessary care for children and to maintain prescribed standards.” (Emphasis added.) MCL 722.112(3)(c); MSA 25.358(12)(3)(c).
"Sec. 5. (1) A person, partnership, firm, corporation, association, or nongovernmental organization shall not establish or maintain a child care organization unless licensed or registered by the department. Application for a license or certificate of registration shall be made on forms provided, and in the manner prescribed, by the department. Before issuing or renewing a license, the department shall investigate the activities and proposed standards of care of the applicant and shall make an on-site visit of the proposed or established organization. If the department is satisfied as to the need for a child care organization, its financial stability, the good moral character of the applicant, and that the services and facilities are conducive to the welfare of the children, the license shall be issued or renewed.” (Emphasis added.) MCL 722.115(1); MSA 25.358(15)(1).
The trial court held that these sections should not be strictly enforced against the church to the extent that they allow plaintiff to inspect the church’s financial records. We do not find evidence in the record to support the notion that §§ 2(3)(c) and 5(1) of 1973 PA 116, as applied to the church, burden its free exercise of religion. The church asserts that "the above-cited provisions, without question, present the potential of government intrusion into church affairs” and "they are vague and standardless provisions”.
In August, 1974, Pastor Harold Asiré completed DSS’s then-existing financial form DSS-3603 as part of his application for a license to operate the pre-school. Pastor Asiré did not testify as to how complying with this requirement infringed upon the pre-school’s free exercise of religion. The use of form DSS-3603 and the requirement for applicants to submit a financial statement was discontinued by a policy memorandum issued in September, 1974. A DSS representative also testified that DSS does not investigate the financial records of child care organizations during initial or periodic on-site investigations. In light of this evidence, we find it difficult to determine how §§2(3)(c) and 5(1) as applied have ever burdened the church’s free exercise of religion. The church seems to be voicing a general objection to governmental intrusion into church affairs through licensing.
We reverse the holding of the lower court that these sections, to the extent that they allow plaintiff to inspect the church’s financial records, should not be strictly enforced against the church.
F. The Establishment Clause
The church argues that the licensing scheme in the act violates the establishment clause because it creates an "excessive entanglement” between church and state. On appeal, DSS challenges the lower court’s holding that the administrative rule regarding the qualifications of a program director violates the establishment clause.
The establishment clause provides: "Congress shall make no law respecting an establishment of religion * * *.” US Const, Am I. The United States Supreme Court has fashioned a three-part inquiry for determining whether governmental action violates the establishment clause: (1) the law in question must reflect a clearly secular purpose, (2) the law must have a primary effect that neither advances nor inhibits religion, (3) the law must avoid excessive government entanglement with religion. Committee for Public Education & Religious Liberty v Nyquist, 413 US 756, 772-773; 93 S Ct 2955; 37 L Ed 2d 948 (1973), adopted in Michigan in Citizens to Advance Public Education v State Superintendent of Public Instruction, 65 Mich App 168; 237 NW2d 232 (1975), lv den 397 Mich 854 (1976). The establishment clause protects against state "censorship, financial support and active involvement” in religious activity. Walz v Tax Comm, 397 US 664, 668; 90 S Ct 1409; 25 L Ed 2d 697 (1970).
The issue of whether any part of the child care licensure scheme violates the First Amendment is not an establishment clause issue at all. Establishment clause cases refer to allegations of aid to or sponsorship of religion, either through the granting of public aid to religious schools, Citizens to Advance Public Education, supra, the granting of tax-exempt status to religious organizations, Walz, supra, or the allowing of religious practices such as prayer to take place in public locations, Wallace v Jaffree, 472 US —; 105 S Ct 2479; 86 L Ed 2d 29 (1985). The mandates of the licensure scheme have nothing to do with the establishment of a religion. As licensure of day-care centers is within the area of permissible state involvement with religious institutions, we think that the trial court erred in concluding the 1980 AACS, R 400.5104(2), establishing educational requirements of program directors, constitutes excessive governmental entanglement with church affairs. Moreover, application of the rule does not require continuous state involvement in the operation of the pre-school, but only requires "occasional communication between the two entities”.
V. Vagueness
We reject the church’s last claim that the licensing rules are unconstitutionally vague, subjective and ambiguous. We think the rules are as precise as the subject matter permits. Sheridan Road Bap tist Church, supra, pp 25-26. Even if the "positive self-concept” rule were more narrowly and precisely drawn by specifying the program content and the methods of carrying out that program content, objections identical to those raised in this case would undoubtedly have been raised.
Defendants also claim that the Legislature unconstitutionally delegated its legislative power because it failed to articulate standards in conferring authority upon the DSS to promulgate rules under § 2 of the act. The Michigan Constitution provides for separation of powers of the legislative, executive, and judicial branches of government, and thus prohibits exercise of the powers of one branch by another except where expressly permitted by the constitution. Const 1963, art 3, § 2. We think § 2 of the act provides sufficient standards for promulgation of rules by the department, and therefore contains standards "as reasonably precise as the subject matter requires or permits”, so that the separation of powers doctrine is not violated. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d (1956); Westervelt v Natural Resources Comm, 402 Mich 412, 434; 263 NW2d 564 (1978).
VI. Conclusion
The lower court was correct in one respect and in error in several others. First, the lower court’s decision to require the church to operate a licensed pre-school was correct. However, we find the four exemptions to the licensing requirements carved by the lower court were erroneous and reverse the lower court on all four. Moreover, we do not find that any action by DSS violated the establishment clause in this case, nor do we find any merit in the church’s claim that the licensing rules are unconstitutionally vague.
Affirmed in part; reversed in part.
The rules relate to the daily care of children. For example, the program director must be present a certain number of hours each day, 1980 AACS, R 400.5103. Centers are required to provide children with a daily program of activities. 1980 AACS, R 400.5106. Standards for furniture, play and sleeping equipment are listed, as are nutritional standards. See 1980 AACS, R 400.5108, 400.5109, 400.5110.
The free exercise clause was applied to the states in Gitlow v New York, 268 US 652; 45 S Ct 625; 69 L Ed 1138 (1925).
Accord, North Carolina v Fayetteville Street Christian School, 42 NC App 665; 258 SE2d 459 (1979), vacated and remanded on other grounds 299 NC 351; 261 SE2d 908 (1980); Kansas ex rel O’Sullivan v Heart Ministries, Inc, 227 Kan 244; 607 P2d 1102 (1980); Kansas ex rel Pringle v Heritage Baptist Temple, Inc, 236 Kan 544; 693 P2d 1163 (1985); Texas v Corpus Christi People’s Baptist Church, Inc, 683 SW2d 692 (Tex, 1984).
See footnote 1, supra.
See cases cited in footnote 3, supra.
The pre-school’s goal is to provide religious education as part of its ministry. Children are given Bible instruction with the remainder of time devoted to integrating Biblical principles with the rest of the program.
Even had we found Rule 106 to burden the church’s free exercise of religion, the state’s compelling interest in protecting the emotional well-being of pre-school-age children who receive out-of-home care overrides any minimal intrusion on defendants’ free exercise of religion.
The establishment clause was applied to the states in Everson v Board of Education, 330 US 1, 15-16; 67 S Ct 504; 91 L Ed 711 (1947), reh den 330 US 855; 67 S Ct 962; 91 L Ed 1297 (1947). | [
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] |
T. Roumell, J.
Intervenor, the Department of Natural Resources, appeals as of right from a January 30, 1984, order of the Washtenaw County Circuit Court. We affirm.
Pursuant to the Inland Lake Level Act of 1961, MCL 281.61 et seq.; MSA 11.300(1) et seq., (act), the order established the legal level of Four Mile Lake at 887 feet above the United States Coast and Geodetic Survey sea level datum of 1929 and confirmed the boundaries of a special assessment district.
The order further provided:
"IT IS FURTHER ORDERED that the Washtenaw County Drain Commissioner may install a pump at the existing terminus of Dexter No. 3 Drain and/or take all other necessary steps to prevent flooding of adjoining farmland or to keep the lake at the aforementioned level and the costs of construction, installation, operation and maintenance thereof may be charged to the Four Mile Lake Level Special Assessment District.”
On appeal the DNR claims that the trial court acted without statutory authority when it made the preceding order.
Four Mile Lake is an egg-shaped body of water which is very shallow. At the northeast corner, Dexter Drain No. 3 empties into the lake. The drain serves farms located to the north and northeast of the lake. At the south end of the lake is an outlet drain. Although there was testimony at trial that the DNR owned 90% of the land surrounding the lake, a map provided by the DNR suggests that it owns less than 90% of the shoreline.
On January 14, 1982, the Washtenaw County Board of Commissioners petitioned the circuit court for a determination of the normal height and level of the water of this lake. In addition to the DNR, eleven property owners, most of whom were farmers with land served by Dexter Drain No. 3, intervened. Testimony centered around five central issues: (1) the ecological effect of a lake level lower than 887 feet; (2) whether the drainage problems of Dexter Drain No. 3 were the result of the lake’s high water level or of the drain’s design; (3) the period of time during which the farmers had experienced drain problems; (4) whether the outlet drain on the south end of the lake was clogged; and (5) the historic level of the lake. During the course of these proceedings, the level of the lake was measured four times and was found to fluctuate between 887.3 and 887.58 feet. Throughout this proceeding, the parties referred to the ''current level” as 887.5 feet. At that level, the outlet to Dexter Drain No. 3 was underwater, causing water to back up with the result that the drain functioned only minimally, if at all.
The DNR took the position that a high lake level is best for fish and wildlife and sought to preserve the marshlands lying primarily to the west of the lake. The DNR was willing to settle for a level of 887 feet above sea level, but would have preferred a higher limit. The intervening farmers contended that the high water level was responsible for turning several acres of once rich farm land into land too wet to be cultivated. The farmers contended that a lake level of 885.5 feet would expose the outlet of Dexter Drain No. 3, would allow it to again function, and would dry out their land.
As a compromise between the farmers’ position and the DNR’s position, the Washtenaw County Drain Commissioner proposed setting the Lake level at 887 feet and installing a pump to force the water out of Dexter Drain No. 3. He proposed the establishment of a special assessment district to finance the pump. The proposed district included only owners of lake front property, primarily the DNR and two of the eleven intervenors. The proposed location of the pump was just outside the special assessment district on the east side of Lima Center Road.
The farmers preferred a gravity-flow drainage system (i.e., a lake level of 885.5 feet), because they feared that a mechanical system might break down, resulting in the flooding of planted crops. However, they were willing to accept the proposed compromise. The DNR was willing to accept 887 feet as a lake level, but did not feel that it should have to pay for the pump.
The preamble of the Inland Lake Level Act expresses the legislative intent of this enactment as follows:
"AN ACT to provide for the determination and maintenance of the normal height and level of the waters in inland lakes of this state for the protection of public health, safety and welfare and the conservation of the natural resources of this state; to authorize the building and maintenance of dams and embankments to accomplish such purposes; to authorize the acquisition of lands and other property by gift, grant, purchase or condemnation proceedings; to authorize the acceptance of gifts and grants of funds for the construction and maintenance of such dams and embankments; to authorize the raising of money by taxation and by special assessments for the purposes of this act; to prescribe the duties and powers of boards of supervisors, the conservation department of Michigan and the county drain commissioners with reference hereto; and to repeal certain acts and parts of acts.” (Emphasis added.)
One of the purposes of the act is to determine the water level of inland lakes for the conservation of natural resources. Agricultural land is a natural resource to be conserved. The act authorizes the raising of money by special assessment to support that purpose. Although the statute may not expressly authorize the relief fashioned by the trial court, the lower court’s action comes within the spirit and purpose of the act.
We note that § 2(a) of the act lists several factors for the trial court to consider when determining the normal height and level of a lake. These factors include the height established by government surveys, the high water line as disclosed by old surveys, the testimony of old inhabitants, the extent to which drainage and other artificial causes have decreased the natural groundwater table of the areas, the extent to which natural causes have affected the natural groundwater table, and all other pertinent surrounding facts an circumstances. That provision further defines normal water level as that which "will provide the most benefit to the public and best protect the public health, welfare, and safety and which will best preserve the natural resources of the state, and preserve and protect the values of properties developed around the lake as a result of the creation of the normal level”.
From the language of the preamble and § 2(a), we conclude that the Legislature intended to give a trial court wide discretion when establishing the water level and to allow it to weigh the competing interests of the parties affected and the interests of the public. In this case, the trial court weighed the various competing interests and concluded that a water level of 887 feet would provide the most benefit to the public, would best protect the public health, welfare and safety, and would best conserve the natural resources of the state. A water level of 887 feet would preserve the marsh lands at the west side of the lake and would be best for fish and wildlife, thus satisfying the DNR. At the same time, that water level would continue to present drainage problems for the intervening farmers. The trial court could properly authorize the drain commissioner to install a pump and have it financed by the Four Mile Lake Level Special Assessment District in order to conserve the nearby agricultural lands. This action was proper notwithstanding the drain commissioner’s testimony that the pump could have been installed as a drain project and the cost assessed to the owners of the property it served in the drainage district. The record contains substantial evidence that the problems of Dexter Drain No. 3 were predominately related to the high water level (i.e., 887 feet) of the lake.
Although we affirm the order, we narrow its scope. The trial court’s order authorized the drain commissioner to "take all other necessary steps to prevent flooding of adjoining farm land” and to assess those costs against the special assessment district. Costs incurred to prevent ñooding conditions caused by the lake’s high water level may be assessed against the special assessment district. Costs to correct the slope of Dexter Drain No. 3, including the slope of the culvert under Lima Center Road, should not be permitted. There was no evidence that these defects were in any way related to the water level of the lake. There was testimony that the buildup of silt in Dexter Drain No. 3 was caused by the water level, and we believe that costs to remove the silt buildup could be assessed against the special assessment district. Therefore, we modify the language of the lower court’s order to read as follows:
It is further ordered that the Washtenaw County Drain Commissioner may install a pump at the existing terminus of Dexter No. 3 Drain and/or take all other preventative steps, necessitated by the normal water level, to prevent flooding of adjoining farm land or to keep the lake at the aforementioned level and the costs of construction, installation, operation and maintenance thereof may be charged to the Four Mile Lake Level Special Assessment District.
The order of the lower court is affirmed except as otherwise modified by this opinion. | [
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Campbell J.:
This cause comes before the Court upon reservation, on motion for a new trial, from the Circuit Court for the Coimty of Hillsdale. The questions presented arise upon exceptions taken at the trial.
The defendant was indicted, under Section 27, page 6'61, of. the Revised Statutes, for mingling a quantity of poison, called cantharides, with food, with the intent to injure one Emily Wakefield. The proof on the trial tended to show that the poisonous substance was administered in some raisins, for the purpose of exciting her sexual desires, and thereby enabling the defendant to have illicit intercourse with her.^ It further tended to show that severe bodily injury resulted to her from the effects of the poison. The defendant’s counsel requested the Court below to charge the jury,—
First. That if they believed the defendant gave the cantharides with the intent and for the purpose of exciting her animal passions, so that he could the more readily persuade her to have sexual intercourse with him, and with no other intent, they must acquit him.
Second. That before the jury could convict the prisoner, they must be satisfied that he mingled the cantharides with the raisins with the specific intent of doing her some bodily harm, and not for the purposes of seduction.
Third. That if the jury believed the defendant gave the cantharides for the purposes of seduction, that, although the giving the cantharides produced a severe bodily injury to the complainant, yet the defendant could not be found guilty, unless he knew it would produce such bodily harm, and intended that result.
All these requests the Court refused; and also charged the jury that if they should find the defendant mingled the cantharides with the raisins so given to the complainant, for the purpose of exciting her sexual passions, in order that he might have sexual intercourse with her, they should find him guilty. The defendant excepted to these rulings.
The questions arising for our decision may be conveniently arranged under the following heads:
1. Whether the intent to commit an injury, within the statute, as a means to the accomplishment of another ultimate and main unlawful object, is, by the existence of such ultimate design, taken out of the operation of the statute:
2. Whether a person who engages in the prosecution of an unlawful design against another, and uses poison to accomplish such design, which, by its natural action, produces a greater injury than he anticipated, is, by his ignorance of the probable extent of such injury, relieved from criminal responsibility for the act:
. 3. Whether the injuries shown in this case are within the statute.
The first and second charges asked by the defendant in the Court below, and the grounds taken in the argument, assume that, inasmuch as seduction, or an attempt at seduc tion, may be punished as specific offenses, it follows that when the main ultimate design is to seduce, no indictment can be maintained for unlawful acts done with the intent to aid in carrying out that ultimate design. In other words, the ground is taken that there can exist, at the same time, but one punishable criminal, intent, and that intent must be the main and ultimate one.
We have examined the authorities cited, and are unable to draw from them any such conclusion. All that they decide is, that the intent alleged in the indictment must be established. To this doctrine we readily subscribe. But we have not found in them any principle which, in our view, creates any other restriction.
In Sinclair's Case (cited from Russ. on Crimes, 788) where the defendant was indicted for an attempt to drown, it was held that offense was not made out, because his intent appeared merely to keep off from his landing a boat which was ajjproaching, and the injuries were inflicted on the boat alone, by pushes or blows given in that attempt. No injury was done or offered to the boys in the boat; and the danger of drowning, if it existed, was a result of the injuries to the boat. The case does not seem to us analogous.
In Rex vs. Duffin, Russ. & Ryan, 805, the finding of the jury expressly negatived the intent charged. And in Rex vs. Boyce, Ryan & Moody, 29, the special finding was of an intent which was not only not covered by the indictment, but was embraced as creating a distinct offense under the samé statute on which the indictment was brought. An inspection of the other cases cited will' show that they do not maintain the doctrine contended for. Regina vs. Sullivan, 1 Car. & M. 209; Rex vs. Akenhead, 1 Russ Cr. Law, 760; Rex vs. Holt, 7 Car. & P. 518; Reg. vs. Jones, 9 Car. & P. 258; and Rex vs. Howlit, 7 Car. & P. 274; are the other cases cited on this point.
We are not wanting in authority on this point, in cases arising in England under a statute similar to ours. In Rex vs. Shadbolt, 5 Car. & P. 604, it was held that if a man, with the intent to rob another, should wound him, to enable the assailant to rob the wounded man, he might be convicted of the wounding alone. In Regina vs. Howell, 9 Car. & P. 437, it Avas held that rioters might be convicted for attempting to demolish a house, although a part of their design might be to injure a person within it. In Rex vs. Gillow, 1 Moody C. C. 85, it Avas held that if a double intent existed to commit tAvo indictable acts, the question which was the principal and Avliich the subordinate intent Avas immaterial, as a conviction Avas proper on an indictment for either. The same vígays are expressed in Hunt’s Case, 1 Moody, 93; Cox’s Case, Russ. & Ry. 362; Regina vs. Bowen, 1 Car. & M. 149; Regina vs. Button, 11 Q. B. 929.
The rule adopted in the latter cases commends itself to our judgment more readily, because of the consequences Avhich would floAV from its rejection. A large class of statutory offenses consists of acts done with the ultimate intent to do some mischief, which may or may not be accomplished. The means used are frequently criminal and punishable. Where the ultimate intent is accomplished, that act may be detected and punished. But where it remains incomplete, and the intention rests with the guilty person, it Avould lead to a great perversion of justice to permit him to show, in defense of an indictment for using the unlawful means, that he had such an ultimate design of jterhaps greater atrocity, the evidence of which would not bo likely to be proclaimed publicly. Justice certainly requires no such principle to be adopted, and Ave find no sanction for it in the established rules of law.
We are, therefore, of the opinion, that if the defendant Avas guilty of the act charged in the indictment, it can make no difference in his favor that he committed it to enable him to seduce the prosecutrix. The second request made to the Court was, therefore, properly refused.
It is insisted, on behalf of the prisoner, that, although the administration of the poison was- followed by severe bodily injury, yet no conviction can be had under the statute, without affirmative proof of the intent; and that, if the prisoner designed to produce one effect, and was not aware that a further and severer injury would ensue, he is not responsible for that injury. No question arises here upon the attempt to excite the passions of the complainant, but it is assumed that is no legal injury. That question we shall consider in its place hereafter.
The request made to the Court to charge on this subject, we think was properly refused. The defendant may not have known that the effect would be produced which actually occurred; but it does not follow that he might not have known it, or that he should be excused for using the poison, without knowing it. But it does not appear, from the bill of exceptions, that any evidence was offered to show this want of knowledge. Where an unlawful act is done, the law-presumes it was done with an unlawful intent. And here the act of administering the poison was unquestionably unlawful. So long as the poison remained in the hands of the prisoner, its mingling being an indifferent matter, no presumption arose against him; but tpe unlawful act of administering it raised the legal inference that he did it with the intention of producing such effects as would naturally result from its reception. It is unnecessary to decide how far even positive proof that a man was misinformed as to the degree of injury likely to arise from the use of any substance would avail him in defense, where he used it designedly for any unlawful purpose. But there can be no doubt that if the direct tendency of any^man’s willful act is to produce injury, and that injury is in fact produced, the intention is in law deducible from the act itself; and something-more than mere ignorance must be shown to relieve him from liability for all the consequences attending an act which he knows to be unlawful. — 3 Greenl. Ev. §§ 13, 14; York's Case, 9 Metc. 103.
The question that next arises is, What is the injury contemplated by the statute? Its language is as follows: “If any person shall mingle any poison with any food, drink, or medicines, with intent to kill or injure any other person, or shall willfully poison any spring, well, or reservoir of water, with such intent, he shall be punished by imprisonment in the state prison for life, or any term of years.”
Our attention has not been called to any legal construction given to this language, and we are therefore called upon to give it such an interpretation as seems to us in accordance with its words and design.
Most, if not all, poisons are deadly, if given in considerable doses; and the common understanding of the term “poison” is that it distinguishes substances which are thus fatal from bther minerals and drugs. But while fatal in one quantity, a smaller amount often produces injurious effects, varying in degree with the proportion given. The statute, recognizing this, was made to punish, not only the intent to produce death by poison, but also to produce injuries not fatal. And the wide range of punishment, from imprisonment for life to a brief period in the state prison, shows that it was not designed to make any rigid rule as to the degrees of injury, but to leave the whole matter open to a reasonable construction.
The injury referred to must, we think, be such as would be directly, and not secondarily, produced by the poison itself; and this being so, the circumstances attending it are important, as in other cases, to throw light on the intent, and also to graduate the punishment.
In looking into the subject under consideration, we are bound to take notice of such matters as belong to the common stock of ordinary human knowledge and experience, and can not shut our eyes to the current of events about us. There is no need of entering into any scientific discussion upon poisons, but there are facts relative to their use which are familiar to every man of common intelligence.
Poisons are very often administered- to produce death; and it is this class of poisoning which is most often brought to the notice of courts. But it is safe to say that poison is given in smaller quantities much oftener than in deadly doses. In this, of course, we leave out of view its innocent use by physicians and other authorized persons. But it is not every administration of poison, with a mere absence of actual guilty intent, that will be excused. It has been held that if a slave, without authority, and with a design to produce harmless sleep, administers laudanum to an infant, and, contrary to her expectations, it causes death, she is guilty of manslaughter. — 11 Humph. 159. And a person assuming to act as a physician, who obstinately or rashly administers a remedy which he knows, or has reason to believe, is a dangerous one, is liable, however little he may have intended to harm the patient.- — Rice vs. The State, 8 Missouri, 561; Rex vs. Long, 4 C. & P. 898, 428; Rex vs. Spiller, 5 C. & P. 333. And our statutes make it a punishable offense for a physician, or any one else, to prescribe any poisonous drug or medicine, while intoxicated. — R. S. p. 685, §4. It is obvious that the law does not encourage tampering with such matters, even by physicians and nurses.
The instances of the administration of small quantities of poison, which become known from time to time, are rarely found to have been intended to produce mere physical pain or disability. Occasional instances are reported in the books of the continued administering of minute doses to prolong disease and agony; but experience has shown the most common abuse of poison to consist in its application as an auxiliary to the commission of other crimes. And it is wonderfully adapted to this nefarious purpose. Easily disguised in most kinds of food — capable of producing effects through small quantities — subtle and overpowering in its operation— it may be administered with ease and secrecy, and accomplish every villainous purpose, from inducing sleep and stupor, to insanity, paralysis, and death; and there are no agencies more difficult of detection. Its abuse, in modern times, has. become alarmingly frequent. The greater susceptibility of some persons over others, to be affected by it, renders it still more dangerous. Attempts are often made to murder with it, which fail merely from the miscalculation of the criminal; so that the actual intent is not made to appear by the act itself as heinous as it is in reality. It is the great auxiliary of the worst and most violent offenders.
And the records of our criminal courts have, of late years, shown it to be one of the chief means resorted to for the destruction of female virtue. Hundreds of innocent young women are deceived into entering the dens of iniquity which abound in our cities, under the pretext of honest employment, and awake from their drugged sleep dishonored and ruined. These things were all known when the statute was passed, and known too as the very common effects of these baneful drugs; and they can not be overlooked in any attempt to construe it. These effects are not all directly produced by the use of poison, but without it they would not be .brought about in such cases; and, therefore, it becomes necessary to see what part poisons have in producing the combined result. The part which they perform is very important. Their operation is to disable the injured person, and take away the power of resistance. And the injury in each case depends entirely, or nearly so, upon the extent of the danger which presses upon the victim, and the corresponding need of strength to resist it. If the intent be merely to produce sleep, or any other temporary and painless effect, and nothing inore, the injury might be very slight, and perhaps too trifling to be worthy of legal consideration; but if stupor, or any other unsound condition is produced, to facilitate personal violence, it becomes a very serious matter. The circumstances attending every forcible assault give it character; and the intent is, according to the claim made by the defendant himself, of the very essence of the injury. To leave a child in the open air in summer may be pleasant and useful; to do so in winter may be murder.
Wherever, therefore, there is a positive physical effect produced, and the poison administered operates to derange the healthy organization of the system, temporarily or permanently, we think there is an injury which, whenever it is reasonably appreciable, may be regarded as within the statute. The circumstances of each case will of course throw light on the criminality of intent, and govern the courts in trial and punishment. The law takes no heed of insignificant trifles, but, above and beyond those, it extends its protection and its penalties.
If other statutes covered analogous offenses, we might hesitate longer upon the proper construction of this law; but as many cases which could hardly have escaped notice are not to be reached unless through this statute, we are not disposed to resort to metaphysical subtleties, to defeat a law which, if severe, is, to the public, benignant and humane in its severity.
The intent of the defendant is, in all the requests to the Court, admitted to have been to excite the sensual desires of the prosecutrix, in order to make her an easier prey to his lust. This was ' to be effected by poison, which should so work upon her physical system as to excite her passions beyond the control of reason, and, in effect, to produce, if not insanity,- the most deplorable effect of insanity, which is the dethronement of reason from its governing power. It seems to us that to hold such an effect to be no injury, would be a mockery of justice.
We arc of opinion that the defendant’s exceptions are not Well taken, and that a new trial should not be granted.
The other Justices concurred.
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By the Court:
The statute gives the party forty days in which to claim an appeal and give bond; and if the necessary steps are taken at any time within the forty days, it is immaterial in what order they are taken. If the filing of any written claim of appeal is necessary — and we think it is hot — it is as well filed after the giving of the bond, if within the forty days, as before.
To say that the statute permits only the officer who first fixed the penalty of the bond to act subsequently in approving the sureties, would be to put upon it a construction which we think its wording does not require, and which, in cases of subsequent disability or vacancy in the office, would amount to a denial of justice. The sureties are to be approved by “the Commissioner, or a Justice of the Supreme Court,” and the bond is to be in such sum'as “the Commissioner or such Justice shall direct.” Here is clearly one Commissioner designated, — the Commissioner of the county; but the approval of the sureties is to be by him or a Justice of the Supreme Court, and the bond to be in such sum as he or such Justice' — that is, a Justice of the Supreme Court —shall direct. The word such here, does not designate a particular officer, but the official character which the individual must possess who is to discharge the duty.
But, clearly, if all the previous proceedings had been irregular and void, there could be no objection to the order made by the Circuit Court Commissioner., fixing the penalty, and approving the bond. A void proceeding could not prevent steps de novo, if taken in season.
Motion denied.
Campbell J. did not sit in this case, having been of counsel for one of the parties. | [
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Martin Ch. J.:
Here is no question reserved in accordance with the statute;— Comp. L. §3422. The whole case is, in fact, reserved, from which we are to find the questions raised, and to be passed upon by us, as we best may. These questions appear to be both of law and of fact. The rule in relation to questions reserved has been settled in the case of Bagg vs. The City of Detroit. To that we shall adhere.
The case must be dismissed for want of jurisdiction.
Aute, p, 66: see also The People vs. Adwards, ante, p. 22. | [
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] |
Campbell J.:
McKibbin agreed to cut and haul to the borders of Millington Creek, in Tuscola county, all the pine timber upon an eighty acre lot; to be cut into logs of twelve, fourteen, and sixteen feet in length, and laid on the bank not more than eight abreast, and the bank to be cleared of obstructions opposite where the logs were laid. The logs were to be scaled after delivery on the bank. For the work done as agreed upon, $2.25 per thousand feet was to be paid by Allen, of which various sums, not to exceed half the price of the logs delivered, were to be paid from time to time as needed, and the balance in ninety days# after the logs were delivered and scaled.
MeKibbin cut and delivered thirteen hundred and sixty-four logs, and sued for payment therefor on the common counts. Allen pleaded the general issue with notice of recoupment; and introduced evidence to show that the logs were not cut of proper lengths;_ that in some places they were laid more than eight abreast; that the creek was not properly cleared of obstructions; that sixty-four logs, and from fifteen to thirty standing pine trees, were left; and that great loss was suffered from non-performance of the agreement. Evidence was offered to show that the work was not worth the contract-price, and excluded by the Court.
The Court charged the jury that the plaintiff below was not entitled to recover upon the contract at all, unless he had performed it; but that if there had been a partial performance, from which the defendant had derived benefit, the plaintiff was entitled to recover the contract-price, deducting therefrom any damages which the defendant had sustained by reason of non-performance.
The questions arising are, First, Whether the Court erred in excluding evidence of the value of the work, to reduce it below the contract-price; and, Second, Whether the rule of damages laid down was correct.
There is nothing in the case, so far as it appears, which would show that this contract was apportionable. Not only would the value of cutting and delivering logs on the bank differ according- to their location and accessibility, but the condition of the stream on which they were to be floated to market was very essential in determining their value on the bank; For if that was obstructed, the cost of removing the obstructions would necessarily enter into the account; as. without the means of floatage, the logs would be comparatively valueless. From the case as stated; we must infer that the jury would have been warranted, if they believed the testimony, in determining that the contract had fallen considerably short of a substantial compliance. And it is to that part of the charge and rulings of the Court which acts upon this hypothesis, that both the objections referred to apply.
Where a party fails to comply substantially with an agreement, unless it,is apportionable, the rule is well settled that he can not sue upon the agreement, or recover upon it at all. And under the strict common law rule he was remediless. But the doctrine has now grown up, based upon equitable principles, that where anything has been done from which the other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit, based on that benefit. And the basis of this recovery is not the original contract, but a' new implied agreement, deducible from the delivery and acceptance of some valuable service or thing. The idea is well expressed in Read vs. Rann, 10 B. & C. 438, by Parke J., who says: “In some cases a special contract, not executed, may give rise to a claim in the nature of a quantum meruit, e. g. where a special contract has been made for goods, and goods sent, not according to the contract, are retained by the party, there a claim for the value, on a quantum valebant, may be supported; but then, from the circumstances, a new contract may be implied.'1'1 Taking this as the basis of a recovery, there certainly could be no good reason for allowing a party who is in default to recover in any case more than his work or goods maybe worth; for that would allow him to speculate out of his own fraud or default; and he should not be allowed more than the same could be obtained for from any one else. To allow him the contract-price for what is worth much less, would not, in any sense, be allowing a quantum, meruit. Parties may, and do frequently, for their own reasons, agree to give excessive prices to have an entire contract literally performed, when a partial performance would never have been contracted for at all; and'it does not lie in the mouth of a defaulter to say that the contract is evidence of the true value. It is only by the mercy of the law that he can have any standing in court. We think that the Court erred in rejecting evidence that the work was worth less than the contract-price.
And we also think the rule of damages laid down was erroneous. Upon a review of the authorities, they do not, in general, lay down any rule applicable to all cases. In several of them, the rule is given very much as the judge gave it to the jury in this case. But in nearly all, if not. all, of those cases, it appears either that there had been a completion of the thing contracted for, but with some variations in the method of constructing some complete thing, or else the plaintiff showed the work to have been worth more than the contract-price, and this rule was laid down to prevent the recovery of an excess, and to prevent his profiting by his own wrong. The same principle would forbid the application of the rule where the excess was in the contract-price. Without reviewing the cases in detail, we think that the only rule which harmonizes them may be laid down substantially as follows: The defaulting plaintiff can in no case recover more than the contract-price, and can not recover that, if his work is not reasonably worth it, or if, by paying it, the rest of the work wifi cost the defendant more than if the whole had been completed under the contract. The party in default can never gain by his default, and the other party can never be permitted to lose by it; and the price thus determined is the true amount recoverable on a quantum meruit.
There are, or may be, other damages growing out of the non-performance, which do not properly enter into the price, and which therefore can not be allowed or recovered with out either a cross action, or some- analogous proceeding.— Mondel vs. Steele, 8 M. & W. 858; 2 Smith's Lead. Cas. 47 (Am. Ed. of 1852). In the case "before us there was a notice of recoupment, which was equivalent to a cross action, and under it the defendant could have such damages allowed him, if any existed. On the right to recoup no question was raised; and we think none could bo, as the damages, if any, arose out of the same transaction. The allowance of it tends greatly to diminish litigation, and it is a wholesome and fair method of terminating controversies. The case of Ward vs. Fellers, 8 Mich. 281, and the cases there cited, place this doctrine upon a very broad foundation.
We think the Court erred in rejecting evidence to reduce the value of the work done, and also in laying down the rule of damages, and for this reason the judgment below must be reversed, and a new trial granted. | [
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The motion by the Detroit Free Press for disclosure of the trial judge’s report to the clerk regarding the transfer of custody in this case is denied. The report to the clerk was not an order, opinion, or finding and has not been filed in the trial court or in the Supreme Court. In the interest of striking a balance between the public interest in this matter and concern over potential disruption of the orderly transfer of custody, the Court discloses that, under the supervision of the trial judge and by agreement of the parties, a timely transfer of custody has been arranged. With respect to the remaining details, for the present, the Supreme Court reaffirms its decision that the report will remain confidential. | [
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Griffin, J.
We are called upon to decide whether failure by a seller to disclose the existence of a mortgage on real property sold under a land contract may constitute a false pretense within the meaning of MCL 750.218; MSA 28.415. Although we conclude that, under some circumstances, failure to speak when it is necessary to do so can be a false pretense, we reverse the Court of Appeals decision in this case because other elements of the offense were not sufficiently established to support a conviction.
I
Defendant Alan Jory was convicted by a jury of obtaining money by false pretenses, MCL 750.218; MSA 28.415, in part on the basis of his failure to disclose the existence of a mortgage on property he sold on a land contract to the seventy-one year old complainant, Pearl Brumit. Although Mrs. Brumit made timely payments on the land contract, defendant defaulted in his obligation to make payments on the mortgage, which resulted in foreclosure of the mortgage and transfer of title to the mortgagee.
In 1978, Brenda Marble financed the purchase of a house and lot on Branch Road in the City of Flint by executing a mortgage in favor of the Guardian Mortgage Company as security for an obligation of $22,750, with interest at 8.75 percent. Later, Marble moved to a second house and rented the Branch Road property.
Marble hired defendant Jory to remodel her second house. Upon learning that he was a licensed real estate broker, Marble asked defendant to sell the Branch Road property for her. In 1984, defendant purchased the property himself for $25,500 from Brenda Marble, who conveyed her interest .to defendant by a warranty deed, which referred to the Guardian mortgage. Marble testified that, in accordance with her agreement with defendant, she discounted the purchase price by $4,000 in lieu of payment for defendant’s remodeling services, and defendant informally agreed to assume the mortgage.
After acquiring title, defendant rented the subject property to a daughter of Mrs. Brumit under a lease that included an option to purchase. Later, when health problems forced the daughter to relocate to a warmer climate, the complainant moved into the house. Subsequently, Mrs. Brumit initiated negotiations and agreed to purchase the house from defendant under a land contract, for a purchase price of $27,900, with an eleven percent interest rate. She made a $1,600 down payment and agreed to pay defendant $337 per month to amortize the balance. The land contract, which was prepared by defendant and made no reference to the mortgage, was signed by the complainant and her two sons at a. closing conference on December 3, 1985, in the presence of the defendant’s business associate, Oscar Manning. Defendant was not present at the closing.
At trial, Mrs. Brumit testified that when she signed the land contract, she was not aware of a mortgage on the property. She did not recall whether she spoke with defendant or Mr. Manning when earlier she had initiated negotiations to buy the house. She stated that she conversed with both defendant and Mr. Manning about the property before signing the land contract; however, she could not remember how many discussions transpired or the dates of the conversations. She testified that at no time, either before or after signing the contract, did defendant or his business associate, Mr. Manning, ever tell her of the existence of the Guardian mortgage.
Mrs. Brumit denied having any discussions with defendant or Mr. Manning about alternative ways to finance her purchase of the property. She denied that she bought the property on a land contract because the closing costs would be less than if she had purchased it by means of a new mortgage. However, she stated that she could not recall the substance of her discussions with either defendant or Mr. Manning.
Mrs. Brumit testified that she believed the defendant owned the property when she entered into the land contract. This belief, she said, was not based upon an express representation of ownership by defendant, but upon his comment to her that he would be saving the money from the land contract payments for his children’s college education.
Mrs. Brumit claimed that if she had been informed of the existing mortgage, she would have acquired the property in a "different way” — by making arrangements directly either with Marble or the Guardian Mortgage Company.
At the closing, Mr. Manning presented the land contract to Mrs. Brumit with defendant’s signature already affixed. At first, Mrs. Brumit testified that the land contract was the only document she saw that day; however, upon further questioning she said she could not remember whether other papers were presented to her for review or for her signature.
Mrs. Brumit’s two sons, Karl Brumit and Gordon Duehring, were also present at the closing, and each signed the land contract. Both testified that they were never ihformed at any time by defendant or Mr. Manning that there was an outstanding mortgage on the property. Each of the sons said he had met defendant on only one prior occasion. Karl Brumit recalled signing other papers at the closing, but he did not remember the contents of the other papers. Duehring testified that no documents were reviewed at the closing other than the land contract, although he said he did see other paperwork on Mr. Manning’s desk.
By contrast, Mr. Manning, the sole defense witness at trial, testified that he told Mrs. Brumit about the underlying mortgage before she signed the land contract. He maintained that he had explained to Mrs. Brumit that there were different methods by which the property could be purchased, i.e., she could obtain a new mortgage, or assume the underlying mortgage, or purchase by land contract. He said Mrs. Brumit chose the land contract method because she did not have enough money at the time to assume the underlying mortgage.
Mr. Manning testified that he spoke with Mrs. Brumit on three or four occasions before the closing conference and that he had discussed the underlying mortgage with her on more than one of these occasions, explaining to her that it was an assumable mortgage and that she "could probably get a little better buy on the house because she could simply assume it and it will add a little better interest rate than a land contract would have.”
According to Mr. Manning, he presented Mrs. Brumit at the closing with a full package of papers, including affidavits regarding sewer, water, and tax information, and the closing statement. Mr. Manning testified that he reviewed with Mrs. Brumit a title search of the property that extended through June 1985, and that he also showed her the warranty deed from Brenda Marble to the Jorys, which expressly referred to the underlying mortgage. Mr. Manning claimed also that he had earlier shown Mrs. Brumit a listing agreement that recited the existence of the mortgage. He further testified that Mrs. Brumit expressed no concern about the underlying mortgage to him. Mrs. Brumit was not provided with title insurance or an abstract of title at the closing. Mr. Manning claimed that the sons of Mrs. Brumit should have been aware of the mortgage because they were at the closing with their mother. In his testimony, Mr. Manning conceded that he was a "close friend,” as well as a business associate of the defendant.
There was no testimony at trial that defendant had ever denied the existence of the mortgage or had ever asserted that his title was free of encumbrances.
Mrs. Brumit made timely and regular land contract payments to defendant, but defendant, after making five or six payments, failed to make further payments on the underlying mortgage. Thereafter, in July 1985, Guardian Mortgage Company contacted one of the original mortgagors, Brenda Marble, who in turn twice contacted defendant by telephone concerning the arrearage. After several foreclosure warning letters were received by Marble, she visited Mrs. Brumit at her house in the winter of 1986, thinking that she was responsible for the arrearage. Mrs. Brumit testified that it was at this time that she first learned of the mortgage. Marble said she telephoned defendant from Mrs. Brumit’s house, and, according to Marble, he agreed to apply Mrs. Brumit’s land contract payments directly to the mortgage.
Mrs. Brumit continued to make land contract payments to defendant for another few months, until a Guardian Mortgage Company representative came to the house, informed her of the mortgage default, and posted a foreclosure notice. Mrs. Brumit moved out of the house. An arrearage of $985 in mortgage payments was owing at the time of foreclosure, and the redemption amount of the mortgage was $22,787. As a result of a foreclosure sale, title to the subject property was acquired by the Guardian Mortgage Company.
Thereafter, the Genesee County prosecutor charged defendant with larceny by false pretenses under MCL 750.218; MSA 28.415, and, following a two-day trial, a jury found him guilty as charged.
After imposing a flat sixty-day jail sentence, the trial court addressed defendant’s motion for a directed verdict, which had been taken under advisement during the trial. In an oral opinion the trial court granted the motion, and vacated the conviction, stating:
The Court’s of the opinion that as there was no representation which was false, for that reason, there would not be a good case of false pretenses.
The Court of Appeals, relying on People v Etzler, 292 Mich 489, 491-492; 290 NW 879 (1940), ordered reinstatement of defendant’s conviction and opined: "Contrary to the trial court’s ruling, the failure to disclose the existence of an encumbrance on property that is the subject of a sales transaction can constitute a false pretense.” Citing People v Austin, 191 Mich App 468; 478 NW2d 708 (1991), the Court also ruled that the flat sixty-day jail sentence imposed by the trial court was invalid under MCL 769.8; MSA 28.1080, the indeterminate sentencing act. Unpublished opinion per curiam, decided January 23, 1992 (Docket No. 129650).
We granted defendant’s application for leave to appeal, 441 Mich 880 (1992). Our review focuses on two concerns: (1) whether, as stated in Etzler, failure to speak can be a false pretense, and (2) whether the elements of the charged offense were sufficiently established to withstand a motion for directed verdict.
II
In Michigan, as in other jurisdictions, the crime of obtaining money under false pretenses was created by statute. MCL 750.218; MSA 28.415 in pertinent part provides:
Any person who, with intent to defraud or cheat, shall designedly by . . . false pretense . . . obtain from any person any money ... if such . . . money . . . shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00.
This Court has stated:
"The design of the statute was to protect the weak and shield the credulous against the arts and wiles of the shrewd and designing; and the real question on this point ought to be, and under the statute and in reason is, Was the pretense designedly false, and made to induce the action claimed, and was it successful?” [People v Summers, 115 Mich 537, 545; 73 NW 818 (1898). See also People v Wogaman, 133 Mich App 823, 826; 350 NW2d 816 (1984).]
The case law instructs that there are four elements of this offense: "(1) a false representation as to an existing fact; (2) knowledge by defendant of the falsity of the representation; (3) use of the false representation with an intent to deceive; and (4) detrimental reliance on the false representation by the victim.” People v Gould, 156 Mich App 413, 416; 402 NW2d 27 (1986); see also People v Larco, 331 Mich 420, 429; 49 NW2d 358 (1951); People v Phebus, 116 Mich App 416, 419; 323 NW2d 423 (1982).
Because in this case it is conceded by the prosecutor that defendant made no affirmative false representation, we consider first the threshold question whether his silence under any circumstances could constitute a false pretense within the meaning of the statute.
A
In People v Etzler, supra, an automobile dealer ship borrowed money to conduct its business and gave as security what purported to be a "floor plan” chattel mortgage on automobiles in inventory. Under the terms of the mortgage, the dealer agreed not to sell or remove any of the mortgaged automobiles from its premises without first obtaining a release of the mortgage. Defendant, on behalf of the dealership, then sold and delivered a car to a purchaser without securing a release or disclosing the existence of the mortgage. The mortgagee-finance company replevied the automobile from the purchaser, who then settled with the finance company by agreeing to pay the balance due on the mortgage. Thereafter, the defendant was charged and convicted of obtaining money under false pretenses.
The Etzler Court opined that a false pretense can be the failure to speak when it is necessary to do so:
Defendant asks us to hold that mere failure to disclose the existence of an incumbrance without an affirmative statement in so many words that there was no incumbrance is insufficient proof of intent to obtain money by means of false pretenses. We cannot so rule. The false pretense can be the failure to speak when it is necessary to do so. If defendant sold the new automobile without revealing the fact that it was mortgaged, he was deliberately acting a falsehood, and such conduct is as objectionable as a spoken falsehood. People v Clark, 10 Mich 310 [1862]. One may make false pretense by act as well as by word. People v Schultz, 210 Mich 297 [178 NW 89 (1920)]. [Id., pp 491-492.]
However, because of a technical deficiency in the execution of the chattel mortgage, the Etzler Court was required to reverse the conviction. In this appeal, defendant contends that the quoted statements from Etzler cannot be regarded as authority because that Court reversed the defendant’s conviction on other grounds. We acknowledge that the Etzler reasoning is obiter dicta. However, we do not reject it; rather, we take this opportunity to affirm it.
B
Clearly, a seller’s affirmative misrepresentation that property is free from encumbrances may provide a basis for conviction for obtaining money by false pretenses. Griffin v State, 352 So 2d 843 (Ala App, 1977); State v Wallace, 25 NC App 360; 213 SE2d 420 (1975); State v Banks, 24 NC App 604; 211 SE2d 860 (1975); People v Lee, 259 Mich 355; 243 NW 227 (1932); Smith v State, 86 Fla 525; 98 So. 586 (1923); Brown v State, 6 Ga App 329; 64 SE 1001 (1909); Slaughter v Commonwealth, 222 Ky 225; 300 SW 619 (1927); Commonwealth v Grady, 76 Ky 285 (1877); 32 Am Jur 2d, False Pretenses, § 31, p 257.
The question not so easily answered is whether the mere nondisclosure of a known encumbrance in a real estate sales transaction can amount to criminal conduct under the false pretenses statute. Many courts, in a variety of contexts, have embraced the notion expressed in Etzler, supra, that a false pretense may be made by actions as well as by words. Consequently, under some circumstances, prosecution for false pretenses has been based on silence or concealment. See, e.g., Carter v State, 386 So 2d 1102 (Miss, 1980); State v West, 252 NW2d 457 (Iowa, 1977); Smith v State, 74 Fla 594; 77 So 274 (1917); Brown v State, 37 Tex Crim App 104; 38 SW 1008 (1897); 32 Am Jur 2d, supra at § 17, pp 250-251. Contra: Rogers v People, 161 Colo 317; 422 P2d 377 (1966); Stumpff v People, 51 Colo 202; 117 P 134 (1911); Griffith v State, 3 Ga App 476; 60 SE 277 (1908).
An early Michigan case that touches upon the issue at hand is People v Clark, supra. There, the defendant defrauded the complainant of $10 by leading him to believe that he was a hog dealer who had property in transit, needed the money immediately for freight charges, but would pay back the complainant as soon as he changed a $100 bill. The Court held:
If these pretenses were false, and if they actually deceived Whelpley, and were designed to defraud him out of the money he advanced, they amount to misrepresentations of existing and material facts, and come clearly within the mischief of the law. Nor do we think it could make any difference whether they were all expressed in words. Falsehood when deliberately acted is the same as spoken falsehood. [Id., p 317.]
Subsequent Michigan decisions, including Etzler, supra, have cited Clark for the proposition that silence may form the basis for a false pretense prosecution. See People v Schultz, supra at 301-302; People v Vida, 2 Mich App 409; 140 NW2d 559 (1966). See also People v Taurianen, 102 Mich App 17; 300 NW2d 720 (1980).
Michigan cases involving fraud, the civil cousin of the crime of false pretenses, also recognize that "[f]raud may be consummated by suppression of facts and of the truth, as well as by open false assertions.” Fred Macey Co v Macey, 143 Mich 138, 153; 106 NW 722 (1906). "When the circumstances surrounding a particular transaction are such as to require the giving of information, a deliberate and intentional failure to do so may properly be regarded as fraudulent in character.” Ainscough v O’Shaughnessey, 346 Mich 307, 316; 78 NW2d 209 (1956). " 'The concealment of a fact which one is bound to disclose is an indirect representation that such fact does not exist, and constitutes fraud.’ ” Groening v Opsata, 323 Mich 73, 84; 34 NW2d 560 (1948). See also United States Fidelity & Guaranty Co v Black, 412 Mich 99, 124-128; 313 NW2d 77 (1981); Nowicki v Podgorski, 359 Mich 18; 101 NW2d 371 (1960); Sullivan v Ulrich, 326 Mich 218, 227-228; 40 NW2d 126 (1949); McMullen v Joldersma, 174 Mich App 207; 435 NW2d 428 (1988).
The Model Penal Code, § 223.3, "Theft by Deception,” addresses the problem of nondisclosure in the present context, recommending in pertinent part:
A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:
(4) fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained, whether such impediment is or is not valid, or is or is not a matter of official record.[ ]
We conclude that the view expressed in Etzler is correct, viz., that under some circumstances, the failure to disclose a known mortgage or other encumbrance to the purchaser of property may fall within the meaning of a "false pretense” as that term is used in the statute. An encumbrance may significantly affect the marketability of real estate and its nondisclosure may interfere with or terminate the purchaser’s interest in the property, which was bargained for on the basis of the false assumption that there was no impediment to clear title.
Nondisclosure of a known encumbrance must, however, if it is to be deemed a criminal act under the false pretenses statute, be committed with fraudulent intent. The statute requires that a defendant act "designedly” with "intent to defraud.” MCL 750.218; MSA 28.415. See, e.g., People v Clark, supra (pretenses "designed to defraud” and "deliberately acted”); Model Penal Code, § 223.3 ("[a] person deceives if he purposely . . . fails to disclose a known lien”).
Interpreting a similar statute, the Supreme Court of South Dakota explained that "[t]he word 'designedly’ in our criminal statute has ... a well-recognized meaning. It covers the case only of affirmative evil intent; that is, the man who knew or believed that his representation was false . . . .” State v Pickus, 63 SD 209; 257 NW 284, 295 (1934). In the context of the nondisclosure of a known encumbrance in the sale of real property, then, a seller could be found to have acted "designedly” only if he knew of the existence of the encumbrance, knew that the buyer did not know of the encumbrance, and purposely failed to disclose the existence of the encumbrance.
In addition to knowledge, a defendant must have had the intent to defraud. As this Court stated in an earlier case, "intent [is] a necessary ingredient of the offense . . . .” People v Smith, 271 Mich 553, 565; 260 NW 911 (1935); see also People v McCoy, 75 Mich App 164, 175; 254 NW2d 829 (1977). Where there is no proof of intent, a conviction must be reversed. People v Beaudoin, 7 Mich App 461, 463; 151 NW2d 868 (1967).
Intent generally may be inferred from the facts and circumstances of a case. People v Phillips, 385 Mich 30, 37; 187 NW2d 211 (1971). "Where a defendant’s acts are of themselves commonplace or equivocal, and are as consistent with innocent activity as they are with criminal, it will be necessary for the government to adduce objective facts to establish criminal intent.” Seeney v United States, 563 A2d 1081, 1083-1084 (DC App, 1989).
III
In the light of that background, we turn next to consider whether a rational trier of fact, considering the evidence presented before defendant’s motion for directed verdict, could find beyond a reasonable doubt in this case that defendant failed to disclose the mortgage with the intent to defraud the complainant. In our review, we are cognizant that such evidence must be viewed in a light most favorable to the prosecution. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
As earlier noted, there is no evidence that the defendant ever denied the existence of a mortgage or ever affirmatively represented that his title was free of all encumbrances. It is clear from the record that Mrs. Brumit assumed that defendant Jory owned the property when he sold it to her on land contract. She testified:
Q. Why did you believe that Mr. Jory owned the property?
A. Well, you usually don’t go around selling property that don’t belong to you.
Q. Why do you believe or why did you believe when you signed the land contract that Mr. Jory owned the property? What lead [sic] you to believe that?
A. Well, he told me he was gonna take that money and put it — away for his kids to go to school.
Q. Who told you that . . .
A. To go to college. He did.
Q. Who’s he?
A. Mr. Jory.
Despite defendant’s silence in other respects, we believe it would have been reasonable to draw from the evidence the inference that defendant Jory had represented to Mrs. Brumit that he was the owner of the property. However, a representation of "ownership” of property, even though it may be encumbered, does not. constitute grounds for prosecution for false pretenses, as long as, at the time the representation is made, the person making it has an equitable interest in, and some kind of legally cognizable title to, the property. Burroughs v State, 21 Md App 648; 320 A2d 587 (1974); State v Jeffcoat, 279 SC 167; 303 SE2d 855 (1983); People v Alexander, 663 P2d 1024 (Colo, 1983); Graf v State, 118 Neb 485; 225 NW 466 (1929); Criner v State, 92 Fla 483; 109 So 417 (1926); 32 Am Jur 2d, False Pretenses, § 30, p 257.
We find it more difficult to add the further inference that, either by his silence or his spoken words, defendant "designedly” represented to Mrs. Brumit that his title was free of all encumbrances. Any effort to extract the requisite "intent to defraud” from defendant’s silence with regard to the mortgage is particularly challenging.
The crux of Mrs. Brumit’s complaint is that defendant did not tell her about the underlying mortgage before she signed the land contract. While that assertion is vehemently disputed, even accepting that assertion as fact, there is a dearth of evidence in the record about why defendant was silent. Was defendant’s failure to speak a calculated effort to deceive and defraud the complainant, or was the omission made honestly or otherwise without fraudulent intent?
Although defendant was a licensed real estate broker with an obvious knowledge of real estate practices, the complainant was not a stranger to real estate transactions. She testified that she owned four other parcels of property. Despite her age, seventy-one, there is no evidence in the record that she was physically or mentally impaired, or that defendant used his status as a broker to take undue advantage of her. On the contrary, the record makes clear that the significant details of the transaction were handled, not by defendant, but by an associate. Despite the close relationship between defendant and his associate, Mr. Manning, there is no evidence of a conspiracy between the two.
The complainant, Mrs. Brumit, initiated the negotiations which led to her purchase of the property. Her testimony regarding her interaction with defendant in the time period preceding her signing of the land contract was unspecific and uncertain at best. She could not recall the substance of any conversations, the number of meetings with defendant, or when any such conversations took place. Although the complainant testified that she spoke with both defendant and Mr. Manning about the land contract method of purchasing the property, she could not recall what either had said during these conversations. _
As already indicated, defendant was not present at the closing conference. There was no testimony that indicates that defendant’s absence or peripheral involvement in the sale was a deliberate or calculated ploy to mislead the complainant into signing the land contract or otherwise to defraud her. Similarly, no evidence was introduced to show any requirement of reference to the mortgage in the land contract, or that such a reference was intentionally omitted with a purpose of defrauding Mrs. Brumit.
Reasonable doubt about the existence of fraudulent intent under the circumstances presented is underscored by the particular nature of the transaction. Unlike situations involving an outright sale of real property, defendant retained a significant interest in the property when he sold under a land contract. Thus, while the complainant suffered the loss of her equitable interest as a result of the default, it does not appear that defendant gained advantage by his silence; in fact, he was also damaged and lost his interest in the property as a result of the foreclosure.
We further observe that the terms of this transaction were commonplace to people familiar with real estate transactions, and that it is not unusual for property already encumbered to be sold on a land contract, at least where the outstanding balance on the encumbrance is less than the balance owing on the land contract.
Our review of the record in the case at bar compels the conclusion that a rational trier of fact could not find beyond a reasonable doubt that defendant "designedly” and with "intent to defraud” failed to disclose that the property sold on land contract to the complainant was unencumbered. At most, the record shows only that defendant failed to disclose the existence of an encumbrance on the property, that complainant was unaware of the encumbrance, and that if she had known of the encumbrance she would not have signed the land contract.
In an early case, this Court explained that even the proof of a falsehood was insufficient to justify an inference of intent to defraud:
The simple fact of procuring, by falsehood, the indorsement, was not an offense within the statute; it must have been procured with the intent to defraud, and where an intent is made the gist of an offense, that intent must be shown by such evidence as, uncontradicted, will fairly authorize it to be presumed beyond a reasonable doubt. It is true that a man is presumed to intend the natural consequences of his acts, but, under this statute, it is not the consequence, but the intention, which fixes the crime. ... It was, therefore, necessary for the prosecutor to show something more than the application, the falsehood, and the indorsement, before he could ask a conviction; he should have shown those facts which, in the absence of all other proof, would warrant the jury in finding an intent to defraud, unless such intent is fairly to be inferred from the circumstances attending the act itself. [People v Getchell, 6 Mich 496, 504-505 (1859). See also McCoy, supra, 75 Mich App 176.]
Likewise, in the case at bar, mere failure to disclose the existence of an encumbrance is insufficient to support, beyond a reasonable doubt, the inference that defendant acted "designedly,” and with intent to defraud.
Although the trial court incorrectly premised its decision upon the absence of an affirmative misrepresentation, we conclude that the trial court reached the correct result when it granted the defendant’s motion for directed verdict. Where a trial court reaches the correct result for the wrong reason, its decision need not be reversed on appeal. Mulholland v DEC Int’l Corp, 432 Mich 395, 411, n 10; 443 NW2d 340 (1989).
IV
For the reasons set forth, we reverse the decision of the Court of Appeals and reinstate the trial court’s order granting defendant’s motion for a directed verdict of acquittal.
Cavanagh, C.J., and Levin, Brickley, Riley, and Mallett, JJ., concurred with Griffin, J.
Boyle, J., concurred only in the result.
Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property than was bargained for, if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00. [MCL 750.218; MSA 28.415.]
The trial judge is the nominal defendant because this is a superintending control case. See infra, pp 411-412.
At the time, Brenda Marble was married and took title with her husband. However, she later divorced, and it appears that she acquired her husband’s interest as a result of the divorce judgment.
At trial, an officer of the Guardian Mortgage Company testified that the company’s records showed no formal assumption of the mortgage by defendant.
These representations that Jory would apply all future payments received from the vendee to the existing mortgage were never charged by the prosecutor as a violation of the false pretenses statute.
After judgment on the directed verdict was entered, the prosecutor sought to appeal, but the Court of Appeals dismissed the appeal. The prosecutor then filed a. complaint for superintending control in the Court of Appeals seeking reinstatement of the jury verdict and resentencing. By peremptory order, the Court of Appeals reinstated the conviction, but denied the prosecutor’s request for resentencing. Both the prosecutor and defendant then applied to this Court for leave to appeal, and we remanded the case to the Court of Appeals for plenary consideration. 434 Mich 916 (1990). After remand, the Court of Appeals, in a brief per curiam opinion, reinstated defendant’s conviction and ordered resentencing.
Defendant also appeals from the Court of Appeals determination that the sixty-day sentence was invalid as a violation of the indeterminate sentencing statute. However, because we conclude that the directed verdict of acquittal was proper, it is unnecessary for us to reach this issue.
"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” [Breckon v Franklin Fuel Co, 383 Mich 251, 267; 174 NW2d 836 (1970), quoting Cohens v Virginia, 19 US (6 Wheat) 264, 399; 5 L Ed 257 (1821).]
The revised comment to the Model Penal Code, ALI 1980, notes that at least twenty state model codes have followed in substance the language of subsection 4. Revised comment, § 223.3, p 200, n 56. Michigan is one of those jurisdictions. The Michigan Revised Criminal Code, Final Draft, September 1967, § 3201 provides:
The following definitions are applicable in this chapter unless the context otherwise requires:
(a) "Deception” occurs when a person knowingly:
(iv) Sells or otherwise transfers or encumbers property, failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether that impediment is or is not valid, or is or is not a matter of official record ....
The fact that a mortgage is a matter of public record is no defense to a prosecution for false pretenses. The recording statute, MCL 565.25; MSA 26.543, provides:
In the entry book of deeds, the register shall enter all deeds of conveyance absolute in their terms, and not intended as mortgages or securities .... [A]nd in the entry book of mortgages he shall enter all mortgages and other deeds intended as securities, and all assignments of any such mortgages or securities; . . . [a]nd the record of such . . . papers required by statute to be recorded . . . shall be notice to all persons, of the liens, rights and interests acquired by or involved in such proceedings, and all subsequent owners or incumbrances shall take subject to such liens, rights or interests.
We employ the reasoning of other jurisdictions, where it has been held that a defendant who^ obtains money or property by an affirmative misrepresentation that the property is free from encumbrances is not relieved from guilt by the fact that the purchaser could have detected the fraud by examining the public records. See, e.g., Slaughter v Commonwealth, supra at 237 ("to our minds it would be nothing short of flagrant disregard of the high public policy that the Legislature had in view in enacting the statute to hold that it could be defeated, if the laymen to whom most generally such pretenses are made, was [sic] required to disbelieve the false pretender, and to search the records, and to discover all possible incumbrances”); State v Foot, 100 Mont 33; 48 P2d 1113 (1935); Keyes v State, 197 Ill 638; 64 NE 730 (1902); State v Trisler, 490 Ohio St 583; 31 NE 881 (1892); Smith v State, supra; Brown v State, supra; Moneyham v State, 69 Fla 577; 68 So 758 (1915); anno: Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 ALR 853, §§ 97-98, pp 1146-1155, and cases cited therein; Model Penal Code, supra; contra: Criner v State, 92 Fla 483; 109 So 417 (1926). See also the following civil fraud cases: 3 Restatement Torts, 2d, § 540, comment b, p 88; Weber v Weber, 47 Mich 569; 11 NW 389 (1882); Bristol v Braidwood, 28 Mich 191 (1873); Schoedel v State Bank of Newburg, 245 Wis 74; 13 NW2d 534 (1944); Loverin v Kuhne, 94 Conn 219; 108 A 554 (1919); anno: 33 ALR 853, supra; Johnson v Campbell, 199 Mich 186, 191; 165 NW 823 (1917); Schweyer & Co v Mellon, 196 Mich 590, 596; 162 NW 1006 (1917); Smith v Werkheiser, 152 Mich 177, 180; 115 NW 964 (1908); Smith v McDonald, 139 Mich 225; 102 NW 738 (1905).
The statute contains the language "with intent to defraud,” and since the record contains no proof of such intent, the answer to this question is in the negative. Such answer requires reversal .... [7 Mich App 463.]
While the trier of fact may draw reasonable inferences from facts of record, it may not indulge in inferences wholly unsupported by any evidence .... [People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985).]
For this reason, we consider the evidence as it relates to the negotiations up to and including the execution of the contract.
On cross-examination by defense counsel, Mrs. Brumit explained that her daughter had occupied the house under a lease with an option to purchase, but had defaulted on the lease. She then decided to buy the property:
And then I just — her furniture and everything was there and when I come home from work one day I noticed the doors all open and that people [had] been in there, so I locked the doors and I went and saw him and I bought the place. Just left her furniture there and I moved in until she come back from Arizona.
On cross-examination by defense counsel, she testified as follows:
Q. And did you speak to Mr. Manning or Mr. Jory when you initiated your negotiations?
A. I don’t remember which one.
Q. Okay, so you can’t say that either; is that right? I just want to know what you recall?
A. No, I don’t recall.
Q. So you can’t recall . . .
A. Because they we both . . .
Q. What you’re telling me is you can’t recall whether you talked to Jory or Manning when you initiated your discussions; is that right?
A. I think it was him.
Q. But you can’t say? Is that what you’re saying?
A. I believe it was Mr. Jory because — and then I had talked to his mother on it too.
Q. And what was the substance of the . . .
A. But Mr. . . .
Q. Pardon me?
A. Mr. Manning is the one that brought the contract over.
Q. Okay, that is not the person we’re talking about now. Either it was Mr. Jory or his mother you’re telling me?
A. Yes.
Q. And what was the substance of the conversation?
A. I don’t remember.
Q. Okay, at any rate you initiated a sale; is that right?
A. Between the two of them, yes.
Q. And you can’t remember exactly what happened?
A. No.
At the May 1, 1989, hearing on the motion for directed verdict, the prosecution argued that the defendant was required by regulation to disclose the existence of the mortgage. However, no such regulations were introduced into evidence and the trial judge refused to take judicial notice of any such regulations. | [
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] |
Boyle, J.
In this declaratory action, the issue before us is whether the insurance company’s obligations to its insured and the driver of an automobile in a tort action arising out of a head-on collision terminated when the insured assigned the certificate of title to the driver and allowed the purchaser to operate the vehicle with the insured’s registration plate, registration, and insurance. We find that under these facts, the insurance policy remained in effect at the time of the accident. Accordingly, we reverse the decision of the Court of Appeals.
I
On Saturday, August 1, 1987, Douglas Preece and his wife traveled to Dearborn to visit with his aunt and uncle. While they were there, at Preece’s request, his aunt, JoAnn Williams, offered to sell her 1977 Pontiac to Preece, who accepted the offer and paid his aunt $100 for the automobile. Williams signed her name to the certificate of title and gave it to Preece. Because it was late in the day and a Saturday, Preece planned to register the car, get a new registration plate and his own insurance, the following Monday. In her deposition, Williams testified that she did not discuss the registration plate, registration certificate or insurance with Preece, nor did she recall any such discussion in her presence. She simply signed the certificate of title and her husband, whom she assumed would take care of the final details, went outside with Preece. Conversely, Preece testified that because it was the weekend, Mrs. Williams told him that he could drive with her registration plate, registration, and insurance until he could acquire his own on Monday morning when the Secretary of State’s office was opened. When Preece left Williams’ home, the registration plate was affixed to the Pontiac and the certificates of registration and insurance remained in the glove compartment.
On Preece’s drive home from Dearborn to Han over, in Jackson County, the radiator of the car malfunctioned requiring that he stop six to eight times to allow the engine to cool down and to add antifreeze. One of the stops was at a friend’s home, where Preece consumed a beer. Shortly thereafter, Preece stopped at a party store where he purchased a six-pack of sixteen ounce beer. After drinking two beers, Preece was stopped by a Jackson County police officer because the car had only one operable headlight. After securing Preece’s promise not to drink any more beer and to drive directly home, a short distance away, the police officer allowed Preece to continue on his way. A few miles later, a head-on collision between Preece and the plaintiff, Clifford Clevenger, occurred when Preece allegedly crossed over the center line. The accident happened at approximately 2:00 a.m. on Sunday, August 2, 1987.
As a result, Clevenger suffered injuries and received first-party personal injury protection benefits under the no-fault insurance policy covering his vehicle. He later filed a third-party tort claim under MCL 500.3135(1); MSA 24.13135(1) against Preece and Williams for residual liability. Preece had no insurance. Williams insured the car with the Allstate Insurance Company under a no-fault insurance policy. Williams did not cancel the policy until August 6, 1987, four days after the collision, and testified that she did not become aware of the accident until two weeks after it occurred.
The plaintiff filed the instant action seeking a declaratory judgment that Allstate had a duty to defend and indemnify Williams and Preece under Williams’ no-fault policy. Clevenger and Allstate filed cross-motions for summary disposition. The trial court ruled in favor of Clevenger and denied Allstate’s motion, finding that it had a duty to defend and indemnify Williams and Preece in the underlying tort action.
Defendant Allstate appealed as of right in the Court of Appeals. In an unpublished per curium opinion decided February 11, 1992 (Docket No. 120223), a divided panel reversed the lower court’s grant of Clevenger’s motion for summary disposition. The majority ruled that a bona fide sale had occurred and that the vehicle was no longer owned by Williams after she endorsed the certificate of title, received the full purchase price, and delivered the automobile to Preece. It reasoned that because Williams was no longer the owner of the vehicle, she was statutorily relieved of liability arising from any subsequent negligent operation of the vehicle, and, thus, Allstate had no duty to indemnify Williams. The Court also concluded that under the policy itself, Williams, as the former owner, could not give Preece the requisite permission to drive the automobile. Because Mr. Preece was not a "permissive driver” or an "other insured” as defined in Williams’ policy, Allstate had no duty to defend or indemnify him.
Judge Griffin dissented. He noted that Jo Ann Williams remained the registrant of the motor vehicle and, as such, was required by the no-fault act to insure the vehicle. The dissent noted that, more importantly, the vehicle remained an "owned automobile” according to the express terms of the policy and thus coverage was provided at the time the accident occurred.
We granted leave to appeal. 441 Mich 910 (1993).
II
The legislative purpose for enacting the no-fault automobile liability act was to afford protection to persons suffering injury arising out of the ownership, maintenance, or use of an automobile, Coburn v Fox, 425 Mich 300, 309; 389 NW2d 424 (1986), and not for the protection of the automobile itself, Lee v DAIIE, 412 Mich 505, 509; 315 NW2d 413 (1982).
Under Michigan’s no-fault act, both personal injury protection (pip) and residual liability insurance is now required. Insurance coverage to protect oneself from the costs of injury through pip benefits and to protect injured third parties through residual liability insurance is compulsory. Persons violating the no-fault requirements are subject to a criminal penalty. MCL 500.3102(2); MSA 24.13102(2).
The decision by the Legislature to make residual liability coverage compulsory under the no-fault act is critical. Before 1973, motorists purchased insurance to protect themselves. Under the no-fault act, the Legislature requires pip and liability insurance to protect the members of the public at large from the ravages of automobile accidents.[ ] [Coburn, supra. Emphasis added.]
Plaintiff argues that Allstate has an obligation to defend and indemnify Williams and Preece in the underlying tort action under its policy because Williams, as the registrant of the car, was required by statute to maintain insurance on the vehicle. In addition, because Williams did not cancel the policy before the accident, according to the express language of the insurance agreement, the policy remained in effect at the time of the collision.
Allstate contends that after August 1, 1987, Williams was no longer the owner of the vehicle. It argues that it need not indemnify her for damages arising out of the accident because the motor vehicle code grants her immunity from liability resulting from Preece’s negligent operation of the automobile. Allstate also argues that the policy terminated at the time Williams ceased to be the titled owner of the vehicle. It, therefore, has no contractual duty to defend or indemnify Preece as a "permissive driver” of the vehicle against Clevenger’s claim. We address the parties’ arguments in inverse order.
A
The Insurance Code requires that a motor vehicle insurer provide its insured with minimum liability coverage for bodily injury, death, and property damage. This coverage must extend to all permissive drivers unless the person is expressly excluded on the face of the policy or the declaration page or certification of insurance. See MCL 500.3009; MSA 24.13009.
Under Williams’ policy, Allstate agreed to indemnify and defend the insured for "all damages which the insured shall be legally obligated to pay . . . arising out of the ownership, maintenance or use ... of the owned automobile . . . .” The persons expressly covered under the policy included the "named insured,” and "[a]ny other person with respect to the owned automobile, provided the use thereof is with the permission of the named insured and within the scope of such permission . . . The agreement further defined " 'named insured’ ” as "the individual named in the declarations, and his spouse if a resident of the same household . . . The Williams’ policy was issued to James L. Williams and because JoAnn Williams, his spouse, resided within the household, she was also considered a "named insured.”
The insurance policy also defined the term " 'owned automobile’ ” as "the vehicle described in the declarations . . . .” In this case, the vehicle listed on the declaration sheet was the 1977 Pontiac.
Following the express language of the policy and its definitions of terms as used in the contract, the insurer agreed to indemnify and defend the insured, either named or permissive drivers if within the scope of such permission, for all damages that the insured was legally obligated to pay arising out of the ownership, maintenance, or use of the owned automobile, which was listed on the declaration sheet. Therefore, Allstate agreed to defend and indemnify JoAnn Williams (a named insured) and Douglas Preece (a permissive driver) for damages they are legally obligated to pay as a result of the accident arising out of Preece’s use of the 1977 Pontiac (the vehicle listed on the declaration sheet) when Williams allowed him to drive the 1977 Pontiac to his home.
Allstate asserts that because Williams assigned the certificate of title to Preece, the vehicle was no longer an "owned vehicle” under the policy. It points to the general conditions section of the contract, which states that "[t]his policy applies only to losses to the automobile, accidents and occurrences, during the policy period . . . [and applies] as respects the owned automobile only while it is owned as stated in the declarations.”
This Court has consistently adhered to the general rule of construction applicable to insurance policies that an ambiguous provision in an insurance contract must be construed against the drafting insurer and in favor of the insured. However, if the provision is clear and unambiguous, the terms are to be taken and understood in their plain, ordinary, and popular sense. Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich 175, 181; 468 NW2d 498 (1991). In Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d 440 (1982), we explained:
A contract is said to be ambiguous when its words may reasonably be understood in different ways.
If a fair reading of the entire contract of insurance leads one to understand that there is coverage under particular circumstances and another fair reading of it leads one to understand there is no coverage under the same circumstances the contract is ambiguous and should be construed against its drafter and in favor of coverage.
See also Gorham v Peerless Life Ins Co, 368 Mich 335, 343; 118 NW2d 306 (1962); Century Indemnity Co v Schmick, 351 Mich 622, 626-627; 88 NW2d 622 (1958).
We observe that nowhere in the policy is the promised security conditioned upon the named insured having legal title to the vehicle. As long as the terms and conditions of the contract are adhered to and the policy is not canceled by the insurer or the insured, coverage is afforded to the "owned vehicle,” which it defines as the "vehicle described, in the declarations.” Moreover, we note that Allstate fails to recognize that the general conditions section, which it relies on above to define the limits of the policy’s application, also provides the requisite conditions for canceling the policy:
The named insured may cancel this policy by mailing to Allstate written notice stating when thereafter such cancellation shall be effective, or by surrender of the policy to Allstate or any of its authorized agents and, if so, cancellation shall be effective at the time of surrender.[ ] [Emphasis added.]
The policy does not state that liability coverage is terminated when title to the vehicle named in the declarations as the "owned vehicle” passes to another person. Although we find the policy’s cancellation provision clear and unambiguous as requiring the insured to notify Allstate that the vehicle’s insurance coverage should be discontinued, any ambiguity, as argued by Allstate concerning the limits and termination of coverage, must be construed against the insurer. Transfer of the title in this case did not terminate the insurer’s liability.
Williams notified Allstate on August 6, 1987, that she was canceling the coverage on the Pontiac because she sold the vehicle listed on the declaration sheet. Allstate removed the automobile from Williams’ policy effective August 7, 1987. Because the insurance policy covering the Pontiac was still in effect at the time. the accident occurred, August 2, 1987, by the express terms of the policy, Allstate is obligated to defend and indemnify, if necessary, Williams and Preece in the underlying tort action. The rights and obligations of the parties vested at the time of the accident. Cason v Auto-Owners Ins Co, 181 Mich App 600, 609; 450 NW2d 6 (1989); Madar v League General Ins Co, 152 Mich App 734, 742; 394 NW2d 90 (1986).
B
Alternatively, defendant Allstate argues that, as the seller of a motor vehicle, MCL 257.240; MSA 9.1940 provides Mrs. Williams immunity from damages arising out of the negligent operation of a vehicle after she properly endorsed the certificate of title to Preece. Additionally, because Mrs. Williams was no longer the title holder, she no longer had an "insurable interest” in the automobile. Plaintiff counters that even if Mrs. Williams was not the titled owner of the vehicle, as the registrant, she was statutorily obligated to insure the vehicle.
Our task is to determine the underlying legislative purpose behind the no-fault act by examining various provisions of the act and other relevant statutory provisions, and to harmonize different provisions of the same statute by construing statutes in pari materia to give the fullest effect to each provision. Parks v DAIIE, 426 Mich 191, 199; 393 NW2d 833 (1986). We agree with the Court of Appeals that, by statute, the owner of a motor vehicle is liable for its negligent operation if it is being driven with the owner’s permission, MCL 257.401(1); MSA 9.2101(1), but that the owner is not liable for such negligence subsequent to a bona fide sale of the vehicle, MCL 257.240; MSA 9.1940. We also do not dispute that the motor vehicle act defines "owner,” in part, as the person who holds legal title to the motor vehicle. MCL 257.37(b); MSA 9.1837(b). However, the Court failed to acknowledge that at the time of the accident, MCL 500.3101(1); MSA 24.13101(1) provided:
The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle. [Emphasis added.]
Moreover, the Legislature imposed criminal sanctions for a registrant’s failure to maintain insurance as required by § 3101(1):_
An owner or registrant of a motor vehicle with respect to which security is required, who operates the motor vehicle or permits it to be operated upon a public highway in this state without having in full force and effect security complying with this section or section 3101 or 3103 is guilty of a misdemeanor. Any other person who operates a motor vehicle upon a public highway in the this state with the knowledge that the owner or registrant does not have security in full force and effect is guilty of a misdemeanor. A person convicted of a misdemeanor under this section shall be fined not less than $200 nor more than $500, imprisoned for not more than 1 year, or both. [MCL 500.3102(2); MSA 24.13102(2). Emphasis added.]
As pointed out by Judge Griffin in his dissent, the Court has previously determined that the terms "owner” and "registrant,” as used in the no-fault act, are not synonymous and represent separate categories of individuals, Cason, supra at 606-607; Allstate Ins Co v Sentry Ins Co, 191 Mich App 66, 69; 477 NW2d 422 (1991).
Further review of the motor vehicle code reveals that a registration certificate must be carried at all times in the automobile to which it refers, MCL 257.223; MSA 9.1923, and that it is unlawful for a person to drive, or an owner to knowingly permit to be driven, any vehicle which is required to be registered but is not registered, MCL 257.215; MSA 9.1915. Every application for renewal of registration must be accompanied by a valid certificate of insurance. MCL 257.227; MSA 9.1927.
The code also encompasses provisions for situations in which the registered vehicle is sold:
If the owner of a registered vehicle transfers or assigns the title or interest in the vehicle, the registration plates issued for the vehicle shall be removed [transferred to an immediate family member to whom title in the vehicle also is transferred], or retained and preserved by the owner for transfer to another vehicle upon application and payment of the required fees. [MCL 257.233(1); MSA 9.1933(1).]
A vehicle’s registration plate cannot be transferred or assigned to a new owner who is not an immediate family member. However, the registration plate may be transferred to another vehicle owned by the registrant or may be assigned to an immediate family member, as provided in the act, if the application to do so is filed with the Secretary of State within fifteen days of the transfer or assignment. If the application for transfer or assignment pursuant to § 233 is not made within the required time, the vehicle is considered without registration and the Secretary of State may repossess the registration plate. MCL 257.234; MSA 9.1934. Upon receiving a properly endorsed title, an appli cation for transfer of the registration, and the required fees, the Secretary of State will transfer the registration under its registration number to the newly acquired vehicle and issue a new registration certification and certificate of title. MCL 257.237; MSA 9.1937.
The unlawful use of registrations is also discussed in the vehicle code. Except as otherwise provided in the act, a person must not operate, nor shall an owner knowingly permit to be operated upon any highway, a vehicle required to be registered unless there is attached to and displayed on the vehicle a valid registration plate issued for the vehicle. MCL 257.255(1); MSA 9.1955(1). A person also must not lend or permit the use of a registration plate issued to him if the person receiving or using the certificate or plate would not be entitled to its use. MCL 257.256; MSA 9.1956.
Finally, MCL 257.236; MSA 9.1938 provides that when the owner of a registered vehicle dies and ownership passes by operation of law, the registration plate assigned to the vehicle shall be considered a valid registration until the end of the registration year or until ownership of the vehicle is transferred.
We read these provisions of the vehicle code and the no-fault insurance act in pari materia as indicating that an unexpired registration plate affixed to the vehicle serves as presumptive evidence that the vehicle is validly registered with the Secretary of State, and that it carries the statutorily mandated no-fault automobile insurance. It logically follows that to destroy that presumption, the appropriate course of action after the sale of a vehicle is for the seller to remove the registration plate and the certificates of registration and insurance from the automobile. In this case, Mrs. Williams failed to do so. A reasonable inference can be made that Williams voluntarily remained the insuring registrant of the Pontiac, as evidenced by the testimony and by allowing Preece to take possession and operate the vehicle on a - public highway with her plate attached and with her certificates of insurance and registration in the glove compartment. Moreover, Mrs. Williams’ failure to retain title to the automobile did not excuse her compliance with any other legislative requirements she may have had under the no-fault insurance act. As the registrant of a vehicle she permitted to be operated upon a public highway, Mrs. Williams was required by the act to provide residual liability insurance on the vehicle under the threat of criminal sanctions, §§ 3101 and 3102. In this limited context, Mrs. Williams’ insurable interest was not contingent upon title of ownership to the automobile but, rather, upon personal pecuniary damage created by the no-fault statute itself. Thus, we reject Allstate’s argument that Mrs. Williams, as the registrant of the Pontiac, had no "insurable interest” in the vehicle because she was no longer the title holder. As noted by Judge Griffin in his dissent:
As to the duty to insure, the no-fault statutory provisions at issue have superseded our previous common law. Our no-fault act not only creates new types of insurance, it also establishes new and broader responsibilities to insure. See, generally, Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978). The duty of a registrant to maintain statutorily required insurance on a registered vehicle is one of the new responsibilities created by the no-fault act.[ ]
In short, because she voluntarily remained the insuring registrant of the automobile, Mrs. Wil liams must be taken to have complied with the compulsory insurance statute whether she intended to or not. Our conclusion is supported by the overriding, strong public policy and the Legislature’s mandate that vehicles not be operated on Michigan’s highways without personal protection insurance, property protection insurance, and residual liability insurance.
III
We conclude that, under the unique facts of this case, Allstate has a duty to defend and indemnify, if necessary, Williams and Preece in the underlying tort action on the basis of the express language of its contract with the insured. As registrant of the automobile, Williams, intentionally or not, complied with the no-fault statute and insured the vehicle as the registrant of the vehicle during the brief period she permitted the uninsured purchaser to operate it on a public highway.
Accordingly, we reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Cavanagh, C.J., and Levin, Griffin, and Mallett, JJ., concurred with Boyle, J.
The parties do not argue that the certificate of title was not properly endorsed and that, therefore, ownership did not transfer to Preece.
Section 3135(1) provides that a "person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suifered death, serious impairment of body function, or permanent serious disfigurement.”
At oral argument in the Court of Appeals, Allstate conceded that it has a duty to defend its policyholder, JoAnn Williams, in the underlying tort action. It does not argue that issue before this Court.
MCL 500.3131 etseq.-, MSA 24.13131 etseq.
In this context, we are not persuaded by Allstate’s attempt to distinguish first-party personal injury benefits from residual liability benefits. The Legislature could strike a different balance, but we do not believe that it has done so. As noted by Judge Griffin in his dissent, "[t]here is nothing in the no-fault act that supports such fragmented coverage of statutorily required insurance.”
The insurer also retains the right to cancel the policy, subject to chapters 30 and 32 of the Michigan Insurance Code, and by mailing the notice to the insured named in the declarations.
Contrary to the Court of Appeals reliance on Allstate Ins Co v Demps, 133 Mich App 168; 348 NW2d 720 (1984), and Long v Thunder Bay Mfg Corp, 86 Mich App 69; 272 NW2d 337 (1978), those cases are distinguishable. In Demps, the seller mistakenly failed to remove his registration plate. However, he did cancel the insurance on the vehicle one month after the sale and three weeks before the accident. The Court found that the insurance company had no duty to defend or indemnify the purchaser in the underlying tort suit. In Long, the seller also failed to remove the plate upon sale of the vehicle. The dispute did not involve the question of insurance, but, rather, of owner liability under MCL 257.240; MSA 9.1940. The dissent criticized the majority for its failure to recognize and strictly comply with other applicable provisions of the motor vehicle act.
MCL 257.240; MSA 9.1940, the owner’s liability statute provides:
The owner of a motor vehicle who has made a bona fide sale by transfer of his title or interest and who has delivered possession of such vehicle and the certificate of title thereto properly endorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another.
While § 240 affords the seller an affirmative defense to a damage claim arising out of negligence subsequent to the sale, it is not dispositive of the right to indemnification between an insurer and the insured. Failure of the seller to remove the registration plate from the vehicle after its sale does not preclude the application of § 240. Long, n 7 supra at 70.
We review the applicable provisions of the no-fault act and the motor vehicle code as they existed at the time of the sale of the automobile, August 1, 1987.
See also MCL 500.3115(l)(a); MSA 24.13115(l)(a), which requires that persons suffering injury while not an occupant of a motor vehicle shall first claim pip benefits from "[i]nsurers of owners or registrants of motor vehicles involved in the accident.”
MCL 257.216(1); MSA 9.1916(1) was amended after the accident in this case by 1988 PA 214, which added:
For 3 days immediately following the date of a properly assigned title from any person other than a vehicle dealer, a registration need not be obtained for a motor vehicle driven or moved upon the highway for the sole purpose of transporting the vehicle in the most direct route from the place of purchase to a place of storage if the driver has in his or her possession the assigned title and a dated bill of sale.
Later, 1992 PA 102 deleted the word "motor” preceding "vehicle driven or moved,” and substituted "showing the date of sale” for "and a dated bill of sale.”
We interpret this provision as exempting the vehicle from displaying and possessing a valid registration number for a limited purpose and a limited period, after its purchase date. It does not, however, exempt the owner from carrying the requisite no-fault insurance on the vehicle.
See also Lee, supra at 515; Madar, supra at 736-741. | [
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Boyle, J.
We agree with Justice Archer’s conclusion that the decision of the United States Supreme Court in Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), did not "automatically” modify this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon. Post, p 441.
As Justice Archer explains, Garner’s pronouncements regarding the constitutionality of the use of such force are inapplicable to private citizens such as the defendant. Regardless of the defendant’s status as a private citizen, however, the prosecution’s argument that Garner applies directly to change this state’s fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual’s actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so.
Moreover, we fail to see how Garner can be applied "directly” in any event, since the Court in that case concluded only that the use of deadly force to apprehend a fleeing felon who posed no harm to the officer or others was "unreasonable” for purposes of the Fourth Amendment. In other words, Garner was a civil case which made no mention of the officer’s criminal responsibility for his "unreasonable” actions. Thus, not only is the United States Supreme Court without authority to require this state to make shooting a nondangerous fleeing felon a crime, it has never even expressed an intent to do so.
Unlike Justice Archer, however, we decline the opportunity to change the common-law fleeing-felon rule with respect to criminal liability to conform with Garner. Not only does this Court (and therefore the Court of Appeals) arguably lack the authority to do so, even prospectively, given the Legislature’s adoption of and acquiescence in that rule, we must resist the temptation to do so. The question whether the common law, which allows the use of deadly force by a citizen only to apprehend a felon who is in fact guilty, has outlived its "utility” (post, p 440) is a matter of compelling public interest, demanding a balancing of legitimate interests which this Court (and therefore the Court of Appeals) is institutionally unsuited to perform. In short, it is a question for the Legislature.
i
Justice Campbell observed long ago in In re Lamphere, 61 Mich 105, 108; 27 NW 882 (1886), that
while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision.[ ]
Criminal homicide, or more precisely murder and manslaughter, has been a statutory offense in Michigan since 1846, when the state’s first Penal Code was enacted. 1846 Mich Rev Stat, title xxx, "Of Crimes and the Punishment Thereof,” ch 153, § 1, defined first-degree murder:
All murder which shall be perpetrated by means of poison or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.[ ]
Section 2 defined second-degree murder:
All other kinds of murder shall be deemed murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.[ ]
Section 10 referred to the crime of manslaughter:
Every person who shall commit the crime of manslaughter, shall be punished by imprisonment in the state prison, not more than fifteen years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court.[ ]
Obviously, the crimes of murder and manslaughter are not defined in these statutes in the sense that the elements of those offenses, along with any recognized defenses, are included in the language of the statutes. That does not mean, however, that they are left wholly undefined. As Justice Jackson stated in Morissette v United States, 342 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952):
[W]here [a legislature] borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
Similarly, in People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936), this Court stated that "[i]n construing a statute wherein a public offense has been declared in the general terms of the common law, without more particular definition, the courts generally refer to the common law for the particular acts constituting the offense.” Where the Legislature "has shown no disposition to depart from the common-law definition, therefore it remains.” Id. (Emphasis added.)
To the extent that the Legislature intended to convey "satisfaction with” the existing common-law definitions of murder and manslaughter and to adopt and embrace those definitions, Morissette, supra, p 263, it is debatable whether this Court still has the authority to change those definitions. The Legislature is presumed to have accepted the then-existing common-law rule that "[a]ny private person (and a fortiori a peace-officer) [may arrest a fleeing felon] . . . and if they kill him, provided he cannot otherwise be taken, it is justifiable . ...” 4 Blackstone, Commentaries, p 293 (emphasis in original). Thus, murder and manslaughter, arguably, are no longer common-law crimes in this state, but rather became statutory crimes as early as 1846, and we are no longer free to redefine what is not justifiable homicide by holding that a citizen is "not privileged, to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others.” Post, p 440.
We need not resolve our authority to modify the common-law rule, however, because we find in any event that the presumption of legislative adoption is in this case affirmed by fifty years of legislative acquiescence in this Court’s decision in People v Gonsler, 251 Mich 443, 446-447; 232 NW 365 (1930), in which we approved the trial court’s instruction that
"[b]oth officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justiñed . ... If a killing is not justiñable, it is either murder or manslaughter.” [Emphasis added.]_
II
Regardless of whether this Court has the authority to change the law of homicide, and make criminal something that has never before been a crime in this state, we nonetheless decline to do so in this case. "To declare what shall constitute, a crime, and how it shall be punished, is an exercise of the sovereign power of a state, and is inherent in the legislative department of the government.” People v Hanrahan, 75 Mich 611, 619; 42 NW 1124 (1889). This is particularly true here.
The definitions of a "nondangerous” felony, or who is a nondangerous felon, and how such a felon may be apprehended are quintessentially matters of policy. They involve the delicate weighing and balancing of the particular nature and quality of the felonious intrusion on a citizen’s interests, on the one hand, and the protection of the felon’s interest in longevity on the other. There is an obvious difference, for example, in the citizen’s interest in the sanctity of his home and his interest in his automobile or power boat, just as there is a clear distinction between setting fire to a dwelling and stealing a $200 bicycle, although all are felony/property offenses. Presumably for this reason, the penal codes of some states grant the authority to apprehend a fleeing felon through the use of deadly force if the arrest is for a "forcible” felony, and at least one state has defined forcible felony to include, among others, arson and burglary.
Since the Legislature has evidenced no general intent to reduce the penalties for "mere” property offenses, or, for that matter, major drug offenses, it may well be that the Legislature would not refine such distinctions with respect to the fleeing-felon rule, and would draw the line by saying that a person who is in fact guilty and chooses to flee from the scene of a felony assumes a risk to life and limb. For example, the Legislature may decide that the civil penalties for an improper exercise of the right to use deadly force, as well as the fact that the private citizen acts at his peril and is criminally responsible if he is wrong, are enough of a deterrent to the misuse of such authority.
The point is not that another rule may be wiser, or that there are not situations in which the loss of a felon’s life is tragic, but rather that it is the Legislature that must determine whether the common-law rule has outlived its "utility.” Stated otherwise, it is hard to conceive of an issue more demanding of public debate and the give-and-take of the legislative process than whether the citizens of Michigan are willing to assume the risk that certain criminals should remain at large rather than be subjected to the risk of harm at the hands of their victims. The clear question of policy, whether police officers or citizens should be subject to criminal liability for the killing of a nondangerous fleeing felon, is one for the Legislature, not this Court. _
CONCLUSION
We affirm in part the decision of the Court of Appeals insofar as it holds that Garner did not change this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon. We therefore concur in Justice Archer’s opinion to the extent that it so holds. However, we reverse the decision of the Court of Appeals to "adopt[] a new standard,” People v Couch, 176 Mich App 254, 260; 439 NW2d 354 (1989), with respect to that rule.
Riley, C.J., and Brickley, J., concurred with Boyle, J.
Griffin, J., concurred only in the result.
We are also troubled by Justice Archer’s statement, post, p 441, that the defendant is not a state actor and therefore is not subject to the constitutional restraints imposed by Garner, while "[pjolice officers, on the other hand, are state agents, and hence, directly subordinate to Gamer’s constitutional limitations.” Id., p 441. In our view, even if the defendant were a police officer, Garner could not apply "directly” as the basis for a homicide charge. That would require, in effect, two different definitions of both murder and manslaughter, one for police officers and one for the rest of us. Such a scheme could raise a significant constitutional question. US Const, Am XIV; Const 1963, art 1, § 2.
This point was affirmed in In re Lambrecht, 137 Mich 450, 454; 100 NW 606 (1904), in which this Court stated that "[w]e can look only to the statute for any crime punishable in this State. We look to the common law for definitions and principles in our criminal jurisprudence, but, unless the statute provides a penalty, acts criminal at the common law are not crimes in this State.”
The current version of the first-degree murder statute provides that "[mjurder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.” MCL 750.316; MSA 28.548.
The current version of the second-degree murder statute provides that "[a]ll other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCL 750.317; MSA 28.549.
The current version of the manslaughter statute provides that "[a]ny person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.” MCL 750.321; MSA 28.553.
See also People v Potter, 5 Mich 1, 5 (1858), in which it was stated, "Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied. This, the common law definition, is still retained in our statute. It speaks of the offense as one already ascertained and deBned, and divides it into degrees . . . .” (emphasis added); People v Utter, 217 Mich 74, 86; 185 NW 830 (1921) ("While murder is defined by statute in this State, and the killing of a human being under specified circumstances made murder in the first degree, it also includes the common-law deBnition . . . (Emphasis added.)
See also Perkins & Boyce, Criminal Law (3d ed), p 1099:
Firmly established in the common law of England was the privilege to kill a fleeing felon if he could not otherwise be taken, a privilege extended to the private person as well as to the officer ....
"If a felony be committed and the felon fly from justice, ... it is the duty of every man to use his best endeav ours for preventing an escape; and if in the pursuit the felon be killed, where he cannot otherwise be overtaken, the homicide is justifiable.” 1 East, Pleas of the Crown 298 (1803).
We acknowledge this Court’s opinion in People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982), concluding generally that this Court does have the authority to change the common law so as to enlarge the scope of a defendant’s criminal liability, and in particular that it had the authority to abolish the common-law "year and a day” rule. The Stevenson opinion, however, hardly contains an exhaustive analysis of the question, and cites no authority in support of its conclusion. Moreover, Stevenson did not involve a claim of legislative adoption of the common-law rule, nor did it involve legislative acquiescence in the face of a ruling by this Court, as occurred after People v Gonsler, 251 Mich 443; 232 NW 365 (1930).
Perkins & Boyce, supra, p 1105.
Perkins & Boyce, supra, pp 1099-1100.
In other words according to the English common law a private person was never privileged to use deadly force merely to stop the flight of one he was seeking to arrest without a warrant, if that one was in fact innocent. [Emphasis in original.]
As the California Court of Appeals recently stated in People v Gilmore, 249 Cal Rptr 914, 921, n 5 (1988), after concluding that Gamer had not automatically modified that state’s fleeing-felon rule, "we have distilled from the governing statute [by reference to the common law] and applied to the undisputed facts the legal principles which we . . . believe to be controlling. If it is thought desirable to change the statute for future cases, that is the responsibility of the Legislature.” Although review of the Court of Appeals opinion was denied by the California Supreme Court, that court did direct that it not be published in the official reporter. 203 Cal App 3d 612 (1988). We do not share the California high court’s apparent uneasiness with the lower court’s discussion in Gilmore. | [
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Boyle, J.
The question presented is whether an arbitration clause of a collective bargaining agreement survives the expiration date of the collective bargaining agreement which created it. We are persuaded by the strong precedent favoring arbitration as being consensual that an agreement to arbitrate does not survive expiration of a collective bargaining contract statutorily as a term or condition of employment under the public employment relations act. The obligation to arbitrate grievances postcontract encompasses grievances involving employee rights that accrue or vest under the contract, or situations in which the parties expressly provided for arbitration beyond the term of the agreement.
We affirm the decision of the Court of Appeals.
I
The Gibraltar school transportation employees, as well as its custodial and maintenance employees, were previously represented in bargaining with the school district by the American Federation of State, County and Municipal Employees. Each unit’s contract contained a four-step grievance procedure with arbitration as the final step to resolve "[a]ny grievance or dispute which may arise between the parties concerning the application, meaning or interpretation” of the agree ment. Although each contract contained a broad automatic renewal clause, neither included any specific language providing for survival of arbitration in the event the entire contract expired. The transportation unit’s contract expired on June 30, 1984, and the custodial and maintenance unit’s contract terminated on June 30, 1985. Although the record is void of any evidence that the contracts were renewed by virtue of the contracts’ automatic renewal provisions, we make the logical inference that they were not, in light of the subsequent election and certification of a new bargaining agent for both labor units.
The Michigan Education Support Personnel Association (mespa) petitioned the Michigan Employment Relations Commission for recognition as the exclusive bargaining agent for both labor units. The mespa prevailed over the afscme in an August 26, 1985, consent election and was certified as the sole bargaining representative by the merc on September 9, 1985. Negotiations for new contracts between the school district and the mespa began the following day. According to the union’s representative, the school district’s representative verbally assured them that they would "extend the contracts,” despite the fact that both parties acknowledged that the afscme contracts had expired and both units were currently working without contracts.
On October 18, 1985, the school district offered the mespa a written contract that included a four-step grievance procedure with arbitration as the final step. The provision was conditioned on the union’s agreement to a no-strike clause. At that time, the school district proposed an interim grievance procedure that did not contain arbitration. After the mespa objected to the interim plan, the school district withdrew its proposal and indicated it would adhere to the grievance procedure established under the expired afscme contract, with the exception of arbitration as a final step. The parties continued to negotiate without reaching impasse on any subject of bargaining. Ultimately, agree- merits for both units were reached and the contracts ratified by the Gibraltar School Board on October 14, 1986.
Meanwhile, the mespa filed several grievances with the school district during the period between October 24, 1985, and February 3, 1986. Citing the provisions of the expired afscme contract, the grievances alleged violations concerning bus run assignments, payment for runs, working hours, payment for layover time, schedule changes, outside employees performing bargaining unit work, and the assignment of a bargaining unit position. Unable to achieve resolution after processing* the grievances through the initial three steps of the afscme procedure, the union filed a demand for arbitration with the American Arbitration Association, claiming a right to arbitration, pursuant to the expired afscme contract. The school district refused the demands for arbitration, stating that no current labor contract existed between the parties granting the association or any third party the authority to process such demands. It also complained that the written arbitration provisions attached to the union’s arbitration demands were excerpts from the expired afscme contract to which the mespa was not a party. Arbitration of the grievances was stayed pending resolution of the issue of the right to arbitration itself.
On February 20 and May 13, 1986, the mespa filed unfair labor practice charges against the school district pursuant to § 10 of the public employment relations act, 1965 PA 379, as amended, MCL 423.210; MSA 17.455(10). Specifically, the union claimed that the parties, by agreement, had been working under the last "mutually agreed to collective bargaining agreement, dated February 9, 1982, while the parties engage[d] in negotiations for a successor agreement.” The mespa charged that the school district’s refusal to arbitrate grievances were unilateral actions "without notice and were effectuated in contravention of its statutory duty under the pera to bargain in good faith with Charging Party with respect to wages, hours and other terms and conditions of employment and constitute^] a continuing effort by [the Gibraltar School District] to undermine the status of [the mespa] as bargaining representative for the employees represented by [the mespa].”
The charges were consolidated and a hearing conducted before a hearing referee who found that the mespa had no standing to file the charges. He rejected the mespa’s theory that the employer repudiated its contractual obligation to arbitrate, because, by its own terms, the contract had expired before the union was certified as the employees’ bargaining representative. Finding no present or past contractual obligation to be owed by the school district to arbitrate the grievances at issue, the hearing referee dismissed the charges. The merc upheld the hearing referee’s findings and dismissal order.
The mespa appealed as of right in the Court of Appeals, which affirmed in an unpublished per curiam opinion, decided October .17, 1991 (Docket No. 116964). The Court found that the expired agreements were never formally extended by the parties and that the school district had no contractual obligation with the newly certified union to submit the grievances to arbitration.
We granted leave to appeal. 440 Mich 889 (1992).
II
A
Before turning to the central issue in this case, we deal briefly with the contention that the mespa lacked standing to enforce the arbitration provisions of the expired contract. We conclude that such a contention is inappropriate for the issue of the statutory obligation to arbitrate. In this context, "standing” refers to the authority of a newly certified union to litigate rights originally acquired by the predecessor union, usually under a collective bargaining agreement or because of actions or omissions relating to the predecessor union’s status as collective bargaining representative of the unit. In this case, the charging parties were certified after the expiration of the collective bargaining agreements. During this period, the terms and conditions of employment are continued because of the statutory obligation to bargain, Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54-55; 214 NW2d 803 (1974). Grievances that arise after certification of the new union depend on the statutory obligation, not the expired collective bargaining agreement. Any question concerning the authority of the newly certified union to enforce rights granted by the expired agreement is irrelevant. Thus, we reject the claim that the mespa does not have standing to claim a statutory violation and file an unfair labor practice charge.
B
The central question posed is the extent to which an arbitration clause of a collective bargaining agreement survives the expiration date of a collective bargaining agreement. This issue was recently addressed by the United States Supreme Court in the context of private sector disputes under the National Labor Relations Act, 29 USC 151 et seq.; Litton Financial Printing Div v NLRB, 501 US 190; 111 S Ct 2215; 115 L Ed 2d 177 (1991). We have long recognized that Michigan’s public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., is modeled on the nlra. Although not controlling, we look to federal precedent developed under the nlra for guidance in our interpretation of the pera, Central Michigan Univ Faculty Ass’n v Central Michigan Univ, 404 Mich 268; 273 NW2d 21 (1978); Pontiac Police Officers Ass’n v Pontiac (After Remand), 397 Mich 674; 246 NW2d 831 (1976); Detroit Police Officers Ass’n v Detroit, supra at 53. Thus, Litton is an appropriate place to begin our inquiry.
In Litton, the expired collective bargaining agreement contained a two-step grievance procedure with arbitration as the final step. During the hiatus between contracts, and without consulting the union, the employer eliminated a portion of its operations and laid off workers. The union demanded grievance procedures and arbitration concerning the layoffs pursuant to the terms of its prior contract with the employer. The employer refused to process or arbitrate the grievances. The nlrb upheld the union’s charge of an unfair labor practice and ordered grievance procedures and arbitration. The Supreme Court granted the employer’s petition limited to the issue of the right to arbitration postcontract. Justice Kennedy’s opinion for the Court differentiates two sources for imposing an obligation on an employer to arbitrate a dispute arising after the expiration date of one collective bargaining agreement but before the effective date of any successor agreement. These sources might be called the statutory obligation and the contract obligation.
The statutory obligation is found in §§ 8(a)(5) and 8(d) of the nlra, 29 USC 158(a)(5) and (d), which require an employer to bargain "in good faith with respect to wages, hours, and other terms and conditions of employment.” As the Court stated in Litton:
The [nlrb] has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v Katz, 369 US 736; 82 S Ct 1107; 8 L Ed 2d 230 (1962). In Katz the union was newly certified and the parties had yet to reach an initial agreement. The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e.g., Laborers Health and Welfare Trust Fund v Advanced Lightweight Concrete Co, 484 US 539, 544, n 6; 108 S Ct 830; 98 L Ed 2d 936 (1988). [Litton, 111 S Ct 2221.]
Among the mandatory subjects of bargaining is grievance resolution, including arbitration, United States Gypsum Co v Int’l Woodworkers of America, CIO, 94 NLRB 112, 131 (1951). While the nlrb has ruled that most mandatory subjects of bargaining are within the Katz rule, it has created several exceptions, among which is grievance arbitration, Hilton-Davis Chemical Co v Int’l Chemical Workers Union, 185 NLRB 241 (1970).
The United States Supreme Court, with significant deference to the nlrb’s interpretation of the nlra, likewise extended by this Court to the merc, summarized and quoted from Hilton-Davis as follows:
[T]he Board determined that arbitration clauses are excluded from the prohibition on unilateral changes, reasoning that the commitment to arbitrate is a "voluntary surrender of the right of final decision which Congress . . . reserved to the parties. . . . [Arbitration is, at bottom, a consensual surrender of the economic power which the parties are otherwise free to utilize.” [Hilton-Davis] at 242. The Board further relied upon our statements acknowledging the basic federal labor law policy that "arbitration is a matter of contract and a party cannot be required to submit to arbi tration any dispute which he has not agreed so to submit.” United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582; 80 S Ct 1347; 4 L Ed 2d 1409 (1960). See also 29 USC 173(d) (phrased in terms of parties’ agreed upon method of dispute resolution under an existing bargaining agreement.) [Litton, 111 S Ct 2222.]
A unanimous court in Litton agreed that there is no statutory right to arbitration under the nlra and refused the invitation to reject the nlrb’s decision, relying almost totally on the consensual nature of arbitration:
We think the Board’s decision in Hilton-Davis Chemical Co, is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the nlra and its drafting history, of consensual rather than compulsory arbitration. See Indiana & Michigan [Electric Co v Local Union No 1392, Int’l Brotherhood of Electrical Workers, 284 NLRB 53, 57-58 (1987)]; Hilton-Davis Chemical Co, supra. The rule conforms with our statement that "[n]o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so.” Gateway Coal Co v Mine Workers, 414 US 368, 374; 94 S Ct 629; 38 L Ed 2d 583 (1974). We reaffirm today that under the nlra arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of their agreement.
In the absence of a binding method for resolution of postexpiration disputes, a party may be relegated to filing unfair labor practice charges with the Board if it believes that its counterpart has implemented a unilateral change in violation of the nlra. If, as the Union urges, parties who favor labor arbitration during the term of a contract also desire it to resolve postexpiration disputes, the parties can consent to that arrangement by explicit agreement. Further, a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until the parties bargain to impasse. Unlike the Union’s suggestion that we impose arbitration of postexpiration disputes upon parties once they agree to arbitrate disputes arising under a contract, these alternatives would reinforce that statutory policy that arbitration is not compulsory. [Litton, 111 S Ct 2222-2223.]
Federal authority is not the only source of guidance on this question. We have the benefit of the decision of the merc in this case, which was decided before the Supreme Court issued its opinion in Litton. The merc was forced to use the principles announced in Nolde Bros, Inc v Local 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 US 243; 97 S Ct 1067; 51 L Ed 2d 300 (1977), the lead case on contract obligation post collective bargaining agreement, as well as nlrb authority implementing Nolde Bros, and our decision in Ottawa Co v Jaklinski, 423 Mich 1; 377 NW2d 668. (1985), which also drew on Nolde Bros. However, the merc, as a matter of interpreting the pera, reached a conclusion that matches Litton’s interpretation of the nlra. Citing with approval Indiana & Michigan, supra, an nlrb decision applying Nolde Bros, the merc stated, "[A]n employer’s obligation to arbitrate post-contract extends only to those hiatus grievances which involve 'vested or accrued rights,’ ” that is, rights under the contract obligation. See part II(d).
Recognizing our historical inclination to be favorably influenced by decisions of the merc applying the pera, and the persuasive force of federal authority applying the nlra, appellants seek to distinguish the circumstances present in private employment from those of the public sector. They contend:
While it is true that in the private sector both parties are free to utilize economic power, such a balance does not exist in public employment in Michigan. Under federal law, arbitration is considered the quid pro quo for an agreement not to strike.
Michigan public employees have no legal right to strike, even after the expiration of a collective bargaining agreement, MCL 423.202; MSA 17.455(2). While we acknowledge this truism, we are persuaded both by the structure of the statute and the realities of public sector employment that the merc’s conclusion is correct.
First, the consideration of the power to strike was not the basis for Litton’s adherence to Hilton-Davis Chemical. Rather, the Court was influenced hy "the strong statutory principle, found in both the language of the nlra and its drafting history, of consensual rather than compulsory arbitration.” Litton, 111 S Ct 2222. The consensual nature of grievance arbitration is no less important in this state, as Justice Riley has explained:
The legal basis underlying [the] policy of judicial deference [in reviewing the merits of an arbitration award] is grounded in contract: the contractual agreement to arbitrate and to accept the arbitral decision as "final and binding.” Labor arbitration is a product of contract, and, therefore, its legal basis depends entirely upon the particular contracts of particular parties. Arbitration contracts may vary, according to their specific terms, in the scope of the matters entrusted to final and binding arbitration, and in the arbitral authority conferred to resolve disputes concerning such matters. An arbitrator’s jurisdiction and authority to resolve a particular dispute concerning the appropriate interpretation of a collective bargaining agreement derives exclusively from the contractual agreement of the parties; an arbitrator possesses no general jurisdiction to resolve such matters independent of the arbitration contract. [Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143, 150-151; 393 NW2d 811 (1986).]
Second, the consideration of the power to strike was only one of three rationales in Hilton-Davis Chemical, supra. The other two were the consensual nature of arbitration and "the right of final decision which Congress . . . reserved to [the] parties.” Id. at 242. The essential nature of both the nlra and the pera is that the acts provide only a process by which the parties might reach agreement, the power to agree to a proposal remains with each party, MCL 423.215; MSA 17.455(15), 29 USC 158(a)(5) and (d).
Additionally, and most importantly, the Legislature has made the determination when, after expiration of a collective bargaining agreement, public employees’ lack of the right to strike creates an imbalance of power that is contrary to public interest. It determined that an imbalance affected only certain types of public safety employees, whom it gave the right to interest arbitration in 1969 PA 312; MCL 423.233; MSA 17.455(33). It thus appears that the Legislature did not believe that a purported imbalance in other public sector employment required adjustment. The dissent’s suggestion that we have failed to acknowledge that Act 312 supplements the pera is thus wide of the mark. We do not dispute or fail to acknowledge the purpose of Act 312. Rather, we draw the inference that the Legislature did not intend arbitration to be part of the statutory contract from the fact that it concluded that the danger of strikes required only a limited response not extended to public employees in general.
Turning to the context of general public sector employment, while the balance of negotiating power is different than in the private sector, we reject the implication that public employees are as disadvantaged by the differences as the charging parties suggest. Public employees possess certain rights not enjoyed by private employees. They have the protection of the Due Process Clause in many attributes of their employment, Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972); Perry v Sindermann, 408 US 593, 601-602; 92 S Ct 2694; 33 L Ed 2d 570 (1972). Public employers and employee pensions are financially secure in ways not always realized in the private sector. Additionally, employer decisionmakers in the public sector either are popularly elected officials or persons who answer to popularly elected officials. The nature of public service is such that citizens are more likely to have an active interest in a labor dispute involving the education of their children or the collection of the trash than they are in a dispute involving one of many alternate suppliers of commercial goods or services. This public concern, plus access to the decisionmakers, gives the employees a source of direct influence not generally found in the private sector bargaining.
Nor are public employees left without a means of resolving grievances. Grievances can go to the bargaining table to be resolved during negotiations, or perhaps by a retroactivity clause in the new agreement. In some instances, as suggested in Litton, a grievance itself might be pursued as an unfair labor practice charge._
The public employer’s situation, like the public employee’s, is .different from that of the private sector employer. The public employer frequently has less control than its private sector counterpart over its income and expenses. The public employer is dependent on the electorate to approve new revenues from taxes. This frequently results in a situation in which the public employer and its employees find themselves aligned in proposing and supporting requests to the electorate to approve additional tax millages. One salutary effect of these alliances is that the affected public employers and employee unions have additional incentive to negotiate mutually satisfactory resolutions to postexpiration grievances.
Finally, despite the fact that the pera prohibits strikes by public employees, MCL 423.202; MSA 17.455(2), we would be less than candid if we did not acknowledge that in the real world of public employment, public employees occasionally assume the power to strike. Thus, from the employer’s perspective, there is value in securing a more stringent contractual agreement with the union prohibiting the employees from striking during the term of the contract while affording it more remedies for breach of that agreement than those provided by the pera.
In summary, while the nature of the balance of negotiating power in the public sector is different than that in the private sector, we find no evidence of legislative intent to strike a different balance regarding arbitration as essentially consensual. Nor can we agree with the charging par ties that public employees are so clearly disadvantaged as to compel a different result.
The accusation that we are abandoning established precedent, post, p 352, is simply wrong. The instant case is one of first impression. The only Michigan authority on this point is the decision of the Court of Appeals and the decision of merc in this and other cases, all of which reach the conclusion that there is no statutory obligation to arbitrate. Moreover, the general state authority relied on by the dissent are decisions of this Court adopting federal labor law in Michigan. The dissent erroneously cites CMU, Jaklinski, DPOA, and PPOA for the proposition that established Michigan precedent exists interpreting the pera and reliance on federal labor interpretations is therefore inappropriate. However, we note that CMU and DPOA relied on NLRB v Borg-Warner Corp, 356 US 342; 78 S Ct 718; 2 L Ed 2d 823 (1958), and Fibreboard Paper Products Corp v NLRB, 379 US 203; 85 S Ct 398; 13 L Ed 2d 233 (1964). Jaklinski followed Nolde Bros, and PPOA, in which there was no majority opinion, followed DPOA.
Nor do we discern in the dissent, any attempt to weigh or explain how the policy considerations underlying the decision in Litton and that of the merc, can be harmonized with its result. These considerations, strongly supported by precedent in state law, are the consensual nature of arbitration and adherence to the essential nature of the nlra and the pera that provide a process by which the parties might reach agreement.
Thus on the basis of legislative intent, a weighing of the policy considerations underlying arbitration, and federal and state precedent, we find that the Court in Litton, and the merc in this case,reached the correct conclusion that there is no statutory duty to arbitrate after expiration of a collective bargaining agreement.
C
Finally, the syllogism on which the dissent rests, requires additional response. Stripped of the inaccurate observations that precedent and "the Legislature’s command,” post, p 353, require its result, the dissent rests on the following propositions. Grievance arbitration is a mandatory subject of bargaining. An employer must bargain to impasse regarding mandatory subjects of bargaining. Therefore arbitration survives expiration of the collective bargaining agreement as a statutory term of the contract.
It should be obvious that it does not necessarily follow from the fact that arbitration is a mandatory subject of bargaining, that arbitration is one of those mandatory subjects of bargaining that is a part of the statutory contract. That is the question presented by this case, and the syllogism posed does not address it. Thus, the dissent offers no explanation why it would eliminate the duty imposed by the pera to bargain in good faith over grievances that arise in the absence of a collective bargaining agreement, in favor of resolution by a third-party arbitrator.
The dissent buttresses its syllogism with reference to the lack of an employer "quid” for the employees "quo,” that is historically inaccurate. The pera represents an enlightened legislative approach to public employment that amended prior law. Previously, any public employee who went on strike was deemed to have abandoned the position and all attendant benefits. Criminal sanctions were imposed for inciting, influencing, coercing, or urging another to strike, MCL 423.201 et seq.; MSA 17.455(1) et seq. The pera granted public employees the right to organize and to insist that public employers bargain in good faith over wages, hours, and conditions of employment, while retaining the prohibition on strikes. Thus, if there is any bargain concerning the loss of the power to strike, the "quid” is the public employer’s obligation to bargain in good faith in return for the continued prohibition of strikes.
The Litton decision and the merc decision are consistent with this approach. Public employers and employees have to bargain in good faith about grievances that arise while there is no collective bargaining agreement and employees have a potential unfair labor practice charge against the employer for unilateral change in working conditions. The pera does not, however, impose arbitration, which is merely a method of determining a dispute involving some other substantive right, on the bargaining process as a term of the statutory contract.
D
The second source of an obligation to arbitrate discussed in Litton is the collective bargaining agreement itself. The seminal case on this topic is Nolde Bros, supra. The Court in Nolde Bros held that there may be some disputes that arise after the expiration of a collective bargaining agreement that involve rights granted under the agree ment. These disputes, governed by the agreement, would still be arbitrable under an arbitration clause of the otherwise expired agreement. The rights are those that the parties intended to last beyond the expiration date of the agreement. The scope of those rights was subject to debate among the lower federal courts, see Ottawa Co v Jaklinski, supra at 15-21, explaining the various approaches. Jaklinski was decided during the debate. For reasons discussed in Jaklinski, a majority of this Court decided that the proper application of Nolde Bros to the pera was that "the right to grievance arbitration survives the expiration of the collective bargaining agreement when the dispute concerns the kinds of rights which could accrue or vest during the term of the contract.” 423 Mich 22.
In Litton, the Court ended at least the initial round of the debate on the scope of Nolde Bros in a fashion identical to our decision in Jaklinski. The Court stated:
A postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.[ ] [111 S Ct 2225. Emphasis added.]
The charging parties invite us to "declare that Jaklinski’s concept of 'accrued’ or 'vested’ rights extends to all provisions of an expired agreement which represents the core of the relationship between the parties.” They do not, however, indicate where to draw the line on which rights are or are not “core,” choosing only to point to rights found by lower federal courts to be accrued or vested, such as vacation days, pensions, health and disability insurance, and seniority. Leaving aside whether these are the types of rights that would be vested in a given case, we note that they are not the types of rights subject to the grievances in this case. The grievances filed on behalf of the transportation unit involved assignment of runs, payment for runs, working hours, payment for layover time, and schedule changes. The grievances filed on behalf of the custodial-maintenance unit involve out-contracting, failure to have a unit member in attendance at a school sponsored event, and assignment of one position. These involve the traditional areas of wages, hours and working conditions, in other words, the mandatory subjects of bargaining. This is identical to one of the approaches we rejected in Jaklinski and the approach for the statutory obligation that we reject above.
The charging parties also argue that the testimony of their witness shows that the parties intended that the collective bargaining agreements were to continue in effect throughout the negotiations. The evidence relates to events that occurred after the expiration of the agreement. It does not show any intent by the signers of the agreements that the agreements provided for any terms to last beyond the expiration date. Thus, any right to arbitrate grievances in this case did not derive from the original agreement in the manner of Nolde Bros. At most, there may have been a temporary side agreement made during negotiations, but the charges filed in this case did not allege a violation of any side agreement and the charging parties did not take exception to the hearing referee’s failure to find such an agreement. We do not believe any contention about a separate agreement is preserved for appellate review.
The charging parties have not argued that the grievances filed meet the "accrued or vested” test of Litton and Jaklinski. Thus, we do not discuss that question.
III
We hold that the pera does not create a statutory duty to arbitrate grievances arising after the expiration of a collective bargaining agreement. We also find that the grievances filed in this case were not the type that accrued or vested under the previous collective bargaining agreement. Accordingly, we affirm the decision of the Court of Appeals.
Brickley, Riley, and Griffin, JJ., concurred with Boyle, J.
AFSCME Custodial and Maintenance Agreement, art 7, p 4 and Transportation Agreement, art VII, § 1, p 4. The agreements expressly recognized that the sole parties to the contracts were the Board of Education of the Gibraltar School District and afscme, the exclusive bargaining representative for the employees. Each contract also provided that it was the complete agreement between the parties with respect to all terms and conditions of employment that would prevail during the term of the agreement between the parties. AFSCME Custodial and Maintenance Agreement, arts 1 and 34, pp 1, 23; AFSCME Transportation Workers Agreement, arts I and XXXVI, pp 1, 26.
The AFSCME Custodial and Maintenance Agreement, art 35, labeled "Termination of Agreement,” provided:
This Agreement shall remain in full force and effect until June 30, 1985. It shall be automatically renewed from year to year, unless either party shall notify the other party, in writing, at least ninety (90) days prior to June 30, 1985 that it desires to revise or modify this Agreement. In the event that such notice is given, negotiations shall begin not later than sixty (60) days prior to the anniversa[r]y date.
This Agreement shall remain in full force and be in effect during the period of negotiations and until notice of termination of this Agreement is provided to the other party in the manner set forth in the following paragraph:
In the event that either party desires to terminate this Agreement, written notice must be given to the other party not less than ten (10) days prior to the desired termination date, which shall not be before the anniversa[r]y date set forth in the preceding paragraph. [Emphasis added.]
A provision in the afscme transportation contract, art XXXVII, contained similar automatic renewal language. However, it did not provide for a stay of termination during the period of negotiations:
This Agreement shall continue in full force and effect until June 30, 1984. If either party desires to terminate or amend this Agreement, it shall ninety (90) days prior to the above termination date, give written notice of termination or amendment. If neither party shall give notice, or if each party giving notice of termination or amendment withdraws the same prior to the above termination date, this Agreement shall continue in effect from year to year thereafter subject to notice of termination or amendment by either party on ninety (90) days written notice prior to current termination date.
The public employment relations act prohibits the commission from conducting an election or certifying a bargaining agent when a valid collective bargaining agreement exists. Section 12 of the act, MCL 423.212(b); MSA 17.455(12)(b), provides that when a petition for recognition of bargaining representation is filed with the commission:
The commission shall investigate the petition and, if it has reasonable cause to believe that a question of representation exists, shall provide an appropriate hearing after due notice. If the commission finds upon the record of the hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with the rules of the commission.
Section 14 of the act, MCL 423.214; MSA 17.455(14), provides in part:
An election shall not be directed in any bargaining unit or subdivision thereof where there is in force and effect a valid collective bargaining agreement which was not prematurely extended and which is of fixed duration. A collective bargaining agreement shall not bar an election upon the petition of persons not parties thereto where more than 3 years have elapsed since the agreement’s execution or last timely renewal, whichever was later.
As noted above, the commission will not conduct an election while a valid collective bargaining agreement is in force. In addition, testimony before the hearing officer revealed that both the school district and the newly certified union agreed that the afscme contracts had expired and that the employees were working without contracts. For these reasons, we reject outright mespa’s contention that even though the contracts were expired, all of the terms and conditions were not terminated by virtue of the contracts’ automatic renewal provisions.
Conversely, Mr. Michael Williamson, superintendent of the school district testified:
Mespa was a new union. We recognized a need to continue those rights that adhered to the individual, as provided in an agreement negotiated with another union; however, it was the position of the employer that we were dealing with a new union, and rights that adhered to the union needed to be negotiated anew.
When questioned specifically whether the school district recognized the previously existing contracts as continuing to exist as an mespa contract, Mr. Williamson replied, "Absolutely not. That was an afscme contract.”
The mespa completed the association’s arbitration demand forms indicating that it was "a party to an arbitration agreement contained in a written contract” providing for arbitration, and attached the relevant portions of the expired afscme contract. It appears the union had difficulty determining the date of the written contract it purportedly was relying on because it listed a variety of dates on the arbitration demand forms, such as "1982,” "to 1986,” "1985-1986,” "ending 1986,” and "continuing.”
The Court did not address the nlrb’s finding that Litton committed an unfair labor practice by its unilateral abandonment of the grievance process and wholesale repudiation of any postexpiration arbitration obligations because the employer did not raise the issue in its petition on appeal. Litton, 111 S Ct 2220.
The facts of this case suggest a third possible source of an obligation to arbitrate, a postexpiration agreement by the parties, see n 4 and accompanying text. More typically, the parties might negotiate that any successor agreement might be retroactive to the date of the expiration of the prior agreement, with the intent that pending, unresolved grievances might be submitted to arbitration under the successor agreement.
The corresponding section of the pera, MCL 423.215; MSA 17.455(15), also requires:
A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.
This jurisdiction has similarly deemed grievance procedures and arbitration as mandatory subjects of bargaining. See Ottawa Co v Jaklinski, 423 Mich 1; 377 NW2d 668 (1985); Pontiac Police Officers Ass’n v Pontiac (After Remand), 397 Mich 674; 246 NW2d 831 (1976).
MERC v Detroit Symphony Orchestra, 393 Mich 116, 124; 223 NW2d 283 (1974); Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991).
Justices Marshall and Stevens, joined by Justices Blackmun and Scalia, dissented in Litton but all agreed with the majority that there was no statutory right to arbitrate labor disputes. See Litton, 111 S Ct 2231, n 4 (Marshall, J., dissenting), and 111 S Ct 2231 (Stevens, J., dissenting).
In Ottawa Co v Jaklinski, n 9 supra, this Court addressed the issue of postexpiration arbitration. There, a deputy sheriff lost her position after expiration of a contract and after impasse in negotiations led to a petition for interest arbitration under 1969 PA 312, MCL 423.233; MSA 17.455(33). The facts led to three possible sources for an obligation to arbitrate after expiration. The first was that an employer had to maintain mandatory subjects of bargaining, including arbitration, during negotiations until impasse. We stated that "this line of reasoning . . . logically follows” but rejected the argument because the parties had bargained to impasse. Id. at 13. This statement about the logic of the argument was not an acceptance of the doctrine into Michigan law. The second possible source of the obligation in Jaklinski was the requirement of 1969 PA 312, § 13, MCL 423.243; MSA 17.455(43), that wages, hours, and other conditions of employment not be changed without consent of the parties during the pendency of Act 312 interest arbitration proceedings. This discussion prompted a dissent. However, it is not relevant to the present case, because Act 312 only applies to certain public safety employees. The third possible source of the obligation discussed in Jaklinski is the Nolde Bros, Inc v Local 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 US 243; 97 S Ct 1067; 51 L Ed 2d 300 (1977), contract obligation. We discuss this in part II(D).
See also Pontiac Police Officers Ass’n, supra at 683, where Justice Levin observed that the pera "does not obligate a public employer to agree to grievance or disciplinary procedures proposed by the union. It simply obligates the public employer to bargain in good faith regarding such procedures.”
Moreover, in Grand Rapids v Grand Rapids Lodge No 97, Fraternal Order of Police, 415 Mich 628, 637; 330 NW2d 52 (1982), we noted regarding the issue of grievance resolution, "If they cannot agree, their only statutory duty is to continue to negotiate — that is the statutory right; there is no statutory right to binding arbitration.” Where no method or procedure has been agreed upon to resolve grievances, "the parties must simply negotiate on the grievance in good faith.” Id. at 635.
At the merc hearing in the present case, the union representative testified that the school district never refused to meet with the union to discuss grievances and that all grievances were discussed at the bargaining table or at some other point during the negotiation period. The school district’s continual processing and discussions of filed grievances supports the inference that the school district sought to avoid committing an unfair labor practice. See Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union 1199 v Pepsi-Cola General Bottlers, 958 F2d 1331, 1336 (CA 6, 1992); United Paperworkers Int’l Union AFL-CIO, CLC v Wells Badger Industries, Inc, 835 F2d 701, 704-705 (CA 7, 1987).
Such statutory mandates discourage strikes but. clearly do not prevent them. Kearney, Labor Relations in the Public Sector (2d ed), p 287. It has been estimated that since 1960 more than ninety percent of all government strikes have taken place at the local level, with eight percent at the state level and one percent at the federal level. Id. at 276.
We observed in Detroit Police Officers Ass’n v Detroit, 428 Mich 79, 95; 404 NW2d 595 (1987) (opinion of Boyle, J.):
The resolution of labor-management strife in the public sector through collective bargaining is a basic goal of the pera, which joins the strike proscription, MCL 423.202; MSA 17.455(2), with the employer’s duty to bargain collectively, MCL 423.215; MSA 17.455(15).
It may appear that the Court is listing three types of postexpiration disputes. We believe, strictly speaking, there is only one. The employer action or inaction leading to the first listed dispute arises before expiration. The third listed dispute arises before the expiration of the clause of the agreement applying to that dispute.
Litton had two dissenting opinions, each of which contended that the determination whether the contractual rights survived the expiration of the collective bargaining agreement was a matter to be initially determined by an arbitrator. We need not and do not reach that issue in this case. | [
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Griffin, J.
Defendant challenges his convictions of bank robbery and possession of a firearm during the commission of a felony on the ground that pretrial procedures used for identification purposes deprived him of his constitutional rights of the assistance of counsel and a fair trial. Upon review, we find no error requiring reversal and affirm the decision of the Court of Appeals.
I
On August 8, 1988, the Fort Gratiot branch of the People’s Bank in Port Huron was robbed of more than $22,000 (including approximately $600 in Canadian currency) by a man armed with a sawed-off shotgun who escaped in an older model black Chrysler. Three bank tellers, the branch manager, and a customer witnessed the robbery and gave descriptions of the robber and his car to investigators. In addition, photographs of the robber were taken by the bank’s surveillance camera. The photographs matched the descriptions given by the eyewitnesses: The perpetrator was a heavy, white man wearing a baseball cap, a short-sleeved shirt, and jeans, and he had a wallet attached to a chain extending from a belt or belt loop, commonly referred to as a trucker’s wallet.
After two of the surveillance photographs were published in a local newspaper a few days after the crime, the St. Clair County Sheriff’s Department received several phone calls regarding the robbery. At least one caller identified defendant Albin Kurylczyk as the man in the photographs. This information prompted a detective and an fbi agent to visit defendant at his home on August 17, 1988. At their request, defendant permitted the officers to search his house and his car, which was similar to the getaway car described by the eyewitnesses. He also agreed to accompany the investigators to the local police station for further interviews. Once there, he consented to be photographed by the detective. At that time, he was not represented by counsel, nor did he make any request for counsel.
On the same day that defendant was being interviewed, other deputies responded to a call from the bank. Two of the tellers believed the robber may have returned when a customer, dressed like the robber, entered the bank and attempted to exchange some Canadian currency. The tellers detained him by delaying his transaction until the deputies arrived. However, after an investigation, the law enforcement authorities were satisfied that this customer was not the bank robber. He was not included in any of the subsequent identification procedures that are challenged in this appeal.
Two days later, on August 19, the detective assembled an array of six photographs, including the photograph he had taken of defendant and one of another suspect. The array was shown to two of the five eyewitnesses, bank tellers Mary Kamendat and Cindy Dortman. Both identified defendant Kurylczyk as the bank robber. As a result, defendant was arrested and arraigned.
Following the arraignment on August 20, 1988, as he was being led from the courthouse, defendant’s photograph was taken by a news reporter. This photograph, a close-up shot of defendant’s face, later appeared in color on the front page of the local newspaper.
On August 26, 1988, after publication of the color photograph in the newspaper, defendant participated in a corporeal lineup, at which he was represented by counsel. All six men in the lineup wore "jail greens” — standard issue pants for individuals being held in jail — and light blue short-sleeved shirts. The five witnesses from the bank were taken separately into the lineup room to view the men. Each witness identified defendant as the robber, and each provided in writing her reasons for making that identification.
Before trial, defendant moved to exclude the identification testimony of the eyewitnesses. A Wade hearing was conducted, at which defendant first argued that the photograph identification procedure was tainted. He claimed that the arrangement and size of the pictures caused his photograph to stand out from the others. Pointing to the publication in the newspaper of the bank’s surveillance photograph, defendant argued that the witnesses had relied on the published photograph, rather than on their own memories of the actual robbery. Finally, defendant contended that the photographic lineup was defective because he was not then represented by counsel.
Defendant next argued that the corporeal lineup was also tainted. As with the array of photographs, he claimed that he was singled out from the others by his clothing and appearance. In addition, he asserted that publication in the local newspaper of the surveillance photographs and the postarraignment photograph had rendered defective the identifications made by witnesses at the corporeal lineup.
The trial court denied the motion, finding that neither the photographic lineup nor the corporeal lineup was impermissibly suggestive; indeed, the trial judge stated that he was "astounded” at the similarity of the individual participants in both lineups and concluded that the pretrial identification process had not been improperly affected by the published photographs.
At trial, all five eyewitnesses testified regarding their pretrial identifications of defendant, and each also identified defendant in court as the person who robbed the bank. Defendant testified in his own defense and presented testimony by neighbors and business acquaintances in support of an alibi defense and his reputation for truthfulness. Defendant also presented expert testimony regarding the nature of eyewitness identifications and the likelihood of erroneous identification.
The jury convicted defendant of the bank robbery and felony-firearm charges. Subsequently, he pleaded guilty to a second felony habitual offender charge, and was sentenced to ten to forty years imprisonment and to a two-year consecutive term for the felony-firearm conviction. The Court of Appeals affirmed in an unpublished per curiam opinion. This Court then granted leave to appeal. 439 Mich 1002 (1992). __
II
Defendant presents two challenges to the photographic lineup that was conducted before his arrest. First, he contends that he was entitled to the assistance of counsel during the photographic lineup. Second, he argues that the photographic lineup was impermissibly suggestive in violation of his Fourteenth Amendment right of due process. We shall consider each of these challenges in turn.
A
The Sixth Amendment of the United States Constitution guarantees one who has been criminally accused the right "to have the Assistance of Counsel for his defence.” This right is not limited to the formal trial, but extends to all " 'critical’ stages” of the criminal proceeding. United States v Wade, 388 US 218, 224; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). For example, a person accused of a crime has the right to counsel at certain pretrial arraignments, Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932), or during custodial interrogations, Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Indeed, "the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Wade, 388 US 226.
In Wade, the Court referred to the postindictment corporeal lineup as a "confrontation compelled by the State between the accused and the victim or witnesses to a crime,” 388 US 228, and ruled that it is a critical stage of the prosecution at which the accused is as much entitled to the aid of counsel as at the trial itself. 388 US 237.
Six years later, the Court determined that "the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.” United States v Ash, 413 US 300, 321; 93 S Ct 2568; 37 L Ed 2d 619 (1973). Noting that the accused is not present at such a photographic display, the Court compared this procedure to "the prosecutor’s other interviews with the victim or other witnesses before trial.” 413 US 325. The Court was "not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.” 413 US 321.
Although the United States Supreme Court decisions do not require counsel at a photographic lineup, defendant argues that decisions of this Court do impose such a requirement. He maintains that Michigan courts have been more suspicious of photographic identifications than the federal courts, and have therefore imposed greater safeguards regarding their use.
Defendant relies primarily on our decision in People v Franklin Anderson, 389 Mich 155; 205 NW2d 461 (1973). There, this Court extensively reviewed numerous cases from other jurisdictions, as well as the psychological literature regarding photographic identifications and concluded that
there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses. [389 Mich 180.]
Because of the Court’s distrust of photographic identification procedures, two rules were established regarding their use:
1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody.
2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right to counsel as much as he would for corporeal identification procedures. [389 Mich 186-187. Emphasis in original.]
As clearly indicated, these rules are triggered when a defendant is in custody. In this case, defendant was not in custody; however, he argues that the requirement of counsel applies to the photographic lineup conducted before his arrest. He asserts that subsequent decisions of this Court and the Court of Appeals have extended the Franklin Anderson counsel requirement to a defendant who is the focus of a police investigation, regardless of whether he is in custody.
Various Court of Appeals decisions have held that counsel is required at a photographic lineup when the suspect is the focus of a police investigation. See, e.g., People v DeMeyers, 183 Mich App 286; 454 NW2d 202 (1990); People v Johnson (On Remand), 180 Mich App 423; 447 NW2d 800 (1989); People v McFadden, 159 Mich App 796; 407 NW2d 78 (1987). These decisions stem from an earlier Court of Appeals decision, People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972). In Cotton, the Court of Appeals considered a challenge to a pretrial photographic identification on the basis that the defendant was not represented by counsel. Relying on prior federal and state cases, the Court held that an accused being held in custody is entitled to counsel at any photographic identification proceeding. 38 Mich App 768. However, the Court was careful to note that this right normally was limited "to situations where the accused is in custody at the time.” Id.
Despite its conclusion that the counsel requirement usually was limited to in-custody lineups, the Court refused to "exclude the possibility that under unusual circumstances a suspect may have a right to counsel during a pretrial photographic identification though at the time he is not in custody.” Id. at 769. It concluded that such "unusual circumstances” were presented in the case before it: Although the defendant was not in custody at the time of the challenged lineup, he previously had been arrested and had been taken into custody. Further, two lineups had been conducted while hé was in custody, and he had been given the advice of counsel during those lineups. Finally, his car had been impounded for inspection by investigators. Under those circumstances, the Court determined that the police could not strip the defendant of his right to counsel by releasing him from custody just before the photographic display:
Turning to the photographic display in the present case, we are of the opinion that this was no longer an in-the-field identification. Its purpose was to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander. [Id. at 769-770.]
The focus test articulated in Cotton has never been applied by this Court to a precustodial, investigatory photographic identification. In a nonbinding opinion signed by only two justices, People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), the focus test from Cotton was adopted; however, in that case, the defendant already had been arrested, bound over for trial, and placed in custody before the contested lineup. In contrast, defendant Kurylczyk was not taken into custody before the photographic array. Although, clearly, he was a prime suspect, he was not the only suspect. Moreover, at that point no one had made a positive identification of defendant as the robber.
Defendant Kurylczyk’s situation more closely resembles the situation of the defendant in People v Lee, 391 Mich 618; 218 NW2d 655 (1974). There, we considered the necessity of counsel at a precustodial photographic lineup conducted as part of an ongoing investigation. The defendant was selected as the robber from an eight-photograph display shown to an eyewitness several days after the robbery. Police suspected that Lee was the robber because the clothing he was wearing in a police photograph matched the clothing reported to have been worn by the robber. On appeal, Lee argued that the Franklin Anderson requirement of counsel at a photographic lineup attached at the moment that he became the focus of the police investigation. We disagreed. In a unanimous decision, we refused to apply the requirement of counsel to the "pre-custody, pre-questioning, mere suspicion phase that was evidenced here.” 391 Mich 625. We reiterated that "[i]t is the fact of custody that requires implementation of the Franklin Anderson rule . . . .” Id. citing People v James Anderson, 391 Mich 419, 422; 216 NW2d 780 (1974). Because Lee had not been detained by the police, we concluded that it simply was "not feasible to require appointment of counsel . . . .” 391 Mich 625.
The facts of Lee are similar to the facts in this case. On the basis of various sources of information, defendant Kurylczyk, like defendant Lee, was a primary suspect in a police investigation of a robbery. As in Lee, defendant Kurylczyk had not previously been arrested, had not yet been identified by any witness as the robber, and was not the only suspect whom the police were investigating. Although the police had more inculpatory evidence against Kurylczyk at the time of his photographic array than the police in Lee had against their suspect, the detectives in this case had not narrowed their investigation only to Kurylczyk. In the photographic array shown to the witnesses, the photograph of another suspect was included in addition to the photograph of defendant Kurylczyk. Moreover, on the very day that defendant was being interviewed, police were called back to the bank to investigate another potential suspect.
Under these circumstances, the appointment of counsel is neither necessary nor feasible. At the early stage of an investigation of an unsolved crime, investigators cannot predict whether a witness will recognize a particular suspect as the perpetrator of that crime. Thus, it is impossible to know whether a photographic array will help to "build a case against the defendant” or will "extinguish a case against an innocent bystander.” Cotton, supra, 38 Mich App 769-770. Often, the distinction between those two courses of action is apparent only after an eyewitness has made, or failed to make, an identification. For this reason, we agree with the unanimous decision in Lee that counsel is not required at precustodial, investigatory photographic lineups like the one that was used in this case:
Defense counsel’s argument that the right to counsel attaches once "an investigation has focused” on a particular suspect is an inaccurate one, insofar as it is supposed to refer to "precustody” investigations. [391 Mich 625.]
In the case of photographic identifications, the right of counsel attaches with custody.
B
Defendant next argues that the photographic array shown to the witnesses was unduly suggestive violating his right of due process under the Fourteenth Amendment. Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967); Franklin Anderson, supra at 169; Wade, supra, 388 US 228. In order to sustain a due process challenge, a defendant must show that the pretrial identification procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification. Neil v Big gers, 409 US 188, 196; 93 S Ct 375; 34 L Ed 2d 401 (1972); see also Lee, supra, 391 Mich 626. If the trial court finds that the pretrial procedure was impermissibly suggestive, testimony concerning that identification is inadmissible at trial. However, in-court identification by the same witness still may be allowed if an independent basis for in-court identification can be established that is untainted by the suggestive pretrial procedure. Franklin Anderson, supra, 389 Mich 168-169.
On review, the trial court’s decision to admit identification evidence will not be reversed unless it is clearly erroneous. Id. at 169; People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. at 449.
Defendant Kurylczyk argues that the pretrial photographic array used to identify him was impermissibly suggestive because various characteristics of his photograph caused him to be singled out from the other men. He argues that he is the only man in the photographic array who was dressed in clothing that matches the clothing reported to have been worn by the robber. Particularly obvious in defendant’s photograph is a chain attached to his belt and extending to a wallet in the rear pocket of his jeans. None of the others in the photographic lineup wore a trucker’s wallet. Moreover, this wallet was plainly visible in the bank’s surveillance photographs that were published in the local paper. In addition, defendant complains that his photograph was taken from a closer distance, so that his image appears larger than the others, and the background appears to be a different color. Finally, defendant points out that three of the men in the array have mustaches; defendant does not have a mustache, and none of the witnesses described the robber as having a mustache. According to defendant, these features created a substantial likelihood of misidentification precluding the admission of any testimony regarding the photographic array. We disagree.
"Generally, the photo spread is not suggestive as long as it contains some photographs that are fairly representative of the defendant’s physical features and thus sufficient to reasonably test the identification.” Sobel, Eyewitness Identification, § 5.3(a), pp 5-9 to 5-10. Thus, differences in the composition of photographs, in the physical characteristics of the individuals photographed, or in the clothing worn by a defendant and the others pictured in a photographic lineup have been found not to render a lineup impermissibly suggestive.
However, a court will find that a witness’ identification of a defendant was the product of an improper photographic identification if differences in the photographs led to a substantial likelihood of misidentification. In such cases, witnesses typically select a defendant on the basis of some external characteristic, rather than on the basis of the defendant’s looks. For example, in Commonwealth v Thornley, 406 Mass 96; 546 NE2d 350 (1989), the defendant was the only man of thirteen men depicted in a photographic array who was wearing glasses. The court found that the array was impermissibly suggestive because the witnesses admitted selecting the photograph on the basis of the glasses.
Similarly, in Henry v State, 519 So 2d 84 (Fla App, 1988), the witness testified that a patch on the defendant’s clothing was a factor in his selection of the defendant from the photographic array. The patch, combined with other factors, "created an unnecessarily suggestive identification procedure and so taints the lineup ... as to give rise to a substantial likelihood of irreparable misidentification.” 519 So 2d 86. See also State v Davis, 176 W Va 454; 345 SE2d 549 (1986).
In analyzing defendant’s claim, we do not question his contention that his photograph stood out from the others in a suggestive fashion. It is obvious from examining the photographs that defendant’s photograph was distinct, particularly because he is wearing a trucker’s wallet in the photograph. However, a suggestive lineup is not necessarily a constitutionally defective one. Rather, a suggestive lineup is improper only if under the totality of the circumstances there is a substantial likelihood of misidentification. Lee, supra at 626. The relevant inquiry, therefore, is not whether the lineup photograph was suggestive, but whether it was unduly suggestive in light of all of the circumstances surrounding the identification.
When examining the totality of the circumstances, courts look at a variety of factors to determine the likelihood of misidentification. Some of the relevant factors were outlined in Neil v Biggers, supra at 199-200:
As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Analyzing the relevant factors in this case, we hold that the trial court did not clearly err when it found that there was no substantial likelihood of misidentification during this photographic array.
First, although neither Ms. Kamendat nor Ms. Dortman saw defendant before the day of the robbery, both had ample opportunity to view the robber during the offense. Mary Kamendat testified that she viewed the robber for a period of three to four minutes, from a distance of as little as one and one-half feet. She did not lose sight of the robber, saw both a front and a side view of him, and watched him as he walked out of the bank. Cindy Dortman occupied the teller station next to Mary Kamendat. She testified at the Wade hearing that she also had a good look at the robber and that she watched him as he left the building.
Second, both witnesses provided a detailed description of the robber to the police shortly after the crime was committed. Ms. Kamendat described the robber as approximately forty-five or forty-six years old, almost six feet tall, weighing about 210 pounds, with dust or some other substance on his face. She also described him as either wearing a wig or needing a haircut. Cindy Dortman noticed that the robber was wearing a light-colored shirt, a baseball cap, dark sunglasses, and had longer hair than normal for a man of his age. She also described him as wearing flared jeans, with a chain hanging out of his pocket and his shirt pulled over his pants. She noted that the robber had a "long, very distinguished” nose. These descriptions comport with the image of the robber as seen in the surveillance photographs, and with the image of defendant as he appears in the photographic array.
Third, both Kamendat and Dortman testified that they were certain that defendant was the robber.
Fourth, the photographic array was conducted within two weeks of the bank robbery. Courts have held that delays as long as eighteen months after a crime do not invalidate an eyewitness identifica tion. The relatively short span of time between the robbery and the lineup in this case does not reduce the reliability of the lineup identifications.
Finally, there is no evidence that the tellers were panicked or otherwise psychologically debilitated by the crime. Carolyn Schultz, branch manager of the bank, testified that the tellers were trained to react in this type of situation and that they did react calmly to the robbery:
They have a description sheet that they have to write down what they remember and they did not talk to one another before they did this. They wrote down anything they could remember about the suspect and remained very quite [sic: quiet] and very calm until the police got there.
One factor that tends to undermine the reliability of the photographic array identification is the misidentification several days after the robbery of a bank customer as the robber. As already noted, for a brief period, Dortman and Kamendat thought the robber had returned to the bank. However, the record indicates that, at most, their identification of the customer as the robber was tentative. Neither Kamendat nor Dortman ever positively identified this customer as the man who robbed the bank. Rather, Kamendat testified that she was caught off guard and overreacted when she saw a man who appeared to be the size of the robber, and who was dressed like the robber, with a chain on his belt that reached into a bag. However, after reviewing the incident in her mind later that day, she came to the conclusion that the customer was not the robber. At trial she testified that she never told investigators that he was the robber — only that she and the other tellers felt "he looked alike [sic: a lot] like him, it would be worth looking into.”
Dortman testified that she told a deputy that the customer was the same size as the robber and had other similarities to the robber, including the chain hanging out of his pocket. Her primary concern, however, was that this customer’s transaction involved the exchange of Canadian currency.
Where there are other indicia of reliability, an initial inability to identify the defendant or a tentative false identification of another person will not invalidate a witness’ identification of the defendant. See Carter, supra, 415 Mich 600; People v Pennington, 113 Mich App 688, 694; 318 NW2d 542 (1982); United States v Briggs, 700 F2d 408, 413 (CA 7, 1983), cert den 462 US 1110 (1983); Clements v State, 521 So 2d 1378 (Ala Crim App, 1988). In this case, the opportunities afforded these witnesses to view the perpetrator, the accuracy of their descriptions of the robber, and the confidence with which they identified defendant as the robber provided sufficient indicia of reliability to allow submission of the evidence to the jury.
It is also argued that the identification at the photographic lineup of defendant by the five eyewitnesses was improperly influenced by the publication in the local newspaper of the surveillance photographs. Generally, the use of such surveillance photographs to identify a subject is not impermissibly suggestive, "since such films provide a memory-refreshing device, showing 'the man who actually committed the robbery’ as opposed to the picture of 'some possible suspect in the police files.’ ” Sobel, supra, § 5.3(g), p 5-44. However, in this case, Kamendat did not remember seeing the chain attached to the trucker’s wallet during the robbery. She saw it for the first time in the surveillance photographs. Thus, the appearance of the surveillance photographs served not only to refresh her memory of the robbery, but to enhance it. More important, when Kamendat earlier misidentified a bank customer as the robber, her mistake was based primarily on the fact that the customer wore a trucker’s wallet. Likewise, Dortman also saw the surveillance photographs in which the robber’s trucker’s wallet was plainly visible.
Despite the potential suggestive influence of the surveillance photographs, as well as the suggestiveness of the defendant’s lineup photograph, we conclude that defendant has not demonstrated clear error by the trial court. Nothing in the record supports a conclusion that there was a substantial likelihood of misidentification at the photographic array as a result of any suggestive influences. For example, there is no testimony by either teller that her identification of defendant’s photograph was made on the basis of her examination of the surveillance photographs. In fact, each witness testified that the photographs had no effect on her ability to identify defendant as the robber.
Just as important, in contrast to the cases cited earlier, no testimony was elicited from the witnesses indicating that they chose defendant’s photograph because of the suggestive features of his photograph. See Commonwealth v Thornley and Henry v State, supra. Instead, the record contains the sworn testimony of two trained bank tellers who stated that they were certain that they recognized defendant as the man who robbed the bank. Surely this testimony, along with the other factors noted above, permitted the trial court to conclude that the tellers would have recognized defendant as the robber, regardless of the suggestive features of his photograph or the publication of the surveillance photographs. Therefore, the identification testimony of the tellers regarding the photographic array was properly admitted as evidence at trial. Because the photographic array was not impermissibly suggestive, it did not taint the subsequent in-court identifications by the tellers.
III
Defendant also argues that the corporeal lineup was impermissibly suggestive because he was singled out from the other participants by his appearance. As earlier noted, five eyewitnesses viewed the corporeal lineup — Mary Kamendat, Cindy Dortman, Shirley Smith, Gladys Caris, and Carolyn Schultz. Each identified defendant as the bank robber. The participants in this lineup wore similar attire — -jail greens and short-sleeved shirts. Defendant complains that he appeared more disheveled than the others because he had been wearing the same clothing for several days in jail and because he had not been allowed to shave while in jail. In addition, he challenges the lineup because three of the participants had mustaches, despite the fact that none of the witnesses described the bank robber as having a mustache. He also argues that it was improper that only three of the lineup participants (including defendant) had appeared in the photographic array. Finally, he argues that the lineup was tainted by the publication of the surveillance and postarraignment photographs in a local newspaper.
Like a photographic lineup, the suggestiveness of a corporeal lineup must be examined in light of the totality of the circumstances. Stovall, supra at 302. As a general rule, "physical differences between a suspect and other lineup participants do not, in and of themselves, constitute impermissible suggestiveness . . . .” People v Benson, 180 Mich App 433, 438; 447 NW2d 755 (1989), rev’d in part on other grounds 434 Mich 903 (1990). Differences among participants in a lineup
are significant only to the extent they are apparent to the witness and substantially distinguish defendant from the other participants in the lineup. ... It is then that there exists a substantial likelihood that the differences among line-up participants, rather than recognition of defendant, was the basis of the witness’ identification. [People v James, 184 Mich App 457, 466; 458 NW2d 911 (1990), vacated on other grounds 437 Mich 988; 469 NW2d 294 (1991).]
Thus, in People v Holmes, 132 Mich App 730, 746; 349 NW2d 230 (1984), where the defendant was the second tallest participant in the lineup and heavier than others, the lineup was not impermissibly suggestive because the defendant’s appearance was substantially similar to that of the other participants. In People v Horton, 98 Mich App 62, 67-68; 296 NW2d 184 (1980), the lineup was not impermissibly suggestive despite alleged age and height differences between the defendant and the other participants and despite the fact that the defendant was the only participant with a visibly scarred face. A lineup in which the defendant was the only participant with both a mustache and a goatee was found to be not impermissibly suggestive in People v Hughes, 24 Mich App 223; 180 NW2d 66 (1970).
Like the viewing of surveillance photographs, the publication of photographs of a defendant does not taint a subsequent lineup where the witness’ identification is not unduly influenced by the published photographs. See People v Barnett, 163 Mich App 331; 414 NW2d 378 (1987); People v Prast (On Rehearing), 114 Mich App 469; 319 NW2d 627 (1982).
Upon review of the record, we conclude that the trial court did not err when it found that testimony regarding the identifications made by Mary Kamendat, Cindy Dortman, Shirley Smith, and Gladys Caris was admissible. A photograph of the corporeal lineup shows six men of approximately the same age, height, and weight. None of the men stands out from the others in an impermissibly suggestive fashion. Moreover, according to their written notes at the lineup, none of these four witnesses chose defendant because she saw the surveillance or postarraignment photographs that were published in the newspaper or because of his disheveled appearance.
Mary Kamendat wrote that defendant was the "[s]ame size, height. Looks like the man from what I remember. Stands like him.” Cindy Dortman based her selection of defendant on other factors: ”[N]ose size appears large, pointed. Shape of face from side view, height about the same, about six foot. Stomach same size. I put beer belly type.” In describing her reasons for selecting defendant, Gladys Caris wrote: "[T]he hair length was the same, he’s barreled chested, height, his body build and his facial features . . . those were the items that I felt were the same as the bank robber.” Shirley Smith wrote that defendant "looked like the same man, same weight, facial hair. Side profile looked very much like I remember from the day of the robbery. You know when you’ve seen someone before. None of the others were even close. With the hat and sunglasses on he looked like an exact match.”
Nothing in the record demonstrates a clear error by the trial court when it concluded that the corporeal lineup was not impermissibly suggestive to these four witnesses. Thus, their testimony regarding the corporeal lineup was properly admitted.
IV
The identification testimony of branch manager Schultz requires a separate analysis. Defendant argues, relying on People v Prast, supra, that her lineup and in-court identifications were improperly admitted because they were premised upon her viewing of the bank’s surveillance photographs, rather than upon her observation of the crime. The prosecution agrees on appeal that her testimony should have been disregarded for this reason.
On the other hand, the trial court found that the surveillance photographs were not "unduly influential” in her selection of the defendant. The record reveals that Schultz viewed prints from the surveillance film as well as the surveillance and postarraignment photographs published in the newspaper. Although she testified at the Wade hearing that her identification of defendant was not premised upon her viewing of the newspaper photographs, she stated that "because I did not get a clear view of him, I identified him from the picture my camera took.”
It is not clear from the record whether the surveillance photographs were shown to Mrs. Schultz by law enforcement personnel. Although government conduct in the display of such photographs may be a factor in determining whether due process protection has been violated, see United States v Stubblefield, 621 F2d 980, 983 (CA 9, 1980); Commonwealth v Otsuki, 411 Mass 218, 235; 581 NE2d 999 (1991), we do not explore that issue because we determine that the error, if any, with respect to the identification of defendant by Schultz was harmless beyond a reasonable doubt.
MCR 2.613(A) provides that an error in the admission of evidence will not be grounds for setting aside a verdict "unless refusal to take this action appears to the court inconsistent with substantial justice.” See also MCL 769.26; MSA 28.1096. Accordingly, when testimony is erroneously admitted, we must determine the probable effect of that testimony on the " 'minds of an average jury.’ ” People v Banks, 438 Mich 408, 430; 475 NW2d 769 (1991), quoting Schneble v Florida, 405 US 427, 432; 92 S Ct 1056; 31 L Ed 2d 340 (1972). Reversal is required if the minds of an average jury would have found the prosecution’s case " 'significantly less persuasive’ ” without the erroneously admitted testimony. Banks, 438 Mich 430. However, if it can be shown beyond a reasonable doubt that the testimony did not affect the jury’s verdict, then the erroneous admission of the testimony is considered to be harmless. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); People v Watkins, 438 Mich 627, 667; 475 NW2d 727 (1991); Franklin Anderson, 389 Mich 169.
Our review of the record in this case demonstrates that the persuasiveness of the prosecutor’s case was unaffected by Schultz’ testimony. The jury heard the testimony of four other eyewitnesses who identified defendant as the robber both before trial and in court. Carolyn Schultz was the least important witness for the prosecution’s case. She observed the robber only from a distance, and only for a few moments. At most, her identification testimony was cumulative of more compelling eyewitness testimony.
More important, any defects in . the eyewitness identifications were brought out by defendant’s counsel. He vigorously cross-examined the witnesses and attacked their credibility. In addition, he presented the testimony of Harvey Schulmann, Ph.D., a psychologist who specializes in human memory, attention, and perception, to discredit the reliability of eyewitness identifications. Dr. Schulmann claimed that between twenty and fifty percent of all eyewitness identifications are incorrect, and that a number of factors, such as the passage of time, poor viewing conditions, and age of the witness, may increase the error rate. He also testified that the confidence of an eyewitness bears no relationship to the accuracy of an identification. In light of the jury’s decision to convict despite the vigorous defense presented by defendant, we conclude that the exclusion of identification testimony of relative unimportance would have had no effect on the jury’s verdict.
Our conclusion of harmless error is strongly supported by evidence presented that did not relaté to identification. For example, defendant offered the testimony of three alibi witnesses who stated that he was with them at the time of the robbery; however, the alibi was weakened by the admission that he originally lied to investigators concerning his whereabouts at the time of the robbery.
Similarly, defendant’s testimony regarding his car was suspect. Evidence was presented that defendant owned a car virtually identical to the car described by the eyewitnesses as the robber’s car. Defendant admitted that he stopped driving his car shortly after the robbery. He claimed that the car was malfunctioning, but evidence at trial showed that defendant’s car had no mechanical problems. In addition, evidence was presented that the license plate on defendant’s car was on a hinge which allowed the plate to be lifted up when filling the gas tank. Defendant’s license plate would stick in this position, just as the robber’s license plate was stuck in this position during the robbery.
Finally, the jury was allowed to examine various pieces of physical evidence — the bank’s surveillance photographs, the photograph of defendant that appeared in the photographic array, and the defendant’s clothing, which the state alleged he wore during the robbery.
This untainted evidence is sufficient to support a finding beyond a reasonable doubt that the jury’s verdict was not affected by admission of the identification testimony of Carolyn Schultz. The prosecutor’s case would have been equally persuasive with or without this testimony. For this reason, any error was harmless.
V
In conclusion, we hold that the trial court did not err in denying defendant’s motion to exclude evidence of the photographic and corporeal lineup identifications. We also hold that any error in the identification testimony of Carolyn Schultz was harmless beyond a reasonable doubt. The judgment of the Court of Appeals is affirmed.
Mallett, J., concurred with Griffin, J.
MCL 750.531; MSA 28.799.
MCL 750.227b; MSA 28.424(2).
US Const, Am VI; Const 1963, art 1, § 20.
US Const, Am XIV; Const 1963, art 1, § 17.
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). The hearing is incorrectly identified as a Walker hearing at several points in the record of this case. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). See People v Carter, 415 Mich 558, 596; 330 NW2d 314 (1982).
Defendant had been convicted of breaking and entering when he was nineteen.
The grant order provided that "the delayed application for leave to appeal is considered, and it is granted, limited to the issue of whether pretrial identification procedures deprived the defendant of a fair trial.”
Because defendant was not in custody, the first Franklin Anderson rule does not apply. That rule prohibits the use of photographic lineups only when a suspect is in custody or when he can be compelled by the state to appear at a corporeal lineup. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). While it is arguable that the police could have compelled defendant’s participation in a corporeal lineup by arresting him, defendant does not advance such an argument. In fact, defendant concedes that there would be numerous problems with a rule requiring police officers to arrest a suspect as soon as probable cause is established simply because they wanted to obtain some sort of identification. See People v Wilson, 95 Mich App 93; 290 NW2d 89 (1980). We agree with the Court of Appeals in People v Cotton, 38 Mich App 763, 768-769; 197 NW2d 90 (1972), where it said:
Initial identification by photograph has been widely and effectively used in law enforcement. The display of photographs has proven to be a valuable tool in apprehending offenders while at the same time "sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968). Properly conducted precustody photographic identifications are both necessary and desirable and should not be discouraged.
A majority of the justices participating in a decision must agree to the reasoning in order for it to become binding precedent. Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976).
See, e.g., People v Dean, 103 Mich App 1; 302 NW2d 317 (1981) (the panel refused to find a photographic identification impermissibly suggestive simply because the defendant’s photograph was composed vertically while the five other photographs were composed horizontally); People v Wilson (On Rehearing), 96 Mich App 792, 799; 293 NW2d 710 (1980) (photographic flaw over the defendant’s forehead was not suggestive, in light of the fact that "[a]U six photographs show evidence of having been handled a great deal”); People v Thornton, 62 Mich App 763, 768; 233 NW2d 864 (1975) (the photographic display was not suggestive even though six photographs were "full-body length” while the defendant’s was a "head and shoulders” shot). See, generally, Sobel, Eyewitness Identification, § 5.3(a), pp 5-16 to 5-18.
See, e.g., People v Powell, 97 Mich App 287; 294 NW2d 262 (1980) (the fact that only three of the six photographs depicted a man resembling the description of the five foot, nine inch tall, 269 pound defendant did not render the photographic array impermissibly suggestive); People v Richmond, 84 Mich App 178, 181; 269 NW2d 521 (1978) (the photographic display was not impermissibly suggestive, even though the photographs depicted persons with different complexions and facial hair and the pictures were not all the same size); Futch v State, 192 Ga App 345; 385 SE2d 18 (1989) (only two of the six photographs depicted mustaches, even though the witness described the robber as having a mustache); State v Alvarez, 145 Ariz 370; 701 P2d 1178 (1985) (the defendant was the only individual with facial moles); Williams v State, 465 NE2d 1102 (Ind, 1984) (the defendant was the only individual with a visibly scarred face); State v Ivy, 558 A2d 209 (RI, 1989) (the inclusion of four men with facial hair did not impermissibly suggest the choice of a clean-shaven defendant).
See, e.g., People v Hampton, 52 Mich App 71, 77; 216 NW2d 441 (1974), reversed on other grounds 394 Mich 437; 231 NW2d 654 (1975) (the "[d]efendant’s reappearance in the photographic display, . . . and his lone hatted picture, when all others were hatless, were not so impermissibly suggestive that a very substantial likelihood of mistaken identification arose”); Kearney v Maryland, 567 F Supp 1248 (D Md, 1983) (the fact that the defendant was the only individual pictured in clothes that matched the description of those worn by the robber was not significant because the victim testified that she identified the defendant from his facial features); United States v Smith, 602 F2d 834 (CA 8, 1979) (the fact that the defendant was the only one of ten individuals pictured who was wearing bib overalls was not impermissibly suggestive where the failure of several witnesses to identify him contributed to the finding that the array was not unduly suggestive).
See, e.g., State v Fenn, 16 Conn App 318; 547 A2d 576 (1988) (a two-week delay did not render identification unreliable); State v Stewart, 389 So 2d 1321 (La, 1980) (a thirteen-month delay did not invalidate identification); People v Holmes, 141 Ill 2d 204; 152 Ill Dec 268; 565 NE2d 950 (1990) (an eighteen-month delay was relevant only to the weight to be given the identification).
This testimony is contradicted by that of Cindy Dortman, who testified that Mary Kamendat said, "that’s him, that’s the robber.”
For a description of a number of cases in which such differences did not render the lineup overly suggestive, see Sobel, supra, § 3.5(b), pp 3-46 to 3-50.
See also Mikel v Thieret, 887 F2d 733, 738-739 (CA 7, 1989) (the appearance of the defendant’s photograph in a newspaper five days before a witness selected him from a photographic array was not impermissibly suggestive, where the witness had an adequate opportunity to view his attacker and "the witness accurately described his attacker, took very little time to identify him from the photo array, and was asked to identify him only eleven days after the crime”); United States v Elliott, 915 F2d 1455, 1457 (CA 10, 1990) (a bank teller was allowed to identify a defendant, even though she had seen a fifteen-year-old photograph of him in the newspaper shortly before selecting him from a photographic array, where she stated that the photograph did not influence her selection and that the photograph "did not, in many ways, really resemble the person who had robbed the bank”). | [
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Mallett, J.
In this wrongful death action brought by Alice Schultz, personal representative of the estate of Duane Schultz, we granted leave to determine whether defendant Consumers Power Company owed a duty of care to Duane Schultz to reasonably inspect, repair, and install its electric conductors. The Court of Appeals concluded, as a matter of law, that defendant owed no such duty. We reverse.
I
On July 13, 1983, the decedent, Duane Schultz, was electrocuted while assisting a friend, Keith Osmond, paint his house in Merrill, Michigan. The fatal electric current emanated from defendant’s medium-voltage wire, installed in approximately 1937. The line contained two wires, one neutral and one uninsulated primary wire carrying a current of 4,800 volts. The primary wire was situated roughly fifteen feet, six inches from the house at a height of twenty-four feet.
The two men completed most of the painting from a moveable scaffold. However, to reach the peak of the house, they ascended a twenty-seven foot aluminum extension ladder. Once the peak was painted, Mr. Osmond began lowering the ladder. He testified that he pulled the ladder away from the house and, as it stood vertically, the decedent grabbed the ladder from the other side. At that instant, "there was a brilliant flash,” and Mr. Schultz was electrocuted. Mr. Osmond, who survived, denied that the ladder contacted the wire.
Plaintiff filed suit, alleging that Consumers Power negligently failed to inspect and repair the wire that fatally injured the decedent. Additionally, plaintiff claimed that Consumers Power negligently installed the wire dangerously close to the Osmond residence. She asserted that the frayed wire allowed the electric current to "arc” from the wire to the nearby ladder. A jury found defendant negligent and awarded plaintiff $750,000. The jury concluded that plaintiff’s decedent was not comparatively negligent.
The Court of Appeals reversed, ruling as a matter of law that plaintiff failed to establish that defendant owed the decedent a duty of care. The Court characterized the accident as a "fortuitous circumstance, not a contingency reasonably anticipated.” Unpublished opinion per curiam, decided May 22, 1991 (Docket No. 118323), p 2. We granted leave to appeal.
II
Generally, negligence is conduct involving an unreasonable risk of harm. The requisite elements of a negligence cause of action are that the defendant owed a legal duty to the plaintiff, that the defendant breached or violated the legal duty, that the plaintiff suffered damages, and that the breach was a proximate cause of the damages suffered. Roulo v Automobile Club of Michigan, 386 Mich 324; 192 NW2d 237 (1971). In the present case, we are only required to determine whether defendant owed a duty to plaintiff’s decedent. The duty element questions whether an actor has a legal obligation "to so govern his actions as not to unreasonably endanger the person or property of others.” Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). As Prosser & Keeton wrote:
In other words, "duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk. [Prosser & Keeton, Torts (5th ed), § 53, p 356.]
In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk. Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992). Most importantly, for a duty to arise there must exist a sufficient relationship between the plaintiff and the defendant. As this Court stated in Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975):
[T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law Usually refers to as a duty on the part of the actor.
Clearly, the relationship between the utility company and the decedent was sufficient to impose a duty under the circumstances. It is well established that those who undertake particular activities or enter into special relationships assume a distinctive duty to procure knowledge and experience regarding that activity, person, or thing. For example, a landlord must inspect a premises to keep it in a reasonably safe condition. Samson, supra; Lipsitz v Schechter, 377 Mich 685; 142 NW2d 1 (1966); 2 Restatement Torts, 2d, § 360, p 250. Physicians must keep reasonably abreast of current advances in their field. Koch v Gorrilla, 552 F2d 1170 (CA 6, 1977). Manufacturers must diligently inspect their products to discover lurking dangers. Livesley v Continental Motors Corp, 331 Mich 434; 49 NW2d 365 (1951); 2 Restatement Torts, 2d, comment, § 395, pp 326-332. Lastly, a carrier owes to its passengers the duty of discovering all detectable defects. Trent v Pontiac Transportation Co, Inc, 281 Mich 586; 275 NW 501 (1937).
Similarly, compelling reasons mandate that a company that maintains and employs energized power lines must exercise reasonable care to reduce potential hazards as far as practicable. First, electrical energy possesses inherently dangerous properties. Second, electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity. Lastly, although a reasonable person can be charged with the knowledge of certain fundamental facts and laws of nature that are part of the universal human experience, such as the dangerous properties of electricity, Koehler v Detroit Edison Co, 383 Mich 224, 231; 174 NW2d 827 (1970); Prosser & Keeton, supra, § 32, pp 182-184; 3 Harper, James & Gray, Torts (2d ed), § 16.5, pp 405-408, it is well settled that electricity possesses inherently dangerous properties requiring expertise in dealing with its phenomena. Therefore, pursuant to its duty, a power company has an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.
Another important variable in determining whether defendant owed a duty is foreseeability— "whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim . . . Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977). In Samson, supra, this Court further explained the foreseeability element:
Foreseeability . . . depends upon whether or not a reasonable man could anticipate that a given event might occur under certain conditions. But the mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. [Id. at 406.]
To paraphrase Samson, a reasonable person could certainly anticipate that a painter could be electrocuted if his aluminum ladder came close to, or touched, a pitted, corroded and frayed electric wire. Furthermore, a reasonable person could confidently conclude that this event would cause serious injury or death to the painter.
Those engaged in transmitting electricity are bound to anticipate ordinary use of the area surrounding the lines and to appropriately safeguard the attendant risks. The test to determine whether a duty was owed is not whether the company should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable activity done on the premises for business, work, or pleasure. Here, Consumers Power should have realized that homeowners generally maintain their homes. This may include washing windows, cleaning troughs, repairing the roof, cleaning gutters, and, certainly, painting. Considering the proximity of the uninsulated primary wire to the house (roughly fifteen horizontal feet and twenty-four vertical feet from the ground), it was foreseeable that someone making repairs could be injured by a dilapidated wire. In fact, Consumers Power’s alleged failure to conduct routine inspections of the wires, or conducting such inspections in a careless or deficient manner, made it reasonably foreseeable that the company’s failure to discover or repair the damaged wires could result in injury or death to persons using an aluminum extension ladder in proximity to the wire. Having found a sufficient relationship and a foreseeable risk of harm, it would be contrary to the rules and principles previously announced by this Court to hold that Consumers Power owed decedent no duty to properly inspect and maintain its wires so as to reasonably safeguard against injury or death.
Where service wires erected and maintained by an electric utility company carry a powerful electric current, so that persons coming into contact with or proximity to them are likely to suffer serious injury or death, the company must exercise reasonable care to protect the public from danger. The degree of care required is that used by prudent persons in the industry, under like conditions and proportionate to the dangers involved, to guard against reasonably foreseeable or anticipated contingencies. Laney v Consumers Power Co, 418 Mich 180, 186; 341 NW2d 106 (1983). Electric companies must exercise ordinary care to guarantee that equipment is kept in a reasonably safe condition. Although we do not follow a rule of absolute liability, the defendant’s duties to inspect and repair involve more than merely remedying defective conditions actually brought to its attention.
Our conclusion that utility companies must reasonably inspect and repair their electric lines complies with the decisions of foreign jurisdictions. Miner v Long Island Lighting Co, 40 NY2d 372; 353 NE2d 805 (1976), is representative of courts’ treatment of the issue. There, the plaintiff, while preparing to trim an oak tree, inadvertently contacted a 7,620-volt uninsulated electric wire owned and maintained by the defendant. A jury rendered verdicts in favor of the plaintiff. The Appellate Division reversed the judgment, and dismissed the complaint on the ground that the plaintiff failed to establish a breach of duty. In holding that the power company had an affirmative duty to exercise reasonable care in the operation and maintenance of its power lines, the New York Court of Appeals reversed, emphasizing a number of factors. First, the court looked at the proximity and accessibility of the power lines to the public. The court noted that "where high-voltage lines were strung between closely spaced private residences, the risk to be foreseen was of the highest order; thus, the corresponding duty devolving upon the power company must be considered equally great.” Id. at 379. Second, neither the condition nor the location of the wires had been inspected in over thirty years, "thereby leaving a lethal instrumentality in an area where it could, and of course did, cause enormous harm . . . .” Id. at 380. Accordingly, the New York Court of Appeals held that the Appellate Division erroneously dismissed the complaint.
III
Defendant further claims that it was not negligent because the location of the power lines exceeded the clearance requirements published in National Electric Safety Code (nesc) Table 234-4, which requires a three-foot horizontal clearance between power lines and adjacent buildings. It is uncontroverted that in the present case the placement of the wires exceeded the guidelines five-fold. Defendant argues that because the nesc guidelines delineate the appropriate standards for the design, maintenance, and operation of electric conductors, conformity with the standards proscribes negligence as a matter of law. While we agree with defendant that custom and industry practices are relevant to the issue of due care, they are not dispositive with respect to duty.
Compliance with the nesc or an industry-wide standard is not an absolute defense to a claim of negligence. While it may be evidence of due care, conformity with industry standards is not conclusive on the question of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances. Owens v Allis-Chalmers Corp, 414 Mich 413, 422-423; 326 NW2d 372 (1982); 2 Restatement Torts, 2d, § 295A, p 62. An argument on the basis of industry standards, therefore, goes to the question whether a defendant breached its duty of ordinary care, not whether a duty existed. If the plaintiff can convince a jury that a reasonably prudent company would have taken auxiliary measures beyond those required by industry standards, then the jury is clearly at liberty to find that the defendant breached its duty, regardless of the industry’s guidelines. As the Supreme Court of Oklahoma has explained:
"Although compliance with such safety requirement [sic] does not of itself establish that the defendant company was free from negligence inasmuch as such a regulation is a minimum requirement to conform with the dictates of reasonable care, apart from unusual conditions the regulation stands as a reasonable guide in measuring due care.”
Assuming that this is the standard, it is a minimum standard only and plaintiff must have the opportunity to show non-compliance or that unusual circumstances do exist requiring [a higher standard of care.] [Rotramel v Public Service Co, 546 P2d 1015, 1017-1018 (Okla, 1975), partially quoting Rudd v Public Service Co of Oklahoma, 126 F Supp 722 (ND Okla, 1954).]
Second, by its express language, the nesc guidelines set only minimum safety standards. The introduction to the nesc provides:
The purpose of these rules is the practical safeguarding of persons during the installation, operation, or maintenance of electric supply and communication lines and their associated equipment. They contain minimum provisions considered necessary for the safety of employees and the public. They are not intended as a design specification or an instruction manual. [Emphasis added.][ ]
Whether a company acted negligently, although it complied with industry standards or customs, is determined by the trier of fact under proper instructions by the court. Because it is not the province of this Court, we do not resolve the question whether defendant used reasonable care when it installed the wires roughly fifteen feet, six inches from the Osmond residence. The evidence presented at trial supports the jury’s conclusion that Consumers Power acted negligently in this case. We conclude, however, that a power company has a duty to reasonably install its power lines so as to safeguard the public from foreseeable injuries.
IV
Accordingly, we reverse the Court of Appeals decision and find that Consumers Power has a duty to reasonably protect members of the general public from any foreseeable danger from its power lines. We reinstate the trial court’s verdict and remand the case to the Court of Appeals to resolve the issues previously raised, but not addressed by this Court.
Levin, Brickley, and Boyle, JJ., concurred with Mallett, J.
Technically, according to defendant, the air space surrounding a transmission line serves as insulation because electricity cannot conduct through air. Nonetheless, the wires at issue were not protected by any tangible insulating cover.
There was considerable disagreement at trial about whether the ladder physically contacted the wire or whether the electric charge "arced.” Arcing is a scientifically proven and accepted phenomenon that allows an electric impulse to transmit through the air to another conductive object. It is often caused by pollution that breaks down air molecules. Plaintiff’s expert testified that under ideal circumstances, nobody knows how far electricity can arc. He further testified that in ionized and moist air, like that on the day of the accident, electricity arcs farther than in other conditions. Additionally, expert testimony was presented that the ladder could not have touched the line because there were no marks on the ladder indicative of such physical contact.
Plaintiff did not, however, contend that the arc was thrown between three and seven feet as the Court of Appeals suggests. Rather, the evidence simply showed that the base of the ladder was three to seven feet from the power line. The exact distance the top of the ladder was from the line is, of course, unknown. However, defendant’s expert testified that if a twenty-seven foot ladder moved six inches at the bottom, it would move 32.4 inches at the top. Nevertheless, this factual dispute was properly presented to the jury.
440 Mich 893 (1992).
See Buczkowski, supra, for a more thorough discussion of the variables examined when determining whether defendant owed a duty to the plaintiff.
See, generally, 3 Harper, James & Gray, Torts (2d ed), § 16.5, pp 397-415; Levi v Southwest Louisiana Electric Membership Cooperative, 542 So 2d 1081 (La, 1989).
Plaintiff’s expert testified that because of the wire’s age, it was "pitted, corroded and broken.”
A plaintiff need not establish that the mechanism of injury was foreseeable or anticipated in specific detail. It is only necessary that the evidence establishes that some injury to the plaintiff was foreseeable or to be anticipated. See Clumfoot v St Clair Tunnel Co, 221 Mich 113; 190 NW 759 (1922); LaPointe v Chevrette, 264 Mich 482; 250 NW 272 (1933).
Although we do not judge its reasonableness, in its answer to plaintiff’s interrogatories, defendant stated that it inspected the wires in March 1983, four months before Mr. Schultz’ fatal injury.
Without expressly so holding, this Court has implicitly ruled that utility companies owe a general duty to the public to maintain equipment in a reasonably safe condition. Most recently, in Laney v Consumers Power Co, 418 Mich 180; 341 NW2d 106 (1983), we held that the applicable standard of care of a public utility that maintains electric power lines is "one of reasonable care measured by what a reasonably careful person or company engaged in maintaining electric power lines would do under the same circumstances.” Id. at 186. In order to have addressed the appropriate standard of care, we first implicitly found that the utility company owed decedent a duty of care.
Long ago this Court held that utility companies owed the public "the duty of safeguarding by reasonable inspection and supervision its wire . . . and this duty was not met by a showing of suitable installation alone . . . .” Mueller v Citizens Telephone Co, 230 Mich 173, 177; 203 NW 129 (1925). The Court further explained that "[r]easonable supervision to maintain the integrity of the wire was required. The purpose of inspection is to discover need of repair and by repair prevent injury to persons and damage to property, and the duty is inclusive of wanton interference by human agency as well as wear and interference by the elements.” Id. at 178. See also Weissert v Escanaba, 298 Mich 443; 299 NW 139 (1941).
See, e.g., Black v Public Service Electric & Gas Co, 56 NJ 63; 265 A2d 129 (1970); Aguirre v Los Angeles, 46 Cal 2d 841; 299 P2d 862 (1956); Vieths v Ripley, 295 NW2d 659 (Minn, 1980); Rich Mountain Electric Cooperative, Inc v Revels, 311 Ark 1; 841 SW2d 151 (1992).
Although the Court of Appeals may have erroneously consolidated independent elements of a negligence cause of action, it nonetheless held that a power company has an affirmative duty to reasonably operate and maintain its power lines. By discussing Miner, we do not intend to eradicate the distinct elements of negligence. See Buczkowski, supra.
See also Michigan Public Service Comm, Order No. 1679.
The mpsc similarly states:
The rules state the minimum requirements for spacings, clearances, and strength of construction. More ample soacings and clearances or greater strength of construction may be provided if other requirements are not neglected in so doing. | [
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Cavanagh, C.J.
We are asked in this case to determine whether the assigned counsel compensation system currently utilized in the Wayne Circuit Court and the Detroit Recorder’s Court provides counsel assigned to represent indigent defendants "reasonable compensation” within the meaning of MCL 775.16; MSA 28.1253. We hold that it does not. Because we decide this issue in favor of the petitioners, we need not reach the remaining issues raised in this complaint for superintending control.
I
In June 1988, Chief Judges Dalton A. Roberson of the Detroit Recorder’s Court and Richard C. Kaufman of the Third Circuit Court promulgated the fee schedule currently in dispute. Unlike previous fee schedules which compensated counsel on the basis of representational "events” performed by assigned counsel, the new fee schedule operates to pay a "fixed-fee” for the entire representation through sentencing, regardless of events, on the basis of the maximum penalty imposable for the crime charged. This fee schedule became effective July 1, 1988, and remains in effect as of the date of this opinion. The petitioners filed a complaint for superintending control in this Court on May 5, 1989, challenging the reasonableness and constitutionality of the fixed-fee schedule. Specifically, the petitioners asked this Court to invalidate the fixed-fee schedule and to order the Third Circuit Court and the Detroit Recorder’s Court to adopt and implement an "event-based” fee schedule developed in 1981 by a committee headed by Recorder’s Court Judge Clarice Jobes adjusted for inflation.
Unable to resolve this case without the aid of a factual record, we appointed the Honorable Tyrone Gillespie as special master and directed him to conduct an evidentiary hearing and to propose findings of fact to this Court on the following topics:
(1) the various rates of reimbursement for appointed counsel in Michigan; (2) the amount of overhead and expenses typically incurred by attorneys who accept appointments to represent indigent criminal defendants; (3) the amount of in come which may typically be generated by acceptance of appointments; (4) the amount of attorney and staff time spent to generate amounts of income from appointments; (5) instances of pressures to under-represent indigent defendants; and (6) any other topics which any party or the special master thinks will help this Court resolve the issues presented in this case.
Thirty-two witnesses testified during twelve full days of hearings that began January 16, 1990, and ended February 16, 1990. Judge Gillespie issued proposed findings of fact in a 226-page report on April 3, 1991. In his report, Judge Gillespie noted that the assigned counsel compensation systems utilized in this state vary to some degree from circuit to circuit. The Third Circuit Court and Detroit Recorder’s Court were, however, the only courts to use a fixed-fee schedule that pays a flat fee to assigned counsel on the basis of the potential maximum sentence that a defendant may face, if convicted.
Judge Gillespie also noted a wide variation in the profitability of accepting indigent defense cases under the fixed-fee system. He cites two primary reasons for this variation: (1) the disparity in attorney overhead and expenses, and (2) case complexity. Of the two, Judge Gillespie found that perhaps the most determinative factor in the realization of income under the fixed-fee system is the complexity of the assigned case. In this regard, Judge Gillespie observed an "inverse relationship” between effort expended and fees paid under the fixed-fee system. Although noting that the system had the meritorious effect of speeding up the docket, Judge Gillespie found that the system tends to encourage assigned counsel to persuade their clients to plead guilty, stating:
The incentive, if a lawyer is not paid to spend more time with and for the client, is to put in as little time as possible for the pay allowed. Under the current system, a lawyer can earn $100 an hour for a guilty plea, whereas if he or she goes to trial the earnings may be $15 an hour or less. Essential motions are neglected.
In short, the system of reimbursement of assigned counsel as it now exists creates a conflict between the attorney’s need to be paid fully for his services and obtaining the full panoply of rights for the client. Only the very conscientious will do the latter against his or her own interests[ ] Judge Gillespie ultimately concluded that any benefits derived from the system did not outweigh the negative aspects of paying assigned counsel in such a manner. Accordingly, Judge Gillespie recommended that this Court find the fixed-fee method of compensating assigned counsel based on the seriousness of the crime to be unreasonable, unjust, and a disincentive to due process.
Having considered the record developed at the special hearing, along with the briefs and oral arguments of the parties, we now hold that the fixed-fee system currently utilized in the Third Circuit Court and the Detroit Recorder’s Court systematically fails to provide "reasonable compensation” within the meaning of MCL 775.16; MSA 28.1253. We decline, however, the invitation to direct the implementation of any specific system or method of compensating assigned counsel, electing instead to leave that determination to the sound discretion of the chief judges of the respective courts.
II
From 1967 to 1988, the Third Circuit Court and the Detroit Recorder’s Court utilized an "event-based” fee system to compensate counsel assigned to represent indigent criminal defendants. Under this system, assigned counsel was compensated on the basis of the type and number of representational tasks performed in providing ordinary legal services to indigent criminal defendants.
In an effort to reduce jail overcrowding, a "jail oversight committee,” comprised of various county officials, was formed to examine the Wayne County criminal justice system and to make recommendations, concerning how to reduce demand for jail beds. The committee found a direct correlation between jail bed demand and the length of the criminal docket. Given the volume of criminal cases in Wayne County, the committee concluded that a substantial savings in jail bed demand could be recognized by reducing the time between a defendant’s arrest and the ultimate disposition of the case. Believing that a large percentage of cases were being pleaded "unnecessarily” late in the criminal judicial process, often on the day of trial, and concerned that the event-based system provided an incentive for assigned counsel to prolong final disposition of cases to earn an enhanced fee, the chief judges sought to develop a fee system that would operate to provide a disincentive to "unnecessarily” delay guilty pleas._
George Gish, Court Administrator and Clerk of the Detroit Recorder’s Court, was assigned the task of devising a compensation system that would eliminate "unnecessary delay” and promote docket efficiency without reducing the overall level of compensation paid to assigned counsel. A statistical analysis revealed a direct correlation between the fees paid under the event-based fee system and the maximum sentence imposable for a particular crime under our recommended sentencing guidelines. In other words, the number of "events” performed in representing indigent defendants was found to be directly related to the maximum sentence that a defendant faced. Given this information, Mr. Gish grouped all assigned cases for the previous two years by potential maximum sentence and averaged the fees paid in each group of cases. The fixed-fee schedule therefore represents an average of actual fees paid under the event-based system, broken down by the maximum sentence imposable for any given crime. The fixed rates are:
Offense Category Fixed Fee
24 month maximum $ 475
36 month maximum 500
48 month maximum 525
60 month maximum 550
84 month maximum 575
120 month maximum 600
168 month maximum 625
180 month maximum 650
240 month maximum 675
Life 750
Second-degree Murder 1,000
First-degree Murder 1,400
Because the scheduled fees represent an average of the actual fees paid over a two-year period under the event-based fee system, compensation for indi vidual representational tasks such as jail visits, motions, and trial per diem are incorporated into the fixed fees. Assigned counsel is entitled to the full fee, regardless whether the case is dismissed at the preliminary examination, the defendant pleads guilty at the arraignment on the information, or the case is ultimately disposed of after a three-day jury trial.
The fixed-fee system was designed to promote docket efficiency, yet allow overall assigned counsel compensation to remain exactly the same as that paid under the event-based fee system that it replaced. The scheduled fees are regarded as best estimates that are presumed to reasonably compensate assigned counsel for their services. The fee system expressly permits assigned counsel to petition the chief judges of the respective courts for payment of extraordináry fees in cases requiring above-average effort.
Petitioning for extraordinary fees is not a particularly difficult procedure. Assigned counsel need only send a request for such fees on ordinary stationery and attach it to the payment voucher for the relevant case. However, "[a]ll petitions for extraordinary fees must include an analysis of all assigned cases for the previous one year.” Executive Chief Judge Kaufman described the reason for requiring this analysis as follows:
The reason for that provision is this; that when the Flat-Fee amount was set in the schedule, it was done based upon the historical average of what we had paid for those particular charges when we had a per event schedule. Since we adopted a Flat-Fee that was the average, if, in fact, those were reasonable amounts, assuming for a moment that under the per event schedule what we were paying were reasonable amounts, then that meant that what we would pay attorneys on the Flat-Fee Schedule would be too high or more than what they were getting under the per event schedule. The basic idea being, that if, in fact, you received twenty assignments under the Flat-Fee Schedule, just to give a hypothetical situation, that each case was dismissed after the exam, or you waive the exam and the case got dismissed after a half hour appearance at the [arraignment on the information], you could have no more than two or three hours invested in the case and get seven hundred and fifty dollars. Well, that’s a couple hundred dollars an hour. If, in fact, that was the situation for ten cases, it did not seem fair, to me, or to the joint executive of the court who adopted this joint administrative order, to say that you can get overpaid in these other cases, but when you get the one case that you’ve got to put some extra time in, you’re allowed extraordinary fees without any analysis of the total of your assignments.
This rule is not strictly enforced. Thus, the failure to include an analysis of fees earned in other cases during the year in which extraordinary fees are sought will not necessarily preclude recovery of extraordinary fees. The absence of such analysis, however, is often used to justify an award of extraordinary fees lower than that requested.
III
As stated in State v Rush, 46 NJ 399, 404; 217 A2d 441 (1966), "[w]e are here concerned with the burden of supplying the indigent with a free defense.” At common law, this burden was borne by members of the bar as part of the obligations assumed upon admission to practice law. Id. Indeed, this Court held in 1850 that appointed counsel had no right to compensation for representing indigent criminal defendants. Bacon v Wayne Co, 1 Mich 461 (1850). The accuracy and continued validity of this traditional view has not, however, gone unchallenged. Nevertheless, because assigned counsel in Michigan presently have a statutory right to reasonable compensation, we need not reconsider here whether there may be an independent common-law basis in this state for awarding such compensation absent a statute or court rule. See, e.g., anno: Right of attorney appointed by court for indigent accused to, and court’s power to award, compensation by public, in absence of statute or court rule, 21 ALR3d 819.
IV
In Michigan, assigned counsel have a statutory right to compensation for providing criminal defense services to the indigent. The controlling statute provides in pertinent part:
Upon proper showing [of indigency], the chief judge shall appoint or direct the magistrate to appoint an attorney to conduct the accused’s examination and to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed. [MCL 775.16; MSA 28.1253.]
The issue in this case is whether the present fixed-fee system operates to provide assigned counsel "reasonable compensation for the services performed” within the meaning of the statute. The petitioners advance two arguments in support of their position that it does not: A) the level of compensation is unreasonably low, and B) the fixed-fee system of compensation is unreasonable per se because it fails to differentiate between attorney effort and fees paid.
A
1
The respondents would have us interpret "reasonable compensation” as that "amount necessary to secure a sufficient number of able counsel to adequately represent the indigent accused.” The respondents assert that such an interpretation "is consistent with the legislative obligation to provide adequate representation” to indigent criminal defendants. We reject this definition of "reasonable compensation” because it erroneously assumes that the statutory purpose underlying assigned counsels’ right to reasonable compensation was to assure that indigent criminal defendants received effective assistance of counsel.
Appointed counsel had a statutory right to reasonable compensation for services provided to criminal indigent defendants long before indigent criminal defendants had a right, statutory or oth erwise, to appointed counsel. The original attorney compensation statute, 1857 PA 109, provided in pertinent part:
That an attorney appointed by a court to defend a person indicted for any offence on account of such person being unable to procure counsel, shall be entitled to receive from the county treasury . . . one of the following fees: For defending in a case of murder, twenty-five dollars; in case of other felonies, ten dollars; in case of misdemeanors, five dollars. [Emphasis added.]
Rather than granting indigent defendants the right to court-appointed counsel, the statute granted appointed counsel the right to receive compensation for providing criminal defense services to the indigent.
The Legislature amended the statute in 1893 to delete the fixed-fee provisions, providing instead that appointed counsel had the right to "reasonable compensation for the services performed,” not to exceed fifty dollars in any case. 1893 PA 96. Although the statute was amended two additional times, it continued to provide that if an attorney was appointed to represent an indigent criminal defendant, then that attorney was entitled to at least some compensation. People v Williams, 255 Mich 133; 195 NW 818 (1923); People v Harris, 266 Mich 317, 318; 253 NW 312 (1934). Indeed, it was not until the enactment of 1957 PA 256 that the statute was amended to provide in mandatory terms for the appointment of counsel for indigents facing criminal charges. By this time, however, appointed counsel had enjoyed the statutory right to "reasonable compensation for the services performed” in the defense of criminal indigent defendants, unlimited by any statutory maximum rate, for thirty years.
Our task, of course, is to ascertain and give effect to the intent of the Legislature. Storey v Meijer, Inc, 431 Mich 368, 376; 429 NW2d 169 (1988). Because appointed counsel’s statutory right to compensation existed before indigent criminal defendants had a right to appointed counsel, it is doubtful that the legislative purpose underlying the attorney compensation provision of MCL 775.16; MSA 28.1253 was a desire to assure that. an adequate number of able attorneys were available to effectuate the indigent defendant’s right to appointed counsel.
"In ascertaining the intent of the lawmakers, where the language of a statute is of doubtful meaning, we may examine the conditions and circumstances surrounding its enactment.” State Treasurer v Wilson, 423 Mich 138, 144; 377 NW2d 703 (1985). In this regard, we note that there is no indication that the original legislation, or any subsequent amendment of the statute, was motivated by a belief that the failure to provide compensation to appointed counsel made it either difficult for indigent criminal defendants to obtain legal representation or that indigent criminal defendants were receiving ineffective representation. Indeed, this Court has refused to find that attorneys would shirk their professional obligations to provide competent and diligent legal representation to any client, regardless of pay. In re Meizlish, 387 Mich 228, 240; 196 NW2d 129 (1972). The Legislature is presumed to know the law in effect at the time of its enactments. Malcolm v East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991). Thus, we must reject respondents’ contention that the legislative purpose underlying the statute’s attorney compensation provision was to fulfill the state’s obligation to provide adequate representation to indigent criminal defendants.
2
The petitioners would have us define "reasonable compensation” as the amount privately retained counsel would earn for providing similar services for members of the general public. We refuse to do so. When MCL 775.16; MSA 28.1253 was enacted, counsel was provided without costs to indigent criminal defendants by lawyers as part of their professional obligations assumed upon admission to practice law in this state. Our review of the statute’s legislative history íéads us to conclude that the impetus underlying the enactment and subsequent amendments of MCL 775.16; MSA 28.1253 was the Legislature’s desire to relieve members of the bar of at least some of their professional obligation to provide free legal services to the indigent.
Iowa gives appointed counsel the statutory right to compensation equal to the current market rate. The Iowa Legislature amended its attorney compensation statute to provide that court-appointed counsel were entitled to reasonable "compensation to be made on the basis of ordinary and customary charges for like services in the community . . . Iowa Code 815.7; Hulse v Van Wifvat, 306 NW2d 707, 711 (Iowa, 1981) (construing the statute as amended to equate "reasonable compensation” with "full compensation”). Although our Legislature easily could have provided a similar definition for "reasonable compensation,” it has not done so.
3
Representation of indigent criminal defendants in the Third Circuit Court and the Detroit Recorder’s Court is completely voluntary. Therefore, unlike the courts of other states that have considered an involuntarily appointed attorney’s right to compensation, we decline, at this time, to establish any specific definition or formula for determining or calculating "reasonable compensation.” In the proper exercise of its legislative authority, the Legislature has "directed the chief judge[s] of the circuit court to appoint an attorney to represent an indigent defendant’s defense, and directed the county to pay” whatever a chief judge "considers . . . reasonable compensation for the services performed.” Frederick v Presque Isle Co Circuit Judge, 439 Mich 1, 15; 476 NW2d 142 (1991). There are fifty-six circuits plus the Detroit Recorder’s Court in our state spread throughout eighty-three counties of varying financial means. Attorney population likewise varies from county to county. Indeed, there is a potential myriad of local considerations that will necessarily enter into the chief judge’s determination of "reasonable compensation.” Thus, what constitutes reasonable compensation may necessarily vary among circuits.
B
1
The petitioners also argue that the present fee system "is pér se unreasonable, in that there is no relationship between the amount of work per formed and the amount of fee to be paid to the attorney.” To determine whether "reasonable compensation” requires some relationship between services performed and the amount of compensation actually paid, we must again look to the statute. MCL 775.16; MSA 28.1253 provides in pertinent part:
The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed. [Emphasis added.]
As previously noted, the purpose of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting this statute. Storey, supra, p 376. The terms of the statute are clear and unambiguous. Where the statute is clear and unambiguous, the intent of the Legislature in enacting the statute is to be garnered from the language of the statute itself. Id.; Achtenberg v East Lansing, 421 Mich 765, 770; 364 NW2d 277 (1985) (stating that "[w]hen the language of a statute is clear, courts must apply it as written”).
Applying these principles, we find that in enacting MCL 775.16; MSA 28.1253, the Legislature clearly intended an individualized determination of reasonable compensation for only then is it assured that "the attorney” is being reasonably compensated "for the services performed.” Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992) (quoting Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 [1980]) ("'Every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible’ ”).
We do not mean to suggest that the statute requires the mechanical calculation of "reasonable compensation” in every case. Such a construction would be unreasonable given the number of indigent defense assignments in the larger counties of our state. Cf. Franges v General Motors Corp, 404 Mich 590, 612; 274 NW2d 392 (1979) ("statutes should be construed to prevent absurdity, hardship, injustice or prejudice to the public interest”). Nor do we interpret the statute to require any specific type of compensation system or that a fixed-fee system could never provide reasonable compensation within the meaning of the statute. We simply hold that, whatever the system or method of compensation utilized, the compensation actually paid must be reasonably related to the representational services that the individual attorneys actually perform.
Applying the statute as construed, we find that the present fee system systematically fails to provide assigned counsel reasonable compensation within the meaning of MCL 775.16; MSA 28.1253. As previously noted, the fixed-fee system was designed to pay the average fee actually earned under the former event-based fee system for legal services provided to indigent defendants facing a particular maximum sentence. Because the event-based fee system paid assigned counsel for representational tasks actually performed, attorneys whose clients elected to plead guilty early in the judicial process were generally entitled to less compensation than attorneys whose clients either elected to plead guilty later or elected to go to trial.
Averaging actual fees paid under the former system to arrive at a lump-sum payment, that is paid without regard to whether a case is pleaded guilty or goes to a lengthy trial, actually inverts the former relationship between representational tasks performed and fees paid. In other words, the fixed-fee system creates a situation in which attorneys whose clients plead guilty earlier in the criminal process are relatively overcompensated for their efforts when compared to the compensation provided to attorneys whose clients do not. In our view, neither group of attorneys are receiving "reasonable compensation” within the meaning of MCL 775.16; MSA 28.1253. Indeed, this inverse relationship between effort expended and fees paid is completely at odds with the statutory requirement to pay assigned counsel for the services they performed. The statute expressly requires the payment of "reasonable compensation for the services performed,” no more and no less.
2
Despite the inverted relationship between effort expended and fees paid, the respondents argue that compensation paid under the fixed-fee system is "directly related to the amount of work a lawyer is expected to perform given the degree of seriousness of the crime.” We disagree. A major premise underlying the respondents’ argument is that actual attorney assignments will allow overall compensation for individual assigned counsel to mirror the "average” paid under the event-based system. Stated differently, attorneys receiving multiple assignments are expected to receive an appropriate number of early disposition cases, where the fixed fee tends to overcompensate assigned counsel, to "balance” against cases ultimately disposed of later in the process, where the fixed fee tends to undercompensate assigned counsel, so that the total "average” individual assigned counsel compensation would remain virtually the same under either system.
If this indeed were the case, then we may have reached a different decision. The record, however, is completely devoid of evidence indicating the existence of attorney assignment procedures implemented to assure individual attorneys receive the requisite number and type of cases that would provide them with a realistic opportunity to "average” the fees that they would have earned had the fee system remained event-based. Absent such assignment control procedures, there is no assurance whatsoever that the fixed fees operate to reasonably compensate individual assigned counsel for the services they perform.
3
The respondents also argue that the ability of assigned counsel to petition for extraordinary fees provides a realistic mechanism for individual determinations of reasonable assigned counsel compensation. We do not agree. Not only has the procedure proven ineffective to assure that assigned counsel are not undercompensated by the fixed fees, it is also ineffective in assuring that assigned counsel are not overcompensated by the fixed fees, and thus receiving unreasonable compensation for their services.
The special master found, and the record is replete with testimony suggesting, that undercompensated attorneys are hesitant to petition for extraordinary fees, believing that such requests either would prove futile or perhaps even adversely affect their prospects of receiving future assignments. Perhaps even more troubling, however, is the lack of any mechanism designed to assure that assigned counsel are not being overcompensated under the present system. Unless assigned counsel files a petition for extraordinary fees, and includes in the petition an analysis of cases handled during the year, such overpayments go undetected.
Common sense dictates that only those attorneys who are underpaid will ever file a petition for extraordinary fees and bother providing the analysis of cases purportedly required under the administrative order. Overcompensated attorneys simply will either refuse to file petitions for extraordinary fees or file them but fail to provide the required supporting documentation.
V
For superintending control to lie, the petitioners must establish that the respondents have failed to perform a clear legal duty and the absence of an adequate legal remedy. MCR 3.302(B); Frederick, supra, pp 14-15.
MCL 775.16; MSA 28.1253 imposes a duty on the chief judges of both the Third Circuit Court and the Detroit Recorder’s Court to authorize the county treasurer to pay "reasonable compensation for the services performed.” Having found that the fixed-fee system currently utilized to establish the rate of assigned counsel compensation systematically fails to assure that individual attorneys are reasonably compensated for the services they perform, it necessarily follows that the chief judges have failed to perform a clear legal duty, which satisfies the first condition of the writ.
We further find that the extraordinary fee mechanism fails to provide an adequate legal remedy to cure the systematic unreasonableness of the current compensation system. Although under-compensated attorneys have the ability to petition the court for extraordinary fees and, if they desire, to appeal any adverse determination all the way to this Court, we find such a remedy inadequate. While the record shows that most of the relatively few applications currently submitted are granted, at least in part, we strongly suspect that such a trend would rapidly change if the number of applications required to assure that each and every attorney is provided reasonable compensation for time and effort were actually filed. Application denials would likely skyrocket, forcing attorneys to appeal. And even if attorneys were routinely granted relief on appeal, all they would have to look forward to is another appeal after the next assignment because the underlying problem would remain unchanged. Under such circumstances, the legal remedy is inadequate. Further, there is absolutely no procedure whatsoever that operates to remedy the situation where assigned counsel is unreasonably compensated because of overpayment.
VI
Given the failure to perform a clear legal duty and the absence of an adequate legal remedy, we find that the exercise of this Court’s extraordinary power of superintending control is justified in this case. Accordingly, we hereby direct the chief judges of the Third Circuit Court and the Detroit Recorder’s Court to discontinue compensating assigned counsel under the fixed-fee system, as it currently exists, for all indigent defense assignments made after December 31, 1993, and to develop for implementation on and after January 1, 1994 a payment system that reasonably compensates assigned counsel for services performed consistent with this opinion. Said plan shall be filed with this Court on or before December 1, 1993.
Levin, Brickley, Riley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.
Hereafter Third Circuit Court.
The other issues raised by the petitioners include: (1) whether the fixed-fee system results in lowering the quality of indigent representation to a level that is inadequate under the Sixth Amendment of the United States Constitution; (2) whether the fixed-fee system operates to deprive indigent defense counsel of equal protection and due process of law, contrary to the Fourteenth Amendment of the United States Constitution and Const 1963, art 1, § 2; and (3) whether the fixed-fee system operates to "take” the property of assigned counsel without just compensation and due process of law, contrary to the Fifth and Fourteenth Amendments of the United States Constitution and Const 1963, art 10, § 2. See Taylor v Auditor General, 360 Mich 146, 154; 103 NW2d 769 (1960) (stating that "few principles of judicial interpretation are more firmly grounded than this: a court does not grapple with a constitutional issue except as a last resort”).
In 1981, a complaint for superintending control was filed in this Court seeking an increase in fees paid under the fee schedule then existing in the Third Circuit Court and the Detroit Recorder’s Court. In response to this complaint, the chief judges formed a committee, headed by Recorder’s Court Judge Clarice Jobes, to study the fee system. After completing the study, Judge Jobes issued a report, recommending fee increases that roughly tripled the fees that were .being paid for certain key items, particularly trial per diem. The recommended fee schedule, which became known as the "Jobes Plan,” was to remain event-based.
After acknowledging the reasonableness of the compensation rates proposed by the Jobes’ committee, the chief judges voted to adopt the Jobes Plan without revision and scheduled it to become effective December 1, 1982. The plan was never instituted, however, because the chief judges succumbed to county budgetary concerns and refused to implement the plan. Instead, the chief judges formulated yet another fee schedule that operated to compensate assigned counsel at significantly lower rates.
Although Judge Gillespie found that “the average overhead rate [for attorneys] in the Detroit area varies from $35 to $45 an hour,” he also noted that there are a number of attorneys who are assigned criminal cases that have little, if any, overhead. Estimated to constitute approximately ten to fifteen percent of the criminal bar in Wayne County, these attorneys are referred to as "waivers and pleaders” who operate from pocket notes without secretaries or offices who live on guilty pleas.
The fees paid for expert witnesses such as psychologists, psychiatrists, medical experts, interpreters, investigators and other supplemental requirements are so low as to make their services unavailable without supplementation of funds by the attorney. Some costs, such as postage, copy and local travel, are never reimbursed.
In addition to the beneficial effect that the fixed-fee system has on the docket, Judge Gillespie also found that the fixed-fee compensation system had merit because: (1) it "shortens the time between arrest and disposition, thus alleviating some of the pressure for more jail space”; (2) "[i]f a client is pled guilty quickly, the compensation is very adequate as it represents payment for only three or four hours of attorney time”; (3) "[fjrivolous motions are reduced as there is no financial incentive to do work which merely takes time”; (4) "[alternative resolutions, such as work release and probation, are encouraged”; (5) "[djismissals of weak cases occur at an early stage”; (6) "[pjadding of hourly accounts is eliminated”; and (7) "[t]he system [itself] is administratively easier to operate.”
In addition to encouraging counsel to pressure clients to plead guilty and discouraging the filing of even serious motions, Judge Gillespie found that the fixed-fee system: (1) "discourages plea bargaining in that the prosecutor is aware that the defense attorney has no financial incentive to go to trial and will assent to a guilty plea to a higher charge”; (2) encourages appointing judges to assign cases on the basis of favoritism; and (3) "supports a group of substandard attorneys, estimated to be 10 to 15% of the criminal bar, to [sic] operate without offices, secretaries, files, from pocket notes and to make a living on guilty pleas.”
Judge Gillespie proposed three alternative remedies:
A. That a study be made of reasonable time involved to defend each of the crimes in the present schedule, thus establishing a norm similar to those used by garages in estimating repair work. If the fee request submitted falls within the norm, it would be automatically approved for the time expended at a reasonable rate of $60 to $70 per hour. Excesses would have to be justified.
B. Do as the plaintiff asks and install the Jobes Committee report with a reasonable escalator based on inflation since 1982.
C. Direct the court to devise an alternative plan within a reasonable time which would: (1) compensate attorneys fairly for time spent, and (2) put no pressure on defendants to plead guilty.
A separate fee was paid for pre-preliminary examination jail visits, preliminary examinations, at least two post-preliminary examination jail visits (three, if the defendant was charged with a "capital” offense), investigation and trial preparation, written motions filed and heard, calendar conferences, arraignments on the information, final conferences, Walker hearings, evidentiary hearings, pleas, and forensic hearings. Perhaps most importantly, the former event-based fee system provided compensation for each day of trial necessary to dispose of any particular case. A separate fee was also paid for counsel appearances in court for defendant sentencings.
An attorney who is assigned a case in which the defendant is charged with multiple crimes is entitled only to the fee corresponding to the maximum sentence imposable for the most severe crime charged. Further, if a defendant is already assigned to an attorney and an additional charge is filed against that defendant, assigned counsel is entitled only to a fifty percent fee for the second crime even if the first crime is pleaded and the second crime requires a three-day trial. Reduced rates are also paid where a capias is issued because of a defendant’s failure to appear, and in cases in which retained counsel replaces assigned counsel before final disposition of the case.
Reduced rates are, however, paid for dismissals caused by complainants’ failures to appear at preliminary examinations.
As mentioned above, the fixed fees are based on the average total vouchers submitted under the event-based system over the two years immediately preceding the implementation of the extant fee system. Thus, the fixed fees necessarily incorporate all trial per diem paid under the event-based system. A study revealed that the average criminal jury trial in Wayne County took 3.1 days. Despite the fact that the odds of getting a case requiring over a three-day jury trial is already incorporated and theoretically compensated in the system, it is the unwritten policy of the chief judge of the Detroit Recorder’s Court to award $300 per day for each trial day exceeding the three-day average. This is not the policy of the chief judge of the Third Circuit Court, however; there an attorney is forced to file an application for extraordinary fees.
Specifically, the respondents sought to design a system to induce those cases that were going to plead anyway, to plead earlier in the criminal process, preferably at the arraignment on the information. The respondents contend that the fixed-fee schedule greatly enhances the probability of settling cases by plea, because paying assigned counsel the same fee, regardless of disposition, provides an "incentive” to assigned counsel to look harder at cases earlier so that meaningful plea discussions can occur.
The petition for extraordinary fees is a procedural device that allows assigned counsel an opportunity to rebut the presumption of reasonable compensation with proof that payment of the scheduled fees fails to reasonably compensate for the services required in any particular case. Counsel is paid at a rate of $30 per hour. Entitlement to such fees is, however, completely discretionary with the chief judges and depends, at least in part, on an analysis of the amount of work required in other cases that a given attorney was assigned throughout the year.
While both courts permit assigned counsel to file petitions for extraordinary fees, the specific method of dealing with the petitions once filed varies, depending on whether the case is technically under the jurisdiction of the Third Circuit Court or the Detroit Recorder’s Court. For instance, petitions for extraordinary fees filed in Recorder’s Court are first considered by the judge who presided in the case, while petitions filed in the Third Circuit Court are decided exclusively by the chief judge without input from presiding judges.
Shapiro, The enigma of the lawyer’s duty to serve, 55 NYU L R 735 (1980); State ex rel Scott v Roper, 688 SW2d 757, 760-767 (Mo, 1985) (en banc).
See, e.g., Arnold v Kemp, 306 Ark 294, 302; 813 SW2d 770 (1991) (stating that “the practice of criminal law has changed, as have the times”), (After Remand), aff’d sub nom Arkansas v Independence Co, 312 Ark 472; 850 SW2d 842 (1993).
See, e.g., Jewell v Maynard, 383 SE2d 536 (W Va, 1989), Delisio v Alaska Superior Court, 740 P2d 437 (Alas, 1987), and State ex rel Stephan v Smith, 242 Kan 336; 747 P2d 816 (1987) (rejecting the traditional view that free indigent defense services is an enforceable obligation of the respective states’ bars).
MCL 775.16; MSA 28.1253.
While an accused had the statutory right "to be heard by counsel” as early as 1846, 1846 RS, ch 151, § 1, now MCL 763.1; MSA 28.854, that right was determined to be "only declaratory of the right [first] secured to an accused by” Const 1835, art 1, § 10, People v Williams, 225 Mich 133, 137; 195 NW 818 (1923), and retained virtually without change in every constitution thereafter, which provided that "[i]n every criminal prosecution, the accused shall have the right to . . . have the assistance of counsel for his defense.” See Const 1850, art 6, § 28, Const 1908, art 2, § 19, and Const 1963, art 1, § 20. In Williams, this Court interpreted the constitutional language as not securing an accused a right to the appointment of counsel. Specifically, this Court stated:
The State Constitution, art 2, § 19, secures to an accused the right "to have counsel for his defense.” This does not mean he shall have counsel at public expense. It is a guaranty of right to employ and have counsel; a right not always recognized in early English criminal cases. [Williams, supra, p 137.]
See also Betts v Brady, 316 US 455, 469; 62 S Ct 1252; 86 L Ed 1595 (1942), overruled by Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), citing People v Dudley, 173 Mich 389; 138 NW 1044 (1912); Williams, supra; People v Harris, 266 Mich 317; 253 NW 312 (1934); People v Crandell, 270 Mich 124; 258 NW 224 (1935), for the proposition that criminal indigent defendants had no right to appointed counsel in Michigan.
1893 PA 96 provided in pertinent part:
Whenever any person charged with having committed any felony or misdemeanor shall be unable to procure counsel and the presiding judge shall appoint some attorney to conduct the defense, the attorney so appointed shall be entitled to receive from the county treasurer . . . such an amount as the presiding judge shall in his discretion deem reasonable compensation for the services performed: Provided, That the compensation allowed in any one case shall not exceed the sum of fifty dollars. [Emphasis added.]
In 1911, the statute was amended to increase the maximum appointed counsel compensation rate, from fifty dollars to two hundred fifty dollars for murder cases and one hundred dollars in all other cases. 1911 PA 23. The statute was again amended in 1927 when the Legislature consolidated various criminal procedural statutes into the Code of Criminal Procedure. It was this amendment that removed any reference to statutory maximum rates and authorized judicial determination of "reasonable compensation for the services performed.” 1927 PA 175. Despite these amendments, however, the statute remained worded in a manner not suggesting that the legislation was enacted to grant a right to indigents for appointed counsel.
The statute as amended by 1957 PA 256 provided in pertinent part:
Whenever any person charged with having committed any felony or misdemeanor shall be unable to procure counsel . . . the presiding judge shall appoint some attorney to conduct the . . . defense and the attorney so appointed shall be entitled to receive from the county treasurer . . . such an amount as the presiding judge shall in his discretion deem reasonable compensation for the services performed.
See n 22,
In 1963, the United States Supreme Court decided Gideon, n 20 supra, which held the Sixth Amendment right to counsel applicable to the states via the Fourteenth Amendment Due Process Clause. Although MCL 775.16; MSA 28.1253 was twice amended after Gideon, 1963 PA 132; 1980 PA 506, the portion of the statute, concerning assigned counsel’s right to "reasonable compensation for the services performed,” remained, in all essential respects, unchanged.
While a chief judge certainly could elect to pay assigned counsel the current market rate for similar legal services, the refusal to pay such rates is not necessarily violative of MCL 775.Í6; MSA 28.1253.
See, e.g., Arnold, n 17 supra, p 305 (involuntarily appointed counsel was entitled to "just” compensation, considering "the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer”), (After Remand), aff’d sub nom Independence Co, supra, p 480 (interpreting "just” compensation as being neither "confiscatory [n]or unreasonable” and may be less than an "attorney would expect to receive from a paying client”); State v Lynch, 796 P2d 1150, 1161 (Okla, 1990) (involuntarily appointed counsel entitled to reasonable overhead and out-of-pocket expenses plus an hourly rate "tied to the salary range paid to assistant district attorneys and the district attorneys” within the state, depending "on the attorney’s qualifications”); White v Bd of Co Comm’rs, 537 So 2d 1376, 1379 (Fla, 1989) (involuntarily appointed counsel was entitled only to a statutorily set fee except in extraordinary and unusual cases where appointed counsel was entitled to "the local prevailing hourly rate for indigent cases”); Jewell, n 18 supra, pp 546-547 (involuntarily appointed counsel was entitled to "at least $45 per hour for out-of-court work and $65 per hour for in-court work”); Delisio, n 18 supra, p 443 (involuntarily appointed counsel was entitled to compensation equal to that obtainable for such services "by the average competent attorney operating on the open market”); State ex rel Stephan, n 18 supra, p 383 (involuntarily appointed counsel was entitled to compensation "at a rate which is not confiscatory, considering overhead and expenses”); Smith v State, 118 NH 764, 770; 394 A2d 834 (1978) (involuntarily appointed counsel was entitled to whatever compensation the trial court might fix, which should "neither unjustly enrich nor . . . unduly impoverish the court-appointed attorney”); State v Rush, 46 NJ 399, 413; 217 A2d 441 (1966) (involuntarily appointed counsel was entitled to "60% of the fee a client of ordinary means would pay an attorney of modest financial success”).
Although we find that county budgetary concerns are appropriate considerations in the determination of "reasonable compensation,” such considerations should seldom, if ever, be controlling. The counties have a duty to fund whatever the chief judge, in the exercise of sound discretion, deems appropriate.
If a fixed-fee system is to be utilized, however, it must not operate to overcompensate some at the expense of others.
Unlike those contract systems that are designed to assure assigned counsel a specific number of cases to provide a reasonable opportunity to "average” reasonable compensation for the services performed, the assignment system utilized in the Third Circuit Court and the Detroit Recorder’s Court provides no such assurance. The task of assigning cases is rotated on two-week intervals among the various judges. Typically, the only information concerning previous attorney assignments that is available to assigning judges are the actual assignments that they themselves have made. In other words, when assigning judges make assignments, they often do so without regard to the actual type and number of cases that any particular attorney has had from other judges throughout a given year.
Statistics concerning the number of extraordinary fee petitions filed in the Third Circuit Court during 1989, and the actual payments of such fees, tend to support this testimony. While there were over three thousand indigent criminal defense assignments made in the Third Circuit Court during 1989, there were only twenty-nine petitions for extraordinary fees, of which twenty-three were granted, at least in part, for a total dollar amount of extraordinary fees paid of $11,175. This is approximately 1.6 percent of the total indigent attorney fees paid for that year.
See part iv(b)(3).
Equitable relief is routinely granted to plaintiffs on the basis of inadequacy of legal remedy where they can show that "[t]he defendant acts in such a way that the plaintiff may be required to bring more than one suit to effectuate his legal remedy.” Dobbs, Remedies, § 2.5, p 57. | [
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Cavanagh, C.J.
This case involves the Freedom of Information Act (foia), the Administrative Procedures Act (apa), and the Department of Corrections Act (doca). We are asked to determine whether the foia applies to Department of Corrections disciplinary hearings. The foia covers any "contested case,” as defined by the apa. The hearing handbook’s definition of department disciplinary hearings falls within the apa definition of "contested case.” In its brief to this Court, the department states that it "does not contest that a prison disciplinary hearing meets the parameters” of the apa definition. The Court of Appeals held that because the apa, § 115, exempts department disciplinary hearings from the apa, chapters 4 and 8, the hearings are exempt from the apa’s definition of "contested case.” Therefore, the foia does not apply. We hold that the Freedom of Information Act does apply to Department of Corrections disciplinary hearings.
I
Pursuant to MCL 15.233(1); MSA 4.1801(3)(1), plaintiff, a Michigan prisoner, requested permission to inspect various final orders and decisions of the Department of Corrections hearings and records on which the decisions were made. Plaintiff instituted the present action after the department denied his request. The trial court granted defendant’s motion for summary disposition, holding that the foia publication requirement did not apply to department disciplinary hearings, and that only the affected prisoner could mandate a copy of the proceeding.
The Court of Appeals affirmed in a two to one decision, holding that the Legislature exempted disciplinary hearings from the publication requirement when it enacted MCL 24.315; MSA 3.560(215). We granted leave to appeal and now reverse.
II
A review of the statutes shows that the foia applies to department disciplinary hearings. Because the statutes do not conflict, and the language is plain and unambiguous, interpreting the statutes is unnecessary. Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957). See also Gilroy v General Motors Corp (After Remand), 438 Mich 330, 341; 475 NW2d 271 (1991).
A
We must first examine the foia provisions that require disclosure of records to the public. The foia, § ll(l)(a), requires state agencies to "publish and make available to the public all of the following: (a) Final orders or decisions in contested cases and the records on which they were made.” The foia does not define the term "contested case,” but defers to the term’s meaning as ascribed in the apa, chapters 1 through 7.
The apa, chapter 1, defines "[contested case” as "a proceeding, ... in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” The hearing handbook explains that the department must conduct all hearings that "may result in the loss by a prisoner of a right . . . .” The department admits and the Court of Appeals held that "a prison disciplinary case falls within the definition of a 'contested case.’ ” 189 Mich App 373, 376; 473 NW2d 722 (1991). We agree.
The apa, chapter 8, § 122, states that for purposes of chapter 8, a contested case "does not include a case that is settled or a case in which a consent agreement is entered into or a proceeding for establishing a rate or approving, disapproving, or withdrawing approval of a form.” Chapter 8, however, does not apply here. The foia only requires the court to apply the definition of "contested case” as used in the first seven chapters of the apa. Additionally, the apa, chapter 7, § 115, states that department disciplinary hearings are exempt from chapter 8 of the apa.
The remaining provisions of the apa do not redefine "contested case,” but merely defer to the chapter 1 definition. If the Legislature intended to define "contested case” for department disciplinary hearings differently from the express apa definition, then the Legislature could have adopted explicit language expressing that intent or amending MCL 15.241(6); MSA 4.1801(H)(6). See Gordon SelWay, Inc v Spence Bros, Inc, 438 Mich 488, 506; 475 NW2d 704 (1991).
B
The apa, chapter 7, § 115, also exempts department disciplinary hearings from the apa’s con tested case procedures, chapter 4. Although exempt from those procedures, department disciplinary hearings are not exempt from the definition of "contested case.” We believe the Legislature intended only to remove department disciplinary hearings from the apa’s procedural requirement for contested cases. This is evidenced by the fact that such hearings are not exempt from the remaining chapters of the apa. The Court of Appeals recognized that the hearings are subject to chapter 6 of the apa, which applies only to a "contested case:”
When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law. [MCL 24.301; MSA 3.560(201). Emphasis added.]
Since department disciplinary hearings are subject to chapter 6, it must be because they are "contested cases.”
The Court of Appeals believes "that the reason the Legislature did not simply define 'contested cases’ as not including prison disciplinary hearings was the fact that for the purposes of judicial review, the apa still applied. However, this is not true for disclosure requirements.” 189 Mich App 377. There is no evidence that would draw this Court to that conclusion. We will not hold that department disciplinary hearings meet the defini tion of a "contested case” for one provision, but not another, absent evidence that the Legislature intended that result. The House Legislative Analysis, HB 4105, June 19, 1979, does not suggest that removing department disciplinary hearings from the foia was even considered:
The manner in which these disciplinary hearings are conducted has been the subject of a great deal of controversy in recent years, and the issue of how best to structure the hearings has been highlighted by a recent Michigan Court of Appeals decision. In that decision, Lawrence v Michigan Department of Corrections [88 Mich App 167; 276 NW2d 554 (1979)], the court ruled that disciplinary hearings in Michigan correctional facilities fall within the definition of contested cases in the Administrative Procedures Act (a.p.a.), and must be conducted according to its provisions. These provisions include a number of rights which have not been part of the department’s disciplinary hearings policy, such as the right to counsel, and the right to cross-examine witnesses. Many people feel that some of the a.p.a. requirements are inappropriate to the prison disciplinary hearings process.
The Legislature refused to exempt department disciplinary hearings from the apa altogether because "the quality of prison disciplinary hearings could be improved by incorporating some of the a.p.a. due process provisions.” Id. By allowing department disciplinary hearings to remain subject to the definition of "contested case” for pur poses of the apa, the Legislature also intended to allow the hearings to remain subject to § 11 of the foia. It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws. Malcolm v East Detroit, 437 Mich 132, 138; 468 NW2d 479 (1991).
A recent amendment to the doca also provides evidence that the Legislature did not intend to exempt department disciplinary hearings from the foia. MCL 791.230; MSA 28.2300 specifically describes prison-related documents that are exempt from disclosure under the foia if requested by or on behalf of a prisoner. Exempt items include log books and daily reports of department employees, staffing charts and daily assignment sheets. Final orders or decisions of prison disciplinary hearings are not exempt under this section. If the Legislature intended to exempt final orders or decisions, then those items could certainly have been included in the list of exempted material.
C
The Court of Appeals also suggests that the "creation of the procedure to obtain information on prison misconduct hearings evidences the legislative intent that prison misconduct hearings are not 'contested cases’ for the purposes of the foia.” 189 Mich App 377. We disagree. The procedure to which the Court of Appeals referred is exclusively for the prisoner who was the subject of the hearing. The hearing handbook requires sending a copy of the decision to the subject of the hearing. It also requires the decision to be posted for the reporting officer to examine. The foia does not discuss send ing a copy to the subject of the hearing, but applies to the general public.
Together, the provisions ensure that the subject of the hearing automatically receives a copy and that the records are made available to the public, unless otherwise exempt from disclosure. The intent behind requiring publication to the public and requiring the subject of the hearing to receive a copy differ, but the distinction does not suggest an intent to exempt department disciplinary hearings from the foia.
III
Defendant requests prospective application of our decision because retrieving the requested documents would be an onerous task. We stated in Washtenaw Co v State Tax Comm, 422 Mich 346, 378-379; 373 NW2d 697 (1985), that a "considerable administrative burden” can justify limiting a holding to a prospective application.
Whether there is an onerous burden in this case cannot be determined until after the trial court decides whether the records are exempt by any provision within the foia. Only then can it be determined what course of action the department would be required to take and whether that action creates an onerous burden.
A
Section 11 of the foia compels the Department of Corrections to "publish and make available to the public” the final orders and decisions of disciplinary hearings. Section 11 explicitly defines the term publish:
Publications may be in pamphlet, looseleaf, or other appropriate form in printed, mimeographed, or other written matter.
"[M]ake available to the public” simply means that members of the public can obtain access to documents required to be published by following the procedures set forth in § 3. In short, § 11 describes what is to be published and the acceptable form of publication, while § 3 describes the rights and opportunities publication creates.
The foia is composed of eleven sections, each serving as a piece of the foia puzzle. Section 3 explains how a person may utilize his right to inspect the public record, but explicitly "does not require a public body to create a new public record, except as required in sections 5 and 11 . . . .” MCL 15.233(3); MSA 4.1801(3X3). Only these sec tions, and primarily § 11, require a state agency to create a public record. It follows from the structure of the statute that § 11, which offers no explanation about how inspection will take place, is essentially concerned with compelling agencies to create certain records. A contrary construction would render § 3 meaningless.
The Department of Corrections conceded in its brief that the requested final orders and decisions are in written form and are retained in prisoner files. The § 11 publication requirement permits records to be maintained in such written form, thus the agency has satisfied the publication requirement. Nonetheless, the agency still must allow the public access to the documents-pursuant to § 3. Therefore, on remand, the question should be whether the prisoner’s § 3 request is sufficiently descriptive to allow the Department of Corrections to find the desired public record in light of the extensive redaction the § 13 exemptions will doubtlessly require. If the request is not sufficiently descriptive, the prisoner’s request should be denied. MCL 15.235; MSA 4.1801(5).
IV
The Court of Appeals erred in holding that by removing Department of Corrections disciplinary hearings from certain chapters of the apa, the Legislature intended to alter the definition of the term "contested case.” Accordingly, we reverse the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.
Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.
MCL 15.231 et seq.; MSA 4.1801(1) et seq.
MCL 24.201 et seq.; MSA 3.560(101) et seq.
MCL 791.201 et seq.; MSA 28.2271 et seq.
"Hearing handbook” is the commonly used name for chapter iiia of the doca and it sets forth the department’s hearing procedures. MCL 791.251 et seq.; MSA 28.2320(51) et seq.
MCL 24.315; MSA 3.560(215), which provides:
Chapters 4 and 6 shall not apply to proceedings conducted under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws. Chapters 4 and 8 shall not apply to a hearing conducted by the department of corrections pursuant to chapter iiia of Act No. 232 of the Public Acts of 1953, being sections 791.251 to 791.255 of the Michigan Compiled Laws. Chapter 8 shall not apply to a contested case or other proceeding regarding the granting or renewing of an operator’s or chauffeur’s license by the secretary of state; the Michigan employment relations commission; worker’s disability compensation act under Act No. 317 of the Public Acts of 1969; or unemployment compensation under Act No. 1 of the Public Acts of the Extra Session of 1936, being sections 421.1 to 421.73 of the Michigan Compiled Laws; or to department of social services public assistance hearings under section 9 of Act No. 280 of the Public Acts of 1939, being section 400.9 of the Michigan Compiled Laws.
The trial judge based his decision on MCL 791.252(k); MSA 28.2320(52)(k).
189 Mich App 373; 473 NW2d 722 (1991).
If the statutes did conflict, it would be this "Court’s duty to read the statutes together to avoid rendering any provision meaningless.” Nelson v Transamerica Ins Services, 441 Mich 508, 513; 495 NW2d 370 (1992).
Although not raised in this Court, we note that MCL 15.233(1); MSA 4.1801(3X1) requires a "public body,” defined in MCL 15.232(b); MSA 4.1801(2)(b), to permit a person to "inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by section 13.” The department.is a public body under the foia. The trial court must determine whether the records are exempt under § 13, however. The trial court also must consider whether plaintiff submitted a request that "describes the public record sufficiently to enable the public body to find the public record . . . .” MCL 15.233(1); MSA 4.1801(3)(1).
MCL 15.241(l)(a); MSA 4.1801(H)(1)(a).
MCL 15.241(6); MSA 4.1801(H)(6) provides:
As used in this section, "state agency,” "contested cases,” and "rules” shall have the same meanings as ascribed to those terms in Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws.
MCL 24.203(3); MSA 3.560(103)(3).
MCL 791.251(2); MSA 28.2320(51X2).
MCL 24.322(1); MSA 3.560(222)(1).
Chapter 6, § 101, also makes an indirect reference to the separate disciplinary hearing procedures set forth in the hearing handbook, by stating that "[ejxhaustion of administrative remedies does not require the filing of a motion or application for rehearing or reconsideration unless the agency rules require the filing before judicial review is sought.” The hearing handbook does require a motion for resentencing before seeking judicial review.
The Lawrence Court also invited legislative action by emphasizing that its "ruling here is necessitated by the nature of our judicial function. We urge the Legislature, however, to consider the practical effect of the necessary application of the statute.” Id. at 174.
Furthermore, the Court of Appeals reasoning is not convincing in light of § 115’s explicit exemption of prison disciplinary hearings from chapters 4 and 8. There would.be no need for § 115 if the Legislature intended only chapter 6 of the apa to apply.
Some information contained in the final orders and decisions may need to be redacted if it pertains to exempt material. See MCL 15.244; MSA 4.1801(14).
The department has explained that the final orders and decisions from prison disciplinary hearings are not centrally filed. Instead, if the final determination of the hearing officer is that the prisoner is guilty of a disciplinary infraction, that record is placed in the prisoner’s individual file. If it is determined that the prisoner is not guilty of a disciplinary infraction, the hearing report is maintained by the presiding hearing investigator for two years. Because plaintiff requested numerous files, the burden of locating the files would be onerous.
We reject the Court of Appeals conclusion that § 3 and § 11 have distinct inspection requirements.
In contrast to § 3, [§ 11] does not require a specific oral or written request. Thus, unless made exempt by another provision of the act, the insurance bureau is required to make available for public consumption those documents submitted by Blue Cross in support of its contested rate adjustment petition. [Blue Cross & Blue Shield of Michigan v Ins Bureau, 104 Mich App 113, 127-128; 304 NW2d 499 (1981).]
The Court of Appeals holding is unsound and fails to appreciate both the structure of the foia and its explicit language.
Section 1, MCL 15.231; MSA 4.1801(1); §2, MCL 15.232; MSA 4.1801(2); §3, MCL 15.233; MSA 4.1801(3); §5, MCL 15.235; MSA 4.1801(5); § 6, MCL 15.236; MSA 4.1801(6); § 10, MCL 15.240; MSA 4.1801(10); § 11, MCL 15.241; MSA 4.1801(11); § 13, MCL 15.243; MSA 4.1801(13); § 13a, MCL 15.243a; MSA 4.1801(13a); § 14, MCL 15.244; MSA 4.1801(14).
After plaintiff commenced this action, originally entitled Walen v Boyd, Docket No. 86-55731-AW, David Desorcy moved to intervene, naming the Department of Corrections as the defendant. Mr. Desorcy sought actual publication of department disciplinary hearings and not merely the right to inspect the documents. Although Mr. Desorcy appealed his claim in the Court of Appeals, he did not appeal in this Court. Nonetheless, the department remains the defendant. Defendant does not challenge that decision, but does challenge the nature of plaintiff’s appeal. Plaintiff argues on appeal that the records should be disclosed pursuant to the publication requirement, MCL 15.241(1); MSA 4.1801(H)(1), but in his complaint he only argued he had the right to inspect the documents, MCL 15.233; MSA 4.1801(3). It was Mr. Desorcy who originally filed a complaint pursuant to § 11. In light of today’s ruling, the department’s challenge to the form of plaintiff’s appeal is irrelevant.
The dissents’ debate regarding the definition of publish is not helpful in this case because the foia defines publish for us. Furthermore, the dissent fails to realize that its broad dictionary definition of publish renders the phrase “make available to the public” unnecessary, because the dictionary definition of publish encompasses being available to the public.
The trial court must determine whether the records requested are otherwise exempt from disclosure. For example, the records may be exempt from disclosure for failure to comply with the foia requirements for submitting a request. The records also might be exempt under § 13 for one or more reasons listed, such as:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
(c) A public record which if disclosed would prejudice a public body’s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
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] |
Boyle, J.
The case before us concerns a challenge to the use of sobriety checkpoints by the Michigan State Police. The United States Supreme Court held that the checkpoint scheme does not constitute a violation of the Fourth Amendment of the United States Constitution. Michigan Dep’t of State Police v Sitz, 496 US 444; 110 S Ct 2481; 110 L Ed 2d 412 (1990). On remand from that Court, a two-judge majority of the Michigan Court of Appeals determined that sobriety checkpoints violate art 1, § 11 of the Michigan Constitution. Because there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing the criminal law, we hold that sobriety checklanes violate art 1, § 11 of the Michigan Constitution.
I
The following facts in this case are undisputed and are set forth in the Court of Appeals opinion, 170 Mich App 433, 435-437; 429 NW2d 180 (1988):
1982 PA 310 established the Michigan Drunk Driving Task Force in the Department of State Police, MCL 257.625j; MSA 9.2325(10). The Task Force was charged with reviewing all aspects of the drunk driving problem in the state. In September, 1985, the Task Force submitted its final report which set forth thirty-five recommendations for combating alcohol-related traffic accidents. One suggestion was the implementation of sobriety checkpoints on public highways. Due to legislative opposition, defendants did not attempt to implement sobriety checkpoints at that time.
In his State of the State Address on January 29, 1986, Governor Blanchard directed defendants to implement a sobriety checkpoint pilot program. In February, 1986, defendant Gerald L. Hough, Director of the Michigan Department of State Police, appointed a Sobriety Checkpoint Advisory Committee, composed of representatives of the State Police, local law enforcement officials, prosecuting attorneys, and the University of Michigan Transportation Research Institute. The committee drafted guidelines for the program. The guidelines set forth procedures as to site selection, publicity, and operation of the checkpoint, including briefing, scheduling, safety considerations, motorist contact, staffing and assignment of duties.
Under the program, checkpoints would be established at certain sites along state highways. All motorists would be stopped upon reaching a checkpoint and would be examined for signs of intoxication. Should the examining officer find indications of intoxication, the officer would direct the driver to an out-of-traffic location, check the driver’s license and car registration, and possibly conduct further sobriety tests, including a Breathalyzer test. If the officer concluded that the driver was intoxicated, the officer would have discretion to arrest the driver; should the officer conclude the driver was not intoxicated, the driver was to be released.
The first sobriety checkpoint operation was conducted at Dixie Highway and Gretchen Road in Saginaw County on May 17 and 18, 1986. The Saginaw County Sheriff’s Department cooperated in the operation which lasted from about 11:45 p.m. to 1:00 a.m. One hundred twenty-six vehicles passed though the checkpoint in that time, with an average delay to motorists of twenty-five seconds or less. Two drivers were retained for sobriety field tests; one was arrested for driving while under the influence of alcohol. A third driver drove through the checkpoint without stopping, was pulled over by an officer in an observation vehicle, and was arrested for driving under the influence.
This action was commenced on May 16, 1986, with the filing of plaintiffs’ complaint for a declaratory judgment and injunctive relief. Plaintiffs are licensed drivers of the State of Michigan who regularly travel throughout the state in their automobiles. During the course of the initial proceedings, defendants agreed to delay implementation of the sobriety checkpoint program pending resolution of the case.
Trial took place from May 29, 1986, through June 3, 1986. In its opinion dated June 24, 1986, the trial court found that, although there was statutory authority for the operation of the sobriety checkpoints, the plan violated the Fourth Amendment to the United States Constitution and art 1, § 11 of the Michigan Constitution.
On August 1, 1988, the Court of Appeals unanimously affirmed the trial court’s ruling that the sobriety checkpoints violated the Fourth Amendment, finding it unnecessary to decide if the state constitution offered greater protection.
Following a denial of leave to appeal to this Court, 432 Mich 872 (1989), the defendants appealed to the United States Supreme Court, which granted certiorari. The United States Supreme Court reversed the decision of the Court of Appeals, finding that the Michigan sobriety checkpoint program did not violate the Fourth Amendment of the United States Constitution.
On remand, the Court of Appeals held that "the indiscriminate suspicionless stopping of motor vehicles in the form of roving roadblocks violates] art 1, § 11 of the Michigan Constitution.” 193 Mich App 690, 699; 485 NW2d 135 (1992). This Court granted leave to appeal, 441 Mich 869 (1992).
II
At the outset, we note, as did the United States Supreme Court, that this case involves a facial challenge to the constitutionality of the checkpoint program:
It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. See [United States v Martinez-Fuerte, 428 US 543, 559; 96 S Ct 3074; 49 L Ed 2d 1116 (1976)] ("claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review”). As pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard. [Sitz, 496 US 450-451. Emphasis in the original.]
Because the United States Supreme Court established that Michigan’s sobriety checkpoints do not violate the Fourth Amendment of the United States Constitution, the specific question presented in this case is whether sobriety checkpoints are unreasonable under art 1, § 11 of the Michigan Constitution. Before addressing this issue, we must first address the more fundamental question, how we interpret the Michigan Constitution.
A
During the decade of United States Supreme Court jurisprudence "commonly characterized as the 'criminal law revolution of the Warren Court,’ ” the Supreme Court "rapidly extend[ed] the reach of various constitutional provisions ap plicable to the criminal justice process . . . 1 LaFave & Israel, Criminal Procedure, § 2.1, p 56 and n 1. Subsequent decisions of the Burger Court were characterized by some commentators as pulling back from, suspending, or weakening the scope of constitutional protections, including the specific guarantees of the Bill of Rights. In 1977, Justice William J. Brennan, the "patron saint of the revival of interest in state constitutional law,” commented on the "trend” in a landmark article, urging state activism in interpretation of state law:
[T]he very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if the trust is, for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own. [Brennan, State constitutions and the protection of individual rights, 90 Harv L R 489, 503 (1977).]
The movement Justice Brennan heralded and strengthened with his article came to be called "New Federalism.” One commentator has noted:
Today’s New Federalism movement has its roots in two phenomena. The first is the liberal reaction in the mid-1970s to the jurisprudence of the Burger Court. As the Burger Court slowed the expansion of constitutionally protected individual rights begun by the Warren Court, many liberals began to look to state courts to take up the Warren Court’s legacy in the form of rights-protective state constitutional rulings. The second phenomenon is a much older and sparser tradition of criticizing state courts for ignoring state constitutions as a source of law and for failing to develop vigorous and independent bodies of state constitutional law irrespective of the character of the constitutional jurisprudence of the U. S. Supreme Court. [Gardner, The failed discourse of state constitutionalism., 90 Mich L R 761, 771 (1992).]
Awakened to the potential for a reappraisal of claims based on state constitutional grounds, members of the Michigan bar joined their colleagues across the country in pressing claims seeking interpretations of state law that provided more expansive criminal procedure protections than those recognized under federal law. By 1983, the number of rights-expansive claims based on state law had proliferated to the point that guidance from this Court was deemed both appropriate and necessary.
Thus, in People v Nash, 418 Mich 196; 341 NW2d 439 (1983), the Court conducted the first modern-day comprehensive survey of the circumstances surrounding the creation of Const 1963, art 1, § 11 to determine whether our constitution required a higher level of search and seizure protection than the Fourth Amendment of the United States Constitution. Our conclusion in Nash, that "[t]he history of Const 1963, art 1, § 11, and its plain import, . . . suggest that its further expansion . . . should occur only when there is a compelling reason to do so,” id. at 214, was intended to clarify for the bench and bar that claims that art 1, § 11 should be interpreted more expansively than the Fourth Amendment must rest on more than a disagreement with the United States Supreme Court.
B
Our analysis in Nash began by noting that the federal and state constitutional provisions that forbid unreasonable searches and seizures are nearly identical. The primary difference, and the center of the debate surrounding the adoption of a search and seizure provision, was the anti-exclusionary-rule proviso first added to the Michigan Constitution of 1908, art 2, § 10, by amendment in 1936:
Provided, however, That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding held before any magistrate or justice of the peace, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dan gerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in the state. [1935 Joint Resolution No 1, ratified November 3, 1936.][ ]
The convention focus on retention of the proviso was prompted by the decision of the United States Supreme Court in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), applying the exclusionary rule to the states. The Nash Court discussed at length the legislative debate:
The focus of the Michigan Constitutional Convention of 1961 was on the effect of Mapp on the third sentence of Const 1908, art 2, § 10. The Committee on Declaration of Rights, Suffrage, and Elections proposed that the final sentence of Const 1908, art 2, § 10 be deleted in favor of the phrase "Evidence obtained in violation of this section shall not be used except as authorized by law.” The committee reasoned that the broad holding of Mapp may have invalidated the final sentence of Const 1908, art 2, § 10. The merits of that sentence were also considered by the committee. The committee added the phrase "except as authorized by law” because:
"Should the definition of the federal limits imposed on the States with respect to the admissibility of evidence change in the future, the Michigan Legislature and the Michigan courts could incorporate, in statute and court decisions, those rules with respect to the admissibility of evidence which reflect the opinion of the Legislature and the Michigan courts as to what ought to constitute sound practice in this State, subject only to the continuing recognition of the limits set by federal constitutional supremacy.” Committee Proposals and Reports, Constitutional Convention 1961, Supporting Report, Committee Proposal No 15, pp 7, 10.
It therefore appears that the committee was attempting to allow for the possibility of a less stringent application of the exclusionary rule if allowed by federal law, rather than attempting to strengthen Michigan search and seizure protection.
The debates of the committee of the whole at the convention considered both the merits of, and the effect of Mapp on, Const 1908, art 2, § 10. See 1 Official Record, Constitutional Convention 1961, pp 464-484, 488-533, 674-688. The view that Mapp was limited to searches of dwellings and that a limitation on the exclusionary rule was proper on the merits carried the day. Attempts to unite Michigan and United States search and seizure law by adopting the exact language of the Fourth Amendment in the proposed Michigan Constitution were defeated. Instead, the anti-exclusionary-rule proviso of Const 1908, art 2, § 10 was amended back into the proposed constitution. 1 Official Record, Constitutional Convention 1961, pp 531-688. Ultimately, language substantially similar to that of Const 1908, art 2, § 10, as amended, was adopted by the convention and recommended to the people.
The convention’s address to the people stated that proposed Const 1963, art 1, § 11 was "No change from Sec. 10, Article II, of the present constitution except for improvement in phraseology.” 2 Official Record, Constitutional Convention 1961, p 3364. Indeed, the common understanding of the people upon reading the proposed constitutional provision could be nothing but the belief that the search and seizure provision of the new constitution represented no change. There had been no substantive alterations. There is no indication that in readopting the language of Const 1908, art 2, § 10 in Const 1963, art 1, § 11 the people of this state wished to place restrictions on law en forcement activities greater than those required by the federal constitution. In fact, the contrary intent is expressed. [Id. at 211-213.]
The historical analysis found in Nash is unassailable. The creators of Const 1963, art 1, § 11 were forcefully asserting state sovereignty by reacting to the Mapp decision with the readoption of the limited anti-exclusionary-rule proviso. At the same time, they were reiterating the venerable standard of reasonableness for seizures and an exclusionary remedy that preceded the full federalization of the Fourth Amendment by forty-two years. On the basis of the historical reality surrounding the adoption of art 1, § 11, this Court concluded in words we repeat for their import on our present inquiry:
When the people of this state adopted the third sentence of Const 1963, art 1, § 11, they also adopted the first two. Those sentences, nearly identical to those contained in the Fourth Amendment, had been part of Michigan’s Constitutions since 1835. See Const 1835, art 1, § 8; Const 1850, art 6, § 26. It was under those sentences that this Court created a body of state constitutional search and seizure law and adopted an exclusionary rule, all before either was subject to a federal floor. We cannot necessarily view the final sentence of Const 1963, art 1, § 11 as an interdiction against evolving concepts of reasonableness under the first two sentences. Though the people of the State of Michigan have corrected this Court when they have believed it to have gone too far, the historical general power of this Court to construe the constitutional provision relating to searches and seizures has not been removed. The history of Const 1963, art 1, § 11, and its plain import, however, suggest that its further expansion, with the concomitant expansion of the exclusionary rule to enforce it,[ ] should occur only when there is a compelling reason to do so. [Id at 214.]
This analysis has been applied consistently since Nash.
C
Today we clarify that the compelling reason test must be interpreted in the context of our observation that the proviso should not be read as "an interdiction” of the first two clauses, under which this Court "created a body of state constitutional search and seizure law and adopted an exclusionary rule, all before either was subject to a federal floor.” Nash, supra at 214. Thus, "compelling reason” should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz. Properly understood, the Nash rule compels neither the acceptance of fed eral interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law "the people have made.” People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).
The judiciary of this state is not free to simply engraft onto art 1, § 11 more "enlightened” rights than the framers intended. By the same token, we may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection.
III
The Constitution of 1963, art 1, § 11 does not confer a right upon Michigan citizens to exclude unreasonably seized weapons or narcotics discovered outside the curtilage of a dwelling house. As noted in Nash, supra at 212, "The view that Mapp was limited to searches of dwellings and that a limitation on the exclusionary rule was proper on the merits carried the day.” It was not until after adoption of the proviso that it became clear that the Fourth Amendment of the United States Constitution does confer such a right.
Under the Supremacy Clause, the courts of this state are obliged to enforce the rights conferred by the United States Supreme Court even if the state constitution does not provide such rights. Thus, in People v Pennington, 383 Mich 611, 620; 178 NW2d 471 (1970), the Court recognized that "the anti-exclusionary provision of Article 1, § 11, Michigan Constitution of 1963, cannot, under Federal decisions, stand against the Fourth and Fourteenth Amendments to the United States Constitution and the decision in Mapp.” However, while the Court in Pennington correctly recognized the supremacy of federal law, the conclusion that the proviso itself was unconstitutional was based on an incorrect premise.
The Michigan Declaration of Rights, like the federal Bill of Rights, is "drawn to restrict governmental conduct and to provide protection from governmental infringement and excesses . . . .” Woodland v Citizens Lobby, 423 Mich 188, 204; 378 NW2d 337 (1985). When there is a clash of competing rights under the state and federal constitutions, the Supremacy Clause, art VI, cl 2, dictates that the federal right prevails. Where a right is given to a citizen under federal law, it does not follow that the organic instrument of state government must be interpreted as conferring the identical right. Nor does it follow that where a right given by thé federal constitution is not given by a state constitution, the state constitution offends the federal constitution. It is only where the organic instrument of government purports to deprive a citizen of a right granted by the federal constitution that the instrument can be said to violate the constitution.
On its face, the anti-exclusionary-rule provision does not purport to deprive an individual of a right guaranteed under the federal constitution. The intent of the framers of the proviso as originally adopted was to affirm and limit the application of the exclusionary rule. The intent of the framers of art 1, § 11, as readopted, was to reaffirm the "same” principles and prevent Michigan courts from using the state constitution to extend the federally declared exclusionary right granted under Mapp. No conflict of rights exists between the last sentence of art 1, § 11 and the Fourth Amendment because the Michigan Constitution as enacted simply failed to extend the federal right to certain categories of evidence.
Because the anti-exclusionary-rule provision does not purport to deprive a Michigan citizen of a federally guaranteed right, a conflict exists under art 1, § 11 and the Fourth Amendment only when state courts ignore the rights conferred by the United States Constitution and admit into evidence items unreasonably seized under the Fourth Amendment. It is by virtue of such state action that the Supremacy Clause is offended.
Thus, appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor. Indeed, the fragile foundation of the federal floor as a bulwark against arbitrary action is clearly revealed when, as here, the federal floor falls below minimum state protection. As a matter of simple logic, because the texts were written at different times by different people, the protections afforded may be greater, lesser, or the same.
The statement in Collins that art 1, § 11 will be construed to provide the same protection as the United States Supreme Court’s interpretation of the Fourth Amendment should not be understood as having created a ladder of precedent that is contrary to the language of the Michigan Constitution. Nor should the statement be read to require us to ignore the "body of state constitutional search and seizure law” created pursuant to "the historical general power of this Court to construe the constitutional provision relating to searches and seizures . . . Nash, supra at 214.
The historical review required when analyzing the constitution as articulated in People v Catania, 427 Mich 447, 466; 398 NW2d 343 (1986), and Collins, supra at 31, illustrates that we did not intend to obscure the appropriate inquiry regarding the constitutional role of the courts of this state. The "compelling reason” test is a convenient formulation of the overarching responsibility to find a principled basis in the history of our jurisprudence for the creation of new rights. What is to be gleaned from our former cases is that the courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts. On the other hand, our courts are not obligated to accept what we deem to be a major contraction of citizen protections under our constitution simply because the United States Supreme Court has chosen to do so. We are obligated to interpret our own organic instrument of government.
We now turn to the crux of the instant case: whether sobriety checkpoints are unconstitutional under the Michigan Constitution. .
IV
Over one hundred years ago, Chief Justice Cooley set forth the judiciary’s task in construing the Michigan Constitution:
[I]n seeking for its real meaning we must take into consideration the times and circumstances under which the State Constitution was formed— the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it. This the court must keep in mind when called upon to interpret it; for their duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express. [People v Harding, supra at 485.]
The intent of the framers as expressed to the people of Michigan was that the Constitution of 1963 represented "no change” from the Constitution of 1908. Thus, to understand what art 1, § 11 means regarding suspicionless seizures of automobiles, and, thus, what level of protection is required under the Michigan Constitution, we look to interpretation of the previous, nearly identical, constitutional provision. A review of the cases construing Const 1908, art 2, § 10 discloses no support for the proposition that the police may engage in warrantless, suspicionless seizures of automobiles.
A
What is legally required to seize and search an automobile is not a new question in Michigan. During Prohibition, this Court had many opportunities to review the level of cause necessary to make such a stop or search.
In People v Case, 220 Mich 379; 190 NW 289 (1922), this Court determined that a warrant was not a prerequisite to the valid search of an automobile. In arriving at this conclusion, the Court discussed its constitutional role in determining the "reasonableness” of a search or seizure:
Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. [Id. at 389.]
In arriving at this conclusion, the Court took guidance from federal authority:
The generally recognized rule is fairly stated in the following annotation to 11 Fed Stat Ann (2d ed), p 354:
"The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to.” [Id. at 388.]
While the federal decisions that lead to this annotation were no more binding on the Michigan Supreme Court than the decisions of the Ohio Supreme Court, this Court chose to adopt their reasoning as instructive.
Case was relied on and explained two years later in People v Kamhout, 227 Mich 172; 198 NW 831 (1924). In upholding the search of an automobile, the Court articulated a search and seizure standard that came to be generally applied in future cases involving automobiles:
There must be no misunderstanding on the part of officers as to the right of search and arrest under our holdings. They have no right to stop and search an automobile or other conveyance for the purpose of ascertaining whether it is being used as a means of transporting liquor illegally unless they have such reasonable grounds of suspicion as induce in them, and as would induce in any prudent man, an honest belief that the law is being violated. . . . What we do state to be the rule by which this court will be governed is, that if an officer, charged with the enforcement of the law, from the exercise of his own senses, or acting upon information received from sources apparently so reliable that a prudent and careful person, having due regard for the rights of others, would act thereon, has reasonable and probable cause to believe that intoxicating liquor is being unlawfully transported in an automobile in his presence, he may arrest the offender or search for and, if found, seize the contraband therein without a warrant to do so. [Id. at 187-188. Emphasis added.]
Kamhout’s observation that "reasonable grounds” are required by the Michigan Constitution before the seizure or search of an automobile may occur, remains unmodified by precedent.
In People v Roache, 237 Mich 215; 211 NW 742 (1927), this Court was presented with, but did not directly decide, "Whether sin officer may stop, indiscriminately, travelers on the highway and demand of them that they produce license cards is a question we do not and need not determine.” Id. at 219 (Clark, J., dissenting). While the majority-rested its decision on the lack of reasonable grounds for the search of the automobile, the Court discussed the grounds needed to justify a search and seizure:
No one will contend that an officer may promiscuously stop automobiles upon the public highway and demand the driver’s license merely as a subterfuge to invade the constitutional right of the traveler to be secure against unreasonable search and seizure. Yet that is exactly what was done here. The officer cared nothing about seeing a driver’s license, but he says he was suspicious that there was liquor in the car, and almost immediately after stopping the defendant he ordered him out of his car and proceeded to search it for liquor. [Id. at 222.][ ]
After applying Kamhout, and dismissing the search and seizure justifications of the officers as lacking reasonable grounds, the Court concluded with a warning as appropriate today as it was in 1927:
While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thou sands of respectable, law-abiding citizens who are doing likewise? The protection afforded by the Constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.
The granting, if such a thing were possible, to over-zealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of law than to promote it. [Id. at 224-225.]
Perhaps the most famous, or infamous opinion, depending on perspective, to discuss the relationship between the search and seizure provision of Michigan and the automobile is People v Stein, 265 Mich 610; 251 NW 788 (1933), the case that led to the amendment of Const 1908, art 2, § 10.
The amendment, the addition of the anti-exclusionary-rule proviso, was a response by the people of Michigan to the Stein Court’s use of the exclusionary rule to reverse a conviction, which relied on an unconstitutionally seized weapon. The proviso, while casting doubt on the Stein Court’s view of the exclusionary rule, does not invalidate its analysis of the reasonableness of the stop.
The issue in Stein was "whether the arrest was lawful because the search was based solely upon the arrest [the suspicion for which was the speed of the car and a furtive gesture]. The essential question before us is whether the arrest was justified as a matter of law.” Id. at 613. The Court began its analysis by quoting from both Kamhout and Roache, observing of the former
[that the rule from that case] was made with full appreciation of the use of automobiles in criminal operations, the proclivity of law-breakers to carry weapons, the developed faculties of police officers to detect crime, the attitude of law-abiding citizens toward the enforcement of the law, and also with the realization of the court that the constitutional provision is a mandate and must be preserved for the benefit of good citizens, although, as is usually the case when it reaches the court, it is invoked in favor of the law-breaker.
If conditions demand a special rule of search on highways, the remedy is by amendment of the Constitution. [Stein, supra at 613-615.]
The Court then focused on the level of proof required for the arrest that led to the search. The majority noted:
If, instead of arresting defendants, the officers had searched the cab, but not the persons or baggage of defendants, it may be that defendants could not have complained. The mistake the officers made was in arresting defendants before they had reasonable ground to believe that a crime was being committed by defendants. [Id. at 614-615.]
This statement implies that something less than probable cause might justify the search of a car, but nothing less will justify an arrest. Stein produced three vigorous dissents, two of which still required some level of cause before an arrest or search could be made. Only Justice Weadock, after citing Case, supra, for the proposition that whether a search is reasonable is a judicial question, implied that general suspicion was enough to justify expansive police activity:
It is the common knowledge of wardens, penologists, psychiatrists and other students of crime that every sizable community has persons who have no visible means of support but live well, who have criminal records and consort with known criminals. Yet society must wait until a crime is committed. They sit back quietly and plan. We know they are doing it. But we must not anticipate their move. When circumstances are to their liking we gaze into a gun held by a man we knew was a criminal, but whom the law would not permit us to hunt. Any city can be cleared of known criminals in 48 hours, if the hands of the police are unshackled and if the powers that be will assure them of backing and support. [Id. at 624-625.]
In People ex rel Attorney General v Lansing Municipal Judge, 327 Mich 410; 42 NW2d 120 (1950), the Michigan case most analogous to the present one, the Court struck down
the provisions of PA 1948 (1st Ex Sess), No 43 (CL 1948, § 300.21 et seq. [Stat Ann 1949 Cum Supp § 13.1231(1) et seq.]) subjecting to search without a warrant the boat, conveyance, vehicle, automobile, hunting or fishing camp, fish box, fish house, net house, fish basket, game bag, game coat, or any other receptacle, car or conveyance in which wild life may be kept, carried or transported, of any person exercising the privilege of hunting, fishing or trapping, et cetera,, and empowering conservation officers to require a person to permit such officers to inspect and examine, without warrant, all wild life and any hunting, fishing or trapping apparatus, guns or ammunition in such person’s possession or under his control merely upon the officer’s reasonable belief that the person in question has been, is, or is about to be engaged in hunting, fishing or trapping of wild life or is in possession of such wild life or apparatus, but without probable cause to believe that such person has been or is violating the law .... [Id. at 425. Emphasis added.][ ]
Referencing Carroll v United States, the majority observed that persons entitled to use the highways have a right to free passage without intervention or search except upon probable cause for believing the law to be violated. After observing that Kamhout, Roache, and Stein all forbade the search of an automobile without a warrant absent probable cause, the Court concluded that the provisions of the disputed act ”are in undoubted contraven tion of the Michigan Constitution, art 2, § 10,” id. at 426, and thus unreasonable.
The state had argued in support of the statutory right of a conservation officer "to inspect and examine” an individual’s game coat, shot guns, and automobile, id. at 414, "that a person may waive his constitutional rights against unreasonable search . . . .” Id. at 426. This Court strongly responded to the state’s argument and the cases presented to support it:
Mention is made of Surtman v Secretary of State, 309 Mich 270 [15 NW2d 471 (1944)]; Larr v Secretary of State, 317 Mich 121 [26 NW2d 872 (1947)]; People v Thompson, 259 Mich 109 [242 NW 857 (1932)], in which it was held that in accepting a license from the State to operate a motor vehicle upon public highways one must also accept all reasonable conditions imposed by the State thereon, such as the requirement that he stop and give assistance in cases of accidents, or that he comply with the financial responsibility act. But these cases do not hold, and it has not yet been held in Michigan that use of the highways involves waiver of one’s constitutional rights against unreasonable search. That such waiver is not involved appears from such cases as People v Kamhout, supra. Can it be plaintiff’s position that this is true solely because the legislature has not yet seen fit to require waiver of such constitutional immunity as a condition precedent to the use of the highways? To ask the question is to glimpse the lengths to which we shall one day be led, if, in the instant case, the "inspect and examine” requirements of the statute are upheld on a waiver theory. [Id. at 426-427.]
After distinguishing what would today commonly be called regulatory and administrative searches of commercial activities and enterprises, such as public rooming houses, food-related establishments, and the liquor industry, the Court forcefully rejected the state’s waiver arguments:
Were we to hold that in every instance in which a license may lawfully be required its granting may at the same time be conditioned upon waiver of constitutional rights against unreasonable search, what area could conceivably remain immune and beyond legislative reach, upon which the constitutional guaranty might still operate? It will be said that no legislature would go so far as to dry up the entire stream of constitutional immunity. But it is not the genius of our system that the constitutional rights of persons shall depend for their efficacy upon legislative benevolence. Rather, the courts are charged with the solemn obligation of erecting around those rights, in adjudicated cases, a barrier against legislative or executive invasion. It is the responsibility of the courts to breathe the breath of life into constitutional rights, mandates, guaranties and limitations in the very face of contravening, legislation. [Id. at 432.]
B
Following Mapp’s 1961 application of the federal exclusionary rule to the states, the nature and direction of this Court’s search and seizure dialogue was transformed. Where we had previously used federal precedent for the same instructive purposes of any other foreign precedent in interpreting our own constitution, federal constitutional precedent began to absorb our own. Most modern decisions of this Court and the Court of Appeals relating to automobile stops have focused on federal constitutional opinions, rather than an independent analysis of Const 1963, art 1, § 11. For instance, in People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), this Court granted leave to decide
[wjhether due to the warrantless stop and search of the automobile in which defendant was a passenger, which stop was part of a comprehensive scheme to search all automobiles on the highway —a roadblock — defendant’s Fourth Amendment right to be free from unreasonable search and seizure had been violated. [Id. at 674-675.]
While the Court subsequently decided the case on plain view grounds alone, specifically leaving open the roadblock issue, its analysis was exclusively based on the Fourth Amendment, not Const 1963, art 1, § 11.
However, Michigan’s own constitutional precedent has occasionally done service as powerful authority, even where the Court also cited federal decisions or standards. In People v Parisi, 393 Mich 31, 32; 222 NW2d 757 (1974), a unanimous Court concluded that the initial stop of an automo bile was without a "reasonable basis.” Citing Michigan constitutional decisions, Roache, Kamhout, Stein, and Lansing Municipal Judge, as well as federal constitutional decisions, Whalen, supra, Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), the Court concluded that "[n]o 'suspicious activity’ has been offered here nor any testimony providing a reasonable basis for stopping the automobile.” Parisi, supra at 37.
V
As long ago as 1889, the justices of this Court stated:
Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion, — to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. [Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579 (1889).]
Our commitment to the protection of liberty was further demonstrated when the Supreme Court of Michigan adopted an exclusionary rule in Í919, forty-two years before it was mandated by federal law. People v Marxhausen, 204 Mich 559; 171 NW 557 (1919). Moreover, as the cases discussed in part iv demonstrate, this Court’s "historical general power ... to construe the constitutional provision relating to searches and' seizures,” Nash, supra at 214, has been extended to the seizure and search of vehicles.
The scope of the power to review the reasonableness of a search and seizure was modified by the anti-exclusionary rule, mooting the art 1, § 11 reasonableness analysis in certain cases. However, the history of our jurisprudence conclusively demonstrates that, in the context of automobile seizures, we have extended more expansive protection to our citizens than that extended in Sitz. This Court has never recognized the right of the state, without any level of suspicion whatsoever, to detain members of the population at large for criminal investigatory purposes. Nor has Michigan completely acquiesced to the judgment of "politically accountable officials” when determining reasonableness in such a context. Sitz, 496 US 453. In these circumstances, the Michigan Constitution oilers more protection than the United States Supreme Court’s interpretation of the Fourth Amendment.
In Roache, supra at 222, this Court showed a marked hostility toward the use of a license check as a pretext to investigate criminal activity. In Lansing Municipal Judge, supra at 432, we stressed:
It will be said that no legislature would go so far as to dry up the entire stream of constitutional immunity. But it is not the genius of our system that the constitutional rights of p,ersons shall depend for their efficacy upon legislative benevolence. Rather, the courts are charged with the solemn obligation of erecting around those rights, in adjudicated cases, a barrier against legislative or executive invasion.
The Michigan Constitution has historically treated searches and seizures for criminal investigatory purposes differently than those for regulatory or administrative purposes. Lansing Municipal Judge, supra at 427-429. These administrative or regulatory searches and seizures have traditionally been regarded as "reasonable” in a constitutional sense. Id. at 430. However, seizures with the primary goal of enforcing the criminal law have generally required some level of suspicion, even if that level has fluctuated over the years.
We do not suggest that in a different context we might not reach a similar result under the balancing test of reasonableness employed in Sitz. Indeed, our precedent regarding automobiles implicitly incorporates a balancing test that is inherent in assessing the reasonableness of warrantless searches and seizures. We hold only that the protection afforded to the seizures of vehicles for criminal investigatory purposes has both an historical foundation and a contemporary justification that is not outweighed by the necessity advanced. Suspicionless criminal investigatory seizures, and extreme deference to the judgments of politically accountable officials is, in this context, contrary to Michigan constitutional precedent.
The decision of the Court of Appeals is affirmed.
Levin, Riley, and Mallett, JJ., concurred with Boyle, . J.
Cavanagh, C.J., concurred only in the result.
The United States Supreme Court observed:
In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. [Sitz, 496 US 455.]
Maltz, False prophet — Justice Brennan and the theory of state constitutional law, 15 Hastings Const L Q 429 (1988).
Gardner, supra at 776.
US Const, Am IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Const 1963, art 1, § 11 provides:
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.
In 1952, the phrase "any narcotic drug or drugs” was added to the proviso. 1952 Joint Resolution No 1, ratified November 4, 1952.
The Fourth Amendment of the United States Constitution was not applied to the states until 1949. See Wolf v Colorado, 338 US 25; 69 S Ct 1359; 93 L Ed 1782 (1949) (Fourth Amendment privacy rights are implicit in the concept of ordered liberty and thus enforceable against the states through the Due Process Clause).
In People v Marxhausen, 204 Mich 559; 171 NW 557 (1919), this Court became one of the first courts in the country to apply the federal exclusionary rule to exclude unlawfully seized evidence in the courts of our state. See also Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914).
The Nash Court explicitly declined to limit the compelling reason test to questions involving the exclusionary rule:
Our brother, Justice Cavanagh, in dissenting to this analysis, is correct when he notes that the standard of reasonableness and the application of the exclusionary rule under the Michigan Constitution should be analytically separate inquiries. Unfortunately, the assumption that the standard of reasonableness and the remedy for breach of that standard are inexorably linked permeates prior decisions of this Court. This Court’s statement in [People v Moore, 391 Mich 426; 216 NW2d 770 (1974)], that the anti-exclusionary-rule proviso of art 1, § 11 precluded a standard of reasonableness higher than that of the federal constitution when weapons or narcotics are involved likewise makes this analytically incorrect assumption. [People v Secrest, 413 Mich 521; 321 NW2d 368 (1982)] merely expanded on that incorrect assumption to state that when weapons or narcotics are not involved, the standard of reasonableness for searches that reveal all other items must be higher.
We, therefore, are left with whether our analysis of issues involving standard of reasonableness and the anti-exclusionary-rule proviso should be as it has been or as it should be. Were we writing on a blank slate, we would separate our analyses of whether the Michigan Constitution has been violated and whether that violation calls for application of the Michigan common-law exclusionary rule. To do so now, however, would necessitate overruling both Moore and Secrest. [Id. at 215, n 4.]
See People v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991):
Discerning the intent of the framers and the people who adopted Const 1963, art 1, § 11, this Court has held . . . that art 1, § 11 is to be construed to provide the same protection as that secured by the Fourth Amendment, absent "compelling reason” to impose a different interpretation.
And id. at 29, n 34, citing:
People v Smith [420 Mich 1, 20; 360 NW2d 841 (1984)] (no compelling reason that Const 1963, aft 1, § 11 requires a standing requirement, for purposes of challenging the admissibility of evidence seized without a warrant, more liberal than that mandated by the United States Supreme Court’s interpretation of the Fourth Amendment); People v Catania [427 Mich 447; 398 NW2d 343 (1986)] (plurality decision which followed the analysis set forth in Nash, supra, in holding that art 1, § 11 did not require suppression of evidence seized pursuant to a warrantless "ruse” entry by an undercover police agent into the defendant’s home because parallel federal constitutional provisions had been interpreted to permit the use of such evidence); People v Perlos [436 Mich 305; 462 NW2d 310 (1990)] (MCL 257.625a[9]; MSA 9.2325[1][9], which permits chemical analysis of blood samples taken from a driver of a motor vehicle involved in an accident to be admitted into evidence in a subsequent criminal prosecution arising out of such accident, does not violate the Fourth Amendment of the federal constitution and there is "no compelling reason” to afford greater protection under Const 1963, art 1, § 11).
See also id. at 40 (there is no compelling reason to interpret Const 1963, art 1, § 11 to prohibit participant monitoring without a warrant where it does not violate the Fourth Amendment); People v Faucett, 442 Mich 153; 499 NW2d 764 (1993) (the Michigan Constitution does not provide more protection than the federal constitution when determining the validity of an anonymous informant’s tip).
Article VI, cl 2, of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
As the Pennington Court observed at 618, federal courts had not hesitated to reverse Michigan courts that failed to recognize the supremacy of federal law. In Winkle v Kropp, 279 F Supp 532, 539 (ED Mich, 1968), rev’d on other grounds 403 F2d 661 (CA 6, 1968), Federal District Judge Wade McCree held:
Whatever innovations might be devised in the area of searches and seizures, it would seem that one thing which cannot be done is to justify a search by its results. It must therefore be held that the proviso, as applied in this case, is violative of the Fourth Amendment. [Emphasis added.]
As one commentator observes:
The image of federal constitutional law as a "floor” in state court litigation pervades most commentary on state constitutional law. Commentators contend that in adjudicating cases, state judges must not adopt state constitutional rules which fall below this floor; courts may, however, appeal to the relevant state constitution to establish a higher "ceiling” of rights for individuals. . . .
Certainly, as a matter of federal law, state courts are bound not to apply any rule which is inconsistent with decisions of the Supreme Court; the Supremacy Clause of the Federal Constitution clearly embodies this mandate. It would be a mistake, however, to view federal law as a floor for state constitutional analysis; principles of federalism prohibit the Supreme Court from dictating the content of state law. In other words, state courts are not required to incorporate federally-created principles into their state constitutional analysis; the only requirement is that in the event of an irreconcilable conflict between federal law and state law principles, the federal principles must prevail.
[S]uch courts must undertake an independent determination of the merits of each claim based solely on principles of state constitutional law. If the state court begins its analysis with the view that the federal practice establishes a "floor,” the state court is allowing a federal governmental body — the United States Supreme Court — to define, at least in part, rights guaranteed by the state constitution. Thus, to avoid conflict with fundamental principles of state autonomy, a state court deciding whether to expand federally recognized rights as a matter of state law must employ a two-stage process. The court first must determine whether the federally recognized rights themselves are incorporated in the state constitution and only then must determine whether those protections are more expansive under state law. [Maltz, n 2 supra at 443-444. Emphasis in the original.]
Ex parte Tucci, 859 SW2d 1 (Tex, 1993). Davenport v Garcia, 834 SW2d 4 (Tex, 1992); Oregon v Smith, 301 Or 681; 725 P2d 894 (1986).
Both cases listed several factors as being helpful in "determining whether a state constitution affords protection different from the federal constitution.” Collins at 31, n 39:
1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest.
On a full review of this turbulent period, one cannot help but be struck by the similarities of the arguments made for and against the rights of citizens versus the needs of law enforcement to the modern-day necessity of dealing with drug running and drunken driving.
In People v Krahn, 230 Mich 528; 203 NW 105 (1925), this Court applied the Kamhout language to a team and wagon.
The driver’s license statute at that time required:
Said license card or tag shall at all times be carried by the licensee when he or she is operating a motor vehicle along the public highways of this state and shall be given up by him or her for examination upon demand by any proper officer. [1923 PA 186, § 4.]
The majority’s anger that the license stop would be used as a pretext to conduct criminal investigative activities differs from the present case. Here, the state has failed to enunciate a pretext.
Justice Sharpe argued:
Zealous officers should be encouraged in their efforts to rid their communities of violators of the law, and, while they may not make an ■ arrest or search on suspicion alone, they may draw all reasonable inferences from acts done in their presence, and, if an act be so done, and the inference fairly deducible therefrom be such as to cause a prudent and careful officer to believe that the law is being violated, he may make an arrest and a search without the issue of a warrant to do so.
[Id. at 621.]
After observing that "[w]hat is unreasonable or reasonable is a judicial question,” Justice Butzel similarly argued:
I believe that, by the same judicial process, we should restrict the rule, and that the search of an automobile under circumstances similar to those in the instant case, circumstances calculated to arouse the suspicions of a trained officer, should not be regarded as unreasonable. Such a restriction, however, does not entitle police officers to act maliciously, capriciously or without cause. [Id. at 623.]
It is interesting to note that this same public act struck down by this Court as violative of Const 1908, art 2, § 10, itself forbade checkpoints for enforcing the law:
"Provided further, That nothing contained in this act shall be deemed to permit or allow the setting up or operation on designated State of Michigan trunk line highways of any road blockade, which, for the purpose of this act, shall be deemed to be the promiscuous or arbitrary halting of vehicular traffic for inspection or examination.” [Id. at 413-414. (North, J., dissenting.) Emphasis in the original.]
In Carroll v United States, 267 US 132, 149; 45 S Ct 280; 69 L Ed 543 (1925), the Court held that the right to free passage on the public highways precluded a suspicionless seizure of contraband, while authorizing warrantless seizures based upon “probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . . .” See id. at 154.
This distinguishing factor was later addressed by this Court in Tallman v Dep’t of Natural Resources, 421 Mich 585, 622-623; 365 NW2d 724 (1984), when we adopted the pervasively regulated industry exception to the warrant requirement.
[Lansing Municipal Judge] might prove apposite to the cases presently before this Court, but for the crucial fact that the party accused of violating the state’s conservation laws in that case took the state’s wildlife for pleasure rather than for profit. Because we deal here with parties engaged in a pervasively regulated commercial endeavor, Lansing Municipal Judge is inapposite. We do not pass here on the question whether the dnr may make warrantless searches, absent probable cause and exigent circumstances, of the persons or property of recreational fishers for the purpose of enforcing regulations which limit their activities. [Emphasis in the original.]
See id. at 683:
[N]or do we decide if a stop of all cars as part of a systematic roadblock would be reasonable absent similar foundation facts respecting the reasonableness of stopping an individual car.
Under Const 1963, art 1, § 11:
[O]nce it has been determined that the search and seizure has occurred, in the words of the amendment, "outside the curtilage of any dwelling house in this State” and once it has further been determined that the articles seized and offered in evidence in a criminal proceeding are among those enumerated in that amendment (both of which are so here) then the circumstances of the arrest and of any search or seizure, or the frequently prickly question of whether or not the search and seizure was "unreasonable,” appear to become totally irrelevant in any phase of the criminal case. [People v Winkle, 358 Mich 551, 554; 100 NW2d 309 (1960).]
While Winkle was interpreting Const 1908, art 2, § 10, as amended in 1936 and 1952, and not Const 1963, art 1, § 11, the two provisions are almost identical. See Nash, supra at 213.
The existence of statutory authorization for sobriety checkpoints is questionable. It certainly did not come from the Legislature’s Drunk Driving Task Force statute, 1984 PA 348, MCL 257.625j(8); MSA 9.2325(10)(8), which, as amended (prior to the task force’s final report), recommended:
The task force shall not institute any program that includes sobriety check lanes in this state.
Furthermore, MCL 257.715(2); MSA 9.2415(2), the statute relied upon by the trial court to grant authority to the state police, if read as broadly as it was written, would allow the police to engage in federally unconstitutional behavior.
MCL 257.715(2); MSA 9.2415(2) allows:
The director of the department of state police shall cause inspection to be made of motor vehicles operating on the public highways to detect defective equipment or other violations of law governing the use of public highways by motor vehicles, operators, and chauffeurs. For that purpose the director may establish temporary vehicle check lanes at appropriate locations throughout the state for checking for inadequacies and violations. A county, city, village, or township police department also may operate a temporary check lane within its limits with the express authorization of the director of the department of state police and under the direct supervision of a designated representative of the director.
The first sentence, which arguably could be read alone, would allow random stops in violation of Delaware v Prouse, 440 US 648; 99 S Ct 1391; 59 L Ed 2d 660 (1979). Moreover, the statute does not limit the scope of the officer’s authority when looking for "violations of law governing the use of public highways by ... operators.” MCL 257.715(2); MSA 9.2415(2). The plain language of the statute would apparently authorize officers at one of these suspicionless roadblocks to demand that drivers submit to a Breathalyzer test or blood workup to determine if they are under the influence of a forbidden drug.
Because our ruling extends with equal force to the executive and legislative branches of state government, we leave for another day a more complete interpretation of MCL 257.715(2); MSA 9.2415(2).
Today’s decision casts no doubt on the ability of the police to conduct roadblocks for the purpose of apprehending individuals fleeing the scene of a crime.
We note, as we did in Nash at 214, that "the people of the State of Michigan have corrected this Court when they have believed it to have gone too far . . . | [
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] |
Brickley, J.
In 1988, the Michigan Legislature passed a package of laws that modified the manner in which courts treat the jurisdiction, adjudication, and treatment or punishment of juvenile offenders. Among the many changes was an amendment of the Revised Judicature Act giving the state’s circuit courts automatic jurisdiction to hear certain offenses committed by juveniles aged fifteen or sixteen. This amendment allows prosecutors to proceed automatically in circuit court against juvenile offenders charged with certain enumerated offenses without first having to obtain a waiver from the probate court. The amendment, in effect, divests the juvenile court of jurisdiction over certain juvenile offenders and vests that jurisdiction in the circuit courts. See People v Brooks, 184 Mich App 793; 459 NW2d 313 (1990).
In these cases of first impression, we are asked whether the automatic waiver statute allows a circuit court to retain jurisdiction to sentence a juvenile offender who, although charged with an enumerated offense, is convicted of a nonenumerated lesser included offense. Additionally, we are asked whether the statute confers jurisdiction on the circuit courts to try juvenile offenders for nonenumerated offenses arising out of the same criminal transaction as the enumerated offense in the same trial.
Our task is not made easier by the lack of clear legislative history available. All that can be reasonably gleaned from the statute itself is the notion that the Legislature must have intended to treat juvenile offenders who engage in serious criminal activity more harshly by providing adult penalties for certain crimes. For the reasons that follow, we hold that the circuit courts have jurisdiction to sentence juveniles charged with enumerated offenses but convicted of nonenumerated lesser included offenses and to try and sentence juveniles charged with both enumerated and non-enumerated offenses arising out of the same criminal transaction._
I
A. PEOPLE v VELING
Defendant Benjamin Todd Veling was originally charged with assault with intent to commit murder. Pursuant to the automatic waiver statute, defendant was tried as an adult in circuit court, although at the time of the alleged offense he was only fifteen years old. At trial, defendant was found guilty of the lesser included offense of assault with intent to do great bodily harm less than murder.
After trial, defendant moved to remand his case to the probate court for disposition on the ground that his conviction for the lesser included offense divested the circuit court of its jurisdiction. Because assault with intent to do great bodily harm less than murder is not an offense enumerated in the automatic waiver statute, defendant contended, the circuit court had no jurisdiction to sentence him for that offense. The prosecutor countered that jurisdiction was not lost as a result of a conviction of a lesser included offense because the circuit judge had authority under the Criminal Procedure Code to conduct a hearing to determine whether defendant should be sentenced as an adult or juvenile. _
Without agreeing with either party, the circuit judge, on her own initiative, remanded the case to the probate court for sentencing. Without citing any part of the statute, the circuit judge believed the automatic waiver statute gave her discretion to remand the case without fulfilling the hearing requirement. The Court of Appeals vacated the circuit court’s order and remanded this case to that court for further proceedings consistent with People v Deans, 192 Mich App 327; 480 NW2d 334 (1991). On August 7, 1992, this Court granted defendant’s application for leave to appeal. 440 Mich 889.
B. PEOPLE v HILL
As a result of events that allegedly occurred on October 15, 1991, defendant William Depree Hill was charged by a seven-count information with assault with intent to commit murder (count i), carrying a concealed weapon, carrying a concealed weapon with unlawful intent, three counts of possession of a firearm during the commission of a felony, and possession of cocaine (counts n to vii). At the time of these alleged crimes, defendant was sixteen years old.
The Jackson County prosecutor elected to charge defendant under Michigan’s automatic waiver statute. At the preliminary examination on October 24, 1991, defendant was bound over on all charges. Afterward, defendant filed a motion to dismiss counts n to vii on the ground that the circuit court lacked subject matter jurisdiction to try him. The basis for the motion was the argument that only count i allowed the defendant to be tried as an adult under the automatic waiver statute.
On December 17, 1991, the circuit judge granted defendant’s motion and quashed that part of the information charging him with counts n to vii on the ground that, of the crimes charged, the automatic waiver statute only applied to count i and so the court lacked jurisdiction over counts ii to vii. Furthermore, the court noted that the prosecutor’s proper course of action would have been to utilize the automatic waiver statute for count i and seek a traditional waiver for counts n to vii. Finally, the circuit judge adjourned the proceedings to allow the prosecutor to seek an interlocutory appeal.
The prosecutor sought the Court of Appeals review, but, relying on People v Deans, supra, the Court denied leave to appeal. On August 7, 1992, however, this Court granted the prosecutor’s motion for interlocutory leave to appeal and the case was considered with that of defendant Veling. 440 Mich 889.
II
Before the enactment of the automatic waiver statute, the juvenile division of the probate court had "[exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning a child under 17 years of age . . . .” MCL 712A.2(a); MSA 27.3178(598.2)(a). In 1988, however, along with the creation of the automatic waiver statute, this section of the Revised Judicature Act was amended so that the probate court no longer had exclusive jurisdiction over all juveniles. Rather, "[t]he juve nile division of the probate court shall have jurisdiction over a child 15 years of age or older who is charged with a violation of [certain enumerated offenses], if the prosecuting attorney files a petition in juvenile court instead of authorizing a complaint and warrant.” MCL 712A.2(a)(l); MSA 27.3178(598.2)(a)(l) (emphasis added). The prosecuting attorney may authorize the filing of a complaint and warrant against that juvenile if he has "reason to believe” that the juvenile has committed certain enumerated offenses. MCL 764.1f; MSA 28.860(6). In essence, then, the 1988 changes divested the probate court of its exclusive jurisdiction over juveniles and vested in the circuit courts personal jurisdiction over those juveniles charged with enumerated life offenses. Assuming the prosecutor authorizes a complaint and warrant in the circuit court, the circuit court has personal jurisdiction over juveniles charged with enumerated life offenses.
Once personal jurisdiction is established, the magistrate must have probable cause to believe, as part of the preliminary examination, that the juvenile committed the charged enumerated offense. See MCL 766.14(2); MSA 28.932(2). If this belief is not sustained by probable cause, the magistrate must transfer the case back to the probate court, and the circuit court loses jurisdiction over the juvenile. Id. If probable cause is established, the circuit court has both personal jurisdiction over the juvenile and, of course, subject matter jurisdiction over the alleged enumerated offense.
III
As noted above, the Code of Criminal Procedure is very specific; if at the preliminary examination the magistrate finds that an enumerated offense has not been committed, the magistrate must send the case back to the probate court. The code is noticeably silent, however, concerning the proper procedure following a conviction for a lesser included offense or the procedure to be used for juveniles charged with nonenumerated offenses arising out of the same transaction as the enumerated offense. Defendants Veling and Hill would have us construe this silence as a requirement to remand these cases to the probate court for disposition. For the reasons that follow, we find such a statutory construction to be untenable.
A
In the exercise of circuit court jurisdiction over adult offenders, there is a presumption against divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction. In People v Schoeneth, 44 Mich 489; 7 NW 70 (1880), this Court established the longstanding rule that where the circuit court acquires jurisdiction over a defendant because of a felony charge, that jurisdiction is not lost because of a subsequent conviction of a lesser included misdemeanor. The Court reasoned that it would be absurd to force the court to go to trial on the merits of the charge only to determine when the verdict was rendered whether the court had jurisdiction to try the offense in the first place. Id. at 491. This rule and rationale is not only the law in Michigan, but in many other states as well.
B
Similarly, Michigan courts extend circuit court jurisdiction to all same transaction offenses an adult is alleged to have committed, even though the circuit court had original jurisdiction over only some of the offenses. For example, where an adult is charged with a felony and a misdemeanor, the circuit court has jurisdiction to dispose of the entire case, even though a circuit court has no jurisdiction over misdemeanor charges alone. The defendant in People v Loukas, 104 Mich App 204; 304 NW2d 532 (1981), was initially charged in circuit court with a felony, resisting arrest, and a misdemeanor, reckless driving (later changed to careless driving). The defendant pleaded nolo contendere to both charges, and the case proceeded to sentencing. At sentencing, the defendant argued that the circuit court could not sentence him for the misdemeanor conviction because it lacked ju risdiction to accept a plea that joined a felony count and a misdemeanor count. Id. at 206. The defendant asserted that only the district court had jurisdiction to hear misdemeanor cases. Id. at 206-207. However, the Court of Appeals held that in light of the fact the misdemeanor charge arose out of the same transaction as the felony charge, it was properly joined with the felony charge in circuit court. Id. at 207. In support of its conclusion, the Court noted that there was nothing in the statutes conferring jurisdiction on the circuit and district courts that prohibited such joining. Id.
The defendant in People v Shackelford, 146 Mich App 330; 379 NW2d 487 (1985), was tried in the circuit court for a misdemeanor charge of possession of marijuana. Jurisdiction was conferred on the circuit court because the defendant initially was charged as a second offender, a felony. After trial, however, the prosecutor moved to dismiss the second-offender charge. With only the misdemeanor conviction remaining, the defendant argued that the circuit court had no jurisdiction to pass sentence. Id. at 332-333. The Court of Appeals rejected this argument, however, on the ground that to the extent both charges were properly brought, the circuit court had jurisdiction to try both counts because they arose out of a single transaction. Id. at 333.
Finally, People v Carey, 110 Mich App 187; 312 NW2d 205 (1981), involved a defendant charged with crimes that allegedly occurred both within and outside the Detroit city limits. The defendant was tried in the Detroit Recorder’s Court for all charges, but was found guilty only of rape, the charge that allegedly occurred outside the city limits. The defendant argued that the Detroit Recorder’s Court had no jurisdiction to try him for the rape charge, because he was acquitted of the crimes that allegedly occurred within Detroit. Id. at 190. The Court rejected this argument, however, as did the Loukas and Shackelford Courts, on the ground that the Detroit Recorder’s Court had jurisdiction over all charges arising out of the same transaction. Id. As long as the court had jurisdiction to hear at least one of the charges, it could hear all the charges. The fact that the defendant was subsequently acquitted of the charges that originally conferred jurisdiction did not divest the court of its jurisdiction. Id. The court had proper jurisdiction to convict and sentence defendant on the rape charge.
C
While common law is the primary source of the duty to instruct regarding lesser included offenses, there is a statute that implicitly requires such instructions be given. Section 32 of the Code of Criminal Procedure provides:
Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may fínd the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. [MCL 768.32(1); MSA 28.1055(1). Emphasis added.]
If the factfinder in a criminal case must be allowed to convict a defendant of a lesser included offense, it stands to reason the factfinder must be made aware of what lesser included offenses exist.
Michigan jurisprudence has established that the evidence adduced at trial determines the trial judge’s duty to instruct regarding lesser included offenses. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented that would support a conviction of a lesser included offense, it is error requiring reversal for the judge to refuse to give a requested instruction for that offense. Id. at 36. Moreover, if the lesser offense is one that is necessarily included in the charged offense, the evidence always supports the lesser offense if it supports the greater. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
Michigan’s statutory and interpretive case law concerning lesser included offenses require that instruction regarding such offenses be given in cases like those before us. We assume that the Legislature was aware of these mandates when enacting the automatic waiver statute and simple logic suggests that it did not intend to create an anomaly between the automatic waiver statute and jury instruction mandates.
D
With respect to constitutional mandates, this Court, in People v White, 390 Mich 245; 212 NW2d 222 (1973), held that all charges against a defendant that arise out of a single criminal act, occurrence, episode, or transaction must be brought in one prosecution. This requirement, the Court held, provided "the only meaningful approach to the constitutional protection against being placed twice in jeopardy” where the crimes were committed in a continuous time sequence and displayed a single intent and goal. Id. at 257-258.
Similarly, other states allow their adult trial courts to automatically hear nonenumerated offenses arising from the same transaction as the enumerated offense in order to avoid double jeopardy. For example, in Worthy v State, 253 Ga 661; 324 SE2d 431 (1985), the Georgia Supreme Court held that the trial court had jurisdiction to try a juvenile defendant for a charged theft when, in the same indictment, there had already been an automatic waiver to that court for a charged murder. The court found that the trial court’s jurisdiction necessarily extended to related lesser crimes arising out of the same transaction because
[t]o rule otherwise would be to bisect criminal conduct artificially and require the state to follow two procedures with no substantive meaning other than to satisfy procedural requirements, with the end result that the case involving the lesser crime would be instituted in juvenile court and transferred to the superior court, and the juvenile would still be tried for the lesser crime along with the crime giving the [trial] court concurrent jurisdiction. There is no loss of substantive protection of the juvenile, and the public’s rights should not be impeded by meaningless procedural steps which delay the judicial process and conceivably could lead to the frustration of justice under the rigorous requirements of the double jeopardy clause. [Id. at 662. Citation omitted.]
In other words, to guard against double jeopardy, the supreme court allowed the trial court to hear all charges arising out of the same criminal transaction. In doing so, the court was willing to forego the artificial procedural requirements that otherwise would have required the defendant to be tried separately on the capital and lesser offenses. _
In the Hill case, double jeopardy considerations arguably would prohibit the prosecutor from trying the defendant as an adult in circuit court for the enumerated offense and also trying him as a juvenile in probate court for the nonenumerated offenses. As a result, if he cannot obtain a waiver for the nonenumerated offenses, the prosecutor must choose between trying him for the enumerated offense or for the nonenumerated offenses. Again, simple logic suggests that the Legislature did not intend to create an anomaly between the automatic waiver statute and the constitutional prohibition against double jeopardy. Where the intent of the Legislature is to treat juvenile offenders engaging in serious criminal activity more. harshly and more like adults, we assume the Legislature intended to treat juveniles like adults for all crimes arising out of enumerated criminal activity.
E
Giving the circuit court jurisdiction to hear both enumerated and nonenumerated offenses avoids an anomalous result that would work to a juvenile defendant’s disadvantage. As the prosecutor in defendant Hill’s case pointed out, under the automatic waiver statute, upon a guilty plea or conviction, the circuit judge has the option of sentencing the juvenile or remanding the case to the probate court for disposition. Under traditional waiver hearing procedures, however, once a juvenile is tried as an adult, he must be sentenced as an adult — the circuit judge has no discretion in this respect. As a result, a juvenile defendant is likely to receive a tougher sentence where the prosecutor uses the automatic waiver statute for an enumerated offense and the traditional waiver system for nonenumerated offenses. If a circuit judge must sentence a juvenile, for example, as an adult for felony-firearm (a nonenumerated offense involving a two-year mandatory prison term), he is more likely to sentence the juvenile as an adult for the underlying felony, for example, assault with intent to commit murder (an enumerated offense). If, however, the judge had sentencing discretion with respect to both the assault and the felony-firearm convictions, which he would have under the automatic waiver statute, there is at least the chance that the judge would remand both convictions to a probate judge for disposition. Allowing sentencing discretion for more serious charges but not less serious charges produces inconsistent results and would be disadvantageous to a juvenile defendant. On the other hand, giving a circuit judge sentencing discretion for both types of offenses under the automatic waiver statute provides the greatest flexibility in dealing with juvenile offenders.
IV
On the basis of this analysis, we are convinced that the Legislature did not intend by its silence in the automatic waiver statute to require the bifurcation of lesser included and same transaction offenses. We find that the Legislature intended juveniles automatically waived to be treated consistently with the parallel scheme presently in effect for adults. We are not alone in our conclusion and find satisfaction in knowing that many states treat juveniles in a similar manner. _
V
Our conclusions in these cases implicate the Court of Appeals decision in People v Deans, supra. The Deans Court considered the issues raised by both defendants here. It held that the circuit court did not have jurisdiction to try a defendant for nonenumerated offenses arising out of the same transaction as the enumerated offense. 192 Mich App 330. The Court reasoned that the statute was clear and unambiguous; the enumeration of nine felonies implied the exclusion of all others. Id. Citing the Schoeneth rule quoted above, however, the Court held that the circuit court retained jurisdiction to sentence a defendant convicted of a lesser included offense, even though the court had original jurisdiction over only the enumerated offense charged.
While we agree with the second conclusion of the Deans Court, we cannot agree with its first. The conclusion regarding the same transaction offenses completely ignores the parallel treatment of adult offenders in circuit court and the policy support for retaining circuit court jurisdiction over juvenile offenders. To the extent the Deans decision and its progeny contradict the decisions we make, they must be overruled. That portion of the Deans opinion relating to the lesser included offense issue is entirely consistent with the decisions we make, and, thus, need not be disturbed.
VI
For the reasons set forth above, we conclude that the circuit courts have jurisdiction to sentence juveniles charged with enumerated offenses, but convicted of nonenumerated lesser included offenses, and to try and sentence juveniles charged with both enumerated and nonenumerated offen ses arising out of the same criminal transaction. To the extent People v Deans and People v Spearman, 195 Mich App 434; 491 NW2d 606 (1992) are inconsistent with these conclusions, they are overruled. In Hill, the order to quash counts n to vn of the information should be vacated and the case remanded to the circuit court for trial of all charges. In Veling, the circuit judge’s remand order to the probate court for disposition should be vacated and the judge ordered to conduct a hearing, pursuant to MCL 769.1(3); MSA 28.1072(3), to determine if the best interests of defendant Veling and the public would be served by remanding the case to the probate court for disposition or by sentencing him as an adult.
Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.
Section 606 of the Revised Judicature Act provides in full:
The circuit court shall have jurisdiction to hear and determine a violation of section 83, 89, 91, 316, 317, 520b, or 529 of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.83, 750.89, 750.91, 750.316, 750.317, 750.520b, and 750.529 of the Michigan Compiled Laws, or section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, if committed by a juvenile 15 years of age or older and less than 17 years of age. [MCL 600.606; MSA 27A.606.]
In other words, a prosecuting attorney can proceed directly in the circuit court without having to request a waiver hearing against a juvenile aged fifteen or sixteen charged with committing the following crimes:
• Assault with intent to murder (MCL 750.83; MSA 28.278).
• Assault with intent to commit armed robbery (MCL 750.89; MSA 28.284).
• Attempted murder (MCL 750.91; MSA 28.286).
• First-degree murder (MCL 750.316; MSA 28.548).
• Second-degree murder (MCL 750.317; MSA 28.549).
• First-degree criminal sexual conduct (MCL 750.520b; MSA 28.788[2]).
. Armed robbery (MCL 750.529; MSA 28.797).
. Delivery of a controlled substance (MCL 333.7401; MSA 14.15[7401]).
• Possession of a controlled substance (MCL 333.7403; MSA 14.15[7403j).
Before the enactment of the automatic waiver statute, a juvenile could only be tried in circuit court if the prosecutor sought and received a waiver from the probate court. Michigan law provides:
If a child who has attained the age of 15 years is accused of an act which, if committed by an adult, would be a felony, the judge of probate of the county where the offense is alleged to have been committed may waive jurisdiction pursuant to this section upon motion of the prosecuting attorney. After waiver, it shall be lawful to try the child in the court having general criminal jurisdiction of the offense. [MCL 712A.4(1); MSA 27.3178(598.4X1).]
With the advent of the automatic waiver statute, this provision is no longer the exclusive means by which a prosecutor can try a juvenile in adult circuit court.
MCL 750.83; MSA 28.278. As stated in n 1, this offense is one of those specifically enumerated in the automatic waiver statute.
It is interesting to note that defendant does not contest the validity of his conviction for the nonenumerated offense, but only the court’s authority to sentence him.
MCL 769.1(3); MSA 28.1072(3) requires the circuit court to conduct a hearing to determine if the best interests of the juvenile and the public would be served by placing the offender in a juvenile facility or an adult corrections facility. The provision establishes certain criteria for the circuit judge in making this determination. Such criteria are essentially the same as those used by a probate judge in determining whether to waive jurisdiction of a juvenile to circuit court in a traditional waiver hearing. See MCL 712A.4(4); MSA 27.3178(598.4X4).
MCL 750.83; MSA 28.278.
MCL 750.227; MSA 28.424.
MCL 750.226; MSA 28.423.
MCL 750.227b; MSA 28.424(2).
MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v).
MCL 766.14(2); MSA 28.932(2) provides:
If at the conclusion of the preliminary examination of a juvenile the magistrate finds that a violation of [certain enu-, merated offenses], did not occur or that there is not probable cause to believe that the juvenile committed the violation, but that there is probable cause to believe that some other offense occurred and that the juvenile committed that other offense, the magistrate shall transfer the case to the juvenile division of the probate court of the county where the offense is alleged to have been committed.
There is, however, no prohibition against the prosecutor seeking a traditional waiver on the charges the magistrate removed from circuit court. See MCL 766.14(2); MSA 28.932(2).
See Paley v Coca-Cola, 389 Mich 583; 209 NW2d 232 (1973). Moreover, any legislative intent to divest jurisdiction once it has properly attached must be clearly and unambiguously stated. Leo v Atlas Industries, Inc, 370 Mich 400; 121 NW2d 926 (1963).
See, e.g., Jimenez v Commonwealth, 10 Va App 277; 392 SE2d 827 (1990), rev’d on other grounds 241 Va 244; 402 SE2d 678 (1991); Broughton v Commonwealth, 596 SW2d 22 (Ky App, 1979); State v Shults, 169 Mont 33; 544 P2d 817 (1976) (all courts holding that where a defendant is charged with a felony giving the trial court jurisdiction, a subsequent lesser included misdemeanor conviction does not divest the trial court of jurisdiction). See also Zimmerman v Miller, 206 Mich 599, 604-605; 173 NW 364 (1919), in which this Court held that a circuit court retains jurisdiction in a civil case even when the verdict is below the jurisdictional requirement.
It is a general rule of construction that "lawmakers are presumed to know of and legislate in harmony with existing laws.” People v Harrison, 194 Mich 363, 369; 160 NW 623 (1916).
See, e.g., Tolbert v State, 598 So 2d 1011 (Ala Crim App, 1991) (where an adult court had jurisdiction to try a juvenile defendant charged with felony murder, the court had jurisdiction, on the basis of a waiver hearing, to try theft charges because items taken from the victim were taken in the same factual and criminal transaction as the felony murder); Taylor v State, 194 Ga App 871; 392 SE2d 57 (1990) (the appellate court applied the Worthy rule that concurrent jurisdiction of trial courts over capital felonies committed by juveniles necessarily extends to related lesser crimes that are part of the same criminal transaction). See also State v Johnson, 121 Wis 2d 237; 358 NW2d 824 (1984) (where charges not included in a waiver hearing were not "wholly unrelated” to the transaction considered at the waiver proceeding, the trial court had jurisdiction to try a juvenile on all counts).
Double jeopardy is only one of several difficulties associated with requiring two trials for enumerated and nonenumerated offenses. As noted by the New Jersey Superior Court
[t]o require treatment of the same criminal episode partially in Juvenile Court and partially in adult court would serve no beneficial purposes believed to be derived from the creation of a .system of juvenile courts. To permit fragmentation of the criminal transaction invites many possible problems, such as in sentencing, or with collateral estoppel, double jeopardy and merger. Fragmentation is also wasteful of prosecutorial, defense and judicial resources. [In re RLP, 159 NJ Super 267, 272; 387 A2d 1223 (1978).]
See also State v Garcia, 93 NM 51, 53-54; 596 P2d 264 (1979), in which the New Mexico Supreme Court used the same rationale to hold that if a juvenile court finds at a traditional waiver hearing that a juvenile defendant should be prosecuted as an adult, the adult court obtains jurisdiction over the juvenile’s entire case.
See n 5 for a discussion of the postconviction hearing required for juveniles brought before a circuit court via the automatic waiver statute.
The postconviction sentencing hearing does not apply to jurisdiction of minors that is waived to circuit court under the traditional procedures. People v Cosby, 189 Mich App 461; 473 NW2d 746 (1991). Moreover, the court rules detailing the hearing process do not apply to jurisdiction of minors that is waived under the traditional procedures. See MCR 6.901(B).
Note, however, it is equally likely that the circuit court should have jurisdiction over both enumerated and nonenumerated offenses because the juvenile should be treated like an adult for all purposes. In the context of a traditional waiver hearing, the Pennsylvania Supreme Court, in Commonwealth v Romeri, 504 Pa 124; 470 A2d 498 (1983), cert den 466 US 942 (1984), held that circuit court jurisdiction extends to lesser charges arising out of the same "criminal episode” because
it is unrealistic to believe that a youthful offender who the court determines cannot profit from the care, guidance and control aspects of a juvenile proceeding on the murder charge . . . would be amenable to such care, guidance and control on the non-murder charges arising from the same criminal transaction. [Id. at 138.]
Where automatic waiver statutes are involved, there is a presumption in many states against subsequently divesting a court of its jurisdiction once it has properly attached. Williams v State, 459 So 2d 777, 779 (Miss, 1984) (the court reasoned that "[i]t would be a mockery of the law and justice to hold that when a juvenile is indicted for murder . . . the circuit court must proceed with a trial on the murder charge, or lose jurisdiction, if a plea or conviction for a lesser-included offense occurs”). See also Walker v State, 309 Ark 23, 29-30; 827 SW2d 637 (1992) (the court rejected the argument that prosecutorial overcharging would result from maintaining circuit court jurisdiction over juvenile convictions of nonenumerated lesser included offenses; the court reasoned that ethical rules and punishment for their violation were sufficient deterrent for prosecutors); Snodgrass v State, 273 Ind 148, 152; 405 NE2d 641 (1980) (the court rejected an argument for divesting jurisdiction because "considerations for both judicial resources and double jeopardy proscriptions dictate that a court should have jurisdiction to impose sentence upon a verdict of guilty, as to any necessarily lesser-included offense or any lesser degree of the offense for which the defendant was lawfully charged and tried”). And see Marine v State, 607 A2d 1185 (Del, 1992); Lucas v United States, 522 A2d 876 (DC App, 1987); People v Martin, 43 Colo App 44; 602 P2d 873 (1979) (each court holding that once a defendant is charged with an enumerated offense and adult court jurisdiction attaches, jurisdiction is not lost simply because the juvenile defendant is convicted of a lesser included offense).
Similarly, once an adult court has obtained jurisdiction over a juvenile defendant by means of a traditional waiver hearing, it has been held that court retains jurisdiction to sentence the defendant when there has been a plea of guilty or conviction of a lesser included offense, even if that offense was not considered at the waiver hearing. People v Jimmie Smith, 35 Mich App 597; 192 NW2d 666 (1971) (the Court affirmed the defendant’s conviction of unarmed robbery, even though the waiver hearing referred only to armed robbery). See also Iglesias v State, 599 So 2d 248 (Fla App, 1992); State v Hamilton, 285 SC 133; 328 SE2d 633 (1985); Dicus v Second Judicial Dist Court, 97 Nev 273; 625 P2d 1175 (1981); Gray v State, 6 Md App 677; 253 A2d 395 (1969) (all these courts holding that when an adult court acquires jurisdiction in prosecution of an offense from a juvenile court, the adult court maintains jurisdiction to convict the defendant of the charged crime and any lesser included offenses).
On its own initiative, and citing only Deans, supra, another panel of the Court of Appeals, in People v Spearman, 195 Mich App 434; 491 NW2d 606 (1992), reversed a felony-firearm conviction on the grounds that the automatic waiver statute did not automatically give the court jurisdiction over nonenumerated offenses arising out of the same criminal transaction.
Indeed, it is clear that the Court of Appeals has not been unanimous on this issue. Over seven months before the Deans decision was announced, a different panel of the Court of Appeals implied in dicta that the automatic waiver statute applied to all crimes arising out of the same criminal transaction as the enumerated offense. See People v McCoy, 189 Mich App 201, 202, n 1; 471 NW2d 648 (1991).
In vacating this order, we note that the Oakland County circuit judge had no authority to remand this case to the probate court without conducting the postconviction sentencing hearing, unless that hearing was waived by the prosecutor and the defendant. See MCL 769.1(4); MSA 28.1072(4). | [
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Riley, J.
In this case, we are called upon to decide the primacy of insurance liability between plaintiff no-fault insurer and two different employee health benefit plans established by defendants pursuant to the Employee Retirement Insurance Security Act, in which each contract with their insured contains unambiguous coordination-of-benefits (cob) clauses. Related questions are whether the erisa permits subrogation of claims, whether the issue was properly preserved for this Court’s review, and whether the existence of "stop-loss” insurance has any bearing on our determination of the first issue.
We hold that subrogation of claims is permitted under the erisa. We also conclude that the erisa issues were preserved for this Court’s review. In addition, we find that the cob clause in an erisa plan must be given its plain meaning despite the existence of a similar clause in a no-fault insurance policy as a matter of federal common law. Finally, we conclude that the existence of stop-loss insurance is irrelevant to the issue of preemption under the facts of these cases. Thus, we affirm the opinions of the Court of Appeals.
I
FACTS AND PROCEDURAL HISTORY
A
AUTO CLUB V FREDERICK & HERRUD, INC
Plaintiff Auto Club, paid no-fault automobile accident benefits to seven of its insureds who worked for defendant Frederick & Herrud or who were dependents of Frederick & Herrud employees. Pursuant to a cob clause in its contract with the insureds and a related subrogation clause, plaintiff filed a complaint to recover its expenditures from defendant under the terms of defendant’s self-funded employee welfare benefits plan (hereafter "Frederick plan”) that also contains a cob clause.
In response to defendant’s motion for summary disposition, the circuit court concluded that neither party was entitled to a judgment that the other was solely responsible for the benefits paid. Having determined that the competing cob clauses were unambiguous, the court entered a judgment ordering both parties to pay half the benefits owed to the insureds.
The Court of Appeals reversed the circuit court’s summary judgment order concluding that the legislative intent behind MCL 500.3109a; MSA 24.13109(1) required that a no-fault insurer provide only secondary coverage in cases involving competing cob clauses. 145 Mich App 722, 728; 377 NW2d 902 (1985). The case was remanded to the circuit court for entry of an appropriate order.
Following remand, defendant retained the services of different counsel. Defendant moved for leave to file an amended answer and notice of affirmative defenses that, for the first time, asserted preemption of any state law claims by the erisa. The circuit court denied the motion to amend. Several months later, it entered an order denying defendant’s motion for summary disposition for lack of subject matter jurisdiction and granted plaintiff’s motion for entry of judgment.
Defendant appealed the denial of its motion to amend and its motion for summary disposition. The Court of Appeals affirmed the judgment on the basis of the holding of the United States Court of Appeals for the Sixth Circuit in Northern Group Services, Inc v Auto Owners Ins Co, 833 F2d 85 (CA 6, 1987), cert den 486 US 1017 (1988), which provided that the Michigan rule for coordination of benefits in MCL 500.3109a; MSA 24.13109(1) was not preempted by the erisa. 175 Mich App 412, 417-419; 438 NW2d 320 (1989). This Court denied defendant’s application for leave to appeal.
Defendant sought a writ of certiorari in the United States Supreme Court. In lieu of plenary consideration, the United States Supreme Court vacated the judgment of the Court of Appeals and remanded for further consideration in light of its recently decided FMC Corp v Holliday, 498 US 52; 111 S Ct 403; 112 L Ed 2d 356 (1990).
On remand, the Court of Appeals noted that Northern Group Services, supra, was effectively overruled by FMC Corp. 191 Mich App 471, 474; 479 NW2d 18 (1991). Accordingly, it ruled that the state regulation found in MCL 500.3109a; MSA 24.13109(1) is preempted by the erisa and reversed the circuit court’s judgment. Id. That defendant’s health plan may have been partially insured was held to be immaterial because plaintiff failed to preserve the issue. Id. This Court granted plaintiff’s application for leave to appeal for consideration with the companion case.
B
AUTO CLUB v PENTWATER WIRE PRODUCTS, INC
Plaintiff Auto Club paid no-fault automobile accident benefits to its insured, Alice Guetzka. Pursuant to a cob clause in the contract, together with its right of subrogation of the insured’s claims, plaintiff filed a complaint against defendant, the erisa health plan of her estranged husband’s employer, seeking recoupment of $357,699 in benefits paid, together with roughly $150,000 in interest and attorney fees. The employee health benefits plan ("Pentwater plan”) provided for payment of the first $14,000 of any valid claim in addition to any amounts over $1,000,000. The gap in coverage occasioned by these provisions was filled by "stop-loss” insurance. The Pentwater plan also contains a cob clause.
One month after the complaint was filed in a state court, defendant sought to remove the case to the United States District Court for the Western District of Michigan on the ground that the erisa preempted plaintiff’s claim. Shortly thereafter, the parties stipulated to an abeyance pending the decision of the United States Court of Appeals for the Sixth Circuit in Northern Group Services, Inc v Auto Owners Ins Co, supra. Following issuance of the decision in Northern Group Services, the district court remanded the case to the state court because "Auto Club [pleaded] a state law cause of action only” in the absence of preemption.
On remand, the circuit court granted plaintiff’s motion for summary disposition while denying defendant’s motion. An order was entered on July 25, 1989, granting plaintiff’s motion for partial summary judgment. On April 9, 1990, the circuit court entered an amended judgment in favor of plaintiff for $511,253.08. Defendant’s motion for a new trial or relief from the judgment was denied on January 29, 1990.
Defendant filed its claim of appeal after the United States Supreme Court decided FMC Corp. The Court of Appeals did, however, have the benefit of the FMC Corp holding because it had already been considered and adopted by another panel in the companion case. Therefore, relying on this earlier precedent, the Court reversed, concluding that MCL 500.3109a; MSA 24.13109(1) was preempted by erisa, that the existence of "stop- loss” insurance was irrelevant to the issue of preemption, and that plaintiff failed to preserve its argument that erisa preemption required consideration of the federal common law on the conflicting clauses issue rather than dismissal of the action. Unpublished opinion per curiam of the Court of Appeals, decided January 6, 1992 (Docket No. 126174). With the assistance of new counsel, plaintiff moved for a rehearing that was denied in an order entered April 2, 1992. This Court granted plaintiff’s application for leave to appeal for com sideration of the erisa issues together with the companion case.
C
Before turning to the substantive issues, a brief overview of how the issues have reached this Court is in order. It would be fair to say that the primary issue regarding the conflicting coordination-of-benefits clauses has only recently been defined by a flurry of federal cases. Originally, plaintiff filed complaints for the recoupment of its expenditures alleging state law claims surrounding the interpretation of its cob clauses and its rights under a subrogation theory. In 1985, our Court of Appeals held that a no-fault insurer was to be considered secondarily liable to any health and accident insurer where both insurers’ contracts with an insured contained cob clauses. Frederick & Herrud, 145 Mich App 727-731.
In 1985, the federal courts also began to focus their attention on the erisa preemption problem in cases involving health and welfare benefits plans. And, following the landmark decision in FMC Corp, the issues implicated here reached the Sixth Circuit in several cases. In Auto Club Ins Ass’n v Health & Welfare Plans, Inc, 961 F2d 588 (CA 6, 1992), the court determined that erisa preemption, a point made clear in FMC Corp, did not ipso facto render the cob clause in a no-fault insurance policy void where it conflicted with a similar clause in an erisa health plan. The case was remanded to the district court to determine "how a court should resolve a conflict between two (presumably) unambiguous, seemingly valid, and irreconcilable coordination of benefits clauses, one contained in an erisa plan and one in a non-ERISA policy.” Id. at 594. In Lincoln Mutual Casualty Co v Lectron Products, Inc, Employee Health Benefit Plan, 970 F2d 206, 211 (CA 6, 1992), the Sixth Circuit concluded:
As we noted in Auto Club, the fact that § 3109a is preempted by erisa does not necessarily render Lincoln’s cob clause void, nor does it necessarily mean that the Plan’s terms prevail. We have before us, then, two valid, unambiguous, and irreconcilable clauses. Because no federal statutory law addresses the issue of how to resolve the conflict between the clauses, this case must be resolved by applying federal common law. [Emphasis added, citations omitted.][ ]
On remand in Lincoln Mutual, the district court concluded that Michigan’s interpretation of MCL 500.3109a; MSA 24.13109(1) would impermissibly subject erisa health plans to variable state regulation. 823 F Supp 1385, 1394 (ED Mich, 1993). Citing several unpublished Sixth Circuit cases involving erisa issues other than the conflict at issue here, the court held that "the straightforward language of the erisa policy provision . . . must be given its natural meaning.” Id. at 1392. The court further stated that, pursuant to the clear import of FMC Corp, the erisa health plan was not an insurance company subject to regulation by state law. Id. at 1392, n 9.
Two months earlier, the United States District Court for the Western District of Michigan had concluded that the federal common-law question framed by the Sixth Circuit in Auto Club and Lincoln Mutual, supra, required adoption of the pro-rata apportionment rule espoused in Winstead v Indiana Ins Co, 855 F2d 430 (CA 7, 1988). Auto-Owners Ins Co v Thorn Apple Valley, 818 F Supp 1078 (WD Mich, 1993). Although neither of the recent Sixth Circuit cases articulated a federal common-law rule, both noted, with apparent approval, the Winstead decision. Auto Club, 961 F2d 594-595; Lincoln Mutual, 970 F2d 211.
II
As a threshold matter, we acknowledge both defendants’ arguments that plaintiff is not a proper subrogee of its insureds’ right to seek payment from their erisa plans. We disagree.
The erisa creates a cause of action against an employee benefit plan in favor of participants and beneficiaries. 29 USC 1132(a)(1). A participant is an employee who is or may become eligible to receive a benefit from the plan. 29 USC 1002(7). A beneficiary is one who is designated by a participant or by the terms of the plan as one entitled to a benefit under the plan. 29 USC 1002(8). The acia is not an employee and is therefore not a participant. Nor does Uther plan provide for those other than employees o; their designees to receive benefits, and, therefore, it appears that the acia is not a beneficiary. The acia, however, argues that it is a subrogee of a plan participant or beneficiary, and therefore it may bring its claim for a benefit under the plan on behalf of its insureds — the plan participant and the plan beneficiary._
The federal courts that have addressed this question have not come to any consensus. Some courts hold that erisa definitions of participant and beneficiary require a narrow, literal interpretation, and because the erisa itself makes no provision for suits by subrogees, the subrogee has no standing to pursue a claim for benefits. See, e.g., Allstate Ins Co v The 65 Security Plan, 879 F2d 90 (CA 3, 1989); Nationwide Mutual Ins Co v Teamsters Health & Welfare Fund, 695 F Supp 181 (ED Pa, 1988). Other federal courts, including the United States District Court for the Eastern District of Michigan, have held that a subrogee does have standing to pursue a claim for benefits. Allstate Ins Co v Operating Engineers, 742 F Supp 952 (ED Mich, 1990). See also Misic v Building Service Employees Health & Welfare Trust, 789 F2d 1374 (CA 9, 1986), and Hermann Hosp v MEBA Medical & Benefits Plan, 845 F2d 1286 (CA 5, 1988) (an assignee of a participant has standing to claim benefits).
We believe that the better approach is to permit subrogation as a matter of public policy. Subrogation ensures the rapid payment of benefits to an injured person who might otherwise have to wait for resolution of any litigation over which the insurer is liable for benefits. From the federal standpoint, this comports with ttó federal policy of benefiting the employees. Although a successful suit has the effect of lowering funds in the erisa plan, only those funds that are owed to the insured may be collected. Moreover, subrogation benefits this state’s citizens for the same reason. Accordingly, we favor the line of federal cases permitting subrogation. See Operating Engineers, Misic, and Hermann Hosp, supra. See also Allstate Ins Co v Detroit Millmen’s Health & Welfare Fund, 729 F Supp 1142, 1146 (ED Mich, 1990). We therefore conclude that a subrogee may stand in the shoes of a subrogor erisa plan member until we are otherwise directed by federal precedent.
III
Both defendants allege that plaintiff failed to preserve the erisa issues for appellate review by failing to timely raise them in the proceedings before the circuit courts. In Frederick & Herrud, defendant first raised the erisa preemption issue after the Michigan Court of Appeals ruled in favor of plaintiff on the basis of its interpretation of the legislative intent behind MCL 500.3109a; MSA 24.13109(1). 145 Mich App 731-734. The erisa issue was decided in favor of defendant after the United States Supreme Court vacated the judgment of our Court of Appeals with directions to reconsider in light of FMC Corp. In Pentwater, the Court of Appeals reversed a judgment for the plaintiff in accordance with Frederick & Herrud. In short, reconsideration of the erisa preemption issue occurred in both cases as a direct result of the United States Supreme Court’s mandate in Frederick & Herrud. Thus, for the reasons that follow, we hold that the issues were preserved for our review.
First, the erisa implications in these cases were considered after plaintiff received favorable judgments in both cases. Accordingly, plaintiff was not required to take any steps for the preservation of its erisa issue concerning the federal common law. Second, the federal courts have made clear their preference for consideration of erisa issues despite a party’s failure to so frame the issues at the commencement of proceedings. In addition, the federal issues were incorporated either directly or indirectly at the behest of the United States Supreme Court with instructions to reconsider in light of FMC Corp. Moreover, we note that the recent Sixth Circuit cases deal with complaints originally filed in state courts that were later removed on the defendants’ motions. Although the cases before us did not take the same procedural route, we discern from the Sixth Circuit cases a preference for consideration. Third, any delay in the treatment of the erisa issues is directly attributable to their recent development in the federal courts rather than to any dilatory practice on the part of plaintiff or defendants. Accordingly, this Court is persuaded that plaintiff’s arguments merit plenary consideration.
IV
A
The erisa was signed into law by President Gerald Ford on Labor Day, 1974. As the act’s title indicates, its primary purpose is the protection of employees’ pension rights for plans created under the auspices of the erisa. The act also attempts to regulate "employee welfare benefit plan[s].” The erisa’s regulation of health and welfare benefit plans is, however, much less expansive than its pension-oriented counterparts. The lack of statutory guidance covering health and welfare plans has led to the development of a "federal common law” intended to supplement the provisions of the ERISA.
The foregoing discussion presupposes preemption of state law, which thereby creates the void to be filled by the federal common law. In the case of state insurance regulation, preemption is made more difficult by the existence of over a century’s deference by the federal courts to states’ expertise in the insurance field. In Paul v Virginia, 75 US (8 Wall) 168, 183; 19 L Ed 357 (1868), the United States Supreme Court ruled that the issuance of insurance policies was "not a transaction of commerce” and was therefore "governed by the local law.” The United States Supreme Court reversed its position, however, in United States v South-Eastern Underwriters Ass’n, 322 US 533; 64 S Ct 1162; 88 L Ed 1440 (1944). In response, in 1945, Congress passed the McCarran-Ferguson Act. Section 1011 provides:
Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
Section 1012 further provides:
(a) The business of insurance . . . shall be subject to the laws of the several States which relate to the regulation ... of such business.
(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance ....
The term "business of insurance” is undefined by the McCarran-Ferguson Act.
In contradistinction the preemption provisions of the erisa, 29 USC 1144(a), (b)(2)(A) and (B), which are known as the preemption, savings, and deemer clauses, respectively, provide:
(a) Except as provided in subsection (b) of this section, the provisions of this subchapter and sub-chapter III of this chapter shall supersede any and all State laws insofar as they may now or here after relate to any employee beneñt plan described in section 1003(a) of this title and not exempt under section 1003(b) ....
(b)(2)(A) Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.
(b)(2)(B) Neither an employee beneñt plan described in section 1003(a) of this title . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance . . . for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. [Emphasis added.]
Evaluation of the issues before us requires us to reconcile these two seemingly conflicting provisions. We begin with a discussion of several United States Supreme Court cases that foreshadow what we believe will become the "federal common law” in this matter.
B
In Alessi v Raybestos-Manhattan, Inc, 451 US 504; 101 S Ct 1895; 68 L Ed 2d 402 (1981), the United States Supreme Court concluded that a New Jersey statute forbidding pension plans from offsetting retirement benefits by amounts equal to workers’ compensation awards was preempted by the erisa and therefore had no effect on reduction provisions in erisa pension plans. According to the Court, "private parties, not the Government, control the level of benefits . . . .” Id. at 511. Although the state law ostensibly attempted to regulate workers’ compensation benefits and not pension plans, the Court viewed it as a law "relate[d] to pension plans” that attempted to directly control the method by which an erisa pension plan calculated its benefit payments. Id. at 524. In considering Congress’ intent, regarding possible "integration” of retirement benefits with other forms of compensation, the Court noted Congress’ acknowledgment of "the tension between the primary goal of benefiting employees and the subsidiary goal of containing pension costs.” Id. at 514-515.
In a case involving employee benefits rather than pension benefits, the Court found erisa preemption of New York’s Human Rights Law, which would have required erisa plans to provide benefits for pregnancy leave at a time when that was not required by federal law. Shaw v Delta Air Lines, Inc, 463 US 85; 103 S Ct 2890; 77 L Ed 2d 490 (1983). The Court noted Congress’ intent that the term "relates to” in 29 USC 1144(a) be afforded a broad interpretation so that state laws attempting to govern matters not speciñcally covered by the erisa were still subject to preemption. Id. at 98. A unanimous Court agreed that "[a] law 'relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Id. at 96-97. Regarding New York’s Disability Benefits Law, the Court concluded that, while plans whose benefits are entirely coextensive with provisions required by state law may be excepted from erisa preemption, that is not the case where the plan in question is a multibenefit plan. Id. at 107. In other words, plans whose sole purpose is to comply with state law are not entitled to erisa preemption in an attempt to avoid the effects of state law, whereas plans with coverage in excess of state requirements are the proper subject of preemption. The piecemeal applicability of state and federal law that would occur if sections of an erisa plan, rather than the plan itself, were subject to state control under § 1003(b)(3) was characterized as an "administrative impracticality.” Id.
Several years after the United States Supreme Court defined the erisa preemption clause in ^47-essi and Shaw, it had occasion to consider the effect of the saving clause in a case involving state law governing an insurance matter. Metropolitan Life Ins Co v Massachusetts, 471 US 724; 105 S Ct 2380; 85 L Ed 2d 728 (1985). Massachusetts law required health insurers, including erisa health plans, to provide minimum mental health care benefits. The Court held that thé saving clause deserved as broad an interpretation as the preemption clause that saves state-mandated laws regulating insurance. Id. at 740, 746. The Court further engaged in a restrictive reading of the deemer clause, concluding that it only removed from the purview of the savings clause state insurance regulations "that apply directly to benefit plans . . . .” Id. at 741 (emphasis added). This distinction would permit indirect regulation of insured erisa plans but not of self-funded plans. Id. at 747.
In Fort Halifax Packing Co, Inc v Coyne, 482 US 1; 107 S Ct 2211; 96 L Ed 2d 1 (1987), the Court recognized the erisa purpose of avoiding variable state regulation that would pose administrative burdens on employers. The majority distinguished between state laws regulating certain beneñts to be provided by employers and those regulating erisa plans. Id. at 7-8. According to the majority, state regulation of a plan would subject employers to undesirable administrative burdens while regulation of a benefit, here a one-time severance payment, would not have any radical effect on the administration of the erisa plan involved. Id. at 10-14. Because the effect of Maine’s severance pay law would only have a one-time effect on the erisa plan, it did not truly "relate to” the plan and it therefore was not preempted by 29 USC 1144(a). Id. at 23. Four justices dissented on the basis of their belief that regulation requiring the payment of specific benefits "clearly 'relate[s] to’ benefit plans” as contemplated by the erisa preemption provision. 482 US 24 (White, J., dissenting).
The import of the preemption and the saving clauses having been defined in the previous cases, the Court turned its attention to the deemer clause in FMC Corp, supra. The plaintiff in FMC Corp was an employer with a self-funded erisa plan who sought recoupment of medical benefits paid on behalf of an employee’s daughter. The subrogation clause in the health plan provided for reimbursement out of any sums collected by the benefits recipient in a liability action against a third party. The defendant asserted that Pennsylvania’s antisubrogation statute obviated any duty to reimburse the plaintiff. Consideration of the preemption issue in this case led to the most succinct explanation of the preemption, saving, and deemer clauses to date.
The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that "relate[s] to” an employee benefit plan governed by erisa. The saving clause returns to the States the power to enforce those state laws that "regulare] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by erisa shall not be "deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws "purporting to regulate” insurance companies or insurance contracts. [498 US 58.]
Citing Shaw, the FMC Corp majority concluded that Pennsylvania’s antisubrogation statute related to the erisa plan. Id. at 58-59. The Court also cited Alessi and Fort Halifax, supra, for the proposition that the Court "ha[d] not hesitated to apply erisa’s pre-emption clause to state laws that risk subjecting plan administrators to conflicting state regulations.” Id. at 59. Furthermore, the antisubrogation law fell within the purview of the saving clause because it "directly controlled] the terms of insurance contracts by invalidating any subrogation provisions that they contained]” and "[i]t [does] not merely have an impact on the insurance industry; it [was] aimed at it.” Id. at 61.
On the issue of the deemer clause and its effect on the Pennsylvania statute, the majority opined:
[S]elf-funded erisa plans are exempt from state regulation insofar as that regulation "relate[s] to” the plans. State laws directed toward the plans are pre-empted because they relate to an employee benefit plan but are not "saved” because they do not regulate insurance. State laws that directly regulate insurance are "saved” but do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws. On the other hand, employee benefit plans that are insured are subject to indirect state regulation. An insurance company that insures a plan remains an insurer for purposes of state laws "purporting to regulate insurance” after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation. The erisa plan is consequently bound by state insurance regulations insofar as they apply to the plan’s insurer. [Id.]
As noted earlier, the erisa’s primary purpose is to protect employees’ pension rights from abuse. Another clear purpose is to ensure the minimization of costs associated with the establishment of voluntary pension plans. Alessi, supra at 515. The policy behind erisa preemption in the case of health and welfare benefits plans is the same. However, the manifestation of this policy has differed slightly, perhaps because there was less statutory directive and, hence, more likelihood of varying interpretations occurring under case-by-case treatment. Nevertheless, we are persuaded that what must ultimately solidify the federal common law on the multitude of erisa issues is Congress’ intent to prevent "[a] patchwork scheme of regulation [that] would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them.” Fort Halifax, supra at 11. Moreover, what the recent federal interpretation of the deemer clause makes abundantly clear is that the majority of conflicts between state and federal law and policy will be decided by the federal courts. The only qualifier to erisa preemption of state insurance law is indirect regulation via state laws governing insurance companies that assume plan liability in exchange for premiums paid by an erisa plan. FMC Corp, supra at 61.
C
The courts of this state have adhered to an interpretation of MCL 500.3109a; MSA 24.13109(1) that requires a finding that a no-fault insurer is secondarily liable for insurance coverage where there is any other form of health care coverage and where the insurers both sought to escape liability through the use of competing coordination-of-benefits clauses. See, e.g., Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 546; 383 NW2d 590 (1986). The policy behind MCL 500.3109a; MSA 24.13109(1) is avowedly to eliminate duplicative recovery by an insured from both a health insurer and a no-fault insurer, and to contain or reduce no-fault and health care insurance costs.
In Federal Kemper, this Court reached the conclusion that the health insurance provider was primarily responsible for payments without considering erisa preemption although it appears that the defendant plan was an erisa plan. However, at the time Federal Kemper was decided, the federal position on state regulation of insurance law had long been one of deference to state expertise. See, e.g., Metropolitan Life, supra at 742-745 and ns 17-22. While the United States Supreme Court and the Sixth Circuit Court of Appeals have recently concluded that the conflict involved here is to be determined by the federal common law, exactly what that law should be is the subject of differing interpretations between the two federal district courts in this state. It is to this dilemma that we now turn.
D
At first blush, it would appear that we are confronted with conflicting public policies: one reflecting federal concern over the continued existence and growth of erisa health and welfare benefits plans and the other reflecting state concern over spiraling costs in the context of automobile accidents involving no-fault insurers. Our inquiry is further complicated by the fact that the federal policy also accrues to the benefit of the citizens of this state. Federal law requires neither the establishment of health and welfare benefits plans nor minimum funding requirements once the plans are established. State interference in the realm of erisa benefits could very well be the deciding factor in an employer’s decision to establish or adequately fund a health and welfare benefits plan.
Congress’ first move in its effort to prevent regulation that would frustrate the purposes behind the erisa was the enactment of the preemption clause. By its action, Congress made clear its intention to make federal law and policy supreme in the erisa context. Its effort was complicated, however, by the passage of the McCarran-Ferguson Act. In recognition of historic federal respect for the primacy of state law in areas traditionally dominated by state regulation, i.e., insurance; banking, and securities, Congress promulgated the erisa saving clause. Nonetheless, Congress removed from the reach of state regulation pension or health and welfare benefits plans established under the erisa pursuant to the deemer clause, although it did not specifically forbid any state regulation of insurance, banking, or securities law. Despite the existence of these clauses, workable guidelines in the context of health and welfare benefits plans have developed slowly.
In Alessi, the United States Supreme Court held that state law was preempted to the extent that it attempted to control the terms of an erisa pension plan. In Shaw, the Court interpreted the preemption clause to prevent state regulation of welfare benefits in multibenefit erisa plans, while noting the danger of the administrative difficulty that would result from piecemeal state legislation. Next, the Court defined the saving clause to preserve state law mandating certain minimum benefits in an erisa plan as long as the state law regulates insurance law rather than an erisa plan directly. Metropolitan Life, supra. Although the Court majority in Fort Halifax concluded that a one-time severance payment required by state law did not relate to an erisa plan so that it was preempted, the majority did reiterate the erisa purpose of avoiding variable state regulation that would pose administrative burdens to plan administrators. Finally, the Court concluded in FMC Corp that states could not regulate the contractual terms of erisa benefits plans in cases of self-funded plans. Erisa plans, however, are subject to indirect regulation in a case in which a state regulates an insurance carrier that has contracted with the plans to provide coverage for claims made on the plans.
Building upon these cases, the Sixth Circuit in Auto Club and Lincoln Mutual, supra, concluded that MCL 500.3109a; MSA 24.13109(1) was preempted by the erisa. Moreover, the fact that the plans purchased stop-loss insurance did not effect preemption because § 3109a, as interpreted by cases such as Federal Kemper, supra, would have a direct regulatory effect on the erisa plans. Lincoln Mutual, 970 F2d 210. Now we must anticipate what the federal common law should be.
We take our guidance from the Eastern District’s decision in Lincoln Mutual on remand because we believe that it best reconciles the tension between state and federal policy. We agree with that court’s conclusion that the cob clause in an erisa policy must be given its clear meaning without the creation of any artificial conflict based upon MCL 500.3109a; MSA 24.13109(1). Therefore, because both plans provide that no-fault insurance is primary where the potential for duplication of benefits occurs, we hold that the erisa plans’ terms control. The no-fault insurer, acia, is primarily liable for the benefits at issue. Although the Michigan statute purports to regulate insurance and not erisa plans, we conclude that it has a direct effect on the administration of the plans in these cases because it would virtually write a primacy of coverage clause into the plans. This is the type of state regulation that would lead to administrative burdens that the historical progression of federal cases recounted earlier forbids.
Moreover, and of equal importance, we are persuaded that the federal policy furthers the state interest of fostering the existence of health and welfare benefits plans for its citizens. Thus, the perceived conflict between state and federal policy is not as marked as plaintiff would have us believe. Earlier we noted that there is no law requiring the establishment or funding of erisa health and welfare benefits plans. We are also unaware of any state law requiring similar protection! Therefore, there is a considerable state interest in facilitating the creation and voluntary funding of such plans, especially in cases in which there is no automobile no-fault or other insurance to provide benefits. For these reasons, we conclude that MCL 500.3109a; MSA 24.13109(1) does not reach an erisa plan with a cob clause where that clause is unambiguous.
V
Plaintiff also argues in both cases that, in the event the federal common-law issue is decided adversely to its position, the federal common law would not apply to any amounts that are the subject of “stop-loss” insurance. Again, under the facts of this case, we must disagree.
In FMC Corp, supra, the United States Supreme Court ruled that self-funded health and welfare benefits plans were not insurance companies pursuant to the language of the deemer clause and were therefore not subject to regulation by state insurance law. On the other hand, state regulation of insurance companies that would only indirectly effect erisa plans is permitted. 498 US 61. We must therefore distinguish between what is “direct” and what is "indirect” state regulation of these erisa plans.
Under the terms of the Frederick plan, defendant retains the duties of administrator. The Pentwater plan also provides that defendant Pent-water is the plan administrator. Thus, MCL 500.3109a; MSA 24.13109(1) and the cases interpreting it would have the effect of removing all discretion from the plan administrators on the issue whether to pay health benefits when other sources of payment exist. We are persuaded that this qualifies as a direct rather than an indirect effect on the plans.
This very point was recognized in Lincoln Mutual, 970 F2d 210. Although the Sixth Circuit did not invalidate the state law, the court concluded that the direct effect required preemption under FMC Corp so that the issue had to be decided as a matter of federal law. For the policy reasons stated previously, we conclude that the existence of "stop-loss” insurance is irrelevant in this case because any regulation of it would have a significant effect on the administration of the erisa plans involved.
VI
CONCLUSION
In sum, we conclude that subrogation is permitted under the erisa and that the issues considered here were preserved for this Court’s review. Further, we hold that an unambiguous cob clause in an erisa health and welfare benefit plan must be given its plain meaning despite the existence of a similar clause in a no-fault policy because any conflict created by the requirements of MCL 500.3109a; MSA 24.13109(1) and this Court’s interpretation of the statute would have the direct effect of dictating the terms of the erisa plans. To the extent that our decision in Federal Kemper is inconsistent with our holding today, it is overruled. We emphasize, however, that the primacy of health care coverage over that in a no-fault policy continues in Michigan jurisprudence in all cases not within the purview of this narrow holding. We also conclude that the existence of stop-loss insurance has no bearing on the outcome here because discretion to pay or deny claims remains in the erisa plan and was never delegated to the insurers.
Affirmed.
Cavanagh, C.J., and Levin, Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.
29 USC 1001 et seq.
At some time after proceedings were filed in this matter, the name of the company was changed to Thorn Apple Valley, Inc. The caption was changed to reflect the proper name of defendant by the United States Supreme Court in 498 US 996; 111 S Ct 552; 112 L Ed 2d 559 (1990). For purposes of consistency, defendant will be referred to as "Frederick & Herrud” or "defendant” except where its present name appears in an official citation.
Auto Club’s insurance policy provides in pertinent part:
In consideration of the reduced premium for Personal Protection Insurance and a presumption that medical benefits are provided by another source, . . . under the Medical Benefits Coverage, sums paid or payable to or on behalf of the named insured . . . shall be reduced by any amount paid or payable under any . . . disability or hospitalization insurance, medical, surgical or hospital direct pay or reimbursement health care plan ....
The option of a lowered insurance premium for a policy providing for coordinated benefits is a mandatory feature of all no-fault automobile insurance policies issued in Michigan. See MCL 500.3109a; MSA 24.13109(1).
Section twenty-one of defendant’s plan provides:
In addition to the benefits payable under this plan, sometimes an employee or dependent is entitled to benefits for the same hospital or medical expenses under the group fault or no- fault auto insurance, individual no fault auto insurance .... Should this type of duplication occur, the benefits under this plan will be co-ordinated so that the total benefits from all plans will not exceed the hospital or medical expenses actually incurred. In all cases employees with no-fault auto insurance coverage, the auto insurance carrier will be primary.
433 Mich 902 (1989).
See n 2.
441 Mich 878 (1992).
The relevant provision states:
If the Declaration Certificate shows Coordinated Medical Benefits, sums paid or payable to or for you or any relative shall be reduced by any amount paid or payable under any valid and collectible: individual, blanket or group disability or hospitalization insurance; medical, surgical or hospital direct pay or reimbursement health care plan; Workers’ Compensation Law, disability law of a similar nature, or any other state or federal law; or car or premises insurance affording medical expense benefits.
"Stop-loss” coverage consists of the purchase of insurance by a benefits plan to pay valid claims according to a plan’s terms. A plan may be entirely self-funded or it may shift the risk of paying benefits to an insurance company by using funds allocated to the plan for payment of insurance premiums. In the instant case, the Pentwater plan bears the risk of employee claims up to the $14,000 figure and over $1,000,000.
The clause provides:
[N]o-fault Auto coverage is always considered to be the primary Plan, and This Plan shall be deemed to provide only "excess insurance.”
The brief in support of the motion appears to be the first time that the erisa issue was squarely presented to the circuit court. Defendant asserted the following as its basis for the motion:
[I]n light of this new decision [Northern Group Services, supra], the defendant asserts that this court should reconsider its prior ruling on the parties’ motions and, this court should find that pursuant to the Liberty Mutual [Ins Group v Iron Workers Health Fund of Eastern Michigan, 879 F2d 1384 (CA 6, 1989)] decision that Section 3109a is preempted, and therefore, the Auto Club Insurance Association policy is primary and there is no cause of action against the defendant. [Emphasis added.]
See Auto Club Ins Ass’n v Frederick & Herrud, Inc (On Remand), supra.
441 Mich 879 (1992).
This Court adopted the reasoning of the Court of Appeals in Federal Kemper Ins, Inc v Health Ins Administration, Inc, 424 Mich 537; 383 NW2d 590 (1986). In Kemper, we noted the existence of a majority rule on the issue, which attempts to reconcile the conflict by discerning the parties’ intent, and a minority rule considering the conflicting clauses "mutually repugnant” and assigns pro-rata liability. Id. at 542-543. Notwithstanding the existence of these views, the Court determined that the legislative intent behind MCL 500.3109a; MSA 24.13109(1) required the conclusion that the health insurer was primarily liable in this situation.
We conclude, therefore, that defendant health insurer is primarily liable. Giving effect to plaintiff’s coordinated benefits provision furthers the purposes of § 3109a to contain both auto insurance costs and health care costs, while eliminating duplicative recovery. [Id. at 551.]
See Metropolitan Life Ins Co v Massachusetts, 471 US 724; 105 S Ct 2380; 85 L Ed 2d 728 (1985), discussed infra at 384-386.
We are told that the parties to this case settled the controversy without opinion of the district court.
In Northern Group Services, supra, the Sixth Circuit concluded that MCL 500.3109a; MSA 24.13109(1) was the type of state regulation that survived erisa preemption. 833 F2d 95. Northern Group Services is, however, a pre-FMC Corp case and is accordingly of questionable import. In several other cases, the federal courts refrained from deciding the conflict by characterizing the clauses in erisa plans as exclusions rather than as cob clauses. The exclusionary language in the erisa plans was then given its plain meaning, which removed any conflict with a cob clause in a no-fault insurance policy. See, e.g., Liberty Mutual Ins Group v Iron Workers Health Fund of Eastern Michigan, n 11 supra; Allstate Ins Co v Detroit Millmen’s Health & Welfare Fund, 729 F Supp 1142 (ED Mich, 1990); Transamerica Ins Co of North America v Peerless Industries (MASCO), 698 F Supp 1350 (WD Mich, 1988). See also Transamerica Ins Co of America v IBA Health & Life Assurance Co, 190 Mich App 190; 475 NW2d 431 (1991) ("[W]here a clear and unambiguous limitation of benefits for injuries related to auto accidents appears in a health and accident insurance policy . . . such limitation is a valid exclusionary provision”).
The district court’s strict interpretation of the erisa plan’s terms included emphasis on the fact that the clause excluded coverage of more than $300 for auto accident injuries. We read the case not as an "exclusion” case, see n 16 supra, but as a preemption case squarely addressing the issues before us today.
Both of the recent federal district court cases are on appeal to the Sixth Circuit to determine what the federal common law should be in the case of conflicting cob clauses, one of which is contained in an erisa health and welfare benefits plan.
See also Federal Kemper, n 14 supra.
See Washington v Lane, 840 F2d 443, 444-445 (CA 7, 1988) (an appellee may raise any grounds for an affirmance without filing a cross-appeal).
See Miller v Metropolitan Life Ins Co, 925 F2d 979 (CA 6, 1991) (the trial court properly considered erisa issues despite the plaintiff’s total reliance on state law claims in the complaint).
See Auto Club and Lincoln Mutual, supra.
Because the issues before us are the subject of federal law, we support our position with federal authority. Were it otherwise, we have at our disposal the rule that an issue may be raised for the first time on appeal where its consideration is necessary to a proper determination of the case. See, e.g., Joyce v Vemulapalli, 193 Mich App 225, 228; 483 NW2d 445 (1992).
PL 93-406, tit I, § 2, 88 Stat 832 (codified at 29 USC 1001 et seq.).
See, generally, Brummond, Federal preemption of state insurance regulation under ERISA, 62 Iowa LB 57 (1976).
29 USC 1002(1) defines the term "employee welfare benefit plan” as
any plan, fund, or program which was heretofore or is hereafter established . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services .... [Emphasis added.]
See Gregory, The scope of ERISA preemption of state law: A study in effective federalism, 48 U Pitt LR 427, 432-433 (1987); Boggess, ERISA’s silent pre-emption of state employee welfare benefit laws: The perils of relying upon the road less traveled, 1992 Det Col L R 745, 747, 752.
See Pilot Life Ins Co v Dedeaux, 481 US 41; 107 S Ct 1549; 95 L Ed 2d 39 (1987). See also Franchise Tax Bd v Construction Laborers Vacation Trust, 463 US 1, 24, n 26; 103 S Ct 2841; 77 L Ed 2d 420 (1983) (the "erisa’s legislative history indicates that ... a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans”) (quoting Senator Javits, 120 Cong Rec 29942 [1974]), In re White Farm Equipment Co, 788 F2d 1186, 1191 (CA 6, 1986) ("Congress intended to establish employee benefit plan regulation as an exclusive federal concern, with federal law to apply exclusively, even where erisa itself furnishes no answer”).
15 USC 1011 et seq.
As the more recent federal cases make clear, the issues considered today are within the province of federal law. See Auto Club and Lincoln Mutual, supra. Because the Sixth Circuit Court of Appeals has not decided the conflicting clauses issue, and because the district courts are split on its resolution, this Court is called upon to anticipate the ultimate federal position.
The following excerpt from the committee report on the proposed erisa bill makes clear the delicate balance between individual and collective employee benefits:
"On the one hand, the objective of the Congress in increasing social security benefits might be considered to be frustrated to the extent that individuals with low and moderate incomes have their private retirement benefits reduced as a result of the integration procedures. On the other hand, your committee is very much aware that many present plans are fully or partly integrated and that elimination of the integration procedures could substantially increase the cost of financing private plans. Employees, as a whole, might be injured rather than aided if such cost increases resulted in slowing down the growth or perhaps even eliminat[ing] private retirement plans.” [Quoting] HR Rep No 93-807, p 69 (1974), reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), 3189 (1976). [451 US 515. Emphasis added.]
29 USC 1003(b) provides:
The provisions of this subchapter shall not apply to any employee benefit plan if—
(3) such plan is maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws.
29 use 1144(b)(2)(A).
To determine whether a law qualifies as one regulating the "business of insurance,” and thereby avoids preemption under the authority of the McCarran-Ferguson Act, see n- 30 supra and accompanying text, and the saving clause, its erisa counterpart, three criteria must be considered:
"[F]irsf, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” [471 US 743, quoting Union Labor Life Ins Co v Pireno, 458 US 119, 129; 102 S Ct 3002; 73 L Ed 2d 647 (1982). Emphasis in original.]
The dissent notes that the majority’s view would permit state regulation of a benefit as long as the regulation would not require the creation of an administrative scheme. 482 US 24. To the extent that the dissenters are correct, the majority holding would appear to be inconsistent with the Shaw holding, which provides in part that “[a] State may require an employer to maintain a disability plan complying with state law as a separate administrative unit.” 463 US 108.
For a discussion of the exceptions to preemption for certain state laws, see, generally, anno: Construction and application of preemption exemption, under Employee Retirement Income Security Act (29 USC 1001 et seq.,) for state laws regulating insurance, banking, or securities (29 USC 1144[b][2]), 87 ALR Fed 797.
Section 1720 of Pennsylvania’s Motor Vehicle Financial Responsibility Law provides:
In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to . . . benefits paid or payable . . . under section 1719 .... [75 Pa Cons Stat Ann 1720.]
Section 1719(a) in turn provides:
Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits . . . shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits .... [75 Pa Cons Stat Ann 1719(a).]
See, generally, Gregory, n 28 supra at 443-448, 454 and the authority cited therein.
Employers are not required to establish pension funds for employees under the erisa. Once such plans are established, however, the erisa safeguards their proper maintenance. See Gregory, n 28 supra at 448.
The erisa neither requires the establishment of employee health and welfare benefits plans nor the funding of such plans once established. See Gregory, n 28 supra at 449, n 70 and the authority cited therein.
In Metropolitan Life, supra at 739-747, the United States Supreme Court read the saving clause broadly to preserve state regulation of insurance. This position, however, was retracted in part by FMC Corp, supra at 64, wherein the Court majority concluded that “the language of the deemer clause [was] either coextensive with or broader, not narrower, than that of the saving clause.”
For a discussion of conflicting "excess” or coordination-of-benefits clauses, see, generally, anno: Apportionment of liability between liability insurers each of whose policies provides that it shall be "excess” insurance, 69 ALR2d 1122; 44 Am Jur 2d, Insurance, §§ 1788-1791, pp 776-780; 16 Couch, Insurance, 2d (rev ed), § 62:79, pp 548-550.
29 USC 1144(a).
See n 30.
29 USC 1144(b)(2)(A).
29 USC 1144(b)(2)(B).
Under § 14 of the plan, employees requesting benefits pick up forms from the employer. In §§ 15 and 16, the plan covers procedures for denial of claims and for the appeal-of-denials procedure. Finally, § 26, subsection 5 provides that the plan is administered by "Frederick & Herrud, Inc.” There is no indication that defendant Frederick & Herrud delegates any authority regarding claims made on the plan.
Although Pentwater set up a trust as its way of setting aside sufficient funds, that trust provides in art II, § 2.1 that the trustee "shall, from time to time at the direction of the Plan Administrator or the Corporation, make payments out of the Trust Fund . . . .” Moreover, art V, § 5.2 of the Pentwater plan defines the plan administrator as "The Employer.” In addition, the "stop-loss” policy issued to defendant by Safeco provides that it will reimburse defendant for benefits “paid for covered persons under your plan.” Accordingly, all discretion regarding the payment or denial of claims remains with defendant.
See Wolverine Mutual Ins Co v Rospatch Corp Employee Benefit Plan, 195 Mich App 302, 308, n 2; 489 NW2d 204 (1992) ("[A]n insurance policy that merely protects the plan from disastrous consequences, but does not directly insure the obligations owed to the plan members, does not affect the plan’s status as self-insured”). | [
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Mallett, J.
The present case involves the extraterritorial jurisdiction of the Bureau of Workers’ Disability Compensation. We hold that the bureau has jurisdiction and remand the case for further proceedings consistent with this opinion.
I
The Bureau of Workers’ Disability Compensation addressed the current dispute on a brief stipulation of facts that Willie Boyd was an Illinois resident, that he entered into a contract of employment in Michigan, that while executing his duties pursuant to the contract he sustained a personal injury and died in Indiana, and that the injury and death arose out of and in the course of his employment.
Boyd’s widow filed a petition for benefits with the bureau. The magistrate dismissed the claim for want of jurisdiction, and the Workers’ Compensation Appellate Commission affirmed. The Court of Appeals denied plaintiff’s application for leave to appeal, which this Court then granted. 441 Mich 931 (1993).
II
Section 845 of the workers’ compensation act grants extraterritorial jurisdiction to the Bureau of Workers’ Disability Compensation over claims resulting from injuries that occur outside Michigan.
The bureau shall have jurisdiction over all controversies arising out of injuries suffered outside this state where the injured employee is a resident of this state at the time of injury and the contract of hire was made in this state. Such employee or his dependents shall be entitled to the compensation and other benefits provided by this act. [MCL 418.845; MSA 17.237(845).]
In addition, the act broadly defines employees covered by the act.
Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, provided the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act. [MCL 418.161(l)(d); MSA 17.237(161)(l)(d).]
Juxtaposed against these statutory provisions is Roberts v IXL Glass Corp, 259 Mich 644; 244 NW 188 (1932), the landmark case interpreting an earlier version of § 845 and enunciating the Michigan rule of law regarding extraterritoriality. In Roberts, the plaintiff contracted for employment in Michigan with a resident corporation. However, he resided, performed all services, and received his injury outside Michigan. The defendant argued that the statutory requirement of residency in the state at the time of the injury limited the jurisdiction of the industry accident board and, for that reason, the board lacked jurisdiction.
This Court disagreed, and concluded that the claimant was entitled to compensation even though he was not a Michigan resident.
[W]e are satisfied that the reasonable construction and the one necessary to carry out the legislative intent appearing from the whole act is that it covers nonresident as well as resident employees in those cases wherein the contract of employment is entered into in this State with a resident employer.[ ]
The Court interpreted the jurisdictional provision in pari materia with the respective statutory provisions broadly defining the term “employee” and setting forth the scope of the statute’s coverage.
[Defendant’s] contention [regarding residency] would come with much, if not controlling, force if it were not in conflict with other portions of the statute. It is quite significant that this recital as to the employee being a resident at the time of injury was embodied by the amendment in the procedural part (part 3) of the act only; but was not inserted in the part of the act (part 1) which defines and fixes the rights and liabilities of employers and employees. . . . Further, the quoted portion of section 6[ ] seems conclusive of the fact that the original enactment was intended to cover "all employees” regardless of residence or the locus of the accident. [Roberts, supra at 647.]
This Court further noted that the statute expressly provided for compensation to the dependents of a fatally injured employee regardless of the residence of the dependents. "As a matter of legislative policy it would be quite inconsistent” to deny compensation to an injured employee because he was a nonresident, while awarding compensation to the dependents of a fatally injured employee regardless of residence.
At the time this Court decided Roberts, the workers’ compensation act was elective, that is, an employer was not automatically subject to the act’s provisions. However, the Legislature amended the act in 1943, making it compulsory. Shortly after the 1943 amendment, this Court addressed the jurisdictional provision of the act but failed to mention Roberts. See Cline v Byrne Doors, Inc, 324 Mich 540; 37 NW2d 630 (1949); Daniels v Trailer Transport Co, 327 Mich 525; 42 NW2d 828 (1950). The omission of Roberts from the analyses of those cases is fathomable; Cline and Daniels are distinguishable from Roberts in that they involved claims for additional benefits under the act after the employee first obtained compensation from the state where the injury occurred.
Some time later, in Austin v W Biddle Walker Co, 11 Mich App 311; 161 NW2d 150 (1968), the Court of Appeals reaffirmed Roberts. Austin was a Kentucky resident who contracted in Michigan with a Michigan corporation. Austin worked for a brief period in Michigan, but was transferred to Kentucky, where he sustained an injury. The wcab found that because the contract of employment was entered into in Michigan, the board had jurisdiction pursuant to Roberts. The Court of Appeals affirmed and concluded that statutory amendments making the act compulsory had no eifect on the holding in Roberts. Judge Levin dissented because of his disagreement with the majority’s emphasis on the place of contracting. Nonetheless, he persuasively asserted that strict adherence to the residency requirement in § 845 is neither warranted nor desirable.
It is now 35 years since Roberts was decided. Whatever may have been the legislative intention at the time of adoption of the residency require ment (CL 1948, § 413.19 [Stat Ann 1960 Rev § 17.193]), it would be inappropriate at this late date to attempt to breathe new life into a statutory provision which was aborted so long ago. If the legislature desired to insist on a residency requirement, it could have done so at any time within the last 35 years; it was inferentially invited to do so in Roberts, p 649.[ ]
Despite the continued vitality of Roberts as recognized in Austin, the Court of Appeals has begun to interpret § 845 in contravention of Roberts. In Wolf v Ethyl Corp, 124 Mich App 368; 335 NW2d 42 (1983), the plaintiff was hired in Michigan by a Virginia corporation. Following a transfer to and while working in New York, the plaintiff resided in Connecticut. The plaintiff subsequently sustained injuries in a work-related car accident in New York and filed for disability benefits in Michigan. The wcab concluded that the plaintiff’s nonresidence in Michigan at the time of the accident precluded jurisdiction. The Court of Appeals affirmed and held that the clear and unambiguous language of § 845 requires both that the injured employee be a resident of Michigan at the time of injury and that the employment contract was consummated in Michigan.
We find that the case of Roberts v IXL Glass Corp, 259 Mich 644; 244 NW 188 (1932), which can be read as suggesting a different result, is not applicable to today’s modern mandatory workers’ compensation scheme. . . . The present statutory scheme has been made mandatory and has been revised and refined. Being bound not to usurp legislative power, see Const 1963, art 3, § 2; Michigan Harness Horsemen’s Ass’n [v Racing Comm’r, 123 Mich App 388; 333 NW2d 292 (1983)], we must apply the clear legislative mandate of the modern act’s jurisdictional provisions![ ]
The Court then retreated from announcing a new bright line rule by limiting the holding to the facts in that case, because "[q]uestions of residency, dual residency or temporary domicile to perform contractual employment must await case-by-case interpretation.” Wolf, supra at 370.
A few years later, the Court of Appeals followed Wolf in a similar case. In Hall v Chrysler Corp, 172 Mich App 670; 432 NW2d 398 (1988), reconsideration den 432 Mich 931 (1989), the plaintiff was hired in Michigan and later accepted a transfer to Delaware. While working and residing in Delaware, the plaintiff alleged a disabling personal injury and filed for benefits. The wcab dismissed the claim for lack of jurisdiction and the Court of Appeals affirmed.
Because of the different nature of the 1912 Workers’ Compensation Act, the Wolf Court held the Roberts decision to be inapplicable to the plain language of the Michigan wdca. We agree with the reasoning contained in the Wolf decision and find that a person must be a resident of the state at the time of the injury and be subject to the terms of an employment contract entered into in Michigan.[ ]
III
Wolf and Hall indicate that Roberts is no longer controlling because of amendments made in the workers’ compensation act after Roberts was decided. Specifically, those cases suggest that because Roberts was decided at a time when the act was elective, Roberts is no longer valid. However, as the Court of Appeals noted in Austin, the relevant portion of the act has remained unchanged. The fact that the act became compulsory subsequent to Roberts is irrelevant; the requirements of § 845 have remained intact. Accordingly, Wolf and Hall may be reduced to the conclusion that Roberts is no longer valid precedent because it is "too old.”
As the Court of Appeals repeatedly noted, it is the Supreme Court’s obligation to overrule or modify case law if it becomes obsolete, and until this Court takes such action, the Court of Appeals and all lower courts are bound by that authority. Edwards v Clinton Valley Center, 138 Mich App 312; 360 NW2d 606 (1984); McMillan v Michigan State Hwy Comm, 130 Mich App 630; 344 NW2d 26 (1983); Ratliff v General Motors Corp, 127 Mich App 410; 339 NW2d 196 (1983); Schwartz v City of Flint (After Remand), 120 Mich App 449; 329 NW2d 26 (1982), rev’d on other grounds 426 Mich 295; 395 NW2d 678 (1986). While the Court of Appeals may properly express its belief that a decision of this Court was wrongly decided or is no longer viable, that conclusion does not excuse the Court of Appeals from applying the decision to the case before it. People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987). Because this Court has never overruled Roberts, it remains valid precedent. The rule of law regarding extraterritorial jurisdiction as expressed in Roberts should have been applied by the bureau in the present case.
If the allegedly "out-dated” Roberts decision is overruled by this Court, then a significant gap in coverage will exist in this state’s compensation scheme. Specifically, all Michigan employees who suffer an out-of-state injury in the course of their employment and who reside in neighboring states will not be subject to the bureau’s jurisdiction. We believe that such a jurisdictional scheme is not only undesirable but also unduly restrictive. As Professor Larson notes,
In the majority of states, the local statute will be applied if the place of injury, or the place of hiring, or the place of employment relation is within the state. Two-thirds of the states will take jurisdiction of out-of-state injuries if either the place of hiring or the place of employment relation is within the state. These two factors figure in most of the other states in different combinations.[ ]
Roberts remains an effective means of retaining a fair and consistent scheme for extraterritorial jurisdiction. This Court has stated that a court will not overrule a decision deliberately made unless the Court is convinced not merely that the case was wrongly decided, but also that less injury would result from overruling than from following it. Dolby v State Hwy Comm’r, 283 Mich 609; 278 NW 694 (1938). Clearly, because of the gap in coverage that would result, overruling Roberts would cause a far greater injury than allowing Roberts to stand.
The dissent’s assertion that Roberts was wrongly decided and contrary to the plain meaning of the statute does not change the fact that the Legislature has acquiesced in extraterritorial jurisdiction as expressed in Roberts for over sixty years, despite numerous opportunities in the statutory history of the workers’ compensation act to amend § 845. This Court has stated that the doctrine of stare decisis applies with full force to decisions construing statutes or ordinances, especially where the Legislature acquiesces in the Court’s construction through the continued use of or failure to change the language of a construed statute. Consumers Power Co v Muskegon Co, 346 Mich 243; 78 NW2d 223 (1956). In Dean v Chrysler Corp, 434 Mich 655, 664; 455 NW2d 699 (1990), we stated,
When, over a period of many years, the Legislature has acquiesced in this Court’s construction of a statute, the judicial power to change that interpretation ought to be exercised with great restraint. On more than one occasion our Court has quoted with approval the statement that stare decisis "is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the legislature.” [Consumers Power Co v Muskegon Co, 346 Mich 243, 251; 78 NW2d 223 (1956), quoting 21 CJS, Courts, § 214, pp 388-390. See also In re Clayton Estate, 343 Mich 101, 107; 72 NW2d 1 (1955)].[ ]
We further noted that the principles of stare decisis are particularly applicable when the Legislature has reenacted the statutory language without change. Id. at 665. The Legislature has revised the wdca several times but has yet to take any action that would indicate its disapproval of the Roberts interpretation of § 845. Because of its failure to amend § 845, the Legislature has accepted the interpretation of that section given by this Court in Roberts as an important part of the entire workers’ compensation scheme. Thus, we believe that this Court should not disturb the Roberts interpretation.
IV
We conclude that pursuant to § 845 of the workers’ compensation act and Roberts v IXL Glass Corp, supra, the Bureau of Workers’ Disability Compensation shall have jurisdiction over extraterritorial injuries without regard to the employee’s residence, provided the contract of employment was entered into in this state with a resident employer. In the present case, the bureau erred in failing to find that it had jurisdiction over the plaintiff’s claim. As a result, we remand this case to the bureau for further proceedings consistent with this opinion.
Reversed and remanded.
Cavanagh, C.J., and Levin and Boyle, JJ., concurred with Mallett, J.
1921 PA 173, amended the statute and added § 19, part III, which currently exists as § 845. 1929 CL 8458 provided:
The industrial accident board shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employe is a resident of this state at the time of the injury, and the contract of hire was made in this State, and any such employe or his dependents shall be entitled to the compensation or death benefits provided by this act.
Roberts, supra at 648-649.
1929 CL 8413.
The term "employe” as used in this act shall be construed to mean . . . [ejvery person in the service of another, under any contract of hire, express or implied ....
1929 CL 8412.
[S]uch employer accepts the provisions of this act for all his businesses, and to cover and protect all employes employed in any and all of his businesses, including all businesses in which he may engage and all employes he may employ while he remains under this act ....
See Roberts, supra at 646.
Id. at 648.
1943 PA 245.
Austin, supra at 315-317.
Id. at 319.
Wolf, supra at 370.
Hall, supra at 673.
The dissent labels this assertion as "misleading” by narrowly construing the types of employees who fit this description. Riley, J., post at 535. Contrary to the dissent’s assertions, our definition of Michigan employee is not reduced solely to one who contracts for employment in Michigan. Many nonresident employees work for resident corporations and perform a great deal of services both in and out of the state. For example, a truck driver or salesman who lives in Toledo, Ohio, and works for a Michigan corporation falls in this category. These transient employees should not be denied workers’ compensation simply because they are Ohio residents and were injured in the course of employment while out of the state; they are as much a part of the Michigan system as a resident employee.
4 Larson, Workmen’s Compensation, § 87.00, p 16-67. For an introduction to the different approaches that accompany the place of hiring and place of employment factors, see, e.g., Ala Code 25-5-35; Ariz Rev Stat Ann 23-904A; Ga Code Ann 34-9-242; Hawaii Rev Stat 386-6; Ind Stat Ann 22-3-2-20; Ky Rev Stat 342.670; Md Code Ann 9-203; Minn Stat Ann 176.041; Miss Code Ann 71-3-109; Mont Code Ann 39-71-402; NM Stat Ann 52-1-64; ND Cent Code Ann 65-08-01; Tenn Code Ann 50-6-115; W Va Code 23-2-la.
Riley, post at 536.
See People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990) ("Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed”). See also Abendschein v Farrell, 382 Mich 510, 517; 170 NW2d 137 (1969).
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. [Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J., dissenting).] | [
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Riley, C.J.
The Legislature has given a broad grant of authority to the probate court to protect children who come within its jurisdiction.
We disagree with the reading of chapter XIIA of the probate code by the dissent to the extent it would limit the authority of the probate court to those orders expressly listed in § 18. Our reading of the provisions granting and describing the jurisdiction of the probate court persuades us that probate court power extends beyond § 18.
The jurisdiction of the probate court, a court of limited jurisdiction, is defined by the Legislature. MCL 600.847; MSA 27A.847 provides in pertinent part:
In the exercise of jurisdiction vested in the probate court by law, the probate court shall have the same powers as the circuit court to hear and determine any matter and make any proper orders to fully eifectuate the probate court’s jurisdiction and decisions.
To determine the breadth of the power granted to the probate court by chapter XIIA of the Probate Code, the "jurisdiction vested in the probate court by law” must be delineated.
Fairly characterized, the paramount purpose of the juvenile section of the Probate Code is to provide for the well-being of children. To this end, MCL 712A. 1(2); MSA 27.3178(598.1X2) provides:
This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive the care, guidance, and control, preferably in his or her own home, as will be conducive to the child’s welfare .... [Emphasis added.]
In 1944, in a further move to provide for the well-being of children coming within the jurisdiction of the court, the Legislature enacted §6 of chapter XIIA, which states:
The juvenile division of the probate court shall have jurisdiction over adults as hereinafter provided and may make such orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular child or children under its jurisdiction: Provided, That such orders shall be incidental to the jurisdiction of the court over such child or children. [MCL 712A.6; MSA 27.3178(598.6). Emphasis added.]
A plainer, more straightforward statement of the authority conferred on the probate court to fashion necessary orders to protect children who come within its jurisdiction would be difficult to imagine.
We are persuaded that this section provides clear authority for the court to make orders which are necessary for the well-being of a child. The dissent interprets the phrase that the court has " 'jurisdiction over adults as hereinafter provided’ ” to limit jurisdiction over adults to the orders in § 18. Post, p 412. However, in reaching this conclusion, the dissent ignores the word "and” after "hereinafter provided.” Thus, contrary to the view expressed by the dissent, we conclude that the probate court has " 'jurisdiction over adults as hereinafter provided and may make such orders affecting adults as . . . are necessary for the physical, mental, or moral well-being of a particular child.’ (Emphasis added.)
Section 18 of chapter XIIA was enacted at the same time as § 6. Thus, it is fair to say that the Legislature intended the two sections to be interpreted consistently with each other. The appellee’s arguments that § 18 was later amended to exclusively limit the court’s power to § 18, and that the specific nature of the orders in § 18 negates the broad grant of power in § 6 are not persuasive.
We find nothing in the 1972, 1982, or 1988 amendments to support these arguments. The amendments did not alter the meaning of the section to exclusively limit the court’s power to § 18. Since the amendments of § 18 did not alter the meaning of the section to specifically provide for exclusivity, § 6 and § 18 are still to be considered consistent as the Legislature intended in 1944. Another indication that § 18 is to be read in light of § 6 are the words "as hereinafter provided” in the latter section. By acknowledging other relevant provisions in § 6, we conclude that the Legislature has clearly indicated its intent that the related sections be interpreted consistently with each other rather than intending that one section override the other.
In the instant case, while §6 provides strong support for the orders given in the probate court, § 18 can also be read to justify the probate court’s orders. Section 18(l)(b) authorizes an order placing a child under supervision in the child’s own home:
Place the child on probation, or under supervision in the child’s own home or in the home of an adult who is related to the child. . . . The probation or supervision shall be upon such terms and conditions, including reasonable rules for the conduct of the parents, guardian, or custodian, if any, designed for the physical, mental, or moral well-being and behavior of the child, as the court determines. [Emphasis added.]_
In addition, § 18(l)(g) provides:
Order the parents ... to refrain from continuing conduct which . . . has caused or tended to cause the child to come within or to remain under this chapter ....
In analyzing the foregoing sections, it is significant to note that these dispositional orders are stated in broad, general terms. The court may provide "reasonable rules for the conduct of the parents [designed for the well-being of the child].” Also, the court may order parents to discontinue conduct which, "in the opinion of the court,” causes a child to come within the court’s jurisdiction. Thus, we hold that the Legislature has conferred very broad authority to the probate court. There are no limits to the "conduct” which the court might find harmful to a child. The Legislature intended that the court be free to define "conduct” as it chooses. Moreover, in light of the directive that these provisions are to be "liberally construed” in favor of allowing a child to remain in the home, we find these sections supportive of the court’s order prohibiting the father from living with his daughter. The court could have found that the conduct which "tended to cause” the daughter’s sexual victimization was the proximity of the father to the daughter. Thus, the court could order the father to refrain from conducting himself, at all, in the presence of the child.
Certainly, the immediate conduct which "caused” the child to come within the jurisdiction of the court was the sexual behavior of the father. However, the court could well have found that such an order prohibiting the father from touching his daughter may not have been effective in assuring the safety of the child. However, it is not only conduct which immediately "causes” the abuse which can be prohibited, but also conduct which tends to cause the abuse. The court could properly find that the living arrangements, father and daughter under the same roof, tended to cause, or led to the misconduct.
Although the dissent would find that the probate court did not have the authority to order the appellee to support his family, it states that "[section 18 spells out the kinds of orders that the probate court is authorized to enter . . . .” Post, p 412 (emphasis added). This statement seems to contemplate that the authority extends beyond the four corners of § 18. Yet, despite the dissent’s acknowledgment that § 18 represents the "kinds of orders” allowable, it does not find the support order proper. We do not agree.
Sections 18(2) and 18(3) provide that the court may order reimbursement by a parent to the court for the costs of services and care to a child. While § 18(2) concerns costs for placement outside of the home, § 18(3) concerns reimbursement for costs incurred by a child in the child’s own home. Certainly, these were the "kinds of orders” which were issued in this case. Under §§ 18(2) and 18(3), a court can take jurisdiction of a child, incur costs in caring for the child, and order a parent to reimburse for those costs. The order in this case is similar in that it ordered a parent to provide financial support for the family. Both orders direct a parent to pay for the care of a child within the jurisdiction of the court.
There is evidence in other sections of chapter XIIA that the Legislature intended to give the probate court broad powers and flexibility in providing for the well-being of children. Section 18f(2) directs agencies to write case service plans for the use of the court and the parties. Section 18f(3)(b) states that case service plans shall include "[e]f-forts to be made by the child’s parent[s] to enable the child to return to his or her home.” Under § 18f(4), "[t]he court may order compliance with all or any part of the case service plan as the court considers necessary.” (Emphasis added.)
Thus, under § 18 the court may order parents to refrain from conduct, or to act affirmatively, in the interest of the child. Under § 18f(3)(b), case service plans are to include efforts by the parents to enable a child to return home. An effective "effort” in this regard might consist of outside counseling or therapy aimed at reforming an abusive parent. Under § 18f(4), a probate court may order compliance with the plan if considered necessary, and lawfully regulate a parent’s activity outside of the home.
Under MCL 712A.19b; MSA 27.3178(598.19b), the probate court has power to terminate parental rights:_
(3) The court may terminate the parental rights of a parent to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under either of the following circumstances:
(i) A parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.
Section 19 authorizes the drastic measure of terminating parental rights. Nevertheless, the dissent is reluctant to acknowledge authority in the probate court to implement harsh measures affecting adults. In light of § 19, it is inconsistent for the dissent today to urge an interpretation of this legislation which denies the court the authority to tailor remedies which fall short of terminating parental rights and which are necessary for the well-being of a child.
Further evidence of past interpretation by this Court of chapter XIIA can be found in the Michigan Court Rules. MCR 5.965(B)(10) provides:
If the court authorizes the filing of the petition as provided in subrule (B)(9), the court may release the child to a parent or the court may place the child with someone other than a parent as provided in subrule (C). Release of the child to a parent following the authorization of a petition may be accompanied by reasonable terms and conditions believed necessary to protect the physical health or mental well being of the child. [Emphasis added.]
Again, we note that "reasonable terms and condi tions believed necessary” is broad and expansive language. Moreover, MCR 5.965(C)(2) discusses the three prerequisites to releasing a child to someone other than a parent:
(a) custody of the child with the parent presents a substantial risk of harm to the life, physical health, or mental well being of the child;
(b) no provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from the risk as described in subrule (C)(2)(a); and
(c) conditions of child custody away from the parent are adequate to safeguard the health and welfare of the child.[ ]
The complicated problem posed by this case is underscored by this section. While all these criteria apply with regard to the father, none exist as to the mother. When issuing its order, the probate court gave due regard to both the supportive mother/daughter relationship, and the abusive father/daughter relationship. It certainly would have been unfair to the victim, and irresponsible given the historic purpose of this legislation, to have removed her from her mother, brother, and home environment because of her father’s abusive behavior.
Finally, MCR 5.973(A)(5)(b) discusses dispositional orders:
The court shall not enter an order of disposition until it has examined the case service plan as provided in MCL 712A.18f; MSA 27.3178(598.18f). The court may order compliance with all or part of the case service plan and may enter such orders as it considers necessary in the interest of the child. [Emphasis added.]
Again, the broad language of this court rule does not expressly limit permissible orders to § 18, but construes the code to allow orders which are "necessary” for the child’s best interest.
We are persuaded that to interpret the Juvenile Code only to authorize the dispositional remedies expressly provided in § 18 would severely limit the probate court’s effectiveness in providing for the well-being of children. To be sure, situations will arise which call for creative solutions, not contemplated by the Legislature in § 18. To its credit, the Legislature recognized this need. The probate court should have the flexibility to tailor orders to remedy the complicated and myriad problems posed by abusive family relationships. It is reasonable to contemplate scenarios, much like this one, where a court reasonably believes a parent’s daily proximity to a child "tends to cause” the abuse. It is also reasonable to contemplate scenarios where the home is rendered unfit by the actions of one parent.
The Legislature granted the probate court the needed flexibility in § 6. Sections 6 and 18 were enacted at the same time, the presumption being that they are to be read in light of each other. Section 6 states clearly that orders may be implemented which are "necessary” for the well-being of a child. There is further support in §§ 18f, 19b, and the court rules that the probate court is so empowered.
With all due respect, we believe that the dissent’s concern about the breadth of this grant of power is exaggerated. While the language is broad, it provides sufficient guidance and needed flexibility to the court. The court is limited in that it can only act after it has jurisdiction over a child, and it may only act to ensure a child’s well-being. Any orders aimed at adults must also be incidental to the court’s jurisdiction over children. In addition, under § 6, the court may only make orders affecting adults if "necessary” for the child’s interest. The word "necessary” is sufficient to convey to probate courts that they should be conservative in the exercise of their power over adults. Furthermore, upon review of an order affecting adults, if an appellate court finds the factual record insufficient to justify the "necessity” of the order, it may overturn the order as clearly erroneous.
In this case, the record was sufficient to support the court’s orders. A jury determined that the father had sexually abused the daughter in the past, and his behavior indicated a likelihood of similar conduct in the future. In contrast, the child’s relationship with the mother was healthy. Given the objective of the act that provisions should be liberally construed in favor of keeping children at home, it was reasonable for the court to determine it was necessary to remove the father from the home and order him to pay support.
While we disagree with the dissent regarding the probate court’s post-trial authority, we find that the pretrial order prohibiting the father from living at home was improper.
Under § 6, the court cannot act to issue "orders affecting adults” until it has acquired jurisdiction of a child. With regard to jurisdiction, MCR 5.973(A) provides:
General. A dispositional hearing is conducted to determine measures to be taken by the court with respect to the child properly within its jurisdiction and, when applicable, against any adult, once the court has determined following trial, plea of ad mission, or plea of no contest that the child comes within its jurisdiction. [Emphasis added.]
Along the same line, the staff comment on the court rules states:
It is unclear whether the Legislature intended to authorize the court to order parents to comply with the “initial service plan” at the pretrial stage. Traditionally, a court would not order the parent to comply with a case service plan before it has assumed jurisdiction over the child. [Mich Ct R, p R 5-88.]
There is no general statutory authorization for referees or judges to make dispositional orders prior to trial. Furthermore, ordering a father out of his home absent a trial raises potential due process implications.
The decision of the Court of Appeals is reversed to the extent it found that the probate judge exceeded his authority in the issuance of post-trial orders.
Brickley, Boyle, Archer, and Griffin, JJ., concurred with Riley, C.J.
Cavanagh, J., concurred in the result only.
Levin, J.
(to affirm). The questions presented are whether the probate court has authority to order a parent out of the family home and to pay support for the family. The Court of Appeals held that it did not. I agree and would affirm.
i
A teenage girl, then sixteen, came to the atten tion of the probate court in January, 1987. A caseworker for the Department of Social Services reported that she said that when she was approximately nine years old, her father, Harold Macomber, had repeatedly, for approximately one year, forced her to disrobe, fondled her body as they lay in bed together nude, and that he had penetrated her vagina digitally. She further reported that six years later, beginning in the fall, 1986, her father had begun making sexual advances to her by rubbing her breasts, buttocks, vagina, and thighs while she was fully clothed.
A preliminary hearing was scheduled before a judge. A referee conducted the hearing on January 23, 1987. After hearing testimony from the caseworker, Harold Macomber, his wife Lucille, the daughter, and an older brother, the referee reported that he found probable cause to believe that the allegations of abuse were true as well as the daughter’s fear that her father would "go further.” The referee added that the daughter had talked to her brother and then her mother the previous Friday, January 16, 1987. The brother, twenty years old, said that he also had been sexually molested by Harold Macomber. Lucille Ma-comber said that she believed the allegations. Harold Macomber denied any and all wrongdoing.
The referee authorized the filing of a petition, and ordered that the daughter be placed under the supervision of the dss in the care of her mother. He also ordered that, pending such hearing, Harold Macomber shall not reside in the family home and shall have no direct contact with the daughter without written permission of the dss.
Harold Macomber moved out of the family home pursuant to the order. He apparently provided for the support of his family without a court order; no support order was entered until after the adjudication that the daughter was within the jurisdiction of the court. An attorney entered an appearance for Harold Macomber on February 3, 1987. The attorney filed a number of motions including one to set aside the "Order of Disposition.” At the hearing on that motion, a question was raised concerning the referee’s authority to enter a preadjudication order requiring a father to vacate his home and refrain from having communication with his daughter.
The judge did not address the referee’s authority, but focused, rather, on his authority under § 6 of chapter XIIA, captioned Juveniles and Juvenile Division, of the Probate Code:
The juvenile division of the probate court shall have jurisdiction over adults as hereinafter provided and may make such orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular child or children under its jurisdiction: Provided, That such orders shall be incidental to the jurisdiction of the court over such child or children. [MCL 712A.6; MSA 27.3178(598.6).]
The judge concluded that the court’s authority concerning adults, set forth in § 6, "applies both before and after adjudication for instances such as this where there needs to be some temporary, even preadjudicative order over adults if the court finds such is necessary for the physical, mental or moral well-being of a child.” The judge announced that he would "reenter” the order previously entered by the referee, and did so on March 19, 1987. The judge did not address the scope of the court’s authority concerning adults..
In April, 1987, on evidence tending to support the allegations in the original complaint and subsequently filed petition, the jury "adjudicated” that the probate court had jurisdiction of the daughter. An interim order was entered making the daughter a temporary ward of the court, allowing her to continue to live with her mother, and continuing the order that Harold Macomber remain out of the home. Harold Macomber was directed to pay $180 per week for the support of his family and to attend counseling.
Following a June 30, 1987, dispositional hearing, the judge entered an order continuing the daughter as a temporary ward of the court and continuing the reference to the dss for supervision in the home of her mother, and, finding that it is "necessary for the physical, mental or moral well-being of [the daughter],” ordered that Harold Macomber should:
(1) . . . not have any direct, indirect, in person, verbal, written, by phone, by mail, or any other means of contact with said child or Phillip and Lucille Macomber without written authorization from the [dss] or the court.
(2) . . . attend counseling and the "Parents Who Care” support group meetings as required by Wanda Carter-Smith or any replacement caseworker at the YWCA-Child Sexual Abuse Center.
(3) . . . pay directly to Lucille Macomber, mother, $180.00 per week for the support of the family; Provided, that this support shall be reduced by $36.00 for each day that said father does not work and is not paid.
Pursuant to the order, the matter was reviewed and reevaluated by the judge semiannually beginning in December, 1987. On November 17, 1988, the judge ordered the daughter discharged as a temporary ward of the court on the basis that a judgment of divorce dissolving the marriage of Lucille and Harold Macomber had been entered and the judge’s finding that the daughter was not at risk because Harold Macomber is no longer in the home.
Harold Macomber was acquitted in circuit court, in July, 1987, of a charge of second-degree criminal sexual conduct arising out of the allegations of the daughter.
The Court of Appeals first addressed but declined to decide whether the juvenile division of the probate court had jurisdiction because, it said, the record was unclear when the petition was served or filed, adding that there were other grounds for reversal. _
The Court of Appeals began its dispositive analysis with a reference to Const 1963, art 6, § 15, which provides that " '[t]he jurisdiction, powers and duties of the probate court and of the judges thereof shall be provided by law.’ ” (Emphasis added.) The Court added that "[t]he probate court has no inherent powers. Its right to take jurisdiction of children and to govern their lives is based entirely on constitution and statute.”
The Court considered § 6, conferring "jurisdiction over adults” in the juvenile division of the probate court and empowering the court to make "orders affecting adults,” and nevertheless concluded that the probate court exceeded its power when it entered the order requiring Harold Ma-comber to leave the family home and to pay $180 per week to support his family.*
ii
The dss, recognizing that the probate court has no inherent powers, and can act only as authorized by statute, relies in part on § 1(2) of chapter XIIA, providing that the "chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive the care, guidance, and control, preferably in his or her own home, as will be conducive to the child’s welfare and the best interest of the state.”
The dss argues:
The Probate Court has the power to, under appropriate standards, terminate parental rights in children. The Court has the power to make a child a ward of the Court and put the child in foster care. Surely the Court must have the power to take steps to insure that a child receives care, guidance and control in her own home, by removing from the home the source for the Court to have exercised jurisdiction in the first place. The Court of Appeals opinion in this case will severely restrict a legitimate power of the Probate Court. Under the Court of Appeals analysis, a Probate Court confronted with a sexually abusive father would lack the power to remove the father from the home, but would either have to take the terrible chance that the sexual abuse would occur again, or take the severe step of removing the innocent child from the home. We submit that the Legislature could not have intended to leave the Probate Court with this Hobson’s choice.
The probate court, all agree, is a court of limited, statutorily prescribed authority. Section 18 of chapter XIIA provides for the "disposition” of a child who has been adjudicated to be within the jurisdiction and authority of the court. The probate court has a number of, but not unlimited, options under § 18. While there may be good and sufficient policy reasons that would support legislation empowering a probate judge to require an abusive parent to leave the family home, the Legislature has not authorized the probate court to do so.
Under § 18, after an adjudication, upon the conclusion of a trial, that a child is within the jurisdiction and authority of the probate court, the court may enter an order of "disposition”:
—warning "the child or the child’s parents,” and dismissing the petition;
—placing the child "on probation, or under supervision in the child’s own home or in the home of an adult who is related to the child,” and in so ordering include "reasonable rules for the conduct of the parents” that are designed for the "physical, mental, or moral well-being and behavior of the child, as the court determines”; _
—placing "the child in a suitable foster care home subject to the court’s supervision”;
—placing "the child in or committing] the child to a private institution or agency approved or licensed” by the dss;
—committing "the child to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive children of similar age, sex, and characteristics.”
If the child is placed outside the home, the court may require the parent to pay the cost of placement outside the home. The court might thus confront a parent with the alternatives of paying the cost of maintaining the child in a foster care home or of himself leaving the home so that the child can continue to live in the home. Some probate court judges have, in that manner, brought about the removal of an allegedly offending parent from the home.
There is, however, no provision expressly authorizing the probate court to require a parent to leave the home. "[Reasonable rules for the conduct of the parents” means parental conduct in the home in respect to the child while the child is in his own home pursuant to a court order placing the child in his own home under court supervision, not parental conduct generally. The provision authorizing the probate court to include reasonable rules for the conduct of parents if the child is placed on probation or under supervision in the child’s own home, does not contemplate that among the "reasonable” rules is a rule requiring a parent to leave the home.
The probate court was not authorized to require Harold Macomber to act affirmatively, or to pro vide. financial support, except to the extent set forth in § 18, or elsewhere in chapter XIIA. Section 18 spells out precisely when, and the extent to which, a parent can be ordered by the probate court to provide financial support, and does not authorize the probate court to require a parent to provide generally for the financial support of his family. To the extent that is a deficiency in the legislation, the Legislature can remedy the asserted deficiency by conferring on the probate court the same power that the circuit court may have in that regard.
To be sure, the probate court may order a parent "to refrain from continuing conduct which, in the opinion of the court, has caused or tended to cause the child to come within or to remain under this chapter, or which obstructs placement or commitment of the child pursuant to an order under this section.” That aspect of the probate court’s ¿power with respect to parental conduct is expressed in the negative—to "refrain from continued conduct.” It stretches those words to the breaking point to construe them as including, when a child is placed in his own home on probation or under supervision, as including within "obstruction of a] placement” a parent’s presence in his own home or, even viewing his presence as an affirmative act, a parent’s decision to remain in his own home.
Section 18 does not distinguish between a delinquent and an abused child. The theme of § 18 is that a delinquent or abused child should be removed from the corrupting environment. The probate court may, indeed, permit the child to remain in his own home, but the language employed to state that option, "[p]lace the child on probation, or under supervision in the child’s own home or in the home of an adult who is related to the child,” MCL 712A.18(l)(b); MSA 27.3178(598.18)(l)(b) (emphasis added), conveys the premise that it is the child, not the parent, who is on probation and in need of court supervision.
The Legislature has not conferred on the probate court plenary authority to govern the lives of parents insofar as may be necessary, in the probate court’s judgment, to advance the well-being or best interests of even a child who has been adjudicated to be within the jurisdiction of the probate court because delinquent or abused. _
Section 18 spells out the kinds of orders that the probate court is authorized to enter respecting the parents of a child who has been adjudicated to be within the jurisdiction of the probate court, thereby giving meaning to the limitations set forth in § 6 conferring on the probate court "jurisdiction over adults as hereinafter provided ” and stating "[t]hat such orders shall be incidental to the jurisdiction of the court over such child or children.” (Emphasis added.)
Since we conclude that the probate court does not, after trial and adjudication, have the authority under § 18 to enter an order of disposition requiring the father to leave the home, it is clear that, before trial and adjudication, neither a referee nor a judge is empowered to enter such an order.
For the words to take on the meaning which the dissent attributes to them, the section should have stated:
[T]he probate court shall have jurisdiction over adults as hereinafter provided [to] make such orders affecting adults [as necessary for the well-being of a child].
In relevant part, § 18 states:
Except as otherwise provided in subsection (15), if the court finds that a child is within this chapter, the court may enter any of the following orders of disposition which is appropriate for the welfare of the child and society in view of the facts proven and ascertained .... [MCL 712A.18(1); MSA 27.3178(598.18X1). Emphasis added.]
"Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible . . . .” 2A Sands, Sutherland Statutory Construction (4th ed), § 51.05, p 499.
In In re Draper, 150 Mich App 789, 801; 389 NW2d 179 (1986), vacated in part on other grounds 428 Mich 851 (1987), the Court cited § 6 as support for an order mandating a parent to attend counseling sessions:
The probate court may make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular child or children under its jurisdiction. Such orders are incidental to the jurisdiction of the court over the children. MCL 712A.6; MSA 27?3178(598.6). It can be argued that attending parenting classes and counseling sessions might be, in a given case, necessary for the physical, mental, or moral well-being of the children. Such court-imposed requirements are similar to treatment plans often entered into by agreement between parents and the dss.
Although § 18f was not effective until April 1989, it is still relevant in construing the scope of power the Legislature intended to confer on the probate court. 2A Sands, Sutherland Statutory Construction (4th ed), § 51.03, p 469, provides:
[I]n construing an ambiguous enactment it is held proper to consider not only acts passed at the same session of the legislature or other acts to which the act in question refers, but also acts passed at prior and subsequent sessions .... [Emphasis added.]
While MCR 5.965 applies to pretrial probate court authority, it is relevant to post-trial probate court authority in that the latter would be broader.
This Court granted leave to appeal limited to those questions. 434 Mich 861 (1990).
In re Macomber, 176 Mich App 131; 439 NW2d 307 (1989).
The caseworker had filed a complaint in the juvenile division of the probate court, alleging that the daughter was within the jurisdiction of the juvenile court under § 2(b)(2) of the Probate Code. MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2). The complaint alleged that the home was unfit because the daughter had been deprived of her emotional well-being.
712A.1 et seq.; MSA 27.3178(598.1) et seq.
1939 PA 288, as amended, MCL 701.1 et seq.; MSA 27.3178(1) et seq. The bulk of the Probate Code was repealed when the Revised Probate Code was enacted. 1978 PA 642, MCL 700.1 et seq.; MSA 27.5001 et seq. But chapter XIIA, Juveniles and Juvenile Division, was not repealed. MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq.
A claim of appeal had been filed with the Court of Appeals on July 28, 1987, and the Court of Appeals opinion was filed March 21, 1989.
The judgment of divorce, entered on October 24, 1988, provided alimony for Lucille Macomber for two years or less at $60 per week and child support for the daughter of $60 per week until she reached eighteen, finished high school, or discontinued her schooling.
The daughter was born December 8, 1970, and hence was on the eve of her eighteenth birthday. There was also a provision reducing the alimony to $50 per week upon the sale of the marital home and for continuation of the child support to an "extraordinarily later date as may be ordered by the court.” But see Smith v Smith, 433 Mich 606; 447 NW2d 715 (1989).
MCL 750.520c; MSA 28.788(3).
Our disposition makes it unnecessary to consider the preliminary questions addressed by the Court of Appeals. The order granting leave to appeal did not include those issues (n 1 supra).
176 Mich App 131, 134; 439 NW2d 307 (1989). The Court of Appeals cited Fritts v Krugh, 354 Mich 97, 112; 92 NW2d 604 (1958), and In re Kasuba Estate, 65 Mich App 25, 28; 236 NW2d 751 (1975), aff’d 401 Mich 560; 258 NW2d 731 (1977). There is ample additional authority.
Id., p 135.
This statute could be interpreted to grant the probate court broad powers, such as the power to order adults to attend parenting classes and counseling sessions. See In re Draper, 150 Mich App 789, 801; 389 NW2d 179 (1986), vacated in part 428 Mich 851 (1987). However, when MCL 712A.6; MSA 27.3178(598.6) is read in light of the other sections of the juvenile chapter of the probate code, particularly MCL 712A.18; MSA 27.3178(598.18), it becomes clear that the referee and probate judge exceeded their authority by ordering respondent not to reside in the family home and to pay Lucille Macomber $180 per week to support his family. We reject petitioner’s argument that the probate court needs the power to do whatever it considers to be necessary for the well-being of children under its jurisdiction. The probate court’s power is limited by statute. The referee’s and judge’s actions cannot be upheld based on their apparent good intentions in responding to allegations of misconduct. [Id., pp 135-136.]
The dss also relies on a provision of the Revised Judicature Act:
In the exercise of jurisdiction vested in the probate court by law, the probate court shall have the same powers as the circuit court to hear and determine any matter and make any proper orders to fully effectuate the probate court’s jurisdiction and decisions. [MCL 600.847; MSA 27A.847.]
The argument based on this section begs the question what constitutes the "jurisdiction vested in the probate court by law . . . .”
MCL 712A.18; MSA 27.3178(598.18).
Hekman, The judicial process: Hurting or helping the child victim?, 1 Colleague 12 (April, 1988).
MCL 712A.18(l)(a); MSA 27.3178(598.18)(1)(a).
(1) If the court finds that a child concerning whom a petition has been filed is not within this chapter, the court shall enter an order dismissing the petition. Except as otherwise provided in subsection (15), if the court finds that a child is within this chapter, the court may enter any of the following orders of disposition which is appropriate for the welfare of the child and society in view of the facts proven and ascertained:
(b) Place the child on probation, or under supervision in the child’s own home or in the home of an adult who is related to the child. As used in this subdivision "related” means any of the following relationships, by marriage, blood, or adoption: parent, grandparent, brother, sister, stepparent, stepsister, stepbrother, uncle, or aunt. The probation or supervision shall be upon such terms and conditions, including reasonable rules for the conduct of the parents, guardian, or custodian, if any, designed for the physical, mental, or moral well-being and behavior of the child, as the court determines. [MCL 712A.18(l)(b); MSA 27.3178(598.18)(l)(b).]
MCL 712A.18(1)(c); MSA 27.3178(598.18)(1)(c).
MCL 712A.18(l)(d); MSA 27.3178(598.18)(1)(d).
MCL 712A.18(1)(e); MSA 27.3178(598.18)(1)(e).
Section 18(lXe) provides that every order of commitment, under that subdivision to a state institution or agency described in an act of the Legislature there identified, shall name the superintendent of the institution as a special guardian to receive benefits due the child from the government of the United States, and that the benefits shall be used to pay the cost of care "in the institution which the parent or parents are found unable to pay.” (Emphasis added.)
Section 18 also provides:
An order of disposition placing a child in or committing a child to care outside of the child’s own home and under state or court supervision shall contain a provision for the reimbursement by the child, parent, guardian, or custodian to the court for the cost of care or service. [MCL 712A.18(2); MSA 27.3178(598.18X2). Emphasis added.]
Section 18 further provides:
An order of disposition placing a child in the child’s own home under subsection (l)(b) may contain a provision for the reimbursement by the child, parent, guardian, or custodian to the court for the cost of service. If an order is entered under this subsection, amounts due shall be determined and treated in the same manner provided for an order entered under subsection (2). [MCL 712A.18(3); MSA 27.3178(598.18X3). Emphasis added.]
If the court appoints an attorney to represent a child, parent, guardian, or custodian, an order entered under this section may require the child, parent, guardian, or custodian to reimburse the court for attorney fees. [MCL 712A.18(5); MSA 27.3178(598.18X5). Emphasis added.]
If the child is unable to pay all of the restitution ordered, after notice to the child’s custodial parent and an opportunity for the parent to be heard, the court may order the custodial parent to pay all or part of the unpaid portion of the restitution ordered. The amount of restitution the parent is ordered to pay under this subsection shall not exceed $2,500.00. [MCL 712A.18(12); MSA 27.3178(598.18X12). Emphasis added.]
See n 16.
In the instant case, the probate court ordered Harold Macomber to "attend counseling and the 'Parents Who Care’ support group meetings as required by Wanda Carter-Smith or any replacement caseworker at the YWCA-Child Sexual Abuse Center.”
See n 20.
Id.
The dss argues:
If the Probate Court has the power to order a sexually abusive parent from the family home, for the child’s well-being, it follows that the Court has the authority to ensure that the parent supports the child. A parent is under a common-law duty to support his children. West v West, 241 Mich 679, 684; 217 [NW] 924 (1928); Slater v Slater, 327 Mich 569, 571; 42 [NW2d] 742 (1950). The Probate Court has no authority to entertain an order for enforcement of this duty as an original matter, but the Court does have the authority as part of its jurisdiction over adults to ensure that the well-being of the child is maintained. Forcing a sexually abusive father to pay support for an innocent child is a “reasonable rule for the conduct” of the father. Granted, the Probate Court has no inherent equitable powers, Johnson v Douglas, 281 Mich 247, 260; 274 [NW] 780 (1937). But the Legislature has the power to vest the Probate Court' with equitable powers. VanEtten v Manufacturer’s National Bank, 119 Mich App 277, 282; [326] NW2d 479 (1982).
The court may: "Order the parents, guardian, custodian, or any other person to refrain from continuing conduct which, in the opinion of the court, has caused or tended to cause the child to come within or to remain under this chapter, or which obstructs placement or commitment of the child pursuant to an order under this section.” MCL 712A.18(lXg); MSA 27.3178(598.18)(l)(g).
Section 18f (MCL 712A.18Í; MSA 27.3178[598.18f|) was added by 1988 PA 224 and became effective April 1, 1989, after the Court of Appeals entered its decision in this case. Neither § 18f nor MCR 5.973(A)(5)(b), which also concerns § 18f, was adverted to in the briefs of the parties or of amici curiae. Section 18f and MCR 5.973(A)(5)(b) concern case service plans respecting a child who is removed from the home and who is not placed in the custody of the child’s parents.
If the Legislature were to decide to empower the probate court, following trial and adjudication, to require an offending parent to leave the home, it may consider whether the court should be empowered to do so before adjudication and, if so, the kind of showing consistent with the Due Process Clause required before trial and adjudication to justify entry of such an order, and whether a referee or only the judge may enter such an order.
Section 10(l)(c) provides that a referee may make a recommendation for the court’s findings and disposition, but does not authorize a referee to enter an order. MCL 712A.10(l)(c); MSA 27.3178(598.10)(l)(c).
Section 14 provides that if a judge or referee authorizes the filing of a complaint after a child is taken into custody, the order shall state where the child is to be placed pending investigation and hearing. The alternatives are placement in the home of the child’s parent, in a suitable foster care home, in a child care institution or child placement agency licensed by the dss, or in "a suitable place of detention.” MCL 712A.14(3)(d); MSA 27.3178(598.14)(3)(d). Here, in contrast with § 18 (see n 20 and accompanying text), there is no provision authorizing the promulgation of rules respecting parental conduct or otherwise respecting adults.
Clearly, there is no language in §§ 10 or 14 that can be read as authorizing entry of an order requiring a parent to remove himself from his home.
MCR 5.965(BX10) and § 13a (since the enactment of 1988 PA 224, adding § 13a) provide that if a child is released to a parent, the release may be on "reasonable terms and conditions” necessary for the physical health or mental well-being of the child. MCL 712A.13a(3); MSA 27.3178(598.13a)(3). Clearly, this language should be read as authorizing the court to condition a decision to release the child to the parents—rather than to detain the child—on the parents abiding by reasonable terms and conditions. The referee did not offer Harold Macomber the choice of either leaving the home, or of remaining in the home with the consequence that the daughter would be placed in foster care or otherwise institutionalized at his expense. See text following n 20. | [
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] |
Allen, J.
Respondent, Michigan Department of Licensing and Regulation Board of Medicine, appeals as of right from an order of the Wayne County Circuit Court, which reversed the respondent’s order suspending the license to practice medicine of petitioner, Robert J. Sillery. For the reasons that follow, we reverse the Wayne County Circuit Court and reinstate the Board of Medicine’s initial order.
The suspension of petitioner’s license arose out of an autopsy he performed in connection with a civil lawsuit against a drug manufacturer. The attorney for the plaintiffs in that litigation asked the petitioner to do a limited examination of the deceased in order to determine whether a lethal level of Darvon was present in her system. At all times pertinent hereto, petitioner was the Oakland County Medical Examiner. However, in this particular instance, he was hired in his private capacity.
A limited autopsy was actually performed by petitioner on April 23, 1979. However, he prepared an autopsy report which indicated that he had done a much more extensive examination. Specifi cally, the report indicated (1) that various body organs were removed and weighed although, in fact, they had not been, (2) that certain organs were examined although no such examinations were conducted, and (3) that petitioner had determined the thickness of the right ventricle although an incision necessary for such a determination had not been made. These misrepresentations were discovered by a pathologist who was hired by the drug manufacturer to do an independent autopsy. Based on the condition of the decedent’s body, the pathologist hired by the drug manufacturer determined that plaintiff could not have done as thorough an examination as the report suggested.
Based on the inaccurate report, the Attorney General filed a complaint with the Board of Medicine on May 13, 1980, charging that plaintiff violated MCL 333.16221, subds (a) and (b)(i); MSA 14.15(16221), subds (a) and (b)(i), which provides:
"The department may investigate the activities of a licensee related to the licensee’s practice of the health profession. The department may hold hearings, administer oaths, and order relevant testimony to be taken and shall report its findings to the appropriate board or appropriate task force. The board shall proceed under [MCL 333.16226; MSA 14.15(16226), which allows for discipline] when the board finds that any of the following grounds exist:
"(a) A violation of general duty, consisting of negligence or failure to exercise due care, including negligent delegation to or supervision of employees or other individuals, whether or not injury results, or any conduct, practice, or condition which impairs, or may impair, the ability to safely and skillfully practice the health profession.
"(b) Personal disqualifications, consisting of any of the following:
"(i) Incompetence.”
Count I charged that, in performing an incompetent autopsy, plaintiff failed to conform to "minimal standards of acceptable and prevailing practice” in violation of subsection (b)(i). Count II charged that the falsification of findings constituted a departure from "minimal standards of acceptable and prevailing practice”, in violation of subsection (b)(i). Count III charged that the failure to perform a competent autopsy violated subsection (a). Count IV charged that the falsification of findings in preparing the report violated subsection (a).
Following an administrative hearing, the hearing examiner dismissed Count I because the Attorney General had offered no evidence regarding what constituted a "competent” autopsy, and no testimony defining "minimal standards of acceptable and prevailing practice”. There was also an absence of evidence showing that the autopsy performed was incompetent. Although petitioner did not discover the pulmonary embolism which the pathologist hired by the drug manufacturer determined to be the cause of death, petitioner competently performed the task for which he was employed, i.e., he determined whether there was a lethal level of Darvon in the deceased’s body. With respect to Count II, the hearing examiner dismissed it because, again, there had been "no testimony whatsoever as to what constitutes minimal standards of acceptable and prevailing practice” as they might relate to the authoring of autopsy reports. As to Count III, the hearing examiner dismissed it because of the absence of a showing that the autopsy was performed incompetently. However, he found that Count IV was substantiated, stating:
"It is unquestionable on this record that in fact [Dr. Sillery] authored a report of an examination of a deceased that was inaccurate [and] contained information that could not be supported from the examination described by [petitioner]. Accordingly, such conduct would clearly constitute negligence or failure to exercise due care contrary to § 16221(a).”
The Wayne County Circuit Court reversed, holding that the standard pronounced in § 16221(a), i.e., "negligence or failure to exercise due care”, was not sufficiently precise to notify petitioner of the conduct proscribed. Accordingly, it found that petitioner’s right to due process of law was violated.
Substantive due process requires that "reasonably precise standards be utilized by administrative agencies in the performance of delegated legislative tasks”. Krohn v Board of Medicine, 98 Mich App 129, 133; 296 NW2d 57 (1980). "These standards must be as reasonably precise as the subject matter requires or permits.” State Board of Dentistry v Blumer, 78 Mich App 679, 682; 261 NW2d 186 (1977). Reasonably precise standards "ensure that individuals are not held responsible by the state for conduct they could not reasonably understand to be proscribed”, and guard against arbitrary and discriminatory enforcement. Blumer, supra, p 683.
We believe that the language of the standard "negligence or failure to exercise due care”, is sufficiently specific to give notice of the type of conduct which is being proscribed. Negligence is a well-recognized legal concept which describes conduct that falls below a standard of reasonable or due care. See Moning v Alfono, 400 Mich 425, 443; 254 NW2d 759 (1977). A failure to exercise due care contemplates an abdication of responsibilities or carelessness in executing one’s duties.
The circuit court intimated that the Board of Medicine must particularize all specific forms of negligence which will subject a physician to license restrictions. The court based this reasoning on the fact that the statute does specifically list other forms of proscribed conduct. However, we do not believe that it is either necessary or desirable that the statute, or rules promulgated thereunder, individually list all specific instances of negligence encompassed by this standard. Such a task would require an exhaustive enumeration of countless instances of conduct which obviously come within the purview of this standard. It might also enable a physician to escape regulation where he or she acts egregiously, but where, through oversight or the inability to articulate all possible forms of negligence, the board has not specifically covered a rare form of negligence. Substantive due process requires only that the standards be as reasonably precise as the subject matter requires or permits. We believe that "negligence and failure to exercise due care” is sufficiently precise, and that such subject matter is not realistically capable of exacting definitions. Accordingly, we believe that the circuit court erred in holding that the standard was vague and violative of plaintiff’s right to due process of law.
We note that a standard similar to the one at issue was upheld at DeHart v State Board of Registration in Podiatry, 97 Mich App 307; 293 NW2d 806 (1980). In Dehart, the Court held that the standard of "willful and gross malpractice or willful and gross neglect in the practice of podiatry” was sufficient to inform a podiatrist of the type of conduct proscribed. Further, the Court cited to Yoshizawa v Hewitt, 52 F2d 411 (CA 9, 1931) with approval, where the court held that "gross carelessness” was not unconstitutionally vague, as it "was synonymous with 'gross negligence’ [a term which has] an ascertainable meaning to the medical profession as well as to the layman”. See 97 Mich App 311.
We subscribe to DeHart’s discussion of Blumer, supra. In Blumer, the Court held that the standard of "dishonorable and unprofessional conduct in the practice of dentistry” gave the Board of Dentistry unfettered discretion to determine what conduct would be proscribed. However, here the statutory basis for disciplinary action, "a violation of general duty, consisting of negligence or failure to exercise due care”, with respect to acts "related to a licensee’s practice of the health profession” is limited to negligence which occurs during the course of rendering professional services.
The circuit court also indicated that the standard was unconstitutional as applied to petitioner. Without expressly so stating, the court intimated that the standard was applied in an arbitrary manner. This was based on (1) the fact that the hearing examiner dismissed the three other counts against petitioner, and (2) the fact that there was no expert testimony on the question of whether petitioner was negligent or failed to exercise due care. We do not believe that the hearing examiner’s dismissal of the other claims was inconsistent with his findings on Count IV or that it evinced arbitrary application of the standard recited in § 16221(a). Further, we do not believe that expert testimony was necessary to substantiate a finding of negligence or failure to exercise due care in this particular instance.
Count III was dismissed because there was no showing that the autopsy was performed in an incompetent manner. Counts I and II were dismissed because there was no expert testimony regarding "minimal standards of acceptable and prevailing practice”. Regardless of whether there were such showings, we do not believe that expert testimony was necessary to establish that a report laced with fictitious findings amounted to negligence or failure to exercise due care. Where a professional’s work product lacks such basic integrity as we believe that it is within the province of the layperson to determine that the conduct constitutes a failure to exercise due care. Sullivan v Russell, 417 Mich 398; 338 NW2d 181 (1983). Accordingly, the absence of testimony on what constituted "minimal standards of acceptable and prevailing practice” would not preclude a finding that plaintiff nonetheless failed to exercise due care.
Reversed._
Petitioner argues that the standard of § 16221(a) did not apprise him that the intentional act of falsifying the document would be proscribed, as this provision recites only a negligence standard. This argument ignores the fact that intentional conduct may also be characterized by a factfinder as a failure to exercise due care. | [
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Graves, J.
The railway track of the plaintiff in error crosses Eder’s farm, and on July 5,1879, a small piece of the fence built there by the company was accidentally destroyed by fire, and some of Eder’s cattle wandered through the gap and were killed by a passing train. Eder brought this action against the company under the Act of 1873 (Laws 1873 p. 538), to recover for the injury, and under the rulings of the circuit judge the jury awarded damages.
There was evidence tending to show that the section foreman of the company, being the agent employed for that purpose, passed daily over the road to see that everything was in due condition, and that on the 5th of July, in discharging this duty, he passed the place in question about nine o’clock in the forenoon and saw that the fence was in good order; and that he did not discover the fire or know of it until the next morning. There was also evidence tending to show that the fire occurred about noon. In view of this evidence the counsel for the company requested an instruction that if the jury found that the fence was burned about noon on the 5th of July, and that the cattle were killed about six o’clock in the afternoon of the same day, the failure to repair the fence sooner than the next morning was not negligence on the part of the company. The judge refused the request, and after telling the jury that the company were entitled to. reasonable time in which to restore the fence left it finally to them on the whole evidence to decide what would be reasonable diligence, and whether in fact there was or was not such diligence.
My brethren are of opinion that if the facts correspond with the hypothetical request it was a conclusion of law that, the company were not guilty of the blame imputed by the declaration and that the instructions should have been given.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Marston, C. J.
This case has been twice before this court previous to the present term. In the present case it is claimed the plaintiffs below were barred by the statute of limitations.
We held in this case when here before (44 Mich. 31), that as between tenants in common, a claim of adverse possession by one should not be of doubtful character, but clear and unambiguous. The reason of this is that the possession itself is rightful, and does not imply adverse possession as would that of a stranger, so that the presumption of possession in recognition of the rights of co-tenants must be overcome by-acts and declarations clearly inconsistent therewith brought home to the co-tenants. It was also held in the same case that clearness and distinctness were requisite to acquire title by adverse possession in any case, or as was said in Yelverton v. Steele 40 Mich. 541, it must be made out by clear and cogent proof.
There are many loose expressions testified to in this case, but of so ambiguous a character that they cannot fairly be said to bring this case within the rule referred to. Perhaps one of the strongest statements which can be claimed tended to show adverse possession, and indeed the one upon which most reliance was placed upon the argument, is found in the testimony of Phillis Chauvin, who testified “ that when Dennis wanted her husband to pay rent he would not do it, and claimed lie had a right to stay there; that none of the children of Barnabas Campau ever came there to see about it. at all, but when Jacques Campau, a son of Joseph, was alive, he use to come there and raise awful rows with her husband, and witness at one time thought they were going to fight; that her husband told Jacques Campau that he had more right to stay there than he had? . The husband of the witness died March 1, 1862. Joseph Campau died in 1863, so that at the time of this conversation referred to Jacques Campau’s father, Joseph, was alive, and Jacques had no interest in the premises, and in truth the husband of the witness “had more right to stay there than he (Jacques) had.” This, therefore, has not the slightest tendency to prove an adverse holding, and from what has been said the other evidence relied upon was not, we think, sufficient to entitle it to be made the basis of a verdict and judgment.
It is next objected that the court erred in allowing plaintiffs to proceed for all the property described in their declaration, and in not requiring them to elect whether they would proceed for separate parcels. Our statute does not require an election in cases where all the titles, possessions or claims are . derived from the same source. 2 Comp. L. § 6230. Without undertaking to definitely fix the meaning and limits of this section, we are of opinion that in this case no election was necessary. The action in effect was one against a claimant and those in possession under him. The same defense was common and applicable to all. No one relied upon matters in which the others did not and could not have any interest.
The judgment must be affirmed with costs and the record remanded.
The other Justices concurred. | [
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Campbell, J.
Delator asks a mandamus to compel the respondents to raise a tax to pay certain highway orders. One of them amounting to $100 and numbered 825 is not disputed. The rest were issued by the highway commissioners to pay for a bridge across the An Sable river on the line of what is claimed to have been a highway. The answer of the respondents denied that there was any legal authority to build this bridge on the credit of the township, and on an issue framed upon this point no proof was apparently given, and no finding was had of any such authority, unless inherent in the office.
The statutes on this subject (Comp. L. § 1194) require the various highway commissioners to render to the town board at its annual meeting an account of the work of the preceding year, and certain items of collections and assessments, and also the improvements necessary to be made on roads and bridges, beyond what the labor assessed will do, and the town board is required to submit the same to the next annual town meeting, when a vote may be taken to raise not more than $250 in any one year. The board of supervisors may authorize townships to raise or borrow not more than $1000 for roads and bridges by vote of the electors. § 477. We have found no authority for highway commissioners of their own discretion to incur indebtedness for any such purpose. The amount of orders now in dispute for the building of the bridge in question is $375; and the record shows no right to issue them.
It is claimed that under the practice in mandamus cases the burden of showing illegality rests on the respondents. Mandamus proceedings to collect debts are not different from any other suits. The plaintiff must always make out his case unless admitted expressly or by implication. In this case his allegations were met by a defense denying his right. There is no general presumption that highway commissioners can bind their townships by such obligations as they choose to issue. They can only act when authorized. In the absence of any finding of authority we must assume none existed.
The mandamus as to these bridge orders must be denied. Under our present practice we have not been in the habit of denying relief where the relator fails in some part of his claim but makes out the rest. There is no good reason for distinguishing in this regard between mandamus proceedings and other actions where a complete cause of action is made out less than the whole claim., We have discarded the old rule, which seems to have prevailed under a different form of procedure, and which some of the earlier decisions of this court adopted. We do not deem it applicable under the constitutional provision which has given this court plenary juris diction in mandamus cases. Such remedies should be applied rationally.
The writ must be allowed for the valid order, but without costs.
The other Justices concurred. | [
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Cooley, J.
The mortgage which this suit is brought to foreclose was given by the Marquette & Pacific Polling Mill Co. to secure the payment of thirty bonds of five thousand dollars, dated July 1, 1871, payable to Sidney D. Miller, trustee, ten years after date, with eight per centum interest, payable semi-annually. The mortgage contained a provision that in ease the interest should at any time be overdue for sixty days, the principal should, at the election of the trustee, become immediately due and payable. Complainant files the bill as holder of a part of the bonds, the trustee having declined to do so.
The Marquette & Pacific Rolling Mill Co., the mortgagor, makes no defense, and the sole contestant of complainant’s rights is William H. Parks, who is grantee of the parties who purchased the equity of redemption at execution sale. He claims — -first, that the mortgage never had any validity; and second, that if it had validity in the hands of the trustee, complainant has never acquired any rights under it, for the reason that his demand was not such an one as the mortgage was intended to secure, and he is not in position to claim as a bona fide purchaser or holder of negotiable paper. Peter White, who is made defendant, claims rights under the mortgage which do not antagonize those asserted by the complainant.
I. The mortgage is said to be invalid because never authorized by the corporation giving it. The Polling Mill Company was organized under the statutes for the incorporation of mining and manufacturing companies, which are collected in chapter 95 of the Compiled Laws of 1871. By one of the sections of this collection it is provided that “ No alienation, diversion, sale or mortgage of any or any part of the mine works, real estate or franchise of any corporation men tioned in the first section of this act shall have any force or effect, or pass any title thereto, or interest therein, unless expressly authorized by the vote of three-fifths in interest of the entire stock of said company actually present or legally represented at some meeting of stockholders called and notified” as required by law, with an exception not important here. The provision in respect to notice is that ‘ No meeting of stockholders shall be or be held to be legal or valid, or the proceedings thereof of any force or effect, unless the directors or other parties or officers calling the same shall cause a notice of the time, place and object of holding the same to be published two weeks for any annual meeting and four weeks for any special meeting previous thereto in some newspaper published in the county * * * and shall also cause a copy of such notice to be sent by mail to each stockholder of record, at his usual place of residence, twenty days before the time of such meeting.’ Comp. L., §§ 2888, 2887. The authority, such as it was in this case, was given at a special meeting, and it is claimed — 1, there is no sufficient proof that the meeting was duly notified; and 2, that the notice actually given was insufficient to justify what was done at the meeting.
The evidence of the giving of notice of the meeting seems to us ample. It comes from "William Burt, who testifies with much confidence to having caused notice to be published in a newspaper of the county, and produces a copy of the one published. He also testifies that as agent for the company he paid for the publication, and served notice by mail on the several stockholders. He gives reasons for his belief that all this was done in compliance with the statute, and the reasons are satisfactory. We discover no defect here.
The fact that the action taken did not correspond with the notice is more important. The notice is given in the margin, and the object of the meeting is stated to be “ for the purpose of electing a new board of directors, and to authorize the issue of bonds to the extent of one hundred thousand dollars, to be secured by mortgage on the company’s property, and for such' other business as may lawfully come before said meeting.”
The meeting was duly convened and no question is made that the stock was sufficiently represented. After electing directors, the record states that “ The meeting then proceeded to consider the issue of one hundred and fifty thousand dollars of first mortgage bonds upon the property of the company, and upon a vote, unanimously authorized and instructed the treasurer to make such issue.”
The object of the meeting, as testified, is thus seen to have been to authorize bonds and a mortgage to the extent of one hundred, thousand dollars, and the authority actually given was to issue bonds and give mortgage for one hundred and fifty thousand dollars. The explanation of this action, which is given on the part of complainant, is that the corporation was already indebted to the amount of fifty thousand dollars secured by mortgage of part of their property, and the new bonds and mortgage were intended in part to provide for that, so that the' debt would be increased one hundred thousand dollars only, and the notice be complied with in spirit though not in letter. But in behalf of defendant Parks it is insisted that the motive, not disclosed by the record, is immaterial ; the fact being that one thing was proposed and another thing done ; and this, according to the express provisions of the statute, cannot be “ legal or valid,” or “ of any force or effect.”
These are strong and seem very imperative words, and if full effect is given to them it may be difficult to support this mortgage. But we are not hastily to conclude that words thus apparently imperative are to be given a literal interpretation and enforced accordingly. Courts often speak of acts and contracts as void when they mean no more than that some party concerned has a right to avoid them. Legislators sometimes use language with equal want of exact accuracy; and when they say that some act or contract shall not be of any force or effect, mean perhaps no more than this: that at the option of those for whose benefit the provision was made it shall be voidable, and have no force or effect as against his interests. This was found to be the meaning in the mind of the legislature in enacting the Massachusetts usury law. It was declared in most positive terms that mortgages on usurious considerations should be “ utterly void but a consideration of its purpose, which was to protect debtors against the enforcement of unconscionable demands, made it clear that it never was intended that strangers to the title should be at liberty to question such a mortgage. Green v. Kemp 13 Mass. 515. Mr. Justice Bayley in one case intimated that the word void in a statute might be construed voidable where the provision is introduced for the benefit of parties only, but not where it is introduced for public purposes and to protect those who are incapable of protecting themselves (Rex v. Hipswell 8 B. & C. 466, 470), and though this distinction has been questioned (Rex v. St. Gregory 2 Ad. & El. 99, 107), much good reason lies at the foundation of it. If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall' be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it. A statute would strike blindly if the letter alone were to be regarded, not the spirit. A statute declares that certain indentures not made as by the statute provided should “be clearly void in law to all intents and purposesand it was nevertheless held that, if acted upon, the apprentice gained a settlement thereby. St. Nicholas v. St. Peter, Strange 1066. And in Ohio a purchase at a judicial sale by one who acted as appraiser of the property, though the statute declared it should be “ considered fraudulent and void,” was held to be voidable only on an interposition or proceeding by a party in interest, directly for the purpose of avoiding it. Terrill v. Auchauer 14 Ohio N. S. 80. This subject is considered at length and many authorities examined in State v. Richmond 26 N. H. 232, to which we refer.
The statute now under consideration was passed to protect the interests of stockholders in mining companies. It intends that their mining property shall not be conveyed away or mortgaged except by their deliberate action after they have been notified of a proposal to do so, and have had time to deliberate upon and fully consider it. But the matter does not concern the public at large ; no principle of public policy is at stake; no wrong, direct or indirect, is done to any human being if conveyance is made or mortgage given without the exact notice required, unless it be a wrong to the stockholders themselves. And as others are not concerned, why should the statute give them the right to raise questions of regularity which the stockholders elect to waive? We are satisfied such was not its purpose.
In this casedhe stockholders acted deliberately in sanctioning the giving of the mortgage, and they now make no complaint. The bonds and mortgage were given, and have been acted upon. Complainant has loaned money in reliance upon them. Interest has fallen due and he has filed his bill to foreclose, and neither the corporation nor any of its stockholders has seen fit to make defence. The corporators may possibly have had a right to take advantage of the exact words of the statute, repudiate their action, and treat the mortgage as of no force or effect, but they had an equal right to treat it as effective and valid. They have chosen the latter course, and this is conclusive upon the corporation and upon any one claiming under it. What would have been the result had no corporate meeting ever been held we do not consider.
II. The corporation became debtor to Beecher in five notes of ten thousand dollars each, each of which was secured by the deposit of three of the bonds as collateral. Two of the notes have been paid and three remain unpaid. The bonds were issued on an explicit understanding that they were to be sold for cash. This is apparent from the proceedings of the company and its officers as they are exhibited in the record of the case. It is contended on the part of defendant Parks.that the pledge of the bonds to Beecher was unlawful because in violation of the understanding under which they were authorized. But here again Parks attempts to make an objection which is only available to the company or its stockholders. He has purchased only the equity of redemption, and not any right the corporation or its stockholders may have had to complain of an abuse of trust on the part of the corporate officers. He is in no better position than he would be if he held by voluntary conveyance from the company; in which case it is plain that he could not make this objection. Fairfield v. McArthur 15 Gray 526; Gale v. Gould 40 Mich. 515. It would of course have been different if the transaction had at the time affected some existing right; as was the case in Van Deusen v. Frink 15 Pick. 449, and some others which are referred to in the briefs.
III. It is also urged that Beecher has been in possession of the mortgaged property as mortgagee, and has received in person or through his agent a large amount of money and other personal property which he must account for on the mortgage, and which, if accounted for, will more than extinguish the three notes which he now holds.
The facts which are supposed to give ground for this position are that in December, 1872, Beecher gave a guaranty to the Western Transportation & Goal Go. of the performance of a contract made by the Marquette & Pacific Polling Mill Co. to deliver ten thousand tons of iron ore, and the latter company, in a contract reciting that fact, and also the indebtedness of the company to Beecher and the delivery to him of collateral bonds, stipulated with him that he should cany on the business of the company; that the proceeds to accrue from said sale of ore should be applied by Beecher or his agent “from time to time in working the mine of said company, rebuilding its furnace and its current working capitaland that in case “ any surplus accrues in the course of the business of said company above the amount necessary to provide for working the mine of said company, rebuilding its furnace and its current working capital, such surplus may be used and applied for the payment of current indebtedness.” There is nothing in this that fixes the character of Beecher’s possession as that of mortgagee. He was in as contractor, and bound under his contract to account to the company. But the rents, profits or proceeds received did not apply as payment on the mortgage and could only be applied by way of set-off. No offer has been made to apply them in this suit.
This disposes of the defences which are set up to the complainant’s demand. The claim of White remains for examination.
IY. The claim of White arises upon the following facts : Hiram A. Burt as well as complainant was guarantor of the performance of the contract made with the Western Transportation & Coal Company as above stated. He was also indorser for the Marquette & Pacific Bolling Mill Co. on paper held by a bank of which White was president, in the amount of thirty thousand dollars. In the agreement of December, 1872, between Beecher and the Bolling Mill Co., it was agreed that the bonds for one hundred and fifty thousand dollars and the mortgage collateral' thereto, should be held by the trustee for the payment of fifty thousand dollars prior mortgage and interest, and the thirty thousand dollars and interest which then remained unpaid to Beecher of his fifty thousand dollars loan to the Bolling Mill Co., and also for the full liquidation and discharge of any liabilities of any kind to which Beecher might be subjected by reason of his guaranty of the contract with the Transportation and Coal Co. By another contract between Beecher and Burt, bearing the same date with the contract above mentioned, Burt was made agent for Beecher at the mine, and Beecher agreed that whatever was received by him under his contract with the Bolling Mill Co. should be held and controlled by him for the protection of Burt as guarantor as aforesaid, and also to such extent as might be necessary to protect Burt for all amounts due or to become due to him from the company, and for liabilities thereafter incurred, etc. Upomthe indebtedness of the company to the bank Burt was thereafter sued and judgment recovered, whereupon White assumed the indebtedness and Burt assigned to him all his rights in the contract of December, 1872, made with complainant as above stated. The board of directors of the Rolling Mill Co. formally approved of the contract between Beecher and Burt, so far as it undertook to give to Burt security, and authorized Beecher “ to hold the securities therein referred to for the joint benefit of said Burt and said Beecher as therein stated.”
It is contended on the part of both complainant and defendant Parks that the contracts and -the action of the directors upon them do not secure Burt for pre-existing liabilities and consequently that White can claim nothing under them. We have examined the contracts with care and must admit that the construction is not free from all difficulty; but we are satisfied the intention was to give Burt full protection. There was no just' reason for restricting his protection to his guaranty on the contract with the Transportation and Coal Co. and to accruing indebtedness, and it is not likely he would have been content to take security thus restricted. In the light of all the facts it seems to us apparent that the intention was Burt as well as Beecher should be protected to the full extent that whatever was pledged to Beecher could give protection.
Y. Complainant, by reason of the failure to pay interest, elects to treat the principal sum represented by the bonds as now due. The mortgage gives this election to the trustee, and though he declines to foreclose, it is insisted no one else can elect for him. The point has not been discussed, and we do not pass upon it, as we conceive it to be unnecessary. The principal sum will be due before foreclosure can be completed, and an election will be of no moment.
Decree will be entered in accordance with these views.
The other Justices concurred.
Office of the Marquette & Pacific Rolling Mill Company, ) Marquette, Dec. 15th, 1870. • )
At a meeting of the directors of the Marquette and Pacific Rolling Mill Company, this 15th day of December, A. D. 1870, it was ordered that a meeting of the stockholders of this company he called and hold on Monday, the 16th day of January, A. D. 1871, at 10 o’clock A. m., at the office of the said company in the village of Marquette, Michigan. Said meeting is called for the purpose of electing a new board of directors and to authorize the issue of bonds to the extent of one hundred thousand dollars, to be secured by mortgage on the company’s property, and for such other business as may lawfully come before said meeting of stockholders.
John Burt, President. | [
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] |
Marston, C. J.
The complainants on the 15th of Novem ber, 1879, filled their bill of complaint in the circuit court for the county of Cass in chancery, alleging therein that each had on the 11th day of October, 1879, recovered judgments against the defendants, Lafayette W. and Peter Schall, for certain specified sums; that each of said causes had been commenced by attachment and levies made thereunder upon certain personal property of said defendants, which is particularly described. It was also alleged that executions had been issued upon said judgments and said property levied upon by virtue thereof, but it was conceded on the argument, that no such levy had or has been made. It is farther alleged that Lafayette W. Schall executed and delivered a chattel mortgage on said personal property, March 7, 1879, to his wife; also a similar mortgage on said property, May 8,1879, and that Peter Schall had given to his wife and one Precilla McEntefer, March 7, 1879, a chattel mortgage on said property; also one dated May 8, 1879; also a mortgage by Lafayette to his brother Elias.
It is alleged that all these instruments, except the last, were given for the express purpose of cheating and defraud ing complainants and to hinder and delay them in collection of their respective claims. Certain other facts were alleged, and, amongst them, that a forced sale of such property subject to such encumbrances, would not realize any sum to apply on their claims, and they prayed-for the appointment of a receiver to take charge of such property.
On the 13th day of November a receiver was appointed “to take immediate charge of all the personal property of the said defendants Lafayette W. Scliall and Peter Schall, except such as is exempt from execution by law, and to sell and dispose of the same for cash to the best possible advantage, in any mode or manner that may seem to him to be most advantageous to all the parties concerned, and after the sale of such property to bring the moneys arising therefrom into this court, and deposit the same with the register of this court, to be held by him until it shall be determined by this court by regular decree, as to whom the same rightfully belongs.” Possession was taken, a sale made and the money deposited as thus ordered, and'a part of it has since been' distributed by a final decree in the case.
This appointment of a receiver, even if one could have been appointed at any stage of the case, was absolutely void, as the bill had not been filed and no suit commenced at the time. Merchants' & Manufacturers' Nat. Bank v. Circuit Judge 43 Mich. 292. These proceedings were intended and operated as a substitute for an execution at law, and there was no equity stated in the bill. No levy was made on the property by virtue of the execution, and the court upon an ex parte application, upon the ground apparently that some of the mortgages were fraudulent in whole or in part, ordered possession to be taken of the property and the receiver to sell it in any mode or manner that to him might seem most advantageous. This is a most dangerous power to give to any man. The law has pointed out a way in which personal property may be seized and sold upon execution, and requires notice of such sale to be given, and the sale to be public. This, it is supposed, would afford some protection to owners or parties interested therein, but all such means of protection were thrown aside in this case. Had the ordinary method been pursued, the mortgagees could have taken steps to protect their interests, and have an opportunity at least to be heard before condemnation, and could have" had the question submitted to a jury. This right also was denied them. Their securities were in effect declared fraudulent, the property upon which they relied for protection ordered sold, and they then graciously permitted to come into a court of chancery and be heard in defense of their claims. As was said in Arnold v. Bright 41 Mich. 210: “ The court of chancery has no more power than any other to condemn a man unheard, and to dispossess him of property prima faoie his, and hand over its enjoyment to another on an ex pa/rte claim to it.” And subsequent cases in this court have very emphatically condemned the practice .of resorting to these extraordinary remedies. There are other objections to the proceedings in this case but they need not be considered.
The decree must be reversed and the bill dismissed as to the appellants with costs of both courts, and the record will be remanded to the court below in order that the parties interested may take such further action as they may deem necessary and proper.
The other Justices concurred. | [
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] |
Graves. J.
Pierson sued in replevin and obtained judgment, and Wood and Chapman filed a bill of exceptions and brought error. The subject of the action was a breastpin found by Chapman and claimed by Pierson. Many of the facts are not disputed. Pierson lost at Bay City, July 18, 1878, a small diamond pin, which seems to have separated from the tongue in some unknown way. The circumstances of the loss and the manner in which the body of the pin and tongue became disunited are left unexplained. The metallic setting was a common pattern and the gem had no peculiarities to facilitate its identification by non-experts. Pierson caused a notice to be inserted in the Tribune newspaper published in the city, of this tenor:
“ LOST.
“ $25 Reward — Lost.—A diamond pin. The finder will be paid the above reward by leaving the same at this office.”
As will be observed the advertisement-neither gave a description of the pin nor suggested who offered the reward. Moreover, no means of any kind were provided for showing at the newspaper office the ownership or identity of the pin, or for connecting any pin which might be produced with the claim contained in the notice, nor was any money left with which to pay the reward, nor any provision whatever made for paying it there.
Chapman found a pin which was subsequently ascertained to be the one in question. His first impression was, when he picked it up, that it was a cheap trinket, but on second thought he decided to show it to a jeweler. Dirt was adhering to it, and attention was at once drawn to the fact that, although the tongue was wholly missing, the rivet was secure and firmly in its place. The query naturally arose as to how this condition of the pin and the absence of the tongue might be accounted for. But in order to find out whether it had any material value, Chapman» took it immediately to Wood, the other defendant, he beifig a jeweler, and was by him told that the stone was a diamond, and that a diamond pin had been advertised in the Tribune.
On getting this information, Chapman went at once to the newspaper office and saw Mr. Shaw, the editor and manager, who showed him the advertisement and informed him who the author was. Mr. Shaw referred him for anything further to Mr. Pierson, and he at once carried the pin to Pierson’s store and called for that gentleman. He was absent. Chapman was going from the city the next morning, and he told a clerk, Mr; Martin, that he had found a pin, and as he was going away, he would leave it at Mr. Wood’s to be identified and returned to the owner. He then went to Wood’s and there left it with instructions to give it to the person who should identify it and pay the reward, and to no one else. This was Friday evening, July 26th. The next .morning he went from the city on business and only returned the Monday following at noon. During his absence Pierson called on Wood and asked to see the pin in order to identify it, and Wood declined and required him to identify it first. Pierson attempted to do so, but he failed to satisfy Wood, and in the judgment of another jeweler to whom both referred, and who had the advantage of inspecting both the tongue and body of the pin ■and of comparing them, the physical appearances and indications were strongly against Pierson’s claim.
In respect to what was said at these interviews there was want of harmony in the testimony. Pierson requested that another jeweler at Bay City who, he said, had formerly repaired the ¡fin, and had a plaster cast of the stone and could identify7 it, might be permitted to see it. But "Wood proposed that this gentleman should call with his nfiould and he, Wood, could .then see for himself whether it fitted or not. The gentleman came but had no cast, and was unable to give a particular description, and Wood declined to show the pin to him. Pierson then proposed that the pin should be sent at his expense for the purpose of identification to Mr. Smith of Detroit, who, he said, had mounted it. This was declined and Wood suggested that Pierson should write to Smith for a description, an expedient he observed which would be attended with less risk, but this proposal was unacceptable to Pierson.
The testimony disagreed as to the incidents of the effort ■ to get the question of identification settled through Mr. Smith, and in regard to what took place between Pierson and Chapman after the return of Chapman on the 29th. On Tuesday, the 30th of July, Pierson sued out the writ of replevin and went with the sheriff to Wood’s store to get the pin. It was not produced and indeed was not then in the store, although the fact was not made known by Mr. Wood. It is unnecessary to recite the different versions of what took place. On the next morning, Wednesday the 31st, Mr. Chapman carried the pin to Detroit and satisfactorily ascertained at Mr. Smith’s that it was the one advertised for by Mr. Pierson. ITe returned on Thursday, and on Friday, the day after, met the officer and handed the pin to him with the request to get the reward. Pierson refused to pay it, and on giving the usual replevin bond received the pin from the officer.
It has seemed proper to go into this detail on account of the singularities of the case. Tet it must not be assumed that the outline given lends the exact coloring to the transaction which would be perceptible to a jury on hearing the whole testimony. At the first glance every one must admit that as to one feature of the case, at least, there can be no doubt. The facts are conclusive that the parties dispensed with the newspaper office as a place for doing what should be necessary in consequence of the reward. Pierson in the first place neglected preparations which were incumbent on him as a legal preliminary to holding Chapman to a compliance at that place, and Chapman did not insist on performance there. Both parties proceeded on the tacit understanding that whatever was to be done should be done elsewhere. So much is too clear to admit discussion and neither party is at liberty to claim any advantage on account of the omission to transact or perform at the printing office.
According to the common law the finder of goods lost on land becomes proprietor in case the true owner does not appear. And meanwhile his right as finder is a perfect right against all others. But if the true owner does appear, whatever right the finder may have against him for recompense for the care and expense in the keeping and preservation of the property, his status as finder only does not give him any lien on the property. Y et if such owner offer a reward to him who will restore the property, a lien thereon is thereby created to the extent of the reward so offered. This doctrine in favor of a lien in such circumstances is so laid down in Preston v. Neale 12 Gray 222, and authorities are cited for it. Among them is the leading case of Wentworth v. Day, by Chief Justice Shaw, reported in 3 Metcalf 352, and which is approved and followed by the Supreme Court of Pennsylvania in Cummings v. Gann, 52 Penn. St. 484, adopted as correct by Story in his work on Bailments, §§ 121a and 621a. Parsons has given it his sanction by incorporating it in the text of his work on Contracts (vol. 3, p. 239, 6th ed.), and Edwards presents it as «settled law in his treatise on Bailments, §§ 20, 68 (2d ed.).
Under this principle the admission is unavoidable that when Pierson claimed the pin, on the footing of his notice and reward, of Chapman, the finder, who was holding it for .the actual owner, it was, as between them, subject to a lien in Chapman’s favor and against Pierson for the reward. According to the language of the books Chapman was entitled to detcdn the article from Pierson until the reward should be paid, and was under no legal obligation to relinquish possession to him, or to give it to another, or to allow anything to be done endangering his right or security. But there was a mutuality of rights. As claimant, Pierson was entitled to a reasonable time and to fair and reasonable opportunity in reference to the nature of the chattel, the existing state of things bearing on the transaction and the surrounding circumstances, and without impairing Chapman’s right as contingent owner, nor his right of lien, nor interfering with his duty to the true ownership which might be subsequently asserted by another, to make such a showing as he could that the property was the :same he had lost and advertised, and such evidence as would satisfy a fair and reasonable person of the fact.
It was not for Chapman to baffle investigation by any unfair action or inaction or give way to unfounded and unreasonable suspicion and then object that the evidence of identification was not sufficient. Nor was it for Pierson to demand anything which was not fair and just under the circumstances, and needful for investigation and consistent with Chapman’s rights and duties, and then make its refusal a pretext for charging injustice, and an excuse for making costs; and in regard to these and similar matters it was for the jury to say what was the conduct of the parties; whether it was fair and reasonable or otherwise; whether either or both materially deviated from the .proper course; whether the kind of reciprocity the occasion called for was shown or not, and whether Chapman was bound or not to be satisfied of the rectitude of Pierson’s claim when the suit was begun.
Whether as between the parties and in view of all the considerations bearing on their rights and duties and on the conveniences and inconveniences of identification growing out of the nature of the property, and bearing on the chances for imposition, and on the fact of Chapman’s being liable to account to whoever should at last be found to be actual owner, it was reasonably and fairly due to Pierson to have a personal inspection to enable him to say that the pin was or was nbt his property, and if he thought it was, then to facilitate his proof, was not a matter of law. It depended on the peculiarities of the case, and was a question for the jury under instructions conforming to the principles here explained.
For the purpose of judging with what propriety the parties acted, and whether Chapman was guilty of legal fault, the transaction must be contemplated as it was on the 30th of July when the action commenced. It is necessary to keep in mind what time had then been taken and what had been done about identifying the pin, and what evidence Chapman had of the validity of Pierson’s claim. That satisfactory evidence was procured afterwards by Chapman, must not be taken to show that he had fair and reasonable evidence before, or that his prior conduct was unjust. In considering this aspect of the controversy it is necessary to confine attention to the facts and appearances manifested up to the time the writ was taken out. The question was then pending and unsettled.
The contention touching the right of action in the absence of any tender of the reward is of no practical importance on this record. Whether in point of fact Chapman waived or abandoned the reward itself, would be a question for the jury under proper instructions. Inasmuch as it belonged to Pier-son to identify the property and pay the reward too, it is not reasonable to contend that because Chapman insisted on the identification he therefore waived the reward. The exaction of the first or even a firm stand on every legal advantage concerning identification would not imply relinquishment of the other. Unless the reward itself was in fact waived, or there was such behavior on the part of Chapman respecting Pierson’s reclamation as was tantamount to a denial of Pier-son’s right and a wrongful detention, it is not perceived that there was any ground for holding that the lien was forfeited.
In Isaack v. Clark 2 Bulstrode 306, Lord Coke states the law in this wise: “ When a man doth finde goods, it hath been said, and so commonly held, that if he doth dispossess himself of them, by this he shall be discharged, but this is not so, as appears by 12 E. IV. fol. 13, for he which findes goods is bound to answer him for them who hath the property; and if he deUver them over to cmy one, unless it be unto the right owner, he shall be charged for them, for at the first it is in his election, whether he will take them or not into his custody, but when he hath them, one onely hath then right unto them; and therefore he ought to keep them safely; if a man therefore which findes goods, if he be wise, he will then search out the right owner of them, and so deliver them unto him; if the owner comes unto him, ‘and demands them, and he answers him, that it is not Itnown unto him whether he be the true Owner of the goods, or not, and for this canse he refuseth to deliver them, this refusal is no conversion, if he do hee'¶ them for hion.”
Lord Coke very clearly enforces the right and duty of the finder to be certain of the true owner before he makes delivery. As he is bound to hold for the true owner, and is liable in case of misdelivery, the law makes it his duty as well as his right, even when there is no reward, to “ search out,” or in other language, find the “ right owner,” or see to it that he submits to no other than the “ right owner.” Undoubtedly if Chapman’s conduct was such that a jury would, under the circumstances, of the case, feel satisfied that he was actually perverse and unreasonable, and pursued a course which was adapted to baffle fair investigation, instead of maintaining the attitude of a man whose duty it was, in the quaint terms of Lord Coke, to “ search out the right owner,” it would be just to regard him as having detained the property unlawfully.
The neglect to tender the reward, if it was still claimed, could not defeat the action. Bancroft v. Peters 4 Mich. 619.
The remedy of trover was originally given to enable the loser of goods to recover of the finder, and the principle has found recognition in one of the provisions of our action of replevin. Comp. L. § 6754. The statute expressly refers to a case where one party is found to have a lien, and the other the general ownership, and the court is required to render such judgment as shall be just. The provision did not escape the attention of the court below. It was mentioned in the charge. The parties respectively ignored the statute concerning lost property and planted themselves on the common law, and hence there seems to be no occasion to notice the former.
The charge given by the learned judge was very elaborate. In some essential particulars it seems open to a construction not consistent with the views which are here explained. But it is not needful to specify the observations referred to.
It is enough to say now, that whatever may have been intended, the charge as we find it in the record must have been received by the jury as instructing them that the defendants were iound to submit the pin to the personal inspection of the plaintiff on his request, as a safe and proper expedient for the purpose of “ searching out the right owner,” and they could not have supposed that it was submitted to them to decide according to their own judgment of the circumstances whether the defendants ought or ought not to have allowed such inspection. The question was not for the bench but for the jury under suitable instructions.
The case has several features which demand a very strict adherence to the rule which restricts the province of the judge to the conveyance- of such matters of law to the jury as the case calls for, and assigns to the jury the determination of all matters of fact. No doubt the unusual, if not unprecedented characteristics of the litigation, and the ordinary hurry of a trial, may explain all of the incidents which on careful review appear to be incapable of support.
The result reached is that the judgment must be reversed with costs and a new trial granted.
Campbell, J. and Marston, C. J. concurred.
Cooley J. did not sit in this case. | [
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] |
Cooley, J.
This is an action of ejectment. The plaintiffs are heirs at law of John Jeffery, deceased, and claim the land under a deed to their ancestor from the defendant Elizabeth Hursh. This deed bears date November 23, 1872. The record in error does not show whether Elizabeth Hursh ever gave possession to John Jeffery, but it is admitted that the other defendants are now in possession claiming to hold under her, and that all the defendants hold or claim adversely to the plaintiffs.
What foundation there is for the adverse claim of defendants does not appear, as none of them on the trial made any attempt to show title in Hursh, as a justification for their holding. The only facts we have respecting the original claim of title are that in 1872 Hursh was owner and conveyed to plaintiff’s ancestor, and when suit is brought she is found in possession, claiming title but not explaining it. The defendants, however, did show that a sale of the land wasmade^or delinquent taxes of 1877; that one Dusenbury became the purchaser and received the Auditor-General’s deed, and they rely upon this as an outstanding and paramount title in a third person, to defeat the action.
Presumptively, while this tax title was accruing Hursh was remaining in possession in subordination to her own conveyance. Bloomer v. Henderson 8 Mich. 395 ; Humphrey v. Hurd 29 Mich. 44 If it had appeared that she had been suffered to remain in possession as apparent owner, and that the other defendants had bona fide acquired rights under her, relying upon appearances, the case might be different (Bennett v. Robinson 27 Mich. 26) but nothing of the kind is shown, and no explanations are made. The question then seems to be, whether one in possession of land and neglecting to pay the taxes upon it, can rely upon a title derived from a sale for such taxes to defeat her own conveyance which she has not perfected by a delivery of possession.
The case does not raise the question whether the mere fact of possession while the taxes remain unpaid, will disqualify the possessor from acquiring or relying upon a tax title. We may, therefore, concede for the purposes of this case, that when there is a bona fide controversy respecting a title, and one of the claimants is in possession, he owes no duty to the other to keep the taxes paid, and may therefore strengthen his claim by procuring tax titles. Coxe v. Gibson 27 Penn. St. 160; Blackwood v. Van Vleit 30 Mich. 118. There is no showing here which puts the defendants or either of them in a position that would permit them'to raise that question, and we pass it without further notice. It is plain that if they cannot rely for their defense on a title purchased by themselves, they cannot make use of one purchased by another.
■In the court below the jury were instructed to return a verdict for the defendants. The record does not show that the point above mentioned was considered by the court, and it probably was not. Apparently the sole question raised and discussed was, whether the assessment roll which constituted the basis for the tax title, was not void for defects appearing on its face. Nevertheless, the point is in the case, and we cannot affirm the judgment without holding that the defendants were at liberty to rely upon the tax title. If they are not, the validity of the title in Dusenbury is an abstract question, and is too important to be considered and passed upon when the party chiefly concerned is not before “the court.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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9
] |
Cooley, J.
On tbe 18th day of January, 1875, Carlos D.
Horton, in order to secure the payment of promissory notes amounting in all to $2950, gave a mortgage to Herbert W. Pool upon lands in the city of Port Huron described as follows : The undivided one-half of the undivided one-quarter of lots number one, two and three, east of Commercial street, and eleven, twelve, thirteen and fourteen south of Quay street, all of Thorn’s plat, and the undivided half of lot five, in block one hundred, and of a part of lot five, of block one hundred and six, both of White’s plat, being the so-called homestead on Water street. The mortgage contained a provision that it was “subject to the life use and interest in said property of Pebecca Horton, mother of Carlos D. Horton, and in no event to be foreclosed until the termination of sucb life estate.”
On the fifteenth day of October following, Rebecca Horton, Oarlos D. Horton and Ettie M. Beard, the first having her life estate as above, and the last being ovraer of an undivided one-eighth subject to said life estate, and having been such owner previous to the giving of the mortgage to Pool, joined in a deed to William B. Hibbard and John Hibbard of lands in Port Huron aforesaid described as follows: The undivided one-fourth of lots ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen, south of Quay street, and lot one, east side of Commercial street, on Thorn’s plat. On January 10th following, the Hibbards gave back to the grantors what seems to have been intended as a purchase-money mortgage for $2800, but with the following stipulation contained therein:
“ It is also agreed by Carlos D. Horton, one of said second parties, that he will pay off and obtain a release of a certain mortgage this day executed to one Herbert W. Pool upon the interest of him, said Carlos D. Horton, in the above-described lots, for the sum of two thousand nine hundred and fifty dollars, it being further agreed that this mortgage is to be null and void unless the Pool mortgage is discharged to the extent of the notes herewith given, on or before the maturing of notes collateral hereto.” A further clause was as follows : “ This mortgage being given for a part of the purchase money on premises described, and in place of one dated October 15, 1875, and to correct a mistake therein.”
The mortgage mentioned in the above stipulation was given, as there indicated, on the tenth day of January, 1876, by Carlos D. Hox’toxx to Hex-bert W. Pool, to secure the same debt specified in the first mortgage above described, and the premises are described therein'as follows: The undivided one-half of the undivided one-qxxarter of lot nxxmber one east of Coxnmercial street, and lots nxxmber ten, eleven, twelve, thii’teen, fourteen, fifteen, sixteexx, seventeen axxd eighteen south of Quajr street, all of Thorn’s plat; the undivided one. half of lot nuxnber five of block one liuixdred axxd a part of lot number fire of block one hundred and six of White’s plat, being the Horton homestead on Water street, all in the .city of Port Huron — “this mortgage being given to take the place of one for a like sum between said parties, dated January 18, 1875, in which there was an erroneous description.” The mortgage was payable in five annual payments of $590 each, the first to be made January 18,1876. Annexed to it was the following:
“We hereby consent to and authorize the execution of the within, and attached mortgage, the same being for the correction of an error in one bearing date January 18, 1875.
John Hibbard [l. s.‘
W. B. Hibbard [l. s.'
By his attorney in fact.”
The execution of this consent was acknowledged by John Hibbard, but neither proved nor acknowledged as to W B. Hibbard. The mortgage — with, we suppose, this attached paper also — was recorded January 11, 1876. The deed to the Hibbards and the mortgage from the Hibbards to Carlos I). Horton, Rebecca Horton and Ettie M. Beard had been previously recorded. The mortgage by Carlos D. Horton to Herbert W. Pool, given January 18, 1875, was discharged when that of January 10, 1876, was executed. •
This suit is instituted to foreclose the mortgage of January 10, 1876, from Carlos D. Horton to Herbert W. Pool of whom complainant is assignee. The bill is in the main an ordinary foreclosure bill, but it sets forth that the mortgage it seeks to foreclose was given in the place of a former mortgage, in which the premises intended to be mortgaged were incorrectly described; it mentions the conveyance of Carlos D. Horton to the Hibbards, and avers that said Carlos 1). Horton thereby “ conveyed said lots described as being in Thorn’s plat” to said Hibbards, but is silent about his mother and Ettie M. Beard having conveyed anything thereby, and not in that connection mentioning them except as a copy of the deed is attached ; it avers further that in order that said mortgage might have priority of the conveyance to the Hibbards, and be a lien on the lots previously conveyed to them, the Hibbards consented in writing to the giving of the same upon said lots, and thereby made complainant’s mortgage “ an equitable mortgage, and gave the mortgagee therein named and his heirs and assigns, an equitable lien upon all the property therein describedit refers to the mortgage of the Hibbards to Carlos D. Horton, Rebecca Horton and Ettie M. Beard, and prays that it may be taken ■as a part of the bill of complaint, and without any further special allegations whatsoever, it makes the First National Bank of Port Huron, Samuel Ii. Crowl, Albert Ii. Harmon, John Hibbard, William B. Hibbard, Rebecca Horton and Ettie M. Beard defendants, as having or claiming rights or interests in the mortgaged premises, tor in some part or parts, thereof, as subsequent pui’chasers or incumbrancers or otherwise.
Crowl, Harmon and William B. Hibbard made no defence.. The others all appeared and made defence by solicitors. In addition to the facts above recited, and which were undisputed, it appeared that the mortgage given by the Hibbards to-Carlos and Rebecca Horton and Ettie M. Beard had been foreclosed and the premises mortgaged thereby bid in by the mortgagees. Also that the First National Bank of Port Huron was mortgagee of the Hibbards of lots ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen south of Quay street, and of lots one, two and three-east of Commercial street, together with other lots, by mortgage dated February 10, 1876, and duly recorded the same day The bill was filed February 13, 1879.
The usual decree of foreclosure and sale was made against all the defendants April 27, 1880. It seems obvious from rhe facts above recited that the decree is erroneous in several particulars.
1. The interests of Rebecca Horton and Ettie M. Beard were not subject to this mortgage, but were paramount, and the Dili as to them should have been dismissed. Their original titles antedated both the Pool mortgages. Their mortgage from the Hibbards antedated the mortgage the bill was filed to foreclose and was duly recorded. Complain ant relies upon a provision therein making it “ null and void ” unless the Pool mortgage was discharged, but this was a provision for the benefit of the Hibbards themselves, and for some reason they appear not to have relied upon it when their mortgage was foreclosed. There may have been good reasons for this with which no one else was concerned.
2. The interests of William B. Hibbard and of the First National Bank of Port Huron, so far as it was derived from him, were not subject to this mortgage. His deed preceded this mortgage, and it does not appear that he ever assented to the mortgage being given. William B. Hibbard, it is true, did not appear and defend, but this is immaterial as complainant’s own showing establishes the fact that he was not a proper party to the suit.
3. The giving of consent by John Hibbard in the manner he did we think was equivalent in legal effect to uniting in the mortgage, and his interest is therefore bound. The bank is also bound to the extent that the interest mortgaged by him to the bank had been previously encumbered by this consent. In other respects the decree appears to be unobjectionable.
The conclusion is that the decree must be reversed as to the defendants Bebecca Horton and Ettie M. Beard, and the bill dismissed with costs of both courts. It must be modified as to the First National Bank of Port Huron by striking out the name of William B. Hibbard as a party and by providing for the protection of such interest as the bank derives through him. The bank not having appealed will recover no costs of this court, and no costs will be awarded either for or against it in the court below. As to Carlos D. Horton the decree will be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
The Plow Company sued Fales & Goodspeed on the common counts and on a promissory note bearing date May 1st, 1879, subscribed “Fales and Goodspeed,” and purporting to have been made by them to the Company for $281.37, payable September 1st after the date at the “Lansing National Bank,” with exchange on New York or Chicago, and providing for interest at ten per cent per annum after maturity and “ attorney fees,” and “ waiving all relief whatever from valuation or appraisement laws.” Goodspeed pleaded the general issue and denied under oath that the note was executed by him or on his authority. Fales seems to have made no defence. The jury found in favor of the Company for $219, and Goodspeed brought error.
From some time prior to January 20, 1879, until the 13th of February following, Fales and Goodspeed were co-partners under the firm name of “ Fales & Goodspeed,” and carried on business at Lansing. On said 20th of January Fa'les, in the firm name, made a written order on the Company for a quantity of plows to be delivered on board cars at South Bend. The order contained special terms. One of the provisions was in these words: “We agree to make settlement with four months’ note, without interest until after maturity, made payable at —;- Bank of Lansing, oh receipt of your monthly statement: provided we do not take the benefit of your cash discount, in which case we agree to remit by the 15th of the month following the shipment.” The order was accepted and the Company made four shipments; two in January and two in March, amounting to $281.37. Good-speed had .no personal knowledge of the order or of the shipments. February 13,1879, the firm dissolved. The Company first learned of the dissolution in March, but not until after the shipments. In June following, an agent of the Company received from Tales, who subscribed it, the note before mentioned, on the account for the plows. The agent, on taking the note, receipted and surrendered to Tales a statement of the account.
The circuit judge was of opinion that recovery upon the note was not allowable against objection on the part of Good-speed, and this view was a correct one. According to the record, when Tales gave the note he had no power to bind Goodspeed and make him liable as maker. The agency necessary therefor ceased when the dissolution was effected. Moreover the note given was in substance not identical with the note provided for by the legal meaning of the firm agreement. The Company by that agreement could not insist upon ten per cent, as the rate of interest to be inserted nor on a provision for exchange on New Tork or Chicago.
His objection against recovery on the note having been sustained, the plaintiff in error then urged that as the account was given up and the note taken with knowledge of the dissolution and of the facts, the account became cancelled and no recovery could be had on that. This view was presented in requests for instructions, but the court rejected it and told the jury that if they were satisfied the goods were shipped in pursuance of the order before the dissolution of the partnership was known to the Company, they ought to allow for the goods so shipped. The verdict was for the agreed price of the plows delivered, less a certain sum which had been paid.
It is now insisted that it was practicable for the Company to give up the account for a note, taken in satisfaction of it, and that this was done without intervention of any fraud or misunderstanding; and that, although the note was given by Tales in the firm name without authority and was repudiated by Goodspeed, its reception and the delivery of a copy of the account receipted were sufficient to release Goodspeed from all liability and preclude recovery on the account. It is impossible to assent to this position. The controversy in all its parts is between the original parties. No new interest has appeared, and it is part of Goodspeed’s contention that neither mistake nor fraud has affected the transaction. What then is the case ? When the note was given, Fales and Good-speed -were joint debtors to the Plow Company for the plows as goods sold and delivered. They did not make payment in cash. But Fales gave this note as the joint obligation of the parties, and as such joint obligation the Company received it, and not otherwise. Whether this was business prudence is of no consequence. Each was liable for the whole considerar tion to the Plow Company, and Goodspeed might acquiesce in Fales’ act in giving the note. The term of credit expired, but neither debtor paid the demand. The Company sued the debtors jointly and counted on the note, and also on the original consideration.
Goodspeed in substance refused to consider the note as payment. It was given and received as the joint note of Fales and Goodspeed and not as the separate note of Fales, and under Goodspeed’s objection it failed to be such a note, and the effect in point of law on the right of the Plow Company to refuse to rest upon it, was just the same as though both debtors had repudiated it. With Goodspeed’s liability stricken out it was not the note agreed upon, and the company were at liberty to treat it in that way. He refused to be bound by the note, and if he was not bound by it he could not make use of it to confine the Company to it and screen himself from all liability. These views are advanced under the assumption that Goodspeed’s counsel was right in claiming that the note was passed and received by way of payment. Because if it was not so taken there could be no occasion to speak about the right to recover on the original consideration. No one in that court and on this record would doubt the regularity of such a recovery. The correctness of the assumption is not material. It is made for the purpose of meeting the position of the plaintiff in error.
The note fell through under Goodspeed’s objection, but the debt remained and each was liable for the whole. The count for goods sold and delivered was maintainable. The authorities, if any are needed, are full and explicit. Plimley v. Westley 2 Bingham’s N. C. 249 ; Fry v. Hill 7 Taunton 397; Burden v. Haltson 4 Bing 454; Hickling v. Hardey 7 Taunton 312; Farr v. Ward 3 M. & W. 25 ; Burchfield v. Moore 3 El. & Bl. 683 ; 25 E. L. & E 123 ; 1 Saund. Pl. & Ev. 110 ; Benj. on Sales § 765 ; 2 Chitty on Contacts (11th Am. ed.) 615, and note and cases.
The result reached was correct in point of law, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The bill in this case is filed against the widow
and heirs at law of Horton D. Holcomb, late of the county of Barry, deceased, to establish a lien upon the lands of which the decedent died seized, for moneys loaned by complainant to his executors, and for which mortgages were given, and also to charge the widow, the judge of probate, the counsel for the widow and several other parties with conspiracy to defraud both the estate and complainant as mortgagee. The bill was dismissed in the court of chancery, on full hearing on pleadings and proofs, except as to-the widow, and complainant appeals.
The bill alleges that Holcomb died February 20, 1866, seized of 320 acres of land, lying in separate parcels in Barry county, and that he left a last will whereby be devised his lands to bis wife and children, but with certain powers to the executors, all of which will appear by the copy of the will which is given in the margin.
That the will made the wife, Adelaide D. Holcomb, and the decedent’s brothers, Horace G-. and Hiram W, Holcomb, executors.
That the will was probated and allowed in the county of Barry aforesaid May 15,1866, and letters testamentary issued to the persons made executors.
That no order was entered by the probate court fixing the time within which the debts and legacies should be paid and the estate settled as the statute requires.
That an inventory was filed July 31, 1866, showing the property of the estate to be, real estate, $6360; personal estate, $1100.
That on November 26, 1867, the said executors filed their bond as testamentary guardians of the heirs at law, who were minors; they having been appointed to that office by the will.
That on the same day last aforesaid the executors prayed leave to sell one eighty-acre lot belonging to said estate and invest the proceeds in the purchase of another parcel immediately adjoining the homestead, and the probate court assumed to grant leave, the sale was made and an order entered to confirm the same. This action of the executors and the probate court is averred to be wholly unauthorized and void, and the purchasers are made defendants as assuming to hold and claim the property which belongs to the estate.
That afterwards in December, 1871, Hiram W. Holcomb assumed to resign his trust as executor and guardian, and the probate court assumed to accept the resignation, which action, of the court is alleged to be unauthorized and void.
That on or about the first day of December, 1874, the widow entered into a conspiracy with one Holbrook, since deceased, with the judge of probate and with other persons who are named as defendants, to cheat and defraud the estate and all persons having claims upon or against it, or against the heirs thereof in the manner stated below.
That Horace G-. Holcomb was then deceased, and said Adelaide had for a long time been acting as sole executor and sole testamentary guardian.
That in furtherance of said conspiracy said Adelaide, with the assistance of other defendants named, did on the day last aforesaid file in the probate court what pm-ported to be an itemized statement of her account, showing a balance in her favor of about $3900, with petition for the hearing and allowance thereof, and the defendant Prindle as judge of probate made a pretended order of allowance thereof, though the estate, as the judge well knew, was not indebted to said Adelaide in any sense whatever, and the time allowed by the statute for settling the estate had then long passed.
That afterwards on or about the eighth day of April, 1875, the said Adelaide filed her petition for leave to sell or mortgage certain lands belonging to said estate, a copy of which is also herewith given.
That on May 27, 1875, the said judge of probate assumed to grant an order for the mortgaging of said lands, a copy of which is also given, and that defendant Adelaide gave bond in regard to said order with the defendants John H. Earle and Lucius Bussell as her sureties.
That in reliance upon this order complainant was induced to loan to said Adelaide $3000, accepting two mortgages upon said lands, of $1500 each, given by said Adelaide as sole executrix and testamentary guardian.
That of the said sum of $3000, $150 was appropriated by said Russell and the remainder was delivered to said Earle with the avowed purpose of delivering the same to said Prindle to be paid out and distributed.
That said Adelaide made a report of her proceedings in giving said mortgage, and the said judge of probate entered an order pretending to confirm the same.
That all the proceedings of said Adelaide and said probate court in respect to mortgaging said lands were wholly 'void, and that said Adelaide under said will had no power either to sell or mortgage the lands of the estate, except under the authority of a court of equity, and that complainant’s mortgages therefor create no lien and are void.
That said Adelaide is insolvent; that the money obtained from complainant has been used for the benefit of the family of said deceased and for said estate, in part, but she does not know to what extent, and she is entitled in equity to a lien on the lands therefor, and to an accounting with the defendants, and a personal decree against them.
And the bill prays for a decree according to the theory of complainant’s case as above stated and for other and further relief.
Such is the case made by the bill. The defendants answered, admitting the will, the proceedings in the probate court, and the giving of the mortgages, but denying explicitly ’ all collusion, conspiracy and fraud. Yolnminous testimony was taken, and it is sufficient for our purposes to say of it that it fails to charge the defendants -or any number of them with collusion to defraud the estate or to wrong complainant, or with any intentional wrong whatever. The court of chancery dismissed tlie bill except as against the defendant Adelaide, but assuming the mortgages to be void, made a personal decree against her that she pay to complainant the amount of her mortgages. Complainant appeals.
The first question that presents itself on the appeal is whether the complainant and the court were right in assuming that the mortgages were void. The defendants do not contest the invalidity, and have no interest in doing so, but their assent does not determine the question of law. That, however, is supposed to be settled by previous decisions of this court.
Of the previous decisions, that in Matter of Godfrey Estate 4 Mich. 308, merely holds that the court will hot license the sale of lands to pay debts against an estate after the legal remedy for their recovery has been barred by lapse of time. Hoffman v. Beard 32 Mich. 218, holds that a license to sell issued to an administrator after the estate has been actually closed, is wholly void, and may be treated as void in collateral proceedings. It is said in that case that the time allowed to an administrator in which to close up the estate must be restricted to four years and a half; but this rule is subject to exceptions, as was explained by a later ease. Larzelere v. Starkweather 38 Mich. 96.
Does this case come within the general rule laid down in Hoffman v. Beard ? If it does, that is an end to all controversy so far as concerns the validity of the mortgages; if not, that question is not disposed of by any adjudication. In our opinion the two cases differ in most important particulars.
In the first place the estate in question in Hoffman v. Beard had been closed before license to sell was granted, and the record showed the fact. In this case there had been no settlement, and the estate, whether rightfully open or not, was in fact still open. In the second place that was a case where the administration was wholly under the .statute; in this case there is a will. Moreover the will by its express terms contemplates that the estate shall remain in the hands of the executors for a period longer than that limited by law for closing estates generally, and that action for partitioning the estate shall be had from time to time in the probate court. No want of competency in the testator to make such provision is suggested and probably none will be set up.
Notwithstanding these provisions it was probably still necessary that all claims against the estate should be presented and allowed within the time limited by the general law. But it was obviously the intent of the will that the widow or the executors should receive and pay out moneys in managing the estate, and supporting, maintaining and educating the children, and it was not at all improbable that the estate would be found indebted to one or more of them while in the strict discharge of what they might believe to be their duty under the will. Any such indebtedness would not stand on the same footing with debts contracted by the deceased in his lifetime, and would not be subject to the same limitation.
Referring now to the account allowed against the estate in favor of the widow, we find it made up of payments made by her for the estate; of expenses in carrying on the farm, and supporting and educating the children, from which are deducted the receipts of the farm. It was to pay the balance on this account that the mortgage was licensed. There cannot be the least doubt that some portion of this account, at least, was a just claim against the estate. It is said, however, that admitting this to be the case, there existed a trust in respect to the lands which only a court of equity could deal with, and that the probate court exceeded its jurisdiction in assuming to act at all.
Whether the court of chancery would not have been the more appropriate tribunal to which to appeal is a question we shall not consider now. It is enough for the purpose of this case that the estate still remained unsettled, and was still in the hands of the probate court for some purposes, and that a claim presumptively legal and which the probate court had approved, existed against it. The jn’obate court decided that it had authority to license the giving of the mortgage, and no appeal was taken from its decision. The license was not void, for it appeared to be a step in the regular administration of the estate under the will, and nothing in its recitals was calculated to notify any one that it was not warranted by law. It may be that this is one of those cases lying along the borders of probate authority of which the court of chancery might have assumed jurisdiction, but the fact is immaterial. The probate court is one of general jurisdiction in testamentary and other probate matters. People v. Wayne Circuit Court 11 Mich. 393; and where no fatal defect appears on the face of the proceedings, its action in such matters is not void. It may be reversible on appeal, but it must stand if not appealed from.
There was then a valid order licensing the giving of complainant’s mortgages, and the giving of the mortgages was confirmed.' Complainant was under no obligation to look further, but was entitled to hold her mortgages as valid claims against the lands described therein. It remains to be seen whether we can afford her any relief in this suit.
The complainant’s case is based upon a charge of conspiracy which is wholly without support in the evidence, and upon a concession that her mortgages are void. Had she claimed a foreclosure of the mortgages, decree would have been made in her favor. She does claim, however, that she is entitled to an equitable lien in the nature of a mortgage, and as this relief is akin to that which she should have had, it may be that the proper relief can be given under the general prayer, by an amendment now made to the bill by special favor.
It is plain from this record that the parties have gone fully into their equities, and that the case that would have been made on a foreclosure bill is fully before us. If therefore an amendment can be allowed, it will be entirely proper, just and equitable to grant a decree of foreclosure.
The rules for amendment are exceedingly liberal when justice will thereby be done and wrong prevented. A necessary party is often permitted to be added at the hearing; and even on appeal the case may be remanded for the purpose. Lewis v. Darling 16 How. 1; Palmer v. Rich, 12 Mich. 414. A bill for specific performance is sometimes permitted to be converted into a bill to rescind when it is manifest from the evidence that such should have been the relief prayed for. Parrill v. McKinley 9 Grat. 1; Hewett v. Adams 50 Me. 271. See Whelan v. Sullivan 102 Mass. 204; Neale v. Neales 9 Wall. 1. In Sanborn v. Sanborn 7 Gray 142, leave to change a bill for specific performance into a bill for relief on the ground of fraud, seems to have been denied only because jurisdiction in cases of fraud had been conferred on the court since sirit was brought. An amendment to bring new transactions into an accounting in a partnership case was allowed at the hearing in Drew v. Beard 107 Mass. 64; and one quite as radical was permitted in Darlington's Appeal 86 Penn. St. 512, in the appellate court. In The Tremolo Patent 23 Wall. 518, an amendment was allowed after decree, which changed the character of the bill from one relying on a patent to one based on a re-issue; it being manifest that the merits, had been fully gone into. The limit to amendments is this: they must not be allowed to prejudice the substantial rights of the defendant; but observing due caution in that regard, the time and the extent of change are in the discretion of the court. Hewitt v. Dement 57 Ill. 500 ; Munch v. Shabel 37 Mich. 166; Codington v. Mott 1 McCarter (N. J.) 430; Camp v. Waring 25 Conn. 520. A plain case for refusing an amendment at the hearing is where the case, after amendment, would be defective on the proofs. Curtis v. Goodenow 24 Mich. 18.
An amendment in this case will be entirely just to all parties. The proofs are in, and on all the facts constituting complainant’s case, there is no conflict. But it is not the case made by the bill, though it is of the same nature, and the relief to be given upon it is similar to that which the complainant has specifically prayed. No wrong will be done and no confusion created by making the bill at this time correspond to the case made.
The decree, so far as it dismissed the bill against all the defendants but the widow and heirs of Holcomb, will be affirmed with costs. The record will then be remanded with leave to complainant to so amend her bill as to pray a foreclosure of the mortgages in case they are adjudged valid. This amendment will be made without prejudice to any of tbe proceedings, and the court of chancery will thereupon enter the usual decree of foreclosure and sale, upon computation of the amount due. But complainant must pay to the defendants all costs up to the time the decree is entered. In respect to costs she can be placed in no better position than she would have been had her bill been dismissed without prejudice.
The other Justices concurred.
In the name of God, Amen:—
I, Horton L. Holcomb, of the township of Praivieville in the county of Barry, and state of Michigan, feeling the uncertainty of life, and being-feeble in bodily health but sound in mind and memory, do hereby make, publish and declare this my last will and testament, as follows; that is to say:
First. After the payment of ail my just debts, if any there should be at my decease, together with funeral charges, and the expense of providing suitable marble to be erected at my burial place, I give and bequeath unto my beloved wife, Adelaide D. Holcomb, all my household goods and wearing apparel of every kind and description, to her sole use forever.
Second. I give, devise and bequeath unto my said wife, also, for and during her natural life, that portion of my homestead farm known and described as the north half of the north-west quarter of section one in township one north, of range ten west, in the county of Barry and the state aforesaid, with all the appurtenances thereto belonging; and after her decease the said described premises I give and devise in equal proportions to all my children who may survive me, being then born or that may thereafter he bom, to them and their heirs forever.
Third. I give and devise all my real estate, wheresoever the same.may be, not hereinbefore devised, in equal proportions, share and share alike, to all my children, me surviving, to them and to their heirs forever.
Fourth. I give and bequeath unto my beloved wife, also, one span of horses, two cows, and all the farming tools, vehicles and implements of husbandry that to me may belong at my decease.
Fifth. As to all my personal estate not hereinbefore specifically bequeathed, and all the increase and profits therefrom, and all the income and proceeds arising from the real estate, I direct that the same shall be held and owned in common by my said wife and all my children, to be used for the support and maintenance of my said wife, and for the support and .maintenance and education of all my children, under the direction and control of my said wife, if she should continue competent to manage and control the same, and in case she should become incompetent, then under direction of the other executors of my will, hereinafter mentioned; and the remainder of the annually-accruing increase, proceeds and profits of my estate over and above the necessary amount for properly stocking and supplying the farm, and the support, education and maintenance aforesaid, I direct shall be converted into money, and from time to time be put out on interest for the use and benefit.equally, share and share alike, of my said wife and children, until the oldest cuild living shall arrive at the age of 21 years, when the share of estate belonging to such child, both real and personal, shall be set off, partitioned and distributed to such child by commissioners to be appointed therefor by the probate court of the proper county; and when a second child shall become of the age of 21 years, a like distribution and partition shall be made to such child, and so on until the share of each and every child shall have been set off, partitioned and distributed in the manner aforesaid, and thereafter the premises above devised to my beloved wife shall be and remain with the use, rents, proceeds, profits and income thereof, the sole property of my said wife for and during her natural life, then the real estate [shall revert] to my children, as directed in the second provision aforesaid described, and I do declare that it is my intent that the whole real estate, including the land devised to my wife, shall be used iii common for the purpose and to the uses aforesaid, until partition and distribution shall be made substantially in the manner and at the time aforesaid, so that the use of all the real estate, and the profits and income therefrom, as well as the personal estate, except the personal estate specifically bequeathed to my wife, shall be charged with the common support and maintenance of my wife and children, and the education of the children, until the several shares shall from time to time be set oil and distributed as aforesaid.
Sixth. And 1 do hereby direct that my said wife and Horace G. Holcomb and Hiram W. Holcomb shall under this, my last will and testament, be the joint guardians of all my children and of their estate during the minority of said children severally.
Seventh. And lastly hereby revoking all former wills by me at any time before made, I do hereby appoint my wife, Adelaide D. Ilolcomb, and my brothers, Horace G. Holcomb and Hiram W. Holcomb, execu: tors of this, my last will and testament.
In witness whereof I have hereunto set my hand and seal, at Prairie-ville aforesaid, this thirty-first day of January, in the year one thousand eight hundred and sixty-six.
Hobton L. Holcomb. [l. s.]
State of Michigan, County of Barry — ss.
In the matter of the estate of Horton L. Holcomb, late of said county, deceased.
The petition of Adelaide D. Holcomb, widow and executrix of the last will and testament of said deceased, respectfully shows that the personal estate of said deceased, according to the inventory and appraisement, now on file in this court, and which is all thus far that has come into the hands of your petitioner, amounts to the sum of about $1138.25 less the sheep and other articles of personal property sold, as shows in her statement of December 1, 1874, and that the disposition and condition thereof are as follows:
That the same consisted of stock, farming utensils and necessary things with which to run and carry on the farm, and nearly the same amount is now on the farm, used and being used for the purpose, which said farm and real estate of which the said Horton L. Holcomb died seized and possessed, has been carried on and. run in a prudent manner in common for the use and benefit of the widow and children of said deceased, and for the support, education and maintenance of the said minor children, under and by virtue of the provisions of the last will and testament of the said deceased.
Your petitioner further shows that as far as can be ascertained by her and as she verily believes, the first debts which the said deceased at the time of his decease and now due and outstanding against his estate, together with the expenses of working the farm ana real estate from the time of his death until the first day of last December, and the expense of supporting the family and educating the children, after deducting the entire income of the said estate, amount to the sum of $3939.20, and that the charges of administering said estate, including further probable charges, will amount to the sum of at least $300, as she is informed and verily believes to be true.
Your petitioner further shows that in view of the facts and statements aforesaid, and as she verily believes, the personal estate of said deceased is insufficient to pay the just debts due from said deceased, and the charges of administering his estate, and that it will be necessary for the purpose of paying said • debts and charges, including losses and expenses in running said farm and real estate, to raise the sum of $4239.20,.by selling the following described real estate or some part thereof, of which the said Horton L. Holcomb died seized and possessed, the description, condition and value of each parcel, and of the whole of his real estate, according to the information and belief of your petitioner, are as hereinafter stated, that is to say — all that certain piece or parcel of land situate in the county of Barry, and state of Michigan, and known and described as being the south half of north-west fractional quarter of section one north, range ten west, and being a portion of the homestead farm of which said Horton L. Holcomb died seized and possessed. That the said piece of land contains no buildings, but is well fenced and in good state of cultivation, strong soil, good wheat land and valuable for farming pur' poses, and worth about fifty dollars per acre. Also, that other certain piece or parcel of land of which the said testator died seized and possessed, situate in Barry count}'-, Michigan, and known and described as being the west half of south-west quarter of section number thirty, town two north, range ten west, containing eighty acres of land, in a good state of cultivation, well fenced and improved, rich soil, good wheat land, fair and even surface and valuable for farming purposes, and worth about fifty-five dollars per acre.
Your petitioner further shows that the name and residence of the heirs at law of said deceased and other persons interested in said estate, as your petitioner is informed and believed, are as follows: All reside in the county of Barry and state of Michigan, including all the creditors and heirs at law, to wit: The minor children of said deceased who live with your petitioner in the town of Prairieville, Barry county, Michigan.
Wherefore, your petitioner prays that she as executrix of said estate, may he empowered and licensed to sell real estate, or mortgage the same in whole or in part, hereinbefore described, with the hereditaments and appurtenances, or so much thereof as will bo sufficient for the payment of the said debts due against said estate, and the charges of administering {lie same as aforesaid, according to the statute in such case made and provided.
Dated March 1st, 1875. Adelaide D. Holcomb.
Present, S. C. Prindle, Judge of Probate.
In the matter of the estate of Horton L. Holcomb, deceased.
This day having been appointed by the court for hearing the petition of Adelaide D. Holcomb, executrix of the last will and testament, and administratrix of the estate of said Horton L. Holcomb, late of said county of Barry, deceased, praying, for reasons therein set forth, that she may be licensed to mortgage certain real estate of said deceased, in said petition described. Now comes into court the said petitioner, and no persons appearing to oppose. And it appearing to the satisfaction of this court, by due proof on file, that a copy of the order of this court, touching the hearing of said petition, made on the eighth day of April last, has been duly published as therein directed. And it further satisfactorily appearing to this court, after full hearing on said petition, and on examination of the proofs and allegations of the petitioner, that the debts and valid claims which the said Horton L. Holcomb justly owed at the time of his decease, so far as the same can be ascertained, and which are now due and outstanding against his estate, including expenses incurred in maintenance of family, and expense of working farm and educating the children of said deceased, after deducting the entire income of the estate, amount to the sum of $4239.20 exclusive of interest. And the personal estate of said deceased in the hands of said executrix is insufficient to pay all said debts and valid claims due from said deceased with the charges of administering his estate, and that therefore it is necessary to borrow said sum and secure the same by mortgaging the real estate described in said petition to pay said debts, claims, interest and charges, and no person interested in said estate having given a bond to pay the same, as authorized by law.
Therefore, in consideration of the premises, it is ordered, adjudged and decreed by this court that said Adelaide D. Holcomb, executrix and administratrix as aforesaid, be and hereby is empowered, authorized and licensed to mortgage pursuant to the statute in such case made and provided, that part of the real estate whereof the said deceased died seized and possessed, as hereafter designated and described, for the purpose of paying said debts, claims, interest and charges.
And it is furtlnjr ordered that the said executrix and administratrix give a bond in the penal sum of $8000, with one or more sureties to be approved by said judge, for the faithful discharge of her duty in the premises, as required by law. Said sums so borrowed to be for a term of not exceeding five years, and at a rate of interest not exceeding ten per cent, per annum. And it is further ordered that said executrix and administratrix immediately after such mortgage made make due returns to this court of her proceedings in the premises, by virtue hereof. The real estate authorized to be mortgaged, under and by virtue of this decree, is specified, designated and described as follows, to wit: All that certain piece or parcel of land situate, lying and being in the county of Barry and state of Michigan, known and described as being the south half of the north-west fractional quarter of section one (1), town one north, range ten west; also the west half of the north-west quarter of section thirty-six in town two north, range ten west, in said county of Barry, containing eighty acres.
S. C. Prindle, Judge of Probate. | [
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Marston, C. J.
This is a test ease, as a number of similar cases in all essentials await the result in this. Considering the character and importance of the questions raised, and the amount involved, the case becomes one of more than ordinary importance, and demands careful consideration.
The discussion in this court was able and exhaustive, and although quite a number of interesting questions were presented, yet in our opinion the case must ultimately be disposed of upon the legal construction of the labor certificates, so-called, that were issued, in view of the undisputed fact that Mead & Co. delivered goods thereon to the holders thereof. To pass by this question at the present time, or leave the proper construction of the certificates a matter of doubt or uncertainty, would be but to prolong needless litigation at great .expense to all parties; and this should be avoided, especially where the case must inevibably reach a stage where the question could no longer be evaded.
The legal effect of the certificates, construed in the light of certain indisputable facts, must determine the respective rights of these parties.
The plaintiff below, John Dacey, Sr., was employed by and performed services as a laborer for the Marquette & Pacific Polling Mill Company, a corporation, during the years 1876-7. Certain certificates were regularly issued to him, from time to time, all of which were in the following form, except as to the number, date, and amount.
“No. 4585. Marquette, Dec. 14, 1876.
“Due John Dacey, Sr., for labor, from the Marquette & Pacific Polling Mill Company, four dollars, in goods, at the store of E. H. Mead & Co.
“ $4. "W. W. Wheaton, Treasurer.
“By C. S. W. Pros.”
Wheaton was treasurer and general agent of the corporation from the spring of 1873 up to December, 1877. The firm of Mead & Co. was organized in June, 1876, and was composed of E. II. Mead, and John Seudder, who was secretary of the Rolling Mill Company', as general partners, and Mrs. W. W. Wheaton as a special partner.
Certificates of the same form as the above were given other laborers of the corporation, to an amount aggregating upwards of eighty thousand dollars, which Mead & Co. received and delivered goods on to the full value thereof. The firm of Mead & Co. ceased to do business in August, 1878, at which time they made a general assignment for the benefit o'f their creditors; and certificates then in the possession of Mead & Co. to the amount of some fifty thousand dollars, passed in some way under the control of their creditors, and this action is brought for their use and benefit. In this action it is sought to hold Beecher, one of the stockholders of the corporation, liable as for a labor debt.
The firm of Mead & Co. did not at any time have any goods or funds on hand, or at their store, belonging to the Rolling Mill Company, and it was claimed on the trial, and Mead, Scuclder and Wheaton so testified, that no agreement existed or was ever entered into between Mead & Co. and the Rolling Mill Company, under which the firm was to j>a.y these certificates in goods or otherwise. It was shown that the Rolling Mill Company had no credit for goods or commercial ’credit in Marquette, where Mead and Co’s, store was located, but that it was heavily in debt, which was well known to Mead & Co. That Mead & Co. advanced Dacey goods on the strength of his labor debt, or claim for labor against the corporation, knowing that the corporation stockholders were legally liable therefor and pecuniarily responsible.
These certificates were from time to time presented at the store of Mead & Go. by the holders thereof, and usually goods to the full amount thereof delivered thereon : if not, a store due-bill for the difference would be given the person presenting the certificate, which would be redeemed in goods on presentation, and on receipt of each certificate by Mead & Co. they would stamp in red ink across the face thereof the word “Paid.” This they testify was done to prevent the re-presentation of the certificates in case of their loss.
If a laborer desired goods, and had no certificate, or store due-bill, and goods were given him, they would be charged him on their books, and on afterwards delivering them a certificate for the amount thereof, such charge would be marked paid. Goods delivered upon certificates were not charged to the persons named therein, but were credited to merchandise, and the certificates charged to the Rolling Mill Company.
To show still more clearly the surrounding circumstances and the practical construction placed upon these certificates by the parties, and especially as it was claimed that no agreement existed under which these orders were to be so drawn an'd taken by Mead & Co., we will quote from the testi-' mony of the plaintiffs’ witnesses at some length, as all the testimony is given in the bill of exceptions.
Mr. Wheaton, the treasurer and general agent of the corporation, was examined as follows:
Q. Will you state whether you made any arrangement, or whether there was any arrangement with Mead & Company, by which Mead & Company should give the company credit for the goods given to laborers % Á. There was no arrangement of that kind made.
E. H. Mead was examined and testified as follows:
Q. Will you state whether the Marquette & Pacific Rolling Mill Company had any arrangement of any kind with E. TI. Mead & Go. whereby Mead & Go. should give goods to their laborers, and charge them to the company ? A. No.
In this connection it may be proper to say that Mead also testified: “ Dacey asked me, and I trusted him for goods, and took his labor certificate, knowing that the stockholders of the company were good, not trusting the company.”
John Scudder was examined and gave testimony as follows :
In speaking of certain entries made upon the books of Mead & Co. showing a monthly settlement and surrender of certificates, which will again be referred to, he testified:
“All the entries were made this way, with the understanding that Wheaton was to settle once a month with E. H. Mead & Co. and when he failed to do that, these due-bills were not given up.” * * * “ I made the entry with the understanding that Wheaton was going to take up these due-bills once a month; and when the end of the month came, I made the entry as if the due-bill would be given up; and they would be, provided he would take them.” k * * Question. Didn’t you say that Mr. Wheaton was to settle with you once a month on behalf of the Marquette & Pacific Polling Mill Company ? Answer. Tes, sir; lie was to settle with Mead & Go. Q. When I say ‘ you’ I mean, Mead & Co. Was that the agreement ? A. That was the understanding.” * * * Q. You say you talked it over with Wheaton. Give us the details of that agreement with Wheaton, on behalf of the Marquette & Pacific .Polling Mill Company, to pay these orders, take care of them. What was the agreement? A. The agreement was that Wheaton was to pay cash for all accounts, that is, for all goods that the Marquette & Pacific Polling Mill Company got for its own use as well as these certificates. Q. The agreement'wascash in this instance — nothing else? A. Yes, sir, cash. Q. Weren’t they settled at the end of the month? A, Not quite at the end of the month but to make a monthly settlement. Q. In other words, the agreement was that at.the end of the month, or when the month came around, that they would pay cash, and take up these orders and due-bills, and pay also for what goods they had themselves ? A. Yes, sir. Q. And wasn’t it under this arrangement that you went on and accepted these certificates or due-bills and paid goods out on them ? A. I think it was. Q. You know it was, don’t you? A. Knowing that the certificates were good. Q. You knew the Marquette & Pacific Polling Mill Company were perfectly good ? A. I knew the Marquette & Pacific Polling Mill Company were not good. Q. But you knew Marquette & Pacific certificates were good ? A. I knew the stockholders were good.”
This is all the direct evidence we have touching the fact whether there was an agreement or not. The orders upon their face would imply an agreement of some kind, as it would seem highly improbable that they would be'drawn in such manner in the absence of some understanding in the first instance. But the practice at first was strictly in accordance with such an agreement, except perhaps as to the full payment being made in cash. And the boohs of Mead & Co. in reference to their dealings for 1876 show that they had received from Mr, Wheaton for the Bolling Mill Company, cash, notes and drafts, sufficient to balance the amount of orders, due-bills and certificates received by Mead & Co., and their boohs were in that way balanced. In this connection Mr. Scudder also testified that although the boohs were so balanced, their claim was not considered paid, and the certificates were not all surrendered. So monthly statements were made upon their boohs, showing a surrender of the certificates after 1876, but subsequently changed.
It also appeared, and was not controverted, that the total amount of labor certificates tahen by Mead &■ Co. was upwards of eighty thousand dollars; that they also had other claims against the Bolling Mill Company; that they received from the Bolling Mill Company over thirty-five thousand dollars in cash, and over sixty-eight thousand dollars of the paper of the Marquette & Pacific Bolling Mill Company, which if paid would have left a balance due Mead & Co. of less than two thousand dollars.
Of the paper of the Bolling Mill Company some was used and some was not, and a large amount was afterwards returned ; all that had not been used was returned, some of it having been held but a day or two; some that had been used was returned, and some used was to be returned, so as to leave the balance against the corporation about fifty thous- and dollars.
In case of doubt as to the proper construction of the certificates, it becomes the duty of the court to construe them in the light of the surrounding circumstances and of the practical construction given by the parties, by their course or dealing, and certainly in so far as the facts were Undisputed there was nothing to submit to the jury.
The controversy after all was not so much upon the facts as the legal effect thereof. There was- no. controversy as to the form of the certificates or the total amount issued and taken by Mead & Co., or as to the amount of cash and paper of the corporation paid to or received by Mead & Co., or as to the manner in which they kept their books in the main, or as to the returns of a large amount of the paper of the Moiling Mill Company. Whether the paper of the corporation was given to and received by Mead & Co. in payment of these certificates, or on account thereof, or merely as accommodation paper, was controverted, and we may as well dispose of this part of the case here as at any other time.
This paper was not given or received as payment of the certificates : there is no evidence showing that it was, and in the absence thereof it must be held no payment. It is equally clear that it was not given as mere accommodation paper, within the customary meaning of that term. A corporation organized for mining and manufacturing purposes would have no authority to issue and deliver to third parties accommodation paper, and we cannot attribute any such unauthorized dealings to these officers, so long as a legitimate reason is apparent.
That there was an agreement made in the first instance, that certificates should be issued payable in goods at Mead & Co.’s store; that they were to deliver goods thereon, and that the corporation should settle with them monthly and pay the amount thereof, can scarcely be said to admit of any doubt or question. That the corporation failed to make such cash payments is equally clear; and that in lieu thereof it gave its paper to Mead & Co. is also beyond controversy, but such paper was given upon and because of the claims held by Mead Co. It was given to them so they might use it, and to this extent was a benefit or accommodation to that firm, but because of the debt of the corporation upon which it was given and to be applied if paid, it was not what is known as accommodation paper.
The agreement entered into and course of dealing thus far referred to would indicate pretty clearly that Mead & Go. did look to the corporation for the payment of these certificates, and not exclusively to the stockholders. The fact that there was no formal assignment of these certificates, or of the labor debt, also tends strongly in the same direction. It would be almost incredible to suppose that Mead & Co. possessing, as we may fairly presume, ordinary business prudence and sagacity, would take over eighty thousand dollars in claims against an insolvent corporation, intending to rely upon their right and ability as assignees thereof to collect from the stockholders, and yet have taken no formal assignment.
In this connection the written agreement of January 4, 1878, a copy of which is given below, should not be overlooked. It is true the evidence is that this agreement did not go. into effect because never delivered, but whether delivered or not, the terms thereof were understood, so that it did not misrepresent the parties thereto, to say the least.
By this agreement the corporation was to deliver one hundred tons of ore “ for each and every seventy-five dollars of due-bills, pa/yable im goods at thei/r store inNegaunee or Marquette, issued by W. W. Wheaton, treasurer’, in payment for labo/' at sand Rolling Mill mime, and taken up and paid by said E. H. Mead & Co. during the months of January, February, March and April, 1878.”
The corporation was also after the opening of navigation to deliver a like quantity of ore for a similar amount “ of such due-bills taken up and paid by them .thereafter, until enough ore shall be delivered to pay said due-bills, and other labor due-bills of the said party of the first part, held by the said E. H. Mead & Co.”
This indicates pretty clearly that even at the date of this agreement the parties understood that the laborers had been paid in goods, and that Mead & Co. looked to the corporation. And this undoubtedly was the understanding from the first. The orders as taken by,Mead & Co. were marked “paid.” There is no doubt that thus marking them paid would prevent a re-presentation thereof, had they been lost, yet this is hardly the word that would have been used for such purpose alone, especially where the order was not for any purpose to be considered as paid.
If, therefore, we look at all the facts and circumstances, and in the light thereof give a construction to these certificates, we can come to no conclusion favorable to the plaintiff's right to recover in the present action.
Let us however look at the order. It is not merely evidence of indebtedness given by the corporation: it is more than this. Nor is it a general order that might be taken to any store and traded off for goods; nor is it a general order payable in a particular way, from a fund owned or controlled by the corporation, or in goods owned by it, but is an order upon a certain firm to be honored in a particular manner. It may be a matter of some doubt whether if these certificates had been presented at any other store and goods delivered thereon, the parties taking them could have had any claim against the corporation, without at least showing that Mead & Co. had refused to honor them.
These certificates are orders upon Mead & Co. to deliver goods to the amount specified to the holders thereof, the persons named therein. Dacey after accepting such a certificate, until after a demand for the goods and refusal, could not have sued the corporation and recovered the amount thereof; and on receiving the goods upon such certificates, Mead & Co. would have no claim therefor upon Dacey, and Dacey none against the corporation for his wages. In so far.as Dacey was concerned, on receiving the goods his claim against the corporation became extinguished; it was paid as provided for in the order he had received and used.
Was there an assignment by Dacey to Mead & Co., and if so of what? Take John Dacey’s testimony:
Question. “ State to the jury what the arrangement was, if any, with Mr. Mead. Answer. He told me he would collect the money and I told him tbs. Q. Collect the money for what? A. For the goods he had given them. Q. What arrangement, if any, was made with reference to the labor debt which was due you; what was said between you and Mr. Mead there at the time you first went there to trade about the labor debt due from the company? A. He asked me would he collect the money. I said tbs, you have a right to collect the money. It is your place to collect the money. I know you will get it and it is stopped from me in the office. He took the due-bill from me and then gave me the stuff, and that is all I have to say about it.”
O. H. Mead testified as follows:
Question. “ State the circumstances under which Mead & Co. advanced goods to John Dacey, Sr.? Answer. I advanced him goods on the strength of the labor debt. Q. Will you state what took place ? A. Mr. Dacey came into my store with a labor certificate, and wished to purchase goods, and I asked him if I should collect that. Dacey asked me, and I trusted him for goods, knowing that the stockholders of the company were good, not trusting the company. Q. Did you have any authority from Dacey to collect the debt of the company ? A. Mr. Dacey authorized me to collect the debt against the stockholders, or whoever I had a mind to.”
Again, when speaking of Dacey bringing the first certificate to the store, and asking for goods, he is asked
Question. “ What else did he say in relation to that transaction ? Answer. He told me to collect it. Q. Is that all ? A. I asked him whom I should collect it of. Q. What did he say ? A. Of the company, stockholders or anybody I had a mind to. I think he used some such words. Q. This is the substance of the words he used ? A. Something to that effect.”
Taking all this testimony together, and it is all there is that can possibly be claimed to have any tendency to show an assignment, and can it fairly be said to tend to show an assignment of a labor debt against a stockholder?
Bearing in mind the fact that this certificate was an order from the corporation to Mead & Co. to pay or deliver to Dacey goods to the amount specified therein, and the question of an assignment assumes a somewhat different aspect. Dacey presented the order at the place and to the firm where it was intended to be available to him. Mead & Co. could honor it or decline to deliver any goods thereon. But could they deliver goods thereon as requested by the corporation, and at the same time, enter into a new agreement with the holder thereof, thereby creating another and different liability, one not contemplated by the corporation issuing it? We are clearly of the opinion they could not. To hold that they could, would enable them to pay an order in accordance with the terms thereof, and at the same time create a new and enlarged liability thereon in their favor. This would operate as a direct fraud upon the stockholders. It would enable Mead & Co. to accumulate orders, which upon their face would indicate a payment to the laborer, while in fact there-was no payment to him but a purchase of his claim against the surety of his principal. The corporation, in issuing these certificates, with knowledge that Mead & Co. were delivering goods thereon according to the terms thereof, could not have intended, or supposed, the stockholders would be held-liable thereon.
We place no particular significance on the words “ for labor” in the certificates. They were not in our opinion inserted for the purpose of giving currency or adding value to the certificates, or to keep alive the claim for labor against the stockholders, but as indicating the kind of service performed by the person named therein — distinguishing- it from services of a different kind or for property purchased, and to enable the corporation to properly keep its accounts. To hold that these words were inserted for the purpose now claimed, would be to charge the treasurer and general agent of the corporation with issuing these certificates in this form, in contemplation of the fact that the corporation would not pay them ; that they would accumulate in the hands of Mead & Co. who as assignees thereof would enforce them against the stockholders, and yet the stockholders would have no notice thereof, while an inspection of the orders and books of Mead & Go. would show directly the contrary. Surely a fraud of this character foreseen and deliberately planned and put in force by an officer of a corporation, whose duty it was to protect the stockholders by the payment of such debts by the corporation, and to see that they were not misled to their prejudice by false appearances, should not be charged against the treasurer of the Marquette & Pacific Rolling Mill Company. Not even the remote interest he may have had in the success of the firm of Mead & Co. would justify an assumption of such extraordinary conduct on his part.
Against a course of dealing such as is relied upon in this case, the stockholders would be utterly unable to protect themselves. An examination of the books of the corporation would show that orders had been issued to the laborers; the orders would show that they were to be paid in goods by a firm therein named; following up the inquiry, an examination of the orders received by such firm would show them with the word “ paid ” stamped thereon; their books would show their merchandise account credited with the goods delivered on the orders, and the orders charged to the corporation issuing them; a monthly settlement of accounts, and a receipt in cash, drafts and notes of the corporation, to almost the full amount of the orders received. The changes made in their books and paper returned were too late in point of time, to have afforded the stockholders any protection even if brought home to them.
It follows from what has been said that the judgment must be reversed with costs, and under technical rules which give ns no discretion a new trial must' be. ordered.
The other Justices concurred. | [
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Graves, J.
The act for the appointment of stenographers for circuit courts is admitted to have been in operation in Marquette county since 1872. That county however is one of seven which compose the twelfth judicial circuit. The others are Baraga, Iloirghton, Isle Royale, Keweenaw, Schoolcraft and Ontonagon. On the 21st of November, 1876, the governor appointed the relator to be stenographer for the twelfth judicial circuit and to hold during the pleasure of the governor unless suspended for misconduct by the court. At the October session of the supervisors of Marquette for that year they resolved that the salary of stenographer for that county should be $1200 per annum from and after the 1st day of July, 1876, and this resolution was standing when the relator accepted the governor’s appointment, and he received from that county a compensation at the rate of $1200 per year from his acceptance until January 1, 1879. At the session of the supervisors in October, 1878, they adopted the report of a committee reducing the salary from $1200 to $600 and on the 9th of January, 1879, they fixed it at $800 per annum from January 1, 1879, until otherwise ordered. Since that time respondents’ county has paid him at that rate; but it is admitted in the papers that he never assented to the change or accepted the amount paid as full payment.
It appears from the answer filed by. respondents that relator is drawing compensation from two other counties in the twelfth judicial circuit, namely, Houghton and Keweenaw. They say that from October, 1872, to January, 1879, Houghton county paid him $800 per year, and that for one year or more preceding January, 1879, as they are informed and believe, the county of Keweenaw paid him $300 per annum. They further say that they are informed that Houghton county has resolved to reduce relator’s compensation from that county to $600 from January 1, 1879, and that Keweenaw has similarly resolved on a reduction to $250. The record is silent in regard to the other counties in the judicial.circuit.
The relator prays that a mandamus may be awarded commanding the board of supervisors of Marquette county to audit his claim and allow him at the rate of $1200 per annum, and also to rescind this proceeding taken to reduce his salary.
The present statute relating to stenographers being the act of April, 1869, as amended in 1871 (Sess. Laws 1869, p. 157; 1 Sess. Laws 1871, p. 109; 2 Oomp. L., p. 152S), is very confused and it is extremely difficult to retain the terms and still translate the. various provisions into something reasonable and coherent. It manifestly contemplates that an appointee may hold for an indefinite period, and that his tenure shall be independent of the county and of the electors. It also contemplates that an appointment may be made for a single county in case the judicial circuit contains no more, and it must be admitted, as it seems to me, that an appointment for a judicial circuit as an entirety was meant to be authorized whatever number of counties might be embraced. But it is not so clear that an appointment was intended to be allowed for one county alone out of several composing a judicial circuit. That question is not now important. The case we have to deal with is one where the appointment was not made for a county, but for a judicial circuit containing seven counties, and where several are confessedly contributing quotas. After much consideration to draw from the ambiguous provisions a reasonable conclusion it seems most probable that it was intended that no judicial circuit whether composed of one or several counties should be compelled on any ground to pay more than $2000 per annum whatever it might choose to do voluntarily. The electors have repeatedly refused to increase the salary of circuit judge, and it is scarcely credible that those representing the electors should designedly provide for vesting in these merely clerical assistants of the courts an absolute right to have a yearly salary without limit as to time of not less than $500 in excess of the salary considered sufficient by the constituent body for the judge himself, and morover as much in addition thereto as any board of supervisors might see fit to make it.
If the inference made is correct, it would be for each county of the judicial circuit to pay its proper share of the sum fixed as salary for the circuit, not exceeding $2000; such share being ascertained and apportioned by the circuit judge in the manner mentioned in section 5035. This would be compulsory. The payment by any one of the several counties in the circuit of a larger sum, not being obligatory, would be voluntary.
As a basis for the appointment of a stenograjfiier for an entire judicial circuit the several counties composing it must take the requisite action to cause the law to operate therein, and for this purpose each county must act affirmatively through its own board of supervisors. Unless this is done the law is not caused to be operative throughout the circuit and the portion in which there has been no action is not under or subject to the law at all. The judicial circuit is not then covered by the statute and cannot be rendered subject to it.
The commission to relator and on which he founds his right was, as already stated, for the 12th judicial circuit. The several counties in the circuit either had or had not taken the requisite steps to give the law operation. If they had not, the validity of the commission, as a legal title on which to found this proceeding, is more than questionable. But it is fair to presume they had. The fact that the governor actually commissioned the relator as stenographer for the 12th circuit carries with it an intendment, in the absence of evidence to the contrary, that the law had been rendered operative for that circuit.
Taking this to be the case, it follows that the facts in the record do not show any right in relator to demand any further sum from Marquette county or to have any kind of relief.
We have no evidence of the quota chargeable to tbe respective counties nor any showing to enable us to say that respondents’ county is in any respect legally in fault. Even as respects Houghton and Keweenaw we only know that they have paid respectively the sums mentioned and purpose to pay the smaller rates spoken of. So much is indicated by the answer. But there is no information of any legal apportionment fixing them with a strict legal liability.
The application must be denied with costs
The other Justices concurred. | [
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Marston, C. J.
The plaintiffs in error received a bill of sale of certain personal property from Henry C. Keyes, to secure them against certain liabilities they had incurred, and which they had duly filed as a chattel mortgage. Mattison as sheriff, under certain writs against Keyes, levied upon the property. His right to levy upon and sell the mortgagor’s interest in the property was not questioned, but his right to levy upon and sell in parcels was denied. Upon the trial the bona fides of the security given was questioned. The court charged the jury upon this branch of the case as set forth in the margin.
We are of opinion that the authorities will not sustain the charge thus given. In very many cases, where security is given, the mortgagee may know or have good reason to believe that his debtor is in failing circumstances. Indeed such knowledge may be the very cause of the creditor’s insisting upon security. And in all such cases the creditor may be fully aware of the fact that the effect of the security given him will be to hinder and delay if not, indeed, defeat other creditors in the collection of their just claims, and that the debtor in giving the security must, indeed, so intend. All this however does not take away or deprive a creditor from insisting upon payment or security of an honest existing indebtedness — or to secure him against endorsements or other liabilities incurred. The rule in this case laid down would put the honest, vigilant creditor on an equal footing with the negligent, and such has not been the aim of the law. It is true that the value of the property upon which security is given may be out of all proportion to the debt secured, and this would be a circumstance that could be considered by the jury, and from which, with other facts, they might find that the creditor’s intention was not in good faith to secure himself, but to hinder, delay or defraud others. Such however was not the theory upon which this case was submitted to the jury. See Allen v. Kinyon 41 Mich. 285; Loomis v. Smith 37 Mich. 595.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred.
1 come now to the point as to whether this was or was not a good and valid chattel mortgage. It is claimed by the plaintiff that all that is necessary for them to establish is the fact that Keyes acted fraudulently. It is claimed on the part of the defense that the jury must be satisfied that this bill of sale and chattel mortgage was an arrangement between the parties, and that they both acted fraudulently. That Keyes meant to cheat and defraud his creditors, or hinder and delay his creditors in their collections, and that Olmstead and Martin knew about it. That is the claim on the part of the defense, and is correct.
Then comes the question whether you are satisfied that Keyes acted fraudulently, intending to cheat and defraud or hinder and delay his creditors. If you find that fact established, then comes the question whether they were aware of that fact. Whether the conduct of Keyes, the situation of his property, the situation of his indebtedness, what he did as to covering up his property, was known to them. Or whether the facts and circumstances were such in relation to the matter, within their knowledge, that would reasonably put them upon their guard or upon their inquiry. For instance, these defendants may have had a claim against Keyes for a thousand dollar's, and Key.es may come and slip into their hands a chattel mortgage and not say a word about it, upon property that is worth ten thousand dollars, and chattel mortgage property to that amount simply to secure an indebtedness or a liability of a thousand dollars. That would be a pretty large amount of property to place in that shape for that purpose, and it would be a circumstance which, it seems to me, should put them upon inquiry. If they should find or know that he had been putting mortgages upon all his real estate, and that he was largely indebted, if there were any facts and circumstances which would indicate to a reasonable man that he was in failing circumstances and covering up his property, of course it would depend upon the strength of the facts and what they were. They might be held and considered to have notice of facts that should put them upon inquiry, and the question will arise from the entire testimony which the counsel upon both sides have referred to so often that it is unnecessary for the court to do so. But the entire case must be considered by the jury to decide as to whether in receiving and taking this chattel mortgage they understood what Keyes was about. If they had sufficient notice that to reasonable men would be information that he was engaged in a fraudulent transaction, they would be parties to it. And if they should receive a bill of sale or chattel mortgage under such circumstances, it would be invalid, as I have before stated. If invalid, then a proper levy upon a portion of that chattel-mortgage property would be good. | [
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