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Per Curiam.
After a nonjury trial, plaintiff appeals as of right from a judgment of no cause of action on her claim for damages and injunctive relief based on an alleged violation of MCL 37.1202(1); MSA 3.550(202)(1). This provision of the Handicappers’ Civil Rights Act states in part that:
"An employer 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.”
This lawsuit arose after the defendant denied plaintiff’s application for employment as a lifeguard based on the recommendation of its examining physician. On appeal, plaintiff first challenges the trial court’s interpretation of the statutory provision we have quoted above. In an opinion delivered from the bench, the trial judge found:
"The court finds that the county made the decision after the medical opinion was given to them that the doctor would not recommend her for the position because the position does require some lifting; further, because of the potential — albeit I find it hard to believe that we could be too worried, dealing with these kids in shallow water — but let’s not overlook the reality of things. Counties are worried about liability for death of people who are under their supervision and control. They are worried about death and injury to their employees. They are worried about a lot of things.
"The court doesn’t feel that this was an unreasonable choice, given the fact of this woman’s injury and the very large potential of a problem which could occur, although there is no evidence to indicate that she has had any prior back spasms. In fact, I don’t even think she’s ever even had a cramp.”
Plaintiff claims that the phrase "the individual’s ability to perform the duties of a particular job or position” cannot be interpreted to include the individual’s .propensity toward injury while performing those duties. Defendant argues that the trial judge correctly found that the potential for injury to one’s self and others was related to an applicant’s ability to perform the duties of a lifeguard.
After applying for a position as a lifeguard, plaintiff was given a physical examination. She disclosed that she had injured her back in two separate automobile accidents and was being treated by a chiropractor for a mild scoliosis. Defendant’s examining physician, who testified at trial, recommended against hiring plaintiff because of her back problems. At trial, defendant’s examining physician testified that scoliosis, lateral curvature of the spine, is a structural defect in the back. Physical stress, such as heavy lifting, could result in muscle spasms in the back. He also testified that a lifeguard would be under significant stress in a life-saving situation. She would be prone to back spasms in such a situation. These spasms might render the person suffering them "ineffective”, i.e., without control of her muscular movements. Spasms of this type suffered in a real lifesaving situation would endanger the lives of the lifeguard and the person he or she was trying to save.
We cannot agree with plaintiff’s interpretation of the Handicappers’ Civil Rights Act. We need not consider the danger to plaintiff herself to sustain the decision of the trial court. Dr. Fugate, who testified both as defendant’s examining physician and as an expert, stated that plaintiff’s condition could result in spasms causing a loss of physical control in a life-saving situation. Even if a lifeguard never has to attempt to save a life, her ability to do so is still perhaps the most important factor to be considered in making a' decision to hire. A physically determinable characteristic which may disable a lifeguard in a life-saving situation is a handicap that is related to the applicant’s "ability to perform the duties of a particular job”.
On appeal, plaintiff attacks the trial court’s decision to rely on the "opinion of one doctor” instead of the opinions of the witnesses presented by her. We normally give great regard to the assessment of credibility of the trial judge sitting as trier of fact. See GCR 1963, 517.1. We have reviewed the entire record in this case, especially the direct and cross-examination of Dr. Fugate. We find no merit in plaintiff’s claim. Dr. Fugate’s testimony was both clear and convincing in the face of wide-ranging and sometimes heated cross- examination. In its central points, it was essentially unrefuted. It was not clear error to rely on this testimony.
Affirmed. No costs, a public question. | [
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Per Curiam.
Plaintiff appeals as of right the grant of defendant’s motion for summary judgment for failure to state a claim.
In its complaint, plaintiff alleged that defendant changed plaintiffs telephone number and promised to inform callers dialing the old number of the new number. Defendant failed to do so and, instead, gave callers the number of a different party. That party told callers that no Mr. Cannon was there. As a result, plaintiff allegedly suffered losses in its business.
A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone. The job of a reviewing court is to accept as true the well-pleaded facts in the plaintiff’s complaint and determine whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Ready v Clark Equipment Co, 91 Mich App 474, 478; 283 NW2d 650 (1979), lv den 407 Mich 888 (1979).
The lower court granted summary judgment, holding that defendant’s liability was limited by the following tariff approved by the Michigan Public Service Commission:
"2. The liability of the Telephone Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Telephone Company, occurring in the course of furnishing service or other facilities and not caused by the negligence of the customer, or of the Telephone Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay or error or defect in transmission, or failure or defect in facilities occurs. Tariff MPSC No 7, third revised sheet, effective December 15, 1970.”
The grant of summary judgment and the present appeal concern only those damages in excess of the limitation on liability contained in the tariff.
Plaintiff first argues that the phrase in the tariff "not caused by the negligence of the customer, or of the Telephone Company” precludes application of the tariff to a claim based on negligence. We do not agree. The tariff applies to defendant’s negligence in providing telephone service, except where the negligence is in "failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision”.
In its motion for summary judgment, defendant argued that the tariff precluded liability for damages from all negligent provision of service, impliedly including negligence stemming from faiíure to maintain proper standards of maintenance and operation and failure to exercise reasonable supervision. The lower court’s grant of the motion for summary judgment was based on this incorrect interpretation of the tariff. We cannot presume that plaintiff would not have amended its complaint had the lower court interpreted the tariff correctly. Plaintiff’s claim is not so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.
Under the circumstances, the reasons for the alleged negligent provision of service might not become clear until plaintiff has engaged in discovery. For that reason, the cause must be remanded to the lower court. If after discovery plaintiff does not find grounds to amend its complaint to include a claim that defendant was negligent by failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision, the grant of summary judgment shall be affirmed.
Plaintiff’s second argument on appeal is that the limitations on liability contained in a tariff approved by the Public Service Commission do not apply to a court action alleging negligence. In Valentine v Michigan Bell Telephone Co, 388 Mich 19, 26; 199 NW2d 182 (1972), the Supreme Court stated:
"the code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission.”
Plaintiffs claim, although phrased in tort, is clearly one which is based upon the contractual obligations of the parties. The only duty alleged in plaintiff’s complaint is based upon defendant’s promise to inform persons who dialed plaintiffs old telephone number of plaintiffs new telephone number. Plaintiffs argument must be rejected on the authority of Valentine, supra.
Courts in other jurisdictions have been virtually unanimous in upholding provisions limiting a public utility’s liability for negligence so long as the provisions do not purport to grant immunity or limit liability for gross negligence. Garrison v Pacifíc Northwest Bell, 45 Or App 523, 531; 608 P2d 1206, 1211 (1980).
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Mackenzie, J.
In this case, the personal representatives of the estate of Paul Valentino, Sr., appeal by right from a probate court order compelling that estate to pay attorney fees to the attorneys for the guardian and the conservator of Marcus Valentino, a protected minor, for their work on petitions to remove the guardian and conservator. Marcus Valentino is the son of the late Paul Valentino, Sr. Norma Jean Veta, an aunt of Marcus, was named as the guardian of Marcus in the will of the elder Valentino. However, Mrs. Veta did not at first serve as guardian but instead consented to the appointment of Deborah Valentino Leach, a sister of Marcus, as guardian and conservator. Mrs. Veta subsequently petitioned for the removal of Mrs. Leach as guardian and conservator, and the probate court replaced Mrs. Leach with Mrs. Veta as guardian but retained Mrs. Leach as conservator. Attorney fees resulting from this petition are not at issue in this appeal. Later, Mrs. Veta filed a second petition for the removal of Mrs. Leach as conservator, while Mrs. Leach filed a petition for removal of Mrs. Veta as guardian. Both petitions were denied. However, the attorney fees at issue here were awarded to the attorneys for both the guardian and the conservator for their work in bringing and defending the petitions.
I
The estate of the deceased and the guardianship and conservatorship proceedings were all pending before the same probate judge here. The guardianship and conservatorship proceedings were properly consolidated. However, an implicit assumption underlying the probate court’s decision was that the consolidated guardianship-conservatorship pro ceeding was merely auxiliary to the estate of the deceased and that, therefore, a service rendered to the estate of Marcus was a service rendered to the estate of the deceased. Appellees try to establish this auxiliary relationship by pointing out that a person who has standing to object to the appointment of a guardian for a minor has standing to contest a will establishing a testamentary guardianship. Taff v Hosmer, 14 Mich 249 (1866). Moreover, in cases involving a testamentary guardianship, the court before which the estate of the deceased parent is pending retains jurisdiction over the guardianship. MCL 700.422, 700.433, 700.435; MSA 27.5422, 27.5433, 27.5435.
We first note that this case does not involve a testamentary guardianship. The guardian appointed in the will did not accept the appointment, and it was only after the guardian appointed by the court was removed that the person who did not accept the testamentary guardianship was appointed by the court as guardian. But even if this case did involve a testamentary guardianship, we cannot see how, in such a case, the power of the court in which the estate of the parent is pending justifies treating the estate of Marcus as a mere auxiliary to that of the deceased parent. The differences between the two estates are more significant than the single possible connection.
No authority gives the administrators of the estate of the deceased parent any control over the guardian or conservator or any standing in the consolidated guardianship-conservatorship proceeding other than that which the administrators have as individuals. The administration of the estate of the deceased parent has no common purpose with the guardianship or conservatorship. The estate of the deceased parent exists to distribute the de ceased parent’s property and to preserve it pending distribution, while the guardianship exists to exercise the powers and responsibilities of a parent toward the minor and the conservatorship exists to preserve the minor’s property until the minor reaches the age of majority. No authority requires the estate of the deceased parent to remain open until the minor reaches the age of majority and the guardianship and conservatorship are terminated.
The estate of a deceased parent and the guardianship and conservatorship proceedings for the minor need not be pending before the same court. The probate court in the county in which the minor resides has concurrent jurisdiction over proceedings connected with the guardianship with the court in which the guardian was appointed or the acceptance of a testamentary appointment was filed. MCL 700.435(1); MSA 27.5435(1). Because Marcus resided in California, the court here was required to notify the California court and, after consultation with that court, to determine whether to retain jurisdiction or transfer the proceedings to California. MCL 700.435(2); MSA 27.5435(2). Moreover, the proper venue for guardianship proceedings is in the place where the minor resides or is present. MCL 700.425; MSA 27.5425. Venue for appointment of the guardian here was proper in the county in which the father’s estate was pending only because the son resided in that county at the time the guardian was appointed. The rules relative to establishing proper venue and jurisdiction to appoint or remove a conservator are somewhat different, see MCL 700.462; MSA 27.5462 and MCL 700.463; MSA 27.5463, however, proper venue and jurisdiction for proceedings relating to a conservator of the estate of a minor child are also not controlled by venue and jurisdiction over the deceased parent’s estate. In short, it is only a coincidence that here both the estate of the parent and the consolidated guardianship-conservatorship proceeding were pending before the same court.
II
Because the consolidated guardianship-conservatorship proceeding is not a mere auxiliary to the estate of the deceased parent, an order requiring the estate of the parent to pay for the services of attorneys must be supported by a showing of a benefit to the estate of the parent from the services of the attorneys, not merely, by a showing of a benefit to the estate of the minor. Here, the probate court found a benefit to the estate of the deceased because the deceased had wanted his children to be properly cared for and because the services of the attorneys were performed in litigation to ensure that Marcus was properly cared for. However, the probate court had no power to make a new will for the deceased to carry out its view of his unexpressed intentions. Foster v Stevens, 146 Mich 131, 140; 109 NW 265 (1906); Evans v Grossi, 324 Mich 297, 304; 37 NW2d 111 (1949); In re Erickson Estate, 346 Mich 432, 436; 78 NW2d 256 (1956).
Here, the probate court, in essence, has taken money from the other heirs and transferred it to the estate of Marcus to aid in having Marcus properly cared for. The probate court, therefore, has altered the scheme of distribution set forth in the testator’s will to conform with its view of the testator’s unexpressed intentions. This was beyond the probate court’s powers.
The estate of Paul Valentino, Sr., is not Paul Valentino, Sr. The estate of the deceased exists to distribute the deceased’s property and to preserve such property pending distribution, not to carry out the deceased’s unexpressed intentions. The estate of the deceased is not concerned with ensuring that Marcus is properly cared for, that is why Marcus has his own guardian and conservator. The services of the attorneys here were not beneficial to the estate of the deceased; the probate court therefore erred by requiring the deceased’s estate to pay for those legal services.
Ill
The attorney fees at issue here must be paid either by the guardian and the conservator individually or by the estate of Marcus. To prevent questions from arising on remand, we will briefly discuss the principles of law controlling whether the estate of Marcus can be required to pay the attorney fees.
Both the guardian and conservator are fiduciaries; see MCL 700.5; MSA 27.5005. MCL 700.543; MSA 27.5543 provides:
"Without obtaining a court order, a fiduciary of an estate may employ counsel to perform necessary legal services in behalf of the estate and the counsel shall receive reasonable compensation for the legal services.”
We first note that no authority gives a guardian any standing in issues concerning the conservator-ship or gives a conservator any standing in issues concerning the guardianship. Therefore, when the guardian and the conservator here petitioned for the removal of each other, they did so as individuals and not as fiduciaries.
Attorney fees are chargeable to the estate under the statute quoted above only where the services of the attorney were on behalf of and beneficial to the estate. In re Baldwin’s Estate, 311 Mich 288, 314; 18 NW2d 827 (1945); In re Brack Estate, 121 Mich App 585, 591; 329 NW2d 432 (1982). Does an attorney who defends a fiduciary against charges of neglect or wrongdoing provide a service on behalf of and beneficial to the estate? In re Baldwin’s Estate, supra, p 314, contains the following statement:
"In addition to the above attorneys’ fees there is in the final account an additional fee of $658.75 for the same attorneys. This charge was made incident to defending the executor himself from the claim of the legatees that he had mishandled the estate. It was not for the benefit directly or indirectly of the estate, hence this fee is not properly a charge against the estate. Had the executor fully prevailed and been exonerated from all error, a different conclusion might have been reached. However, numerous errors have been proven against the executor and he should personally pay the cost of his own defense.”
See also In re Davis’s Estate, 312 Mich 258, 265-266; 20 NW2d 181 (1945), in which the Court declined to allow as a charge against the estate attorney’s fees for defending the administrator against charges of fraud even though the administrator prevailed. The Court found that the administrator had unnecessarily involved himself in a situation which he should have known would result in litigation.
Because the orderly administration of an estate requires that fiduciaries not be changed unnecessarily, we hold that attorney’s fees for defending the fiduciary may be chargeable to the estate. However, the Baldwin and Davis cases show that, where the fiduciary does not completely prevail, or where the fiduciary was partially to blame for bringing about unnecessary litigation, the fiduciary rather than the estate should be responsible for the attorney’s fees.
An order requiring an estate to pay the attorney fees of an individual not acting as a fiduciary is proper under the circumstances stated in Becht v Miller, 279 Mich 629, 638; 273 NW 294 (1937):
"[A]s a general proposition it may be stated that before such an item may be charged against the estate it must be shown that the services rendered were beneficial to the estate as a whole rather than to an individual or group of individuals interested therein.
"A doctrine which permits a decedent’s estate to be so charged, should, however, in our opinion, be applied with caution and its operation limited to those cases in which the services performed have not only been distinctly beneficial to the estate, but became necessary either by reason of laches, negligence or fraud of the legal representative of the estate.”
See also Merkel v Long, 372 Mich 144; 125 NW2d 284 (1963), and Merkel v Long (On Rehearing), 375 Mich 214; 134 NW2d 179 (1965). Because Becht v Miller involved the administrator of a decedent’s estate, whose duties are ordinarily confined to matters involving property, while pursuant to MCL 700.431; MSA 27.5431 the guardian of a minor exercises the powers and responsibilities of a parent, in a case involving a guardian of a minor, the rule stated in Becht v Miller may be expanded to include services which became necessary for reasons other than the laches, negligence, or fraud of the guardian. However, the rule must still be applied with caution.
We have found no authority authorizing payment of the attorney fees of the losing party, whether a fiduciary or an individual not acting as a fiduciary, or authorizing payment of the attorney fees of both sides. Here the probate court found that both sides performed a benefit to the estate because both sides were motivated by concern for the best interests of the child and raised arguably meritorious issues in good faith. We cannot agree. Litigation may sometimes be necessary to achieve a benefit to an estate, but litigation is not in itself beneficial. The probate court’s result encourages the parties to litigate rather than settle their disputes, with a consequent increase in cost to the estate.
On remand, the probate court shall determine in accordance with the foregoing what attorney fees, if any, the estate of Marcus shall be required to pay.
Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction. | [
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S. Everett, J.
Petitioner has appealed from the order of the Tax Tribunal affirming the determination and redetermination by respondent that there was a deficiency in petitioner’s franchise fee liability for the years 1975 and 1976. The sole issue presented is what is the proper method for determining a reserve for losses through loans made in the course of petitioner’s business. Such a reserve may be subtracted from the surplus in determining the proper franchise fee tax.
Both parties agree that petitioner is entitled to such a reserve. It is the method of determining it which is in dispute. By federal law, petitioner must create a reserve equal to three and one-half (3-1/2) percent of its loans. The petitioner contends that this is the appropriate reserve. Respondent, however, claims that the proper reserve is one which it employs for all similar transactions. It takes the loss for the tax year, and the four years preceding this, and limits the reserve to the average of such actual losses.
We start on the premise that the longstanding interpretation of a statute by those charged with the duty of executing it is entitled to the most respectful consideration and ought not to be over ruled without cogent reasons. Margreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968).
It appears that the interpretation complained of has been in effect for more than half a century, and has never before been challenged. Basically, appellant contends that federal legislation requiring a fixed amount to be maintained as a loss reserve is determinative of the issue and binding on the states. No authority for this proposition is cited, nor does it appear to us to be a valid one.
The method used by the Department of Treasury is uniform. It takes into account the necessity, in certain types of commercial activity, for a reserve for future losses. Its determination of the amount of such reserve to be subtracted from surplus seems logical and realistic. Actually, in a given five-year span, the amount determined by the Department of Treasury could be greater than that required by federal law. We do not find cogent reasons for reversing the administrative determination and redetermination, and therefore affirm the decision of the Tax Tribunal.
Affirmed. | [
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] |
On Rehearing
Before: Mackenzie, P.J., and R. M. Maher and C. W. Simon, JJ.
Mackenzie, P.J.
Defendant was convicted by a jury of "welfare fraud”, MCL 400.60(2); MSA 16.460(2). He was sentenced to five years probation, and appeals as of right.
Defendant contends that the trial court erred in denying his motion to quash the information, which defendant claims did not apprise him sufficiently of the charges against him. The motion, raised after the jury was sworn, was not timely. MCL 767.76; MSA 28.1016. We may reverse, therefore, only to correct a manifest injustice. People v Collins, 380 Mich 131; 156 NW2d 566 (1968); People v Laslo, 78 Mich App 257; 259 NW2d 448 (1977).
Defendant waived a preliminary examination, at which the facts underlying the charge would necessarily have been disclosed. Defendant also waived arraignment in circuit court on the information, and the circuit court file contains a document signed by both defendant and his counsel which includes the following representation:
"The undersigned defendant and attorney hereby acknowledge that defendant has received a copy of the information, has read or had it read or explained to the defendant, understands the substance of the charge, and waives circuit court arraignment in open court.” (Emphasis added.)
The pretrial statement in the circuit court file contains the following statement:
"Prosecutor will list hereon, the following which he proposes to offer at trial:
"a. All physical exhibits (available for inspection by defense counsel upon written request); Redetermination of Eligibility form; Payroll checks; State of Michigan Treasurer’s warrant; Document Examiner Report; and Village of Sunfield Employment/Payroll Records”.
Even if defendant and his counsel did not bother to actually examine the proposed exhibits, the list clearly indicates that the changed circumstances to which the information refers involve defendant’s employment with the Village of Sunfield.
At the pretrial conference, counsel for defendant acknowledged the trial court’s statement that there were no motions to be resolved before trial. Defendant’s motion to quash the information was made at trial, after the jury was sworn, and was therefore untimely. MCL 767.76; MSA 28.1016; People v Schultz, 85 Mich 114, 116-117; 48 NW 293 (1891); People v Hawkins, 106 Mich 479, 486; 64 NW 736 (1895). No written motion to quash was ever filed, and, when defendant’s oral motion was made, the prosecutor complained that he had received no notice. Defendant never requested that the information be amended, never moved for a bill of particulars or for a more definite statement of the charge, never claimed that he was in any way surprised or misled as to the factual basis of the charge, and never moved for the continuance which MCL 767.76; MSA 28.1016 would allow if he was in fact misled.
The foregoing shows that defendant knew the factual basis of the charge against him and that defendant led the trial court and the prosecutor to believe before trial that there was no problem with the information. The record suggests that the delay in making the motion to quash the information was a deliberate dilatory tactic.
In Serra v Mortiga, 204 US 470; 27 S Ct 343; 51 L Ed 571 (1907), the complaint on which the criminal conviction was based omitted an essential element of the crime. The Supreme Court nevertheless held that defendant had not been denied due process, even though the lower court refused to consider the sufficiency of the complaint because defendant made no timely objection. Serra shows that defendant was not denied due process under the circumstances presented here. Defendant relies on People v Brown, 299 Mich 1, 4; 299 NW 784 (1941), for the proposition that defendant’s actual knowledge of the factual basis of the charge against him is irrelevant to whether the information sufficiently identifies the charge against him to afford him due process. However, in Brown, defendant made a timely motion to quash the information, and the Court was not in the position of determining, as here, whether manifest injustice occurred. 299 Mich 2. Under the circumstances presented in the instant case, we discern no manifest injustice.
Defendant’s remaining claims of error are without merit. The trial judge did not unfairly prejudice defendant by standing him up before the jury. The judge asked defendant to stand so that he could determine whether any juror knew him. Nor did the trial judge unfairly prejudice defendant by reading the information to the jury twice. The judge made it clear that the charge was not evidence of guilt.
Affirmed.
C. W. Simeon, J., concurred. | [
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Per Curiam.
After pleading guilty as charged to breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, defendant was sentenced to 10 to 15 years’ imprisonment. He appeals his sentence as of right.
At defendant’s sentencing, the trial judge indicated that he had engaged in an ex parte conversation with two police officers the day before sentencing._
"The Court: I just want to indicate a couple of things on the record. Then I will give you an opportunity to speak on behalf of your client, as I will Mr. Vroman.
"First, I want to indicate that yesterday Sergeant Bunch and Sergeant Law of the Dearborn Police Department came to see me. They indicated they wanted to make certain that I knew a couple of things about Mr. Vroman, and I want that on the record. I will give you an opportunity to contest them, and if they are improper I won’t consider them. But I think you should know about them.
"They indicated that Mr. Vroman was charged with CSC as a juvenile. In fact, that is indicated in the presentence report. They also indicated a belief that Mr. Vroman is involved in a number of breaking and enterings in his neighborhood. They indicated to me that he, his brother and his father have a Detroit Free Press route, and that since he has been arrested on the last breaking and entering there has been a noticeable decline in breaking and enterings in the neighborhood.
"I think it is appropriate for officers involved in a case to come and discuss it with me, and whatever they know I think is important for me to know in terms of sentencing. But I want you to have an opportunity to respond to that.
"I should indicate that I am not going to consider their claims with respect to the fact that B & E’s have decreased. There is absolutely no way you could respond to that. But it was said to me, and I want you to know about that.”
Defendant’s initial contention is that he should be resentenced because he was denied effective assistance of counsel when the sentencing judge discussed the case with the officers outside the presence of defendant’s attorney. We agree.
In People v Oliver, 90 Mich App 144; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857; 283 NW2d 502 (1979), the sentencing judge met with a probation officer in the absence of defendant or defense counsel. This Court stated:
"Defendants are entitled to the assistance of counsel at those stages of criminal proceedings at which substantial rights may be affected. Sentencing is one such proceeding. Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967). Counsel is needed to present to the court extenuating facts, explain conduct, correct errors in reports of defendants’ past conduct, and appeal to the equity of the court. People v Dye, 6 Mich App 217, 219; 148 NW2d 501, 502 (1967). Our Supreme Court has commented on the critical need for accurate facts as a basis for sentencing, and the consequent need for a procedure to allow defendants to rebut inaccurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559, 562 (1971). Where, as here, the trial court obtains information about a defendant, not equally available to the defendant’s counsel, there is no opportunity for effective rebuttal, and inaccurate information may creep into the proceedings. Whether the trial court’s conference with the probation officer is viewed as a part of the sentencing proceeding at which counsel was excluded, or a separate proceeding, it was a critical stage at which substantial rights of defendant may have been affected.” 90 Mich App 149-150. (Footnote omitted.)
In People v Black, 103 Mich App 109; 302 NW2d 612 (1981), a majority of the panel concluded that the defendant was presumed to have been denied effective assistance of counsel where the sentencing judge held an ex parte discussion with a probation officer, irrespective of whether the judge actually received during such discussion any information not contained in the presentence report. The holding in Black was subsequently limited in People v Crawford, 115 Mich App 516; 321 NW2d 717 (1982), and People v Beal, 104 Mich App 159; 304 NW2d 513 (1981). In Crawford, supra, the presumption of prejudice enunciated in Black was held to be rebuttable. In Beal, this Court concluded that "Oliver should be limited to prohibiting any presentence conference where the sentenc ing judge is given 'information about a defendant, not equally available to the defendant’s counsel * * *’ 104 Mich App 159, 167.
Taken together Oliver, Black, Crawford, and Beal stand for the proposition that a defendant whose counsel is not given an opportunity to represent the defendant at a sentencing conference is rebuttably presumed to have been denied effective assistance of counsel. If the presumption is not rebutted by the facts of the case, including the fact that the information discussed in the conference was available to defendant, then resentencing is required. See also People v Jeffrey Thompson, 117 Mich App 210; 323 NW2d 656 (1982), lv gtd 418 Mich 946 (1984). It is important to note, however, that those cases all involved discussions between a judge and a probation officer acting as presentence investigator.
In People v Von Everett, 110 Mich App 393; 313 NW2d 130 (1981), a sentencing conference took place between the sentencing judge and the prosecutor without the presence of the defense attorney. This Court held that the defendant had "a right at least to have his attorney present at the sentencing conference”, and that prejudice would be presumed since without defense counsel it could not be determined what actually transpired in the judge’s chambers. Von Everett, supra, pp 396-397. Citing Oliver and Beal, the Court further held that the ex parte conference deprived defendant of his right to counsel. This Court observed:
"We believe that an even greater danger of prejudice exists when the prosecutor is permitted to confer privately in chambers with the sentencing judge. The prosecutor, unlike a presentence investigator, plays an adversarial role in the judicial system. Moreover, he may have information about a defendant’s links to other crimes that might not be available to a presen tence investigator. The danger of prejudice is great. Accordingly, we hold that a sentencing judge’s private conference with the prosecutor in this case violated the defendant’s right to counsel.” Von Everett, supra, p 397. Cf. People v Sexton, 113 Mich App 145; 317 NW2d 323 (1982).
We find the reasoning of Von Everett to be dispositive of this case. Even more so than in Von Everett, the conference at issue in the instant case was with persons in an adversarial role in the proceedings. Those persons not only "may have information about a defendant’s links to other crimes that might not be available to a presentence investigator”, Von Everett, supra, p 397, but were apparently impelled to contact the judge because they believed they possessed such information. We realize that the information conveyed by the officers was either contained in the presentence report or was not considered by the court when imposing sentence. Nevertheless, we cannot condone ex parte discussions between the sentencing judge and police officers regarding a defendant’s sentence. The situation invites prejudice. A police officer is not a resource person available to the court for consultation in sentencing. To place our imprimatur on such discussions is to invite information which defendant could not rebut "to creep into the proceedings”, Oliver, supra, p 150, as the sentencing judge in this case recognized. Accordingly, we remand for resentencing before another judge.
Defendant also argues that the sentencing judge erred in imposing sentence by considering a psychiatric report prepared by the Recorder’s Court Psychiatric Clinic. Defendant contends that the report could not be used for sentencing purposes because he was not informed before he submitted to psychiatric evaluation of his right to remain silent and that information he gave to the clinic could be used against him at sentencing.
We initially note that the propriety of the report was not objected to at sentencing or by motion to vacate sentence. In fact, the contents of the report were relied on by defense counsel in urging a lenient sentence. This precludes appellate review of the issue. See, e.g., People v Hart, 129 Mich App 669; 341 NW2d 864 (1983), lv den 419 Mich 860 (1984). However, because we remand for resentencing, we register our disagreement with defendant’s contention. As opposed to a sentencing conference, a defendant’s presentence interview is not an adversarial proceeding, but a diagnostic and rehabilitative procedure. Accordingly, the right against self-incrimination or to have counsel present does not attach. People v Shively, 45 Mich App 658; 206 NW2d 808 (1973), People v Burton, 44 Mich App 732; 205 NW2d 873 (1973), lv den 389 Mich 795 (1973). Likewise, psychiatric evaluation is a diagnostic procedure to which we believe the privilege against self-incrimination is not applicable. The purpose of the privilege is to assure that no one will be convicted upon his own coerced confession. Burton, supra, p 735, citing Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), and Murphy v Waterfront Comm of New York Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964). We do not believe that the privilege should be extended to clinical interviews which take place after a guilty plea has been entered and which have a purpose quite different from the determination of guilt. We therefore conclude that the results of the psychiatric report may be considered by the judge when imposing sentence.
Vacated and remanded for further proceedings consistent with this opinion. | [
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Per Curiam:.
Defendant pled guilty as charged to kidnapping, MCL 750.349; MSA 28.581, five counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), pursuant to a sentence agreement with the prosecutor. Under the terms of the agreement, defendant would enter a guilty plea to all seven counts in exchange for the prosecutor’s recommendation of a 10- to 20-year sentence for each of the first-degree criminal sexual conduct and kidnapping counts. On October 30, 1984, defendant was sentenced to prison for 2 years on the felony firearm charge, and to concurrent terms of imprisonment of from 10 to 20 years on the remaining counts, which would be served consecutively to the felony firearm sentence. Defendant appeals as of right.
Defendant first claims that his kidnapping conviction must be set aside because an inadequate factual basis exists in the record for the asportation element. GCR 1963, 785.7(3)(a) requires the trial court to establish support for a finding of guilt by questioning the defendant in order to insure that the defendant’s plea is accurate. Defendant has failed to preserve the issue for appellate review, however, by failing to file a motion to withdraw his plea in the lower court. GCR 1963, 785.7(7)(a), now MCR 6.101(F)(7)(a). If defendant had filed such a motion alleging this defect, the trial court would have had an opportunity to correct the error by supplementing the record and then giving defendant the option of affirming the plea and sentence on the kidnap count or withdrawing the plea. GCR 1963, 785.7(7)(b), now MCR 6.101(F)(7)(b).
Defendant next contends that his plea convictions on the five counts of first-degree criminal sexual conduct result in multiple punishments for a single offense, contrary to the double jeopardy clauses of the Michigan Constitution, Const 1963, art 1, § 15, and the United States Constitution, US Const, Am V. Defendant contends that the analy sis employed in People v Johnson, 406 Mich 320; 279 NW2d 534 (1979), is equally applicable to this case. He argues that the mere fact that penetration can be established through more than one of the many alternatives enumerated in the statutory definition of "sexual penetration” does not establish that more than one offense occurred. Defendant draws an analogy between first-degree criminal sexual conduct and armed robbery, relying upon People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983). Defendant has admitted assaulting the complainant in five separate penetrations (one vaginal, two oral, and two anal). Defendant argues that by allowing punishment for each separate penetration, a prosecutor may turn one offense into several offenses.
Defendant’s "unit of prosecution” argument requires us to determine whether the Legislature intended to authorize punishment for each sexual penetration or for one sexual assault regardless of the number of sexual penetrations. People v Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984); People v Wakeford, supra, pp 107-108; People v Johnson, supra, pp 327-330. Legislative intent may be determined by the language of the statute defining criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), which 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:”
Sexual penetration is defined by MCL 750.520a; MSA 28.788(1) as:
" 'Sexual penetration’ means sexual intercourse, cun nilingus, 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.”
From the face of the statute, it appears that the gravamen of first-degree criminal sexual conduct is sexual penetration accomplished under any of the enumerated circumstances. People v Johnson, supra, p 330.
In light of the language and focus of the statute, we believe the Legislature intended to punish separately each criminal sexual penetration. Accord, People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), rev’d in part 406 Mich 1020; 281 NW2d 134 (1979) (defendant’s convictions on two counts of first-degree criminal sexual conduct based upon two penetrations, vaginal and oral, occurring as part of a continuous sexual assault, do not violate the constitutional prohibition against being twice put in jeopardy for the same offense). The offense of first-degree criminal sexual conduct has been completed after sexual penetration has occurred by any one of the enumerated circumstances. From the language of the statute, it appears that the Legislature intended to authorize separate punishment for each completed sexual penetration. We conclude that defendant’s sentences for five acts of penetration are not for the "same offense” and therefore no double jeopardy violation is shown. See, also, People v Rogers, 142 Mich App. 88, 92; 368 NW2d 900 (1985). Compare People v Morton, 423 Mich 650; 377 NW2d 798 (1985).
We reject defendant’s argument that the analysis applied in People v Johnson, supra, applies and controls here. The issue considered by the Johnson Court, whether a single penetration accompanied by more than one of the aggravating factors enumerated in MCL 750.520b; MSA 28.788(2) could support conviction for more than one count of first-degree criminal sexual conduct, differs from the issue raised by this case. It is not the number of aggravating circumstances which gives rise to the double jeopardy claim here, but it is the number of the acts of sexual penetration that have occurred.
We also reject defendant’s analogy to the offense of armed robbery. The language of the armed robbery statute, MCL 750.529; MSA 28.797, repeatedly refers to the robbery victim in the singular, thus leading the Wakeford Court to determine that the purpose of the statute is the protection of persons. People v Wakeford, supra, p 111. The Wakeford Court ultimately concluded that the proper "unit of prosecution” for armed robbery is the number of individuals assaulted and robbed without regard to the number of items taken from each. In contrast, the terms of the first-degree criminal sexual conduct statute center on sexual penetration. Although the statute’s general purpose may be the protection of persons, its specific purpose is to protect them from criminal sexual penetration.
Finally, we note that the general principles articulated in People v Robideau, supra, p 487, do not affect our analysis here since those principles apply in cases where multiple statutes prohibit violations of the same social norm such that it can be concluded that the Legislature did not intend multiple punishments. In contrast, this case involves multiple punishment under one statute for multiple acts of sexual penetration.
Defendant claims that he is entitled to resentencing on his first-degree criminal sexual conduct convictions because a sentencing information report was not prepared for those convictions. Defendant contends that the absence of a sentencing information report resulted in a failure of the sentencing court to properly exercise its discretion.
Where a single offender is sentenced for multiple convictions, the Sentencing Guidelines Manual states that a sentencing information report must be prepared for the conviction which carries "the highest statutory maximum”. Sentencing Guidelines Manual, Tab 1, Instructions, I, A, II. The statutory maximum for kidnapping is life or a term of years, which is the same statutory maximum authorized for first-degree criminal sexual conduct. Thus, the guidelines would allow the sentencing court to prepare a sentencing information report for either the kidnapping conviction or the first-degree criminal sexual conduct convictions.
Further, the record shows that the trial court imposed sentence for defendant’s multiple convictions "based on the gravity of the offenses and the Sentencing Guidelines”. Although no sentencing information report for the first-degree criminal sexual conduct convictions was filed, the trial court could well have calculated the appropriate sentence range on its own. Further, we note that no objection was made below by defense counsel. We conclude that no abuse of discretion has been shown.
Defendant’s convictions and sentences are affirmed. | [
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Per Curiam.
This is an original proceeding by the Wayne County Prosecutor to obtain an order of superintending control. The prosecutor seeks reversal of a September 9, 1983, Recorder’s Court of Detroit order which granted Mary Agnes Butler’s delayed motion for new trial.
Following a 1975 jury trial, Butler was convicted of felony murder and sentenced to life in prison. In an unpublished per curiam opinion, this Court affirmed Butler’s conviction. (Docket No. 25180, decided August 10, 1976). The Supreme Court denied leave to appeal. People v Butler, 400 Mich 830 (1977). Thereafter, Butler filed a delayed motion for new trial which was denied by the trial court. This Court then denied leave to appeal, (Docket No. 60999, decided January 22, 1982), as did the Supreme Court. 417 Mich 879 (1983).
Butler then filed a second delayed motion for new trial, raising a new issue: the failure of the trial court to instruct the jury on the possibility of convicting her of a lesser degree of murder. The motion relied on MCL 750.318; MSA 28.550, which directs that in all murder cases the jury shall fix the degree of the offense. In the exercise of its discretion, the trial court granted Butler’s motion for new trial. The prosecutor then filed an application for leave to appeal. Relying on People v Cooke, 113 Mich App 272; 317 NW2d 594 (1982), aff'd 419 Mich 420; 355 NW2d 88 (1984), this Court dismissed the prosecutor’s application for lack of jurisdiction. (Docket No. 73956, decided October 25, 1983). The Supreme Court denied leave to appeal. 419 Mich 959 (1984).
Thereafter, on December 19, 1984, the prosecutor filed a complaint for superintending control with this Court, pursuant to GCR 1963, 711, now MCR 3.302, arguing that, by granting Butler’s motion for new trial, the trial court acted in direct contravention of a Supreme Court mandate in People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), reh den 396 Mich 977 (1976). In Jenkins, p 442, the Supreme Court held that in every case tried after January 1, 1976, wherein the defendant is charged with first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder. The prosecutor agrues that, since Butler was tried and convicted of felony murder before Jenkins was decided, the trial court abused its discre tion by granting Butler’s delayed motion for new trial.
MCL 770.1; MSA 28.1098 provides:
"The judge of a court in which the trial of an offense is held may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it appears to the court that justice has not been done, and on the terms or conditions as the court directs.” (Emphasis added.)
The decision to grant a new trial rests within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. People v Hayes, 126 Mich App 721; 337 NW2d 905 (1983); People v Gallagher, 116 Mich App 283; 323 NW2d 366 (1982), lv den 414 Mich 936 (1982), cert den 459 US 1203; 103 S Ct 1189; 75 L Ed 2d 435 (1983).
Butler, the real party in interest, argues that the trial court did not grant a new trial on the basis of Jenkins, but rather, on the ground that "justice has not been done” because she did not receive a fair trial in light of the omission of a jury instruction on the lesser included offense of second-degree murder. People v Rayford Johnson, 391 Mich 834; 218 NW2d 378 (1974), adhered to, 397 Mich 686; 246 NW2d 836 (1976), is often cited for the proposition that the utmost discretion is extended to trial courts in granting new trials in criminal cases where "justice has not been done”. However, the provision of MCL 770.1, which allows a new trial where justice has not been done, has been construed to be limited in its application to those circumstances where the defendant has been denied a fair trial. People v Yono, 103 Mich App 304; 303 NW2d 4 (1980), lv den 413 Mich 888 (1982); People v Augustus Jones, 94 Mich App 516; 288 NW2d 411 (1979); People v Upshaw, 91 Mich App 492; 283 NW2d 778 (1979). It is an abuse of discretion to grant a new trial on the ground of miscarriage of justice where there has been no showing of trial error. Gallagher, supra, p 299.
It is well settled that a trial court cannot accomplish indirectly, by granting a new trial pursuant to MCL 770.1, that which is cannot accomplish directly. Yono, supra; Augustus Jones, supra. By granting Butler’s motion for new trial under the guise that justice had not been done, the trial court attempted to accomplish the retroactive application of Jenkins. Since Jenkins is limtied to prospective application, the failure of the trial court in the instant case to instruct the jury on second-degree murder was not error, nor can it be said that Butler was prejudiced by the omission of the instruction. Therefore, we conclude that the trial court abused its discretion in granting Butler’s motion for a new trial.
Order of superintending control granted. The order granting a new trial is vacated; conviction reinstated.
MCL 750.318; MSA 28.550 provides in part:
"The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree[.]”
In the order dismissing the prosecutor’s application for leave to appeal from the lower court’s order granting the motion for new trial, this Court also stated that it found lack of merit in the grounds presented, citing People v Rayford Johnson, 391 Mich 834; 218 NW2d 378 (1974), adhered to 397 Mich 686; 246 NW2d 836 (1976). It is well settled, however, that a court which lacks jurisdiction cannot pass on the merits of the issues presented. Fox v Board of Regents of the University of Michigan, 375 Mich 238; 134 NW2d 146 (1965); Meda v City of Howell, 110 Mich App 179; 312 NW2d 202 (1981).
At the time of Butler’s trial, Michigan had a common-law felony murder rule, People v Aaron, 409 Mich 672, 722-723; 299 NW2d 304 (1980), and thus, even if the jury had been instructed on the lesser included offense of second-degree murder, it would have been obligated to find Butler guilty of felony murder. Although MCL 750.318 provides that the jury shall fix the degree of the offense, in felony murder cases, the statute fixes the degree as first-degree murder. People v Dupuis, 371 Mich 395; 124 NW2d 242 (1963). | [
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Per Curiam.
This libel action was tried without a jury and a judgment was entered for defendants. Plaintiffs appeal as of right.
Two issues are raised on appeal. The first centers around plaintiffs’ motion for a continuance filed just before the trial started. The complaint was originally filed in July, 1977; the trial started July, 1980. For most of these three years, Bay County Circuit Judge John X. Theiler presided over the case. However, the week that this case was to be heard, District Judge Michael F. Merritt was assigned to hear Judge Theiler’s cases and, thus, this case was assigned to him for trial.
Plaintiffs argue that, because District Judge Merritt is from Livingston County and not Bay County, they have been deprived of their right to have a judge elected from their own circuit. This argument was decided against plaintiffs in In re Huff, 352 Mich 402; 91 NW2d 613 (1958).
The decision of whether or not to grant a continuance is within the trial court’s discretion. Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373; 268 NW2d 656 (1978), lv den 406 Mich 916 (1979). Plaintiffs have failed to show any abuse of discretion in the denial of the continuance motion. Assuming plaintiffs waived a jury because they had believed that Judge Theiler would hear the case, the assignment of Judge Merritt, at most, gave them the right to request withdrawal of their jury waiver. However, they never asked for that nor do they now. We find no error in the denial of a continuance.
We turn next to the assertion that the trial judge clearly erred in finding that defendants did not libel plaintiffs. No one disputes that Alvin Zachrich was a public figure at the time in question, and thus, to prevail in a libel suit, malice must be shown. As this Court stated in Johnson v Herald Co, 116 Mich App 523, 525-526; 323 NW2d 468 (1982):
" 'Actual malice’, in the context of a libel action, is a constitutional term of art. Plaintiff may not establish this element by showing that defendant’s actions were calculated to make him suffer; rather, he must prove that defendant published the allegedly libelous statements with knowledge of their falsity or with reckless disregard for whether or not the statements were true. New York Times, supra [New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686; 95 ALR2d 1412 (1964)]. Even where a plaintiff proves that a defendant published a statement 'maliciously’, the plaintiff may not recover unless he proves that the statement was published with knowledge that it was false or with reckless disregard for the truth. A general allegation of 'malice’ is insufficient.”
The existence of "actual malice” is a question of fact. Weeren v Evening News Ass'n, 379 Mich 475, 510; 152 NW2d 676 (1967), quoting with approval from Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958). The trial court here found no such malice and we cannot disturb that finding unless it is clearly erroneous. GCR 1963, 517.1. Our review of the record fails to disclose any evidence of the requisite malice and we decline plaintiffs’ invitation to infer it. The judgment below is affirmed.
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Cynar, J.
Plaintiffs appeal as of right from a May 3, 1982, order granting defendants’ motion for accelerated judgment and dissolving a temporary restraining order.
Plaintiffs are owners, as tenants by entireties, of certain lands in Marathon Township, Lapeer County, Michigan. On July 2, 1968, plaintiff Richard Ross and his mother Marian Ross, who is now deceased but at that time held a life estate in the property, entered into an oil and gas lease agreement with John F. DuLong, doing business as D & G Oil Company. On September 7, 1978, Richard Ross entered into a second such lease with the Crystal Exploration Company involving the same property.
Defendant Wolk is an attorney and officer of defendant Onyx Oil & Gas Corporation. It has been alleged that defendants acquired all or part of D & G’s rights arising from the 1968 lease. In 1978 Onyx Oil filed an action in Genesee Circuit Court, file no. 78-47174-CH (hereinafter Onyx case), against several defendants including Crystal Exploration Company and the estate of John F. DuLong. In this action Onyx Oil attempted to establish its rights under certain "old leases”, located in both Genesee and Lapeer Counties, as against Crystal’s competing claims under "new leases”. The respective claims were settled in 1980; Onyx received an assignment of most of Crystal’s new leases, including the 1978 lease executed by the instant plaintiffs.
On January 12, 1981, a final judgment was issued in the Onyx case. This judgment recited the assignment of the 1978 Ross lease from Crystal to Onyx and an assignment of the 1968 Ross lease to Onyx from the estate of John F. DuLong. The judgment contained the following language:
"It is hereby ordered and adjudged that except as further provided herein plaintiff, Onyx Oil & Gas Corporation, and/or its entities, is the true and lawful lessee and owner of the entire working interest under the "old and new leases” described herein, including extensions, renewals, amendments and ratifications thereof and subject only to overriding royalty interests preserved herein; and the validity of said leases is hereby aiSrmed as being perfect against all other parties to this suit, or any lessor, or any other persons claiming any interest in the oil and gas properties described herein.” (Emphasis added.)
It was further recited that Onyx "shall have the exclusive right to elect, in each instance, which of the two leases (new or old) is operative”.
On December 14, 1981, defendant Onyx filed notice with the Lapeer County register of deeds that both leases remained in full force with defendant as successor to the lessee’s interest. On February 17, 1981, attorney David Nelson, on behalf of certain mineral-rights lessors including plaintiffs, filed a spurious praecipe for motion in the Onyx case, seeking to set aside the judgment as it purported to apply to the lessors. The praecipe was promptly dismissed on the grounds that the "petitioners” lacked standing in the Onyx case.
On February 23, 1981, the Rosses and several other lessors initiated a declaratory judgment action in Genesee Circuit Court (hereinafter the Genesee case) against defendant Onyx Oil and other parties to the Onyx case. The complaint alleged that the plaintiffs had not entered into any lease agreements with Onyx Oil and had not been named as parties or served with process in the Onyx suit. The equitable prayer sought a determination that the final judgment in the Onyx suit was "null and void as to plaintiffs and any other persons not parties in the prior action”, and would be "set aside and held for naught”.
On January 5, 1982, plaintiffs filed the instant complaint in Lapeer County Circuit Court. In Count I plaintiffs sought a release and discharge of defendants’ interest as lessees in the 1968 and 1978 oil and gas leases, alleging that both leases had terminated by their own terms. Count II sought damages for slander or disparagement of title and cloud on title. In Count III it was alleged that defendants’ continued oil operation on plaintiffs’ property constituted an intentional trespass to land. On the same day plaintiffs filed a motion for a preliminary injunction and temporary restraining order to prevent defendants from entering the Lapeer property and from engaging in activities related to the production of oil on that property. The temporary restraining order was granted on January 6, 1982.
Defendants answered plaintiffs’ motion for injunctive relief, asserting that the court was without jurisdiction to issue the relief on the grounds that a final judgment had been entered on January 12, 1981, in Genesee County Circuit Court case no. 78-47174-CH that established the validity of defendants’ interests in the oil and gas leases, and that plaintiffs had previously filed Genesee County Circuit Court case no. 81-60930-CH to obtain relief from the January 12, 1981, order. At the show-cause hearing Judge Clements ordered plaintiffs to take action to determine whether the Genesee County Circuit Court judgment applied to them. The temporary restraining order was continued until February 16, 1982. On January 28, 1982, plaintiffs filed a notice in Lapeer County Circuit Court, indicating that a motion for summary or accelerated judgment and an alternate motion to void or set aside the final judgment in the Onyx case as to plaintiffs had been filed in Genesee County. In an affidavit accompanying the motion in the Genesee case plaintiff Gail Ross stated that plaintiffs were not served with any pleadings in the Onyx case and were never present during any court proceedings.
On February 1, 1982, defendants moved for accelerated judgment pursuant to GCR 1963, 116.1, subds (1), (2), (4), and (5), again asserting the existence of the final judgment in the Onyx case and the pendency of the Genesee declaratory judgment action. The Lapeer court entered an order continuing the temporary restraining order until April 19, 1982, and requiring counsel to diligently pursue a determination with respect to whether the Onyx case judgment applied to plaintiffs. Defendants thereupon renewed their accelerated judgment motion.
On March 15, 1982, defendants filed a counterclaim in the Genesee case alleging, inter alia, abuse of process, breach of lease, and conversion and destruction of personalty on the part of the various Genesee plaintiffs. Defendants moved to dissolve the Lapeer temporary restraining order on April 16, 1982, reciting that on April 7, 1982, the Genesee court had orally denied plaintiffs’ motion to set aside the final judgment in the Onyx case. The Lapeer court subsequently granted defendants’ motion, ruling from the bench that jurisdiction over plaintiffs’ Lapeer claims was properly vested in Genesee County. On May 3, 1982, the Lapeer court issued an order dissolving the preliminary injunction and dismissing plaintiffs’ lawsuit.
Although the precise grounds for disposition by accelerated judgment were not set forth by the Lapeer court, it is apparent that such judgment was granted pursuant to GCR 1963, 116.1(4). This subrule allows dismissal of claims where "another action is pending between the same parties involving the same claim”. The court rule is a codification of the former plea of abatement by prior action. See Rene J DeLorme, Inc v Union Square Agency, Inc, 362 Mich 192; 106 NW2d 754 (1961); Chapple v National Hardwood Co, 234 Mich 296, 297; 207 NW 888 (1926). Abatement protects parties from the harassment of new suits filed by the same plaintiffs involving the same questions as those in pending litigation. Chapple, supra, p 298.
For reasons expressed below we do not believe that an accelerated judgment should have entered based upon the pendency of the Genesee suit. In order for a prior action to abate a subsequent action, the two suits must be based on the same or substantially same cause of action, 1 Am Jur 2d, Abatement, Survival & Revival, § 26, p 64, and as a rule the same relief must be sought, 1 Michigan Law & Practice, Abatement & Revival, § 6, p 10. Defendants argue on appeal that "[n]o matter how the Rosses attempt to restate, redesign or reformulate their position, the fact remains that the pend ing Genesee action and the subsequently filed Lapeer action are simultaneous efforts by the Rosses (who are plaintiffs in both cases) to litigate the same claim — that the judgment and the leases are invalid”. This argument reveals its own flaw, begging the question of whether the validity of the judgment and the validity of the leases constitute a single issue.
We find that the challenge to the validity of the judgment in the Onyx case pending in Genesee County and the challenge to the validity of the leases constitute separate and distinct causes of action, each involving legal and factual issues not common to the other. The principal issue in the Genesee suit is whether the Rosses could be bound by an adjudication that defendants’ interest in the two leases was valid as against them, where the Rosses had never been made parties to the suit whereby that judgment was obtained. This will require, inter alia, an examination of the legal character of the Onyx suit and the statute under which it was brought.
The main concern in this case is, however, whether the leases have become inoperative and void by their own terms. This will necessitate examination of the terms of the leases and the operative facts supporting plaintiffs’ claim of forfeiture — questions not directly at issue in the Genesee action.
Alternatively, we do not find such an identity of the parties to the two actions as is necessary to justify an abatement. See Peek v Flint Civil Service Comm, 53 Mich App 86; 218 NW2d 417 (1974). Complete identity of the parties is not necessary. 1 Michigan Law & Practice, Abatement & Revival, § 7, p 12. Here, however, there is a notable disparity between the parties defendant in the two law suits. The named defendants in the Genesee action were essentially the parties to the Onyx suit. Although Richard Wolk is a named defendant in the Lapeer action, he was not a defendant in the Genesee suit. Because Wolk was not a party in the Onyx suit, it was unnecessary for the Genesee plaintiffs to join him in their declaratory action.
Additionally, Crystal Exploration Company and the estate of John DuLong, parties to the Onyx suit, were named defendants in the Genesee suit but not in Lapeer. Indeed, there was no reason for their joinder as parties in Lapeer, as they had no part in the conduct alleged in that action. We conclude that accelerated judgment for defendants was not properly granted under GCR 1963, 116.1(4).
Defendants also contend that dismissal of plaintiffs’ action was warranted for failure of plaintiffs, in Genesee Circuit Court, to comply with Michigan’s compulsory joinder of claims rule, GCR 1963, 203.1. Defendants did not raise this issue below, nor could they have done so. The second sentence of this court rule indicates that the joinder rules are waived by failure to object to nonjoinder. Had defendants wanted additional claims joined in the Genesee case, they should have raised the issue there by motion or objection. See Rogers v Colonial Federal Savings & Loan Ass’n, 405 Mich 607; 275 NW2d 499 (1979).
Defendants next assert that the Lapeer action was improper because of GCR 1963, 926.4 (formerly GCR 1963, 925.5[2]) which provides:
"Action Arising Out of the Same Transaction or Occurrence. Subject to subrule 925.5,
"(a) if one of two or more actions growing out of the same transaction or occurrence has been assigned to a judge, the other action or actions must be assigned to the same judge.”
The phrase "same transaction or occurrence” as used in this rule has been defined by a panel of this Court:
"The mere fact that similar legal issues were involved in all of the cases does not mean that all of the actions arose out of the same transaction. We find no cases construing what 'same transaction or occurrence’ means as used in GCR 1963, 926.4(a). We conclude, however, that actions arise from the same transaction or occurrence only if each arises from the identical events leading to the other or others. For instance, several actions separately brought by various passengers of a train which derailed would arise out of one occurrence or transaction.” Armco Steel Corp v Dep’t of Treasury, 111 Mich App 426, 437; 315 NW2d 158 (1981), lv gtd 417 Mich 886 (1983).
The event leading to the Genesee suit was the obtaining by defendant Onyx of a judgment purporting to bind plaintiffs and others to an adjudication in which they had not participated. The Lapeer action, in contrast, concerned events which occurred both before and after the Onyx case judgment was obtained. We therefore hold that the two cases did not arise out of the same transaction or occurrence for the purposes of GCR 1963, 926.4.
Despite defendants’ complaint of "forum shopping”, we find that plaintiffs have selected appropriate forums for both suits. The challenge to the Onyx case judgment was properly brought in Genesee County where that judgment had been issued. The allegations in this suit are appropriately reviewed in Lapeer County, where the plaintiffs and the land in question are located. Under the facts of this case, however, we hold that the Lapeer suit should be held in abeyance until resolution of the Genesee suit by final order. In Bank of the Commonwealth v Hulette, 82 Mich App 442, 445; 266 NW2d 841 (1978), a panel of this Court approved a rule set forth in 1 Am Jur 2d, Actions, §§ 92-94, pp 621-622, which provides in relevant part:
" 'Where the rights of parties to the second action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed.’ ”
In this case a finding by the Genesee court that the Onyx judgment was binding upon plaintiffs could be a legal defense to all of the claims advanced by plaintiffs in Lapeer. We further note that during the course of an April 19, 1982, hearing in the case at bar, plaintiffs made an oral motion that the court hold this action in abeyance pending resolution of the Genesee action. This motion should have been granted.
We remand this case to the trial court for entry of an order holding the case in abeyance pending a final judgment in the Genesee case.
This Court retains no further jurisdiction. | [
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Allen, J.
Once again we are asked to determine what are "work loss” benefits and "loss of income from work”, as those terms are used in MCL 500.3107(b); MSA 24.13107(b) of the Michigan no-fault insurance act. Specifically, is the amount which the employer was paying for an employee’s hospitalization insurance policy and which was paid by the employee while the employee was not working due to injuries sustained in an automobile accident, a work loss benefit. On March 16, 1982, the trial court answered this question in the affirmative. From that decision and order, defendant appeals by leave granted.
Plaintiff, an employee of Standard Automotive Parts, was injured in an automobile collision on December 11, 1979, as a result of which she incurred injuries which disabled her from returning to employment (for purposes relevant to this lawsuit) until April 13, 1981. Defendant promptly paid plaintiff her wage loss PIP benefits, as to which there is no dispute. Among the fringe benefits associated with plaintiff’s employment at Standard Automotive Parts was an employer-paid medical and hospital insurance plan with Blue Cross and Blue Shield of Michigan. Pursuant to its policy in such matters, Standard Automotive Parts, following plaintiff’s disability, continued to pay Blue Cross and Blue Shield premiums for six months, terminating its contributions on June 11, 1980.
After that date, plaintiff, in order to retain health and medical insurance coverage, undertook payment of the weekly premiums herself at the rate of $21.67 per week, and she continued to make those payments through April 15, 1981. In that span of time, plaintiff paid premiums aggregating $975.17. When defendant refused to reimburse plaintiff for these payments, plaintiff brought suit. The district court held in favor of plaintiff and, on appeal, the circuit court affirmed. On July 7, 1982, this Court entered an order granting defendant’s application for leave to appeal.
The precise issue raised on appeal in this case has been twice decided with diverse results by this Court. In Krawczyk v DAIIE, 117 Mich App 155; 323 NW2d 633 (1982), this Court held that $390 paid for health insurance during plaintiff’s injury was not a work loss benefit recoverable under § 3107(b).
"This Court is convinced, therefore, that work-loss benefits as per § 3107(b) are limited to lost wages or salary income. The trial court erred in granting benefits for profit sharing and pension contributions. The circuit court erred by concluding that the substitute health insurance costs were recoverable work-loss benefits.” 117 Mich App 162. (Emphasis supplied.)
In so doing, the Court relied strongly on the Supreme Court’s language in Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538; 302 NW2d 537 (1981).
"In part IIIA of Justice Ryan’s opinion, which all the Justices concurred with, he interpreted § 3108, survivors’ benefits, by comparing it to § 3107(b), work-loss benefits. The definition of work-loss benefits was not an issue on appeal. However, the Court plainly put its judicial mind to the definition of that phrase when it stated: 'work loss benefits are limited, by definition, to the loss of wage or salary income’. Miller, supra, 563.” 117 Mich App 161.
However, in Farquharson v Travelers Ins Co, 121 Mich App 766; 329 NW2d 484 (1982), a different panel of this Court came to the opposite conclusion. In that case, the trial court had ruled that, while plaintiff was entitled to step increases in his wage rate made after he left work due to his injuries, plaintiff was not entitled to reimbursement for health insurance payments of $91.54 a month paid by the plaintiff for replacement insurance after his employer-paid insurance was discontinued due to plaintiff’s inability to work. Our Court denied reimbursement at $91.54 but held plaintiff was entitled to benefits based on the amount of contributions his employer would have made to the group plan for plaintiffs coverage if plaintiff had not been injured. The Court rejected Krawczyk saying:
"Subsequent to the submission of briefs in this case, this Court decided Krawczyk v Detroit Automobile Inter-Ins Exchange, 117 Mich App 155; 323 NW2d 633 (1982). The Court ruled that fringe benefits were not elements of 'income’ under § 3107(b). For the reasons we have stated above, we cannot agree. We note only that our reading of the commissioner’s comments following § 1(a)(5)(h) of the Uniform Motor Vehicle Accident Reparation Act (UMVARA) does not leave us with the impression that, by inference, fringe benefits were excluded from 'work loss’ under the uniform act from which our concept of 'work loss’ is drawn. See Pries v Travelers Ins Co, 86 Mich App 221, 223-224; 272 NW2d 247 (1978), aff’d 408 Mich 870 (1980).” 121 Mich App 773-774.
In our opinion, Farquharson is the better reasoned opinion. We do not believe the Legislature intended to exclude fringe benefits from "work loss” benefits. Fringe benefits are a form of income payable in kind rather than in cash. If fringe benefits paid by the employer are excluded under § 3107(b), an employee who receives the cash equivalent of the benefit and buys his or her health insurance would be entitled to reimbursement, but plaintiif, and all others like her, would not. This is an unreasonable result and one which we do not believe the Legislature intended. Furthermore, excluding employer paid "fringe benefits” from the ambit of "work loss” would be inconsistent with the broad policy objectives of the no-fault statute.
Accordingly, we conclude that hospitalization premium payments normally paid by the employer constitute a "loss of income from work” and are reimbursable under § 3107(b).
Affirmed. No costs, a question of public importance being involved.
The Court reasoned that the value of the employer contributions to the group plan, which should be lower than a no-fault claimant would pay for replacement insurance, more accurately would represent the income lost because of the accident. However, in the instant case, Kruzel did not take out replacement insurance but instead paid the insurer (Blue Cross and Blue Shield) the premiums which otherwise would have been paid by Standard Automotive Parts. | [
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Per Curiam.
This appeal involves cross actions brought by the parties for breach of a construction contract. The jury found in favor of plaintiff and awarded him $26,448.99. However, the jury also found in favor of defendants on their counter-complaint but "with no sum of money to be awarded”. Defendants’ motion for a new trial or judgment notwithstanding the verdict was denied. Accordingly, they appeal as of right from the judgment entered on the jury verdict.
For purposes of our review, the tortious facts of this lingering dispute may be succinctly stated. Plaintiff, a licensed builder, agreed in 1977 to construct a "roughed-in” house for Dr. Nadia Turkewycz, one of the defendants; Dr. Turkewycz intended to complete the construction in stages over a period of years as funds became available to her. The house was designed to encompass a palatial 6600 square feet over five levels, and was ultimately intended for use both as a residence and office from which Dr. Turkewycz would conduct her dental practice.
Building and escrow agreements were signed in October, 1977, by plaintiff, Dr. Turkewycz and her two children, Ann and Julian, codefendants and co-owners of the property on which the house was to be built. The contract price for the "roughed-in” house was $104,000, to be paid in five progress payments. The contract provided that plaintiff would "do his best to complete the house as per plans” by January 1, 1978, leaving him 86 days to complete the construction.
Perhaps the parties underestimated the likely difficulties or failed to appreciate that the project demanded disciplined coordination between the builder, owners, subcontractors, suppliers, and building inspectors. In any case, the course of construction was hampered by bad weather, inaccessibility of the site to supply trucks, disputes over the slow progress of construction, and delayed and inadequate progress payments, the "extras”, and allegations of shoddy, below-code, workmanship. The parties’ relationship, fraught with vituperation and frustration on both sides, came to a head in the spring of 1979, when defendants discharged plaintiff and took responsibility for finding other contractors to repair and complete the rough structure.
Defendants allegedly incurred $45,444.73 in damages in completing the construction, and it was these expenses which were sought to be recovered in defendants’ counter-complaint. The validity of many of these costs was disputed by plaintiff, who himself sought $26,448.99 in damages in his complaint.
A seven-day jury trial was held on plaintiff’s complaint and defendants’ counter-complaint. Plaintiff contended that he had substantially performed his obligations under the contract, whereas defendants asserted that plaintiff had materially breached the contract, requiring them to incur large repair and completion expenses.
Defendants present four questions for our review, which we will address seriatim.
I
Defendants first claim that the jury found in their favor on the substance of their counterclaim, but awarded no money damages. Defendants argue that a verdict which ignores their undisputed out-of-pocket expenses of $37,444.73 is inadequate as a matter of law.
The jury rendered the following verdict:
"In the case of Zinchook versus Turkewycz, the jury has found for the plaintiff, Walter Zinchook — do we give the whole thing? Okay — the plaintiff shall be awarded the sum of $26,448.99. And in the case of Turkewycz versus Zinchook, the jury has found for the counter-plaintiff, Dr. Turkewycz, with no sum of money to be awarded.”
Upon being polled, five of the six jurors responded that their verdict on defendants’ counterclaim was "no cause for action”.
When a jury finds in favor of a party, it is its duty to assess damages in accordance with the evidence. Zielinski v Harris, 289 Mich 381; 286 NW 654 (1939). Thus, a verdict which ignores a prevailing party’s uncontroverted out-of-pocket expenses is inadequate as a matter of law and must be reversed. Jackson v Depco Equipment Co, 115 Mich App 570; 321 NW2d 736 (1982). However, trial courts have a large measure of discretion in granting new trials in this area and appellate relief is available only in cases where the trial court has abused its discretion. Moore v Spangler, 401 Mich 360, 372; 258 NW2d 34 (1977).
Contrary to defendants’ assertion, the clear intent of the jury, as ascertained by the trial court’s inquiry, Alston v Tye, 67 Mich App 138; 240 NW2d 472 (1976), was to render a verdict of "no cause for action” on the counterclaim. Five of the six jurors specifically stated they found "no cause for action” on defendants’ suit. Thus, regardless of whether defendants’ expenses were uncontroverted, the jury was not obliged to award damages. Alston v Tye, supra.
Moreover, defendants’ expenses were not in fact uncontroverted. Plaintiff introduced rebuttal evidence attacking many of the items of costs incurred in completing the house. For instance, plaintiff argued that defendants’ plumbing damages resulted from vandalism and were not chargeable to him. Money spent for electrical garage door openers, skylights, drywall and finish, a septic tank, tools and trim, may have taken the building beyond the "rough structure” contemplated by the contract. In light of these questionable expenses, the jury could easily have concluded that defendants’ completion costs were unjustifiably enhanced by items not called for in the contract, and which plaintiff had never agreed to provide. In its role as factfinder, the jury could properly have found defendants’ expenses excessive.
II
Defendants next claim that the verdict is logically and legally inconsistent, since the jury found "in favor of’ both plaintiff and defendants on the merits of their respective claims.
As noted in Alston v Tye, supra, p 143, where the jury’s verdict is unclear, the trial court must inquire as to the real intent of the jury. Here, a poll of the jurors revealed that five out of six intended a no-cause verdict on defendants’ counterclaim. Rabior v Kelley, 194 Mich 107, 117; 160 NW 392 (1916). Thus, the verdict was not inconsistent.
III
Defendants next contend that the trial court erred in failing to instruct the jury on several basic and controlling issues involved in the case. Specifically, the jury should have been instructed that the structure had to be constructed in accordance with the applicable building code; that the contract required plaintiff to construct a rough structure which would pass a building inspection; that the contract did not require defendants to remove snow from the building’s access routes; and that the building and escrow agreements did not require defendants to deposit funds with a third party.
In order to preserve for appellate review the adequacy of jury instructions in a civil case, a party must make a request for a jury instruction before the instructions are given and must object to the alleged error after the jury has been instructed. Stein v Continental Casualty Co, 110 Mich App 410, 424; 313 NW2d 299 (1981); accord, GCR 1963, 516.2. This Court retains the power of sua sponte review of unobjected to instructions in order to prevent manifest injustice. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965).
No objection to the instructions given was made by counsel for either party. In fact, the instructions were in large measure a product of counsel’s joint efforts. As the trial judge aptly noted, no Standard Jury Instructions exist for building construction cases, and the instructions given were culled from a variety of negligence, breach of warranty, and construction contract cases.
Our review of the alleged errors is thus limited by defendants’ failure to object to the instructions finally given. However, reviewing the instructions in their entirety, we find that the parties’ theories and the applicable law were adequately and fairly presented. Webb v Travelers Ins Co, 98 Mich App 157; 296 NW2d 216 (1980).
Defendants’ first contention that the jury was not instructed as to the applicable law and contract requirements regarding building codes and inspections is without merit. Not only did plaintiff himself concede that the contract required him to comply with local codes, but the jury was instructed that plaintiff was required to furnish a structure complying with the contract plans and specifications.
Defendants’ contentions that the jury should have been instructed as to snow removal and the requirements of the building and escrow agreements are also insubstantial. The pertinent contract language is ambiguous as to the specific obligations assumed by the parties with respect to snow removal and escrow funds. Although contract construction is ordinarily a question of law for the court, Craib v Committee on National Missions of the Presbytery of Detroit of the United Presbyterian Church, USA, 62 Mich App 617; 233 NW2d 674 (1975), where the language used is ambiguous or incomplete, or the circumstances are unusual, the substance of the parties’ agreement is a question of fact for the jury. Anderson v Brown, 21 Mich App 699; 176 NW2d 457 (1970).
Finally, defendants’ claim that the jury was not instructed that plaintiff had the burden of proving substantial compliance with the contract in order to prevail is misplaced. The court properly informed the jury that a contractor is required to furnish a building which "substantially complies” with the contract, and may recover if "only slight additions or alterations are required to finish the work according to the contract”. See, e.g., P & M Construction Co, Inc v Hammond Ventures, Inc, 3 Mich App 306, 314-315; 142 NW2d 468 (1966). The jury was also informed of plaintiff’s theory of substantial performance entitling him to recover, and that he had the burden of proving each element of his case. Although the instructions are not perfect, given the understandable complexity of the issues and the painstaking efforts required to present them clearly to the jury, when read as a whole, they do fairly state the controlling legal principles.
IV
Finally, defendants claim that the verdict was against the great weight of the evidence, and that the trial court abused its discretion in denying defendants’ motion for a new trial. GCR 1963, 527.1(5); Drouillard v Metropolitan Life Ins Co, 107 Mich App 608; 310 NW2d 15 (1981).
We cannot say that denial of the request for a new trial was an abuse of discretion. Evidence was presented that the structure was nearly 95% complete when plaintiff was discharged. Plaintiff testified that the major obstacle to completion was defendants’ refusal to supply the necessary funds as required by the building and escrow agreements. Although defendants disputed the claim of substantial performance, the question was ultimately one for the jury. P & M Construction, supra, pp 314-315.
The trial court aptly remarked that many, if not most, of the items of the building’s ultimate cost were hotly disputed. There was, nonetheless, sufficient evidence from which the jury could properly resolve these disputed costs in favor of plaintiff. Determining the weight of the evidence and the credibility of the witnesses is within the province of the jury. Whitson v Whiteley Poultry Co, 11 Mich App 598; 162 NW2d 102 (1968).
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Per Curiam.
The City of Hamtramck is a municipal corporation which employs firefighters and police officers. The firefighters are members of Local 750 of the International Association of Firefighters, and the police officers are members of Lodge 109 of the Fraternal Order of Police and of the Hamtramck Police Ranking Officers Association.
Prior to the June 30, 1979, expiration date of the then in effect collective-bargaining agreement between the city and the unions, the two sides met to negotiate a new agreement. The parties were unable to resolve their disputes, and the existing collective-bargaining agreement expired. On November 28, 1979, the unions made a demand for compulsory arbitration, pursuant to MCL 423.231 et seq.; MSA 17.455(31) et seq. The arbitration panel consisted of defendants Richard Strichartz, Chairman, George C. Edwards, III, and Dan T. Ryan.
The panel majority issued an opinion and award on December 3, 1980, dissented to by the city’s representative, Mr. Edwards. The majority selected the unions’ last best offer wage demand and granted the unions wage increases in the amount of 5-1/2% for the period of July 1, 1979, to June 30, 1980, retroactive to July 1, 1979; an increase of 6-1/2% for the period July 1, 1980, to June 30, 1981, retroactive to July 1, 1980; and a wage increase of 6-1/2% for July 1, 1981, to June 30, 1982. The unions were also awarded a 20 cent cost of living adjustment (COLA) for the fiscal year July 1, 1979, through June 30, 1980. The city’s last best offer on COLA was adopted for the contract years July 1, 1980, to June 30, 1981, and July 1, 1981, to June 30, 1982. The award also granted the unions’ demand for increased life insurance benefits and for a per diem of $10 for each day a firefighter is assigned to emergency medical technician duty.
On January 22, 1981, the City of Hamtramck filed suit aginst the unions and the members of the arbitration panel in Wayne County Circuit Court, seeking review of the arbitration panel’s award. The unions also filed suit in Wayne County Circuit Court, on March 13, 1981, against the City of Hamtramck and members of the Hamtramck Common Council (hereinafter referred to collectively as the city), seeking enforcement of the arbitration award. The cases were consolidated for review by the circuit court.
After examining the proofs and hearing the arguments of the respective counsel, the trial court issued an opinion upholding the arbitration award and ordered that the arbitration award be implemented by the City of Hamtramck. The order also specified that employees be paid interest on the award from December 3, 1980, through March 13, 1981 (the date of filing of the complaint for enforcement), pursuant to MCL 438.7; MSA 19.4. Affected employees were to receive statutory inter est pursuant to MCL 600.6013; MSA 27A.6013 from March 13, 1981, to date of payment.
On October 27, 1981, the trial court issued a partial judgment and amendment to the order of enforcement, which ordered that the judgment of damages owed, not including interest, shall be placed on the tax rolls of the City of Hamtramck for collection, pursuant to MCL 600.6093; MSA 27A.6093. The City of Hamtramck and named members of its Common Council appeal as of right.
The city’s first claim is that 1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq., is unconstitutional on its face. In Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), reh den 409 Mich 1101 (1980), app dis 450 US 903; 101 S Ct 1337; 67 L Ed 2d 326 (1981), the Supreme Court considered and rejected each of the constitutional issues now raised by defendants. Since that decision is the present state of the law in Michigan and binding on this Court, we find defendants’ arguments to be without merit.
The city’s second claim is that the arbitration panel’s award, insofar as it grants wage increases and cost of living adjustments, should be overturned.
1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq. (hereafter referred to as Act 312), provides for compulsory arbitration of labor disputes in municipal police and fire departments. Act 312 is provided as an alternative means to striking for the resolution of labor disputes between these groups, with the aim of maintaining the high morale of the employees and the efficient operation of the departments. See MCL 423.231; MSA 17.455(31).
In deciding disputed economic issues, the arbi tration panel is governed by §§ 8 and 9 of Act 312. Section 8 provides, in relevant part:
"At or before the conclusion of the hearing held pursuant to section 6, the arbitration panel shall identify the economic issues in dispute, and direct each of the parties to submit, within such time limit as the panel shall prescribe, to the arbitration panel and to each other its last offer of settlement on each economic issue. * * * As to each economic issue, the arbitration panel shall adopt the last offer of settlement which, in the opinion of the arbitration panel, more nearly complies with the applicable factors prescribed in section 9. The findings, opinions and order as to all other issues shall be based upon the applicable factors prescribed in section 9.” MCL 423.238; MSA 17.455(38).
The factors in § 9 to be considered in making a determination of the last best offer are:
"[T]he arbitration panel shall base its findings, opinions and order upon the following factors, as applicable:
"(a) The lawful authority of the employer.
"(b) Stipulations of the parties.
"(c) The interests and welfare of the public and the financial ability of the unit of government to meet those costs.
"(d) Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wage, hours and conditions of employment of other employees performing similar services and with other employees generally:
"(i) In public employment in comparable communities.
"(ii) In private employment in comparable communities.
"(e) The average consumer prices for goods and services, commonly known as the cost of living.
"(f) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
"(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.
"(h) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment.” MCL 423.239; MSA 17.455(39).
The city contends that the arbitration panel majority did not properly consider the factors in § 9 in reaching its conclusion to accept the union’s last best offer of settlement. The city argues that the arbitrators (specifically the author of the award, arbitrator Richard Strichartz) did not consider the factor of the city’s ability to pay and that, even if he did consider that factor, he did not give it the weight it deserves. In effect, the city argues that once the city established its inability to pay (the unions dispute that this was established), this factor should have been determinative and required the panel to accept the city’s last best offer of settlement.
Section 12 of Act 312 provides the scope of judicial review of the arbitration panel’s award:
"Orders of the arbitration panel shall be reviewable by the circuit court for the county in which the dispute arose or in which a majority of the affected employees reside, but only for reasons that the arbitration panel was without or exceeded its jurisdiction; the order is unsupported by competent, material and substantial evidence on the whole record; or the order was procured by fraud, collusion or other similar and unlawful means. The pendency of such proceeding for review shall not automatically stay the order of the arbitration panel.” MCL 423.242; MSA 17.455(42).
In Detroit v DPOA, supra, after holding Act 312 constitutional, the Court turned to the question of review of the arbitration panel’s award. The Court cited § 12 of the act, and stated:
"[T]his section neither provides this Court with a license to consider the wisdom of an arbitration award nor to subject an award to de novo review.* * * Rather, the Legislature having confined our scope of review in assessing compulsory, binding arbitration awards, we are statutorily bound to uphold an award if it meets the prescriptions of § 12.” Detroit v DPOA, supra, p 480.
The Court concluded that §§ 8, 9 and 12 were interdependent, thus requiring joint consideration by a court sitting in review of an Act 312 arbitration panel’s award. Id., pp 481-483. The Court then went on to reject the argument the city makes herein:
"One other matter of statutory interpretation needs to be addressed preliminary to our examination of the panel’s award. The city seems to argue that the act must be considered unconstitutional if the panel has the freedom to determine which of the § 9 factors are most applicable to a certain case. The apparent foundation for this argument is some perceived repugnance between the concept of assessing a statute’s constitutionality on the sufficiency of its standards to guide delegated authority, while simultaneously allowing the recipient of this delegated authority the discretion to weigh these standards within the context of a particular case.
"We disagree with the city’s contention. The fact that an arbitral majority may not be persuaded by a party’s evidence and argument as to certain items does not mean that those arbitrators failed to give the statutory-factors that consideration required by law. The Legislature has neither expressly nor implicitly evinced any intention in Act 312 that each factor in § 9 be accorded equal weight. Instead, the Legislature has made their treatment, where applicable, mandatory on the panel through the use of the word 'shall’ in §§8 and 9. In effect then, the § 9 factors provide a compulsory checklist to ensure that the arbitrators render an award only after taking into consideration those factors deemed relevant by the Legislature and codified in § 9. Since the § 9 factors ’ are not intrinsically weighted, they cannot of themselves provide the arbitrators with an answer. It is the panel which must make the difficult decision of determining which particular factors are more important in resolving a contested issue under the singular facts of a case, although, of course, all 'applicable’ factors must be considered. Our comment in Midland Twp v State Boundary Comm, 401 Mich 641, 676; 259 NW2d 326 (1977), is here apposite.
" 'Merely because some criteria were factually inapplicable or were found by the commission to be of less importance than other criteria does not mean that the commission "ignored” relevant criteria. The commission may regard a particular criterion to be of decisive importance outweighing all other criteria.’ ” Detroit v DPOA, supra, pp 483-484.
It is clear from a reading of the arbitrators’ opinion that the factor of the city’s ability to pay was carefully considered by the panel. The majority of the panel gave this factor the weight it felt it deserved. We agree with the trial court that this decision by the arbitrators should not be "second guessed” by the courts. Certainly, this Court should not act as a "super legislature” and effectively amend Act 312 by holding that the ability of the city to pay (§ 9[c]) should be the determinative factor in compulsory arbitration under Act 312. Such a decision would result in a burden of proof being imposed upon the employees to disprove a city’s assertion of the inability to pay. It is apparent from the arbitration panel’s opinion and the trial court’s decision that the arbitrators and trial court considered a large amount of evidence regarding all of the § 9 factors. The decision of the trial court enforcing the arbitration panel’s economic award is affirmed.
The city next raises the issue of whether the trial court may award the unions interest for loss of the use of funds when ordering enforcement of the arbitration panel’s economic award.
The trial court based its award upon two separate statutes. For interest from the date of the arbitration award through the date of filing of the complaint for enforcement, statutory interest pursuant to MCL 438.7; MSA 19.4 was ordered. This statute provides:
"In all actions founded on contracts express or implied, whenever in the execution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest upon such amount so ascertained or liquidated, until payment thereof or until judgment shall be thereupon rendered; and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment.” MCL 438.7; MSA 19.4.
Interest from the date the unions filed their complaint for enforcement of the award was ordered pursuant to MCL 600.6013; MSA 27A.6013, which provides in relevant part:
"(1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section.
"(4) For complaints filed on or after June 1, 1980, interest shall be calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate of 12% per year compounded annually unless the judgment is rendered on a written instrument having a higher rate of interest. In that case interest shall be calculated at the rate specified in the instrument if the rate was legal at the time the instrument was executed. The rate shall not exceed 13% per year compounded annually after the date judgment is entered.”
The Supreme Court addressed this issue in Detroit v DPOA, supra, pp 499-502. There, the Court held:
"The Act 312 arbitration award is not a 'money judgment recovered in a civil action’. MCL 600.6013, as part of the Revised Judicature Act of 1961, does not apply to compulsory interest arbitration in the public sector. The preamble to the Revised Judicature Act states its concern, instead, to be with such matters as the 'organization and jurisdiction of the courts’ and the 'forms and attributes of civil claims and actions’. Our reasoning in the analogous context of disallowing an interest claim on a workers’ compensation award made under MCL 600.6013 is here valid. Cf. Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975). An Act 312 arbitration panel is not 'a court’, 'is not possessed of judicial power’ and the concept of a money judgment is 'totally alien to the policy and philosophy’ of Act 312 which looks to the expeditious and effective resolution of critical-service public sector labor disputes. 395 Mich 21-22.
"We also find MCL 438.7 to be an inappropriate vehicle for the granting of interest. * * *
"* * * [A]n Act 312 arbitration proceeding is not 'founded’ on a contract, but instead has as its very purpose the making of a contract. * * * Act 312 is not dependent on an already existing contractual relationship between employer and employee for its existence. Indeed, § 9 of the act expressly provides in its introductory phrase that it must be considered even '[wjhere there is no agreement between the parties’. Furthermore, as in the present case, an Act 312 award often will not be issued by an arbitration panel until the parties’ previous collective bargaining agreement (or statutorily imposed Act 312 contract) has already expired.
"Nor do we find entirely persuasive the argument that the statutorily imposed Act 312 contract can itself serve as the 'contract’ contemplated by the terms of MCL 438.7. The Act 312 contract, as issued by a panel, is not, as required by MCL 438.7, one that has been executed to the extent that an amount of money is liquidated or ascertained. Further, an Act 312 proceeding cannot be 'founded’ on a contract since its very purpose is to make a contract.
"In sum, we can find no statutory provision under which to grant interest on the economic portion of the panel’s award.” Id., pp 500-502.
Therefore, we find that the trial court erred in ordering interest, and that part of the trial court’s order is reversed.
The final issue raised by the city is whether the trial court erred in ordering the City of Hamtramck to spread on its tax rolls, pursuant to MCL 600.6093; MSA 27A.6093, the arbitration panel’s economic award.
MCL 600.6093; MSA 27A.6093 provides, in relevant part:
"(1) Whenever judgment is recovered against any township, village, or city, or against the trustees or common council, or officers thereof, in any action prosecuted by or against them in their name of office, the clerk of the court shall, on the application of the party in whose favor judgment is rendered, his attorney, executor, administrator, or assigns, make and deliver to the party so applying a certified transcript of the judgment, showing the amount and date thereof, with the rate of interest thereon, and of the costs as taxed under the seal of the court, if in a court having a seal. The party obtaining the certified transcript may file it * * * with the assessing officer or officers of the city or village, if the judgment is against a city or village. The supervisor or assessing officer receiving the certified transcript or transcripts of judgment shall proceed to assess the amount thereof with the costs and interests from the date of rendition of judgment to the time when the warrant for the collection thereof will expire upon the taxable property of the township, city, or village upon the then next tax roll of such township, city, or village, without any other or further certificate than the certified transcript as a part of the township, city, or village tax, adding the total amount of the judgment to the other township, city, or village taxes and assessing it in the same column with the general township, city, or village tax.”
Although there is no Michigan case which has addressed the specific question of whether an Act 312 arbitration award is a "judgment” for purposes of MCL 600.6093; MSA 27A.6093, we agree with the defendants that the Supreme Court’s language in Detroit v DPOA, supra, regarding interest awards under MCL 600.6013; MSA 27A.6013, can also be used with § 6093, and leads to the conclusion that the trial court’s order to spread the arbitration panel’s economic award on its tax rolls was erroneous.
As hereinbefore explained, the Supreme Court held in Detroit v DPOA, supra, pp 499-502, that an Act 312 arbitration award is not a "money judgment” for purposes of § 6013. In reaching this conclusion, the Court pointed out that § 6013, "as part of the Revised Judicature Act of 1961, does not apply to compulsory interest arbitration in the public sector”. Detroit v DPOA, supra, p 500. The Supreme Court distinguished between court orders enforcing an Act 312 arbitration award and money judgments which are the result of litigation originating in court. Section 6093 is also part of the Revised Judicature Act, and also uses the word "judgment” recovered against a city. The award herein is the result of arbitration, not court originated litigation. We believe, therefore, that the spirit of the Supreme Court’s decision in Detroit v DPOA, supra, mandates the reversal of the trial court’s order.
In conclusion, the Act 312 arbitration panel’s award is affirmed. However, the trial court’s award to the unions of interest for the loss of use of the funds when ordering enforcement of the arbitration panel majority’s economic award was improper and is reversed. In addition, the trial court erred in ordering the City of Hamtramck to spread on its tax rolls the arbitration panel’s economic award. That part of the trial court’s order is also reversed.
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Per Curiam.
Defendant appeals as of right his jury-based conviction of carrying a concealed weapon, MCL 750.227; MSA 28.424. On appeal, he raises several issues, only one of which requires review. We reverse and remand for a new trial.
The first witness called at the trial was the prosecution’s key witness, defendant’s former girlfriend, Rita Smith. She testified that she saw defendant in possession of the gun in question shortly before his arrest. Over defense counsel’s objection, Smith testified that defendant had used the gun to rob her of $80 worth of food stamps. Smith then testified that defendant robbed her for a specific purpose: to get money to replace that which he had stolen from his employer, the Salva tion Army. The trial court overruled defendant’s objection on the basis that the alleged robbery, as well as the underlying motive, "appea[r] to be part of the so-called res gestae of the offense”. We disagree, and believe that Smith’s testimony describing the motive for the alleged robbery was prejudicial and improperly admitted under MRE 404(b).
Generally, evidence of "bad acts” is inadmissible to prove guilt of the charged offense. People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973); MRE 404(b). In admitting Smith’s testimony, the trial court relied on the "res gestae” exception to this general rule. Under that exception, evidence of prior "bad acts” is admissible where those acts are "so blended or connected with the (charged offense) that proof of one incidentally involves the other or explains the circumstances of the crime”, People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978). Alternatively, "res gestae” has been defined as "the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect”. People v Castillo, 82 Mich App 476, 479-480; 266 NW2d 460 (1978). We acknowledge that the robbery of Smith was connected with the charged offense of carrying the weapon. This follows because defendant’s use of the gun in threatening Smith was relevant to show guilty knowledge of the gun’s presence shortly afterward, when police found it concealed in his car. The robbery incident was also relevant in explaining how defendant came to be arrested; Smith testified that, after she was robbed, she reported the incident to police, who in turn found defendant in his car with the gun. Given the foregoing, we agree with the people that the testimony describing the rob bery of Smith was a part of the "res gestae” properly admitted by the trial court.
However, the same conclusion does not apply to that portion of Smith’s testimony describing defendant’s motive for robbing her. Smith testified that defendant robbed her because he needed money to replace some that he had stolen from his employer, the Salvation Army. The theft from his employer was a "bad act” completely separate from the charged offense. At most, it provided a motive for robbery, a motive which had no bearing on this case because defendant was neither charged with nor tried for robbery. In People v Berry, 101 Mich App 399, 403-404; 300 NW2d 575 (1980), this Court observed:
"This Court in People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978), Iv den 406 Mich 857 (1979), rev’d on other grounds 408 Mich 69; 288 NW2d 583 (1980), stated that three requirements must be met before evidence of prior bad acts may be admitted:
"(1) There must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced.
"(2) There must be a showing that the 'facts’ or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense.
"(3) Defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of defendant’s guilt of the charged offense.
"The general rule is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed. Wilkins, supra, 268.” (Emphasis added.)
In the present case defendant’s act of stealing money from his employer was in no way relevant to his having committed the charged offense. Nor was that act in any way material to the determination of defendant’s guilt with respect to the charged offense. The matter of why defendant may have robbed Smith was not disputed at all; the only facet of the alleged robbery which might have been relevant was how it was committed (i.e., the fact that defendant used the subject gun). Defendant’s action vis-á-vis his employer not only lacked all probative value, they also raised a substantial potential for jury prejudice. From the foregoing, we conclude that the trial court erred in admitting this testimony as part of the "res gestae”, without weighing its prejudicial effect against its limited probative value. The requirements set forth in Berry, supra, were simply not fulfilled.
In concluding discussion of this issue, we note that the people misplace reliance on People v Delgado, supra. There, defendant was arrested for selling drugs to an undercover police officer. The trial court admitted testimony describing an earlier sale of drugs to the same officer where the prosecutor showed that the two drug sales were part of a common plan. Specifically, at the first sale the defendant sold the officer just a sample of drugs and made arrangements for the second sale, for which he was eventually arrested and tried. This Court approved admission of the testimony, observing that the two sales were "inextricably related”. Contrast the present case, where defendant’s alleged theft from his employer was not similarly part of a plan to commit the charged offense of carrying the subject weapon. On the contrary, the prior act was completely independent of the charged offense.
Our disposition of this issue renders unnecessary a review of defendant’s remaining issues on appeal. The conviction must be reversed and the matter remanded for a new trial.
Reversed and remanded.
The potential for jury prejudice is substantial in any case where a witness testifies that the accused committed a "bad act” prior to trial, but in this case, the circumstances surrounding the "bad act” in question have combined to enhance the potential for prejudice. Defendant was described as having stolen from his employer — a particularly reprehensible act likely to stir the jury’s passion — but, more important, his employer was identified as the Salvation Army. By so identifying the employer, the testimony cast a particularly bad light upon defendant.
The potential for prejudice was further enhanced by the fact that Smith described this "bad act” at the very outset of the trial; as a result, any adverse impression of defendant’s "character” was with the jurors throughout the trial. | [
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Per Curiam.
On December 1, 1987, following a bench trial, defendant was convicted of one count of possession with the intent to deliver more than 50 grams but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). Defendant was sentenced to ten to twenty years imprisonment. Defendant appeals as of right. We affirm.
Defendant first argues that the search warrant for the dwelling in which defendant was arrested was improperly executed in violation of Michigan’s "knock-and-announce” statute, MCL 780.656; MSA 28.1259(6). Defendant maintains that the police officers failed to give the occupants an opportunity to respond to their announcement of authority and purpose before forcibly entering the dwelling, as required under the statute. However, refusal of admittance under the statute is not limited to affirmative denials. People v Slater, 151 Mich App 432, 437; 390 NW2d 260 (1986). The existence of exigent circumstances, as were present in this case, may excuse noncompliance with the statute. Slater, 151 Mich App at 440. In this case, as the officers approached, a woman was observed running from the front porch into the house. As in Slater, supra, her actions provided the officers with a reasonable belief that they would be denied admittance and any evidence contained inside the dwelling would be in jeopardy. Under the circumstances, the officers’ noncompliance with the statute was excused.
Defendant also argues unpersuasively that he was denied effective assistance of counsel in violation of both the United States Constitution, Am VI, and the Michigan Constitution of 1963, art 1, §20, when his trial attorney failed to challenge the search warrant or move for severance when a codefendant’s confession implicated defendant.
In People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), our Supreme Court established a bifurcated test for ineffective assistance of counsel claims. First, defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Second, even though the first test is satisfied, counsel must not make a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal.
Effective assistance of counsel is presumed, and defendant has the burden of proving otherwise. People v Hunter, 141 Mich App 225, 229; 367 NW2d 70 (1985), lv den 426 Mich 871 (1986). The presumption can be overcome by showing that defendant was prejudiced by counsel’s failure to perform an essential duty, People v Reinhardt, 167 Mich App 584, 591; 423 NW2d 275 (1988), lv den 430 Mich 874 (1988), or by showing that counsel failed to meet even a minimal level of competence, People v Jenkins, 99 Mich App 518, 519; 297 NW2d 706 (1980).
The federal constitutional standard was formulated in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), reh den 467 US 1267 (1984). As under the state standard, the defendant has the burden of overcoming the presumption that the challenged action was sound trial strategy. Strickland, 466 US at 689. First, defendant must show that counsel’s performance was deficient as measured against what is objectively reasonable under the circumstances according to prevailing professional norms. Strickland, 466 US at 687-688. Second, the deficiency must be prejudicial to the defendant such that, absent the error, there was a reasonable probability that the factfinder would have had a reasonable doubt concerning defendant’s guilt. Id.
While at least one panel of our Court is of the opinion that Strickland overrules Garcia even under the Michigan Constitution, creating an apparent conflict which our Supreme Court has not yet resolved, see People v Dalessandro, 165 Mich App 569, 574-575; 419 NW2d 609 (1988), lv den 430 Mich 880 (1988), we find, little or no practical difference between the two tests. Both standards presume effective assistance of counsel, and both require defendant to overcome the presumption by showing deficient and unreasonable conduct by counsel and resultant prejudice. Nevertheless, re gardless of the test employed, defendant failed to carry his burden here.
Defendant first contends counsel was ineffective for failing to challenge the validity of the search warrant, arguing that there was sufficient evidence to suggest that the person who allegedly sold drugs to the police informant was nonexistent. However, the only evidence which defendant cites in support of his argument is that the person in question was not in the house when the search warrant was executed. Alone, that is not enough to question counsel’s decision not to challenge the warrant’s validity. Defendant offers no evidence that the police knew the seller was nonexistent. Further, counsel did seek to suppress the cocaine by challenging the validity of the search warrant’s execution. Thus, defendant has failed to establish ineffective assistance of counsel and resultant prejudice regarding the search warrant.
Defendant also wrongly contends that his trial attorney’s failure to move for severance constituted ineffective assistance where a codefendant’s confession tended to implicate him. The general rule is that a criminal defendant does not have a right to a separate trial. Joinder of defendants for trial is usually within the discretion of the court, but severance should be granted when the defenses of several defendants are antagonistic to each other. People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976), reh den 396 Mich 976 (1976). However, a confession is not "antagonistic” for the purposes of determining whether to sever a trial where, as here, the confession of a codefendant incriminates both the codefendant and defendant. People v Stanley Jackson, 158 Mich App 544, 556; 405 NW2d 192 (1987), lv den 428 Mich 917 (1987).
Further, defendant’s citation of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), which held that admission in a joint trial of a nontestifying codefendant’s confession violates the other defendant’s Sixth Amendment right of confrontation, is inapplicable. Here, the codefendant did testify that he did not make the alleged confession, and, thus, defendant had the opportunity to confront and cross-examine him.
Defendant next argues that the trial judge failed to sufficiently articulate findings of fact and conclusions of law to support his decision as required under MCR 2.517(A)(1). See People v Robert Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973). However, examination of the record of the trial court’s opinion reveals otherwise. In his findings, the trial judge stated that direct and complete control over 119 grams of cocaine in defendant’s bag satisfied the statutory requirement of possession. In addition, the various paraphernalia and slips suggesting continuing transactions also found in defendant’s bag led the trial judge to infer beyond a reasonable doubt that there was possession with intent to deliver. Further, the court noted that defendant’s presence in another person’s home at the time of his arrest inured against him on the issue of intent to deliver. In conclusion, the trial judge stated that the evidence as presented against both defendants was sufficient beyond a reasonable doubt to find guilt of possession with intent to deliver over 50 grams but less than 225 grams of powder containing cocaine.
Concerning his sentence, defendant raises a number of arguments, none of them persuasive.
Defendant argues that this Court should give retroactive effect to the recent amendment of MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), the statute under which he was sentenced, and remand for resentencing accordingly. The new version of the statute reduces the minimum possible term of imprisonment from ten years to five years. However, the general rule is that the sentence or punishment imposed is that prescribed by the statute in force at the time of the commission of the crime. Amendments to criminal statutes concerning sentences or punishment are not retroactive. People v Osteen, 46 Mich App 409, 413; 208 NW2d 198 (1973), lv den 390 Mich 760 (1973); People v Poole, 7 Mich App 237, 243; 151 NW2d 365 (1967).
Moreover, MCL 8.4a; MSA 2.214 provides unambiguously:
The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.
MCL 8.4a; MSA 2.214 applies to the amendment as well as the repeal of statutes. In People v Gravedoni, 172 Mich App 195, 197-198; 431 NW2d 221 (1988), our Court upheld a felony conviction following an arraignment which occurred before an amendment to the applicable statute became effective, which amendment would make the crime less than a felony. Therefore, since the Legislature did not expressly provide for the release or relinquishment of the amended portion of the statute at issue here, its failure to do so necessarily validates defendant’s sentence under the then-existing version of the statute.
Defendant’s next argument concerning his sentence is that he was denied due process of law, as guaranteed by the state and federal constitutions, when his presentence report recommended a sentence of twelve to twenty-four months, contrary to MCL 333.740l(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), which, at that time, required either life probation or ten to twenty years in prison. Defendant argues that, since it was legally impossible for the trial court to follow the presentence report, he was denied his right to a specific recommendation in his presentence report. We do not agree.
MCL 771.14(2)(d); MSA 28.1144(2)(d) requires that a presentence report make a specific recommendation for disposition. This requirement was literally fulfilled. The fact that the recommended sentence of one year in the Wayne County Jail, followed by one year in a halfway house, was not possible under the applicable criminal statute is of no moment. A presentence report recommending only incarceration complies with the statutory mandate of MCL 771.14; MSA 28.1144. People v Terry, 163 Mich App 515; 415 NW2d 657 (1987). Remand for resentencing is mandated where a presentence report fails to make any recommendation at all. People v Green, 123 Mich App 563, 568; 332 NW2d 610 (1983). However, here the presentence report did give a recommendation.
Further, defendant was in no way prejudiced. The presentence report complied with all other aspects of MCL 771.14; MSA 28.1144 and the trial judge was aware of the mistake, knew the applicable alternative sentences to impose, and sentenced defendant accordingly.
Defendant argues further that his sentence of ten to twenty years in prison, versus lifetime probation, should shock our judicial conscience for the reasons that the sentence was excessively disparate to his codefendant’s sentence of life probation, the sentence exceeds defendant’s life expectancy, and the trial judge failed to articulate on the record the criteria considered and the reasons for the sentence imposed. Defendant also contends that his sentence is unconstitutionally disproportionate to the crime, constituting cruel and unusual punishment. We disagree on all counts.
First, we do not find defendant’s sentence either shocking or cruel and unusual for the reason that it falls squarely within the permissible range allowed under MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii) as it existed then, and, for that matter, as it exists now as amended.
Second, the trial judge did, in fact, adequately articulate the reasons for defendant’s sentence and why it differed from that imposed on his codefendant. Sentences should be individualized and tailored to fit the offender. Identical sentences need not be imposed on codefendants. Wayne Co Prosecutor v Recorder’s Court Judge, 164 Mich App 740, 743; 417 NW2d 594 (1987); People v Bisogni, 132 Mich App 244, 245-246; 347 NW2d 739 (1984). Here, the trial judge gave weight to defendant’s age (forty-seven years old) and intelligence (high school graduate), as compared to his codefendant’s age (twenty years old) and intelligence (eighth grade education), noting that when "more is given to somebody, more should be expected of them.” These factors considered by the trial judge show that the two defendants’ circumstances were different and their sentences were not excessively disproportionate.
Third, with respect to defendant’s contention that his sentence exceeds his life expectancy due to his phlebitis (inflammation of a vein or veins), defendant has yet to offer any medical opinion evidence or request an evidentiary hearing and has thus waived the issue. People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973). Moreover, as noted by our Supreme Court recently in People v Moore, 432 Mich 311, 329; 439 NW2d 684 (1989), concerning indeterminate sentences less than life:
[W]e hold that a "term of years” must be an indeterminate sentence less than life. It must be something that is reasonably possible for a defendant actually to serve.
We decline, however, to adopt either a rigid cap on indeterminate sentences or a rule that a trial court must make a factual determination of a particular defendant’s actual life expectancy. Otherwise, the trial court would not only find itself evaluating a defendant’s actual state of health, but would find itself reviewing the life expectancies of demographic subgroups, family health histories, and behavioral risks of acquiring certain illnesses, such as cancer and heart disease.
Instead, we simply direct the trial court to fashion a sentence that a defendant in his mid-to late-thirties has a reasonable prospect of actually serving.
We believe defendant here has received a sentence he has a reasonable prospect of actually serving.
Finally, defendant contends that he was denied effective assistance of counsel on appeal because his original appellate counsel failed to argue issues regarding the amendment of MCL 333.7401; MSA 14.15(7401) and the presentence report recommendation and also abandoned defendant. However, it is clear that defendant was in no way prejudiced. A new attorney was appointed, two supplementary briefs were filed (one pro se and one by the appointed attorney), and oral argument was granted and heard. Moreover, as set forth previously, we find the two issues which form the basis of defendant’s ineffective assistance of appellate counsel claim to be unpersuasive.
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Doctoroff, P.J.
Kathleen Hagerty, a tenured teacher at Berkshire Middle School in the Birmingham School District, was discharged following a hearing before the Birmingham School District Board of Education. This decision was affirmed by the State Tenure Commission and the Ingham Circuit Court. She appeals as of right raising two issues which do not require reversal.
i
Prior to the commencement of the hearing before the board, the board appointed attorney Dennis Pollard as hearing officer and granted him the authority to rule on motions and evidentiary matters, subject to the board’s right to overrule any of his decisions. The board also expressly retained the exclusive authority to evaluate and judge the facts. The charging party, the Birmingham School District, was represented by attorney William G. Albertson, who is a member of the same law firm as Pollard.
Hagerty claims that the due process requirement of MCL 38.101; MSA 15.2001 was violated because the board’s hearing officer, Pollard, was from the same law firm as Albertson, the prosecuting counsel.
In Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975), our Supreme Court identified four situations where, without a showing of actual bias, the United States Supreme Court has disqualified a decision maker who:
(1) has a pecuniary interest in the outcome;
(2) "has been the target of personal abuse or criticism from the party before him”;
(3) is "enmeshed in [other] matters involving petitioner . . .”; or
(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker.
Hagerty claims Pollard possessed not only a constitutionally impermissible pecuniary interest in the outcome of the case, but was enmeshed in matters involving the case and was strongly identified with one of the parties. Hagerty argues that, given Pollard’s interest in the outcome, the proba bility of actual bias exceeded constitutional tolerance and did not necessitate a showing of actual bias. We disagree.
This issue has been considered several times by this Court. In Arnold v Crestwood Bd of Ed, 87 Mich App 625, 651-652; 277 NW2d 158 (1978), the plaintiffs charged that they were denied due process of law because counsel for the board both represented the board’s case and acted as an advisor to the board during the proceedings. This Court held that only if evidence of prejudice or bias clearly appears on the record will participation of counsel in the dual role constitute a violation of due process.
In Golembiowski v Madison Heights Civil Service Comm, 93 Mich App 137, 142; 286 NW2d 69 (1979), lv den 408 Mich 893 (1980), the plaintiff claimed that he was denied a fair trial because the attorney who prosecuted the case on behalf of the city was a member of the same law firm which included a partner who acted as legal adviser to the commission which heard the case. This Court concluded that, absent some indication of bias, the mere fact that two attorneys belonged to the same firm did not result in a constitutionally intolerable predicament.
In Niemi v Kearsley Bd of Ed, 103 Mich App 818, 821-822; 303 NW2d 905 (1981), the attorney who regularly served as the controlling school board’s adviser represented the charging party in disciplinary proceedings before the same board. The Court stated:
We recognize that an attorney’s dual role carries with it the potential for prejudice and find that the better practice is to appoint an independent attorney to represent the charging party at a dismissal hearing. We decline, however, to adopt a per se rule that would require reversal whenever an attorney performs both functions.
The Niemi Court found that the combination of investigative and judicial roles in an administrative hearing has been expressly upheld in federal and state courts where there has been no showing of actual bias. Id., p 822. The Niemi Court found no showing of prejudice at the board hearing and additionally observed that, because the plaintiff had received a de novo review before the State Tenure Commission, the plaintiffs rights were fully protected. Id., pp 823-824.
In Ferrario v Escanaba Bd of Ed, 426 Mich 353, 379-380; 395 NW2d 195 (1986), the Court held that a plaintiff does not have to show actual bias to show a violation of his due process rights, but the plaintiff must show a risk or probability of unfairness that is too high to be constitutionally tolerable.
Plymouth-Canton Community School Dist v State Tenure Comm, 166 Mich App 331, 338; 419 NW2d 783 (1988), involved the same hearing officer and charging party’s attorney as in the case at bar. The Court held that application of the Ferrario test imposes upon the teacher the burden of showing (1) actual bias on the part of hearing officer Pollard because of his relationship with the charging party’s attorney, or (2) a risk or probability of biased decision making that is so great as to be constitutionally intolerable. As in the instant case, the teacher had made no claim of actual bias. Furthermore, as in the instant case, neither the State Tenure Commission nor the trial court had based their decisions on actual bias. Therefore, the Plymouth-Canton Court held that the only inquiry was whether the risk or probability of bias was so great as to impermissibly taint the fairness of the proceedings. Citing Golembiowski and Niemi, the majority held that it again would decline to hold that the involvement of attorneys from the same firm in a single administrative proceeding, with one attorney acting in an advisory capacity and the other attorney acting in a representative capacity, per se constitutes a violation of due process. Id., p 339. The Court found that Pollard did not serve as a decision maker. The board retained the power to decide the case on the merits. There was no evidence to show that Pollard had a pecuniary interest in the outcome or was enmeshed in other matters involving the school district. Cramp-ton, supra.
However, Oppliger, J., dissented, stating:
Rudimentary due process contemplates a hearing before an impartial decision maker. It appears to me that it is repugnant to fairness and propriety that attorneys from the same law firm who are appointed by and paid by the same source, in this case the school board, represent both school board and the petitioner. I am therefore in favor of the adoption of a per se rule against situations in which the charging body and the factfinder are represented by attorneys who are from the same law firm. [Plymouth-Canton, pp 340-341.]
Judge Oppliger observed that the hearing officer, attorney Pollard, denied the teacher’s motion to voir dire Pollard, thus preventing the teacher from establishing actual bias or an intolerable risk of unfairness. This, Judge Oppliger concluded, required reversal because "it seems constitutionally intolerable to permit a hearing officer to deny a teacher’s request to voir dire the hearing officer when the hearing officer is employed by the same attorney firm that represents the school district.” Id., p 341.
In the case at bar, in obvious response to Judge Oppliger’s dissent in Plymouth-Canton, Pollard did not refuse Hagerty’s request to voir dire Pollard. On voir dire, Pollard stated that he had not discussed the case with attorney Albertson, the board or the charging parties and had no knowledge of the case other than what the charges stated. He assured Hagerty that he would base his decisions on the law, that she would have an opportunity to appeal any alleged errors of law, that the board and not Pollard had the factual resolution responsibility, and that the board retained the right to overrule Pollard’s decisions on points of law. Pollard denied Hagerty’s motion for recusation.
Following our review of the record, we conclude there was no evidence that Pollard benefited financially from Hagerty’s dismissal. Hagerty’s claim that a win for Albertson benefits the law firm as a whole, without more, is too speculative and removed to demonstrate pecuniary interest. Pollard is compensated for his service unrelated to the outcome of the case before the board. There was no evidence that Pollard was enmeshed in other matters involving the school district. Hagerty has failed to establish a due process violation. Further, any alleged procedural deficiencies were cured by the de novo review before the State Tenure Commission. Niemi, supra. Our review indicates that Pollard’s decisions were fair and unbiased. Thus, we affirm the circuit court’s affirmation of Hagerty’s discharge as a tenured teacher in the Birmingham School District.
This Court has so far declined to adopt a rule that would require reversal per se in situations such as this, even though we have stated that this practice carries with it the potential for prejudice. We have also opined that the "better practice” is to appoint an independent attorney to represent the charging party at a dismissal hearing. Niemi, supra. Now we more emphatically state that we agree with the dissenting opinion of Judge Oppliger in Plymouth-Canton, that it is "repugnant to fairness and propriety that attorneys from the same law firm who are appointed by and paid by the same source . . . represent both school board and the petitioner.” We reiterate that we find no evidence of actual bias or prejudice in this case and that Pollard conducted the hearing in a fair and judicious manner. We rest assured that no impropriety occurred and do not imply such belief. However, let the members of the bar be put on notice that in the future, should this issue be brought before the members of this panel, we will vote to adopt a per se rule of reversal. We are convinced that the appearance of impropriety and the potential for prejudice are so great as to warrant such a per se rule. In this time of heightened awareness of attorney propriety and frequent attacks on the integrity of the bar, it behooves us to conduct ourselves with the strictest behavioral restraints. We conclude that a per se rule in cases of this type will better address the concerns of the public and the members of our profession.
n
Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause. MCL 38.101; MSA 15.2001. Reasonable and just cause can be shown only by significant evidence proving that a teacher is unfit to teach. Because the essential function of a teacher is the imparting of knowledge and of learning ability, the focus of this evidence must be the effect of the teacher’s questioned activity on the students. Bee- bee v Haslett Public Schools, 66 Mich App 718; 239 NW2d 724 (1976), rev’d on other grounds 406 Mich 224; 278 NW2d 37 (1979); Benton Harbor Area Schools Bd of Ed v Wolff, 139 Mich App 148, 154; 361 NW2d 750 (1984), lv den 422 Mich 976 (1985). This has become known as the "adverse-effect doctrine.” Miller v Grand Haven Bd of Ed, 151 Mich App 412, 418-421; 390 NW2d 255 (1986), lv den 426 Mich 881 (1986).
Hagerty claims that the school board failed to demonstrate that her teaching methods and procedures had an adverse effect on the students. We disagree.
The power of this Court in reviewing a decision by the commission is limited. This Court determines from the record whether the proof received by the school board or the State Tenure Commission or both supports the findings at which the State Tenure Commission arrived. The standard of review is whether that decision is supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(l)(d); MSA 3.560(206)(l)(d); Nolte v Port Huron Area School Dist Bd of Ed, 152 Mich App 637, 646; 394 NW2d 54 (1986); Barcheski v Grand Rapids Public Schools Bd of Ed, 162 Mich App 388, 395; 412 NW2d 296 (1987), lv den 430 Mich 869 (1988).
Our review of the record discloses that the State Tenure Commission’s findings are supported by substantial, material and competent evidence, and we therefore affirm. From 1981 through 1984, Hagerty received unsatisfactory evaluations of her performance. The principal of her school and the school board received complaints from students and parents requesting that students be allowed to change classes. Her, supervisors made many personal observations of her classroom and submitted written evaluations and suggestions to her. She was apprised several times that the administration was concerned about her teaching ability and found it unsatisfactory, especially in the following areas: (1) focusing attention on the learner, his learning and his growth, (2) demonstrating competency in management and control in the classroom, and (3) relating positively and communicating effectively with students, parents, members of the community and other staff members. Hagerty rejected suggestions and offers of help and ignored or denied all negative observations of her difficulties. Upon review of the record, we find that Hagerty’s directions to students were unclear, her enthusiasm was low, student participation was limited and unencouraged and her students were unattentive and unmotivated. Many of her former students were having difficulty in the subject area in high school. Hagerty’s inability to communicate with and motivate her students adversely affected their educational process.
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] |
Per Curiam.
Through its own error, respondent, Michigan Department of Social Services, mistakenly overpaid claimant $1,756 in Aid to Families with Dependent Children benefits. Thereafter, a hearing referee concluded that the dss was entitled to recoup the overpayment pursuant to departmental policies promulgated under federal authority. See 42 USC 602(a)(22); 45 CFR 233.20(a)(13). This decision was predicated on a finding that claimant was then still receiving afdc benefits. However, by the time of claimant’s subsequent appeal in circuit court, claimant was no longer receiving such benefits. Based on the equities of the case, the circuit court set aside the referee’s decision. The dss now appeals as of right. We reverse.
A circuit court should affirm an administrative decision if it is supported by competent, material and substantial evidence and is not contrary to law. MCL 24.306; MSA 3.560(206); Craven v Dep’t of Social Services, 132 Mich App 673, 676; 347 NW2d 782 (1984). We review administrative decisions in the same manner as the circuit court. Felton v Dep’t of Social Services, 161 Mich App 690, 694; 411 NW2d 829 (1987); Reed v Hurley Medical Center, 153 Mich App 71, 75; 395 NW2d 12 (1986).
In the instant case, claimant was receiving afdc benefits at the time the hearing referee considered whether the dss was entitled to recoupment. Pursuant to federal regulations regarding the administration of the afdc program, the dss is not only authorized to recoup overpayments from current recipients by deducting incremental amounts from future benefits, but is specifically directed to do so as a condition of participating in the program. Pursuant to 45 CFR 233.20(a)(13)(A):
The State must take all reasonable steps necessary to promptly correct any overpayment.
(1) Any recovery of an overpayment to a current assistance unit, including a current assistance unit or recipient whose overpayment occurred during a prior period of eligibility, must be recovered through repayment (in part or in full) by the individual responsible for the overpayment or recovering the overpayment by reducing the amount of any aid payable to the assistance unit of which he or she is a member, or both.
Consequently, we find that the referee’s decision permitting the dss to recoup overpayments from the claimant, while she was a recipient, was supported by competent evidence and was consistent with law. Thus, the circuit court’s order setting aside the referee’s decision is reversed.
However, we write further to emphasize the limited effect of our holding in this case. Specifically, we note that while the dss is authorized under federal regulations to recoup overpayments tendered to current afdc recipients, the dss is not similarly authorized with respect to persons no longer receiving such benefits. In the latter circumstance, federal regulations merely direct that "recovery shall be made by appropriate action under State law.” 45 CFR 233.20(a)(13)(B). In the instant case, the dss has failed to refer to any state law which would permit recoupment from persons no longer receiving afdc benefits. Although the dss asserts that such action is authorized by policies contained in an internal dss administrative manual, the dss concedes that these policies are not "rules” promulgated under the Administrative Procedures Act, MCL 24.201. et seq.; MSA 3.560(101) et seq. We note that administrative policies not promulgated under the rule-making provisions of the apa are "without legal authority or effect under Michigan law.” Coalition for Human Rights v Dep’t of Social Services, 431 Mich 172, 190; 428 NW2d 335 (1988); see also Pharris v Secretary of State, 117 Mich App 202, 205; 323 NW2d 652 (1982) (policy manual not binding on persons not subject to agency’s jurisdiction). Although these policies may be followed when the dss is seeking to recoup from current recipients, because the dss is specifically authorized to effect such recoupment under federal law, see 45 CFR 233.20(a)(13)(A), these policies may not be utilized to recoup from former recipients because there is no similar authority, federal or state, permitting such use.
Thus, although we reverse the circuit court’s decision and reinstate the ruling of the dss referee, the application of that ruling is limited to that period during which claimant was a dss recipient. Although the dss could have properly recouped its overpayment from claimant when she was an afdc recipient, the dss has failed to establish that they were authorized to recoup that overpayment when claimant was no longer a recipient.
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Sawyer, J.
Defendant pled guilty to retail fraud in the first degree, MCL 750.356c(2); MSA 28.588(3)(2), and to being a third-felony offender, MCL 769.11; MSA 28.1083. He was thereafter sentenced to serve a term of IV2 to 4 years in prison. He now appeals and we affirm.
Defendant’s conviction arises out of the shoplifting of a sleeping bag valued at $35. Although such an offense would normally be retail fraud in the second degree, MCL 750.356d(l); MSA 28.588(4X1), a misdemeanor, due to the fact that defendant had a prior conviction for larceny in a building, MCL 750.360; MSA 28.592, his current offense was elevated to the felony of first-degree retail fraud. See MCL 750.356c(2); MSA 28.588(3)(2). Defendant’s sole issue on appeal is whether he can be convicted of both first-degree retail fraud and as a habitual offender.
The crime of retail fraud was established by the Legislature in 1988 PA 20. The provisions relating to first-degree retail fraud are codified in MCL 750.356c; MSA 28.588(3) and are as follows:
(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first degree, a felony punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00, or both:
(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is more than $100.00.
(b) While a store is open to the public, steals property of the store that is offered for sale at a price of more than $100.00.
(c) With intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money, or the value of the property, obtained or attempted to be obtained is more than $100.00.
(2) A person who violates section 356d [second-degree retail fraud] and has 1 or more prior convictions under this section, section 218 [false pretenses], 356 [larceny over $100], 356d, or 360 [larceny from a building], or a local ordinance substantially corresponding to this section or section 218, 356, 356d, or 360 is guilty of retail fraud in the first degree.
(3) A person who commits the crime of retail fraud in the first degree shall not be prosecuted under the felony provision of section 356, or under section 218 or 360.
Second-degree retail fraud is set forth in MCL 750.356d; MSA 28.588(4):
(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the second degree, a misdemeanor punishable by imprisonment for not more than 93 days, or a fine of not more than $100.00, or both:
(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale.
(b) While a store is open to the public, steals property of the store that is offered for sale.
(c) With intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store.
(2) A person who commits the crime of retail fraud in the second degree shall not be prosecuted under the felony provisions of section 356, or under section 218 or 360.
In the case at bar, because the value of the property was less than $100, defendant would normally have been guilty of second-degree retail fraud. However, due to defendant’s prior conviction for larceny in a building, MCL 750.360; MSA 28.592, his current offense constitutes first-degree retail fraud, a felony.
The question for our consideration, whether a conviction for first-degree retail fraud under subsection 2 of the statute can be enhanced under the habitual-offender statutes, is one of first impression. We are aware, however, that similar questions challenging the applicability of the habitual-offender statute have been addressed in other contexts.
In People v Edmonds, 93 Mich App 129; 285 NW2d 802 (1979), this Court concluded that a defendant convicted for a controlled-substance offense could not be sentenced under both the general habitual-offender statute, MCL 769.10 et seq.; MSA 28.1082 et seq., and the specific enhancement provisions of the Public Health Code related to controlled-substance violations. The Edmonds decision was followed by this Court in People v Elmore, 94 Mich App 304; 288 NW2d 416 (1979). The Elmore Court also noted that the Legislature saw fit to amend the general habitual-offender statute to specifically provide that a habitual controlled-substance offender would be punished under the provisions of the Public Health Code and not the general habitual-offender statute. Elmore, supra at 306, n 1.
The Edmonds decision was, however, subsequently distinguished by this Court in People v Franklin, 102 Mich App 591; 302 NW2d 246 (1980). In Franklin, the defendant was convicted of her first controlled-substance offense, though she had prior nondrug-related felony convictions. Accordingly, she was convicted both for the controlled-substance offense and as a seventh-felony offender under the general habitual-offender statute. On appeal, she argued, citing Edmonds, supra, that she could be subject only to the habitual controlled-substance offender provisions of the Public Health Code and, since she had no prior drug-related offenses, she could not be sentenced as a habitual offender. This Court disagreed, concluding that, since the habitual controlled-substance abuse provisions of the Public Health Code were inapplicable, the defendant could be charged under the general habitual-offender statute on the basis of her prior nondrug-related felony offenses.
Turning to the felony-firearm statute, this Court, in People v Honeycutt, 163 Mich App 757; 415 NW2d 12 (1987), also held that a conviction for possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), was not subject to enhancement under the habitual-offender statutes. The Court based its conclusion upon several factors.
First, the Honeycutt Court noted that the provisions of the felony-firearm statute established mandatory determinate sentences to be served consecutively to any sentence for an underlying offense and that the Legislature had not granted any discretion to the trial court in determining the length of sentence to be imposed. The Court further noted that allowing a felony-firearm conviction to be enhanced under the habitual-offender statute would disturb the mandatory sentencing scheme of the felony-firearm statute. In reaching that conclusion, the Court noted that, under the provisions of the habitual-offender statute, the trial court could impose an indeterminate, rather than determinate, sentence and the trial court would have the discretion to impose a minimum sentence of less than two years, thus frustrating the legislative purpose behind the felony-firearm statute.
Second, the Honeycutt Court noted that both the felony-firearm and the habitual-offender statutes relate to how an offender should be treated for the underlying offense. That is, the felony-firearm statute provides for an additional mandatory prison term for possessing a firearm during the commission of a crime and the habitual-offender statute addresses the recidivism problem.
Third, the Honeycutt Court noted that the felony-firearm statute possessed its own habitual-offender provisions, with the offender receiving two, five, and ten years in prison for his first, second, and third felony-firearm convictions, respectively. The Court further noted that a second or third felony-firearm offender would also, of necessity, be a second- or third-felony offender and would always be subject to having the five- or ten-year sentence under the felony-firearm statute enhanced beyond the provisions of the statute. This, the Honeycutt Court concluded, was not the intent of the Legislature.
Turning to the case at bar, we believe that the habitual-offender statutes can be utilized to enhance the sentence of a defendant who is convicted of first-degree retail fraud under subsection 2 of the statute. In reaching this conclusion, we believe that a number of important distinctions exist between the retail-fraud statute and the controlled-substance statutes and the felony-firearm statute. Under the controlled-substance statute, the enhancement section clearly serves only to enhance a sentence and is based exclusively upon prior drug-related offenses. Under the retail-fraud statute, first-degree retail fraud is a substantive offense and the "recidivist” element contained in subsection 2 is but one alternate way of committing first-degree retail fraud. Additionally, although an offender can come under the recidivist provisions of first-degree retail fraud based upon a prior conviction for retail fraud, a first-degree retail fraud charge can also be based upon a prior conviction under certain other statutes, namely, false pretenses over $100, larceny over $100, and larceny in a building.
In comparing the retail-fraud statute with the felony-firearm statute, a number of important distinctions exist. While the felony-firearm statute is, as discussed in Honeycutt, supra, a statute designed to address the problem of criminals committing underlying offenses while possessing a firearm, first-degree retail fraud is a crime which does not require the commission of an underlying crime in order to exist. Second, unlike the felony-firearm statute, the sentencing provisions of the retail-fraud statute do not mandate any particular term of imprisonment and do not require a determinate sentence. Thus, the sentencing scheme under the retail-fraud statute would not be disturbed by applying the habitual-offender statute. Addition ally, violation of the felony-firearm statute is always a felony, with the sentence imposed for subsequent offenses escalating. Under the recidivist provision of the retail-fraud statute, however, a person who commits second-degree retail fraud, and does not have one of the enumerated prior convictions, commits a misdemeanor. The presence, however, of the prior conviction or convictions raises the offense from the level of misdemeanor to that of felony. There are not, however, any gradations at the felony level, unlike the felony-firearm statute.
This last point should not be lightly tossed aside. Unlike the felony-firearm statute, or even the controlled-substance statutes, where application of both the enhancement provisions contained within those respective statutes as well as the general habitual-offender statute would produce ever escalating and conflicting results, the general habitual-offender statute dovetails harmoniously with the retail-fraud statute. That is, the internal provisions of the retail-fraud statute can raise an offense from a misdemeanor to a felony, but do not enhance the sentence once a defendant is at the level of a felony offense. At this point, the general habitual-offender statute can be applied where the offender has prior felony convictions.
Also, a distinguishing feature between the retail-fraud statute and the felony-firearm statute is that, while under the felony-firearm statute a subsequent offender must, of necessity, also be a prior felony offender, the same is not true of the retail-fraud offender. That is, a person convicted under the recidivist provision of the felony-firearm statute, thus receiving a sentence of five or ten years, must, of necessity, have committed prior felonies or else he never would have been convicted of his first felony-firearm offense. However, a person convicted under the recidivist provision of the first-degree retail-fraud statute does not necessarily have to have previously committed a felony. Rather, his prior convictions could all have been for second-degree retail fraud, a misdemeanor. Therefore, there is a rational distinction to allow application of the habitual-offender statute to a defendant convicted of first-degree retail fraud who does have a prior felony conviction while the offender under first-degree retail fraud whose only prior conviction was for a misdemeanor would not be subject to the habitual-offender statute.
We do note that an interesting question arises in light of Franklin, supra. Specifically, whether a prior conviction for one of the enumerated offenses under subsection 2 of the first-degree retail-fraud statute which is used to raise the second-degree retail-fraud offense to first-degree retail fraud can also be used as a prior felony under the habitual-offender statute. The implication of Franklin, supra, is that it could not be. That is, since under Franklin only nondrug-related offenses could be used to support a habitual-offender charge in a drug case, oiily "non-retail fraud” offenses could be used to justify a habitual-offender charge where the underlying conviction is for first-degree retail fraud under subsection 2 of the statute.
However, we need not address that issue in the case at bar since defendant’s habitual-offender conviction was based upon a driving under the influence of liquor (third offense) conviction and a prison escape conviction, neither of which is an enumerated offense under subsection 2 of the first-degree retail-fraud statute. A different conclusion might be reached if a prior conviction was called upon to do "double duty” to establish a basis both for the first-degree retail fraud conviction and the defendant’s status as a habitual offender. We leave that issue, however, for determination in the appropriate case.
For the above reasons, we conclude that a person convicted under the provisions of MCL 750.356c(2); MSA 28.588(3X2) is also subject to sentence enhancement under the provisions of the habitual-oifender statutes, MCL 769.10 et seq.; MSA 28.1082 et seq.
Affirmed.
At the time of the Edmonds decision, those habitual controlled-substance offense provisions were contained in MCL 335.348; MSA 18.1070(48). Subsequently, the statutes were amended and the habitual controlled-substance offender provisions were codified under MCL 333.7413; MSA 14.15(7413). In any event, both statutes are very similar.
MCL 750.218; MSA 28.415.
MCL 750.356; MSA 28.588.
MCL 750.360; MSA 28.592. | [
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Per Curiam.
Appellant appeals by leave granted from an order of the trial court denying appellant’s motion for summary disposition.
Appellant is the parent corporation of Clifton Engineering Company, plaintiff’s employer. In the course of his employment for Clifton, Roger Verhaar was injured when he fell from a crane bucket. The crane was owned by appellant Rowen & Blair, but maintained by Clifton.
Rowen & Blair and Clifton Engineering are insured, for workers’ compensation purposes, under a single policy, pursuant to which Roger Verhaar received disability benefits. The two corporations have interlocking boards of directors and officers, and the federal income tax return filed by Rowen & Blair reports earnings from Clifton Engineering.
The two corporations also report earnings to stockholders on a consolidated financial statement, and have identical personnel policies. Accounting and payroll is principally performed from the offices of Rowen & Blair. The upper echelons of management of both corporations are also insured under the same policies.
In seeking summary disposition, appellant relied on the exclusive remedy provision of the Workers’ Disability Compensation Act. The trial court ruled that, as a matter of law, applying the economic realities test, Rowen & Blair was not Roger Verhaar’s "employer” within the meaning of the exclusive remedy provision.
On appeal appellant claims that the exclusive remedy provision of the Michigan Workers’ Disability Compensation Act prohibits the plaintiffs, as a matter of law, from bringing a products liability claim against the defendant Rowen & Blair Electric Company. We agree and reverse.
Since the decision in Wells v Firestone Tire & Rubber Co, 421 Mich 641; 364 NW2d 670 (1984), there is only one published opinion in which this Court did not hold that the exclusive remedy provision of the wdca required the "reverse piercing” of the corporate veil. That case is Wodogaza v H & R Terminals, Inc, 161 Mich App 746; 411 NW2d 848 (1987), where it was the subsidiary corporation seeking protection against a suit by an employee of the parent company.
In all the other cases, where an employee of a subsidiary corporation was suing the parent, this Court held that suit was barred by the exclusive remedy provision. Applying the economic realities test, four factors are considered relevant to analyzing the nature of such a relationship: (1) control of the worker’s duties; (2) payment of wages; (3) hiring, firing, and responsibility for the maintenance of discipline; and (4) performance of the duties as an integral part of the employer’s busi ness toward the accomplishment of a common goal.
None of the cases decided to date involve conglomerates, where various subsidiary corporations might be engaged in such unrelated commercial activity that, other than seeking to earn profit, there is no discernible "common goal” of which any particular subsidiary could form an "integral part.” Here, however, Clifton Engineering and Rowen & Blair seem to be integrally related: the one performing field work, the other supplying equipment, etc.
In most of the cases, a salient factor has been the use of a combined workers’ compensation insurance policy by both parent and subsidiary. Wells, supra, p 651; Nardi v American Motors Corp, 156 Mich App 275, 279; 401 NW2d 348 (1986); White v Central Transport, Inc, 150 Mich App 128, 131; 388 NW2d 274 (1986).
Likewise, the type of combined bookkeeping and accounting which is a feature of the case at bar, together with income tax treatment that regards the corporations as a single entity, has been a powerful and persuasive factor in supporting the conclusion that the two corporations should be treated as one for the purposes of the exclusive remedy provision. White, supra, p 131; Wells, supra, p 649; Parkkonen v Cleveland Cliffs Iron Co, 153 Mich App 204, 208; 395 NW2d 289 (1986); Nardi, supra, p 279. Another feature of those cases applying the exclusive remedy provision is the source of personnel policies. The other cases cited were somewhat stronger than the case at bar, in that hiring and firing was generally accomplished directly by the parent corporation, but in Wells and the case at bar there was nothing more than unity of policy.
Finally, the assertion that Rowen & Blair should be treated as a separate juridical entity, a different corporate persona for exclusive remedy provision purposes, because the claim arises out of an allegedly defective product, is without merit. As the Supreme Court held in Wells:
The great majority of American jurisdictions have held that an employer who manufactured the injury-causing device cannot be held liable to his employee under a products liability theory. [421 Mich 653.]
The Court thus rejected the claim that the "dual capacity” doctrine should be applied where the gravamen of the claim is a products liability theory.
Consequently, the trial court erred in denying appellant’s motion for summary disposition; examination of all indicia previously relied on in reverse piercing of the corporate veil reveals that they are extant in the case at bar.
Reversed and remanded to the trial court for entry of summary disposition in favor of appellant on its motion. | [
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Per Curiam.
Defendants appeal from a judgment of the circuit court vesting fee title in property to the City of Boyne City, adjudicating the property free of any easement for a railroad right of way and permanently enjoining defendants from trespassing on the property. We affirm.
The trial court succinctly set forth the facts of this case in its opinion and we adopt that statement as our own for purposes of this appeal. The trial court stated the facts as follows:
There are two parcels of land owned by the City involving the issue of the defendants [sic] interest in the railroad property. These two parcels are depicted on plaintiff’s Exhibit No. 1. The plaintiff’s title to Parcel No. 1 begins with a 1941 deed to the City of Boyne City from the State of Michigan of tax reverted lands.
The City’s title to Parcel No. 2 as depicted on plaintiff’s Exhibit No. 1 commences with deeds from Vera Posch, dated 1959 and 1973.
The defendants claim title to the railroad right of way across Parcel No. 1 through a deed from William H. White as reflected in the chain of title. The defendants claim interest in the railroad right of way over Parcel No. 2 from a 1984 [sic—1894?] deed from Ernest Bachman as reflected in the chain of title. The defendants acquired their interest in both Parcels No. 1 and No. 2 by virtue of a 1985 deed from the estate of Dennis Caughey. The defendants also received other interest in railroad property from the Caughey estate.
The railroad in question goes back to the lumbering era at the turn of the century. It basically ran from the City of Boyne City to Boyne Falls, where it connected with an interstate railroad. That interstate railroad has been completely abandoned. The railroad operating out of Boyne City was formerly a freight railroad and operated successfully until approximately the closing of the tannery operation in Boyne City. In 1976, a group was formed and an attempt was made to save the railroad as a tourist attraction. That effort lasted until approximately 1979 or 1980 when it was disbanded for economic reasons. The group that operated the railroad as a tourist attraction sold the assets and dissolved the corporation. All of its rolling stock was sold. The tracks and the ties were liquidated for scrap and the revenue thus generated was used to pay creditors. The shareholders received about one-half of their investment. The largest shareholder was Dennis Caughey, now deceased, who received the right of way in lieu of payment for his shares in the defunct corporation.
It is undisputed that Mr. Caughey conveyed the easterly end of the right of way from Dam Road to Boyne Falls to the Boyne Mountain Resort, an abutting landowner. This portion constituted approximately one-half of the six miles of roadbed between Boyne City and Boyne Falls. So far as this portion of the railroad is concerned, it is also undisputed that the conveyance severed the only continuity of the right of way between Boyne City and Boyne Falls. This renders it impossible to reestablish the former railroad. Following Mr. Caughey’s death, his estate, by his personal representative, Arthur Rouse, quit claimed the remaining westerly portion of the railroad to the defendants in 1985. It is a portion of this remaining westerly portion that runs through Parcels No. 1 and No. 2, as depicted on plaintiff’s Exhibit No. 1.
In 1985, the City purchased any interest that the defendant [sic] had in the railroad right of way by quit claim deed regarding property owned by the City and proposed for the development of an industrial park. It was necessary for the City to immediately acquire clear title so as to not lose a corporate prospect that contemplated the construction of a factory in the industrial park. This conveyance effectively cut off any access to the disputed right of way by the defendant [sic] from the southeast. The defendant [sic] placed several cedar posts at the end of the disputed right of way, adjacent to the City’s airport runway. Those cedar posts triggered this litigation as it was claimed that they created a hazard to airport traffic. The posts were removed by the City and the defendants agreed not to reinstall the posts pending the outcome of this litigation.
The defendant, Elmer F. Crain, testified that he planned to start a miniature railroad on the por tion of the right of way remaining that has not been sold to others. While it is not clear just how much right of way the defendants acquired, the testimony does establish that they paid Twelve Thousand Dollars ($12,000) for it. The defendants have sold off portions of the property, including the sale of the above mentioned portion to the City for a consideration of Ten Thousand Dollars ($10,000). The defendant testified that it was his intention to create a miniature railroad that would cater to tourists.
Some of the right of way property conveyed to the defendants by the Caughey estate conveyed fee title as a result of the original source of title. Other portions of the conveyance conveyed a mere easement as previously determined by this Court on a motion for partial summary disposition regarding Parcels No. 1 and No. 2.
Defendants first argue that the trial court erred in determining that the deed which granted the railroad right of way located on Parcel No. 2 conveyed only an easement for use of the right of way to operate a railroad rather than fee title to the right of way. We note that, prior to trial, the trial court granted partial summary disposition in favor of plaintiff, concluding that the deed granting the right of way to the railroad with respect to Parcel No. 2 created a mere easement rather than a grant of fee title. Thereafter, the court concluded that the right of way had been abandoned and, therefore, the easement had been extinguished.
The question whether a deed for a railroad right of way conveys a fee interest or merely an easement was discussed by the Supreme Court in Quinn v Pere Marquette R Co, 256 Mich 143, 150-151; 239 NW 376 (1931):
"Right of way” has two meanings in railroad parlance: the strip of land upon which the track is laid, and the legal right to use such strip. In the latter sense it may mean an easement. But in this State and others the character of the title taken to the strip depends upon the language of the conveyance.
Where the grant is not of the land but is merely of the use or of the right of way, or, in some cases, of the land specifically for a right of way, it is held to convey an easement only. Hickox v Railway Co, 78 Mich 615 [44 NW 143 (1889)]; Mahar v Railway Co, 174 Mich 138 [140 NW 535 (1913)]; Putnam v Railway Co, 174 Mich 246 [140 NW 554 (1913)]; Matthews v Railway Co, 110 Mich 170 (64 Am St Rep 336) [67 NW 1111 (1896)]; Jones v Van Bochove, 103 Mich 98 [61 NW 342 (1894)]; Blakely v Railway Co, 46 Neb 272 (64 NW 972) [1895]; Louisville & Nashville R Co v Covington, 65 Ky 526 [1866]; East Alabama R Co v Doe, 114 US 340 (5 Sup Ct 869) [29 L Ed 136 (1885)]; Lockwood v Railroad Co, 43 CCA 202 (103 Fed 243) [CA 4, 1900].
Where the land itself is conveyed, although for railroad purposes only, without specific designation of a right of way, the conveyance is in fee and not of an easement. The distinction was pointed out by Mr. Justice Sharpe in Epworth Assembly v Railway, 236 Mich 565, 573 [211 NW 99 (1926)]:
"On the face of these deeds it would appear that a determinable fee had been created. In neither deed is the land conveyed for a right of way, although an inference would doubtless be drawn that it was, from the description used. The first deed provides that the land shall 'be used for railroad purposes only,’ and the second that if the land shall 'cease to be used for railroad purposes’ for 'one year or longer’ it shall revert to the grantor. Had not these provisions been inserted, it seems clear that an unqualified title in fee would have passed to the grantees.”
Thus, we must look to the 1894 deed which conveyed the right of way over Parcel No. 2. That document was entitled "Deed of Right of Way” and granted "a strip of land for a right op way” and provided in pertinent part as follows:
Said strip to include all land within lines drawn twenty-five feet from, on either side of, and parallel to the center line of said railroad, as now or hereafter to be located and constructed, on and across said above described premises, said center line being located and shown on map and survey thereof filed in the office of the Register of Deeds of said County.
For the said party of the second part and its successors, lessees and assigns, and their servants and agents to build, construct and maintain a Railroad in and over said strip of land, and at all times to pass and repass by themselves, their servants, agents, and employees, with their engines, cars, horses, cattle, carts, wagons and other vehicles, and transport freight and passengers, and do all other things properly connected with or incident to the location, building, maintaining and running the said road, and to use the earth and other materials within said strip of land for that purpose; To Have and to Hold the said easements and privileges to the said party of the second part and its successors, lessees and assigns, forever. [Emphasis added.]
Inasmuch as the 1894 deed granted a right of way and specifically made reference to the "said easements” we conclude that the grant was one of an easement rather than title in fee. Accordingly, we conclude that the trial court did not err in determining that the deed conveyed only an easement rather than fee title.
Defendants next argue that MCL 211.67b; MSA 7.112(2) should be given retroactive effect, thus preserving the right of way easement across Parcel No. 1. We disagree.
The trial court determined that the 1905 deed granting the right of way across Parcel No. 1 conveyed only an easement and that that easement was extinguished when the property reverted to the State of Michigan due to delinquent taxes. MCL 211.67b; MSA 7.112(2), added by 1964 PA 86, provides that any land sold for taxes shall remain subject to any visible or recorded easement, right of way or permit in favor of the United States, the state or any political subdivision or agency, any public authority, drainage district, or granted or dedicated for public use or for the use by a public utility. Prior to the enactment of that statute in 1964, the rule was that, for any land taken by the state because of the nonpayment of taxes, any subsequent conveyance of title in fee to that land by the state was free of any encumbrances, thus extinguishing any easements which existed at the time the state took title to the property. Moceri v St Clair Shores, 366 Mich 380, 384-385; 115 NW2d 103 (1962).
MCL 211.67b; MSA 7.112(2) was apparently passed shortly after the Moceri decision as a remedial measure to preserve the existing easements in favor of the government or public utilities which existed when the land was sold for taxes. Plaintiff urges that we give that section retroactive effect since it was remedial in nature.
Generally, statutes are applied prospectively unless the Legislature has expressly or impliedly indicated its intent to give retroactive effect or unless the statutes are remedial or procedural in nature. Spencer v Clark Twp, 142 Mich App 63, 67; 368 NW2d 897 (1985). That is, statutes which operate in furtherance of an already existing remedy and which neither create new rights nor destroy existing rights are applied retrospectively unless a contrary legislative intent is manifested. Id.; see also Gormley v General Motors Corp, 125 Mich App 781, 789; 336 NW2d 873 (1983). Further more, statutes affecting property rights are presumed not to operate retrospectively. Mary v Lewis, 399 Mich 401, 414; 249 NW2d 102 (1976).
Although it would appear that the Legislature enacted MCL 211.67b; MSA 7.112(2) for the purpose of changing the rule of law to ensure that certain easements remained valid even after a tax sale, we do not believe that the statute should be given retroactive effect. To apply the statute retroactively would create or take away vested rights, and it certainly involves property interests. Indeed, were we to apply the statute retroactively, a great many property interests in this state would be disturbed as people who took title following tax sales did so believing that prior easements had been extinguished and would now have those easements resurrected. Accordingly, we believe it appropriate to apply the rule in Mary, supra, and presume that the Legislature intended this statute to have prospective effect only.
Finally, defendants argue that the trial court erred in finding that the sale of the railroad trackage indicated an intent to abandon the right of way located on Parcel No. 2. We disagree. The conclusion of abandonment was based upon more than the mere removal of trackage from the railroad right of way and included the fact that the right of way on Parcel No. 1 had been extinguished by the tax deed and that the right of way to the southeast of Parcel No. 2 had been sold. Thus, the trial court found that defendants had no means of access to the right of way on Parcel No. 2 and, therefore, the right of way on Parcel No. 2 was extinguished by reason that it was impossible to use the right of way. See Andersen v Schmidt, 16 Mich App 633, 635; 168 NW2d 437 (1969). Given that we have affirmed the trial court’s conclusion that the right of way over Parcel No. 1 was extinguished by the tax deed, we cannot conclude that the trial court erred in finding that the easement was extinguished by impossibility of use since defendants have no access to the right of way on Parcel No. 2.
For the reasons stated above, we believe that the trial court correctly ruled in favor of plaintiff.
Affirmed. Plaintiff may tax costs. | [
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Per Curiam.
On February 26, 1985, decedent was fatally injured when a vehicle he was using to unload a stationary trailer slipped between the trailer and the loading dock. In her suit for negligence, plaintiff alleges that the trailer’s movement was caused by a defective brake system. Plaintiff appeals as of right from the circuit court order denying her leave to amend her complaint and granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
First, plaintiff claims the trial court erred in denying her motion to amend her complaint to allege intentional nuisance and intentional tort. The trial court denied plaintiff’s motion because of undue delay and futility of filing the amended complaint.
Leave to amend is freely given in the absence of any undue delay, bad faith or dilatory motive on the part of the amending party. Totsky v Henry Ford Hosp, 169 Mich App 286, 290; 425 NW2d 531 (1988). However, a lower court can refuse to permit an amendment when the amendment may be futile. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973); Dukesherer Farms, Inc v Director of the Dep’t of Agriculture, 172 Mich App 524, 530; 432 NW2d 721 (1988).
An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face. Formall, Inc v Community National Bank of Pontiac, 166 Mich App 772, 783; 421 NW2d 289 (1988). This Court will not reverse a lower court’s denial of a motion to amend absent an abuse of discretion. Id. We find that the lower court did not err in denying plaintiff’s request to amend her complaint because amendment would have been futile.
In her proposed amendment, plaintiff alleges that defendant intentionally allowed the braking system on the trailer to become defective, provided improperly equipped safety features on its equipment, and supplied inadequate wheel chocking materials for use in securing trailers parked in its loading dock. In addition, plaintiff claims that defendant improperly positioned the trailer for unloading and failed to adequately train its workers with respect to the reporting of any mechanical difficulties experienced with equipment.
Our Supreme Court in Beauchamp v Dow Chemical Co, 427 Mich 1, 25; 398 NW2d 882 (1986), defined an intentional tort claim as requiring that the employer (1) intended the act that caused the injury and (2) knew that the injury was substantially certain to occur. Merely alleging an intentional tort is insufficient to avoid the exclusive remedy provision of the Workers’ Disability Compensation Act. Burgess v Holloway Construction Co, 123 Mich App 505, 508; 332 NW2d 584 (1983), lv den 417 Mich 1100.14 (1983).
To establish an intentional nuisance, a plaintiff must show that there is a condition which is a nuisance and that the defendant intended to create that nuisance. Guilbault v Dep’t of Mental Health, 160 Mich App 781, 788; 408 NW2d 558 (1987), lv den 429 Mich 896 (1988). An intentional nuisance requires proof that a party creating or continuing the nuisance knew or must have known that harm to plaintiff was substantially certain to follow. Eyde Brothers Development Co v Roscommon Co Bd of Road Comm’rs, 161 Mich App 654; 411 NW2d 814 (1987), lv den 429 Mich 899 (1988).
We find that the essence of plaintiffs complaint is that defendant failed to provide safe working conditions. A claim that an employee’s injury was caused by an employer’s failure to provide safe working conditions is tantamount to a claim that the employee was injured by the employer’s negligence. Martin v Raker, 173 Mich App 23, 26; 433 NW2d 377 (1988). Such an injury is covered by the exclusive remedy provision of the Workers’ Disability Compensation Act. Beauchamp, supra, p 27. We find that plaintiffs amended complaint fails to allege facts sufficient to show that defendant acted intentionally. Plaintiffs attempt to redefine her negligence action into one of intentional tort and intentional nuisance must fail.
Since we find that plaintiffs amended complaint would have been futile and conclude that the lower court did not err in denying plaintiff’s motion to amend, we decline to address the issue of whether the trial court properly denied plaintiffs motion on the basis of undue delay.
Second, plaintiff claims the trial court erred in granting summary disposition in favor of defendant U.S. Truck and its employee, defendant Rutcoskey. Plaintiff contends that D & S Leasing, the company which loaned decedent’s services to U.S. Truck, was decedent’s sole employer. The trial court found that defendant U.S. Truck and defendant Rutcoskey were decedent’s employers and therefore any action against them was barred by the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131).
In order to determine the existence of an employer-employee relationship, we apply the "economic realities” test. Nichol v Billot, 406 Mich 284, 293-294; 279 NW2d 761 (1979); White v Central Transport, Inc, 150 Mich App 128, 129; 388 NW2d 274 (1986), Iv den 425 Mich 864 (1986). The "economic realities” test is based on four factors: (1) control of the worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976); White, supra, p 129.
We find that the trial court did not err in finding that defendant Rutcoskey and defendant U.S. Truck were plaintiffs decedent’s employers. First, decedent operated under the direction and supervision of an employee of U.S. Truck. Second, although D&S Leasing directly paid decedent, U.S. Truck ultimately reimbursed D&S Leasing for all of decedent’s pay. Third, U.S. Truck had the right to fire decedent. Finally, the labor broker relationship established between D&S Leasing and U.S. Truck established a common objective in a business effort. We find that these factors establish an employer-employee relationship and, therefore, any action against defendant U.S. Truck and defendant Rutcoskey is barred by the Workers’ Disability Compensation Act’s exclusive remedy provision.
Further, we are unpersuaded by plaintiffs contentions that the relationship between decedent and defendant U.S. Truck is foreclosed by an agreement between defendant U.S. Truck and D&S Leasing which labels the relationship as an independent contract. The existence of a written agreement labeling a relationship as an "independent contact” is not controlling. White, supra, p 129.
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Hood, J.
The prosecutor appeals as of right the trial court’s dismissal of charges against defendant and its grant of defendant’s motion to suppress. Defendant was charged with two counts of gross indecency between males, MCL 750.338; MSA 28.570, arising out of alleged sexual activities occurring at the mens’ public restroom on US Highway 127 in Alaiedon Township, Ingham County, Michigan, commonly known as the Holt rest area. The two major issues on appeal are whether the gross indecency statute is unconstitutionally vague as applied and whether there was a reasonable expectation of privacy in the common area of the public restroom so that videotapes resulting from a surveillance of that area without a warrant could not be used to support a search warrant. We reverse.
The trial court found the challenged statute unconstitutionally vague because it did not provide defendant with fair notice of the conduct proscribed, either as written by the Legislature or as interpreted by the courts. We disagree.
A majority of our Supreme Court has already determined that the term "act of gross indecency” standing alone fails to give adequate notice of the conduct proscribed by the statute. People v Howell, 396 Mich 16, 21-22; 238 NW2d 148 (1976). However, when a statute vague on its face has been construed by the court so that a person is forewarned of the conduct subject to prosecution, the claim of vagueness will not require reversal. Id.; People v Hicks, 149 Mich App 737, 741; 386 NW2d 657 (1986). It is not necessary that the case law have defined or set forth every specific variation of an act which is prohibited. The question is whether defendant was forewarned that his conduct was prohibited and that he was subject to prosecution under the gross indecency statute. Howell, supra, p 22; People v Kalchik, 160 Mich App 40, 46; 407 NW2d 627 (1987).
Looking to our case law, we are met by a conflict as to how the term gross indecency is to be defined. Having reviewed the cases, we are convinced that the better view is that set forth by the decision in People v Howell, supra. For the reasons set forth in People v Emmerich, 175 Mich App 283; 437 NW2d 30 (1989), we adopt the construction of the term "act of gross indecency” as prohibiting "oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.” Howell, supra, p 24.
Applying the relevant part of this definition, the question in this case becomes whether an act of mutual masturbation is any "ultimate sexual act committed in public.” There is no indication in Howell that "any ultimate sexual act” is limited to intercourse or to an act involving penetration. The act here was mutual masturbation of exposed penises by two males. We do not believe that defendant can seriously maintain that this was not an "ultimate sex act” or that he was not on notice that performance of this act in public was prohibited and left him subject to prosecution under the statute proscribing gross indecency between male persons. Compare Emmerich, supra.
Even if we were to subscribe to the alternative definition of gross indecency as set forth in People v Dexter, 6 Mich App 247, 253; 148 NW2d 915 (1967) — "conduct that is of such character that the common sense of society regards it as indecent and improper” — our decision would be the same.
Our decision in this case was clear given the nature of the act in question and the guidance provided by the Howell standard. However, in reviewing the case law and the variety of situations which other courts have faced, we are greatly troubled by the lack of direction and guidance that the Legislature has provided in gross indecency statutes. As stated in Emmerich, the time has come to stop perpetuating nineteenth century avoidance of an indelicate subject in order to spare Victorian-era sensibilities. The time has come to lay to rest the attitude that the "gross indecency” of the subject of the crime of gross indecency forbids a more precise definition of the conduct proscribed. Emmerich, supra, p 288. The Legislature took the statute proscribing "carnal knowledge” and redefined the prohibited acts as criminal sexual conduct so as to deal with the reality of the actions for which our society would hold an individual criminally liable. The same should be done for the gross indecency státutes.
We are convinced that to follow the Dexter standard would leave the statute unconstitutionally vague because it leaves the trier of fact free to decide, without any legally fixed standard, both what the prohibited criminal act is and whether it has been committed. Howell, supra, pp 23-24; Emmerich, supra, p 288. However, we recognize the problem faced by other panels when faced with a situation that instinctively would appear to be an act that would not be tolerated in public and therefore should come under the statute, but that would not come under the Howell test. See People v Trammell, 171 Mich App 128; 429 NW2d 810 (1988). We are confident that the mutual masturbation alleged here comes under the Howell test. We believe it is accepted that fellatio is also prohibited. See Howell; People v Myers, 161 Mich App 215, 220; 409 NW2d 788 (1987). We accept that merely touching the clothed groin area or genitals would not be. Emmerich, supra; Myers, supra. Having established these signposts, this Court will continue to determine whether individual cases come within the construction of the statute. However, it should not be the role of our citizens, the police, the prosecutors, or the trial and appellate courts to try to catalog or characterize each and every sexually related activity that men and women may engage in and then try to place them on this spectrum of prohibited acts. See, e.g., Myers, supra. It is time that the Legislature acted in this area.
We also find that the trial court erred in finding that defendant had a reasonable expectation of privacy in the common area of the restroom. At the time of the alleged activities in this case, the police had secured a warrant to install cameras in the ceiling above the stalls in the restroom. Previously, the police had maintained surveillance of the common area of the facility. Videotapes of alleged acts of gross indecency occurring in the common area were then submitted to support the warrant. It is these videotapes that defendant challenged.
The videotapes of activities that took place in the common area of the restroom did not violate the constitutional right to privacy guaranteed by the federal and state constitutions. As noted in People v Heydenberk, 171 Mich App 494, 497-498; 430 NW2d 760 (1988), it is not sufficient in itself that defendant have an actual or subjective expectation of privacy. There must also be a determination that defendant’s expectation is one society is prepared to recognize as reasonable. See People v Smith, 420 Mich 1, 26-28; 360 NW2d 841 (1984). Viewing the totality of the circumstances here, even if we assume that defendant had a subjective expectation of privacy, we cannot conclude that society would be willing to recognize this expectation as reasonable. This was a public bathroom in a public rest area off a public highway. Any member of the public could feel free to enter that restroom. While the structure itself preserves a certain amount of privacy to those using the facilities, it can be presumed that any member of the public would expect that in the common area of the facility their privacy is not absolute and that any activity in that area is open to public examination.
The court below gave great significance to the fact that anyone entering the facility had to open two separate doors before entering the common area. The theory is that anyone seeking to preserve his privacy would be forewarned upon hearing the first door open and that any private activity could be stopped before the second door was opened and his privacy was invaded. This theory might support defendant’s subjective expectation of privacy. It may even be relevant to argue to the finder of fact that the particular construction of the facility made this area not public for purposes of the gross indecency definition. However, we cannot seriously accept as a matter of law that the construction of the facility somehow turned a public bathroom into a constitutionally protected private area. The common area was readily accessible to anyone needing to use the facility. The public’s expectation that they were entering a public facility certainly was not extinguished because they had to open two doors rather than one. To the extent that the videotapes were made of activities in the common area of the restroom, we cannot find that they invaded a constitutionally protected expectation of privacy. The trial court’s ruling on the motion to suppress was clearly erroneous and is reversed. Kalchik, supra, p 47.
As applied to this case, our holding means that the police did not need a warrant to monitor or videotape the common area. That evidence could therefore be used to obtain the search warrant, which included a request to install two cameras in the ceiling with a view of at least a part of the stalls, as well as cameras in the common area. While the details of the act set forth in the prosecutor’s brief indicate that at least some of the evidence must have come from the ceiling cameras, the issue as presented to this Court addresses only the tape made of the common area. We therefore decline to address the propriety of the ceiling cameras, other than to note that such a warrant can be valid given the appropriate circumstances and restrictions. See Kalchik, supra; People v Dezek, 107 Mich App 78; 308 NW2d 652 (1981).
Since the original videotapes could be used to support the need for the warrant, we need not address defendant’s other issues concerning its validity, although we note that the evidence of sperm in the facility and the statement of the maintenance foreman would not in themselves have been sufficient to support the warrant. People v Sherbine, 421 Mich 502, 507; 364 NW2d 658 (1984); People v Queenan, 158 Mich App 38, 53; 404 NW2d 693 (1987).
Reversed.
When this statute was reviewed by the Supreme Court, only three of the justices concurred as to section n of the opinion which sets forth a construction of the term "act of gross indecency.” However, all the participating justices apparently agreed with section i of the decision where it was decided that the term standing on its own was unconstitutionally vague. Howell, supra, pp 21-22.
In People v Gunnett, 158 Mich App 420; 404 NW2d 627 (1987), this Court considered whether the statute prohibiting gross indecency with a person of the opposite sex could apply to a husband and wife. The alleged act was an act of fellatio occurring in the visiting room of a state prison. At that time I indicated that the appropriate test was the "common sense of society” test set forth in People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967). Gunnett, supra, p 424, n 1. Gunnett did not directly concern the Howell-Dexter conflict. Having considered the conflict in the context of this case, I have reconsidered my position and determined that the Howell test is the appropriate standard.
Panels of this Court have disagreed on whether the touching or stroking of an exposed penis is an act of gross indecency People v Holland, 49 Mich App 76; 211 NW2d 224 (1973) (charge dismissed); People v Trammell, 171 Mich App 128; 429 NW2d 810 (1988) (conviction affirmed). Trammell, supra, p 134. However, Trammell follows the alternative definition of gross indecency found in People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967). It is not clear that the touching in either Holland or Trammell would be prohibited under the Howell standard. The different results in Holland an Trammell underline the need discussed elsewhere in this opinion for a more precise definition of the conduct proscribed.
Heydenberk also concerned the Holt rest area involved in this case, although there is no mention in the case of the double-door construction argued by defendant here. | [
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Per Curiam.
Defendant appeals as of right from the property settlement provisions of a Mason Circuit Court judgment of divorce. We affirm.
The parties began living together in 1968 and were married on June 15, 1983. They were separated on February 25, 1986. At the time of the trial, plaintiff was sixty-nine years old and defendant was seventy-two years old.
Defendant’s only claim on appeal is that the lower court erred in considering the parties’ period of unmarried cohabitation when dividing the parties’ property. The court found that the parties had a long-term relationship based on evidence that, since 1968, the parties held themselves out as husband and wife, and plaintiff essentially ran defendant’s motel. Defendant ran his used car business. The lower court divided the parties’ property according to what the court considered to be the equitable interest due each party with regard to particular items.
The division of marital property is committed to the sound discretion of the trial court. Spooner v Spooner, 175 Mich App 169, 172; 437 NW2d 346 (1989). This Court reviews property settlements de novo on the record. However, we will not reverse or modify the property division unless we are convinced that we would have reached another result if we had occupied the trial court’s position. Perrin v Perrin, 169 Mich App 18, 22; 425 NW2d 494 (1988).
The trial court has great discretion in the adjustment of property rights upon divorce. The objective in arriving at a property settlement is to reach a fair and equitable division in light of all the circumstances. There are no set mathematical formulas governing a division of property. Vance v Vance, 159 Mich App 381, 385-386; 406 NW2d 497 (1987), lv den 429 Mich 870 (1987); Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986). The division does not have to be equal, but it must be equitable. Christofferson v Christofferson, 363 Mich 421, 426; 109 NW2d 848 (1961). To reach an equitable division of property, the trial court should consider the duration of the marriage, each party’s contribution to the marital estate, each party’s station in life and earning ability, each party’s needs, fault or past misconduct, and other equitable circumstances. Spooner, supra, p 172; Vance, supra, p 386; Parrish v Parrish, 138 Mich App 546, 558; 361 NW2d 366 (1984).
Defendant argues that he and plaintiff had a short-term marriage and that this Court should divide their property so as to place them at approximately the same positions which they occupied prior to their marriage. We do not favor this approach to a property settlement. See Bone, supra, p 837. We are unpersuaded by defendant’s argument because it fails to take into account all of the factors which are relevant to the equitable division of the parties’ property. Defendant also argues that if we affirm the lower court’s decision, then we will condone unmarried cohabitation, reinstitute common-law marriage, and undermine the integrity of the. institution of marriage. We find no merit in this argument. Defendant’s reli anee on cases involving unmarried parties is misplaced. Here, the parties were married.
After considering all of the circumstances which are relevant to the equitable division of the parties’ property, we find that the trial court did not abuse its discretion. We are not convinced that we would have reached a different result if we had occupied the trial court’s position.
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Per Curiam.
Defendant appeals as of right from an April 30, 1988, order granting summary disposition pursuant to MCR 2.116(0(10) in favor of plaintiff in this no-fault work loss benefits case.
The facts are not disputed. While in the course of his employment with Ypsilanti Township, plaintiff was injured in an automobile accident, sustaining injuries which prevented him from returning to his job. Following the accident, plaintiff received workers’ compensation benefits. In addition, plaintiff also received the difference between the amount of his workers’ compensation benefits and his base rate of pay pursuant to a collective bargaining agreement between plaintiff’s union and Ypsilanti Township.
Plaintiff filed the instant action against defendant, the no-fault insurer for Ypsilanti Township, for recovery of personal injury protection work loss benefits under the Michigan no-fault act. Defendant denied liability for work loss benefits, claiming plaintiff’s receipt of wage continuation benefits prevented him from suffering work loss or, alternatively, that the wage continuation benefits were subject to setoff as either a governmental benefit, pursuant to MCL 500.3109(1); MSA 24.13109(1), or as a permissive setoff, pursuant to the coordination of benefits provision of MCL 500.3109a; MSA 24.13109(1). Each of the parties filed separate motions for summary disposition pursuant to MCR 2.116(0(10). Following a hearing on the motions, the trial court issued a written opinion finding in favor of plaintiff.
Defendant now appeals as of right, first claiming plaintiff’s receipt of wage continuation benefits pursuant to a collective bargaining agreement precluded plaintiff from suffering an actual work loss under the no-fault act. MCL 500.3107; MSA 24.13107.
However, as another panel of this Court held in Brashear v DAIIE, 144 Mich App 667; 375 NW2d 785 (1985), a "work loss” as utilized in § 3107(b) includes situations in which an injured employee loses time from work he would have performed had he not been injured even where his employer continues his wages under a formal wage continuation plan or as a gratuity. Brashear, p 671. In the instant case, plaintiff’s collective bargaining agreement provided in part:
Any employee who has completed his probationary period and has been placed on the seniority list as a full-time regular employee, who suffers an injury compensable under the Workmen’s Compensation Act after the first week’s compensation, shall be paid the difference between his or her base rate of pay and payment received under the provisions of the Act provided the employee provides the employer with a doctor’s certification every 45 days of his continued disability. This time shall not be deducted from his accumulated sick leave bank.
As we believe this provision constitutes a formal wage continuation plan, the trial court did not err in finding plaintiff suffered a work loss.
Defendant next contends plaintiff’s wage continuation benefits constitute governmental benefits subject to the mandatory setoff provision of MCL 500.3109; MSA 24.13109. We disagree.
The "governmental benefits” setoff provision of MCL 500.3109(1); MSA 24.13109(1) provides as follows:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
The purpose of this provision is to eliminate duplicative recovery of benefits and to contain insurance costs. Moore v Auto Club Ins Ass’n, 173 Mich App 308; 433 NW2d 355 (1988). The Michigan Supreme Court in Jarosz v DAIIE, 418 Mich 565, 577; 345 NW2d 563 (1984), set forth the test for determining whether a state or federal benefit may be deducted under § 3109(1):
We conclude that the correct test is: state or federal benefits "provided or required to be provided” must be deducted from no-fault benefits under § 3109(1) if they:
1) Serve the same purpose as the no-fault benefits, and
2) Are provided or are required to be provided as a result of the same accident.
Thus, it is under this provision that a no-fault insurer may use workers’ compensátion benefits as a setoff for pip benefits otherwise payable. See Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980).
Here, defendant contends because plaintiff received the remainder of his wages pursuant to a collective bargaining agreement with a township and MCL 41.2; MSA 5.2 authorizes townships to make all contracts necessary and convenient for the exercise of their corporate powers, the collec tive bargaining wage continuation benefits constitute a benefit provided by state law within the meaning of § 3109(1).
Section 3109(1) is clearly limited to benefits "provided under the laws of any state or the federal government.” The additional benefits paid in the instant case were not paid pursuant to any state or federal law as required by § 3109, but instead were paid pursuant to a collective bargaining agreement with a local township. Thus, the express language of the statute refutes the applicability of a setoff under the instant circumstances.
In Krygel v Detroit, 135 Mich App 187; 353 NW2d 116 (1984), the plaintiff was injured in an automobile accident while in the course of his employment as a Detroit police officer. Pursuant to a collective bargaining agreement between plaintiff’s union and the City of Detroit, plaintiff elected to receive City of Detroit charter benefits in lieu of workers’ compensation benefits. A panel of this Court affirmed a lower court ruling permitting the no-fault insurer to use the charter benefits as a setoff for pip benefits otherwise payable. In so ruling, the panel noted the Workers’ Disability Compensation Act, MCL 418.161(l)(a); MSA 17.237(161)(l)(a), expressly provided that police and fire department employees working for municipalities with charter provisions proscribing like benefits may elect to take workers’ compensation or charter benefits, but not both. Accordingly, the Krygel panel reasoned as this provision entitled police and fire employees to workers’ compensation or charter benefits, receipt of either is a benefit "required to be provided under state law.” Krygel, p 191. The instant case is distinguishable in two respects. First, unlike in Krygel, here there is no statutory authority providing for the receipt by plaintiff of additional wages pursuant to a collec tive bargaining agreement. Secondly, the charter benefits received in Krygel were received in lieu of workers’ compensation benefits, whereas here, the wage continuation benefits were received in addition to workers’ compensation benefits.
Thus, as the remainder of plaintiffs wages were paid pursuant to a collective bargaining agreement, were not required pursuant to any state or federal law, or even any local ordinance, and were not received in lieu of workers’ compensation benefits, we do not believe the trial court erred in ruling them inappropriate for setoff under § 3109.
Defendant last claims plaintiffs wage continuation benefits constitute "other health and accident coverage” within the meaning of MCL 500.3109a; MSA 24.13109(1). We disagree.
MCL 500.3109a; MSA 24.13109(1) authorizes a no-fault insurance carrier to offer a policy with a coordination-of-benefits clause:
An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.
In line with this statutory authorization, the instant insurance policy contained a Coordination of Personal Injury Protection endorsement (CA 22 21) which contained the following provision:
This insurance does not apply to the extent that any amounts are paid or payable for work loss to or on behalf of such named insured or relative under the provisions of any other insurance, service, benefit or reimbursement plan providing similar direct benefits, without regard to fault, for bodily injury sustained as a result of the operation, maintenance or use, including the loading or unloading, of a motor vehicle.
The purpose of § 3109a is to reduce the cost of no-fault insurance by allowing insurers to offer policies that coordinate benefits with other similar coverages in return for charging a statutorily mandated reduced premium. Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46; 429 NW2d 637 (1988). The statutory provision does not permit any and all exclusions, but, rather, limits the permitted exclusions to health and accident coverage on the insured. Orr v DAIIE, 90 Mich App 687; 282 NW2d 177 (1979). Thus, the question here to be determined is whether additional wages received pursuant to a collective bargaining agreement represent "other health and accident coverage” within the meaning of § 3109a.
In LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981), our Supreme Court construed the language "other health and accident coverage” in § 3109a in determining whether Medicare benefits could be coordinated under this section. The Court noted that, although the rest of the no-fault act referred to "benefits,” § 3109a spoke of health and accident "coverage.” Following Orr, supra, the Court reasoned that, because the word coverage was a word of precise meaning in the insurance industry, it was intended to refer to protection afforded by an insurance policy. Thus, the Court found the Legislature’s enactment of § 3109a, which was narrowly limited to "coverage,” referred to protection afforded by an insurance policy, or the sum of the risks assumed by a policy of insurance. LeBlanc, p 204. The Court then stated as follows:
We are also of the view that the Legislature’s enactment of § 3109a, which is narrowly limited to "coverage” and which is not expressly confined to private forms of such "coverage,” evinces an intent to provide unique treatment to health and accident insurance, as opposed to other perhaps equally duplicative "benefits.” [Id.]
Accordingly, the LeBlanc Court concluded Medicare benefits were "other health and accident coverage” which qualified for § 3109a’s permissive setoff.
In Orr, supra, cited in LeBlanc, the plaintiff’s insurance policy contained a coordinated benefits clause which provided, in pertinent part, as follows:
In consideration of the reduced premium for personal protection insurance, . . . sums paid or payable to the named insured . . . shall be reduced by any amount paid or payable under any valid and collectable . . . employer paid sick pay program. [90 Mich App 688-689.]
In line with this provision, the defendant insurance company refused to pay personal protection insurance benefits to plaintiff until he had exhausted his accrued sick leave. A panel of this Court, although noting the sick leave provisions were clearly encompassed within the contractual language coordinating work-loss benefits in the policy of insurance, ruled the Legislature did not intend for an employer-paid sick pay program to be included within the term "coverage” and, accordingly, found the exclusionary language in the no-fault policy inapplicable to plaintiff’s sick leave. In so ruling, the panel adopted the narrow definition of the word "coverage,” later adopted by LeBlanc, which limits § 3109a deductibles and exclusions to "insurance coverage” upon the insured.
Although this Court, since. LeBlanc, has expanded the scope of coverages included within the meaning of "other health and accident coverage” subject to § 3109a coordination of benefits, the cases so doing have generally been limited to benefits corresponding to typical health insurance plans. Thus, the following coverages have been held to fall within "other health and accident coverage”: benefits provided by health maintenance organizations, United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268; 345 NW2d 683 (1983), and benefits received pursuant to an employer’s self-insurance health plan, Auto-Owners Ins Co v Lacks Industries, 156 Mich App 837; 402 NW2d 102 (1986). Additionally, in Lewis v Transamerica Ins Corp of America, 160 Mich App 413; 408 NW2d 458 (1987), a panel of this Court ruled medical benefits received by a beneficiary under a Teamsters Union welfare plan were also subject to coordination under § 3109a, reasoning the beneficiary’s entitlement to such medical benefits corresponded to the typical health insurance plan generally provided as a benefit of employment.
It is also helpful when construing provisions of the Michigan no-fault insurance act to look to the Uniform Motor Vehicle Accident Reparations Act (umvara). The umvara is one of the model acts which was utilized as source material in the drafting of the no-fault act. Citizens Ins Co of America v Tuttle, 411 Mich 536; 309 NW2d 174 (1981). Thus, where a provision of the no-fault act is virtually identical to a provision of the umvara, the umvara will be looked to for guidance in construing a provision of the no-fault act. See MacDonald v State Farm Mutual Ins Co, 419 Mich 146; 350 NW2d 233 (1984). However, where there is an absence of a comparable provision in the Michigan act, it is presumed the Legislature considered but rejected the proposed language in the uniform act. See Michigan Mutual Ins Co v Carson City Texaco, Inc, 421 Mich 144; 365 NW2d 89 (1984). Here, § 3109a’s counterpart in the uniform act provides in part as follows:
(b) [B]asic reparation insurers may offer the following additional exclusions . . .
(2) [Exclusions, in calculation of net loss, of any of those amounts and kinds of loss otherwise compensated by benefits or advantages a person receives or is unconditionally entitled to receive from any other specified source, if the other source has been approved specifically or as to type of source by the [commissioner] of insurance by rule or order adopted upon a determination by the [commissioner] (i) that the other source or type of source is reliable and that approval of it is consonant with the purposes of this Act, and (ii) if the other source is a contract of insurance, that it provides benefits for accidental injuries generally and in amounts as least as great for other injuries as for injuries resulting from motor vehicle accidents. [14 ULA Civil Procedural and Remedial Laws, UMVARA, § 14(b)(2), pp 82-83.]
In discussing this section, the official comments to § 14(b)(2) state:
The cost reductions may be significant, however, in the case of an insurer offering to sell basic reparation policies to the employees of a large employer, who have defined, generous wage-continuation and accident and health benefits under a common employer-furnished or trade union plan. [Id., p 85.]
Thus, it is clear from the comments that, under the umvara, wage continuation benefits pursuant to a union agreement were intended to be coordinated with no-fault benefits otherwise payable. Instead of adopting the broader language of the uniform act, however, the Michigan act was drafted much more narrowly, and limited coordination to "other health and accident coverage.” It appears, therefore, that in enacting the Michigan act the Legislature did not intend for no-fault benefits to be coordinated with a broad array of other benefits which may perhaps be equally duplicative. The Michigan Supreme Court’s ruling in LeBlanc, supra, which construed the term "coverage” to mean protection afforded by an insurance policy, is consistent with this construction.
We therefore conclude the Legislature did not intend that § 3109a mandate coordination of benefits as received by plaintiff in the instant case. Although such a conclusion may ofttimes result in a plaintiff’s receipt of duplicative work loss type benefits, such an interpretation is supported by prior case law as well as the Legislature’s decision to reject the broad language contained in the umvara which would have clearly brought such benefits within the intent of the provision.
We therefore find no error in the trial court’s grant of summary disposition in favor of plaintiff.
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Wahls, P.J.
Respondent, Michigan Liquor Control Commission, appeals from a May 16, 1988, order of the Genesee Circuit Court vacating a November 17, 1987, order of the commission assessing $110 in fines and costs against petitioner, Town & Country Lanes, Inc., for having furnished alcoholic liquor to a minor, MCL 436.22(3); MSA 18.993(3), and having allowed a person under twenty-one years of age to consume or possess alcoholic liquor for consumption on petitioner’s premises, 1980 AACS, R 436.1009(1). The commission, in its November 17, 1987, order, specifically adopted the findings of fact and conclusions of law set forth in a March 30, 1987, decision of a commissioner of the Michigan Liquor Control Commission. We reverse the May 16, 1988, order of the circuit court and reinstate the November 17, 1987, order of the commission.
The record reveals that petitioner operates a bowling alley in Flint and is authorized to serve alcoholic beverages to its customers under a Class C liquor license. The bowling alley, which has at least forty-three lanes, is situated next to a bar. The bar is separated from the bowling alley concourse by two doors and a partition whose upper half is glass. Customers may purchase alcoholic drinks either at the bar or from servers who take orders in the bowling alley. Customers are permitted to consume their drinks in the bar and in the bowling alley.
On Friday, November 21, 1986, the bowling alley was very busy. At about 10:30 p.m., there was one waitress on duty serving customers in the bowling alley concourse, a bartender working behind the bar, two employees at the main desk serving patrons of the bowling alley, and a roving security guard. At that time, Sheri Lynn Davis, born on October 16, 1967, was bowling with three friends who were each over twenty-one years old. Jennifer Hare, an investigator for the commission, observed, for approximately ten to fifteen minutes, each of the four bowlers in the Davis party drinking beer from separate glasses. Hare confronted the four bowlers and informed the manager of the establishment that Davis, a minor, was observed drinking beer on the premises. According to Hare, Davis said that one of her companions, Randy Tinsman, had purchased the pitcher of beer from which the party had been drinking. Tinsman acknowledged that he had purchased one of the two pitchers of beer which he and others in the party had drunk that evening, although he could not recall whether he had purchased it in the bar and brought it into the bowling alley or whether the waitress on duty had served the beer to the party in the bowling alley. The waitress testified that she had not served any alcoholic beverages to anyone in the group and that she was not aware that an underage person in the bowling alley was consuming alcohol.
In his March 30, 1987, decision, the commissioner concluded that petitioner had violated §22(3) of the Michigan Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., and Rule 436.1009(1) of the commission. That statute and rule provide:
A retail licensee shall not directly, individually, or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a minor except as otherwise provided in this act, nor directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a person who is visibly intoxicated. [MCL 436.22(3); MSA 18.993(3).]
A licensee shall not allow a person who is under 21 years of age to consume alcoholic liquor or to possess alcoholic liquor for personal consumption on the licensed premises. [1980 AACS, R 436.1009(1).]
The commission or any commissioner is authorized to suspend or revoke a license for the violation of these provisions or to impose a penalty for such a violation under § 20(1) of the Michigan Liquor Control Act. That statute provides, in pertinent part:
The commission, and any commissioner or duly authorized agent of the commission designated by the chairperson of the commission, upon due notice and proper hearing, may suspend or revoke any license upon a violation of this act or any of the rules promulgated by the commission under this act. The commission, and any commissioner or duly authorized agent of the commission designated by the chairperson of the commission, may assess a penalty of not more than $300.00 for each violation of this act or rules promulgated under this act, or not more than $1,000.00 for each violation of section 22(3), in addition to or in lieu of revocation or suspension of the license. [MCL 436.20(1); MSA 18.991(1)]
In the present case, petitioner was assessed $150 for each of its two violations and "$10 for witness fees involved in connection with the hearing.” However, the commission, characterizing petitioner’s record as "exemplary” because it had been licensed since 1962 and had never before incurred a violation under the Michigan Liquor Control Act or any rule promulgated pursuant to it, waived $200 of the penalty imposed in this case.
The circuit court reversed the order of the commission declaring petitioner in violation of § 22(3) and Rule 9(1), holding that a violation of the statute could not occur "where the sale of alcohol was not made directly to the minor child or a disclosed agent of the minor,” and that a violation of the rule could not occur "where the licensee had no knowledge that one of its patrons was allowing a minor to consume alcohol” on the licensee’s property. Moreover, the circuit court held that Rule 9(1) is unconstitutionally vague "because it does not provide the licensee with notice of what actions are prescribed [sic], and because it confers on the commission unstructured, unlimited and arbitrary discretion to determine whether an offense has been committed.”
Our review of the commission’s decision, as was the circuit court’s review, is limited in scope. On appeal, it must be determined, in essence, whether the commission’s decision is authorized by law and is supported by competent, material and substantial evidence. See MCL 24.306; MSA 3.560(206); Const 1963, art 6, §28; Kelly v Liquor Control Comm, 131 Mich App 600; 345 NW2d 697 (1983); Kassab v Acho, 150 Mich App 104, 109; 388 NW2d 263 (1986), lv den 426 Mich 862 (1986); Odette v Liquor Control Comm, 171 Mich App 137, 141; 429 NW2d 814 (1988).
On appeal, the commission argues that the circuit court erred as a matter of law in reversing the determination that petitioner violated §22(3) of the Michigan Liquor Control Act, contending that the circuit court’s conclusion that a licensee cannot violate that statute unless it knowingly and directly sells alcohol to a minor is supported neither by the plain language of the statute nor by the applicable case law. We agree.
The language of §22(3) itself prohibits the furnishing of alcoholic liquor to minors. Long ago, the Supreme Court, in a criminal prosecution for furnishing alcoholic liquor to a minor, broadly construed the term "furnish” to include the indirect transfer of liquor to a minor as long as the liquor belonged to the party charged and was under its control. In People v Neumann, 85 Mich 98, 102-103; 48 NW 290 (1891), the Supreme Court stated:
If the liquor, belonging to the person and under his control, is by his consent or connivance, permitted to be taken and drank [sic] by the minor, whether it is passed to him direct [sic] or through the hands of another is immaterial; the liquor in either case is furnished to such minor, within the meaning of our statute. . . .
It must be presumed that he had control over his own place of business. If Lozo had taken the bottle of beer out of doors, or away from the premises of respondent, and there treated the minor, the case would have been different; or had respondent forbidden the giving of the beer to Brown in his saloon, or said to Brown, "You can be furnished with no beer upon my premises,” and did all that a prudent man could to prevent the drinking of the beer by the minor, and sold it to Lozo with no intent that it should thereby be furnished or given to the minor, he would not have been guilty of any violation of the law, although Brown might have drank [sic] it after Lozo purchased it. [Emphasis in original.]
See also People v Lumley, 189 Mich 613; 155 NW 486 (1915); Bambino v Dunn, 166 Mich App 723, 727-729; 420 NW2d 866 (1988), lv den 431 Mich 903 (1988). If the term "furnish” is broadly construed for purposes of criminal liability, we see no reason not to similarly construe it for purposes of a noncriminal penalty or fine. The commissioner in this case clearly found that there were four glasses on the table at which the party of four bowlers was seated and that nineteen-year-old Sheri Lynn Davis was drinking beer from one of those glasses. Petitioner supplied both the beer and the glasses. Accordingly, petitioner "furnished” alcohol to Davis.
Moreover, while such furnishing of alcohol by petitioner to Davis may not have been accomplished with the knowledge of her age, such knowledge was not necessary to subject petitioner to liability under § 22(3). Unlike § 33 of the Michigan Liquor Control Act, which is a penal provision and which prohibits a person from, among other things, knowingly furnishing alcoholic liquor to a minor, see Longstreth v Gensel, 423 Mich 675, 692; 377 NW2d 804 (1985), § 22(3) is not a penal statute and includes no language indicating that a licensee must have knowingly violated its provisions before being subject to a penalty, see People v Damm, 183 Mich 554; 149 NW 1002 (1914); People v Jaboro, 76 Mich App 8; 258 NW2d 60 (1977).
The commission also argues on appeal that the circuit court erred in reversing the determination that petitioner violated Rule 9(1), contending that the circuit court’s conclusion that a licensee cannot violate the rule unless it has knowledge that one of its patrons allowed a minor to consume alcohol on the licensee’s property is supported neither by the plain language of the rule nor by the applicable case law. We agree.
A licensee is presumed to be in control of its licensed premises. Neumann, supra, p 103. Davis, a minor, was drinking beer from her own glass in plain view while inside petitioner’s bowling alley. Obviously, petitioner knew that it was prohibited from serving alcohol to minors. In this case, it could have prevented violating that prohibition simply by asking Davis for proof of her age. By failing to exercise reasonable diligence in ascertaining the age of Davis, petitioner "allow[ed] a person who is under 21 years of age to consume alcoholic liquor ... on the licensed premises,” as prohibited by Rule 9(1). The word "allow” is defined in The American Heritage Dictionary of the English Language as "to let do or happen; permit.” The only reason Davis was able to drink beer in the bowling alley was because petitioner failed to ask her for proof of her age and to stop her from imbibing. This is precisely the type of behavior which Rule 9(1) is intended to prohibit.
Finally, the commission argues on appeal that the circuit court erred in reversing the determination that petitioner violated Rule 9(1), contending that the circuit court’s conclusion that the rule is unconstitutionally vague is erroneous. We agree.
Administrative rules adopted pursuant to statutory authority have the force and eifect of law. Mehrer v Dep’t of Social Services, 24 Mich App 453, 459; 180 NW2d 345 (1970). In People v Howell, 396 Mich 16, 20-21; 238 NW2d 148 (1976), the Supreme Court stated:
A statute may be challenged for vagueness on three grounds:
1. It does not provide fair notice of the conduct proscribed.
2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
3. Its coverage is overbroad and impinges on First Amendment freedoms.
[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.
The circuit court in this case, without disclosing in any significant way its reasoning, concluded that "the Liquor Control Commission Rule 436.1009(1) is unconstitutional because it does not provide the licensee with notice of what actions are prescribed [sic], and because it confers on the commission unstructured, unlimited and arbitrary discretion to determine whether an offense has been committed.”
The rule at issue prohibits a licensee from allowing a person who is under twenty-one years of age to consume alcoholic liquor, or to possess such liquor for personal consumption, while on licensed premises. This rule does not involve First Amendment freedoms. Thus, the rule’s constitutionality must be determined in light of the facts in the case, Howell, supra, p 21, and not in light of hypothetical situations of innocent conduct which could be chargeable, see People v Gunnett, 158 Mich App 420, 426-427; 404 NW2d 627 (1987).
We agree with the commission that Rule 9(1), when examined in light of the facts in this case, is not unconstitutionally vague. It clearly provides fair notice to a licensee not to allow a person who is under twenty-one years of age to consume alcoholic liquor while on the licensed premises. Since Sheri Lynn Davis was on petitioner’s licensed premises when she consumed beer, and since petitioner is presumed to be in control of its licensed premises, Neumann, supra, p 103, it follows that petitioner allowed Davis to consume alcoholic liquor while on the licensed premises. Moreover, although, under other circumstances, it might be more plausibly argued that the rule confers unstructured and unlimited discretion to determine whether an offense has been committed, in this case no such unstructured or unlimited discretion was involved. The investigator for the commission, Jennifer Hare, testified that she, for approximately ten to fifteen minutes, watched Davis, in plain view, consume beer from her own glass while inside petitioner’s bowling alley. Although the rule leaves some uncertainty concerning what action a licensee must perform to prevent underage drinking, it is certain that a licensee violates the rule when, as in this case, the underage drinking results from the licensee’s own failure to inquire about the age of an underage patron who was openly consuming alcohol on the licensed property.
The order of the circuit court is reversed and the order of the commission is reinstated.
We note that the argument in petitioner’s appellate brief that the Legislature’s deletion of the words "or indirectly” at the beginning of §22(3) evidences a legislative intent to preclude liability for the indirect transfer of liquor to a minor by a licensee was neither addressed nor decided by the circuit court and therefore was not preserved for review on appeal. Stapleton v Wayndotte, 177 Mich App 339; 441 NW2d 90 (1989). Prior to an amendment to the statute by 1986 PA 176, §22(3) read: "A retail licensee shall not directly or indirectly . . . furnish . . . alcoholic liquor to a minor ; ...” In any event, the Legislature is presumed to know the construction given to the term "furnish” by the Supreme Court, Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 684; 423 NW2d 311 (1988), and thus could not have intended to limit that construction while failing to modify, change or alter the term itself. | [
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Per Curiam.
In Docket No. 100686, appellant, Comerica Bank, appeals as of right from the probate court’s denial of its request for fiduciary fees. We reverse and remand for further proceedings. In Docket No. 106687, appellant appeals as of right from the probate court’s order granting appellee the City of Adrian’s request to remove appellant as decedent’s trustee. We affirm.
Decedent Harriet Kimball Fee executed a will on December 31, 1943, which created a residuary trust and directed that the income from that trust be used for the purpose of beautifying appellee’s public parks or properties. See Detroit Wabeek Bank & Trust Co v Adrian, 349 Mich 136; 84 NW2d 441 (1957). Comerica succeeded the trustee originally appointed in decedent’s will and, since 1969, the residuary trust has been in effect.
On September 12, 1985, Comerica filed its thirty-ninth annual account, covering July 1, 1984, through June 30, 1985. At that time, the principal balance carried over from the previous year was $2,732,952.95. The trust also received $91,500 in dividends, $241,961.47 in interest, and $164,737.16 in capital gains. Comerica disbursed $175,000 to appellee, paid capital losses of $630 and paid interest of $403.53. Comerica also requested $61,718.37 in administration expenses, including trustee, attorney, and tax preparation fees.
Comerica attached the following to its account:
STATEMENT OF TRUSTEE FEES
The amount of the Trustee’s compensation is in the opinion of Petitioner just and reasonable because during the period covered by this account the Trustee’s active management of the account included, but was not limited to: the collection of dividends and interest, disbursement of funds, counseling with the beneficiaries and generally acting in the best interest of the account and those interested therein. Also involved were the timely investments and reinvestment of surplus cash and income producing cash equivalent investments, individual and computer portfolio supervision and execution of stock and bond transactions incident to the investment management of securities in the portfolio.
STATEMENT OF ATTORNEY FEES
The attorney fees shown in this account were for legal services rendered during the accounting year and included but were not limited to assistance in preparation of annual accounting, preparing all probate documents and carrying out all legal requirements in connection with the accounting and correspondence and conferences related thereto.
Legal services during the accounting year consisted of monitoring the use of funds from the Trust by the City of Adrian and included but was not limited to correspondence with the trustee and the City of Adrian regarding beautification projects of the City of Adrian, reviewing all requests from the City of Adrian on projects, examination of the City of Adrian budget, meetings and telephone conferences with City officials and the Trustee in connection with the allocation of trust funds, inspecting beautification projects of the City of Adrian with and on behalf of the Trustee, examination of the annual accounting of the City of Adrian regarding use of trust funds and other miscellaneous services regarding trust affairs.
On September 27, 1985, appellee objected to the account. Appellee did not object to attorney fees of $1,825, but did object to fiduciary fees of $59,893.37. Appellee claimed that the fiduciary fees were grossly excessive and without foundation (i.e., appellee claimed that its ability to challenge the fiduciary fees was impaired by Comerica’s failure to provide time records). Appellee also claimed that Comerica had increased its fiduciary fee substantially in the last several years without a like increase in services provided.
On January 22, 1986, Comerica filed its answers to appellee’s objections. Comerica claimed that its fees were very fair when considered in light of its management services, duties, and responsibilities. Comerica also claimed that its fee was consistent with the fees charged by other corporate trustees providing similar services. Comerica admitted that its account did not provide time records, but that many other factors were considered by it and other corporate trustees when billing for services rendered. Comerica also conceded that its fiduciary fee had increased over the last several years, but claimed that, with the increasing trust principal, additional duties and responsibilities followed.
Subsequently, Comerica agreed to furnish appellee with documentation explaining the fees charged. Therein, Comerica noted that it had determined its fee by applying the following formula: s/io of 1 percent of the fair market value of the assets, plus 7 percent of the income collected, plus a $400 annual account maintenance fee, effective January 1, 1984, with an increase of Vio of 1 percent of the fair market value effective March 15, 1985. This fee included a $200 tax preparation charge.
Comerica also noted that the probate court had earlier held that it was Comerica’s duty to ensure that the trust income was used properly. As a result, Comerica’s employees met and communicated with appellee’s personnel on numerous occasions.
Additionally, Comerica noted its transactions concerning the trust’s stock. Finally, Comerica noted the expertise required to administer such a trust and the resultant duties and responsibilities.
In answer to appellee’s interrogatories, Comerica admitted that no time or expense records were kept for this trust or similar trusts and that it had collected its fee at intervals prior to the approval of the probate court, noting that its prior accounts were always approved.
On March 10, 1987, the probate court held a hearing on appellee’s objection to Comerica’s requested fiduciary fees. At the hearing, David Wind, a Comerica vice-president and trust officer, testified. Wind was in charge of between two hundred and four hundred personal trust accounts and supervised two junior officers who handled four hundred accounts.
Comerica oversees five thousand trust accounts. Comerica is divided into several divisions. There are five subdivisions in the trust department: (1) trust investment, (2) personal trust, (3) employee benefit, (4) trust internal service, and (5) Michigan trust services/trust planning. The personal trust subdivision received services and information from various other subdivisions, including check processing, human resources, marketing, and legal services. The personal trust division was itself subdivided to include personal services, primary trust, investment management, estate settlement, and business development.
Wind worked in personal service and had direct contact with appellee’s personnel. Wind hired attorney Robert Bartlow to monitor appellee’s use of trust funds. Under a prior court decision, Comerica was required to monitor appellee’s activities to ensure that the trust’s purpose was being achieved. Wind and Bartlow met with the city administrator and parks director each spring and fall. In the spring, appellee’s personnel would prepare budget proposals for the following fiscal year. Wind would review the proposed budgets. In the fall, the proposed budget was compared with the actual spending in the prior fiscal year. Wind would review appellee’s report.
John Kearns, vice-president of Comerica’s trust investment department, was assigned to this trust and was in charge of investment decisions. Wind and Kearns met regularly concerning this trust and Comerica’s trust committee formally reviewed the trust once each year. Kearns also generated memoranda for Wind to review. These were contained in Comerica’s file. Kearns dealt directly with the company whose stock was a major asset of the trust. Kearns also reviewed reports from other sources concerning that company’s business. Kearns also reviewed information from Comerica’s own economist.
After the stock went public, Comerica engaged in some diversification activity. An investment diary sheet provided a brief summary of dates and events concerning the management of this trust.
Wind agreed that Comerica’s fiduciary fee was determined by the above-discussed formula. That formula was applied to a majority of similar funds.
When Comerica attempted to introduce evidence that it had essentially used the same formula to calculate fiduciary fees for purposes of prior accountings, appellee objected, claiming such evidence was not relevant. Comerica claimed that the evidence was relevant because it was related to the issue of reasonableness in that the formula was related to the size of the trust and the income generated and, therefore, if either factor changed, Comerica’s fee would rise and fall consistently therewith.
Appellee noted that in the year the trust’s value decreased, Comerica raised its fee $4,000. Moreover, appellee noted that it was challenging the reasonableness of charging fiduciary fees pursuant to such a formula. Appellee also noted that it learned of the fee structure two years earlier when it inquired about the rapid increases it noticed in the requested fiduciary fees. Finally, appellee noted that it had not received notice of the increase which was effective on March 15, 1985. The court limited Comerica to testimony regarding its fee for the thirty-ninth annual account.
The court then suggested that the real issue was whether Comerica could determine fiduciary fees by reference to a fee schedule. The parties agreed to argue that issue.
Comerica began by noting that, under the Revised Probate Code, a fiduciary was entitled to just and reasonable compensation for services provided. MCL 700.541; MSA 27.5541. Citing In re Baird Estate, 137 Mich App 634, 637; 357 NW2d 912 (1984), Comerica noted that the Revised Probate Code applied the same standard as the previous statute. However, Comerica noted that no court had delineated the factors to be used in determin ing just and reasonable compensation. Synthesizing criteria from Bogert, Trusts & Trustees (2d rev ed), § 977, pp 154-161; 3 Scott, Trusts (3d ed), § 242, pp 2109-2112; and 1 Restatement Trusts, 2d, § 242, comment b, pp 605-606, Comerica suggested the following factors be used to determine just and reasonable compensation: (1) the size of the estate, (2) the responsibility and risk, (3) the skill, knowledge, and experience required of and used by the fiduciary, (4) the character of the work, (5) the services performed, (6) the special problems or difficulties encountered by the fiduciary, (7) the results achieved, and (8) the customary fees charged by trust companies and banks. Comerica argued that the customary fee charged was not the sole factor to be considered, but should be a primary factor where a corporate fiduciary is involved because of the expertise and extent of services provided.
Appellee responded that, in effect, there was no competition when Comerica and trustees of like estates could not be removed except for cause. Appellee did not object to the court’s considering Comerica’s expertise or other objective factors in determining just and reasonable compensation, but claimed that a fee schedule should not be used. Appellee further added that where Comerica could show similar charges for similar trusts, such information could be considered.
The guardian ad litem in this case indicated that the primary emphasis should be on time spent.
Comerica again conceded that it did not keep time or expense records and added that it was not practical to do so given the number of employees having a direct or indirect contact with the trust.
The probate court allowed Comerica to make an offer of proof as to further evidence it would produce. Comerica planned to offer Mr. Kearns’ testimony about investment services performed and his expertise. Comerica also planned to call two expert witnesses who would testify that its proposed fee was just and reasonable given the eight above-discussed factors and that its proposed fee was similar to that charged by other institutions.
The probate court then issued a written opinion, stating the issue: "May a trustee make a claim for services based upon a percentage of the corpus and income with no time or expense records?” The probate court began by noting that the burden of proof was on the person claiming compensation and that he must satisfy the court that the services rendered were necessary and that the charges for those services were reasonable. In re Baird Estate, supra. See also MCR 5.722(B)(4). Moreover, the claimant’s failure to present records concerning his services is usually weighed against him. Id. Citing In re Thacker Estate, 137 Mich App 253, 260; 358 NW2d 342 (1984), the probate court then held that the 1979 rpc changed the manner in which fiduciaries were allowed to charge for their services from a fee determined by a statutory formula to a determination of whether a fee was just and reasonable. Relying on In re Thacker Estate, supra, and In re Kiebler Estate, 131 Mich App 441, 444; 345 NW2d 713 (1984), lv den 419 Mich 935 (1984), the probate court then held that the 1979 rpc made time and expense records crucial in determining the reasonableness of the compensation. Because Comerica had based its fiduciary fee on a fee schedule and attempted to justify that fee with reference to its suggested eight criteria rather than with reference to time and effort expended as well as expenses incurred on a daily basis, the probate court denied Comeri ca’s requested fee, holding that without such evidence it could not determine what just and reasonable compensation would be. The probate court offered Comerica the opportunity to reopen the proofs to allow additional testimony on the time, effort, and expenses incurred.
On April 8, 1987, appellee made a motion for entry of an order consistent with the probate court’s opinion. Comerica then moved for a further hearing or the opportunity to permit a further offer of proof. At the hearing on the motions, Comerica conceded that the order should be entered and noted that, even if the probate court considered its further offer of proof, the court would find it insufficient because it did not indicate time expended.
On appeal, Comerica first claims that the probate court erred when it held that the 1979 rpc changed the manner in which a testamentary trustee’s compensation was determined. While we agree with the probate court that the 1979 rpc did eliminate fee schedules for certain fiduciaries, we agree with Comerica and appellee that it did not change the manner in which a testamentary trustee’s compensation was determined. MCL 704.33; MSA 27.3178(284), like MCL 700.541; MSA 27.5541, allowed a testamentary trustee "just and reasonable” compensation for his services. See also MCL 700.809; MSA 27.5809.
Comerica next claims that the trial court erred when it held that a trustee’s failure to provide time records was fatal. As discussed above, a trustee is entitled to just and reasonable compensation for services rendered. MCL 700.541; MSA 27.5541. Unless the trustee is seeking only the compensation provided for in the testator’s will, he must file a written description of services performed or a statement otherwise indicating the basis of his claim for compensation. MCR 5.722. Hence, the court must determine the reasonable value of the services provided. In re Baird Estate, supra, p 638.
In In the Matter of Will of McDonald, 138 Misc 2d 577; 525 NYS2d 503 (1988), reconsideration den 140 Misc 2d 49; 530 NYS2d 453 (1988), a New York court noted that courts have used the following factors to determine the reasonableness of a testamentary trustee’s proposed fee: (1) the size of the trust, (2) the responsibility involved, (3) the character of the work involved, (4) the results achieved, (5) the knowledge, skill, and judgment required and used, (6) the time and the services required, (7) the manner and promptness in performing its duties and responsibilities, (8) any unusual skill or experience of the trustee, (9) the fidelity or disloyalty of the trustee, (10) the amount of risk, (11) the custom in the community for allowances, and (12) any estimate of the trustee of the value of his services. The weight to be given any factor and the determination of reasonable compensation is within the probate court’s discretion. In this regard, we note that while time spent is one indicator of value, it may be a poor indicator in some circumstances. In re Baird Estate, supra, p 637. Naturally, the probate court must consider the circumstances of the case in determining which factors are to be given weight. As always, the burden of proof is on the claimant to satisfy the court that services rendered were necessary and that charges therefor are reasonable. Id. Again, a claimant’s failure to present records concerning his services is usually weighed against him. Id., p 638.
In this case, Comerica claims that it cannot provide time records for certain services provided given its interrelated corporate structure. To the extent that the probate court disallowed Comerica’s request for compensation for services provided without time records, we believe that the probate court abused its discretion because it did not consider Comerica’s claims as to why such records could not be produced for the particular service performed. Moreover, even where such time records could be kept because a Comerica employee is working directly on an estate’s file (i.e., tax services or meeting with the city), expert testimony could be admitted as to the amount of time required to perform the service. See, e.g., In re Irwin Estate, 162 Mich App 522, 530-531; 413 NW2d 37 (1987). Certainly, however, the claimant’s failure to present time records where possible may be considered by the probate court in determining reasonable compensation. Id.; In re Krueger Estate, 176 Mich App 241, 251; 438 NW2d 898 (1989); In re Baird Estate, supra, p 638. Consequently, even though the probate code does not distinguish between fees to be awarded corporate and individual fiduciaries, the above-discussed factors should be considered with the nature of the fiduciary in mind. Hence, in Docket No. 100686, we remand for a new hearing on the reasonableness of Comerica’s requested compensation for necessary services performed as a fiduciary.
We now turn to the issue raised in Docket No. 106687. On April 8, 1987, the same day appellee filed its motion for entry of an order denying Comerica’s request for a fiduciary fee, appellee also filed a motion to prevent Comerica from continuing to take monthly fees based on its fee formula and without court authorization. At the same time, appellee filed a motion to have Comerica turn over income from the trust which appellee had previously allowed Comerica to manage. Appellee alleged that Comerica’s failure to release the income was due to appellee’s objections to Comerica’s requested fee. Appellee attached a memorandum from Bartlow, the attorney hired by Comerica to carry out its monitoring function, to Wind stating in part: "Why not give them a hard time?” Also attached to appellee’s motion was a letter Wind wrote to Bartlow on November 10, 1986, which provided in part:
In summary, my belief is that the Trustee has been more than helpful and conciliatory towards the City of Adrian and their budgetary expenditures of the income they receive without reciprocity and current support and understanding of our position relative to matters surrounding the administration of the Harriet K. Fee trust.
On April 10, 1987, the probate court heard appellee’s remaining motions after it granted appellee’s motion for entry of an order denying Comerica’s requested fee. Appellee’s attorney stated that Comerica had stipulated that it would not charge any further fees without the probate court’s approval. Comerica’s attorney so stipulated on the record. The parties also stipulated regarding the disposition of the income money. All of appellee’s motions were disposed of in a single order dated April 24, 1987. An amended order was filed on May 15.
On May 15, Comerica filed a claim of appeal of the April 24 order. Subsequently, Comerica filed an amended claim of appeal regarding the May 15 order.
On September 9, 1987, appellee filed a motion to remove Comerica as trustee because: (1) Comerica continued to take monthly fees without the probate court’s approval contrary to the April 24 order; (2) appellee had to file a motion to compel Comerica to deliver income to appellee consistent with the April 24 order; (3) even so, Comerica did not turn over all of the income; (4) Comerica’s animosity toward appellee was apparent in Bart-low’s memorandum and Wind’s letter; (5) Comerica had not filed an annual account for 1986 and 1987; and (6) Comerica had not restored disallowed fees to the trust.
In fact, a notice of omission was sent to Comerica on September 16, 1986, because it failed to file a fortieth annual account. That account was filed on December 26, 1986, but notice was not sent to appellee. On September 28, 1987, Comerica filed its forty-first annual account. Notice of the filing of both accounts was served on appellee on October 7,1987.
In response to appellee’s motion, Comerica claimed that it could not be removed for violating any provisions of the April 24 order because that order was automatically stayed by its appeal. MCL 600.867(1); MSA 27A.867(1). In any event, Comerica noted that any violations of the order were cured when it restored to the trust fees taken plus interest. Comerica also claimed that the alleged hostile relationship between it and appellee did not constitute good cause for removal, citing In re Gerber Trust, 117 Mich App 1, 13-14; 323 NW2d 567 (1982). Finally, Comerica claimed that appellee had unclean hands because it had failed to account for its income as required by the April 24 order.
The court heard appellee’s motion on October 22 and November 16. Wind testified that Comerica’s legal counsel advised him that the April 24 order was stayed and, therefore, Comerica continued to take its fee on a monthly basis. After receiving appellee’s motion, Comerica reviewed the matter and returned all amounts taken for fees plus interest. No further fees were taken. Wind testified that Bartlow was no longer working for Com erica on this trust. Wind testified that given Comerica’s monitoring function, disagreements between itself and appellee were natural; however, compromises had always been reached. Nonetheless, appellee had recently rebuffed Wind’s attempts to meet. Wind also testified that there was no animosity on Comerica’s part and that Comerica realized that appellee had the right to question its fees. Wind further testified that there was no reason to file the fortieth and forty-first annual accounts because there was a dispute over the thirty-ninth annual account.
Comerica stipulated that there was no probate court order allowing it to take fees; nonetheless, Wind testified that it was Comerica’s custom to take fees on a monthly basis. Wind also conceded that he turned over the accumulated income to appellee on July 14, the day before a hearing was scheduled on the matter, despite appellee’s previous written requests. Wind testified that the lack of reciprocity he referred to in his November 10 letter related to general trust administration.
The probate court held that the portion of the April 24 order regarding Comerica’s fees was stayed; however, the other motions disposed of in the same order related to ongoing trust administration and were not stayed. Moreover, Comerica’s counsel stipulated to the orders on appellee’s remaining motions on April 10 and, therefore, would have perpetrated a fraud upon the court by agreeing to proceed in a particular manner concerning ongoing trust administration and then claiming such procedures were stayed by its appeal on the fee issue.
The probate court noted that mere hostility and mere negligence were not sufficient to justify removal of a trustee. Nonetheless, the probate court believed that the November 10 memorandum indi cated Comerica’s attitude toward appellee and that that hostile attitude would affect its administration of the trust. In addition, the probate court noted that appellee was alleging that: (1) Comerica failed to give appellee the trust income as required by the April 24 order and did so in July only after appellee had filed and scheduled a motion to compel it to do so; (2) Comerica took fees in violation of the April 24 order and returned them to the trust only after appellee filed the motion to remove Comerica as trustee; and (3) Comerica failed to file an annual account timely or to serve the accounts filed on appellee. While the probate court believed that each of these factors considered individually would be insufficient to justify removal, it then held that taken together they showed Comerica’s intent to administer the trust pursuant to its own rules and in disregard of stipulated-to court orders as well as statutes and court rules and, therefore, justified removal.
MCL 700.574; MSA 27.5574 provides in part:
If a fiduciary . . . after due notice by the court, neglects to render his account and settle the estate according to law or to perform any order of the court or absconds or otherwise becomes unsuitable or incapable to discharge the trust, the court may remove the fiduciary by an order therefor following hearing, notice of which may be given in any manner provided by supreme court rule.
A probate court’s decision to remove a trustee will not be reversed absent an abuse of discretion. In re Cain Estate, 147 Mich App 615, 620; 382 NW2d 829 (1985).
Comerica again claims that its appeal of the single order entered on April 24, which actually contained four separate orders, automatically stayed all those orders. See MCL 600.867 and 700.35; MSA 27A.867 and 27.5035. But see MCR 5.802, 7.208, and 7.209. We believe that Comerica properly appealed the order regarding its fees to this Court. MCR 5.801(B)(3)(u). Hence, this Court acquired jurisdiction as to that order, but not as to the other orders and, therefore, even assuming that the properly appealed order was automatically stayed, we do not believe that the other orders were stayed. In any event, the probate court found that Comerica’s action of stipulating to the other orders concerning ongoing trust administration and then claiming those orders were stayed because of the appeal relating to its fees would constitute fraud. We likewise fail to see how Comerica was relieved of its ongoing obligation to seek probate court approval of its fees, to timely file accounts, and to timely serve those accounts on appellee. MCL 700.541, 700.563 and 700.564; MSA 27.5541, 27.5563 and 27.5564. See also MCR 5.722.
Comerica also contends that hostility naturally arose from its monitoring function and, in any event, was insufficient grounds for removal. In this case, the probate court found Comerica’s hostility toward appellee would interfere with the administration of the trust. Compare In re Sumpter Estate, 166 Mich App 48; 419 NW2d 765 (1988), and In re Gerber Trust, supra.
Finally, Comerica claims that it "corrected” its violations of orders by restoring the monies and that this surcharging was the appropriate remedy rather than removal. In re Cain Estate, supra. We hold that the probate court did not abuse its discretion when it removed Comerica as trustee.
Hence, in Docket No. 100686 we reverse and remand for further proceedings and in Docket No. 106687 we affirm. We retain no further jurisdiction. | [
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Holbrook, Jr., P.J.
In this appeal on remand from the Supreme Court, we have been directed to reconsider our earlier opinion in light of several recent pronouncements of the higher court on issues of governmental immunity. The claims as serted by plaintiffs originated in the suicide of plaintiffs’ decedent at a time that the decedent was a patient in a psychiatric hospital maintained by the state and under the psychiatric care of Dr. Genoves-Andrews. Separate suits were brought in the Court of Claims against the Department of Mental Health and in circuit court against Genoves-Andrews.
A brief explanatory history is helpful to an understanding of the issues presented in this appeal. At the outset, the Court of Claims and circuit court disposed of all claims by summary judgments in favor of defendants pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8).
The first occasion for our review was precipitated by plaintiffs’ consolidated appeals as of right, in which we addressed a variety of issues:
With respect to this appeal, plaintiffs alleged the following against defendant State of Michigan:
1. Failure to adequately and properly design a building whereby plaintiffs’ decedent would have been unable to commit suicide by hanging himself from the dividing bar inside a toilet stall.
2. Failure to provide the psychiatric and medical care necessary to protect plaintiffs’ decedent from his suicidal tendencies in violation of 42 USC 1983.
3. Liability for breach of contract to provide adequate medical attention to decedent.
4. Liability for the "abuse” of plaintiffs’ decedent in violation of MCL 330.1722; MSA 14.800(722).
Against defendant Genoves-Andrews, plaintiffs alleged the following:
1. Liability for acts of medical malpractice committed during the course of ministerial duties.
2. Liability for deprivation of medical treatment under color of law in violation of 42 USC 2983 [sic, 1983].
3. Liability for the "abuse” of plaintiffs’ decedent pursuant to MCL 330.1722; MSA 14.800(722). [de Sanchez v Genoves-Andrews, 161 Mich App 245, 250; 410 NW2d 803 (1987).]
We reversed summary judgment with respect to the public building exception to governmental immunity on the claim against the state for inadequate design of the bathroom stall and the claim against Genoves-Andrews for an alleged violation of 42 USC 1983. Summary judgment was affirmed as to all other claims. In so deciding, a majority of our panel specifically held that the state is a person for § 1983 purposes, but that the claim premised on that theory was barred by sovereign immunity. We also held that Genoves-Andrews was immune from medical malpractice liability because the allegedly tortious conduct was discretionary within the meaning of Ross v Consumers Power Co (On Reh), 420 Mich 567, 633-635; 363 NW2d 641 (1984).
Defendants’ subsequent application to the Supreme Court for leave to appeal and plaintiffs’ application for leave to appeal as cross-appellants culminated in the remand necessitating the instant decision, de Sanchez v Genoves-Andrews, 430 Mich 894 (1988).
The remand order compels our reconsideration in light of recent decisions in Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988), Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), and Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987). We interpret this remand as requiring our reconsideration of our previous disposition of the following issues: (1) the public building exception to governmental immunity, (2) the state’s immunity for a claim based on 42 USC 1983, (3) Genoves-Andrews’ individual immunity from alleged malpractice, and (4) the state’s governmental immunity from a claim for abuse pursuant to MCL 330.1722; MSA 14.800(722).
Our reconsideration of the state’s liability pursuant to the public building exception is focused on Reardon v Dep’t of Mental Health, supra, in which the Supreme Court held that the public building exception was limited to “an injury arising out of a dangerous or defective physical condition of the building itself.” Id., p 409. Applying this rule, the Court concluded that the exception was inapplicable in two cases involving residents of buildings victimized by criminal wrongdoing, which allegedly resulted from inadequate precautions in the design of the building. These conclusions appear to be based on the absence of a sufficient relationship between the danger of third-party criminal conduct and the physical state of the building structure.
Our previous conclusion regarding the public building exception relied on the principle that "[w]hether a part of a public building is dangerous or defective is to be determined in light of the uses or activities for which the building is specifically assigned.” 161 Mich App 251. This principle was supported by citation to Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), and Lockaby v Wayne Co, 406 Mich 65; 276 NW2d 1 (1979). In application of that principle, the Court in Bush held that allegations that the defendant school district provided classrooms improperly designed for laboratory experiments and lacking in safety devices appropriate for a science class stated a claim within the public building exception. Similarly, in Lockaby, the Court held that a valid claim was stated by a prisoner sustaining self-inflicted injuries during his confinement in a cell designated for mentally impaired persons, but lacking padding or other precautions specifically tailored to the persons incarcerated there. The Supreme Court in Reardon recognized the continuing viability of the holdings in Bush and Lockaby and explained that those holdings were consistent with the reasoning announced in Reardon:
[In Bush, supra] we held that "a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices.” Id. at 730. We reiterate this proposition, as the holding in Bush is entirely consistent with today’s conclusion that the injury must be occasioned by the dangerous or defective physical condition of the building itself. As long as the danger of injury is presented by a physical condition of the building, it little matters that the condition arose because of improper design, faulty construction, or absence of safety devices. [Reardon, supra, pp 409-410.]
This legislative purpose to maintain safe public places was later echoed in Bush, supra at 731-732 (public building exception applicable where claimed defect is absence of safety features), and Lockaby v Wayne Co, 406 Mich 65, 76-77; 276 NW2d 1 (1979) (building exception applicable where plaintiff alleged lack of padding in cell where he was being held). [Id., p 413.]
In our earlier opinion, we identified two distinct factual allegations made by plaintiffs in support of the public building exception: (1) failure to design rest rooms so that patients could be observed by staff and (2) installation of bathroom stalls so that dividing bars were placed across the tops, thereby facilitating hanging by a suicidal patient. Upon reconsideration, we are persuaded that the former allegation fails to raise a defective condition in the building itself. There is no indication that the physical configuration of the rest room was unsafe. The relationship between the inadequacy of the rest room structure for staff observance of patients’ activities within the rest room and the decedent’s suicide is too tenuous to permit recovery under Reardon, where it was stated: "The Legislature intended to impose a duty to maintain safe public buildings, not necessarily safety in public buildings.” Id., p 415 (emphasis in the original). See also Gunn v Northville State Hospital, 171 Mich App 669; 430 NW2d 815 (1988).
However, we are persuaded that our earlier decision upholding the second allegation—the dangerous condition resulting from the dividing bars placed over bathroom stalls—remains correct in light of Reardon. Given that the rest room was assigned for use by potentially suicidal patients at a mental hospital, this condition was potentially dangerous in and of itself. Because the dangerous condition was inherent in the structure of the stall, we believe that a sufficient allegation concerning the defective nature of the building has been pled.
We are aware that in Schafer v Ethridge, consolidated for decision in Reardon, supra, pp 416-417, the Court distinguished Bush on the ground that "proper supervision [in Schafer] would have offset any shortcomings in the configuration of the room.” The instant case, however, was decided in a motion made pursuant to GCR 1963, 117.2(1), which is to be granted only if the claim, viewed in light of the allegations of the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Marley v Huron Valley Men’s Facility Warden, 165 Mich App 78, 81; 418 NW2d 430 (1987). At this relatively premature stage of the proceedings, we are not inclined to draw essentially factual conclusions that more extensive supervisory measures could have been reasonably implemented and that such measures would have prevented the decedent’s suicide.
Next, in reconsideration of our earlier opinion of the 42 USC 1983 claim against the state, we adhere to the holding in Smith v Dep’t of Public Health, supra, pp 553-589, that the state is not a person for § 1983 purposes. However, this conclusion does not alter our previous disposition on immunity grounds, and we again affirm the summary judgment granted to. the state on the § 1983 claim. Because suit was brought against GenovesAndrews in an individual capacity, the Smith decision does not affect our previous conclusion that a claim for individual § 1983 liability was properly stated.
With respect to the issue of Genoves-Andrews’ individual immunity from medical malpractice, the Supreme Court’s recent decision in Canon, supra, reinforces our previous conclusion that the alleged failure to continue suicide prevention measures is discretionary-decisional in nature: "[E]ach [allegation relating directly to the diagnosis, care, and treatment of the patient] involved decision making rather than the mere following of a prescribed line of conduct. These alleged errors in judgment suggest a latitude of choice which is the essence of professional discretion.” Id., p 338. See Gillam v Lloyd, 172 Mich App 563, 582-584; 432 NW2d 356 (1988), lv pending.
In our previous decision, we also held that a cause of action against the state alleging abuse of a recipient of mental health services pursuant to MCL 330.1722; MSA 14.800(722) is barred by governmental immunity. We are not persuaded otherwise upon reconsideration. An intentional tort is not per se excepted from governmental immunity; that immunity must give way to a claim of intentional misconduct only if an examination of the allegations underlying the claim indicates that the entity was not engaged in the exercise or discharge of a governmental function. Smith v Dep’t of Public Health, supra, pp 593, 603-606, 611. This determination is made with reference to the general activity engaged in by the state or its employees at the time of the alleged abuse. Id., pp 605-610.
Similarly, it has been consistently held that MCL 330.1722; MSA 14.800(722) does not provide a statutory exception to governmental immunity for alleged abuse of mental health patients. Dockweiler v Wentzell, 169 Mich App 368, 375-377; 425 NW2d 468 (1988), lv den 431 Mich 878 (1988); Siener v Dep’t of Mental Health, consolidated in Ross, supra, p 644.
We reiterate our previous holding that the state, engaged in the governmental function of providing mental health care, is immune from liability for alleged statutory abuse. Plaintiffs did not plead an "intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law,” which would avoid governmental immunity. Smith, supra, p 611. Because our previous decision did not rely on immunity grounds in affirming summary judgment on the statutory abuse claim against defendant Genoves-Andrews, we need not address it anew.
In summation, we modify the disposition in our previous opinion in one respect—allegations relating to a public building exception on the basis of the failure to design the rest room to permit staff observation and supervision of patients are barred by governmental immunity. We reiterate that those allegations concerning the failure to design a bathroom stall in light of the suicidal tendencies of its users are facially sufficient to survive a motion for summary judgment pursuant to GCR 1963, 117.2(1). As to the other claims, we adhere to our original disposition.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
If the bathroom stall is not part and parcel of the building itself, a factual question exists whether it is a fixture of the building, which, if it is, would render the public building exception applicable. See Velmer v Baraga Area Schools, 430 Mich 385; 424 NW2d 770 (1988). However, because this issue was not raised and this case was decided on a record limited to the pleadings pursuant to GCR 1963, 117.2(1), this issue is not now properly before us. | [
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Cynar, P.J.
Defendant, Malpractice Research, Inc., doing business as the Medical Quality Foundation, appeals as of right from a March 25, 1988, order of the Wayne Circuit Court denying defendant’s motion for reconsideration and leave to amend its counter-complaint with respect to the issue of quantum meruit. By order dated March 4, 1988, the court granted plaintiffs summary disposition on their complaint for declaratory relief, rescinding two written contingent fee contracts entered into with defendant as void and unenforceable because the contract violated public policy. Both contracts related to the provision of expert witness testimony, as well as advice on trial techniques, for plaintiffs’ medical malpractice action in exchange for, inter alia, twenty percent of plaintiffs’ eventual recovery. The validity of contingent fee agreements with organizations engaged in the business of providing expert witnesses or evidence in specific litigation is an issue of first impression in Michigan. We affirm.
Apparently unable to locate necessary and qualified experts locally to evaluate and provide expert testimony to support his clients’ medical malpractice suit for injuries suffered by Leslie Dupree during birth, plaintiffs’ attorney responded to an advertisement in the Michigan Bar Journal placed by Dr. H. Barry Jacobs, doing business as the Medical Quality Foundation in Herndon, Virginia.
After reviewing with Dr. Jacobs the various contractual agreements available with mqf, plaintiffs’ attorney permitted his clients to sign a "Modified Contingency Fee Contract,” which was accepted by Dr. Jacobs personally and on behalf of mqf on January 4, 1984. The contract contains a number of conditions under which Dr. Jacobs would make himself, expert witnesses, and expert reports available to the plaintiffs. Further, while the contract states that its intended purpose "is to help defray the Plaintiff’s cost of litigation,” the contract sets forth an extensive schedule of expert witness and report fees, travel costs and other expenses which, in almost every instance, are payable by the plaintiffs to mqf in advance of any services rendered, and which are separate and apart from mqf’s twenty percent contingent fee. The contract also provides that, should the contingent fee not be distributed to mqf as stated in the contract, plaintiffs would also be responsible for an additional $10,000 in liquidated damages, plus attorney fees and costs.
As the matter proceeded, mqf provided plaintiffs’ attorney with access to several medical experts on mqf’s consulting staff, and provided considerable advice on trial techniques with suggested supporting expert testimony. Later, recognizing that the original contract had been signed only by plaintiffs as contracting parties, Dr. Jacobs insisted that a new Modified Contingency Fee Contract be executed which would also personally obligate plaintiffs’ attorney to distribute to mqf its allotted share of plaintiffs’ recovery.
This second contract, copyrighted by mqf in September, 1984, was executed by plaintiffs and their attorney on March 22, 1985, and accepted by Dr. Jacobs, personally and as agent for mqf, on April 1, 1985. In all other respects, the new con tract was substantially identical in form and substance to the prior agreement, except that the provision relating to $10,000 in additional liquidated damages was replaced by a reference to unspecified additional damages.
The malpractice action proceeded through the pretrial stages and was eventually settled for an amount totaling $170,000. According to the terms of either contract, mqf was owed twenty percent of the settlement, or $34,000. During the course of the malpractice action, plaintiffs paid to mqf at least $2,775 in fees and costs pursuant to the contract terms, a portion of which plaintiffs contend, and mqf does not adequately dispute, was retained by mqf as profit.
Plaintiffs then filed for declaratory relief seeking rescission of both contracts, and subsequently both sides moved for summary disposition. In its opinion, finding for the plaintiffs, the trial court held the second contract unenforceable for lack of consideration as it was entered into only to insure protection of an undetermined lien. Moreover, the trial court found both contingent fee contracts invalid and unenforceable as violative of public policy.
Thereafter, defendant mqf moved for reconsideration on the issue of quantum meruit recovery, and leave to amend its counter-complaint accordingly. In support of its motion, mqf submitted a time log and summary of services alleging that it had expended services totaling $44,750. Plaintiffs countered in part by arguing that mqf had already received the value of their services in the $2,775 already paid by plaintiffs.
The trial court denied both of defendant’s motions, holding that mqf had not properly pled quantum meruit at the time the court considered mqf’s cross-motion for summary disposition and, in any case, quantum meruit is not an appropriate consideration where the underlying contract is not enforceable as a matter of public policy.
Both sides vigorously contend that it is either unnecessary or inappropriate for our Court to address the validity of the contingent fee contracts at issue, where mqf is not challenging the trial court’s order rescinding the contracts, only whether the trial court acted properly in denying defendant leave to amend its counter-complaint and failing to address the issue of the reasonable value of mqf’s services on a quantum meruit basis. We do not agree.
As already noted, invalidity of the underlying contracts on public policy grounds was one of the bases upon which the trial court relied in refusing to consider the issue of quantum meruit. While it is not necessarily the case that quantum meruit is an inappropriate consideration where the underlying contract is void as against public policy, see McCurdy v Dillon, 135 Mich 678, 682; 98 NW 746 (1904) (contingent fee by attorney in divorce action held to be against public policy), where a contract violates strong, established public policies quantum meruit "will not be given in aid of or to encourage unprofessional conduct infringing the integrity of judicial proceedings.” Hightower v Detroit Edison Co, 262 Mich 1, 13; 247 NW 97 (1933) (quantum meruit denied where attorney fee contract void as violative of a misdemeanor statute intended, inter alia, to prevent champerty and maladministration of justice). In this case, we find contingent fee contracts of the type at issue so repugnant to established Michigan public policy, as expressed by statutes, court rules and court opinions, that to permit recovery on a quantum meruit basis would defeat or subvert those policies and threaten the integrity of the judicial system.
The statutory scheme in Michigan evidences a strong public policy against contingent fee agreements involving expert witnesses. MCL 600.2164(1); MSA 27A.2164(1) expressly provides:
No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of contempt of court, and on conviction thereof be punished accordingly.
Section 2164(1) gives the trial court the discretion to determine whether a witness is qualified as an expert and thus entitled to fees in excess of the fees set for lay witnesses under MCL 600.2552; MSA 27A.2552. Eaddy v Garden City Osteopathic Hospital, 152 Mich App 767, 770; 394 NW2d 99 (1986) .
Moreover, with the enactment of MCL 600.2169(4); MSA 27A.2169(4) the Legislature has now made it a misdemeanor for an expert witness to testify on a contingent fee basis in an action alleging medical malpractice. While this statute is not directly applicable to the present case since it applies only to Cases filed on or after October 1, 1986, § 2169(4) is nevertheless a clear expression of the public’s aversion to such arrangements as they provide an obvious incentive for the manufacture of favorable testimony.
We find we are in agreement with the reasoning of the New Jersey Superior Court in Polo By Shipley v Gotchel, 225 NJ Super 429; 542 A2d 947 (1987) . While quantum meruit was not an issue in that case, the Polo court found void as against public policy the very same type of contract at issue here, under almost identical circumstances.
In Polo, the plaintiff minor’s guardian, upon recommendation of counsel, engaged a medical-legal consulting service, JDMD, Inc., to assist in locating medical experts to review, provide opinions and testify as to the medical aspects of a malpractice action against plaintiffs delivering obstetrician. As here, the agreement with JDMD, executed by the guardian and her attorney, set forth an extensive list of fees and charges payable to JDMD, in addition to a six percent contingent fee on plaintiffs eventual gross recovery. The Polo court found expressions of public policy against such contracts in that state’s statutes, specifically NJSA 45: 9-27.8 (expressly prohibiting contingent fee arrangements by physicians where the medical services to the client form any part of a legal claim for damages), and also in the ethical guidelines of the medical profession which are equally applicable in Michigan.
The Polo court specifically cited § 8.04 of the Current Opinions of the Judicial Council of the American Medical Association, 1984, entitled "Contingent Physicians Fees: Prohibition,” and found:
Section 8.04 specifically outlines the policy doctors should adhere to concerning contingent fee agreements. This section clearly enunciates the public policy that doctor’s fees should not be based on an uncertain outcome of a contingency, the underlying public policy being the danger of the physician becoming more of an advocate and less of a healer. A doctor’s fee should be calculated only on the value of the medical services provided, in accordance with acceptable standards of fee payment for services rendered. [225 NJ Super 431.]
The fact that Dr. Jacobs operates his business essentially as a middleman for the medical experts on his consulting staff is of no consequence. As noted by the court in Polo:
By charging a six percent contingent fee on the gross recovery, JDMD, Inc., is improperly invading the plaintiff’s right of recovery. But for the doctor’s association and activities this medical-legal consulting service would not exist. Accordingly, JDMD, Inc., and the service it provides are merely instruments of subterfuge established to circumvent the restrictive policies of N.J.S.A., 45:9-27.8 and the American Medical Association’s guidelines. [225 NJ Super 433.]
The Polo court also found the contract at issue contravened public policy as expressed by its Rules of Court and Rules of Professional Conduct, all of which have their parallels in Michigan, stating:
An attorney as an officer of the court, is within the control of the court regarding contingent fee agreements. The Supreme Court has promulgated the rules regarding contingent fee agreements. Attorneys are specifically permitted to charge contingent fees within the parameters of those rules, R. l:21-7(a); RPC 1.5(c), (e); and RPC 5.4(a). As a condition precedent to any contingent fee agreement, R. l:21-7(b) provides that an attorney is required to offer his services to the client at an hourly rate. This is the clear manifestation of the Supreme Court’s exclusive control of contingent fees that is reflected in the court’s refusal to permit anyone other than an attorney to charge a contingent fee. Specifically, any fee received by an attorney may not be shared with a non-licensed attorney. RPC 5.4.
At bar, the claim for damages involves injuries suffered by an infant. This court is under a duty to safeguard the minor child from further injury and to enforce legal obligations due to him or her. N.J.S.A. 2A:4A-21(e). Also under the Court Rules of New Jersey, in particular R. 1:27-7(c)(5), the maximum contingent fee authorized in settlement involving infants is 25% of the net recovery, except as approved by petition to the court. An attempt by JDMD, Inc. to impose a contractual obligation for six percent contingent fee on any gross recovery is in direct violation of R. 1:21-7(c)(5). [225 NJ Super 433.]
In Michigan, MCR 8.121(B) sets the maximum contingent fee in a personal injury or wrongful death action at one-third of the amount recovered. Also, while an attorney in Michigan is not required to offer his services to the client at an hourly rate as in New Jersey, MCR 8.121(E) nevertheless requires the attorney to advise the client that such a fee arrangement is possible, if not through him or her, then possibly with another attorney.
Further, just as in New Jersey, under the Michigan Rules of Professional Conduct, Rule 5.4(a) prohibits an attorney from sharing legal fees with a nonlawyer, except under very limited circumstances, none of which are present here. In sum, we conclude in the same fashion as the New Jersey Superior Court that these rules evidence a clear manifestation of our Supreme Court’s exclusive control of contingent fees, and mqf’s attempt to impose an additional twenty percent contingent fee on plaintiffs’ gross recovery directly contravenes those rules.
We also see great dangers inherent in approving fee arrangements such as these. One such danger was aptly pointed out in Polo:
If photographers, accident reconstruction experts, investigators, and the like were permitted to charge on a contingent fee basis, only a minuscule portion of a recovery would be left for the injured plaintiff. Any contingent fee agreements, other than those governed by the courts concerning attorneys are obviously contrary to the public policy of the State of New Jersey and the expectation of its citizens. [225 NJ Super 434.]
This danger is all the more evident here where mqf seeks twenty percent of plaintiffs’ recovery, over three times the rate sought by JDMD in Polo. If these contracts were enforced according to their terms, coupled with a one-third attorney fee, the plaintiffs would net less than half of their gross recovery.
In addition to threatening the legitimate recoveries of injured plaintiffs, these contracts also imperil defendants and the fundamental truth-seeking mission of our court system. In Sherman v Burton, 165 Mich 293; 130 NW 667 (1911), our Supreme Court invalidated a contingent fee contract sought to be enforced by a treating physician, stating:
We concur in the opinion of the circuit judge that the principle of Thomas v Caulkett [57 Mich 392; 24 NW 154 (1885)] applies to this case. The good faith of the parties to the contract is not the test of its validity; but, as said in the case referred to:
"The contract must be measured by its tendency, and not merely by what was done to carry it out.”
At the time the agreement was made, the parties contemplated that unless a settlement were made a suit would be instituted against the railway company, and the agreement expressly provided that, if the matter was settled out of court for $2,000 or over, the plaintiff [doctor] should receive $90 in addition to one-third of the amount received. The amount which the defendant could obtain from the railway company must depend principally upon the nature, extent, and character of his injuries, to be determined by the testimony of experts like the plaintiff, and in no small degree by their opinions, incapable of conclusive refutation before a jury of nonexperts. We think it necessarily follows from the circumstances of the case as disclosed by the plaintiff and the agreement that the parties contemplated that the plaintiff should be a witness in case of suit and should give a history of, and opinion upon, the case in the event of a proposed settlement. The plaintiffs interest in the amount of the damages furnished a powerful motive for exaggeration, suppression, and misrepresentation, a temptation to swell the damages so likely to color his testimony as to be inimical to the pure administration of justice, and therefore invalid. [165 Mich 296-297; emphasis added.]
This rationale applies equally to witness brokers. The incentive is just as powerful for a middleman whose compensation is tied to the size of a plaintiffs recovery to manufacture favorable testimony through selective procurement of expert witnesses.
This Court has also considered the opinion expressed in Schackow v Medical-Legal Consulting Service, Inc, 46 Md App 179; 416 A2d 1303 (1980), a Maryland case which appears to be the only other published opinion to address the situation, of a medical-legal consulting service which charged a contingent fee. The Schackow court did find, inter alia, that the ten percent contingent agreement did not violate Maryland public policy. However, Schackow is distinguishable from the present case since the Maryland court rules have no comparable provisions regarding control of contingent fees, see Polo, supra, pp 433-434 and its public policy inquiry did not address the same policy considerations addressed here or in Polo.
In conclusion, we find mqf’s contingent fee contracts with plaintiffs to be in direct conflict with the long-established public policy of this state. Further, to permit defendant to proceed on a quantum meruit basis in order to attempt to obtain fees far in excess of those already collected pursuant to a legitimate schedule of set fees and costs, would only serve to undermine those policies and fail to discourage conduct which we find highly detrimental to the judicial process.
Defendant also argues that the trial court erred in adjudicating the rights of Dr. Jacobs, who is not a party in this case. The contracts in dispute were signed by Dr. Jacobs personally and as an agent for mqf. However, suit was only brought against mqf. While the court was required to summon Dr. Jacobs according to the necessary joinder rule, MCR 2.205, there is no jurisdictional defect in the judgment because defendant’s objection to nonjoinder was not timely raised, and was therefore waived. MCR 2.111(F)(2).
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] |
Brennan, J.
Defendant appeals as of right from an order of the Macomb Circuit Court which awarded permanent custody of defendant’s infant daughter to third party petitioners, John and Georgianna Workman, the adoptive parents of the plaintiff, Jessica Sherfey.
Plaintiff and defendant married in March, 1987. They were sixteen and seventeen years old, respectively. Their daughter, Billie Jo, was born on May 19,1987.
The couple separated three months later. Plaintiff and Billie Jo took up residence with the Work-mans and defendant left the state for army basic training. Plaintiff filed suit for divorce on September 25, 1987, and was awarded ex parte temporary custody of Billie Jo. While defendant was home on holiday leave from the army, he and plaintiff reconciled. Plaintiff and Billie Jo moved from the Workmans’ home to the home of defendant’s mother, Jeanne Norris. Plaintiffs complaint was not dismissed. Their reconciliation, however, was short-lived. In January, 1988, plaintiff moved out of Norris’ home. Defendant countersued for divorce and obtained temporary custody of Billie Jo. The temporary custody order provided that Billie Jo was to reside with defendant’s grandmother, Lorraine Sherfey.
On February 4, 1988, the Workmans petitioned for custody of Billie Jo. The trial court ordered that the case be referred to the Friend of the Court for investigation as to suitable custody. In an order dated May 2, 1988, the trial court adopted the Friend of the Court’s recommendation and awarded temporary custody of Billie Jo to the Workmans. The trial court also ordered an evidentiary hearing on the issue of custody which was scheduled for August 1, 1988. Defendant appealed the order to this Court. On June 6, 1988, this Court remanded the case for an immediate eviden tiary custody hearing, but denied defendant’s motion for a stay. On remand, the trial court conducted the ordered custody hearing and, in an order dated August 5, 1988, the trial court again awarded custody of Billie Jo to the Workmans.
Plaintiff submitted a proposed judgment of divorce to the trial court on September 7, 1988. The proposed judgment provided that the Workmans would be awarded custody of Billie Jo until further order of the court or until the latter of the date she graduates from high school or her eighteenth birthday.
On September 15, 1988, both the plaintiff and defendant filed an objection to the proposed judgment. They requested that the trial court dismiss the case for the reason that they had again reconciled and no longer wanted a divorce. They also requested that custody of Billie Jo be returned to them.
On October 3, 1988, the trial court entered an order which dismissed the complaint and counter-complaint and further ordered that the August 5, 1988, custody order be entered as a permanent order. Defendant appeals from this order and the August 5, 1988, custody order.
The issue in this case can be stated as follows: When the parents of a minor child file suit for divorce, but later reconcile and request a dismissal of the divorce action, and the circuit court has not otherwise obtained jurisdiction over the child, does the circuit court have jurisdiction to award permanent custody of the child to a third party? We answer in the negative.
The circuit court’s jurisdiction in divorce proceedings is completely statutory. Banfield v Banfield, 318 Mich 38, 40-41; 27 NW2d 336 (1947). The circuit court is empowered to make any order concerning the care, custody or support of the minor children of the parties during the pendency of the divorce action, MCL 552.15; MSA 25.95, upon the entry of a divorce judgment, MCL 552.16; MSA 25.96, and subsequent to the entry of a divorce judgment, MCL 552.17; MSA 25.97, until the child reaches the age of eighteen, MCL 552.17a; MSA 25.97(1).
In a divorce proceeding, the custody of a minor child is determined under the provisions contained in the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq. The act is remedial and supplemental in nature. Eigner v Eigner, 79 Mich App 189, 196; 261 NW2d 254 (1977). The act does not create substantive rights of entitlement to custody of a minor child. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984), reh den 422 Mich 1201 (1985). In discussing the jurisdictional limitations of the act in Ruppel, supra, pp 565-566, the Supreme Court stated:
[I]t creates presumptions and standards by which competing claims to the right of custody are to be judged, sets forth procedures to be followed in litigation regarding such claims, and authorizes the forms of relief available in the circuit court. While custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody "dispute” by simply filing a complaint in circuit court alleging that giving custody to the third party is in the "best interests of the child.”
In this case there has been no prior termination of or judicial intervention in parental rights. The trial court’s jurisdiction to award permanent custody of Billie Jo to the Workmans existed solely by reason of the divorce action. Ruppel, supra; Hast ings v Hastings, 154 Mich App 96, 100-101; 397 NW2d 232 (1986), lv den 428 Mich 859 (1987); MCL 552.16; MSA 25.96; MCL 722.26; MSA 25.312(6). Similarly, the Workmans’ rights as third parties to petition for custody of Billie Jo were created by the divorce action and existed incidentally to it. Ruppel, supra, pp 565-566; MCL 722.26; MSA 25.312(6).
The September 15, 1988, request for dismissal terminated the divorce action and with it the circuit court’s only jurisdictional basis to award permanent custody of Billie Jo to the Workmans. The request was, in effect, a stipulation of dismissal. MCR 2.504(A)(1)(b). Dismissal was automatic. Thus, the circuit court’s October 3, 1988, order was void for want of subject matter jurisdiction.
The request was effective to act as a stipulation of dismissal even though the Workmans did not sign it. The Workmans were not parties to the divorce action. See generally Unjian v Unjian, 344 Mich 423; 73 NW2d 862 (1955). Their presence in the action as "parties” was merely for the purpose of allowing the circuit court to consider whether it would be in Billie Jo’s best interests to place her with them upon the divorce of plaintiff and defendant. For whatever reason, plaintiff and defendant chose to reconcile and dismiss the divorce action. They did not need the approval of the Workmans to do so.
Upon the voluntary dismissal of the action, the circuit court’s August 5, 1988, custody order became null and void. See In re Ward’s Estate, 152 Mich 218, 237; 116 NW 23 (1908). Custody of Billie Jo reverted automatically to plaintiff and defendant.
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] |
Marilyn Kelly, J.
i
FACTUAL BACKGROUND
The defendants in these cases are parents who were found guilty of violating the state compulsory school attendance law. MCL 380.1561; MSA 15.41561, MCL 380.1599; MSA 15.41599. The Bennetts and the DeJonges kept their children home for school, the mothers serving as teachers. Defendants claimed their home schools made them exempt from the law under § 1561(3)(a), which allows children not in a public school to attend a "state approved nonpublic school.” The state showed that defendants were not using certificated teachers as required. On appeal, the Bennetts and the De-Jonges raise constitutional challenges to the compulsory school attendance law as it applies to children who are taught at home.
In September, 1984, after becoming aware that the DeJonge children were not attending public school, the assistant superintendent in their district wrote to the DeJonges. He informed them, among other things, that the law required their children be taught by a certificated teacher.
In October, 1984, formal truancy charges were filed, because the DeJonges failed to comply. On April 23, 1985, they were informed that warrants had been issued for their arrests.
The DeJonge children are taught at home through a program administered by the Church of Christian Liberty and Academy of Arlington Heights, Illinois. The family belongs to the Grand Valley Orthodox Christian Reformed Church. At the jury trial, their pastor, John Byker, testified their church teaches that the responsibility for educating the children is given by God to the parents. Parents are allowed, however, to delegate that responsibility.
Michael McHugh, an employee of the Church of Christian Liberty and Academy, testified that his organization helps the parents educate their children. It provides testing, individualized curriculum, and monitoring of the home school. The academy adheres to the belief that parents have an inalienable right given by God to teach their own children. It does not require nor does it desire state licensure of its teachers, because certificated teachers must take courses which are based upon secular humanism. Such training conflicts with the religious beliefs of the members of the academy.
Chris DeJonge testified that she had been teaching her children at home for two years. She admitted that she is not certificated. She has a religious conviction that God commands parents to educate their children. She also agreed with her church’s precepts as expressed by Pastor Byker, and nowhere stated that her responsibility to educate may not be delegated to others.
Mark DeJonge testified he believes that allowing the state to certificate his children’s teachers is tantamount to permitting to usurp God’s authority. Submitting to it constitutes a sin.
The DeJonges were convicted and sentenced to two years probation. They were fined $200 each, required to have their children tested for academic achievement and to arrange for a certificated teacher to instruct them. On appeal the DeJonges contend the certification requirement violates their First Amendment right to free exercise of their religious beliefs and their Fourteenth Amendment fundamental right to educate their children. They also argue violation of their right to due process. Specifically, they submit that they were denied a neutral magistrate, because the local public school superintendent is empowered to determine whether their home school complies with state requirements.
Prior to the 1985-86 school year, the Bennetts’ four children were enrolled in public schools. The Bennetts became dissatisfied and put their children into the Clonlara Home Based Education Program. Clonlara provided books, instructional materials and individualized curriculum guides for each child. With the aid of these materials, Sandra Bennett taught her children at home.
In July, 1985, after receiving a request for the records of the children from Clonlara, the local school district referred the matter to its attendance officer. The officer investigated the Bennetts’ home school and determined that it did not comply with state requirements. The case was recommended for prosecution.
Dr. Pat Montgomery, founder and chief administrator of Clonlara, explained that the school offers campus-based and home-based education programs. The Bennett children were in the home-based program. Clonlara employed a certificated teacher who would confer with the Bennetts on occasion. The Bennetts had access to the teacher and to Dr. Montgomery by phone and mail. Clonlara also furnished bimonthly on-campus visits. During the visits, the children’s work was reviewed, and the Bennetts were given instructions on teaching techniques. Clonlara compiled attendance records and administered achievement tests.
The Bennetts’ testimony revealed that John Bennett drew up the lesson plans and Sandra Bennett was the instructor. Neither is a certificated teacher.
Following a bench trial, the Bennetts were convicted of four counts of violation of the compulsory school attendance law. They were fined $50 each and required to present their children for academic testing and to arrange for instruction by a certificated teacher. Fines and costs were suspended provided the Bennetts complied with the court’s order within ninety days.
The Bennetts raise five issues on appeal: (1) whether the certification requirement violates their fundamental right to direct the education of their children, (2) whether due process requires that the home school be closed before the parents can be prosecuted under the compulsory school attendance law, (3) whether the school attendance law is unconstitutionally vague as applied to home schools, (4) whether the use of the public school code to regulate their "home school” violates the title-object requirements of the Michigan Constitution, and (5) whether there is insufficient evidence to support their convictions.
ii
LEGAL BACKGROUND
Defendants were convicted under the School Code of 1976. The code makes it a misdeameanor to fail to comply with the compulsory school attendance law. MCL 380.1599; MSA 15.41599. The attendance law states at MCL 380.1561; MSA 15.41561:
(1) Except as provided in subsections (2) and (3), every parent, guardian, or other person in this state having control and charge of a child from the age of 6 to the child’s sixteenth birthday, shall send that child to the public schools during the entire school year. The child’s attendance shall be continuous and consecutive for the school year fixed by the school district in which the child is enrolled. In a school district which maintains school during the entire calendar year and in which the school year is divided into quarters, a child shall not be compelled to attend the public school more than 3 quarters in 1 calendar year, but a child shall not be absent for 2 consecutive quarters.
Defendants attempted to fall under the following exemption:
(3) A child shall not be required to attend the public schools in the following cases:
(a) A child who is attending regularly and is being taught in a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade, as determined by the course of study for the public schools of the district within which the nonpublic school is located. [Id.]
There is no procedure for state approval of nonpublic schools. However, a "state approved nonpublic school” is defined in the School Code as a nonpublic school which complies with the private, denominational and parochial schools act (Private School Act). MCL 388.551-558; MSA 15.1921-1928. That act requires at MCL 388.553; MSA 15.1923:
No person shall teach or give instruction in any of the regular or elementary grade studies in any private, denominational or parochial school within this state who does not hold a certificate such as would qualify him or her to teach in like grades of the public schools of the state.
The compulsory school attendance law requires that nonpublic schools use state certificated teachers. They must offer a curriculum comparable to that offered by the local public school and comply with sanitary requirements.
The "home schools” of the DeJonges and the Bennetts do not comply with this law, because they have no state certificated teacher.
hi
THE TEACHER CERTIFICATION REQUIREMENT DOES NOT VIOLATE THE RIGHT TO FREE EXERCISE OF RELIGION UNDER THE FIRST AMENDMENT.
This precise issue has been addressed in the past by the Court of Appeals and by the Michigan Supreme Court. We held that state certification of teachers does not violate the First Amendment right to free exercise of religion. Sheridan Road Baptist Church v Dep’t of Education, 132 Mich App 1; 348 NW2d 263 (1984) (Sheridan). The plaintiffs in Sheridan claimed that the certification requirement placed an unlawful burden on the exercise of their religious beliefs. We acknowledged that this state regulation placed a burden on the plaintiffs’ right to free exercise of religion. However we found the burden minimal when compared with the state’s compelling interest that high quality education be afforded our children. The Supreme Court affirmed in an evenly divided decision. Sheridan Road Baptist Church v Dep’t of Education, 426 Mich 462; 396 NW2d 373 (1986), cert den 481 US 1050 (1987) (Sheridan II). Justices Williams and Boyle wrote affirming opinions with Justice Brickley concurring. Justice Riley favored reversal with Justices Levin and Cavanagh concurring.
The DeJonges contend that Sheridan and Sheridan II should not be given precedential effect. Sheridan II is not binding precedent, as it was not a decision of a majority of the Court. People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973). However we can and do find the reasoning in it persuasive authority. DeMaria v Auto Club Ins Ass’n (On Remand), 165 Mich App 251, 253-254; 418 NW2d 398 (1987). We note that all the justices agreed that the appropriate test in such cases is to balance the state’s interest against the burden imposed on citizens’ First Amendment rights. The state may justify its regulation of teachers by showing that enforcement of it is essential to fulfillment of a compelling state interest. Sheridan II, supra, p 555. The justices disagreed on the interpretation and application of the test.
In analyzing First Amendment free exercise objections, we make the following inquiries: (1) is the belief, or conduct motivated by the belief, religious in nature, (2) does the state regulation impose any burden on the exercise of those beliefs, (3) does some "compelling state interest” justify the burden imposed, and (4) is there a less obtrusive form of regulation available to the state. Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963); Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 15 (1972); Sheridan II, supra, p 475.
Pastor Byker stated that his church allowed delegation of the parents’ education responsibility. He indicated that certain of his parishioners had a child who was enrolled in a Christian school and, presumably, was taught by a certified teacher. Mr. McHugh did not say his academy opposed certification, merely that it disfavored it, because the required humanistic courses conflict with its beliefs. This objection was raised in the Sheridan cases. Sheridan, supra, p 9.
Mrs. DeJonge concurred with both Byker and McHugh. Mr. DeJonge’s objections appeared to go further, in that he believes it a sin to submit to state authority and to employ certificated teachers. Judging from his pastor’s testimony on the subject, this is Mr. DeJonge’s personal religious belief, not the credo of his church. The record contains little to guide us in evaluating this professed belief, and it is difficult to determine its sincerity. See Frazee v Illinois Dep’t of Employment Security, 489 US —; 109 S Ct 1514; 103 L Ed 2d 914 (1989). For the purposes of our analysis, we will assume it is sincere.
We find that the burden imposed by the state certification of teachers on the religious views of Mrs. DeJonge is minimal. As she alleges a violation, she has an obligation to prove the regulation imposes a burden on the exercise of her belief. Hough v North Star Baptist Church, 109 Mich App 780, 783; 312 NW2d 158 (1981). Her religious belief does not prohibit her from hiring certificated teachers. She has failed to show she cannot hire a certificated teacher who meets her qualifications.
It is more difficult to analyze the burden imposed on the personal religious belief of Mr. De-Jonge. He opposes all state regulation of education and, it appears, would object to any state involvement in the education process in practicing this belief. Thus, the burden of the state certification law on the belief is high, and there appears to be no room for compromise. Although Mr. DeJonge’s religious freedom to believe is absolute, his freedom to act on that belief is not. His conduct remains subject to regulation for the protection of societal interests. Cantwell v Connecticut, 310 US 296, 303-304; 60 S Ct 900; 84 L Ed 1213 (1940). Indeed, as Justice Williams pointed out in Sheridan II, supra, p 482:
Religious school teachers may have to receive more training in order to become certified, but the regulations do not require anyone to attend courses taught from a perspective contrary to their beliefs. The teachers can fulfill all the state certification requirements while attending either a religious or nonreligious institution. For these reasons, we find the infringement on free exercise rights is minimal and is outweighed by the state’s interest.
We conclude that the state has a compelling interest which justifies the burden on the De-Jonges’ religious freedom imposed by teacher certification. Michigan has had an intense concern about the quality of the education of its citizens for many years. This has been evident in each of its constitutions, in its case law and in a long line of legislative enactments. Const 1963, art 8, § 1; Const 1908, art 11, § 1; Const 1835, art 10, § 2; Dennis v Wrigley, 175 Mich 621, 625; 141 NW 605 (1913); Sheridan, supra, pp 13-15; Sheridan II, supra, pp 478-482. Maintaining and improving the quality of our education continues to be one of the most important issues in Michigan today. The teacher certification requirement is a backbone in the protection of this vital state interest.
We find that the certification requirement is the least obtrusive means of achieving the state’s interest. In arguing to the contrary, the DeJonges have not proposed an alternative. Their position is based solely on the assertion that most other states do not require certificated teachers in home schools. The DeJonges argue implicitly that teachers should not be required to be licensed, that curriculum and attendance requirements are sufficient to protect the state’s interest. We disagree.
Curriculum and attendance requirements ensure that the student and the educational material are in the same place at the same time. However, they do nothing to ensure that the material is imparted to the child in such a way as to be understandable. Alone they are unlikely to stimulate intellectual curiosity and inquiry or to cause that fascinating conjunction of superficially incompatible facts that is creative thought.
State licensure does not guarantee quality teachers. But one cannot ignore the high likelihood that a person who meets the qualifications for certification has absorbed the knowledge a competent teacher should have. Sheridan, supra, pp 18-20. See also State v Rivinius, 328 NW2d 220 (ND, 1982), cert den 460 US 1070 (1983); State v Patzer, 382 NW2d 631 (ND, 1986), cert den . 479 US 825 (1986); State ex rel Douglas v Faith Baptist Church of Louisville, 207 Neb 802; 301 NW2d 571 (1981), app dis 454 US 803 (1981). A review of Michigan history reveals that the certification process has prepared many fine teachers who have made an inestimable contribution over the years to the citizens of this state.
We conclude that the state’s teacher certification requirement does not violate the DeJonges’ First Amendment right to freely exercise their religion.
IV
THE TEACHER CERTIFICATION REQUIREMENT DOES NOT VIOLATE THE FOURTEENTH AMENDMENT RIGHT OF PARENTS TO DIRECT THE EDUCATION OF THEIR CHILDREN.
The United States Supreme Court has recognized a fundamental right of parents to direct the education of their children. It is independent of the First Amendment and protected under the personal substantive due process guarantees in the Fourteenth Amendment. See Sheridan II, supra, pp 536-540, and cases cited therein. As we have found the certification requirement does not violate rights to free exercise under the First Amendment, we need not analyze its effect on rights under the Fourteenth Amendment. There is no stricter standard of review than that required by the First Amendment. Sheridan II, supra, pp 487-488, n 2, 539-540, n 31.
Having so concluded, we express our disagreement with defendants’ assertions as to the applicable standard of review where the issue is the parents’ right to control education. Defendants allege that the correct test is whether the governmental regulation is justified as necessary to achieve a compelling state interest. We hold that, although parents have a right to control the education of their children, that right is not absolute. Parents must nonetheless comply with state laws. The correct test is whether the state’s regulation bears a rational relationship to some legitimate state purpose. Hanson v Cushman, 490 F Supp 109 (WD Mich, 1980). The state certification requirement meets this standard of review.
v
THE COMPULSORY SCHOOL ATTENDANCE LAW DOES NOT VIOLATE DEFENDANTS’ RIGHTS TO PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.
The Bennetts allege that the compulsory school attendance law as applied by the state is vague. They claim it violated their procedural right to a hearing before prosecution and their right to notice. The DeJonges contend the law denied them their right to a neutral magistrate.
The Bennetts argue that before they can be prosecuted under the compulsory school attendance law, they are entitled to a hearing to determine if their "school” should be closed down. This claim is based on § 4 of the Private School Act. It provides at MCL 388.554; MSA 15.1924:
Sec. 4. In event of any violation of this act the superintendent of public instruction shall serve the person, persons, corporation, association or other agencies who operate, maintain and conduct a private, denominational or parochial school within the meaning of this act with a notice, time and place of hearing .... If at such hearing the superintendent of public instruction shall find that the violation complained of has been established he shall then serve said person, persons, corporation, association or other agencies with an order to comply with the requirements of this act found to have been violated within a reasonable time not to exceed 60 days from the date of such order .... If the order of the superintendent of public instruction as specified in said notice shall not have been obeyed within the time specified herein said superintendent of public instruction may close said school and prohibit the said person, persons, corporation, association or other agencies operating or maintaining such private, denominational or parochial school from maintaining said school or from exercising any of the functions hereunder until said order of the superintendent of public instruction has been complied with. The children attending a private, denominational or parochial school refusing to comply with the requirements hereof after proceedings herein set forth shall be compelled to attend the public schools or approved private, denominational or parochial school under the provisions of the compulsory education act, the same being Act No. 200 of the Public Acts of 1905, as amended.
The Bennetts contend that the mandatory school attendance law and the Private School Act must be read together. They argue their children cannot be compelled to attend a public or approved private school until after a hearing establishes that their "home school” does not comply with the act. They insist they cannot be prosecuted for failure to send their children to a recognized school until it has been established that their children can be compelled to attend. Therefore, they contend, the Private School Act hearing must be held first.
The state responds that the purpose of the hearing referred to by the Bennetts is to close a school. It is not the concern of the prosecutor. The compulsory school attendance law does concern the prosecutor. Its sanctions were intended to be imposed on parents. They are separate from the provisions of the Private School Act which are directed at school administrators. Confusion arises, because in a "home school” situation, the parents are the only administrators.
The Private School Act hearing is not available to the Bennetts, because they have no school to close. This becomes apparent as one realizes just what a school is within the meaning of the Private School Act. The act itself does not offer a definition. It merely provides that a private, denomina tional or parochial school is any school other than a public school giving instruction to children under sixteen years of age. MCL 388.552; MSA 15.1922. We note that when the Legislature passed the Private School Act in 1921, it most likely did not contemplate the type of home study program implemented by the defendants. Only later, after the proliferation of such programs, did it become necessary to determine if they were schools.
A school has been defined by the Supreme Court as an "institution with educational purposes and activities.” Boys’ Clubs of Detroit v Pakula, 342 Mich 150, 156; 69 NW2d 348 (1955). The Bennetts’ program for home study has educational purposes and activities. But it does not qualify as an institution. In some instances a home study program may become a school. The Attorney General ruled at OAG, 1979, No 5579, p 416 (September 27, 1979) (quoting an unpublished letter opinion of the Attorney General, No. M-576 (May 18, 1961), as an accurate statement of the law. See OAG, 1979, No 5579, p 418.):
[A] parent who holds a Michigan teacher’s certificate and provides comparable educational instruction to his child or children in his home or employs a legally qualified tutor who provides comparable instruction to his child or children in his home and meets the sanitary conditions of the same standard as in the public schools, is complying with section 731 of the School Code of 1955, in that he is providing an education for his child or children at a private school.
It is the presence of other elements such as a qualified teacher and comparable instruction which transforms home education into something more akin to an institution and thus to a school. The Bennetts’ program lacks these elements.
Not only is the Bennetts’ program not a school under the Private School Act, it is not a "state approved nonpublic school” as defined by the School Code. As the Bennett children are attending a home study program with instruction by noncertificated teachers, they may be compelled to attend a public school or a "state approved nonpublic school.” MCL 380.1561 et seq.; MSA 15.41561 et seq.
The Bennetts argue that Michigan law as applied to "home schools” is impermissibly vague. The standard was set forth in Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). It requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited. It must not encourage arbitrary and discriminatory enforcement. The Bennetts contend that the statutes do not sufficiently set forth what requirements a "home school” must meet. We disagree.
The penal statute states clearly that parents must send their children to public schools or nonpublic schools that comply with certain requirements. The requirements are set forth in the statutes and include certificated teachers, a comparable curriculum and a minimum amount of instruction. The comparable curriculum requirement has been held not to be unconstitutionally vague. Sheridan, supra, pp 25-26. The certification requirement is easily read to mean that instruction must be given by a teacher who has been granted state certification. These requirements are not vague, and an ordinary person could easily understand them.
The DeJonges contend that their due process rights are violated by a requirement that they have their "home school” approved by the superin tendent of a public school system. A school superintendent has an interest in encouraging children to attend public schools, because the district receives a significant amount of state aid for each additional child. Thus, the DeJonges argue, the magistrate is not neutral.
First we note that no approval process exists. A "state approved nonpublic school” is simply a school which complies with the requirements. MCL 380.6(8); MSA 15.4006(8).
Even if there were an approval process, the DeJonges admit that they did not comply with the teacher certification requirement. Because they admit noncompliance, the hearing officer need not exercise discretion. The result would be the same regardless of the partiality of the magistrate.
vi
THE TITLE-OBJECT REQUIREMENTS OF THE MICHIGAN CONSTITUTION WERE NOT VIOLATED.
Article 4, § 24 of the Michigan Constitution provides in part: "No law shall embrace more than one object, which shall be expressed in its title.” The School Code of 1976 is designed to implement the constitutional mandate to the Legislature to encourage, provide for and maintain elementary and secondary education in this state. Const 1963, art 8, §§ 1 and 2. The Bennetts argue that the School Code is being used to regulate private schools. They are incorrect. Private schools are regulated by the Private School Act.
The compulsory attendance provisions of the School Code place a duty on parents of school-age children to send their children to schools. These provisions do not regulate private schools. They merely provide that the parents may, in discharge of their duty, send their children to a private rather than a public school. Whatever the nature of the school, it must meet the requirements which the state has the power to impose. In re Constitutionality of PA 1970, No 100, 384 Mich 82, 97; 180 NW2d 265 (1970). The title-object requirements of the Michigan Constitution have not been violated.
VII
THERE WAS SUFFICIENT EVIDENCE TO CONVICT THE BENNETTS OF VIOLATING THE COMPULSORY SCHOOL ATTENDANCE LAW.
The Bennetts contend that there was insufficient evidence to convict them of violating the compulsory school attendance law. They argue that the prosecutor did not prove beyond a reasonable doubt that they failed to comply with state requirements. The requirements in question were the availability of a certificated teacher for instruction and a curriculum comparable to those in the public schools. The trial court found that the Bennetts failed to satisfy each of these requirements. Both must be met in order to qualify for the exemption. MCL 380.1561(3)(a); MSA 15.41561(3)(a).
We conclude that the prosecutor presented sufficient evidence from which the trier of fact could conclude that the Bennetts did not supply a certificated teacher to instruct their children. Both the general school laws and the Private School Act prohibit instruction by any person who does not hold a valid teaching certificate. MCL 380.1233; MSA 15.41233, MCL 388.553; MSA 15.1923. The exceptions do not apply to this case.
The testimony of the Bennetts and of Dr. Montgomery leave no doubt that Mrs. Bennett was providing the Bennett children all of their instruc tion. Sandra Bennett admitted that she did not have a teacher’s certificate. Occasional visits to the certificated teacher do not fulfill the state requirement. The record reveals that the certificated teacher’s role was supervisory and administrative, not instructional. There was certainly sufficient evidence presented from which the trial court could conclude that the Bennetts did not satisfy this requirement and thus violated the compulsory school attendance law.
Based on our conclusion, we find it unnecessary to address the Bennetts’ allegations concerning proof on the remaining requirements.
VIII
CONCLUSION
We affirm the defendants’ convictions. The state requirement of certification of teachers as applied to defendants is constitutional under the First Amendment right to free exercise of religious beliefs. It also satisfies Fourteenth Amendment substantive and procedural due process guarantees. The title-object requirements of the Michigan Constitution were not violated. There was sufficient evidence to support the Bennetts’ convictions.
Affirmed.
The DeJonges also argue that the state did not approve at trial that it had a compelling interest. Although the prosecutor did not present proofs that there was such an interest, he did rely on this Court’s decision in Sheridan. That case was on appeal to the Supreme Court at the time. The trial court was entitled to rely on it as persuasive authority. Sheridan clearly stands for the proposition that the state has a compelling interest in education.
The DeJonges further attack Sheridan by arguing that a stipulation entered into by the parties in that case weakens its authority. This stipulation was not part of the record below and will not be considered by this Court. Banta v Serban, 370 Mich 367, 368, n 1; 121 NW2d 854 (1963). The DeJonges cite no authority for the proposition that a stipulation by parties in an unrelated lawsuit has any effect beyond the bounds of that case.
Assuming Mr. DeJonge opposes all state regulation in the education of his children, he would oppose curriculum and attendance requirements. The exercise of his belief would leave the state interest unprotected. Unfortunately, Mr. DeJonge did not elaborate on the extent of his belief. One may reasonably assume that he believes the state has no compelling interest in his children’s education or that it does not need to protect its interest. | [
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Sawyer, J.
Defendant appeals from an order of the circuit court permanently enjoining it from seizing a liquor license for a bar and restaurant which was formerly owned by plaintiffs and transferred pursuant to an installment sale of the establishment. Defendant sought to attach the liquor license to collect tax liens against the transferee of the license, Qualey-Reid, Inc. Plaintiffs have retaken possession of the bar and restaurant and entered into an agreement to resell it to another party, including a transfer of the license. We affirm.
Plaintiffs sold the bar and restaurant known as the "Saw Mill,” located in Traverse City, to Qualey-Reid in 1981. Plaintiffs financed a large portion of the sale price and retained a security interest in the furniture, fixtures, equipment, inventory, and accounts receivable. Plaintiffs perfected this security interest by filing a financing statement with the Secretary of State. The liquor license was not listed in the financing statement. Plaintiffs assert that the liquor license was not included in the security agreement or financing statement because of the restrictions imposed by the Liquor Control Commission’s Rule 19, being 1979 AC, R 436.1119, subsection 3 of which prohibited a security agreement from including the license or alcoholic liquor.
Qualey-Reid neglected to pay state sales and withholding taxes and defendant filed tax liens against Qualey-Reid for the delinquent taxes. Meanwhile, Qualey-Reid also defaulted upon its purchase agreement with plaintiffs and plaintiffs retook possession of the bar and restaurant on August 21, 1986. By agreement entered into on that date, Qualey-Reid agreed to return possession of the bar and restaurant to plaintiffs and cooperate in having the liquor license transferred to plaintiffs or their designee. Plaintiffs also agreed to sell the bar and restaurant and transfer the liquor license to a third party, pending, of course, approval by the Liquor Control Commission. Plaintiffs gave notice of their plans to defendant, which announced its intention to seize the liquor license and enforce its tax liens. In response, plaintiffs brought the instant action to enjoin defendant from interfering with the operation of the bar and restaurant and from seizing the liquor license or other assets of the bar and restaurant.
The question before us appears to be one of first impression, namely, whether defendant can place a tax lien on a liquor license. Defendant argues that a liquor license is a property interest subject to a tax lien, citing a number of federal cases. Plaintiffs respond that the trial court correctly concluded that, while there is a property interest in a liquor license for due process considerations, there is not a property interest such that a tax lien may be attached to a license. We do not believe that we must resolve this question, as the circumstances of this case allow us to conclude that defendant may not attach its tax lien to the liquor license involved.
As previously noted, the Liquor Control Commission’s Rule 19 at the time of the sale by plaintiff to Qualey-Reid prohibited attachment of a security interest to a liquor license. This Court, however, has recognized that a licensee who sells his establishment and transfers his liquor license to the vendee may, as part of the transaction, enter into a contract with the purchaser for a reassignment of the liquor license to the vendor in the event of a default on the installment sales contract. See Bunn v Liquor Control Comm, 125 Mich App 84, 92; 335 NW2d 913 (1983). This Court’s decision did not, however, upset the rule that a security interest in the license cannot be granted. Id. Furthermore, it also noted that the transfer of the license would still be subject to approval by the Liquor Control Commission. Id. at 92-93.
In the case at bar, a major thrust of defendant’s argument is that its tax lien should take priority over any interest by plaintiffs in a reassignment of the license to themselves since their security interest in the license was not listed in the security agreement or financing statement. Defendant dismisses plaintiffs’ argument regarding Rule 19 by arguing that Rule 19 is invalid in light of the provisions of the Uniform Commercial Code which control the filing of financing statements. We believe that defendant’s argument is disingenuous.
At the time plaintiffs sold their establishment and agreed to the transfer of their liquor license to Qualey-Reid, a rule promulgated by the Liquor Control Commission prohibited plaintiffs from taking a security interest in the license. Thus, it is entirely reasonable and expected that the liquor license would not be listed by plaintiffs in the security agreement or on the financing statement. Yet, the state now argues that plaintiffs’ compliance with that rule should work to their detriment by allowing the state to have a higher priority claim against the license than do plaintiffs. Regardless of the validity of Rule 19, we do not believe that equity would permit defendant to now argue that Rule 19 is invalid and plaintiffs’ compliance with that rule should work to their detriment.
Although defendant and the Liquor Control Commission are separate divisions of the state government, they are, nevertheless, both part of the executive branch of the government of the State of Michigan. As such, we believe that equity prohibits the government from, on the one hand, promulgating a rule and, on the other hand, denying the validity of that rule to the detriment of a person who complied with the rule. That is, the government is estopped from denying the validity of its own rule where to hold the rule invalid would work to the detriment of a private party. It makes no difference that it may have been a different department, division, bureau, or commission which promulgated the rule.
Indeed, the federal courts have recognized the existence of an equitable lien on behalf of a transferee of a liquor license where Rule 19 prohibited the transferee from taking a security interest. See In the Matter of Gullifor, 47 BR 450 (ED Mich, 1985). Turning to the case at bar, although the liquor license was not listed on the security agreement or financing statement, the security agreement and financing statement do make clear that plaintiffs intended to retain a security interest in all of the assets to the extent permitted by law. Additionally, plaintiffs have represented that the purchase agreement between themselves and Qualey-Reid provided for a reassignment of the liquor license in the event of default on the installment sales contract, though we have been unable to find a copy of that purchase agreement in the lower court record and cannot confirm this fact.
In sum, we believe that, since a promulgated rule of the state provided that petitioners could not retain a security interest in the liquor license, the state cannot now seek to benefit from the fact that plaintiffs did not retain a security interest in that liquor license. That is, since the state prevented plaintiffs from taking a security interest in the liquor license, we hold that the state is now prevented from claiming a higher priority to the liquor license than plaintiffs where plaintiffs, in effect, repossessed the liquor license due to QualeyReid’s default on the contract. Therefore, while our reasoning differs somewhat from the trial court’s, we affirm the trial court’s order permanently enjoining defendant from attaching its tax lien to the liquor license.
With respect to defendant’s argument that MCL 205.28; MSA 7.657(28) prohibits injunctive relief, we disagree. Although that statute does prohibit the issuance of an injunction to stay proceedings for the assessment and collection of a tax, it has been recognized that an injunction may nevertheless issue against the Department of Treasury where the taxpayer alleges that the department’s actions are not "under” or "pursuant to” the tax statute because there is no basis for the department’s action. See Troy Industrial Catering Service, Inc v Dep’t of Treasury, 105 Mich App 86; 307 NW2d 345 (1981). Since, as discussed above, it was improper for defendant to seek to seize the liquor license, and no tax lien could attach to the license, we believe that the issuance of an injunc tion was appropriate to prevent harm to plaintiffs by defendant’s unauthorized actions.
With respect to plaintiffs’ argument that the issue on appeal is moot since the liquor license has been transferred to the subsequent purchaser, we need not decide that issue in light of our conclusion that no tax lien could attach to the license. We would point out, however, that it does not appear that the issue would be moot since, were we to reverse the trial court, it is feasible that the trial court could fashion some remedy.
For the above reasons, we conclude that, under the circumstances of this case, defendant could not attach a tax lien to the liquor license and seize that license and, therefore, the trial court properly enjoined defendant from doing so.
Affirmed. Plaintiffs may tax costs.
In any event, we do not believe it is controlling whether the purchase agreement provided for a reassignment of the license.
We do note, however, that we specifically do not address the question whether a liquor license can be subject to a tax lien under the modified Rule 19 since a licensee is now permitted to pledge the license as security under a security agreement. That rule modification might well permit defendant to attach tax liens to liquor licenses after the effective date of that rule change, but we leave it to another panel to resolve that question should it arise. In any event, even should such a lien be permitted, we would think it would be inferior to the vendor’s interest in "repossessing” a liquor license from a transfer which occurred under an installment sales contract executed while the prior version of Rule 19 was still in effect. | [
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Doctoroff, J.
Defendant Auto Club Group Insurance Company appeals from a July 7, 1988, order denying its motion for summary disposition and requiring Auto Club to defend plaintiff in a pending civil lawsuit alleging assault and battery. Finding that Auto Club has no duty to defend plaintiff, we reverse.
In a related case, plaintiff was criminally charged with aggravated assault as a result of an incident with his girl friend which occurred on September 20, 1986. He eventually pled guilty to a lesser charge of assault and battery. At his guilty plea hearing, plaintiff admitted grabbing his girl friend’s arm without her consent to obtain his car keys.
Plaintiff’s girl friend then filed the underlying civil lawsuit alleging that plaintiff "negligently battered” her five times and committed five "negligent” assaults and batteries. As a result, she suffered serious injuries.
At the time of the alleged assault, plaintiff was a named insured under Auto Club’s homeowner’s insurance policy. Plaintiff tendered the civil complaint to Auto Club. Maintaining that an assault and battery cannot be the result of negligence and that the injuries from an assault and battery were not covered by its policy, Auto Club declined to defend plaintiff.
Plaintiff filed the instant declaratory action, seeking a ruling that Auto Club was required to defend him. Following Auto Club’s answer, plaintiff moved for summary disposition, maintaining that Auto Club was required to defend him because the incident never occurred and because his girl friend’s lawsuit was groundless, false and fraudulent. Auto Club filed a countermotion for summary disposition, alleging that the assaults and batteries were not an "occurrence” as defined by the policy and that, in any case, the exclusion for "expected or intended” injuries applied to bar coverage.
Following a hearing on the motions, the trial court concluded that, because a question of fact existed as to whether plaintiff inflicted injuries upon his girl friend, Auto Club was required to defend him. The underlying case was stayed pending this appeal.
The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party’s allegations to analyze whether coverage is possible. In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. The Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich App 136, 141-142; 301 NW2d 832 (1980); Linebaugh v Berdish, 144 Mich App 750, 762; 376 NW2d 400 (1985).
The policy involved in this case provided coverage for bodily injury caused by an "occurrence,” and defines "occurrence” as "an accident.” In addition, the policy excludes from coverage "bodily injury . . . which is either expected or intended from the standpoint of the Insured.”
The complaint filed against plaintiff alleges a "negligent assault and battery.” There is no duty to defend or provide coverage where the complaint is a transparent attempt to trigger insurance coverage by characterizing allegations of tortious conduct under the guise of "negligent” activities. Aetna Casualty & Surety Co v Sprague, 163 Mich App 650, 654; 415 NW2d 230 (1987); Linebaugh, p 763. Assault and battery are intentional acts. People v Bryant, 80 Mich App 428, 433; 264 NW2d 13 (1978).
We conclude that the complaint filed against plaintiff was a transparent attempt to characterize tortious conduct as negligence. Plaintiff’s girl friend is suing for injuries sustained in an alleged assault and battery. These injuries are not covered by Auto Club’s homeowner’s insurance policy because they did not result from an accident but were, as a matter of law, either intended or expected by the insured.
Plaintiff claims that his girl friend’s injuries were the result of a beating at someone else’s hands. He argues that, because he denies the incident occurred, he is entitled to insurance defense. This argument is without merit.
In a case where an insured is sued for tortious conduct and argues self-defense, there is no duty to defend. Century Mutual Ins Co v Paddock, 168 Mich App 747, 753; 425 NW2d 214 (1988). The rationale behind this is that, regardless of the jury’s finding on the self-defense issue, the insurer would be under no duty to pay on behalf of the insured. Where the jury accepted the insured’s version of self-defense, there would be no liability on the part of the insured. If the jury rejected the insured’s version of self-defense, the insured would have committed an intentional act not covered by the policy. Id. Where neither outcome leads to a duty of the insurer to pay on behalf of the insured, we will refuse to impose on the insurer a duty to defend. Id., pp 753-754.
Likewise, in the instant case, should the jury believe plaintiffs version that the incident did not occur, neither plaintiff nor Auto Club would be liable for damages. Should the jury reject plaintiff’s version, he would have committed an intentional act not covered by the policy. In either case, Auto Club is not liable and, thus, has no duty to defend.
Plaintiffs creative argument that his girl friend’s act of filing an allegedly fraudulent lawsuit is the "occurrence” for which Auto Club has a duty to defend is also without merit. An accident is "an event occurring by chance; an unexpected happening.” Webster’s New Collegiate Dictionary (1981), p 7. The filing of a lawsuit is not an accident. See Allstate Ins Co v Moulton, 464 So 2d 507 (Miss, 1985).
Thus, the trial court’s conclusion that it would deny Auto Club’s motion for summary disposition on the basis that a question of fact existed as to whether plaintiff inflicted the alleged injuries was incorrect. That issue is not relevant or material to plaintiff’s claim that Auto Club should be required to defend him. No matter how the assault and battery claim is resolved, Auto Club is not liable and has no duty to defend plaintiff.
Reversed. | [
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R.L. Tahvonen, J.
Blue Cross and Blue Shield of Michigan appeals as of right a circuit court order entered on January 20, 1988, affirming a declaratory ruling by the Commissioner of Insurance. We affirm.
Bcbsm, a nonprofit health care corporation, makes payments for medical services directly to participating health care providers, pursuant to agreements entered with them. The agreements stipulate that bcbsm will pay for only medically necessary and appropriate treatments. Due to the large number of claims received, bcbsm does not determine the appropriateness of a claim prior to payment. Instead, it engages in a procedure known as a postpayment audit, whereby auditors take a sample of a provider’s billings for a certain period of time. A medical consultant to bcbsm examines the sample to determine if the provider’s medical procedures were necessary and appropriate. The percentage of procedures found to be medically unnecessary or inappropriate is then projected onto the entire universe of claims submitted by that provider during the period of time at issue, on the assumption that that percentage of all procedures utilized by the provider was improper. Bcbsm then denies payment of that percentage of all claims for that period. It requests repayment for the "denied” claims, and if the provider refuses to make payment, bcbsm withholds payment on current claims until the amount is recouped.
Several providers who were notified that portions of their claims had been denied sought a review under MCL 550.1404(1); MSA 24.660(404X1), which is part of the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq.; MSA 24.660(101) et seq. Pursuant to §404(1), each provider requested an informal managerial-level conference. In each case, bcbsm failed to hold the conference within thirty days as required by § 404(3). The providers then sought review and determination of the matter by the commissioner, pursuant to §404(3), alleging that bcbsm’s postpayment audit procedure violated certain portions of MCL 550.1402; MSA 24.660(402) and MCL 550.1403; MSA 24.660(403). An Insurance Commissioner designee conducted a review of each claim and found that bcbsm had violated specific subsections of §§ 402 and 403, and had therefore improperly denied claims. Thus, bcbsm had no right to withhold payment of current claims and was ordered to pay any monies withheld.
Pursuant to MCL 24.263; MSA 3.560(163), bcbsm requested a declaratory ruling from the commissioner as to the applicability of §§ 402, 403, and 404, as well as the insurance bureau rules entitled "Procedures for Informal Managerial-Level Conferences and Review by Commissioner of Insurance,” 1986 AACS, R 550.101 et seq., to its postpayment audit procedures. The commissioner issued a declaratory ruling that found, among other things, that the conference and review process outlined in § 404 applied to postpayment audits and that 1986 AACS, R 550.108 provided remedies for wrongfully refused claims.
Bcbsm requested that the commissioner reconsider his declaratory ruling with respect to the scope of remedies available for wrongfully refused claims. Specifically, bcbsm sought a ruling that, apart from the cease and desist provisions in § 402(7), the commissioner had no authority to grant monetary or injunctive relief. The commissioner declined to so rule.
Pursuant to MCL 24.263; MSA 3.560(163), bcbsm filed a petition in Ingham Circuit Court seeking review of the commissioner’s decisions. The circuit court upheld the commissioner’s ruling.
Bcbsm’s first claim on appeal is that the trial court erred in determining that the commissioner had not exceeded his authority by ruling that remedies for disputes involving refused claims included ordering payment of a refused claim or ordering that no monies need be repaid to bcbsm. Bcbsm argues that, while the commissioner can investigate and review the audit procedures used by bcbsm and issue a cease and desist order prohibiting continuation of an unfair trade practice after a contested hearing under § 402(7), the commissioner cannot order payment of a denied claim. Section 404(4) provides:
The commissioner shall by rule establish a procedure for determination under this section, which shall be reasonably calculated to resolve these matters informally and as rapidly as possible, while protecting the interests of both the person and the health care corporation.
Rule 108 provides in part:
(1) If the decision by the commissioner or the commissioner’s designee indicates that the grievant’s claim was wrongfully refused in violation of section 402 or section 403 of Act No. 350 of the Public Acts of 1980, as amended, being § 550.1402 or § 550.1403 of the Michigan Compiled Laws, the wrongfully refused claim shall be paid within 30 days of the date the decision is mailed to the health care corporation.
Bcbsm asserts that an agency may not grant to itself by rule more authority than is provided to it by statute, Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 589; 50 NW2d 322 (1951), and argues that Rule 108 grants more authority to the commissioner than is granted to him by §§ 404(4) or 402(7). We disagree.
Section 404(4) requires the commissioner to establish a procedure reasonably calculated to resolve disputes, including disputes over refused claims. As the trial court noted, a process reasonably calculated to resolve a dispute must include a decision as to whether the refused claim must in fact be paid. The decisions that bcbsm must not withhold payment on current claims and that providers need not refund monies previously received are designed to resolve the disputes. The remedies provided under § 404 are not limited by § 402(7), nor does § 402(7) contain the only remedy available to the commissioner. Section 404 expressly grants the commissioner the authority to engage in dispute resolution. Provision of remedies for violations of statutes, as contained in Rule 108, is necessary in order to effectuate the resolutions.
Bcbsm next claims that the informal conference procedure utilized by the commissioner violates its right to due process. It argues that it has a property interest in the overpayments to providers and that right is extinguished by the nonevidentiary hearing. We disagree. Section 404(5) provides the health care corporation, as well as the provider, with the right to request a contested-case hearing if it does not agree with the results of the informal procedures. Thus, even if bcbsm has a property right in the overpayments, that interest is protected by the procedures provided by the statute. An essential principle of due process is that a person shall not be deprived of property without prior notice and an opportunity to be heard. Cleveland Bd of Ed v Loudermill, 470 US 532, 542; 105 S Ct 1487; 84 L Ed 2d 494 (1985). Bcbsm was afforded the opportunity to present any information it wished during the informal conference which, along with the availability of a contested-case hearing, gave bcbsm a meaningful opportunity to be heard before any property interest was extinguished.
Bcbsm last claims that the informal conference procedure used by the commissioner violates its right to equal protection because the commissioner treats bcbsm differently than other insurance companies when interpreting and applying the prohibitions against unfair trade practices. However, bcbsm is not an insurance company, but is a health care corporation. Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 14-15, 84; 367 NW2d 1 (1985), reh den 422 Mich 1206 (1985), app dis 474 US 805; 106 S Ct 40; 88 L Ed 2d 33 (1985). Because entities such as bcbsm and private insurance companies have inherent differences, the state may create separate classifications for purposes of regulating the entities. Id. Thus, bcbsm’s treatment may differ from that of private insurance companies. Bcbsm has not shown that the treatment afforded it under the procedures utilized by the commissioner pursuant to §§ 402, 403, and 404 had no rational basis, as required for an equal protection claim based on a nonsuspect classification. Michigan Ass’n of Governmental Employees v Civil Service Comm, 125 Mich App 180, 191-192; 336 NW2d 463 (1983), lv den 417 Mich 1095 (1983).
Affirmed. | [
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Per Curiam.
In this interlocutory appeal, defendant appeals by leave granted from an August 15, 1988, pretrial order denying his motion to suppress certain blood-test evidence. We affirm.
On March 26, 1988, defendant was involved in an automobile accident when his vehicle collided with a second vehicle driven by Lori Kay Blankenship. Blankenship died as a result of injuries sustained in the accident. Defendant was transported while unconscious to a local medical facility, where blood was drawn and evaluated for purposes of medical treatment. The blood test revealed an alcohol level of 0.31 percent.
Pursuant to § (9) of the so-called implied consent statute, MCL 257.625a(9); MSA 9.2325(1)(9), the blood-alcohol test results were turned over to the prosecution. Defendant was charged with manslaughter, MCL 750.321; MSA 28.553, as a result of Blankenship’s death.
On July 18, 1988, in People v Perlos, 170 Mich App 75; 428 NW2d 685 (1988), a panel of this Court held that MCL 257.625a(9); MSA 9.2325(1)(9) is unconstitutional because it permits searches and seizures without warrant of a conscious driver’s blood in violation of US Const, Am IV and Const 1963, art 1, § 11, and violates a conscious driver’s equal protection rights guaranteed by US Const, Am XIV, § 1 and Const 1963, art 1, § 2. The rationale behind the equal protection holding was that there is no rational basis for denying conscious drivers who are in the hospital the same opportunity to refuse a blood test as is granted to conscious drivers who are not in the hospital. Id., pp 89-90.
The prosecution responded to the Perlos decision by obtaining a search warrant on August 5, 1988, to obtain the medical record containing defendant’s blood-test results. The search warrant was executed the same day. Four days later on August 9, 1988, defendant filed a motion to suppress evi dence of the blood-test results based on the Perlos decision.
At the August 15, 1988, hearing on the motion, the trial court refused to follow the holding in Perlos regarding the constitutionality of the statute. The trial court held that evidence of the blood-test results was admissible under the statute and, in any event, would be admissible under the alternative arguments made by the prosecutor as to inevitable discovery, independent source or good faith.
On appeal, defendant contends that the trial court erred in refusing to follow the Perlos holding regarding the constitutionality of MCL 257.625a(9); MSA 9.2325(1X9). We agree. A published opinion of this Court has precedential effect under the rule of stare decisis. MCR 7.215(C)(2). As such, a trial judge is constrained to follow a decision by any panel of this Court unless it is contradicted by another panel or overruled by our Supreme Court. In the Matter of Hague, 412 Mich 532, 552; 315 NW2d 524 (1982), reh den 413 Mich 1106 (1982); Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 417; 383 NW2d 219 (1985), lv den 425 Mich 856 (1986).
Nevertheless, we conclude that the trial court’s error does not require reversal because the trial court correctly ruled that the inevitable discovery doctrine also supports the admission of the evidence of the blood-test results.
In reaching this conclusion, we begin by noting that, unlike the trial court, we are not required to follow the opinion of another panel of this Court, although we normally do so unless cognizant reasons appear for not doing so. Moorhouse, supra, p 417. While the instant appeal was pending, the panel in Perlos granted rehearing and another panel of this Court, in a case involving a defen dant who was apparently semiconscious when his blood was drawn at a hospital for purposes of medical treatment, upheld the constitutionality of MCL 257.625a(9); MSA 9.2325(1)(9) contrary to the Perlos decision. See People v England, 176 Mich App 334; 438 NW2d 908 (1989).
The instant case is factually distinct from both Perlos and England since it involves a defendant who undisputedly was unconscious when his blood was drawn at the hospital for purposes of medical treatment. Further, the record shows that this same evidence was subsequently obtained pursuant to a valid search warrant.
At the center of the controversy here is whether evidence of the blood-test results must be suppressed under the exclusionary rule of Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963), as the so-called fruit of the poisonous tree. Under this exclusionary rule, the appropriate inquiry, where a defendant claims that physical evidence should be suppressed as a result of an unlawful seizure, is whether that evidence was procured by an exploitation of the illegality or, instead, by means sufficiently distinguishable to be purged of the primary taint. People v Jones, 66 Mich App 223, 230-231; 238 NW2d 813 (1975), modified on other grounds 397 Mich 871 (1976). This is not a "but for” test, but rather depends on whether there has been an exploitation of the primary illegality. Jones, supra.
The primary illegality here stems from the fact that the blood-test results were initially obtained without a search warrant pursuant to a statute that was declared unconstitutional in Perlos. In the event that the Perlos rationale is followed, the prosecution argues that there was no exploitation of the primary illegality because it later obtained the same evidence under a valid search warrant and, hence, was admissible pursuant to the inevitable discovery exception to the exclusionary rule. By contrast, defendant contends that the only question is whether the evidence was obtained by means of an independent source and that, pursuant to Perlos, a consideration of the independent source doctrine does not justify admitting the evidence because the prosecutor already had knowledge and possession of the evidence before the search warrant was obtained.
The panel in Perlos recently reversed its position on the independent source doctrine and remanded to the lower court to determine whether the evidence, which was obtained without a warrant, may be purged of any taint by the prosecutor’s establishment of independent acquisition of the evidence. See People v Perlos (On Rehearing), 177 Mich App 657; 442 NW2d 734 (1989). In any event, the independent source and inevitable discovery doctrines provide separate and distinct exceptions to the exclusionary rule. In Nix v Williams, 467 US 431, 443-444; 104 S Ct 2501; 81 L Ed 2d 377 (1984), the United States Supreme Court, in comparing the inevitable discovery and independent source doctrines, stated:
[T]he derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. . . . The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred. . . . When the chai lenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule. [Emphasis in original.]
The purpose of the inevitable discovery doctrine is to block setting aside convictions that would have been obtained without police misconduct. 467 US 443, n 4. The inevitable discovery doctrine is recognized in Michigan and may justify the admission of otherwise tainted evidence which ultimately would have been obtained in a constitutionally accepted manner. People v Spencer, 154 Mich App 6; 397 NW2d 525 (1986); People v Harajli, 148 Mich App 189; 384 NW2d 126 (1986), lv den 426 Mich 867 (1986). The test is whether the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would be discovered by lawful means. Spencer, supra, p 18. The trial court’s ruling will be upheld unless clearly erroneous. Harajli, supra, p 194.
Here, the prosecutor ultimately discovered the evidence by lawful means, namely, a valid search warrant. The warrant was based on the affidavit of a sheriffs deputy who investigated the automobile accident. The affiant averred facts which came to light at the scene of the accident and during the investigation of the cause of the accident. It recites statements from people with firsthand knowledge of defendant’s insobriety prior to and immediately preceding the time of the accident. None of the facts upon which the warrant was subsequently granted were in any way tainted by the poison of the initial acquisition of the blood-test results.
On the basis of this record, we find no error in the trial court’s decision to admit the evidence of the blood-test results obtained upon execution of the search warrant under the inevitable discovery exception to the exclusionary rule. The evidence obtained under the warrant was not tainted by any prior police error or misconduct and, hence, is not subject to the exclusionary rule. To hold otherwise would put the prosecution not in the same, but in a worse, position than it would have been had there been no prior error or misconduct. Such a result would be particularly egregious where, as here, the "error” or "misconduct” was merely that of relying upon a statute which only later was declared unconstitutional in Perlos. In sum, we conclude that defendant is not entitled to any relief on this issue for the reason that no constitutional infirmity results from the admission of evidence of the blood-test results at trial.
The prosecution has raised a second issue in this interlocutory appeal that we shall briefly dispose of. The prosecution has requested that we decide whether the physician-patient privilege of MCL 600.2157; MSA 27A.2157 operates to preclude the prosecution from introducing defendant’s blood-test results at trial. We decline to address this issue for the reason that it has not yet been addressed by the trial court and was not raised by defendant in his application for interlocutory appeal. In granting defendant’s application, this Court specifically limited the appeal to the issues raised in the application and supporting brief.
In passing, we note that the panel in Perlos did not address the physician-patient privilege issue in ruling that MCL 257.625a(9); MSA 9.2325(1)(9) was unconstitutional, while the panel in England did address this issue. The England Court concluded that the physician-patient privilege is not available when evidence is obtained under the implied consent statute. Should defendant raise the physician-patient issue on remand, our holding in this interlocutory appeal should not be construed as precluding the trial court from now relying on England to resolve the privilege issue.
In conclusion, we hold only that evidence of the blood-test results was admissible under the inevitable discovery exception to the exclusionary rule, notwithstanding the current conflict between the decisions in Perlos and England on the constitutionality of MCL 257.625a(9); MSA 9.2325(1X9).
Affirmed.
MCL 257.625a(9); MSA 9.2325(1X9) states:
If after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver’s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol or presence of a controlled substance or both in the person’s blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.
The affidavit, in part, provided:
Affiant states that on said date, he was dispatched to the scene of the accident. At the scene, he observed Gary Kroll in the driver’s seat of his vehicle and observed the odor of alcohol on Gary Kroll’s breath. He also observed several empty beer bottles or cans on the floor of the Kroll vehicle.
Affiant states further that Dep. Darryl Bonebrake, MCSD, was also at the accident scene. Dep. Bonebrake advised Affiant that he had spoken with Mike Kroll, brother of Gary Kroll at the accident scene. Mike Kroll told Dep. Bonebrake that he and Gary had been at the Half Moon Saloon just prior to the accident. Gary left the bar alone. Mike Kroll told Dep. Bonebrake that "I shouldn’t have let him drive; he was too drunk to drive.” Dep. Bonebrake advised Affiant of the statement made by Mike Kroll.
Affiant also states that he spoke with Christy Porter, a security officer at Hackley Hospital, who was working on the date in question. Mrs. Porter informed Affiant that she had contact with Mike Kroll while he was at the hospital after Gary Kroll was admitted for treatment on March 26, 1988. Mrs. Porter described the contact to Affiant: Mike Kroll appeared intoxicated and was upset. He stated: I should have driven when Gary asked me to. He was in worse shape than me. | [
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Neff, J.
Petitioner appeals as of right from a circuit court order denying his motion to set aside the suspension of his driver’s license. We reverse.
In June, 1987, petitioner pled guilty to fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5). Fourth-degree esc is a misdemeanor, punishable by imprisonment for not more than two years, or by a fine of not more than $500, or both. For purposes of this appeal, petitioner does not contest that the acts that gave rise to his conviction occurred in or about a motor vehicle.
After petitioner’s conviction for fourth-degree esc, the circuit court clerk forwarded to respondent an abstract report of court order and record of conviction, which stated that petitioner had been convicted of "felony auto used — crim. sexual conduct 4th degree.”
On July 21, 1987, respondent suspended petitioner’s driver’s license for a period of one year. The suspension was ordered pursuant to MCL 257.319; MSA 9.2019.
Petitioner thereafter filed a petition in the circuit court for restoration of his driver’s license. After a hearing was held on the petition on January 22, 1988, the circuit court entered an order granting petitioner a restricted driver’s license. That order specifically reserved the issue whether the suspension ordered by respondent in July, 1987, was valid and proper.
Petitioner thereafter filed a motion in circuit court to set aside the suspension of his driver’s license. An order denying petitioner’s motion was entered on May 23, 1988.
On appeal, petitioner argues that respondent did not have the authority to suspend his driver’s license under MCL 257.319; MSA 9.2019 on the basis of his conviction for fourth-degree esc. We agree.
i
The version of MCL 257.319; MSA 9.2019 in effect at the time petitioner was convicted of fourth-degree esc provided in pertinent part:
(1) The secretary of state shall immediately suspend for a period of not less than 90 days, nor more than 2 years, the license of a person upon receiving a record of the conviction of that person of any of the following crimes, whether the conviction is under a law of this state, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state:
(c) A crime punishable as a felony under a law of this state regulating motor vehicles, or any other felony in the commission of which a motor vehicle was used.
Where the language of a statute is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded. The Legislature must have intended the meaning plainly expressed, and the statute is to be enforced as written. Smith v Ruberg, 167 Mich App 13, 16; 421 NW2d 557 (1988).
The language of the statute in this case is clear and unambiguous. Therefore, it is not subject to further construction.
The Legislature clearly intended that, under MCL 257.319(l)(c); MSA 9.2019(l)(c), there would be two categories of crime that would lead to mandatory suspensions. The first category includes both felonies and crimes punishable as felonies that involve the state regulation of motor vehicles. The second category of crimes necessitating mandatory suspension includes only felonies that involve the use of the motor vehicle. Unlike the first category of crimes contained in the statute, the second category makes no mention of crimes "punishable as a felony.”
ii
Fourth-degree esc is a statutorily defined misdemeanor. It is not a crime which fits into either category which the Legislature intended, by the clear and unambiguous language of MCL 257.319(l)(c); MSA 9.2019(l)(c), to lead to the suspension of driving privileges on conviction. Accordingly, the suspension of petitioner’s driver’s license was improper.
In addition, a reading of the entire statute shows that the crimes for which convictions are intended to result in suspension of driving privileges are all intimately related to the use of a motor vehicle as a part of the criminal activity. These include manslaughter or negligent homicide resulting from the operation of a motor vehicle, falsifying registration of a motor vehicle, reckless driving and so on. The offense petitioner committed was only fortuitously related to the use of a motor vehicle as the situs of the crime. Clearly the Legislature did not intend for such crimes to be included within the ambit of the statute in question. _
in
Reversed. This case is remanded to the trial court for entry of an order setting aside the July 21, 1987, suspension of petitioner’s driver’s license. We do not retain jurisdiction.
Note also that the statute is part of the Vehicle Code, not part of the Penal Code. This further strengthens the conclusion that only crimes in which motor vehicles are an integral part of the illegal activity are intended to result in loss of driving privileges.
We note that MCL 257.319; MSA 9.2019 has been amended by the Legislature since the time of petitioner’s conviction for fourth-degree esc. The amended act applies to violations that occurred on or after July 1,1988, and now states in pertinent part:
(1) The secretary of state shall immediately suspend for a period of not less than 90 days, nor more than 2 years, the license of a person upon receiving a record of the conviction of the person or the entry of a probate court order of disposition for a child found to be within the provisions of chapter XHA of Act No. 288 of the Public Acts of 1939, being sections 712A.1 to 712A.28 of the Michigan Compiled Laws, for any of the following crimes or attempts to commit any of the following crimes, whether the conviction or probate court disposition is under a law of this state, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state:
(c) A violation of section 324, 413, 414, or 479a of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.324, 750.413, 750.414, and 750.479a of the Michigan Compiled Laws; or a violation of section 1 of Act No. 214 of the Public Acts of 1931, being section 752.191 of the Michigan Compiled Laws.
(g) A felony in which a motor vehicle was used. As used in this section, "felony in which a motor vehicle was used” means a felony during the commission of which the person convicted operated a motor vehicle and while operating the vehicle presented real or potential harm to persons or property and 1 or more of the following circumstances existed:
(i) The vehicle was used as an instrument of the felony.
(ii) The vehicle was used to transport a victim of the felony.
(in) The vehicle was used to flee the scene of the felony.
(iv) The vehicle was necessary for the commission of the felony.
Fourth-degree esc is not a violation of any of the acts enumerated in subsection (c) of the amended act. Moreover, at the time petitioner committed fourth-degree esc, he was not "operating” a motor vehicle, as provided in subsection (g) of the amended act. Thus, under the amended version of the statute, respondent could not have suspended petitioner’s driver’s license on the basis of the fourth-degree esc conviction.
While the amended version of the statute is inapplicable here, its language further bolsters our conclusion that, by the plain language of the statute in place at the time of petitioner’s conviction, the Legislature did not intend that a conviction for fourth-degree esc would result in a suspension of driving privileges. | [
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Per Curiam.
Defendants, Edwin P. Walter and Richard Grotz, appeal by leave granted from the order of the circuit court finding defendants sub ject to limited personal jurisdiction in Michigan. We affirm.
This case concerns a shareholders’ derivative suit against, among others, two of defendant M. Walter & Co.’s officers and directors on the basis of mismanagement of corporate assets and usurpation of corporate opportunities. M. Walter & Co., Inc., is a Delaware corporation that does substantial business in Michigan growing, harvesting and marketing Christmas trees throughout the United States and Canada. The corporation has its principal place of business in Chicago.
Defendant Edwin P. Walter lives in Illinois, and his sole place of employment is at M. Walter & Co. in Chicago where he has performed all fiduciary duties and responsibilities with respect to this suit. He has no other related contacts with Michigan. He was served by mail in Illinois.
Defendant Richard Grotz lives, for tax purposes, in California 8V2 months a year, and the balance in Montana. Besides being a director of M. Walter & Co., he owns fifty percent of the stock in A. Walter, Inc., a Montana corporation, which does no business at all in Michigan. Mr. Grotz has been to Michigan only once in the last twenty years, and the visit was unrelated , to business. He was served by mail in California.
The trial court found defendants subject to limited personal jurisdiction because the corporation in which they are directors does substantial business in Michigan, and the Michigan long-arm statute, as well as traditional notions of procedural fairness, are not offended by requiring them to come here and defend a suit.
Michigan’s long-arm statute, MCL 600.705; MSA 27A.705, provides for limited personal jurisdiction over nonresident individuals under certain circumstances. The statute provides in pertinent part:
The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.
(6) Acting as a director, manager, trustee, or other officer of a corporation incorporated under the laws of, or having its principal place of business within the state.
However, whether jurisdiction under the statute attaches in a particular case requires a two-step analysis. First, whether the exercise of limited personal jurisdiction violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. If not, then whether the rules of statutory construction support such an exercise of jurisdiction over defendants. Witbeck v Bill Cody’s Ranch Inn, 428 Mich 659, 666, n 3; 411 NW2d 439 (1987); but see Rainsberger v McFadden, 174 Mich App 660, 662-663; 436 NW2d 412 (1989) (statute construed as giving the courts the broadest grant of jurisdiction consistent with due process).
Due process under the Fourteenth Amendment requires that the defendant have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 2d 95; 161 ALR 1057 (1945); Witbeck, supra, p 666; Rainsberger, supra, p 663.
This Court has developed a three-part inquiry to determine whether a nonresident defendant has sufficient minimum contacts with Michigan to support the exercise of limited personal jurisdiction. First, the defendant must have purposely availed himself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state’s laws. Second, the cause of action must arise from the defendant’s activities in Michigan. Finally, the defendant’s activities must have a substantial enough connection with Michigan to make the exercise of jurisdiction over the defendant reasonable. Rainsberger, supra, p 663; McGraw v Parsons, 142 Mich App 22, 26; 369 NW2d 251 (1985), lv den 423 Mich 860 (1985).
The first prong is satisfied as defendants concede M. Walter & Co., Inc., does a substantial business farming, harvesting, and marketing Christmas trees in Michigan. Because of the magnitude of the operations, and a potential "huge loss to the corporation” from plaintiffs’ alleged interference that defendant M. Walter & Co. alludes to in its answer, it is clear that the corporation, of which defendants-appellants are directors and officers, has purposely availed itself of the privilege of doing business in Michigan.
The second prong is also satisfied by plaintiffs’ allegations in their verified complaint and petition for temporary restraining order, and first amended and supplemental complaint. Plaintiffs accuse defendant M. Walter & Co. of shipping unmarked trees, failing to keep proper accounts of trees shipped, and refusing plaintiffs the opportunity to inspect the corporation’s books. Plaintiffs specifically allege defendant Edwin Walter breached his fiduciary duty to M. Walter & Co. by failing to account for corporate assets, funds and inventory. With respect to both Edwin Walter and defendant Richard Grotz, plaintiffs allege conspiracy to diminish the business value of M. Walter & Co. through usurpation of corporate opportunities, misappropriation of assets and causing M. Walter & Co. to pay excessive compensation for the purchase of trees and land. Because most of these complained of activities are alleged to have occurred with respect to M. Walter & Co.’s Michigan properties, it is reasonable to conclude that the cause of action arose from defendant’s activities in Michigan.
Finally, with regard to the third prong, an important factor bearing upon the reasonableness of exercising personal jurisdiction in this case is whether defendants’ conduct and connection with Michigan are such that they would have reasonably anticipated being haled into court here. Rainsberger, supra, p 663; McGraw, supra, p 26. In its counter-complaint defendant corporation claimed that due to plaintiffs’ alleged interference, M. Walter & Co. would suffer damages in excess of $250,000 from late deliveries of Christmas trees grown, harvested and marketed in Michigan. Directors or officers of any corporation capable of suffering such losses from operations in this state should reasonably anticipate being haled into a Michigan court. Because defendants-appellants are directors and officers of a corporation doing substantial business in Michigan, they are charged with responsibility for managerial decisions which, while perhaps communicated by letter or telephone from Chicago to supervisors in this state, nevertheless have a significant impact on Michigan workers and property.
Consequently, we find the due process require- merits of the Fourteenth Amendment satisfied, and must now address the second, statutory construction step of our analysis.
It is well established that courts may not speculate as to the probable intent of the Legislature beyond the words employed in the statute, and when the language of the statute is clear and unambiguous, the statute must be applied and not interpreted. Pi-con, Inc v A J Anderson Construction Co, 169 Mich App 389, 395; 425 NW2d 563 (1988). Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. Oshtemo Twp v Kalamazoo, 77 Mich App 33, 39; 257 NW2d 260 (1977), lv den 402 Mich 814 (1977); MCL 8.3a; MSA 2.212(1).
The trial court interpreted § 705(6) as permitting the existence of more than one principal place of business. Defendants contend that the plain meaning of the word "principal” connotes a singular, rather than plural, meaning. Although the trial court may have incorrectly interpreted an arguably clear statutory term, we nevertheless find no error since §§ 705(1) and (2) clearly support a finding of jurisdiction under the statute.
The fact that defendants transact business within Michigan is inarguable, so subsection 1 is satisfied. Plaintiffs assert that defendants have, by their directorial activities and omissions, caused misappropriation of corporate funds and mismanagement of corporate assets, both of which are acts resulting in actions for tort, so subsection 2 is also satisfied. This Court will affirm when a trial court reaches the right result, albeit for the wrong reason. Warren v Howlett, 148 Mich App 417, 426; 383 NW2d 636 (1986).
Affirmed. | [
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Bushnell, J.
Plaintiff Bossman, receiver of the Union & Peoples National Bank, of Jackson, Michigan, filed a bill of complaint seeking a determination of the amount which he claimed the defendants owed the bank on a promissory note and indenture of mortgage. In the event of default in payment he sought foreclosure and sale with a deficiency judgment, if necessary. The original mortgagee was' the National Union Bank of Jackson, whose name was changed to National Union Bank & Trust Company, which in turn consolidated with Peoples National Bank in order to form the Union & Peoples National Bank. On August 23,1927, John F. Hausen, as trustee, acquired title to certain platted real estate consisting of 420 lots in a subdivision in the county of Jackson, known as Hackett Park, except a number of lots which had already been sold. Hausen gave the bank a purchase-money mortgage in the maximum sum of $20,000 and interest, to secure the payment of moneys it had heretofore advanced or would thereafter advance. The mortgage provided that:
“It is understood that upon payment of $150 we will release each lot as desired.”
At the same time Hausen gave the bank a promissory note in the sum of $10,950. Both of these instruments were signed “John F. Hausen, Trustee.” The note stated that it was secured by a certain indenture of mortgage, bearing date of August 23, 1927.
It is the claim of the receiver that this transaction originated in an option from the bank to Hausen, but this paper could not be found at the time of the trial, Hausen in the meantime having died. The mortgage contains no language indicating for whom Hausen was acting as trustee, nor does it contain a covenant to pay a sum certain. On August 30th, following the execution of the mortgage and note, Hausen executed a “Declaration and Agreement in Trust,” in which he declared that he held title to the land described in the mortgage for the benefit of himself and eight others named therein and that the beneficiaries had subscribed varying amounts to the total of $16,000, and that their beneficial interests were in proportion to the amounts they had contributed. The trust agreement stated that the land therein described was subject to a $20,000 mortgage running to the National Union Bank of Jackson. No other signatures appear on the trust agreement except that of Hausen, trustee. This recorded instrument, together with an undated subscription agreement, was received in evidence, the admission of the latter being only for the purpose of affecting the interest of Hausen.
The trust agreement is of sufficient importance to quote in full. It reads as follows:
“This indenture, made this 30th day of August, 1927, witnesseth:
“That I, John F. Hausen, of the city and county of Jackson and State of Michigan, hereby make the following declaration and agreement in trust for the benefit of the cestuis que trustent hereinafter mentioned, to-wit: Howard R. Marsh, E. O. Marsh, Thomas E. Hackett, Horatio A. Brown, Susan A. Hausen, John F. Hausen, Arthur S. and Anne E. Dunkerley, and Don Town.
“I declare that I hold title to a certain parcel of land known as the east 77 acres of the east half of the northeast quarter of section number 32, town 2 south, range 1 west, consisting of 420 lots known as Hackett Park, excepting therefrom 48 lots which have been sold, numbered as follows: Lots 40 to 52, both inclusive; lots 131 to 136, both inclusive; lots 320 to 328, both inclusive; lots 239 to 244, both inclusive; lots 329 to 334, both inclusive; lots 414 to 420, both inclusive; lots 343 and 344, all according to the recorded plat thereof. Subject to the rights of way of the public highways as at present located. Deducting the 48 lots from the 420 lots, leave 372 lots, subject to a mortgage of $20,000 running to the National Union Bank of Jackson, Michigan, which mortgage is a five-year mortgage and dated August 22, 1927, and was a purchase-money mortgage.
“The title of the above described property subject to said mortgage is in my name as trustee for the benefit of subscribers, to-wit: The cestuis que trust ent above mentioned and is proportionate to tbe amount that eacb contributed to the fund which is represented by the subscription agreement for the purchase and development of the property.
“The names of the cestuis que trustent and the amounts subscribed by each are as follows:
“Names. Amounts Subscribed.
“Howard R. Marsh $4,000
“E. O. Marsh 1,000
“Thomas E. Hackett 1,500
“Horatio A. Brown 1,000
“Susan A. Hausen 1,500
“John F. Hausen 5,000
“Arthur S. & Ann E. Dunkerley 1,000 “Don Town 1,000
$16,000
“I agree to and with the cestuis que trustent to sell and convey in my name as trustee, the above described lots as purchasers are found,for them, and at such price or prices and upon such terms and conditions as may be agreed upon in writing by a majority in interest of said cestuis que trustent and this is on the understanding and agreement 'that I may expend as such trustee any funds in my hands from time to time in order to preserve and care for the trust estate, and in order to meet any obligations that I may have incurred as such trustee and that I may when in my judgment it is advisable, borrow money as such trustee or mortgage the trust estate in my hands, it being understood that the moneys resulting from such loans if any shall become part of the trust estate.
“It is further understood and the condition of this declaration of ‘trusts’ is that as the same may become necessary and in the interests of said trust and the beneficiaries thereof, that I may accept other contributions from the same or other contributors, and that such contributors shall thereupon become entitled, upon their paying to me as trustee, the funds thus subscribed, to his, her, or its proportionate benefit as hereunder determined in said trust property, and that such contributors shall be bound by the obligations hereof to the same extent and effect as though they had been the original contributors.
“It is contemplated that the mortgage will be paid off by the sale of the lots and I have issued simultaneously with this declaration of trust to each of the subscribers a certificate of trust which certificate may be sold, assigned or disposed of, but subject in all respects to the terms and conditions of this trust declaration.
“I further declare that of the $16,000 coming into my hands as trustee that $10,000 has been paid on the purchase price of the property above herein mentioned and described and that $2,000 has been paid me for the transfer to the subscribers of the option held by me of the lands herein above described and for the time and effort which I had made in declaring the option and for the time which will be required of me in superintending the development, cleaning up of the property, restating the lots, building roads and my compensation as trustee, and the balance of $4,000 is to be expended and used by me as trustee for paying the bills which will be incurred in developing, cleaning up the property, restating the lots and building roads and in paying the interest on the mortgage and taxes and charges on the property and in carrying it to a point where the revenue from the sale of lots it is expected will take care of the expenses.
“It is understood that as trustee I shall have the right to pay reasonable commission to brokers and others who are instrumental in finding purchasers for the property, and I further agree to see that meetings of the beneficiaries of this trust are held from time to time; that accurate books of account are kept, showing the receipts and disbursements of all moneys belonging to the trust and that when the trust has been discharged and finished that I will completely and fully account to all of the cestuis que trust ent for all things done by me in effecting my trust.
“In witness whereof, said John F. Hausen has hereunto, as such trustee, set his hand and seal the day and year first above written.
“John F. Hausen, Trustee.”
In furtherance of the provision requiring that lots be sold at a price and upon conditions agreed upon by a majority of the beneficiaries, a supplemental declaration was executed by seven of the original beneficiaries on February 18, 1928, in which was stated in detail the minimum prices at which various lots were to be sold. This agreement also provided that the trustee should receive 20 per cent, of the sale or resale price of each lot and that he might use his discretion as to terms of payment of such sales, including the rate of interest to be charged. Neither the original trust agreement nor the supplemental declaration contains any language indicating an assumption of the purchase-money mortgage or the participation of the beneficiaries in any deficiency liability.
Plaintiff’s theory of the case is stated as follows:
“Mr. Kleinstiver: I think I stated this morning, it is our claim that this instrument does not constitute a trust, that it creates a relationship of the parties arising out of it which is one of three things; it is either a copartnership, a joint adventure or it is joint ownership with agency, and as to which of the latter three it might be, in so far as this case is concerned, that exact relation of those three is not material because their liabilities in respect to this note would be the same, whether it may be partnership or joint adventure or joint ownership.”
Although separate defenses were made by some of the defendants, all of them disputed their liability as copartners, joint adventurers or joint owners coupled with an agency, and they unite in claiming that, because the so-called Haekett Park Syndicate was a common-law trust, no deficiency liability could be asserted against them as beneficiaries.
The trial judge’s opinion pointed out that the beneficiaries did not assume and agree to pay the mortgage, and the trust instrument contemplated that the mortgage was to be paid off by the sale of the lots. The court said that the plaintiff was therefore precluded from securing a deficiency decree.
The various questions raised by the several briefs can be disposed of by a determination of the nature of the trust instrument and the mortgage transaction. The mortgage of the lands and the creation of the syndicate must be regarded as parts of a single plan. Sagendorph v. Lutz, 286 Mich. 103, 108. The subscribers ’ liability for deficiency on the mortgage depends upon whether or not they intended to assume the obligation or took the adequate steps to protect themselves against the imposition of such liability. Defendants insist that they did not assume an obligation to pay a mortgage deficiency and that the nature of their agreement precluded the imposition of such liability. They claim a common-law trust was created.
Common-law trusts are neither unknown in this State nor forbidden by statute. See Nedeau v. United Petroleum Co., 251 Mich. 673, and Michigan Trust Co. v. Herpolsheimer, 256 Mich. 589. Bogert, in his work on Trusts and Trustees, vol. 2, § 295, makes the following observation:
“The Michigan Supreme Court has said: ‘These entities come to this State masquerading as “pure trusts.” * * * It is the duty of this court to look beyond the form to the substance, to strip them of their finery and to apply the constitutional and statutory definition of corporations to them. ’ (Hemphill v. Orloff, 238 Mich. 508 [58 A. L. R. 507]). But thus far it has not been indicated that this reasoning involves a denial of limited liability, and the most recent pronouncement (Michigan Trust Co. v. Herpolsheimer, 256 Mich. 589) of the Michigan court reveals a much less hostile attitude toward business trusts.”
There are two lines of authority, one of which holds that the shareholders of a business trust are liable as partners or joint adventurers, and the other which sanctions limited liability without formal incorporation. See annotation, 71 A. L. R. p. 890. Consideration of the Nedeau and Herpolsheimer Cases, supra, and previous annotations therein cited, indicate that in this State shareholders in a common-law trust enjoy the privileges of limited liability, although this question was not specifically decided. This conclusion may be inferred from the statute, 2 Comp. Láws 1929, §10138 (Stat. Ann. §21.203), which, in fixing the franchise fees of domestic and foreign corporations, provides that:
“The term ‘corporation’ as used in this act shall be deemed to include partnership associations, limited, whether domestic or foreign, all joint stock associations having any of the powers of corporations, and such common-law trust or trusts created by statute of this or any other State or country exercising common-law powers in the nature of corporations, in addition to such other corporations as are referred to in this act.”
If, then, a business trust with limited liability is possible in Michigan, did the agreement between the defendants create such trust? As was said in Frost v. Thompson, 219 Mass. 360 (106 N. E. 1009):
“A declaration of trust or other instrument providing for the holding of property by trustees for the benefit of the owners of assignable certificates representing the beneficial interest in the property may create a trust or it may create a partnership. Whether it is the one or the other depends upon the way in which the trustees are to conduct the affairs committed to their charge. If they act as principals and are free from the control of the certificate holders, a trust is created; but if they are subject to the control of the certificate holders, it is a partnership. ’ ’
The agreement consists of an original and supplemental declaration which, because of their terms, must be read together. In the first, the subscribers gave the trustee broad and general powers of management, independent of control by the beneficiaries except that the property was to be sold “at such price or prices and upon such terms and conditions as may be agreed upon in writing by a majority in interest of said cestuis que trustent.” In the second, this control was limited to the establishment of a minimum price and the parties said:
“This declaration when executed by a majority of the cestuis que trustent shall constitute and be deemed an expression and declaration by us of the price or prices and the terms and conditions upon which said lots are to be sold and shall be treated and considered as full and complete declaration and expression from us and as vesting in the said John F. Hausen, trustee, the right to sell said lots at the minimum price or prices above mentioned on such terms of payment and rates of interest as may be satisfactory to him, the said trustee. ’ ’
The problem is whether or not retention by the subscribers of the right to set a minimum price constituted such control over the operation of the trust as to destroy its existence. Magruder, in “The Position of Shareholders in Business Trusts,” 23 Columbia Law Review, pp. 423, 430, said:
“It is submitted that certain powers may properly be reserved to the certificate holders consistent with the erection of a genuine trust and the consequent personal immunity of the cestuis que trustent; that the existence of such powers is purely a matter of internal management; that if the law will give effect to the declared intention of the parties to set up the trustees as principals, with attendant personal liability, creditors will have no complaint and no proper concern with provisions of the declaration of trust affecting only the trustees and the shareholders inter se. It is further submitted that the decision as to the effect of any particular reserved power in the shareholders is not foreordained in the legal nature of things, but will depend chiefly on whether the court looks upon the business trust device with benevolent or hostile eyes; and whichever way the decision goes, respectable legal analogy will be available to sustain the result.”
Control of minimum sale price alone was insufficient to destroy the operation of the trust or to make the trustee an agent of the certificate holders. See Goldwater v. Oltman, 210 Cal. 408 (292 Pac. 624, 71 A. L. R. 871, 881).
We agree with the result reached by the trial judge and hold that a common-law trust was created and that the beneficiaries cannot be held personally liable for any deficiency that may result from the foreclosure of the mortgage and the sale of the property.
Trustee Hausen died April 11, 1935, and no successor was appointed in his place. After the case was concluded and prior to the entry of a decree the court appointed a successor with the same powers and duties as the original trustee and, in the decree, ordered his appearance entered as a party defendant.
The cross-appeal of the defendants raises the question of the power of the court to impose liability upon the successor trustee. It is claimed that this portion of the decree is “contrary to any proper conception of due process of law,” but the briefs are silent as to any authority in support of this statement. A successor trustee, appointed by a court in chancery, succeeds to all the powers and duties of the original trustee, and he takes title to the trust property subject to the same conditions and equities to which it was subject in the hands of the original trustee. 3 Comp. Laws 1929, § 12990 (Stat. Ann. § 26.74); 65 C. J. pp. 1100, 1101, § 1052; Bisbee v. Machey, 215 Mass. 21 (102 N. E. 327).
We have heretofore quoted a portion of 2 Comp. Laws 1929, § 10138 (Stat. Ann. § 21.203), with respect to the franchise fees of domestic and foreign corporations. The question of payment of such fees by the common-law trust, of which Hausen was trustee, is not raised and, therefore, no determination of this phase of the matter is necessary.
The decree of the circuit court is affirmed, with costs to appellee.
Butzel, C. J., and Sharpe and McAllister, JJ., concurred with Bushnell, J.
Wiest, J. I cannot concur in the opinion of Mr. Justice Bushnell.
The defendants were joint adventurers. John F. Hausen held an option for the purchase of real estate. The other defendants became interested and advanced money to enable him to exercise the option and acquire the property for his and their joint benefit. Here was a special association of several persons in a single venture, seeking profit without actual partnership or corporate entity, but as joint adventurers.
Mr. Hausen made a declaration of rights, and the other adventurers joined in an article to some extent in control of Mr. Hausen’s management. As joint adventurers, except the married women, they are liable for deficiency under foreclosure of the purchase-price mortgage. Polk v. Chandler, 276 Mich. 527.
The decree in the circuit court should be reversed and one entered here in accordance with this opinion.
Potter, Chandler, and North, JJ., concurred with Wiest, J. | [
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McAllister, J.
Plaintiff filed bill for separate maintenance under 3 Comp. Laws 1929, § 12729 (Stat. Ann. § 25.87), on grounds of extreme cruelty and defendant filed a cross-bill for divorce on similar grounds. After the hearing, the trial court dis missed plaintiff’s bill and awarded defendant a divorce upon Ms cross-bill.
It would be of no avail and would illuminate no principle of law to enter upon a discussion of the testimony. Two witnesses, one a nurse employed by plaintiff, and the other an acquaintance known to plaintiff approximately a year, testified in her behalf. Defendant likewise produced two witnesses, bis brother and bis sister. The evidence of either party, if believed, warranted a decree of divorce. The trial court decided the case solely upon the credibility of tbe witnesses, and stated that no case bad previously come to the attention of tbe court in which the apparent character and demeanor of the parties was more helpful as an aid in arriving at a decision than in the instant case.
Although a divorce case is reviewed de novo, we are constrained to give especial consideration to the trial court’s findings, so largely based upon the credibility of the witnesses, and tbe evidence does not disclose that such conclusions were unjustified. Where tbe decree of divorce rests wholly upon testimony in the case, tbe reviewing court ought not to reverse the determination of the trial court unless convinced that it must have reached a different conclusion bad it occupied the position of the lower court under like circumstances. Nicholas v. Nicholas, 50 Mich. 162; Brookhouse v. Brookhouse,, 286 Mich. 151.
Upon a careful review of tbe record we are satisfied that tbe decree should be affirmed, with costs to defendant.
Wibst, C. j., and Btjtzel, Btjshnell, Sharpe, Potter, Chandler, and North, JJ., concurred. | [
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Reid, J.
By their bill of complaint plaintiffs sought to have declared null and void an order of the police commissioner of the city of Detroit dated June f>, 1919, forbidding Detroit police officers to become members- of the Fraternal Order of Police, and also sought an injunction restraining defendants from carrying into effect such order or any order of similar purport; plaintiffs further sought to have declared void an order in February, 1943, discharging plaintiffs Heine and Duggan as police officers of the city of Detroit. Plaintiffs appeal from a decree of the circuit court for the county of "Wayne dismissing’ their bill.
Involved in this case is the reasonableness of the order of the police commissioner of the city of Detroit, prohibiting the members of the Detroit police force from becoming members of a local organization of the State Lodge of Michigan, Fraternal Order of Police, and whether the order prohibiting such membership violated the constitutional rights of assembly, guarantee of equal privileges and immunities, and of equal protection of the laws.
Defendants claim that the questions involved are whether the rule of June 5, 1919, prohibiting membership in the Fraternal Order of Police was a valid exercise of authority by the police commissioner in view of the constitution and bylaws of the national, State and local lodges, and has the police commissioner authority to pass such prohibitory rule based upon the history, past conduct and leadership of the plaintiff Fraternal Order of Police, and whether the action of the police commissioner was a reasonable exercise of authority when we consider sale of associate memberships and car emblems as matters contrary to public policy. Defendants further contend that the two plaintiff police officers had a fair hearing before the trial board, at which hearing they were found guilty of insubor dination, and that the court ought not to set aside the order of dismissal where there is competent evidence to sustain the findings of the trial hoard.
On June 5,1919, James Inches, then commissioner of police of the city of Detroit, issued an order forbidding police officers of his department to become members of plaintiff Fraternal Order of Police. Defendant John H. Witherspoon was commissioner of police of the city of Detroit from June 1, 1942 until his resignation, January 1, 1944, and while he was commissioner and before January 1, 1943, had occasion to investigate the Fraternal Order of Police and its activities. Pie examined the file of his office respecting the plaintiff order and discussed the file with officers in the city of Detroit police department and with police officers in other .police departments.
On Thursday,'January 28,1943, a group of Detroit police officers, including two plaintiffs, patrolman Howard Heine and detective Bernard L. Duggan, attended a dinner meeting in Detroit, at which there were also present a number of police officers, including representatives of the Hamtramck lodge of Fraternal Order of Police, Henry Mida of the Dearborn police department, and president of the State Lodge, Fraternal Order of Police, and also a reporter from the Detroit Free Pre^s. A temporary organization was set up with Heine as temporary president and Duggan as temporary secretary. This meeting was without the knowledge of defendant Witherspoon. An account of the meeting was published in the Detroit Free Press the evening of January 29,1943. The next morning plaintiff Heine was summoned to police headquarters to a meeting with defendants Witherspoon and Berg, the latter being superintendent of police of the city of Detroit. A transcript of the stenographic minutes of the meeting appears in the record. At that meeting Heine related the circumstances of the Thursday meeting, denied that he knew of the existence of commissioner Inches’ order prohibiting membership in the Fraternal Order of Police; stated that he had been advised that membership in the organization was contrary to the orders of the police department but that he had allowed himself to be elected president. Plaintiff Heine was then given a copy of Inches’ order, whereupon he said that if the Fraternal Order of Police was permitted to organize in the police department he would join it but if not,; he would not join, and that he would pull out of the organization, and also stated that no new meeting was contemplated and that the organization intended to present the matter to the commissioner for permission to organize. Upon leaving this meeting, plaintiff Heine went directly to the Eagles Hall in Detroit, where a secret organization, initiation and election meeting was held. Heine was elected' permanent president and plaintiff Duggan, secretary. On February 1, 1943, Duggan was summoned to police headquarters before defendant Witherspoon. A transcript of the stenographic minutes taken at that meeting appears in the record. Duggan refused to reveal any information relative to the meeting held on January 28, 1943, on the ground that this meeting was a secret meeting. He said he knew of the rule prohibiting’ membership in the Fraternal Order of Police but he joined nevertheless because he figured the rule was wrong and he was willing to be the “guinea pig” in a test case. He admitted' being on duty from 8 to 4 of a day when he attended a meeting of the Fraternal Order of Police at 3 o’clock, without having first obtained permission to leave his work prior to the end of his shift.
On February 2, 1943, charges of misconduct were preferred against Heine, charging disobedience of rules and orders of the department, reporting falsely to a superior officer and insubordination. On the same day similar charges were preferred against Duggan, with the additional charge of being absent without leave. Both officers were ordered to appear before the police trial board on February 5, 1943, to answer the charges. The transcripts of the trials before the police trial board are in the office of the clerk of this Court. Neither plaintiff Heine nor plaintiff Duggan took the stand to offer any testimony in their own defense and neither of them offered to withdraw from the Fraternal Order of Police. At the trial of plaintiff Heine, which occurred February 5, 1943, there was sufficient testimony produced to show that on January 30, 1943 Heine, with knowledge of the Inches order of 1919, promised the defendants Witherspoon and Berg that no further meetings of the Fraternal Order of Police were contemplated while there was an order prohibiting membership in the Fraternal Order of Police and also promised defendants that nothing further would be done until the matter could be presented to the commissioner in an orderly manner for a change in the rule. Notwithstanding this conversation plaintiff Heine thereafter had gone directly from police headquarters to the organization meeting of the local Fraternal Order of Police, and permitted himself to be initiated and to be elected permanent president. The trial of plaintiff Duggan was on February 6, 1943. Plaintiff Duggan had been brought before the commissioner on February 1, 1943, had told the commissioner that he believed the rule was wrong and that he was going to remain a member notwithstanding the rule. Both plaintiffs Heine and Duggan were promptly found guilty of insubordination and were dismissed from the department.
The record in this case shows that at the time of the discharge of the two plaintiffs the Fraternal Order of Police was substantially the same kind of an organization that it was as described in the case of Fraternal Order of Police v. Lansing Board of Police & Fire Commissioners, 306 Mich. 68. In that case we said (p. 80):
“The constitution and bylaws of plaintiff’s national, state and local organizations which were received in evidence provide in effect that citizens may become associate members'upon payment of dues of not less than $5 per year, and such associate members will be furnished ‘a membership card’ and car ‘emblem.’ One would be naive, indeed,.to assume that such automobile emblem did not carry with it the intimation of special privileges to associate members. This of itself is enough to require the determination that the existence of plaintiff organization within the law-enforcement body of a municipality is contrary to public policy.” •
On the trial of this cause,' March 28, 1945, plaintiffs offered some showing to the effect that the bylaws of the Detroit Lodge, Fraternal Order of Police, banned associate memberships and sale of ear emblems. Defendant Witherspoon testified that the first time that he learned of such a prohibition in the bylaws of the local lodge was at the trial in question in March, 1945. However, the following statements were made, by witness Duggan,' February 1, 1943, in an interview before defendant commissioner Witherspoon:
“Q. You said at one time in describing the nature, of this organization that you thought it was a good organization because the membership was restricted to police officers!
“A. Right.
“Q. Is that your understanding of the organization?
“A. Well, they have what is called associate membership.
“Q. That doesn’t disturb you — you think that is perfectly proper?
“A. Well, that’s a matter to be used with circumstances. If they take in men that put you in the middle, that’s something not to permit. # #
“Q. They do permit them?
“A. Well, they do have provision for associate members.”
The supposed amendments to the constitution, excluding associate members, and forbidding the sale of car emblems, if such amendments were ever actually made at all, must have been effectuated after the discharge of plaintiffs Heine and Duggan.
However, there is nothing in this record doing away with the force and effect of the undisputed showing that both plaintiffs Heine and Duggan were guilty of insubordination. We reiterate what was said by Justice Bushneel and those who concurred in his opinion in the case above cited, quoting from Carter v. Thompson, 164 Va. 312 (180 S. E. 410).
“Police and fire departments are in a class apart. Both are at times charged with the preservation of public order, and for manifold reasons they- owe to the public tbeir undivided allegiance. The power in the city of complete control is imperatively necessary if discipline is to be maintained.”
The defendant commissioner is necessarily vested with a large measure of discretion and the burden of showing" arbitrary action is upon those who charge it. Plaintiffs have not met such burden.
The order promulgated by the police commissioner of the city of Detroit is considered to be within the scope of the authority granted under the charter of the city of Detroit, and cannot be said to be arbitrary or unreasonable. The plaintiffs are hot deprived of any constitutional right.
The decree dismissing plaintiffs’ bill of,complaint is affirmed. A question of public importance being involved, no costs are allowed.
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred. | [
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North, J.
Elaine Herpolsheimer, plaintiff, and William Herpolsheimer, defendant, were divorced in February, 1933. Custody of their daughter Marlene, then about two years of age, was given to the mother, and the father required to pay a specific amount per month “to aid plaintiff in the support and maintenance of the minor child.” No provision was made for alimony for the mother. On several occasions amendments of the decree were made as to payments for the support of the minor. As finally amended in September, 1941, on plaintiff’s petition, the monthly payments for the support of the daughter were fixed at $150, to continue until she should become 18 years of age or until the further order of the court. In May, 1945, plaintiff filed a petition for a further increase of the payments for the daughter, stating therein: -
“Under economic’ conditions, and because said minor child has reached an age that requires increased outlays of money for education, clothing, food and insurance, the present allowance of .$150 per month is not adequate.
‘,‘In addition to tuition, clothing and insurance, the child needs substantial allowances for incidentals, amusements and social entertainment. Also there are now expenses for summer camps and vacations. Your petitioner/ working as a trained nurse, is not able to supplement from her income the additional and increased expenses.”
Defendant answered and denied that $150 per .month was inadequate for the daughter’s needs; and charged: “that the plaintiff has been receiving said sum of money ($150) each month and has been using only a small portion thereof for the care, support, maintenance and education of said child, and the remainder she has been expending for her personal use, entertainment and enjoyment.” Later defendant filed in the proceedings a petition praying that the custody of the daughter be taken from the mother and be given to the maternal grandmother, Mrs. Katheryne Scott. Plaintiff answered defendant’s petition and opposed the change of custody. Mrs. Scott sought to intervene in behalf t of the minor daughter who was then living with her, but was not permitted to do so. As a result of a lengthy and acrimonious hearing (including an application for rehearing) the trial judge amended the decree and provided that the monthly payments should be increased to $250; and the trial judge denied defendant’s petition for change of custody of the daughter.
Defendant has appealed. After the case came to this Court we entered an order permitting an attorney who sought to represent the minor daughter to file a brief amicus curiae. The three issues for review are: (1) custody of the minor daughter, (2) the amount of payments for her maintenance, and (3) to whom should the payments be. made.
Custody. The question here is this. Will the daughter’s welfare be best served by continuing her custody with plaintiff or by placing the custody of the minor in the maternal grandmother, Mrs. Katheryne Scott? The daughter is now 16 years of age. Defendant is not seeking to have her custody decreed to him. Instead he admits he is not entitled to custody. Our review of the record satisfies us that plaintiff is not a proper person to have the custody of this .16-year-old girl. For much of the time during recent years plaintiff has not given her per sonal care to the daughter, but instead has kept her in a school as a resident student or has left the daughter with her maternal grandmother, who now seeks the custody of the minor. The testimony discloses that, notwithstanding they have long since been divorced, plaintiff continues to consort with defendant, that on many' occasions while in a drunken condition he has been harbored in plaintiff’s apartment and in the presence of their young daughter. There is testimony that defendant has remained in plaintiff’s apartment overnight and that she has occupied the same room with him, doing so with the knowledge of the daughter Marlene. Also, there is credible testimony that other men have visited plaintiff at her apartment and there drank liquor with her, that plaintiff keeps a liberal supply of intoxicating liquors in her apartment, that she is rather a free user of intoxicants, and at times indulges in “indecent and vile language.” The daughter Marlene testified to the effect that. she could not live happily with her mother because of her mother’s conduct. The record fairly discloses that plaintiff has used a large portion of the support money received by her for her own purposes rather than devoting it to the needs of the daughter. "While not entirely controlling, we cannot overlook the fact that this 16-year-old daughter, who testified against her mother at the hearing in the trial court, rebels strongly against living with and being in the custody of plaintiff. Instead she desires her custody to be in Mrs. Scott in whose personal charge Marlene had been for months prior to the final hearing in the trial court. "We forego review of other pertinent matters disclosed by the record, such as letters written by plaintiff to defendant which clearly indicate that plaintiff’s attitude in life falls short of that of a good mother, Under all the circum stances disclosed by the record we can not avoid the conclusion that,the custody of Marlene should not be continued in her mother.
There is nothing in the record which in any material way tends to indicate that the maternal grandmother, Katheryne Scott, is not a fit person to have the custody of Marlene; and Mrs; Scott has evidenced an intense desire that Marlene’s welfare should be a matter of first consideration. In plaintiff’s brief it is asserted that Mrs. Scott.is interested on account of financial reasons and that: “a conspiracy was formed between Katherine (sic) Scott and the defendant to take the custody of the child away from the mother, plaintiff herein.” We fail to find in the record a justification for the above intimations or claims. On the contrary, as before noted, it appears that Mrs. Scott heretofore has had very much of the responsibility for the actual care and custody of- Marlene, that her services in that particular were rendered without compensation, and that she has expended some of her own money in meeting Marlene’s needs. Further, as negativing the claim that Mrs. Scott’s interest is prompted by financial reasons, she takes the position that she does not care to have the money for Marlene’s support paid to her but instead would prefer that a guardian of the estate of Marlene should be appointed and such payments made to the. guardian. A careful review of this record' brings the conclusion that the welfare of Marlene Herpolsheimer. will be much better served by modifying the. decree of the trial court and placing Marlene’s custody in Mrs. Scott, and it will be so modified.
“The wishes of the parents are a secondary consideration. The welfare of the child is paramount. Weiss v. Weiss, 174 Mich. 431; Smith v. Ritter, 292 Mich. 26. The court may award custody of the child to a third person and require the father to pay for her support. ’ ’ Riede v. Riede, 300 Mich. 300.
Maintenance. Payments. In plaintiff’s 1945 petition for an amendment, of the decree she stated: “Tour petitioner believes that all of the circumstances justify payments by the defendant in the sum of $300 per month. ’ ’ The decree was amended by increasing the payments from $150 per month to $250 per month. Defendant’s contention is that the testimony discloses that $150 per month is adequate for Marlene’s needs. In'fact, Mrs. Scott so testified. As bearing upon this phase of the controversy the facts in the present case are rather unusual, and we think to some extent at least justify a measure of liberality.
"We are mindful that the payments for the maintenance of a minor child should be measured by the reasonable needs of the child, taking into consideration the station in life of her family, and the ability of the father to pay the requisite sums. In the instant case there is no controversy as to the abundant ability at the present time of the father to meet any reasonable payments ordered by the court. He is a beneficiary under a trust estate created by his grandfather and as such has a net income of approximately $10,000 a year. The record before us does' not disclose whether this source of means for Marlene’s maintenance would be summarily terminated in the.event of the death of her father; and therefore in fixing the payments that the father is required to pay at the present time consideration might well be given to the advisability of requiring the payments to be large enough to possibly provide something of an accumulation by which Marlene’s needs in the' future of her minority can be cared for, rather than to make an award based exclusively on her present day-to-day requirements. But wholly apart from the circumstance just', noted, it should be borne in mind that because o.f their extensive means the members of the Herpolsheimer family have been accustomed to living on a rather high plane of life, and this has to do with the station in life which Marlene should be allowed to assume. With this and other aspects of the record in mind it is our judgment that the payments decreed for Marlene’s support should be liberal. A fair and reasonable determination would result by mbdifying the amended decree entered by the trial judge on August 31, 1945, and providing that beginning as of that date-defendant shall be required to pay for the support of the minor $200 per month. It will be so modified..
To Whom Shall Payments Be Made. Because it appears in this ease that the parties are at least somewhat concerned with whether money to be paid by the defendant for Marlene’s support will be so used or portions of such funds will be absorbed for the benefit of some third party, we must consider whether some provision should be made which will safeguard the use of funds paid by defendant for Marlene’s support and maintenance. Notwithstanding somewhat of a contention on the part of appellee that Mrs. Scott’s interest in Marlene is prompted by reason of the financial aspect of the case, after a careful review of the record we are not impressed that there is any merit to such contention. Instead we are satisfied that Mrs. Scott has a genuine interest in the welfare of Marlene and that she will properly use or conserve any support moneys which may come into her hands. That being true the amended decree may provide that future payments of support money decreed shall be paid to Mrs. Katheryne Scott to be used or conserved by her for the care, support, maintenance and use of Marlene Herpolsheimer. •
Except as otherwise provided herein the amended decree entered in the circuit court is affirmed; but an amended decree may be entered in this Court in accordance with the foregoing. As between plaintiff and defendant no costs will be awarded; but counsel who under the order of this Court appeared herein as amicus curiae for Marlene Herpolsheimer, in addition to the $125 heretofore paid, is awarded as an attorney fee and for his disbursements the sum of $150 taxable against the defendant. The case will be- remanded to the trial court with jurisdiction to hear and determine any future proceedings therein.
Carr,- C. J., and Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Dethmers, J., did not sit. | [
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Sharpe, J.
Plaintiff Edward Miskotten filed a bill of complaint in the circuit court of Allegan county for tbe purpose of enjoining defendants from constructing and maintaining any dike or embankment at or near tbe township line between plaintiff and defendants’ property.
Plaintiff’s father at one time owned all the lands now owned by plaintiffs and defendants. The land in question was low swamp land lying partly in Manlius township and partly in Heath township with the Rabbit river running’ along the north side. Sometime prior to 1919, plaintiff’s father died and plaintiff and his two brothers purchased the land lying east of the township line in Heath township. In the year 1919 one John Joosteberens purchased the land lying west of the township line in Manlius township. Defendants became the owners of the Joosteberens land in 1938.
Shortly after Joosteberens became the owner of the land west of the line OGr (see map) he entered into an agreement with plaintiff and his brothers to build a fence' separating the two pieces of property. Joosteberens agreed to build the south half of the fence, while plaintiff and his brothers agreed to build the north half. The fence was built in 1919 and at a later time was replaced by a drain. When the drain was constructed, it was placed on the line of the fence. Mr. Joosteberens dug the south,half of the drain and plaintiff dug on the line OG- of the fence up to the bend or “jog” and then dug the drain to the east of the fence, a distance of 10 feet, and then dug the drain north and parallel with the fence until he struck quick sand. The “jog” is about 200 feet from the north end of the drain. In April, 1930, Joosteberens and plaintiff Edward Miskotten entered into an agreement whereby plaintiff was given the right to drain through the drain OF and was. under the duty to maintain flood gates -in all drains on plaintiff’s land to prevent river water from backing up in the drains and draining through Joosteberens’ premises.
The present difficulty arose when the river broke through the dikes along the south side of the river and flooded the lands of both parties causing considerable damage and when in 1942 a heavy rain in August flooded the lands of both parties before a dam placed in drain OF for irrigation purposes could be removed. Defendant undertook to build an embankment along the west side of the drain 00 to keep the water from the lands of plaintiff from flowing across his land. Plaintiff brought a bill for injunction and defendants filed a cross bill claiming to own the land between the ditch and the town line and asked to quiet title to it in them.
It appears that the point of the intersection of the line OF with the line OGr is on the true line, but that the drain 00 veers towards the east and at its northern end is approximately 19 feet east of the township line.
Plaintiff claims the’ record title to the land east of the township line. Defendants claim title to the disputed lands by adverse possession and, also, by reason of the fact that the adjoining owners met and agreed upon the boundary line and have maintained the fence and drain as a boundary line for a period of 25 years.
The trial court filed an opinion wherein it is said:
“From the testimony then of Mr. Miskotten, the court feels bound to hold that Mr. Joosteberens did ‘pasture’ up to the fence and up to the ditch — north to the ‘jog’, from the time the fence was built prior to the plaintiff’s purchase in 1923, until Joosteberens sold to cross-plaintiffs on October 26, 1938— a period of 15 years, during which time his occupation was so apparent as to give notice to plaintiff of his claim of ownership of the disputed parcel north to the ‘jog’ in the ditch; but that neither Mr.' Joosteberens nor cross-plaintiffs occupied, used or exclusively possessed the disputed parcel north of the ‘jog’ in the ditch. It is unfortunate that we have no measurements so as to make an exact finding in this respect. But the ‘jog’ is clearly discernible and a survey or other measurement from the south line will determine the line.”
A decree was entered giving defendants title to the land west of the drain up to the “jog” and establishing the township line as the true line north of the jog to the river.
Plaintiffs appeal and urge that the trial court was in error in not establishing the township line as the boundary line between the properties.
The land in question was formerly a tamarack swamp owned by the Miskotten brothers and John Joosteberens. They desired to establish a boundary line. They built a wire fence on posts. The fence at one time continued along the. line OG to the river. Plaintiff helped build the northerly half of the fence, while John Joosteberens built the southerly half of the fence. Plaintiffs and Joosteberens recognized this fence as the true and agreed line between the properties.
In Dupont v. Starring, 42 Mich. 492, we said:
“It has been repeatedly held by this Court that a boundary line long treated and acquiesced in as the true line, ought not to be disturbed on new surveys.”
See, also, Gregory v. Thorrez, 277 Mich. 197, and Dubois v. Karazin, 315 Mich. 598.
The decree of the trial court is modified so that the agreed line as was evidenced by the original fence is the true line between the disputants.
Defendants filed a cross appeal and urge that the trial court was in error in failing to order plaintiffs to close the openings of the two ditches leading from plaintiffs’ lands west into the boundary line ditch OG. The ditches are noted on the drawing as OC and TD. These drains or ditches are dug approximately three and a half feet deep at the east end and 18 inches deep at the west end. Prior to the institution of the present suit these drains did not connect with the drain OG, but shortly before the trial of the present suit plaintiffs dug out the earth and connected drain OC with the drain OG.
The law is well settled that plaintiffs have no right to collect water in ditches and dump it upon the lands of an adjoining owner.
In Peacock v. Stinchcomb (syllabus), 189 Mich. 301, we held:
“The right to drain or dispose of surface water on land can not be exercised by concentrating and pouring it, by means of an artificial ditch or drain, in unusual quantities and velocity greater than would be natural, upon adjacent property.”
The decree should be modified to the,extent that the drains 00 and TD should be placed in the condition they were prior to the institution of the present .suit.
The decree of the trial court is affirmed and modified. A decree will be entered in this Court conforming to this opinion. No costs are allowed as neither party has fully prevailed.
Carr, C. J., and Btjtzel, Bttshnell, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Butzel, J.
Alleging that he is a- resident of the county of Wayne and a taxpayer of the State of Michigan, Frank T. Kloka, acting solely for himself, filed a bill in the Wayne circuit .court against the State treasurer, the State auditor general, a former circuit judge of the circuit court of Ingham county, and one of the present judges of that court, as defendants; he attacks the constitutionality of the “one-man grand jury act,” 3 Comp. Laws 1929, § 17217 et seq. (Stat. Ann. §28.943, et seq.), certain past actions and orders of the Ingham circuit court judges and the regularity of expenditures made by them for grand-jury purposes from moneys received from State officers in accordance with specific appropriations made by the State legislature for such purposes. He seeks an, injunction to restrain further action by the one-man grand jury and to invalidate all of the previous actions and orders of the Ingham county one-man grand jury. •
The judge of the Wayne circuit court in chancery granted a motion to dismiss the bill of complaint. He held that the constitutionality of the one-man grand jury act was upheld with finality in Re Slattery, 310 Mich. 458. (In that case we denied a rehearing and certiorari was denied by the United States Supreme Court in 325 U. S. 876 [65 Sup. Ct. 1553, 89 L. Ed. 1993].) The judge further held that even if he were to assume that the one-man grand jury act was unconstitutional, the circuit court for the county of Wayne had no power to inform the Ingham county circuit court either by way of declaratory judgment, injunction or otherwise of the unconstitutionality of the act; and that the only way in which the Ingham county circuit court could be restrained from future action would be by writ of prohibition from the Supreme Court. The trial judge was- correct.
Appellant’s case seems to have been built upon the premise that the grand juror was acting as an individual and not in a judicial capacity. We recognize that the present proceeding is brought by a party different than the petitioner in Re Slattery, supra, though the counsel for petitioner in that case appears as one of the attorneys in the instant case. What we’ said in Re Slattery, supra, is decisive of the present case. We discussed the many previous Michigan cases, considered in Matter of Richardson, 247 N. Y. 401 (160 N. E. 655), Cobbledick v. United States, 309 U. 8. 323 (60 Sup. Ct. 540, 84 L. Ed. 783) and deliberately and carefully came to our conclusion. We stated therein:
"So that there may be no further question, we hold that the judge conducting a one-man grand jury proceeding is acting in a judicial capacity.”
We upheld the constitutionality of the act. Nothing that has been said in the instant case by counsel for appellant has altered our opinion.
To avoid any further question, however,- we hold that a judge-of one circuit court may not enjoin a judge of a circuit court in a different county. Appellant virtually asks for a writ of prohibition from one circuit court directed to a circuit court of another county. The Supreme Court alone has supervisory power over circuit courts. Article 7, § 4, of the Constitution of Michigan (1908). It alone can issue writs of prohibition. If there were any merit in the claim that a circuit judge had committed a public wrong in the conduct of the grand jury, the parties immediately affected might have appealed, but otherwise such a public wrong could not be redressed by private intervention in the courts of another county. Miller v. Grandy, 13 Mich. 540; Steffes v. Moran, 68 Mich. 291. The cases fully support High on Injunctions (4th Ed.), §46 in the statement that “a court of equity is devoid of jurisdiction to grant an injunction against the judge of another court to restrain him from acting in or making orders in a particular cause. Every judge is supreme and independent in his own sphere, and can not be restrained in the discharge of his functions by the process of injunction. While, therefore, equity may in proper cases enjoin suitors in another court from, proceeding with their cause, the injunction can not operate upon or run against the judge of such court.” Sanders v. Metcalf, 1 Tenn. Chan. 419; Platt v. Woodruff, 61 N. Y. 378.
In view of our holding that the one-man grand jury act is constitutional, it follows that the State treasurer and auditor general legally paid out moneys for a purpose for which it was appropriated by the State legislature. The judge of the Wayne circuit court correctly held that he had no right to review the actions of the Ingham county court. The venue of such an action, if it had any merit, would be where the fact happened. 3 Comp. Laws 1929, § 13997 (Stat. Ann. § 27.641). No circuit court has jurisdiction to issue a writ of mandamus against a State officer. 3 Comp. Laws 1929, § 15186 (Stat. Ann. §27.2230). Reed v. Civil Service Commission, 301 Mich. 137.
In coming to our conclusion it becomes unnecessary to discuss whether a single taxpayer who does not disclose the nature or the amount of his interest can bring this action without joining four other taxpayers and giving a bond of $300 as provided by Act No. 314, chap. 12, § 2a, Pub. Acts 1915, as added by Act No. 4, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 14010-1, Stat. Ann. 1946 Cum. Supp. § 27.654 [1]). We prefer to rest our decision on the broader grounds hereinbefore set forth.
The order of dismissal is affirmed, with costs to appellants,
Btishnell, Sharpe, Boyles, Reid, and North, JJ., concurred. Carr, C. J., and Dethmers, J., did not sit. | [
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BushneLl, J.
Defendant Dettary Engineering Company, a Michigan corporation, had but one stockholder, Steve Dettar. It was engaged in the manufacture of tools, dies, fixtures, nuts and gauges, which it sold to various customers as ordered. Its articles of incorporation authorized it to “manufacture, purchase or otherwise acquire, to own, hold or use, to sell, assign, transfer or otherwise dispose of and to invest in and generally deal in and with goods, wares and merchandise of every nature and description.”
Defendant ordered and received from plaintiff Edwin C. Frederick, el al., doing’ business as Frederick Steel Company, a quantity of steel, for which it failed to pay. Frederick 'obtained a default judgment against Dettary Engineering Company for $1,120.82. Before this suit was started, Dettary Engineering Company sold substantially all of its assets to the garnishee defendants Allan Carr and Thomas Kemp, copartners doing business as Linwood Industries, Ltd. -A bill of sale was executed covering all its “machinery and equipment, furniture and fixtures and inventory of steel and parts,” with the exception of certain machines specified therein. •
Plaintiffs, claiming that the sale from Dettary Engineering Company to Linwood Industries was void becáuse of failure to comply with the bulk sales act, brought garnishment proceedings against Lin wood. It is admitted that the sale was made other than in the ordinary course of business and that no attempt was made to comply with the act.
From this sale' Dettary Engineering Company received $11,000 from Linwood Industries, which was distributed largely among creditors who had liens on its property, and the balance of about $2,000 was paid to Steve Dettar. At the same time Dettary Engineering Company had a liquidated claim of about $8,100 against the government.
The trial judge filed a written opinion in which he discussed the bulk sales act and concluded that it was not applicable, to sales by manufacturers. Plaintiffs have appéaled from a judgment in favor of defendant of no cause of action. Section 1 of the bulk sales act (Act No. 223, Pub. Acts 1905 [2 Comp. Laws 1929, §§ 9545-9547 (Stat. Ann. §§ 19.361-19.363)]), reads in part as follows:
‘1 The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual •prosecution of the business of the" seller, transferor or assignor, shall be void.”
When the uniform sales act (Act No. 100, Pub. Acts 1913 [2 Comp. Laws 1929, § 9440 et seq., Stat. Ann. § 19.241 et seq.]), was enacted, the bulk sales act was specifically excluded from its scope. See section 76 (b) thereof (2 Comp. Laws 1929, § 9517, Stat. Ann. §19.318).
Appellants state the question presented for decision as follows:
“Is the sale of machinery, tools, furniture and fixtures used by the seller to manufacture tools, dies, fixtures, nuts, gauges, et cetera, to be sold to its customers, where there was also included an inven tory of steel and, parts, void under the Michigan bulk sales act, where the sale was in bulk and otherwise than in the regular course of business of the seller ? ’5
In 24 Am. Jur. p. 362, § 258, it is said:
“The bulk sales acts do not govern a sale by a manufacturer, their purpose being'to regulate sales of merchandise which constitutes the stock of mercantile establishments.”
Professor Williston, in discussing bulk sales acts in general, states in his work on Sales (2d Ed.), § 643, p. 1616:
“The statutes are applicable to retail dealers but generally not to wholesale dealers or to manufacturers or persons not ordinarily engaged in trade. A few statutes are wider in their operation.”
In the early case of Spurr v. Travis, 145 Mich. 721 (116 Am. St. Rep. 330, 9 Ann. Cas. 250), which involved the validity of the bulk sales act, the Court answered the argument that it was class legislation “because it limits its operation to merchants and does not include farmers, manufacturers, et cetera, ’ ’ by quoting from McDaniels v. J. J. Connelly Shoe Co., 30 Wash. 549 (71 Pac. 37, 94 Am. St. Rep. 889, 60 L. R. A. 947):
“ ‘It is well known that the business of retailing goods, wares, and merchandise is conducted largely upon credit, and furnishes an opportunity for the commission of frauds upon creditors not usual in other classes of business. ’ The act is not class legislation. ’ ’
The key word in the construction of the act is ‘ ‘ merchandise. ” '
“Merchandise is defined by Webster as ‘objects of commerce; whatever is usually bought and sold in trade or market by merchants.’ We think that ‘merchandise,’ as used in this act,»must be construed to mean such things as are usually bought and sold in trade by merchants.” People’s Savings Bank v. Van Allsburg, 165 Mich. 524, 526.
This definition was applied in a case involving a sale of pool tables, the Court saying:
“The bulk sales law relates to a ‘stock of merchandise or merchandise and the fixtures pertaining to the conducting of said business.’ ‘Merchandise’ here means ‘such things as are usually bought and sold in-trade by merchants.’ ” McPartin v. Clarkson, 240 Mich. 390, 392 (54 A. L. R. 1535).
At first glance, Patmos v. Grand Rapids Dairy Co., 243 Mich. 417, and Michigan Packing Co. v. Messaris, 257 Mich. 422, seem to cast doubt upon the People’s Savings Bank and McPartin Cases. In the Patmos Case, on which the Michigan Packing Company opinion relies, the Court specifically found that the principal defendant, Grand Rapids Dairy Company, bought and sold merchandise. Farrell v. Paulus, 309 Mich. 441, involving a bowling- alley, may possibly be classified with the cases just mentioned, but decision on a bill brought by a judgment creditor turned oh the ground that the transfer of title was in fraud of creditors, citing 3 Comp. Laws 1929, § 13434 (Stat. Ann. §26.971).
Notwithstanding our holdings that the act in question is remedial (see Watkins v. Angus, 241 Mich. 690, and Michigan Packing Co. v. Messaris, supra), we are nevertheless controlled by the obvious limitation of the language of the act. The applicability of such, language to sales out of the ordinary course of business by manufacturers is fully annotated and discussed in 41 A. L. R. p. 1214.
A review of the authorities on this question may be found in Broad Street National Bank v. Lit Bros., 306 Pa. 85 (158 Atl. 866). Among those who hold that the act is inapplicable to manufacturers are the courts of Georgia, Arkansas, Wisconsin, Missouri and Washington. (See authorities therein cited). Michigan is included in this category by reference to Spurr v. Travis, supra. Illinois at one time held that manufacturers were beyond the scope of the act, but it was subsequently amended in that State so as to include not only merchandise “but other goods and chattels of the vendor’s business in bulk.” Illinois later held that the act as amended applies to manufacturers. Massachusetts and Connecticut are among the minority who apply the act to manufacturers.
The scope of our act is confined to the sale “of any part or the whole of a stock-of merchandise or merchandise and fixtures.” There is a distinction between merchandising and manufacturing. The first is the selling of fabricated goods, and the second, fabrication of such goods.
As indicated in the Spurr G.ase, there are reasons of policy for drawing a distinction between protecting creditors of a merchandiser and those of manufacturers.
The Pennsylvania court said in Broad Street National Bank v. Lit Bros., supra:
“There seems to be a tendency of late to broaden such statutes and to give them a more liberal interpretation, and if it is desirable for the bulk sale statute of our State to embrace the products- of a manufacturer, the remedy is with the legislature.”
Until the legislature acts, wé, also, see no reason to change our previously expressed views.
The judgment is affirmed, with costs to appellee.
Carr, ,C. J-, and Btttzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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North, J.
Plaintiffs, being .owners of properties located within a restricted and zoned area wherein defendant’s property is also located, instituted this chancery suit and sought to have defendant restrained from erecting a building on his property which plaintiffs alleged was being erected and was to be used in part as a retail store in violation of the restrictions and the zoning ordinance. Plaintiffs were decreed the relief sought. Defendant has appealed.
The area in question is located in the city of Grand Rapids. Defendant’s parcel is known as 1853 Lake Michigan Drive, N. W. It has a frontage of 150 feet on the Lake Michigan Drive and an average depth of approximately 191 feet. He obtained title to this property by deed dated March 19, 1946. His deed contained a clause of which the pertinent part reads: “This deed is given subject to the following restrictions. Any dwelling to be erected thereon shall be a one-family house.”
The area within which the properties of these litigants are located, formerly known as the Wright farm consisting of 40 acres, was a part of the estate of Henry Smith, deceased. Plaintiff, Walter Perschbacher, and one Mr. Wylie, as co-executors of Henry Smith’s estate, were charged with the duty of disposing of decedent’s real estate holdings. They caused a plat of 30 lots to be made t>f a portion of the 40-acre parcel. This plat was never recorded or formally dedicated, but it was used in making sales of the platted lots by being exhibited to prospective purchasers to enable them to determine the location, size, et cetera, of any parcel in which they might be interested. It was so used by Mr. Perschbacher in making the sale of the two lots purchased by defendant Leon Becker. “For convenience” in conveying the platted lots.title to at least some of them, including the two lots conveyed to the defendant, was placed in Emily M. Harmsen. In consequence thereof she was the grantor in defendant’s deed.
Under the record in this case there can be no question that the dwelling or structure which defendant has undertaken to build upon his lots is something more and entirely different' from a “one-family house.” In part the structure is designed as.- a family dwelling, but at least 50 per cent, of the first floor space in this structure is designed and intended to be used by defendant as a means of carrying on his business. -The business of defendant is selling pianos, incident to which he makes exchanges by taking in used pianos, and he keeps ’on hand a stock of merchandise of that character. The plans for the structure which he proposes to -.erect provide for a “studio” or salesroom, 21 x 50 feet, for storage room in the basement, 20 x 48 feet, for a repa,ir shop, a loading platform,, a freight or hoisting elevator, and for a large window in the front of the structure evidently for display purposes. In short, defendant’s proposed structure is of such a character that there can be no question about the correctness of the trial court’s decree granting injunctive relief if, under the circumstances of this ease, the restrictive clause in his deed is enforceable against defendant.
The restrictive clause was not included in the conveyance to defendant’s grantor, nor was it at any time prior thereto contained in the chain of title to defendant’s lots. But the record discloses that with the exception of a few triangular pieces which were not salable the restriction'was placed in each of the sales contracts or deeds to the other lots in this plat, all of which have been sold. It thus appears that title to each of the building lots in this plat comes from a common grantor and in each of them the noted restriction is contained. In this manner the restriction became uniformly applicable to each of the lots. While the restriction did not appear in the abstract of title to defendant’s lots up to and including the deed by which defendant’s grantor took title, nonetheless there is testimony in the record that defendant was definitely informed of this restriction prior to the time of his purchase. Walter Perschbacher, who negotiated the sale of the two lots to defendant, testified that prior to the sale: “I told him (defendant) as I have indicated, what the restrictions were, about the price restriction, that no dwelling shall be built for less than $6,000, one-family house. ’ ’ The extent of the understanding between defendant and the sales agent was that if defendant purchased the propérty and erected a house thereon there would be no objection to his negotiating in his home with prospective purchasers of pianos. Perschbacher, the sales agent, testified:
“Tes, he told me he would want the right to sell pianos up there in that location and he told me’ he would build a beautiful home, -costing between fifteen and twenty thousand dollars, and I said to him I would like to see that kind of structure built there, and I wouldn’t have any objection to selling pianos or displaying a piano or two in a nice living room. * *■ * I was perfectly willing at that moment and still am, for the good of this plat, to permit a man to display one or two pianos in a nice living room. * * * He just talked about his building a beautiful fifteen, twenty thousand dollar home, a place where he could display to advantage in the right setting a piano. * * *
“I had no information from Mr. Becker nor from anyone else to indicate he was going to have a substantial sized loading platform in connection with it. I didn’t get that information until Mr. Johnson and Mr. Zelinski (owners of lots in the plat) came to my office to protest what was going on, that was the first I knew that there was anything going on that was a betrayal of my confidence with Mr. Becker. I had no information before these “neighbors came to protest that there was to be a freight elevator in this structure, nor that a substantial part of it was to be used for the purpose of a repair shop, nor that any portion was to be used for storing pianos. ’ ’
It is obvious that the structure defendant seeks to build is altogether a different type than that to which he referred when negotiating for the purchase of the property. We are mindful that defendant testified he had no knowledge of the restrictive covenant appertaining to the lots in this area until he read the same in the deed which he received shortly after March 21,1946, and by which time the foundation for his building had been partially constructed. However, careful consideration of the whole record results in our being unable to give credence to defendant’s testimony that he had no knowledge of the restriction.
“The law is well settled that building restrictions of the character shown are in the nature of reciprocal negative easements, and may be created upon a division, and conveyance in severalty to different grantees, of an entire tract. That a portion-of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all .in interest, it is binding and enforceable on all inter se. >. It goes with the land, and' is equally binding on all purchasers with notices.” Allen v. City of Detroit, 167 Mich. 464, 469 (36 L. R. A. [N. S.] 890).
“Covenants restricting the erection of any building except for dwelling house purposes are construed to apply to the use as well as to the character of the building and in strictly residential neighbor hoods where compliance therewith has always been had, nullification of the restrictions is deemed a great injustice to the owners of the property.
“Courts protect property owners seeking- to enjoin violation of restrictive covenants contained in their deeds where the plaintiffs have not themselves violated restrictions in the enjoyment of their homes and holdings.” Wood v. Blancke (syllabi), 304 Mich. 283.
Because in our judgment the portion of the record hereinbefore reviewed is decisive of decision, we deem it unnecessary to pass upon appellees’ further contention that defendant’s structure is being-erected in violation of the Grand Bapids zoning ordinance applicable to this area, and that the trial judge correctly so held.
While by cross bill appellant sought reformation of his deed by having the above-noted restriction deleted, in view of our holding as hereinbefore expressed, appellant is not entitled to such relief.
The decree in the trial court wherein the injunctive relief sought by plaintiffs was granted “until and unless said structure shall be made to conform to the restrictions of said deed” is affirmed. Appellees will have costs of this Court.
Carr, C. J., and Btjtzel, Btjshnell, Sharpe, Boyles, Beid, and Betumees, JJ., .concurred. | [
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] |
Boyles, J.
The defendant appeals from an order modifying a decree for divorce and depriving her of the custody of two minor children. The defendant was granted a decree of divorce from plaintiff March 15, 1946, wherein she was given the custody of the two minor children now aged about two and four years respectively. Defendant, having no home of her own, left the children at the home of her father who was not married, to be eared for by a woman who was living with him in a small cottage at a lake. In June the defendant became involved in an argument with her father occasioned by his becoming intoxicated, took the children-to the home of plaintiff’s mother, Marjorie Geark, the petitioner herein, who lived in the upstairs part of a house in Sturgis; and asked her to take care of them. Marjorie Geark had been divorced from her former husband, who, however, continued to live in her home at the time of the hearing on this matter, December 6, 1946. Plaintiff Donald Geark had been in prison for nonpayment of alimony for support of children by a former marriage, but was also living with his mother Marjorie Geark at the time of the hearing. Marjorie Geark kept the two children for three or four months until the defendant again became involved in an argument, this time with her mother-in-law Marjorie Geark and thereupon moved the children back to her father’s home. At that time said derféndant indicated she was going to get married again, but that her intended spouse had no place for them to occupy and that they planned to live with the defendant’s father in his lake cottage. According to the testimony of the friend of the court at the time of the hearing, her intentions have come to fruition, she has since been married again, and has taken the children from her father’s home and left them with the parents of her new husband.
September 27, 1946, while at least one of the children was at the home of plaintiff’s mother, Marjorie Geark, she filed a petition in the divorce case in effect asking that the decree be modified, the legal custody be taken from the defendant, the mother of the children, and awarded to her. The defendant moved to dismiss this petition on the ground that the petitioner was not a party to the divorce case, and that the petition did not state any ^adequate grounds for the relief prayed. The motion was denied; and without further petition, on December 6, 1946, the court held a, hearing and entered an order granting petitioner the custody of the children. The defendant herein, the mother who was thus deprived of legal custody of her children, appeals.
The petition was filed by Marjorie Geark in her own name and on her own* behalf. It formed no proper basis for a hearing and the motion to dismiss should have been granted. There is no procedure whereby this petitioner, a stranger to the divorce case, on her own behalf, may seek the modification of a provision of the decree, and the care, custody and maintenance of the minor children. The statute (3 Comp. Laws'1929, § 12739 [Stat. Ann. .§25.97]) provides that the court may “on the petition of either of the parents” revise and alter a decree concerning the care, custody and maintenance of the minor children of the marriage. We are not here called upon to determine whether such a petition may be filed on behalf of the children or the State, by the prosecuting attorney or the friend of the court.
The petition failed to allege facts showing that the mother of the children was an unfit person to have the custody, or that the petitioner was a fit person. Nor did the court make a finding that the defendant is not a fit person to have such custody, and the record here is barren of any proof which would support such a finding. Such proof is necessary, to deprive the mother of the right of custody. 3 Comp. Laws 1929, § 12852 (Stat. Ann. § 25.311); Riemersma v. Riemersma, 311 Mich. 452.
There is no proof in the record that the plaintiff in the divorce case was notified of the hearing to modify the decree. Due process requires that a party to the divorce be notified and given an opportunity to be heard. Huger v. Huger, 313 Mich. 158.
No notice was given to the prosecuting attorney. He should have been notified of the hearing to modify the decree and afforded opportunity for investigation. Bishop v. Bishop, 286 Mich. 567. These children are wards of the court and the right of the State is superior to that of the parents. Wallace v. Wallace, 310 Mich. 30.
The order granting the custody to Marjorie Greark must be set aside. However, the law is well settled that a provision in a decree of divorce as to the custody of the minor children of the marriage is within the continuing jurisdiction of the circuit court for future modification as circumstances may require. Without doubt the conditions which should control the right to custody in this case have been changing with such frequency as to require frequent supervision by the court. In fact, one of the grounds alleged by appellant here for reversal is that the court determined the custody on the basis of the report of the friend of the court as to conditions two months before the hearing, rather than on the day of hearing. The circuit court has ample power to change the custody at any time hereafter, when conditions indicate that a change in custody will be for the best interests of the children. Sims v. Sims, 298 Mich. 491.
The order modifying the decree and granting custody to Marjorie Greark is set aside and the matter remanded to the circuit court for such fur ther consideration and order, after a proper petition, notice and hearing, as the then-existing circumstances may require for the best interests of the children. No costs awarded.
Carr, C. J., and Btjtzel, Btxshnell, Sharpe, Reid, North, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, § 12764, as amended by Aet No. 44, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 12764, Stat. Ann, § 25.121).—Beporeer. | [
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O’Hara, J.
On January 6, 1970, the State Highway Commission brought a petition pursuant to 1966 PA 295 to condemn the defendant’s property in order to improve highway US-131. The property to be taken was 30 acres in fee of an 80-acre parcel. The land was being used by the defendant as a gravel pit. The case was tried before a jury on April 17, 1972. The State offered $34,000 for the land which was at least $60,000 below the value requested by the owner. On April 20, 1972, the jury returned a verdict of $38,700.
On May 2, 1972, the defendant moved for the allowance of $19,474.72 costs and expenses. The State filed an objection to the amount claimed contending that several of the proposed costs were excessive and unreasonable and that others were not justified since they played no part in the trial. A hearing was held in circuit court to settle the dispute. In his opinion, the judge passed on each item individually. We deem it helpful to set forth his findings in their entirety. We will discuss decisionally those with which we disagree and our reasons for so doing.
"Costs: Requested: Allowed:
John C. Helveston, appraisal fees $3,800.00 $2,908.00
(Exhibit A)
John C. Helveston, pre-trial conf. and testimony at trial (no contest) 400.00 400.00
(Exhibit B)
Eldon J. Nedeau, appraisal fees 3,500.00 2,908.00
(Exhibit C)
Eldon J. Nedeau, pre-trial conf. and testimony at trial (no contest) 571.02 571.02
(Exhibit D)
William F. DeYoung, engineering fees 385.00 None
(Exhibit E)
James Lehman, engineering fees 919.00 519.00
(Exhibit F)
Grand Rapids Testing Service 8,239.80 None
(Exhibits G, H & I)
Abrams Aerial Survey 1,162.50 275.00
(Exhibits J & K)
Wigen-Tincknell Associates 183.20 183.20
(Exhibit L)
Richard Roelofs, witness fee and mileage 20.00 None
(Exhibit M)
Robert C. Jakems, witness fee and mileage 20.00 None
(Exhibit N)
Peter Spaanstra, service fees 11.60 None
(Exhibit O)
Helen A. Johnson, depositions 182.60 None
(Exhibit P)
Smith, Bovill, Joseph & Wolf, P. C. Statutory Attorney Fee. 100.00 100.00
TOTAL $19,494.72 $7,864.22”
Under the de minimis doctrine we do not address ourselves to the items of $20 or less. Neither do we disturb the findings of the trial judge in which some relatively substantial adjustments were made. These we think were well within his discretion.
We hold the item of $182.60 for the cost of depositions which was disallowed by the trial judge to have been properly a taxable item.
Therefore we now will pass decisionally on the two major items, one of which the learned trial judge disallowed in its entirety and the other which he drastically reduced. They are $8,239.80 for the Grand Rapids Testing Service and $275 for the Abrams Aerial Survey in lieu of the claimed $1,162.50. We will discuss them separately.
In its extremely thorough and detailed opinion the court adverted to the fact that the State’s so-called Malott Report was not challenged as unreliable by any witness and that the report of the Grand Rapids Testing Service was not in evidence.
In this we think the trial judge applied an erroneous test as to the property owner’s right to have a test of his own comparable to the one made by the State. The defendant could hardly have been expected to anticipate that the State’s witness would testify as follows as to the Grand Rapids testing report:
"[I]t seems to be a very thorough report. They did 31 borings, and 15 test pits; samples came from the test pits which is a very good way to sample. There was no resistivity run on it which does not detract from the report at all. They did more testing than we did in that they tested some of the properties of the aggregates in reference to uses in higher type aggregates which we did not do. We only did the mechanical analysis. So all in all I would say that it’s a very thorough report. In my opinion, there were two thorough surveys done of the same area.”
It is hardly to be expected that after that testimony defendant would call a representative of the testing company to say in effect that its own report was indeed thorough and properly prepared.
It would be indeed a dangerous rule of law to hold that because a property owner’s report, ordered in preparation for contesting a condemnation proceeding, accords at trial with that of the state’s that the expense of preparing the landowner’s report is totally unallowable.
We note that the state’s witness testified that the total cost of preparation of the Malott Report, so-called, was $11,502.53. As previously noted, the cost of the landowner’s was $8,239.80. It seems to follow incontestably that under the State’s own cost figures the charge by the Grand Rapids Testing Service was completely reasonable, particularly, when it was admitted by the State to be "very thorough”.
We turn now to the virtually disallowed aerial survey. The record clearly establishes not only that the State uses such surveys but indeed uses the same company which prepared the topographical map for the landowner. Again the State’s witness admitted with complete candor that this was the "kind of a tool” that someone doing Mr. Malott’s type of work "frequently relies on”.
We follow the eminently sound principle promulgated by this Court in City of Holland v Green, 25 Mich App 565, 568; 181 NW2d 821 (1970):
"In an adversary proceeding, parties are not bound to rely on their adversaries to furnish them with the evidence to support their claims. To state it differently, the defendants in this case were not obliged to limit their search for evidence to support their claim to such evidence as the plaintiff was willing to furnish.”
We modify the trial court’s order fixing the fees to allow specifically the items of $8,239.80 for Grand Rapids Testing Service, $1,162.50 for Abrams Aerial Survey, and $182.60 for Helen A. Johnson’s depositions. In all other respects the trial court is affirmed. We award no costs in this Court, neither party having prevailed in full.
The pertinent statutory provision is MCLA 213.383; MSA 8.261(23). | [
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Per Curiam.
This action resulted from the institution of criminal proceedings by defendant against Bayne Optical, Inc. for alleged violation of the optometry law, MCLA 338.251 et seq; MSA 14.641 et seq. Plaintiffs then filed this action for a declaratory judgment as to the applicability to them of MCLA 338.258(e); MSA 14.648(e) and 1954 AC, R 388.266.
Bayne Optical, Inc. and members of plaintiff society are opticians. They duplicate and replace broken ophthalmic lenses without a written prescription from a licensed optometrist or physician. The trial court found that replacement and duplication of lenses was not the practice of optometry as defined by the statute and was not regulated by the optometry law. A declaratory judgment entered below holding that plaintiffs were not subject to the optometry law and enjoining defendant from interfering with opticians while engaged in the lawful pursuit of their business. Defendant appeals.
The finding of the trial court that the activities of plaintiffs did not constitute the practice of optometry is not clearly erroneous, GCR 1963, 517.1. That finding is determinative of this appeal.
MCLA 338.251 et seq.; MSA 14.641 et seq. is titled in part "An act to regulate the practice of optometry”. It cannot regulate the practice of opticians without violating Const 1963, art 4, § 24, Kindy Opticians, Inc v State Board of Examiners in Optometry, 291 Mich 152; 289 NW 112 (1939).
This conclusion obviates discussion of the other issues raised.
Affirmed but without costs, a public question being involved. | [
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Per Curiam.
Defendant pled guilty to a charge of assault with intent to rob being armed. MCLA 750.89; MSA 28.284.
During the plea the following colloquy took place:
"The Court: I have in my possession a document entitled 'Guilty Plea’ which gives you your constitutional rights and, also, informs you of the maximum the court can impose upon you, have you read this and have you discussed it with your attorney?
"Defendant: Yes, I have.
"The Court: Do you understand it?
"Defendant: Yes.
"The Court: Is that your signature?
"Defendant: Yes.”
GCR 1963, 785.7(1) provides that:
"(1) Advice by the Court. The court shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following:”
The rule is clear. It requires the trial judge to personally advise the defendant of his rights. The trial judge failed to comply with the mandates of the court rule.
Reversed and remanded for a new trial. | [
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Carland, J.
This is a class action brought by plaintiffs on behalf of certain building trades (laborers, ironmakers, carpenters, plumbers and electricians) in Berrien County, Michigan. The defendant is the board of education of the Coloma public school district, a third-class district.
On January 25, 1971, the voters of the district approved the borrowing of $2,425,000 and the issuance of bonds by the district for the purpose of constructing certain school facilities and equipping the same.
During the 1970-71 school year, the district received certain funds from state aid and from federal agencies, none of which were used for the construction project here in question. The district never borrowed money from the state to pay the principal and interest due on said bonds.
Said bonds were sold and the proceeds from the sale delivered to the district. Prior to the awarding of the contract for construction, the defendants were requested by plaintiffs to award said contract in accordance with the provisions of MCLA 408.551-558; MSA 17.256(1M8). After advertising for bids, the contract for construction was awarded. Neither the authorization for the publication of bids nor the contract awarded contained the "prevailing wage” clause required under the above mentioned statute.
On November 26, 1971, the plaintiffs filed their complaint claiming violation of the statute and seeking injunctive relief as well as the difference between actual wages paid to the plaintiffs and the prevailing wage paid in the building trades in Berrien county.
The defendants filed a motion for summary judgment and the matter was submitted to the trial judge for decision on certain stipulated issues which will be discussed later in this opinion. On November 29, 1972, the motion for summary judgment was granted in favor of defendants and plaintiffs appeal as a matter of right.
The issue raised is whether under the provisions of the statute referred to school districts constructing new schools are "contracting agents”, constructing public buildings, which constitute "a state project”. The pertinent portions of the statute which must be construed in deciding this issue are as follows:
"(b) 'State project’ means any new construction, alteration, repair, installation, painting, decorating, completion, demolition, conditioning, reconditioning or im provement of public buildings, works, bridges, highways or roads authorized by a contracting agent.
"(c) 'Contracting agent’ means any officer, board or commission of the state, or any state institution supported in whole or in part by state funds, authorized to enter into a contract for a state project or to perform the same by the direct employment of labor.” MCLA 408.551; MSA 17.256(1).
At the outset, in construing this statute we are of the opinion that since it is in derogation of common law and since it provides for certain penalties in the event of violation, that it must be strictly construed. Having these precepts in mind, we must first seek to determine whether it was within the legislative intent that school districts should be included in and bound by the provisions of the statute. Under the principle of strict construction, the intent of the Legislature to include school districts within the statute must affirmatively appear.
The history of an "act” adopted by the Legislature may be examined as a part of the process of determining legislative intent. With this in mind, we note that as originally passed by the House of Representatives, section 1(c) read as follows:
"Contracting agent means any officer, board or commission of the state, or political subdivision thereof or any state institution supported in whole or in part by state funds, authorized to enter into a contract for a state project or perform the same by the direct employment of labor.” (Emphasis supplied.)
Prior to its passage, an attempt was made in the House to amend the act by striking therefrom the words "or any political subdivision thereof’ and such attempt was defeated. Following passage, the Michigan House Journal contains the following comments of Representatives Arnett and Sharpe.
"Rep. Arnett, having reserved his right to enter his protest against the passage of the bill, made the following statement:
" 'Mr. Speaker and members, I voted no on this bill. In the first place it was not properly explained to the members of the House who are not members of the Labor Committee and, second, because in section (c), page 2, it is pretty wide in its definition and inclusive in contracting agent. It gets down into the local areas and down to the Board of Education. It seems to me it places a burden upon them. Third, it interferes with collective bargaining. Now, we have heard a great deal about bargaining rights, not interfering with bargaining rights, and it seems to me like we are interfering with bargaining rights; we are interfering with contracts. It seems to me this is not the place for this legislature.’
"Rep. Sharpe, having reserved his right to enter his protest against the passage of the bill, made the following statement:
" 'Mr. Speaker, I voted no on House Bill 2101 because the questions which were asked that pertained to this bill were not properly answered, either because of the inability or the undesirability of answering the questions and I don’t know the reason for sure, but I do think that the concept of the bill — there was nothing wrong with the concept — but it was too far reaching and for this reason, Mr. Speaker, I voted no on this particular bill, Bill No. 2101.’ ” Michigan House Journal, 1965, Vol 1, p 434.
In the Senate, the act was passed with the deletion of the words "or political subdivision thereof’. In conference, the House adopted the act as passed by the Senate. We opine that in the construction of this statute this deletion may not be ignored. It must have been done with some purpose in mind and from the remarks of the representatives, it is concluded that the deletion is some evidence that "school districts” were not intended to be included in the statute.
The Attorney General in Opinion No. 4371, dated March 6, 1968, finding that school districts are within the act, does so, as stated by the trial judge, after making determinations that:
" 'officer * * * of the state’, as contained in section 1(c) includes members of boards of education and therefore local school district construction is included within the purview of this act [and] since boards of education are officers of the state, any money they receive from whatever source, including from local bonded indebtedness as in this case, become state funds and therefore the requirements of section 2 are met, i.e. 'sponsored in whole or in part by the state’.”
Like the trial judge, we cannot agree with the conclusions thus reached and are unable to find from the indefinite words of the statute any affirmative legislative intent to include school districts within the provisions of the statute.
Both from the entitlement of the act and from subsection 1(b) thereof, it is apparent that we are concerned with "state project” only. By various statutes, the Legislature has many times dealt with local school districts.
MCLA 691.1401(b); MSA 3.996(101)(b), having to do with tort liability of governmental units reads as follows:
" 'Political subdivision’ means any municipal corporation, county, township, charter township, school district, port district, or metropolitan district, or any combination thereof, when acting jointly, and any district or authority formed by 1 or more political subdivisions.”
MCLA 124.531(b); MSA 5.4087(l)(b), having to do with intergovernmental transfers of functions and responsibilities reads as follows:
" 'Political subdivision’ means a city, village, other incorporated political subdivision, county, school dis trict, community college, intermediate school district, township, charter township, special district or authority.”
Also in MCLA 691.1401; MSA 3.996(101), we note that "political subdivision” as defined therein includes "any municipal corporation” and we also note that decisions of our Supreme Court have repeatedly defined "school districts” as "municipal corporations”. It is significant that municipal corporations like school districts are not specifically mentioned in the act. We do not believe that the construction of a county courthouse could be held to be a "state project” because municipal corporations are not used in defining "contracting agent”. In Attorney General v Thompson, 168 Mich 511, 520; 134 NW 722 (1912) it is stated:
"School boards have been uniformly held to be separate and distinct corporations. It has also been held that they are municipal corporations and state agencies.”
Further, school districts are sometimes defined as "state agencies”, Presque Isle Township School District No 8 v Presque Isle County Board of Education, 364 Mich 605; 111 NW2d 853 (1961); Imlay Township Primary School District No 5 v State Board of Education, 359 Mich 478; 102 NW2d 720 (1960). However the term "state agency” is not used in defining "contracting agent”.
Throughout the long history of Michigan, our constitutions have mandated that the Legislature provide a system of common schools and throughout this history, local school districts have been the legislative instrument whereby this mandate has been fulfilled:
"Sec. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and personal, for educational purposes within or without its corporate limits, by purchase, gift, grant, devise or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act.” MCLA 340.352; MSA 15.3352.
"Sec. 113. The board of any school district of the third class hereunder shall have the powers and duties; (a) To locate, acquire, purchase or lease in the name of the district such site or sites within or without the district for schoolhouses, libraries, administration buildings, agricultural farms, athletic fields and playgrounds, as may be necessary; to purchase, lease, acquire, erect, or build and equip such buildings for school or library or administration or for use in connection with agricultural farms, athletic fields and playgrounds, as may be necessary; to pay for the same out of the funds of the district provided for that purpose.” MCLA 340.113; MSA 15.3113.
"The board of any school district, except a school district of the first or second class, which desires to commence the construction of any new school building or addition to any existing school building, shall obtain competitive bids before such construction be commenced on all the material and labor required for the complete construction of the proposed new building or addition to any existing school building.” MCLA 340.370; MSA 15.3370.
"Any school district, by a majority vote of the registered school tax electors voting on the question at an annual or special election called for that purpose, may borrow money and issue bonds of the district to defray all or any part of the cost of purchasing, erecting, completing, remodeling, improving, furnishing, refurnishing, equipping or re-equipping school buildings, structures, athletic fields, playgrounds, or other facilities, or any parts thereof or additions thereto; * * * ” MCLA 340.681; MSA 15.3681.
Acting as a "body corporate”, the defendant school district acquired in its own name a site for the improvements here involved. By a majority vote of its registered school tax electors, the district issued its bonds to defray construction and equipment costs. The district obtained competitive bids and construction was completed some three years ago. None of the steps taken arose through state action, nor did the state obligate itself in any way to pay for the same.
We are persuaded that a strict construction of the statute is mandated since it is in derogation of the common law and because of its penal provisions. The statute does not disclose affirmatively that it was the legislative intent that "school districts” were included within its provisions. The use of the term "school districts” could easily have been made a part of the statute had such been the intent. The contrary intent is demonstrated through deletion of the words "or political subdivision thereof’ before final enactment. Members of the Legislature expressed fears that the use of the latter term might be so construed as to "get down into local areas and down to the boards of education”. It seems clear that the Legislature had some purpose in mind when the words were stricken and was not indulging in the doing of a meaningless thing. We find this purpose was to insure that school districts would not be included within the provisions of the statute. We are bolstered in this finding by a belief that the Legislature was well aware that by its prior enactments school districts had been defined as "political subdivisions”. It is further significant that although throughout our judicial decisions, the term "state agencies” has been repeatedly used in referring to school districts, that such term was not used in the statute when defining "contracting agent”.
Neither are we able to find that the defendant was engaged in "a state project” in its construction endeavors. It acquired a construction site in its own name. It determined to build upon such site. Its electors determined to borrow money and become obligated to the issuance of bonds and to raise local taxes for the purpose of discharging this obligation. It advertised for bids and proceeded to award contracts in its own name. It attempted in no way to obligate the state nor did the state become obligated. No state funds were used in the construction here involved. The district was not authorized to enter into any contract on behalf of the state but was only authorized to obligate itself. Finally, a strict construction of the statute requires that before the district could become a "contracting agent” within the meaning of the statute, the state must have "supported in whole or in part by state funds” the project itself. Since only local funds were used, no such support was furnished by the state.
Having concluded that the defendant herein was not a "contracting agent” and did not engage in a "state project” within the meaning of the statute, we find it unnecessary to reach the constitutional question here raised.
We affirm. Since a public question is involved, we assess no costs. | [
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V. J. Brennan, P. J.
Defendant, John H. Atkins, was convicted by a jury in Kalamazoo County Circuit Court of armed robbery in violation of MCLA. 750.529; MSA 28.797. In the course of the three-day trial, the trial judge questioned the defendant on five occasions. The colloquies between the trial court and the defendant covered 5 of 196 pages of transcribed testimony. The questioning involved determining the last name of a friend of the defendant, locating a landmark with which the trial court was unfamiliar, the length of time the defendant spent at his parents’ home on the date of the crime, when the defendant had last shaved, and the quality of the defendant’s memory of the day on which the crime was committed.
The defense, in its case in chief, attempted to introduce a portion of a line-up photograph taken eight days after the robbery which showed the defendant to have some facial hair growth. An earlier eyewitness, Mrs. Dock, had described the armed robber as having no facial hair. This same eyewitness identified the defendant as the armed robber. The prosecution objected to the admission of only part of the picture. The trial judge sustained the objection and the defense introduced the entire photograph into evidence.
The defendant appeals his conviction alleging that the questioning by the trial judge demonstrated to the jury that he, the trial judge, had doubts about the credibility of the defendant and that this deprived the defendant of a fair trial. Defendant also argues that the trial court erred in allowing rebuttal testimony of the eyewitness, Mrs. Dock, concerning the line-up photograph introduced by the defense. The defendant claims that the prosecution was really allowed to reinforce its case in chief and that the trial court abused its discretion in permitting such testimony. Similarly, defendant argues that the trial court erred in sustaining the prosecution’s objection to admitting only a portion of the line-up photograph.
With respect to defendant’s first issue it appears that four of the five colloquies between the trial court and the defendant occurred as an attempt to clarify testimony. These exchanges were not such as would support a claim that defendant was denied a fair and impartial trial. People v Watson, 52 Mich App 211; 217 NW2d 121 (1974). In the fifth, the trial court questioned the defendant concerning the events of the week of the robbery. This colloquy parallels the line of questioning, approved in People v Wright, 38 Mich App 427; 196 NW2d 839 (1972), lev den, 388 Mich 758 (1972). We, therefore, find defendant’s allegation to be without merit and the line of questioning within the discretion of the court.
The second allegation is also without merit. The trial judge here was properly exercising his power to control the introduction of evidence. MCLA 768.29; MSA 28.1052. As the trial judge found, it was clearly important for the jury to see the lighting and quality of the entire picture to determine its value as support for the position for which it was offered.
Finally, the trial judge did not abuse his discretion in allowing the rebuttal testimony of the eyewitness, Mrs. Dock.
" 'Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In practical application the line of demarcation between rebuttal evidence and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court.’ ” People v DeLano, 318 Mich 557, 570; 28 NW2d 909, 914 (1947), quoting from People v Utter, 217 Mich 74; 185 NW 830 (1921).
The above statement is, of course, subject to the rule that it is not proper for the people to divide up the proofs upon which they have decided to rest their case and present some in their case in chief and the rest as "rebuttal”. See People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). This was not the situation in the present case, however. The testimony in this case was clearly within the scope of rebuttal evidence and within the trial judge’s discretion to allow. Since our examination of the record herein fails to disclose any abuse of discretion, we refuse to reverse defendant’s conviction on the ground here presented.
Lastly, by way of supplemental brief, defendant sought to raise an additional argument. The issue presented therein, however, was decided adversely to defendant’s position in the recent case of People v Milton, 393 Mich 234; 224 NW2d 266 (1974). Defendant’s contention, therefore, no longer has any merit.
Affirmed. | [
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M. F. Cavanagh, J.
This appeal arises from the disposition of the proceeds of a contract of insurance on the life of Percy Paulfry Wiltz, now deceased. Mr. Wiltz was originally married to the cross-defendant-appellee Annette Wiltz. The couple had five children. In 1969, Mr. Wiltz, an employee of Ford Motor Company, designated on his group life insurance application that his wife at that time, Annette Wiltz, was to be the recipient of any death benefits under the policy. The insurer on this policy was John Hancock Mutual Life Insurance Company (hereafter "John Hancock”).
On April 11, 1969, Annette and Percy Wiltz were divorced. The divorce decree provided that Mr. Wiltz was not to change the beneficiary of any policies under which Annette Wiltz was designated as beneficiary at the time of filing the suit for divorce. The judgment further ordered Mr. Wiltz to maintain such insurance. Several weeks after the divorce judgment Percy Wiltz filed a motion to modify the insurance provision of the judgment. This motion was denied on July 18, 1969.
Subsequently, Percy Wiltz married the plaintiff-appellant Cora Wiltz and, in direct violation of the divorce judgment, changed the beneficiary on the life insurance policy from his ex-wife, Annette, to his second wife, Cora Wiltz. On August 9, 1973, Percy Wiltz died. Both Annette and Cora Wiltz now claim the right to the proceeds — Annette Wiltz under the divorce judgment and Cora Wiltz under the insurance contract.
Plaintiff Cora Wiltz brought this action in Wayne County Circuit Court against John Hancock for the proceeds under the insurance contract. Cora Wiltz also requested John Hancock to pay the Swanson Funeral Home, Inc., $2,322.35 from the life insurance proceeds for funeral and. burial expenses. The trial court allowed John Hancock to interplead the entire sum of the proceeds, $15,750.00, and then ordered that the insurer be discharged from the suit. In granting defendant’s motion for summary judgment, the trial court held that Annette Wiltz was the proper beneficiary under the reasoning that the divorce judgment invalidated the change of beneficiary. Plaintiff appeals, assigning as error the decision to allow John Hancock to interplead the funds and the ultimate holding delivering the life insurance proceeds to Mr. Wiltz’s ex-wife, Annette Wiltz.
GCR 1963, 210.2 allows a defendant who may be exposed to multiple liability, upon order of the court, to deposit with the court (or otherwise preserve or secure by bond) an amount sufficient to assure payment of the liability admitted. Upon payment and hearing, the court may discharge the defendant from liability and join other claimants as defendants under Rule 207 or Rule 209.
The trial court committed no error in allowing John Hancock to interplead. Rule 210 was designed to eliminate the technicalities which formerly limited the use of interpleader. City of Warren v Mac-Way Construction Co, 20 Mich App 84; 173 NW2d 767 (1969). Today interpleader is available to cover any situation of exposure to multiple liability under the procedure outlined in GCR 210. Moore v McDowell, 54 Mich App 657; 221 NW2d 446 (1974). See also White v Michigan Life Insurance Co, 43 Mich App 653; 204 NW2d 772 (1972).
Plaintiff next argues that the trial court was limited to affecting the interests of the parties to the divorce and not the "unvested right” to the insurance proceeds. The argument continues that since the right to the proceeds did not vest until Mr. Wiltz’s death, he had a right to change the beneficiary, subject to Annette Wiltz’s right either to have the policy assigned to herself or to notify the insurer of the divorce judgment. We cannot accept plaintiff’s limitation on the authority of the trial court or her imposition of duty upon the first Mrs. Wiltz. Consequently, we affirm.
In Webb v Webb, 375 Mich 624; 134 NW2d 673 (1965), the Michigan Supreme Court dealt with a similar situation. Along with a bill for absolute divorce, the first wife also obtained injunctive relief restraining the husband from disposing of certain property, including a life insurance policy and a retirement annuity contract. Just prior to his death, however, Mr. Webb redesignated the beneficiary under these two policies to eliminate his ex-wife. The Michigan Supreme Court held that the trial court had been "eminently correct” in ordering a return to the status quo and that the trial court had the general power to do so. 375 Mich at 627; 134 NW2d at 674.
Although Webb is factually distinguishable from the present case, the difference does not affect the result. For other cases supporting the conclusion that the transfer of beneficiary should be invalidated, see White v Michigan Life Insurance Co, 43 Mich App 653; 204 NW2d 772 (1972), and Binben v Continental Casualty Co, 9 Mich App 97; 155 NW2d 883 (1967).
A trial court in a divorce action is mandated by MCLA 552.101; MSA 25.131 to "determine all rights of the wife in and to the proceeds of any policy or contract of life insurance * * * .” Accordingly, we also hold that a trial court does have the authority stemming from its equitable jurisdiction to set aside transfers which violate a divorce judgment and to return the parties to the status quo. This is especially true in cases, such as the present one, where there has been no change in position by the subsequently named beneficiary in reliance upon the transfer.
The judgment of the trial court is affirmed. | [
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] |
Allen, J.
This case presents a single issue of the constitutionality of a zoning ordinance classifying plaintiffs’ land residential rather than commercial as requested by plaintiffs and as approved by the village planning commission. Following denial of their request by the village council, plaintiffs filed suit in circuit court. April 24, 1974, the court rendered judgment for plaintiffs, holding the single residence zoning of plaintiffs’ property invalid and unconstitutional as to plaintiffs’ property. Defendant village appeals as of right.
The village of Franklin, "the town that time forgot”, is a small community with historical significance. Its area is about 2.6 square miles and its population approximately 3500. Within its boundaries lies the Village Center Area containing the original historic establishment and most of the single commercial and office development. This old and historic area is bounded on the north by 14 Mile Eoad and is roughly bisected by Franklin Road, a street which runs north and south between 13 and 14 Mile Roads. Its architecture is basically historic colonial and the area has been designated an historic district pursuant to MCLA 399.201; MSA 5.3407(1), and by the Department of Interior.
Plaintiffs’ land, a quadrilateral-shaped parcel, is situated within the Village Center Area at the southeast corner of 14 Mile Road and Franklin Road. The southerly portion of the quadrilateral is now zoned commercial. On it stands a 2-1/2-story colonial-type furniture store with a separate building at the rear used as a candy shop. Both buildings are owned by plaintiffs. The balance of plaintiffs’ parcel contains 2.63 acres of vacant land, all zoned for single residential use. The vacant area is surrounded by several different zoning classifications. Directly across 14 Mile Road at the northeast corner of the intersection, the property is zoned for office use and is vacant. Likewise, at the northwest corner of the intersection, the property is zoned for office use and is presently being used by the Franklin Cider Mill.
On the east, plaintiffs’ property is bordered by a stream which flows in a deep ravine and acts as a natural barrier between plaintiffs’ land and the residential homes east of the stream. On the west side of the stream and on plaintiffs’ property is a small pond. The pond is 27 feet below the ground on which stands the furniture store. On the south is a strip zoned for commercial use extending south approximately 1-1/2 blocks. This strip constitutes the central business district of the village. At the rear of the commercially zoned strip is an area zoned for single residential use.
The quadrilateral parcel is not topographically uniform. That portion of the parcel which fronts on 14 Mile Road consists of a flood plain when the river to the east overflows and makes it unsuitable for dwelling sites. The land slopes significantly from its high point at the furniture store to the pond and to the intersection at Franklin Road and 14 Mile Road. The drop over the 437 feet of Franklin Road is 19 feet.
On March 23, 1972, the village planning commission unanimously approved changing the zoning from its present R-4 Single Residential to C-l Local Business. On June 12, 1972, the village council considered the request and adopted the following substitute motion on a vote of 4-2.
"Whereas it is the judgment of the council of the Village of Franklin that it is not in the best interests of the village to permit commercial development of the property located at the southeast corner of Fourteen and Franklin Roads owned by Mr. Michael Michaels and,
"Whereas it is further the judgment of the Council that this land should be retained in its present state and,
"Whereas it is the further judgment of the Council that Mr. Michael Michaels is entitled to reasonable compensation for his property and,
"Now therefore be it resolved that the application of Mr. Michaels for rezoning of lot 26 and part of lot 25, supervisors plat #8 from R-4 to Commercial Zoning be denied and a committee be appointed by the chairman to enter into negotiations with Mr. Michael Michaels for the eventual purchase of this property by the village subject to the approval of its electorate.”
On November 2, 1972, the village council sought to clarify its earlier resolution by adopting the following:
"[B]e it resolved that the resolution of June 12, 1972, relating to lot 26 and part of lot 25, supervisors plat #8 be clarified and that council’s purpose and intent in passing such resolution was:
1. To deny the petition for rezoning as not being in the best interests of the village.
2. To express the council’s belief that the property in question should be public land and left in an undeveloped condition.
3. To require the appointment of a committee to negotiate with the property owner for the purchase of his property by the village, such purchase to be subject to approval by the village electors because of a village charter provision.
"Be it further resolved that by the resolution of June 12, 1972, this council did not intend to suggest that the present zoning of the property is confiscatory or that the owner would be entitled to any compensation for it except if a purchase thereof was negotiated.”
The. trial judge viewed the parcel in question and, following the conclusion of trial, made specific findings of fact:
" * * * the popular Cider Mill has been located at the Franklin-Fourteen Mile intersection for many, many years and during the fall of each year is the focal point of very heavy, commercial vehicular traffic. This Court accepts as substantially accurate the testimony indicating the heavy volume of autumn traffic generated by the Cider Mill. This commercial use is inconsistent with a single residence use of the subject real property.
" * * * plaintiffs’ subject real property is not part of a residential neighborhood. The Franklin River and its flood plain separate plaintiffs’ property from the residences to the east.
" * * * single residence zoning of plaintiffs’ property is a kind of spot zoning. The property immediately south on the east side of Franklin is commercial and this commercial use extends south, including the retail stores that comprise most of defendant’s business district.
" * * * neither the master plan nor the recommendation of the planning commission, nor even the resolutions of defendant council, assert that single residence use of plaintiffs’ real property is either reasonable or desirable.
♦ * *
"Against this array of facts counsel for defendant argues valiantly that since plaintiffs’ property has 'value’ even when zoned for single residence use, this Court should uphold the single residence zoning. * * * But the fact is, this record indicates plaintiffs’ property is worth far more if zoned for commercial, office or multiple residential use. However, this Court does not believe that the sole issue here is whether all of the value in plaintiffs’ property is conñscated by single residence use. Diminution in economic value is only one of many factors that the Court must consider in determining the 'reasonableness’ of zoning.”
Chief Justice Kavanagh, speaking for the majority in the landmark case Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), clarified the rules governing challenges to zoning ordinances. The decision made clear that zoning ordinances are presumed valid — a presumption only rebutted when a constitutional defect appears on the face of the ordinance or is supported by competent evidence of a purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use. A defect does not appear on the face of an ordinance merely because it classified certain property for use as single residences only, Northwood Properties Co v Royal Oak City Inspector, 325 Mich 419, 423; 39 NW2d 25, 26 (1949), quoted with approval in Kropf, 391 Mich at 156; 215 NW2d at 186, nor is an ordinance arbitrary or unreasonable merely because the land can be more profitably developed if zoned commercial. Penning v Owens, 340 Mich 355, 367; 65 NW2d 831 (1954). This Court recently had occasion to analyze the implications of Kropf, in Tocco v Atlas Twp, 55 Mich App 160, 167; 222 NW2d 264 (1974) :
"Kropf, supra, is a powerful opinion. It restores Michigan zoning law to the Brae Burn [Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957)] days. But even under the Brae Burn aegis courts were not stripped of all right of judicial review in zoning cases.
"We have hereinbefore quoted from the trial judge’s findings of fact and we have agreed with them.
"Powerful as Kropf, supra, is, it is not, as we read it, a judicial straightjacket mandating the approval by reviewing courts of every zoning ordinance however worded or however in fact applied.”
Both in Kropf and in the case before us, plaintiffs and defendants presented expert witnesses on the question of the reasonableness of the ordinance. In each instance, the testimony was conflicting. In this situation, the rule adopted by Kropf was:
"But in cases such as we have before us, where the evidence presented on the record could reasonably support either party, this Court feels that this writer’s words in Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962), are most appropriate and should serve as a guideline for this Court and the lower courts reviewing similar cases de novo:
" 'This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case, unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.’ ” 391 Mich 139, 163.
This Court, in Drettman v Macomb Twp, 53 Mich App 35, 37; 218 NW2d 399 (1974), an opinion subsequent to Kropf, adopted the same test:
"Appellate courts consider cases such as the one at hand de novo on the record, but are also 'inclined to give considerable weight to the findings of the trial judge in equity cases’.”
The critical factual question in the instant case is whether, after allowing for the fact that some of the area could not be used for home sites because of the admitted flood plain, the necessary utilities and road could be built and the homes still sold at a profit. If so, the zoning would not amount to so arbitrary a classification as to prevent plaintiff from using the land for the only purpose for which it was zoned. On this question the testimony was sharply conflicting. Plaintiffs’ witness testified that development costs would exceed the estimated sale price and that the net loss would increase as the number of lots developed decreased. Plaintiffs’ witnesses also testified that the location of the prop erty at a busy intersection bounded on the south by commercial properties made the site unsuitable for residential development and that because of the flood plain and rolling topography, not more than about three homes could be realistically built. Defendant’s witnesses, using lower estimates of development costs, asserted that the site, with its pond and stream, would make an ideal location for residences built facing to the east and that the market value of the developed land would exceed the development costs. Defendant’s witness further testified commercial development would be injurious to the community because it would further clog traffic at the busy intersection and would adversely affect the residential development east of the stream. Having read the record and studied the exhibits, we find the trial judge’s finding of fact strongly supported by the evidence. In conformity to the tests laid down in Kropf, Tocco, and Drettman, supra, we accord them respectful weight and find plaintiff has carried the burden of proof that the ordinance as applied to plaintiffs’ property is arbitrary and unreasonable.
Our conclusion that the zoning was arbitrary as applied to plaintiffs’ property is supported by a fact not present in any of the cases cited. As noted earlier, in first denying plaintiffs’ application for rezoning, the village council by resolution stated "the land should be retained in its present state”. Whether this meant retained in its present state of zoning as residential or whether it meant retention in a vacant state was at that point unclear. This ambiguity was resolved in the subsequent clarifying resolution in which the council stated "the property in question should be public land and left in an undeveloped condition”. Clearly, by this action the council indicated that the council itself had reservations about the practicality of developing the property for single residential purposes. It also signalled a forthright intention of the council to work towards the village long-range Master Plan which designated the property as a public parks undeveloped area. Obviously, the village at some future date intends to acquire the property by condemnation, assuming that in the interval it could not negotiate a purchase with plaintiffs and secure approval by the electorate as mandated by its charter. Zoning may not be used as a method to depress property values so that at a future date property may be acquired for public purposes. In State, ex rel Tingley v Gurda, 209 Wis 63; 243 NW 317 (1932), quoted with approval in Grand Trunk W R Co v Detroit, 326 Mich 387, 397; 40 NW2d 195 (1949), it was said:
" 'In an effort to find the purpose of such a method of zoning, we find suggestions in the record that the city plainning commission contemplates some time in the future a boulevard along Mud Creek, and with that in view, a zoning regulation has been promulgated destroying the value of the property which will later have to be taken for that purpose, so that the city may be able to carry out the boulevarding project with less expense to itself.
* * *
" 'The zoning power is one which may be used to the great benefit and advantage of a city, but as this case indicates, it is a power which may be greatly abused if it is to be used as a means to depress the values of property which the city may upon some future occasion desire to take under the power of eminent domain. Such a use of the power is utterly unreasonable, and cannot be sanctioned.’ ” (Emphasis supplied.)
We do not go so far as to conclude that the present zoning was enacted to purposely depress the market value of plaintiffs’ parcel. However, we do hold that in view of the evidence as to the unsuitability of the property for residential purposes, the council’s refusal to rezone is unreasonable. As long as plaintiff is unable to develop and market the lands for single home sites, defendant will enjoy its desired undeveloped open space. "The town that time passed by” may not have the time to obtain its desired use without paying fair compensation or rezoning as requested.
Affirmed. No costs, a public question being involved.
The quadrilateral parcel consists of 437.75 ft. frontage on Franklin Road; 227.55 ft. frontage on 14 Mile Road; 439.36 ft: deep on the east and approximately 425 ft. deep on the south. See map at end of opinion.
Unlike most zoning ordinances, the Village of Franklin ordinance contains no provision for multiple (apartment) dwelling units. See Franklin Village Square Corp v Village of Franklin, 20 Mich App 671; 174 NW2d 609 (1969).
"With regard to this petition, the Commission was in accord that the present zoning did, in fact, result in a hardship to the Petitioner in the use of the land. It was the opinion of the Commission that the topography and location with regard to busy thoroughfares and other nearby commercial activity that the residential zoning of said lots was unreasonable.” Minutes of Planning Commission Meeting March 23,1972.
Tocco sustained the trial court’s finding that a zoning ordinance which limited property for single residence purposes (as compared to plaintiffs request for mobile home park purposes) was unreasonable. In reaching this result, the Court was strongly influenced by the trial judge’s findings of fact which the Court found supported by credible evidence and to which the Court accorded respectful weight. | [
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] |
Per Curiam.
This appeal questions the admissibility of evidence seized from the defendant’s automobile by a police officer incident to a stop for a traffic violation. The defendant entered a plea of nolo contendere to the charged offense of carrying a concealed weapon in a motor vehicle, MCLA 750.227; MSA 28.424, was found guilty by the trial court and sentenced to serve five years probation. From his plea-based conviction, defendant appeals as of right.
The facts are largely undisputed. On February 24, 1973, at 1:30 a.m., the defendant was stopped by two Tuscola County sheriffs deputies because the defendant’s car had an inoperative headlight.
After the defendant had pulled over, he exited his car. One of the deputies then conducted a visual inspection of the interior of the automobile by shining a flashlight through its windows. During this inspection, the officer observed an unzipped black leather pistol case or gun holster sticking out from under the driver’s seat next to the floor console. When the officer reached inside the car to retrieve the holster, he found a paper sack containing a handgun. The gun case, too, contained a small firearm.
The defendant sought to suppress the evidence, arguing that the discovery, seizure and subsequent admission into evidence of the revolvers violated his right to be free from "unreasonable searches and seizures”. US Const, Am IV; Const 1963, art 1, § 11. The trial court upheld their admission solely on the ground that the police officer was lawfully positioned at the time of the visual inspection and therefore his seizure of the evidence was lawful under the plain-view doctrine.
Although the issue was neither raised nor briefed on appeal, defendant’s plea of nolo contendere waived the right to challenge on appeal the denial of the motion to suppress. MCLA 767.37; MSA 28.977, states that where a plea of nolo contendere is accepted "the court shall proceed as if he (defendant) had pleaded guilty”. A guilty plea waives any non-jurisdictional defects in prior stages of the proceedings. People v Pogue, 54 Mich App 74, 75-76; 220 NW2d 317 (1974). It also waives the right of an appeal from an order denying a motion to suppress the evidence. People v Wickham, 41 Mich App 358, 360; 200 NW2d 339 (1972). We therefore affirm the trial court’s appli cation of the plain-view rule and denial of the motion to suppress.
Without intending to establish precedent and solely because substantive issues were raised on appeal, we proceed to dispose of the issues submitted as briefed. The seizure of objects within the plain view of an officer, in a place where he had a right to be, is not proscribed by the Fourth Amendment. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). In the instant case, the officers clearly had a right to be near the defendant’s automobile, having lawfully stopped the defendant for a traffic violation. People v Kuntze, 371 Mich 419, 424; 124 NW2d 269 (1963).
The use of a flashlight does not automatically transform a daytime plain-view observation into a nocturnal Fourth Amendment search. People v Whalen, supra, 390 Mich 672, 679. Marshall v United States, 422 F2d 185, 189 (CA 5, 1970), said:
" * * * When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search.”
Warden, Maryland Penitentiary v Hayden, 387 US 294, 300-302; 87 S Ct 1642, 1646-1647; 18 L Ed 2d 782, 788-789 (1967), abolished the distinction between "mere evidence” and contraband or the instrumentalities of crime, and said that such evidence was properly seized and admitted into evidence. People v Major, 34 Mich App 405, 411-412; 191 NW2d 494 (1971), upheld the "plain view” seizure of a paper sack containing some clothes and a gym bag containing money, some stolen checks and a gun. The officer’s discovery of the unzipped gun case, while not contraband itself, provided him with probable cause to believe that defendant had committed the offense to which he subsequently pled nolo contendere. People v Williams # 1, 45 Mich App 623, 625; 207 NW2d 176 (1973) . The rule applies where, as here, the government’s initial intrusion was limited and justifiable and discovery of the evidence inadvertent. People v Harden, 54 Mich App 353, 359; 220 NW2d 785 (1974).
Affirmed. | [
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V. J. Brennan, P. J.
Plaintiffs brought this action for damages against defendants alleging age discrimination and basing their claim on MCLA 423.303a; MSA 17.458(3a). Defendants moved for accelerated and summary judgment pursuant to the provisions of GCR 1963, 116 and GCR 1963, 117, alleging, among other things, that MCLA 423.303a; MSA 17.458(3a), prior to its amendment in 1972, was unconstitutional under Const 1963, art 4, §24, insofar as it sought to prohibit age discrimination, because the statute contained provisions not stated in the title of the act. The trial court granted defendant’s motion for accelerated judgment and it is from this decision that plaintiffs now appeal.
Plaintiffs first argue that the trial judge erred in determining that MCLA 423.303a; MSA 17.458(3a), prior to its amendment by 1972 PA 267, was unconstitutional and eliminated the basis for their action which was predicated on alleged discriminatory acts which occurred in 1970. Plaintiffs and the Attorney General, who intervened in this action in the court below, argue that the object of this act was to prohibit discriminatory employment practices and that the 1965 amendment to the act, which prohibited age discrimination, was within the 1955 title to the act. Intervenor suggests that the reference to the different types of discrimination in the 1955 title to the act was but a statement of a part of the means by which the object of the act was to be carried out and, using Attorney General v Board of Supervisors of Sanilac County, 71 Mich 16; 38 NW 639 (1888), argues that the addition of age discrimination does not "obliterate or obscure the existing object”. Defendants and intervenor also argue that if age discrimination is held to be an "object” within the meaning of Const 1963, art 4, §24 then the entire act must have been unconstitutional from its inception as comprehending four different objects. These arguments, however, all ignore the cases which have recognized that the Legislature may, by making the title to an act unnecessarily restrictive, preclude from the coverage of an act matters which otherwise would properly be includible within its terms. Bankhead v Mayor of River Rouge, 387 Mich 610; 198 NW2d 414 (1972); Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). At the time the alleged discriminatory acts here occurred the title to the act provided:
"An act to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies based upon race, color, religion, national origin or ancestry; to create a state fair employment practices commission, defining its functions, powers and duties; and for other purposes.”
The body of the act, however, having been amended by 1965 PA 344 and 1966 PA 349, went beyond this and included within its prohibition discrimination based on age without an appropriate amendment to the title of the act. The trial judge, therefore, was correct in determining that the statute, as amended, was unconstitutional at the time the acts here complained of occurred, since the body of the act exceeded the scope expressed in its title. Maki v East Tawas, supra; People ex rel Stewart v Father Matthew Society, 41 Mich 67; 1 NW 931 (1879).
We have considered the remaining arguments advanced by plaintiffs and intervenor and find them to be without merit. There is nothing before us, either in the act itself or otherwise, which clearly indicates that the Legislature intended the 1972 amendment to have retroactive effect. See Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160; 150 NW2d 752 (1967). Absent this, a statute is to be given prospective effect only. Similarly, we are not persuaded by the reliance argument advanced on this appeal. Accordingly, we affirm the decision of the trial court.
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Per Curiam.
On March 7, 1979, defendant plead guilty to two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), one count of unarmed robbery, MCL 750.530; MSA 28.798, and one count of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. He received an agreed-upon life sentence for each of the criminal sexual conduct convictions and a 10-to-15-year sentence on each of the other two counts. Defendant appeals as of right, raising two issues.
First, defendant contends his plea-bargain agreement was illusory. Defendant was originally charged in a six-count information for offenses committed on December 1, 1978. Counts I and II alleged two acts of sexual penetration that occurred under circumstances involving an unspeci fied other felony. Counts III and IV involved the same two acts of penetration but alleged the alternative statutory ground that these acts were committed while being aided or abetted by one or more other persons and while using force or coercion. Counts V and VI alleged unarmed robbery and breaking and entering an unoccupied dwelling with intent to commit larceny.
The plea-bargain agreement incorporated five considerations, some of which related to other offenses with which defendant was also charged. Defendant agreed to plead guilty to Counts I, II, V and VI, with a further sentence agreement that he would receive life sentences on Counts I and II, and a 15-year maximum sentence for Counts V and VI. Counts III and IV were dropped pursuant to the agreement. The defendant also agreed to plead guilty to a reduced charge of second-degree murder in another case and to receive a life sentence for that offense. The prosecution also agreed not to file a supplemental information charging defendant as an habitual offender. Finally, it was agreed that the charges of unarmed robbery and kidnapping, which arose from a separate transaction, would also be dismissed.
Defendant correctly argues that, where a plea is offered pursuant to a bargain with the prosecutor, voluntariness depends upon the defendant’s knowledge of the actual value of the bargain. People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), People v Huizar, 89 Mich App 224; 280 NW2d 494 (1979). Where the benefits of the bargain are grossly exaggerated, the plea is not voluntary, and it should be vacated. Lawson, supra, 730.
Quoting Hammond v United States, 528 F2d 15, 19 (CA 4, 1975), the Court in Lawson, supra, 730, stated:
" '[I]n order to plead voluntarily, a defendant must know the direct consequences of his plea, including "the actual value of any commitments made to him.” Where, as here, counsel’s alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.’ ”
Where the facts in a case indicate a plea is voluntary, whether or not defendant received consideration in return, the plea will be upheld. People v Philip Smith, 407 Mich 906, 907 (1979), People v James, 90 Mich App 424; 282 NW2d 344 (1979). Clearly, where the value of a bargain is genuine, is valid, and is known to a defendant, that plea will be upheld. People v Peters, 95 Mich App 589; 291 NW2d 133 (1980). Thus, the fact that the dropped Counts III and IV arose from the same two sexual acts as Counts I and II and would not have supported separate criminal convictions would not by itself invalidate the plea.
Defendant also argues that the agreement not to file a supplemental information charging him as an habitual offender under MCL 769.11; MSA 28.1083 was meaningless when defendant received an agreed-upon life sentence. He argues that, under the plea agreement, he received two life sentences, so that, even had he been sentenced to a maximum punishment for being a third felony offender, he could not have received any greater punishment. While defendant may not have received a sentence benefit from this plea agreement on this point, it is widely recognized that sentence consequences are not the only benefits that may be received in plea bargaining. A conviction with no effect on a sentence may punish a defendant in several ways. Such a conviction may adversely impact parole considerations, among others. We reiterate, however, the fact that the defendant may have received reduced, little, or no consideration from this promise by the prosecutor would not by itself invalidate the plea.
Finally, it should be noted that "valuable” consideration flowed to the defendant from the agreement to dismiss the charges of unarmed robbery and kidnapping arising out of a separate transaction for the reason indicated above.
Most importantly, defendant argues that the prosecutor’s plea agreement, which included a promise to reduce a separate and unrelated first-degree murder charge to second-degree murder, was illusory when the offense fell under MCL 791.233; MSA 28.2303, as amended. First-degree murder carries a mandatory life sentence with no possibility of parole. MCL 750.316; MSA 28.548 and MCL 791.234; MSA 28.2304. Under the law in effect before December 10, 1978, defendant’s agreement to accept a life sentence for second-degree murder would have made him eligible for parole in 10 years. MCL 791.234; MSA 28.2304. The murder that was the subject of the plea agreement occurred after December 10, 1978, however, so it falls within the ambit of MCL 791.233; MSA 28.2303, as amended, which eliminated good time, special good time, and special parole for certain offenses. The Attorney General, in Opinion No. 5583, issued October 16, 1979, interpreted MCL 791.233; MSA 28.2303, as amended, as precluding paróle consideration for any prisoner with a life sentence. Defendant argues that the value of all of the above-described aspects of the plea bargain were thereby rendered void.
We note that defendant has filed a separate appeal from the murder conviction, challenging the plea-taking court’s noncompliance with GCR 1963, 785.7. In that appeal, however, defendant failed to raise the issue of the applicability of MCL 791.233; MSA 28.2303, as amended. In the instant case, the record reflects that the defendant was well advised and understood all of the consequences of this plea agreement. There is no allegation nor have we any evidentiary record establishing that he was misinformed as to the effect of any of the facets of the plea bargain. If defendant believes his plea bargain was illusory because of the sentence consequences of his plea to the murder charge, he should challenge that plea in the trial or appellate court. The trial court taking the murder plea may establish by evidentiary record that the defendant knew that he was faced with a possible, probable, or legally-mandated, nonparolable life sentence. The trial court may also find that the defendant was misinformed and set aside his plea. The trial court may find that something else was the intent of the parties to the plea agreement and specifically enforce the same. Finally, the trial court or an appellate court may determine that a second-degree murder life sentence is a parolable offense and give defendant the benefits of his plea bargain that he argues for.
Defendant’s second challenge to his conviction is that he has been impermissibly pláced in double jeopardy and that either the unarmed robbery or the breaking and entering conviction must be reversed because one was an essential element and, therefore, a necessarily lesser and included offense of first-degree criminal sexual conduct.
Under the criminal sexual conduct statute, an act of sexual penetration that occurs under circumstances involving the commission of any other felony is first-degree criminal sexual conduct. MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). The information charging defendant did not specify what felony was being relied upon to support this charge. The information did, however, charge defendant with two other felonies: breaking and entering and unarmed robbery. The factual basis elicited at the plea-taking proceeding supports a finding that the criminal sexual conduct occurred under circumstances involving the unarmed robbery. Defendant’s accomplice took a checkbook from the victim during the sequence of events that constituted criminal sexual conduct. The breaking and entering, however, occurred at a later time and in a different location, so, that offense cannot be regarded as having occurred in those circumstances. We must therefore decide if convictions for both first-degree criminal sexual conduct and the felony of unarmed robbery can be sustained.
We note that this case involves an application of the traditional double jeopardy restraint-on courts and prosecutors which prevents imposing double punishment and conviction for a single act. This case does not involve a chállenge to a clear legislative intent to doubly punish for a single criminal act. See People v Jankowski, 408 Mich 79, 85-86; 289 NW2d 674 (1980), Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), reh den 406 Mich 1127 (1979).
In this opinion, we disagree with the conclusions of this Court in People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980), and People v Ferrell, 99 Mich App 609; 299 NW2d 366 (1980), that the criminal sexual conduct statute expresses a clear intent to authorize multiple convictions.
The Supreme Court, in Wayne County Prosecutor, supra, pointed to language in the felony-firearm statute, MCL 750.227b; MSA 28.424(2), that manifested the Legislature’s clear intent to doubly punish. The felony-firearm statute described a separate felony offense and indicated that the mandatory two-year sentence is "in addition to” the sentence for the felony and is to be served "consecutively” to and "preceding” the sentence for the felony. The criminal sexual conduct statute, however, does not specify a separate felony, nor does its sentencing provision require consecutive punishment. The Court required a clear expression by the Legislature of an intent to authorize separate convictions.
The United States Supreme Court in Simpson v United States, 435 US 6, 15; 98 S Ct 909; 55 L Ed 2d 70 (1978), said:
"[T]his Court has steadfastly insisted that 'doubt will be resolved against turning a single transaction into multiple offenses.’ Bell v United States, 349 US 81, 84; [75 S Ct 620, 622; 99 L Ed 905] (1955); Ladner v United States, 358 US 169; [79 S Ct 209; 3 L Ed 2d 199] (1958).”
Justice Frankfurter, delivering the opinion of the Court in Bell, supra, 83-84, wrote:
"It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions. About only one aspect of the problem can one be dogmatic. When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.”
As there is no apparent legislative intent to provide for cumulative convictions for a single criminal act, it is necessary to determine whether, on the facts of the case at issue, the lesser offense is proved by the same evidence used to prove the greater, Jankowski, supra, 86, 91, People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976).
Applying this analysis to the criminal sexual conduct statute, we conclude that conviction for an underlying felony is impermissible where that felony is evidentially used as one element of first-degree criminal sexual conduct.
This Court has treated convictions for felony murder and its underlying felony as impermissible under the state constitution’s double jeopardy clause. People v Allen, 94 Mich App 539; 288 NW2d 451 (1980), People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), lv gtd 403 Mich 816 (1978), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd 402 Mich 938 (1978).
The prosecution argues that a separate felony— kidnapping — was shown by the testimony at the plea-taking proceeding. If this crime were estab-. lished, it would avoid double jeopardy. People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978).
We do not find, however, that the evidence at the plea-taking proceeding would support a finding that defendant had committed a kidnapping. In People v Adams, 389 Mich 222, 238; 205 NW2d 415 (1973), the Michigan Supreme Court analyzed the asportation requirement of kidnapping and set forth several factors for trial courts to consider in determining whether asportation has been established. Among those factors are:
"The movement element is not sufficient if it is 'merely incidental’ to the commission of another underlying lesser crime.
"If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.”
This Court has split on the question of whether the asportation required for kidnapping may be incidental to the commission of another offense when the punishment for that offense is coequal to that of kidnapping. In People v Hardesty, 67 Mich App 376, 378; 241 NW2d 214 (1976), one panel of this Court found the "merely incidental” analysis inapplicable to rape because it interpreted the Adams holding as being aimed at preventing a prosecutor from grossly distorting a lesser crime into a much more serious crime. See also People v Roger Harris, 80 Mich App 161; 262 NW2d 912 (1977). Several other panels of this Court have, however, interpreted Adams as preventing a prosecutor from converting a single crime into two offenses. People v Lynn, 91 Mich App 117; 283 NW2d 664 (1979), lv gtd 407 Mich 902 (1979), People v Barker, 90 Mich App 151; 282 NW2d 266 (1979), lv gtd 407 Mich 902 (1979), People v White, 89 Mich App 726; 282 NW2d 200 (1979), People v Worden, 71 Mich App 507; 248 NW2d 597 (1976).
We believe the reasoning expressed in Worden, supra, is persuasive. We note that the Supreme Court in Adams quoted Judge, now Justice, Levin’s opinion for the majority in the Court of Appeals case of People v Otis Adams, 34 Mich App 546, 560; 192 NW2d 19 (1971), which said:
" 'It is obvious that virtually any assault, any battery, any rape, or any robbery involves some "intentional confinement” of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense. A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.’ ” 389 Mich 222, 232-233.
Analyzing the facts presented at the plea-taking proceeding, we conclude that the movement involved was merely incidental to the commission of the rape. The asportation necessary to a finding that defendant had kidnapped his victim was not established.
We conclude that defendant’s convictions for first-degree criminal sexual conduct and for unarmed robbery are impermissible. We therefore vacate the unarmed robbery conviction and affirm defendant’s convictions of first-degree criminal sexual conduct and breaking and entering.
Beasley, P.J., concurs in the result only.
The acts that gave rise to the instant case occurred on December 1, 1978, and hence are not covered by MCL 791.233; MSA 28.2303. State Appellate Defender v Director of Elections, 405 Mich 815 (1979).
Amendment V of the United States Constitution, which extends to the states through the Fourteenth Amendment, Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), states:
"[Nor] shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *
Article 1, §15, of the Michigan Constitution of 1963 similarly states:
"No person shall be subject for the same offense to be twice put in jeopardy.” | [
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Per Curiam.
Defendant was bound over for trial on a charge of breaking and entering an unoccupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. Pursuant to an agreement reached with the prosecution, defendant pled guilty to attempting to commit the charged offense. MCL 750.92; MSA 28.287. His plea was accepted, and he was sentenced, on July 25, 1977, to three years probation and ordered to pay a $100 fine and $200 in costs.
On February 26, 1979, defendant was brought before another judge of the same circuit court for a show cause hearing on a charge of nonsupport. Preliminary proceedings were being held in the judge’s chambers at which defendant acknowledged being behind in his obligations. Defendant also informed those present that, after many months of looking, he that day had secured employment and was to start work the next day. The judge indicated that a formal hearing would be held in open court on the show cause order and that defendant might have to go to jail. Defendant apparently became frustrated and upset at the hint of jail, especially since he had just found a job, and began to shout obscenities as he rose and started to leave the judge’s chambers. Help was summoned, and a police officer, working through the office of the Friend of the Court, arrived to find the defendant in the hallway still shouting at the judge. The officer told defendant that he could not leave, but, at the sight of the police officer, defendant ran to the end of the hallway where he turned and struck a karate-type stance. The officer attempted to subdue the defendant and claimed he was struck in the forehead while doing so. Another Friend of the Court employee joined in the struggle and apparently was bitten on the arm by defendant. Defendant did not deny resisting but did deny hitting the officer and claimed that he bit the other Friend of the Court employee because he was being strangled.
As a result of these events, defendant was found in contempt of court and was given a six month suspended sentence. In addition, a notice of probation violation was filed against the defendant, specifically charging that, because of the above-described events, he was in violation of the eighth condition of his probation, which provided:
"That he shall not engage in any anti-social conduct which shall furnish this Court good cause to believe that this probationary grant should be revoked in the public interest.”
After a contested hearing, defendant was found to be in violation of the conditions of his probation and was sentenced to a prison term of from 40 to 60 months. Defendant now appeals by right from the order of the trial court revoking his probation.
Defendant’s principal argument on appeal is that the "antisocial conduct” condition of probation gives no notice of what is actually proscribed and, as a result, is unconstitutionally vague, in violation of due process. The term in question is often made an express condition of probation, most likely because it is a statutory ground for revocation of probation. Surprisingly, however, it has not attracted much attention in our appellate courts. It was most extensively treated in People v Peterson, 62 Mich App 258, 263-265; 233 NW2d 250; 79 ALR3d 1072 (1975), lv den 397 Mich 811 (1976), where the Court noted with concern the flexibility of the term and expressed apprehension as to whether a probationer who was told not to engage in "antisocial conduct” would be sufficiently apprised of the conditions of his probation. After examining the extent to which such conditions are imposed in other jurisdictions, however, the Court refused to find that the condition itself violated due process. By way of a caveat, the Court did note that the notice of probation violation could not simply charge that a defendant had engaged in antisocial conduct, but, so long as the specifics were set out in such a manner as to be understood and evaluated, due process was satisfied. See People v Acosta, 65 Mich App 640, 641; 237 NW2d 601 (1975), People v Elbert, 21 Mich App 677, 683 fn 9; 176 NW2d 467 (1970).
In general, due process requires that a person know in advance what questionable behavior is prohibited. Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), diLeo v Greenfield, 541 F2d 949, 953 (CA 2, 1976), People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976). To the extent that Peterson suggests prior notice is not required, we disagree. Although a probationer is not entitled to the full realm of procedural due process guarantees afforded a defendant in a criminal trial, Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), People v Rial, 399 Mich 431; 249 NW2d 114 (1976), it has long been held in Michigan that a probationer is entitled to prior notice of the conditions of his probation and that the conditions must clearly inform the probationer of just what is expected of him. People v Sutton, 322 Mich 104; 33 NW2d 681 (1948), People v Pippin, 316 Mich 191, 196; 25 NW2d 164 (1946). The due process notion of prior notice has been applied in other settings where the rights attendant to a criminal trial are not in full effect. See Parker v Levy, 417 US 733; 94 S Ct 2547; 41 L Ed 2d 439 (1974) (military), diLeo, supra (teacher termination).
Judged by these standards, we believe the condition of probation which prohibited the defendant from engaging in "antisocial conduct” to be, without more, impermissibly vague. As the Peterson Court remarked: "What is 'antisocial’ in an exclusive club in a sedate suburb and what are perfectly acceptable mores in a lusty metropolitan gathering place can be as far apart as the poles”. Peterson, supra, 264. While it is undoubtedly true that there are forms of conduct which all segments of society would consider "antisocial”, it is also true that there would be vast disagreement as to whether a great many other forms of conduct were "antisocial”. The terms of the condition of probation itself are insufficient to apprise the probationer of what activity is actually forbidden.
This does not necessarily mean that defendant is entitled to have his probation revocation vacated. Unless the vagueness challenge involves First-Amendment freedoms the defendant’s conduct must be examined in light of the facts of the case at hand. United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963), Howell, supra, 21. Although a condition may be too vague to disclose every instance in which it might properly be applied, it may still operate to prohibit the specific conduct with which a defendant is charged, if that conduct is clearly and fairly within the terms of the condition. See People v Masten, 96 Mich App 127, 131; 292 NW2d 171 (1980). In addition, sources other than the express language of the condition may supply the prior notice which due process demands. For example, it has been held that judicial construction of an otherwise vague statute may suffice to give notice of the conduct to which the statute applies. Rose v Locke, 423 US 48; 96 S Ct 243; 46 L Ed 2d 185 (1975), Wainwright v Stone, 414 US 21; 94 S Ct 190; 38 L Ed 2d 179 (1973), Howell, supra, 21. See, also, Parker, supra.
In the instant case, defendant’s probation officer testified at the revocation hearing that on the day that defendant was placed on probation he discussed the conditions of the probation with defendant. He further testified regarding the condition prohibiting antisocial conduct that he informed the defendant that fighting was an example of such conduct. We believe that this was sufficient, in a probationary setting, to accord the defendant prior notice that he was not to engage in fighting. Indeed, the direct, face-to-face notice that the defendant in the instant case received from the very person who would charge any violations was superior to that provided by prior judicial construction, as a defendant may have no actual notice of such a construction. Accordingly, we hold that as applied to the facts and circumstances of the instant case the condition prohibiting antisocial conduct was not impermissibly vague.
Defendant also argues that he is entitled to resentencing because an updated presentence report was not used. The record reflects that the trial court was aware of a presentence report that had been prepared at the time of the original sentencing, over three years before the sentencing now challenged. The prosecution concedes this issue, and rightly so, as the considerations underlying the requirement of an updated presentence report on a resentencing as announced in People v Tripplett, 407 Mich 510; 287 NW2d 165 (1980), apply equally to sentencing after revocation of probation. See, also, People v Smith, 66 Mich App 639, 641; 239 NW2d 431 (1976). Defendant is entitled to resentencing at which the trial court is to consider a reasonably updated presentence report.
Affirmed and remanded for resentencing. | [
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Per Curiam.
Following a jury trial in Detroit Recorder’s Court, defendant was found guilty of armed robbery in contravention of MCL 750.529; MSA 28.797 and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). Defendant was sentenced to 10 to 20 years in prison for the armed robbery. Additionally, he received the mandatory two-year consecutive sentence for the felony-firearm conviction.
This case was originally disposed of via a motion to affirm granted by this Court on November 9, 1979. On May 19, 1980, the Supreme Court reversed and remanded to this Court for plenary consideration.
At approximately 10:30 a.m., on March 31, 1978, the Shifrin-Willens store at 2028 East Eight Mile Road in Detroit was robbed. On April 18, 1978, Sergeant Michael Doud of the Detroit Police Department received a call at the first precinct from an FBI undercover agent who stated that defendant Edal Casey was the man who perpetrated the robbery. The FBI agent gave no details and stated that his information came from "a source”.
Following the call, Sergeant Doud had Officer Daniel Budz investigate defendant’s previous arrest record to determine if Casey’s physical appearance matched the description given by witnesses to the robbery. The officers determined that defendant’s description did match that of the perpetrator of the offense.
Based on the phone call and the physical characteristics, Officer Budz called the 14th precinct, where defendant was being temporarily detained on a probation violation, and requested a "hold” on Casey (warrantless arrest) for investigation of armed robbery. During a Walker hearing, Officer Doud testified that he had defendant held; but for this arrest, defendant would have been free to go.
On April 19, 1978, defendant was told his Miranda rights at 8:30 a.m. At this time, defendant was not interrogated and said nothing. Sergeant Doud explained that he wanted to conduct lineups prior to interrogation. Two lineups were conducted at 10:55 a.m. and 11 a.m. respectively. At each lineup, one witness tentatively identified defendant as the perpetrator of the Shifrin-Willens robbery, but neither was positive.
Following these lineups, a request for a "reverse writ” was made, and a judge of the Recorder’s Court issued the writ. Thereafter, defendant was put in another lineup at 1 p.m. A witness to the Shifrin-Willens robbery positively identified defendant at this time. At 1:40 p.m. defendant confessed to the crime. A second confession was obtained at 4 p.m.
Defendant contends that his arrest on the robbery charge was without probable cause, and thus, illegal. He further argues that his confessions are inadmissible as the tainted fruit of the unconstitutional arrest.
Before a police officer may effect an arrest without a warrant, he must have probable cause to believe that the suspect committed a felony. MCL 764.15(c); MSA 28.874(c). In People v Walker, 401 Mich 572; 259 NW2d 1 (1977), the Michigan Supreme Court formulated a test based on the United States Supreme Court decision in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), for determining when probable cause to arrest may be considered established by an informant’s tip. First, the informant must specify some of the underlying circumstances which led to his conclusion that the suspect committed the crime. Second, the officer must be able to articulate some of the underlying circumstances which led him to conclude the informant was reliable or credible. If this information, along with any other the police might have, would create an honest belief that probable cause existed in the mind of a reasonable and prudent person, a warrantless arrest is valid. People v Wirth, 87 Mich App 41, 44; 273 NW2d 104 (1978), and authorities cited therein. In the instant case, neither of the conditions precedent to establishing the validity of a warrantless arrest were present.
Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), is controlling. In Spinelli, the Court held that insufficient underlying circumstances were divulged by the informant to justify the issuance of a warrant. The warrant affidavit provided that the FBI "has been informed by a confidential informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones”. Id., 414. The Supreme Court held:
"The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v United States, 381 US 214 [85 S Ct 1365; 14 L Ed 2d 345] (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Id, 416.
See, also, People v Mosley (After Remand), 400 Mich 181; 254 NW2d 29 (1977), cert den 434 US 861; 98 S Ct 189; 54 L Ed 2d 135 (1977).
The same problem is present in the case sub judice. The undercover FBI agent who informed Sergeant Doud that defendant was the perpetrator of the robbery provided no facts which led him to this conclusion, except that he had been so informed by his secret source. None of the source’s reasons for concluding that defendant committed the crime were divulged.
The prosecution contends, however, that the tip was corroborated by other evidence, providing a reasonable basis for believing defendant had committed the crime. This corroboration is said to be the fact that defendant’s arrest record matched the "general description” of the culprit given by the witnesses who observed the robbery. An examination of the record, however, reveals nothing peculiarly distinctive about the defendant’s appearance. When asked, "What about the description caught your eye?”, Officer Budz answered, "the height mostly”. When asked what the height was, Budz responded, "I can’t remember, six-one, six-three, something like that”. When asked if the height and the tip were the only reasons why he arrested defendant, Officer Budz indicated in the negative. Another reason was "instinct” — an instinct which he admitted was unsupported "by any hard evidence or facts” aside from those mentioned.
A later description Officer Budz gave of the Shifrin-Willens robber based on witnesses’ observations indicated that the culprit was a black male, in his twenties, medium build, medium complexion, no distinguishing marks, and no facial hair. This description would include literally thousands of persons. Moreover, defendant was not clean shaven. The description simply did not provide substantial corroborative evidence of the tip. Mosley, supra._
The reliability of the source of information was also not adequately established. In Spinelli, supra, the Court held that where the police affiant seeking a warrant merely swears that his confidant is "reliable”, this is insufficient to establish his credibility. See, also, People v Atkins, 96 Mich App 672, 679; 293 NW2d 671 (1980), lv den 409 Mich 876 (1980). In the instant case, the Detroit police officers merely assumed that the FBI undercover agent’s informant was reliable. No testimony was even offered that the agent swore his source was reliable, let alone testimony that the source had provided useful information in the past.
Sergeant Doud, who took the call from the undercover FBI agent, forthrightly admitted that he had no reason to believe the agent’s source was credible. He further stated that he was primarily relying on the credibility of the FBI agent, himself. The agent’s credibility, however, was of secondary importance. Information from an unreliable source does not become better because it has been filtered through a credible individual.
The fact is that defendant was illegally detained. He was held for "investigation of armed robbery”. An investigatory arrest is an illegal arrest. It is an admission that probable cause to arrest does not exist. People v Martin, 94 Mich App 649, 653; 290 NW2d 48 (1980), Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975). In the instant case, Sergeant Doud conceded that at the time he had defendant detained, insufficient evidence existed to obtain an arrest warrant for armed robbery.
Before leaving this issue, we also note that the police officers in no way improved their legal position by obtaining a "reverse writ” from the Detroit Recorder’s Court. A prisoner’s right to habeas corpus is granted by Const 1963, art 1, § 12. Habeas corpus is a proceeding the purpose of which is to cause the release of persons illegally confined. The Constitution provides no authority for a "reverse writ” — the purpose of which is apparently to get judicial approval of an illegal confinement, precisely what Const 1963, art 1, § 12 sought to protect against. See, People v Antonio Johnson, 85 Mich App 247; 271 NW2d 177 (1978) (N. J. Kaufman, J., concurring).
Having concluded that defendant’s arrest was illegal, we still must ascertain if either or both of the confessions must be suppressed. In Martin, supra, 653-654, we said:
"Finally, defendant argues that his confession, as the fruit of an illegal arrest, should have been suppressed. A confession that is solely the product of an illegal arrest is inadmissible on constitutional grounds. Wong Sun v United States, 371 US 471, 491; 83 S Ct 407; 9 L Ed 2d 441 (1963). For the confession to be admitted, it must be determined that there was no causal connection between the tainted arrest and the confession. Brown, supra at 602, People v Mosley (On Remand), 72 Mich App 289, 293; 249 NW2d 393 (1976). Proof of the giving of Miranda warnings merely satisfies threshold Fourth Amendment requirements. Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979). One must also look at the time lapse between the defective arrest and the confession, the flagrancy of official misconduct and any intervening circumstances. Dunaway, supra, Brown, supra, 603.”
In the instant matter, the record clearly shows a causal connection between the tainted arrest and the confession. Only after defendant was positively identified in the 1 p.m. lineup, which could not have occurred but for the illegal arrest, did he confess. No intervening circumstances existed which would make either the 1:40 p.m. or 4 p.m. confessions admissible. Defendant was allowed to see his mother and girl friend, but only after both confessions were made. An examination of the facts in Mosley (After Remand), supra, appearing in People v Mosley, 51 Mich App 105; 214 NW2d 564 (1974), convinces us that a lengthy 1 ime span between arrest and confession is not, in and of itself, always sufficient to dissipate the taint of the initial illegality. As in Mosley (After Remand), we find that the prosecution did not sustain its burden of proof on this point. We also conclude that the official misconduct here was "flagrant” in the sense that it was extremely conspicuous. If one carefully examines the proceedings in this matter, the illegality of the arrest is obvious. By so finding, however, we do not wish to imply that we believe the officers in question intentionally acted improperly.
Defendant also asserts that the trial court erred in barring the admission of documents which recorded out-of-court identifications of defendant as the felon by two witnesses. The purpose of admitting the documents was to show inconsistencies with the in-court testimony of the witnesses. The trial court concluded that the documents constituted impermissible hearsay. We agree with defendant. MRE 801(d)(1) specifically excludes from the definition of hearsay statements concerning identification where the declarant testifies at trial and is subject to cross-examination. The error was harmless in this case, however. Nonetheless, if defen dant is retried and desires to admit the documents in question, this must be allowed.
Defendant’s final claim that convictions for both felony-firearm and armed robbery violate constitutional protections against double jeopardy has been decided adversely to his position. Wayne Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dismissed sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979).
Reversed and remanded.
408 Mich 935.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
By the "reverse writ” procedure, the local police seek judicial approval for extended detention of a suspect without the issuance of a warrant.
We recognize that defendant could have grown a moustache after the crime was committed. However, in view of the fact that the description the police had of the culprit included such a large class of people as potential suspects, we would expect the police to be considerably more certain that the perpetrator of the crime and defendant were one and the same before effecting an arrest. Where the description of the suspect is as general as the one here, even minor deviations from the suspect’s actual appearance and the description given by witnesses should give the police reason to pause before arresting.
This is not the kind of intervening circumstance which tends to dissipate the taint of an illegal arrest. In Mosley, supra, the Court reversed despite the fact that defendant did not confess until confronted with the statement of an accomplice implicating him in the crime. | [
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Per Curiam.
Defendant was convicted by a jury of larceny in a building. MCL 750.360; MSA 28.592. Thereafter sentenced to a prison term of two to four years defendant appeals as of right.
Defendant first claims that the trial court erred in allowing the prosecutor to impeach defendant by asking him if he had used aliases. On cross-examination defendant was asked if he ever used the name John Edward Kinchen. Defendant answered yes. Defendant was asked if he had used the name Joseph I. Mizia. Defendant answered yes. Defendant denied ever using the name Robert Kinch.
In People v Dietrich, 87 Mich App 116; 274 NW2d 472 (1978), rev’d in part 412 Mich 904 (1982), defendant was asked if he had ever used an alias. The Court noted that impeachment by aliases had been allowed in numerous other jurisdictions. The Court stated:
"We think that the witness’s use of an alias is highly probative of the witness’s credibility. In this case, the introduction into evidence of defendant’s use of aliases was not highly inflammatory or prejudicial to the defen dant, compare People v Fleming, 166 Cal 357; 136 P 291 (1913). The trial judge did not err in allowing this testimony into evidence for impeachment purposes.” Dietrich, supra, 139.
In People v Pace, 98 Mich App 714; 296 NW2d 345 (1980), on cross-examination, the defendant’s brother was asked if he had ever used an alias. The Court cited Dietrich, supra, and stated:
"Where, as here, the inquiries are not emphasized in an attempt to discredit a witness through innuendo, especially when the witness was the defendant’s brother, they do not constitute error.” Pace, supra, 718. Cf. People v Cuellar, 107 Mich App 491; 310 NW2d 12 (1981).
Impeachment by questions concerning the use of an alias was disapproved of in People v Albert Thompson, 101 Mich App 609; 300 NW2d 645 (1980). A majority therein stated that such impeachment could be highly prejudicial. The Court noted that aliases are often used for innocent purposes and, therefore, not particularly probative of credibility. Hence, impeachment by asking about aliases could permit "a jury to speculate that a defendant may have been involved in some nefarious activity, unspecified as to time, nature and circumstances”. Albert Thompson, supra, 613.
Yet, in Albert Thompson, the Court found the error to be harmless. The Court noted that the prosecutor’s questions were few and not inflammatory. The answers to the prosecutor’s questions were not mentioned in closing argument.
"Most importantly, two eyewitnesses testified that they saw defendant put the items, 4 musk oil gift sets and 18 musk oil colognes, into a bag and leave the store without paying for them. It was uncontroverted that defendant fled after being approached by store security guards. The evidence of defendant’s guilt was overwhelming.” Albert Thompson, supra, 614.
In the case at bar, as in Dietrich, supra, and Pace, supra, the prosecutor’s questions were not only proper, but highly probative. Defendant’s claim is, therefore, without merit. Even under Albert Thompson, supra, any error in the prosecutor’s questions was harmless. As in Albert Thompson, the questions concerning defendant’s aliases were few and not inflammatory. An eyewitness testified that she watched defendant put two suits in a bag he was carrying. The prosecutor did not mention defendant’s assumed names in his closing arguments. If error exists, it is harmless.
Defendant next claims that the trial court erred by considering a disputed portion of a presentence report when imposing sentence. The presentence report is regarded as "an effective method of supplying information essential to an informed sentencing decision”. People v Lee, 391 Mich 618, 635; 218 NW2d 655 (1974). The ends of justice require that the sentence be based on accurate information. People v Malkowski, 385 Mich 244; 188 NW2d 559 (1971). The sentencing judge must resolve challenges to the accuracy of a presentence report. People v Lee, supra; People v Pulley, 411 Mich 523; 309 NW2d 170 (1981). Although not required to do so, the sentencing judge may hold an evidentiary hearing or decide that the disputed material is not relevant to his decision. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), rev’d on other grounds 400 Mich 1; 252 NW2d 779 (1977). At sentencing, the trial court may accept the unsworn statements of the defendant. McIntosh, supra.
In the case at bar, defendant’s attorney stated:
"[Mr. Schaefer]: I have had an opportunity to review it and go over it with Mr. Bowens. The only thing we would like to point out to this court is that on page 5 of that report there is a reference to his reporting record during 1973, that his reporting record was poor. The defendant denies that. He said that his record was not poor.
"[The Court]: Very well.”
The record herein reveals that the trial judge was aware of the dispute and gave reasons for the sentence imposed. The disputed portion of the report was not mentioned. Nevertheless, defendant argues that because the sentencing judge did not expressly state on the record whether the disputed portion of the report was a factor in the sentence imposed we must remand for resentencing.
While there is some support for defendant’s argument, in People v Krist, 107 Mich App 701; 309 NW2d 708 (1981), where defendant objected to portions of a presentence report as not being entirely accurate and where the sentencing judge did not expressly state that he would except the objected-to portion of the report, this Court refused to remand for resentencing saying:
"To hold otherwise would require that any trivial clarification or correction made on a presentence report would mandate elaborate verbal descriptions of obvious mental processes even though the record indicates unanimous implied consent to the correction. This elevates form over substance and creates an unnecessary burden to an already overformalized record-making procedure. To express the proposition is enough to expose its absurdity.” Krist, supra, 706.
In the case at bar, the sentencing judge indicated the information that he considered on the record. Nothing suggests that the court considered the report’s statement that defendant failed to regularly report to the probation department eight years prior. Under these circumstances, we conclude that remand for resentencing is unnecessary.
Affirmed. | [
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R. B. Burns, J.
Defendant appeals from a Wayne County Circuit Court decision granting plaintiffs’ motion for summary judgment of foreclosure on a land contract. The land contract was executed on May 18, 1970, by plaintiffs as vendors and Mary Ann Górecki as the vendee. The following day the contract was assigned by Górecki to defendant, with the approval of the Lenarts (defendant maintains that she was an undisclosed principal and Gorecki was her agent).
On February 22, 1983, plaintiffs filed a complaint to foreclose on the land contract based on defendant’s failure to make the required monthly payments during the months of November 1982, December 1982, January 1983, and February 1983. Pursuant to paragraph 3(g) of the land contract, plaintiffs accelerated the contract, making the balance due $14,463.22.
After defendant filed an answer, affirmative defenses and counterclaims, plaintiffs moved for summary judgment of foreclosure under GCR 1963, 117.2(3), now MCR 2.116(C)(10). Defendant responded that summary judgment was improper since genuine issues of material fact existed as to: (1) whether she was in arrears at the time the complaint was filed, since the provision in the land contract allowing for an increase in the interest rate upon the default of the purchaser was usurious, and (2) whether plaintiffs had breached the contract in 1979 when they refused to accept direct payments from the Department of Social Services (DSS) which had been tendered on defendant’s behalf.
The trial court ruled in favor of plaintiffs on the alternate grounds that: (1) the usury defense was not available to defendant since she was at best an undisclosed principal and not a party to the original contract; (2) the 1977 amendment to the land contract cured any defect under the usury statute; (3) the statutory amendment which prohibits an increase in the initially effective interest rate is not applicable to the instant case, even if the usury defense is otherwise applicable; and (4) defendant’s failure to raise the usury defense until 13 years after the execution of the agreement, despite numerous opportunities to do so in prior actions, estops her from raising the defense in this proceeding.
Our first consideration is plaintiffs’ claim that the issues involved in this case have been rendered moot by the judicial sale of the subject property and its subsequent purchase by third parties. We believe that the rule that an issue is not moot if the action complained of will continue to adversely affect the party in some collateral way is applicable to this case. Swinehart v Secretary of State, 27 Mich App 318; 183 NW2d 397 (1970). Although the property in the instant case has been sold via a judicial sale, defendant is still faced with a deficiency judgment. Furthermore, the foreclosure judgment may adversely affect defendant’s credit rating. Therefore, we conclude that this case is not moot.
We turn our attention first to the question of whether there was a material issue of fact. Summary judgment under GCR 1963, 117.2(3) should only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Spencer v Ford Motor Co, 141 Mich App 356; 367 NW2d 393 (1985); Pauley v Hall, 124 Mich App 255; 335 NW2d 197 (1983). In ruling on such a motion, the trial court may consider the pleadings, affidavits and depositions of the opposing party; however, such review should not result in the substitution of a trial by affidavit and deposition for a trial by jury. The trial court should not make findings of fact. Reeder v Hammond, 125 Mich App 223; 336 NW2d 3 (1983). Courts are typically liberal in determining that a factual issue exists. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). In making its determination, a court should give the benefit of any reasonable doubt to the nonmoving party and should be satisfied that the nonmovant’s claim cannot be supported at trial because there exists some deficiency which cannot be overcome. Id.
In the instant case, defendant contends that she was not in arrears at the time the land contract was accelerated and contests the plaintiffs’ computation of the monies owed under the contract. It appears to us that there are at least two disputed issues of material fact which render summary judgment inappropriate.
Firstly, in 1979 the DSS tendered payment to plaintiffs to cover an arrearage that had accrued at that time. Plaintiffs refused to accept the payment, indicating that they would not accept payments from the DSS, but only from defendant herself. A fuller development of facts may determine that had plaintiffs accepted this tendered payment, along with the payments made by defendant since 1979, defendant would not have been in default at the time of the foreclosure action. Accordingly, the question of the propriety of plain tiffs’ rejection of the tendered payments and defendant’s default status in view of that rejection is in material dispute.
Secondly, defendant raises a usury defense. Assuming that a usury defense is available, there exists a material issue of fact concerning whether defendant was an assignee or an undisclosed principal. If defendant is an assignee, she may not avail herself of a usury defense since such a defense is personal and not available to asignees. See Schmidt v Gaukler, 156 Mich 243; 120 NW 746 (1909); Barney v Tontine Surety Co, 131 Mich 192; 91 NW 140 (1902). However, under Michigan law, an undisclosed principal may sue on his own behalf for the breach of a contract entered into on his behalf by his agent or for the breach of a legal duty related to that contract and may claim the benefits of such contract. Socomet, Inc v Detroit, 33 Mich App 626; 190 NW2d 551 (1971). Since an undisclosed principal is treated as a party to the contract with respect to the obligations and benefits under the contract, it follows that the principal would be entitled to raise the defense of usury absent a statute to the contrary.
For these reasons, we conclude that there existed disputed issues of material fact. Accordingly, the trial court erred in granting summary judgment.
Although our conclusion on the summary judgment issue requires reversal, we nevertheless discuss the availability of the usury defense since the question will undoubtedly resurface below. The land contract in this case provided for interest at the rate of 7.5% while defendant was not in default and at 8.0% whenever defendant was in default. Defendant argues that this interest escala tion provision is usurious under MCL 438.31c; MSA 19.15(1c).
The analysis of the usury issue is muddied by the fact that, following the execution of the land contract in this case, the applicable usury statute was amended several times, with varying degrees of retroactivity. The land contract in this case was executed on May 18, 1970. At that time, MCL 438.31c(2); MSA 19.15(1c)(2) provided in pertinent part as follows:
"For the period ending on December 31, 1970 it shall be lawful for the parties to a conventional home loan mortgage or land contract to agree in writing for the payment of any rate of interest. * * * A provision in any note, mortgage, contract or other evidence of indebtedness, heretofore or hereafter made, that the rate of interest initially effective may be increased for any reason is unenforceable in any court in this state.” See 1969 PA 305 (immediate effect, approved August 12, 1969).
This section was thereafter amended by 1970 PA 75 (immediate effect, approved July 16, 1970). Still not satisfied by the statute, the Legislature again amended the section by 1971 PA 94 (immediate effect, approved August 16, 1971). After that amendment, MCL 438.31c; MSA 19.15(1c) provided in pertinent part as follows:
"(2) For the period ending on December 31, 1973 it is lawful for the parties to any note, bond or other evidence of indebtedness, executed after August 11, 1969, the bona fide primary security for which is a first lien against real property, or the parties to any land contract, to agree in writing for the payment of any rate of interest, but no such note, mortgage, contract or other evidence of indebtedness shall provide that the rate of interest initially effective may be increased for any reason whatsoever. * * *
"(5) The provisions of subsection 2 shall apply only to loans made by lenders approved as a mortgagee under the national housing act or regulated by the state, or by a federal agency, who are authorized by state or federal law to make such loans and mortgage loans and land contracts between natural persons.”
For the reasons to be explained below, we believe that this version, created by 1971 PA 94, is the one to be applied to the case at bar.
In order to further refine this statute, the Legislature amended it a second time in 1971. 1971 PA 228 (immediate effect, approved January 3, 1972). This act did not affect subsection 2, but did alter subsection 5 and added a subsection 6. The latter two subsections then read as follows:
"(5) The provisions of subsection (2) shall apply only to loans made by lenders approved as a mortgagee under the national housing act or regulated by the state, or by a federal agency, who are authorized by state or federal law to make such loans.
"(6) Notwithstanding the provisions of subsection (5), leaders or vendors not qualified to make loans under subsection (5) may make, or may have made mortgage loans and land contracts specified in subsection (2) on or after August 16, 1971, which mortgage loans and land contracts provide for a rate of interest not to exceed 11% per annum * * *.”
The effect of 1971 PA 228 was to remove “land contracts between natural persons” from the purview of subsection 5, and thus from the nonescalation clause of subsection 2, and to provide an interest rate limit for land contracts involving "unqualified lenders”. The question remains, however: Which land contracts fall within 1971 PA 228? Since subsection 6 provides an interest limit for land contracts made "on or after August 16, 1971”, we conclude that 1971 PA 228 only affects those land contracts executed on or after that date. See Campbell v Gawart, 46 Mich App 529, 533; 208 NW2d 607 (1973).
In reaching our decision, we distinguish the case at bar from the case relied upon by plaintiffs, Patel v Holland, 114 Mich App 340; 319 NW2d 553 (1982). The majority in Patel held that the nonescalation of interest provision of subsection 2 of the statute does not apply to land contracts between natural persons. However, the land contract involved in Patel was executed in 1974, substantially after August 16, 1971. Under the view we take in the case at bar, Patel is limited to land contracts executed on or after August 16, 1971. Accordingly, Patel is not applicable to the instant case.
To recapitulate, we hold today that land contracts executed after August 11, 1969, but prior to August 16, 1971, are subject to the provisions of MCL 438.31c; MSA 19.15(lc) as amended by 1971 PA 94. Land contracts executed on or after August 16, 1971, fall within the provisions of 1971 PA 228.
Since the land contract in the case at bar was executed on May 18, 1970, it is subject to the rule against escalation of interest clauses. Accordingly, the provision of the land contract calling for an escalation of interest to 8% while the contract is in default is unenforceable. However, this leaves the question of the remedy available to defendant. In Osinski v Yowell, 135 Mich App 279, 287-288; 354 NW2d 318 (1984), this Court stated:
"Where a lender/seller seeks to enforce a usurious contract, the borrower/buyer can avail himself of the statute and have all of the interest he previously paid applied against any outstanding principal debt. Waldorf v Zinberg, 106 Mich App 159, 164; 307 NW2d 749 (1981), citing Michigan Mobile Homeowners Ass’n v Bank of the Commonwealth, 56 Mich App 206, 212-213, 216; 223 NW2d 725 (1974). See also McKenna v Wilson, 280 Mich 227, 231-232; 273 NW 457 (1937). If the borrower/buyer has voluntarily satisfied the entire obligation, or at least an amount over the principal amount, the lender/seller is entitled to retain the usurious interest paid. Waldorf, supra, p 165; Michigan Mobile, supra, p 213. The rationale is that since the borrower/buyer voluntarily paid the excess amount, he has waived his usury defense as to that amount. Michigan Mobile, supra, pp 213-214.” See also Allan v M & S Mortgage Co, 138 Mich App 28; 359 NW2d 238 (1984).
Since the 8% interest clause was improper, plaintiffs were entitled only to 7.5% interest, even when defendant was in default. To the extent that interest was collected under the 8% clause, the amount of interest collected under the 8% clause which is in excess of that which would have been collected under the 7.5% clause should have been applied to principal. On remand, the trial court shall make the appropriate calculations. We leave it to the trial court to make the initial determination of whether this affects" defendant’s default status.
Before concluding, we wish to address two remaining theories relied upon by the trial court in the usury analysis. The trial court ruled that a 1977 amendment to the land contract cured any usury defect. We disagree. The amendment provided for the escrowing of taxes and insurance. In all other respects, the land contract was unchanged. This was not a sufficient reexecution of the land contract for it to be considered a post-August 16, 1971, land contract. Thus, our usury analysis remains unchanged.
The trial court also ruled that defendant was estopped from raising the usury defense by her failure to do so in prior actions. We disagree. There is no indication that plaintiffs relied to their detriment on defendant’s failure to raise the usury defense in the prior proceedings. Accordingly, we find the doctrine of estoppel inapplicable to this case.
For these reasons, we conclude that there were material disputes of facts and that, therefore, the trial court erred in granting summary judgment in favor of plaintiffs. The case is remanded to the trial court for further proceedings consistent with this opinion.
Remanded. We do not retain jurisdiction. Costs to defendant._
We discuss the availability of the usury defense infra.
Although this amendment was adopted after the execution of the land contract in this case, the language of subsection 2 clearly indicates that the amendment is to apply to all land contracts executed after August 11, 1969.
We believe that this limitation is consistent with the Patel decision and that the Patel Court recognized this limitation.
Because we find Patel to be inapplicable to the case at bar, we need not determine whether the majority in Patel or the dissent by Judge (now Justice) Riley presents the better view.
Subject, in both cases, of course, to any subsequent amendments we have not considered in this case.
On remand, the trial court shall also consider defendant’s counterclaims. | [
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Per Curiam.
Defendant The New Hampshire Insurance Company appeals as of right from a jury verdict awarding plaintiffs $30,000 damages for losses sustained as the result of certain misrepresentations contained in the parties’ contract of insurance. Plaintiffs cross-appeal. We reverse.
The Smarts are the owners and operators of the Indian Trail Motel in Indian River. Mrs. Smart telephoned the Barnich, Kavanaugh & Cooper Insurance Agency (BK&C) in April, 1980, and spoke to William Kavanaugh about renewing an insurance policy on the motel issued by Great American Insurance Company. Kavanaugh told her plaintiffs could receive better coverage by purchasing an insurance policy through The New Hampshire Insurance Company, since the New Hampshire policy provided plaintiffs with replacement cost value for their losses whereas the Great American policy paid actual cash value. Mrs. Smart told Kavanaugh to purchase the New Hampshire policy. Mrs. Smart testified, and Kavanaugh con firmed, that her main concern when she contacted the agency was that the insurance provide continuous coverage and that there would be no period of lapse.
Under the Great American policy, insurance on the motel began at 12:01 a.m., May 1, 1979, and lapsed at 12:01 a.m., May 1, 1980. In the main body of the New Hampshire policy, the time of inception was listed as 12:01 a.m., May 1, 1980, and the time of expiration was listed as 12:01 a.m., May 1, 1981. Attached to the end of the New Hampshire policy was a sheet entitled "Michigan Amendatory Endorsement”, which stated that the time of inception and time of expiration of the policy was to be noon standard time. It also provided that "[t]o the extent that coverage in this policy replaces coverage in other policies terminating at 12:01 A.M. (Standard Time) on the inception date of this policy, this policy shall be effective at 12:01 A.M. (Standard Time) instead of at Noon Standard Time”. There was also a specific provision in the New Hampshire policy which stated, that, if the terms of the policy were in conflict with the statutes of the state where the policy was written, then the policy and the endorsement were amended to conform to the statutes of that state.
At approximately 7 a.m. on May 1, 1980, fire damaged a substantial portion of plaintiffs’ motel. Because of the amendatory endorsement attached to the New Hampshire policy, and because of the provisions of MCL 500.2832; MSA 24.12832 mandating that all policies of insurance covering loss due to fire begin and end at noon standard time, a dispute arose between Great American and New Hampshire as to who was liable for the loss. Great American eventually paid plaintiffs the actual cash value for damage to the motel. This payment was approximately $30,000 less than what plain tiffs would have received had the New Hampshire policy for replacement cost value been honored.
Plaintiffs commenced suit against New Hampshire, BK&C, and Kavanaugh, making numerous allegations including misrepresentation and unfair trade practices. Prior to trial, the trial court granted BK&C’s and Kavanaugh’s motion for summary judgment but denied summary judgment in favor of New Hampshire.
At the close of plaintiffs’ proofs, New Hampshire moved for a directed verdict on the ground that plaintiffs had failed to show that any misrepresentation had been made. The court denied the motion, ruling that there was an arguable misrepresentation within the New Hampshire policy because the body of the policy stated the date and time of inception as 12:01 a.m. on May 1, 1980, and the amendatory endorsement stated it as noon on May 1, 1980. The court stated that it was a question of fact for the jury as to whether plaintiffs had relied on the alleged misrepresentation.
The jury returned a verdict finding New Hampshire guilty of misrepresentation and unfair trade practices and awarding plaintiffs $30,000 damages. New Hampshire brought motions for a new trial and for judgment notwithstanding the verdict on the grounds that New Hampshire had made no misrepresentation and, even if there was an arguable misrepresentation in the body of the New Hampshire policy, plaintiffs had failed to show any reliance. The court denied both motions.
New Hampshire first claims that the trial court erred in refusing to grant its motions for a directed verdict, new trial, and judgment notwithstanding the verdict as to plaintiffs’ misrepresentation claim. We agree.
In reviewing a trial court’s denial of a motion for a directed verdict, we must view the evidence in a light most favorable to the nonmoving party and determine whether a prima facie case was established. If there were material issues of fact upon which reasonable minds could differ, they were properly submitted to the jury. Hall v Citizens Ins Co of America, 141 Mich App 676, 682; 368 NW2d 250 (1985). When faced with a motion for judgment notwithstanding the verdict the court must view the evidence in a light most favorable to the nonmoving party and decide if the facts presented preclude judgment for the nonmoving party as a matter of law. If the evidence is such that reasonable men could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. See Drummey v Henry, 115 Mich App 107; 320 NW2d 309 (1982), lv den 417 Mich 895 (1983). This Court does not reverse a trial court’s decision to deny a motion for new trial unless the trial court abused its discretion by doing so. Commercial Union Ins Co v Liberty Mutual Ins Co, 137 Mich App 381, 386; 357 NW2d 861 (1984).
In order to sustain a finding of misrepresentation plaintiffs had to prove each of the six following elements:
"(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” Hi-Way Motor Co v International Harvester Co, 398 Mich 330; 336; 247 NW2d 813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919).
In ruling on the motion for directed verdict, the trial court stated that it found an arguable misrepresentation in the New Hampshire insurance policy because it stated at one point that the time of inception was 12:01 a.m. and in the Michigan Amendatory Endorsement that the time of inception was at noon. This was error. At most, plaintiffs showed the existence of a conflict between the terms of the policy and the endorsement. When there is a conflict between the language of an endorsement and the form provisions of an insurance contract, the terms of the endorsement prevail. Peterson v Zurich Ins Co, 57 Mich App 385; 225 NW2d 776 (1975); Jones v Philip Atkins Construction Co, 143 Mich App 150; 371 NW2d 508 (1985). Thus, as a matter of law, New Hampshire did not "misrepresent” the inception time of its policy.
Moreover, in order to prove all of the elements of misrepresentation plaintiffs needed to show that they actually relied to their detriment on the "misrepresentation”. Testimony elicited at trial showed that this would have been impossible. Mrs. Smart testified that she never read the New Hampshire insurance policy prior to the fire, that she did not receive a copy prior to the fire, and that she relied completely on what Kavanaugh had told her. She testified that Kavanaugh had told her she had nothing to worry about and that she would receive continuous insurance coverage, but that she had never discussed specific hours and the specific time of inception with him. Thus, Mrs. Smart’s own admissions showed that it was impossible for plaintiffs to place any reliance on the actual body of the New Hampshire insurance policy. Without such proof, a finding of misrepresentation cannot be sustained. Accordingly, we reverse the trial court’s denial of New Hampshire’s motions for a directed verdict, new trial, and judgment notwithstanding the verdict on plaintiffs’ misrepresentation claim.
New Hampshire next contends that the trial court erred in refusing to grant its motion for judgment notwithstanding the verdict on plaintiffs’ unfair trade practices claim.
Michigan prohibits unfair or deceptive acts or practices in the business of insurance in the following statutes:
"(1) A person shall not engage in a trade practice which is defined in this uniform trade practices act or is determined pursuant to this act to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.” MCL 500.2003; MSA 24.12003.
"An unfair method of competition and an unfair or deceptive act or . practice in the business of insurance means the making, issuing, circulating, or causing to be made, issued, or circulated, an estimate, illustration, circular, statement, sales presentation, or comparison which by omission of a material fact or incorrect statement of a material fact:
"(a) Misrepresents the terms, benefits, advantages, or conditions of an insurance policy.” MCL 500.2005; MSA 24.12005.
Plaintiffs alleged that New Hampshire violated the above provisions because it unfairly misrepresented the terms of the insurance policy. In order to find a violation of this act, the plaintiffs needed to prove the element of misrepresentation and then link it to the specific terms of the insurance policy. However, as noted above, at the close of proofs, it had been shown that plaintiffs could not possibly have relied on the written word in the New Hampshire insurance policy because they had never received a copy of it, nor read it, prior to the loss. Plaintiffs thus failed to prove an essential element of misrepresentation and, therefore, also failed to show that New Hampshire violated the unfair trade practices act. We reverse the trial court’s denial of New Hampshire’s motion for judgment notwithstanding the verdict on plaintiffs’ unfair trade practices claim.
In its charge to the jury the trial court instructed on construing an ambiguity found in an insurance policy as follows:
"I instruct you that the general rule is that when there is ambiguity in an insurance policy, the policy should be construed against the insurance company and in favor of the insured party.”
New Hampshire objected to the giving of this instruction. On appeal, New Hampshire contends that it was inapplicable. The trial court apparently believed that the policy was ambiguous because the time of inception of coverage listed in the body of the policy was 12:01 a.m., whereas the time listed in the endorsement was noon. We disagree. As previously noted, endorsements or riders prevail over form provisons of a contract. Peterson, supra; Jones, supra. Therefore the language of the endorsement controls. By endorsement the contract said coverage would begin at noon on May 1, 1980. The contract said that Michigan law would apply to both the body of the policy and the endorsement and that the terms required by Michigan law would supersede any terms to the contrary. There is no ambiguity. The instruction was inapplicable on the facts of this case.
In their cross-appeal, plaintiffs claim that the trial court erred in granting summary judgment in favor of defendants BK&C and William Kavanaugh. A motion for summary judgment brought pursuant to GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. In ruling on this motion, a trial court must consider not only the pleadings but also whatever depositions, briefs, and other documentary evidence is then available. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). The party opposing such a motion for summary judgment must come forward to establish the existence of a genuine issue of material fact. If the nonmoving party fails to establish a material fact, then the motion is properly granted. Bob v Holmes, 78 Mich App 205; 259 NW2d 427 (1977).
In the instant case, there was no evidence of any misrepresentations on the part of BK&C or Kavanaugh. By plaintiffs’ own admissions, BK&C and Kavanaugh made no misrepresentation to them because there was never any conversation regarding the time of inception of the New Hampshire policy.
There was also no evidence of any breach of duty or negligence on the part of BK&C or Kavanaugh. BK&C and Kavanaugh did nothing to deprive plaintiffs of their continual insurance coverage. By operation of law, MCL 500.2832; MSA 24.12832, the Great American insurance policy extended to noon on May 1, 1980. At noon May 1, 1980, the New Hampshire insurance policy commenced. The fact that the fire occurred at 7 a.m., May 1, 1980, before the New Hampshire replacement cost coverage went into effect, is no fault of BK&C’s or Kavanaugh’s. Plaintiffs wanted continual insurance coverage, and they received continual insurance coverage. Nor was there evidence to show that BK&C or Kavanaugh was an agent of New Hampshire and therefore guilty of New Hampshire’s alleged "misrepresentations” because of an agency relationship. The evidence showed that BK&C is an independent insurance agency and represents the interest of the insureds before it represents the interests of any insurance companies. The trial court correctly granted the motion for summary judgment on all counts involving BK &C and Kavanaugh.
Plaintiffs’ second claim of error on cross-appeal is that New Hampshire should be found liable according to. the declaration page of the policy rather than according to the endorsement to the policy stating coverage began at 12 p.m. on May 1, 1980. This contention is without merit. The body of the New Hampshire policy which reflects a 12:01 a.m. time of inception is a standard form used throughout the United States and the Michigan Amendatory Endorsement sheet is meant to modify that time of inception in conformance with Michigan law. MCL 500.2832; MSA 24.12832 requires that insurance policies in Michigan that cover loss from fire begin and end at 12 noon standard time. By law, the New Hampshire policy could not begin to provide plaintiffs with full replacement value coverage until noon standard time on May 1, 1980. By law, the Great American policy did not terminate its coverage of plaintiffs’ property at actual cash value until noon on May 1, 1980. It follows that, as a matter of law, New Hampshire could not be held liable for a loss which occurred before noon on May 1, 1980.
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J. P. Noecker, J.
These consolidated cases all relate to Saginaw County Probate Court orders terminating the parental rights of appellants Effie Orrilla Stricklin and Richard David Stricklin to their five minor children. Appellant Effie Stricklin is the mother of all five of the children, and appellant Richard David Stricklin is father of three of the children and stepfather of two. After the adjudicative phase of the probate proceedings, lasting from May 1 through May 4, 1984, the jury determined that the probate court had jurisdiction over all five children. After the dispositional phase of the probate proceedings, the court terminated the parental rights of both appellants.
Testimony before the jury in the probate proceedings revealed extreme sexual misconduct on the part of both appellants directed toward two of the children, Crystal Dawn Richards, age 9 at the time of the probate court hearing, and Stephen Richards, age 7 at the time of the probate court hearing. Crystal Dawn testified that she had engaged in sex acts with appellant Richard Stricklin ten or more times in her parents’ room and that her mother was present most of the time. She testified further that she saw her parents engage in sex when appellant Richard Stricklin wanted to teach her "how to do it”. Further, she testified that she had engaged in sex acts with her brother, Stephen, about five times.
Stephen testified that he had engaged in sex acts with his mother Effie Stricklin when his father Richard Stricklin was present. He also testified that he had engaged in sex acts with his sister, Dawn.
Neither appellant testified at the probate proceeding.
Criminal charges against both appellants resulted in the conviction of Effie Stricklin of three counts of first-degree criminal sexual conduct and in the conviction of Richard Stricklin of two counts of first-degree criminal sexual conduct and one count of attempted first-degree criminal sexual conduct.
Both appellants claim that the probate court erred when it denied appellants’ motions to adjourn the probate proceeding pending the outcome of the criminal proceedings against appellants. Appellants claim a violation of their rights to be free from compelled self-incrimination guaranteed them by the Fifth and Fourteenth Amendments to the United States Constitution, and by article 1, § 17 of the Michigan Constitution. Appellants argue that the state compelled them to testify by hearing the probate proceeding before the criminal proceeding and that such scheduling was for the purpose of securing testimony at the probate proceeding which could be used against them in their subsequent criminal trials. Appellants also argue that compulsion to testify was present because the risk of losing parental rights in the probate proceeding was enhanced if they chose not to testify.
Appellant Richard Stricklin alleges further error because the probate court required him to take the stand and exercise his right to remain silent. Finally, appellant Effie Stricklin alleges error when the probate court allowed petitioner to call her as a witness under the adverse party statute (despite the fact that she did not testify after being called) and that allowing her or Richard Stricklin to be called as a witness violated her spousal privilege to refuse to testify against her husband and her marital communications privilege to exclude testimony by her husband against her.
Both appellants seek retrial of the issue of termination of parental rights.
I
Appellants’ privilege to be free from compelled self-incrimination under the Michigan Constitution is no more extensive than the privilege afforded by the Fifth Amendment to the United States Constitution. Consequently, the principles enunciated in the federal cases are applicable to this case. Neither the fact that appellants did not testify in the probate proceeding nor the fact that the probate proceeding was a civil proceeding is dispositive with respect to appellants’ self-incrimination claim. If a penalty was exacted upon appellants’ refusal to testify, relief is possible despite the fact that there was no testimony. The privilege against self-incrimination applies to a civil proceeding at which evidence is sought which might subject the witness to criminal prosecution. Therefore, the resolution of appellants’ claim in the case at bar turns on whether a penalty was exacted for appellants’ refusal to testify, sufficient to amount to the kind of compulsion contemplated by the Fifth Amendment. In this Court’s opinion, whatever compulsion was present was insufficient to have amounted to a breach of appellants’ rights to be free from compelled self-incrimination.
Compulsion of the kind contemplated by the Fifth Amendment is present when a person is unable "to remain silent unless he chooses to speak in the unfettered exercise of his own will”. Appellants argue that compulsion was present in the case at bar because the specter of losing their parental rights was held over their heads if they chose not to testify. They argue that the compulsion is real because a respondent’s risk of losing a case is greater if he does not testify in his own defense.
The validity of appellants’ argument requires that their testimony at the probate proceeding would have had to have increased their chances of retaining their parental rights, i.e., that their testimony at the probate proceeding would have been nonincriminating. Of course, in order for there to have been a Fifth Amendment violation, the testimony offered at the criminal proceeding would have had to have been incriminating. Because of the essential similarity of issues in the two proceedings, any incriminating testimony offered at the criminal proceeding would have also been incriminating at the probate proceeding. If one is to accept appellants’ premise that the penalty imposed for not testifying at the probate proceeding was the increased risk of loss of parental rights, one must conclude that the testimony sought through such compulsion would not have been incriminating. Yet, appellants’ argument also requires the conclusion that that same testimony, if offered in the criminal proceeding, would have been incriminating. The logical implausibility, if not impossibility, of such an argument considerably weakens the foundation upon which appellants rest their conclusion that their Fifth Amendment privileges were violated.
In summary, accepting appellants’ premise that the increased risk of loss of parental rights was the penalty imposed upon them for their refusal to testify, it must be concluded that the testimony sought through such compulsion would have been nonincriminating. The compulsion of nonincriminating testimony is not the sort of compulsion contemplated by the Fifth Amendment. Any adverse consequences resulting from appellants’ failure to testify cannot be said to have been created by the state. Any penalty resulting from appellants’ failure to testify was no more than the "penalty” that any party suffers when he decides not to testify in his own defense. Appellants retained the unfettered discretion to testify or not to testify; had they chosen to testify, it would have been because their testimony would have increased their chances of retaining their parental rights, and not because of a penalty imposed by the state upon their refusal to testify. The choice not to testify was no more than appellants’ tactical decision as to the best course to follow through the probate and criminal proceedings.
Appellant Richard Stricklin argues further that his Fifth Amendment right to remain silent was compromised because he was called to the stand and forced to assert the right, thereby aggravating the adverse inference to be drawn from his failure to testify. Appellant’s argument ignores the fact that he was called to the stand outside the presence of the jury, so that no adverse aggravating inference could have been drawn. Appellant’s argument is without merit.
II
Appellant Efiie Stricklin argues that the probate court committed error when it allowed her to be called as a witness under the adverse party statute and that calling her or her husband violated either her spousal privilege, regarding testimony by one spouse against the other, or her marital communications privilege, regarding communications made in the confidence of the marriage relationship.
The adverse party statute provides that a defendant in a criminal case shall be deemed a competent witness only at his own request. However, MCL 712A.1; MSA 27.3178(598.1) provides that juvenile proceedings in probate court shall not be deemed to be criminal proceedings. Appellant’s argument is without merit.
Appellant’s argument regarding the marital communications privilege ignores the fact that MCL 722.631; MSA 25.248(11) abolished the privilege in a civil child protective proceeding. It might also be argued that the spousal privilege was abolished, either by the same statute or because of the nature of the proceeding, but this Court need not decide that question. Neither Effie Stricklin nor Richard Stricklin testified in the probate proceeding. The spousal and marital communication privilege issues became moot when the parties were excused from testifying on Fifth Amendment grounds. Consequently, the probate court committed no error.
Affirmed.
V. J. Brennan, P.J., concurred.
Beasley, J., concurred in the result only.
MCL 600.2159; MSA 27A.2159.
Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984).
Gardner v Broderick, 392 US 273; 88 S Ct 1913; 20 L Ed 2d 1082 (1968).
Berney v Volk, 341 Mich 647; 67 NW2d 801 (1955).
Malloy v Hogan, 378 US 1, 8; 84 S Ct 1489; 12 L Ed 2d 653 (1964).
Compare, for example, Gardner v Broderick, supra, in which a New York City patrolman was discharged for refusal to waive his privilege against self-incrimination.
See In the Matter of Declaring CLR, Youth in Need of Care, — Mont —; 685 P2d 926 (1984), and In the Matter of Roman, 94 Misc 2d 796; 405 NYS2d 899 (1978).
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order denying declaratory relief from defendants’ action of cutting plaintiff’s budget by eliminating the County Sheriff’s Patrol and Investigation Division. On appeal, plaintiff raises several issues, none of which require reversal.
First, plaintiff contends that the trial court erred in ruling that defendant board of commissioners did not act in an arbitrary and capricious manner in voting to eliminate the division in question. We disagree. Defendant board of commissioners is authorized by Const 1963, art 7, § 8, and MCL 46.11; MSA 5.331 to exercise legislative power to appropriate money and to manage county affairs. OAG 1979-1980, No 5816, p 1079. Under established separation of powers doctrine, legislative power must be insulated from judicial interference. This Court had consistently held that in disputes such as the present one, the judiciary will not interfere with discretionary actions of a legislative body such as defendant board of commissioners. Wayne County Prosecutor v Wayne County Board of Comm’rs, 93 Mich App 114, 121; 286 NW2d 62 (1979); Brownstown Twp v Wayne County, 68 Mich App 244, 251; 242 NW2d 538 (1976), lv den 399 Mich 831 (1977). Only action which is "so capricious or arbitrary as to evidence a total failure to exercise discretion” may be sub ject to this Court’s review. Wayne County Prosecutor, supra, pp 121-122.
In order to warrant an equity court’s instrusion into an exercise of local legislative power, such as that involved here, it is necessary to demonstrate "malicious intent, capricious action or corrupt conduct” or, alternatively, "something which shows the action of the body whose acts are complained of did not arise from an exercise of judgment and discretion vested by law in them”, Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936).
Plaintiff has failed to make any such showing here. The board of commissioners decided to eliminate funding only after it had listened to lengthy presentations by various county department heads, the board of auditors, and the advice of corporation counsel and fiscal consultants regarding the level of mandatory duties and serviceability. The decision was thus, at the very least, an informed exercise of discretion rather than a wholly political act borne of ignorance and passion. Furthermore, the mere fact that each individual board member did not testify that he or she was aware of every function performed by the division in question does not mean that the decision resulted from ignorance or capriciousness. The law does not presume that local officials act from ignorance, but instead proceeds from the contrary presumption that such officials act in good faith to perform their duty. Veldman, supra, p 113. We also note that absent some showing of malicious action, bad faith or corruption, individual board members’ viewpoints are not relevant since the board exercises its power as a collective entity and not as individuals, Saginaw County v Kent, 209 Mich 160; 176 NW 601 (1920); Crain v Gibson, 73 Mich App 192, 200; 250 NW2d 792 (1977), lv den 400 Mich 828 (1977). Delegation of investigatory and reporting duties to certain board members, to the exclusion of others, is legislatively sanctioned and necessary to the board’s proper functioning. Such delegation does not compel the conclusion that the board as a whole acted capriciously or based upon ignorance. Crain, supra.
The manner in which the board disposed of this budget dispute is quite similar to that which was found proper in Wayne County Prosecutor, supra, pp 120-123. In that case, as in the present one, the board acted in good faith in making its decision that certain county services had to be cut from the budget. There was no showing in either case of any malice, ill will or bad faith on the part of the board. We note the absence of testimony indicating any personal animosity toward plaintiff, William Lucas. The sole objection of certain board members was to various personnel practices within the sheriffs department. These practices are certainly relevant factors to consider in making budget decisions. In short, we conclude that there is no basis for reversing either the board’s action underlying this dispute or the trial court’s order denying declaratory relief from that action.
Plaintiffs remaining arguments on appeal are also without merit. The court acted properly in finding that elimination of the division in question would not prevent plaintiff from performing the mandated duties of his office at a "minimally serviceable” level. It is true that the legislative branch may not properly change the duties of a constitutional office, such as that of a county sheriff, so as to destroy the power to perform the duties of that office. See Allor v Board of Auditors, 43 Mich 73, 102-103; 4 NW 492 (1880); Fraternal Order of Police, Ionia County, Lodge 157 v Bensinger, 122 Mich App 437, 445; 333 NW2d 73 (1983).
However, in the present case, plaintiff has failed to demonstrate that any common-law or statutory duties have been rendered impossible to perform as the result of defendants’ action. Certainly, defendants’ action has not rendered performance of common-law duties impossible. See Brownstown Twp v Wayne County, supra, where this Court found that defendant had not improperly interfered with the common-law duties of the sheriff in eliminating funding for the sheriff’s road patrol in certain townships, 68 Mich App 251. The services involved in the present case are similar to those reviewed in Brownstown Twp, supra. We note that the question of whether particular patrol and investigation services should be eliminated is a highly political issue, best left for resolution by the voters rather than by the nonpartisan courts. As the court observed in Jones v Wittenberg, 357 F Supp 696 (ND Ohio, 1973), cited in Brownstown, supra:
"Under the American system of constitutional government, it is the duty of the legislature, in this case the Board of County Commissioners, to raise the funds for governmental operation, and to distribute them among the various executive departments including, in this case, the Sheriff and his department. Since the public funds are not unlimited, and every executive always needs more money than he can get, the matter of appropriations is a highly political one. For the necessarily apolitical court to attempt to resolve such political disputes by legal methods would be the height of folly. This Court is not that foolish. The parties should argue this question to the voters.
"The defendant Sheriff contends that in order to carry on all his official functions, he must have a much larger appropriation of public funds than he was granted.
"The relevance of this argument, which consumed so much time at the hearing, is the defendant Sheriffs contention that he is not granted sufficient money both to comply with the Court’s order for guarding the jail, and to patrol the roads of the County, and perform numerous other duties.
"[3] This again presents a non-justiciable problem. No public official can provide all the services that he would like to provide, and it is for him to use his judgment as to how he will make his money spread. If he is politically astute, he can perhaps make sufficient political capital of his inability to render services to create pressure upon the legislative branch to increase his appropriation. But no court can very well take a hand in that game. Nor can the court even suggest, much less dictate, in what way an official shall shift his funds in order to comply with a duty which the court has found the law imposes upon him.” Jones, supra, pp 699-700.
The same reasoning applies to plaintiffs claim that defendants’ action interferes with the performance of certain statutory duties. The issue is whether the elimination of the division in question renders plaintiff unable to provide statutorily mandated services at a "minimally serviceable” level, Cahalan v Wayne County Board of Comm’rs, 93 Mich App 114; 286 NW2d 62 (1979). As noted in Cahalan, supra, a "serviceable” level of funding need not be an optimal level; in order for a level of funding to be deemed less than "serviceable”, there must be some showing of an "emergency immediately threatening the existence of the function”. 93 Mich App 124.
The determination of what constitutes an "emergency” threatening the existence of a function can be a highly subjective one, yet the trial court carefully reviewed the evidence, concluding that elimination of the division in question would not impair plaintiffs ability to perform at a "serviceable” level. Although this Court reviews the entire record de novo on appeal from a declaratory judgment, the Court will not reverse a trial court’s factual findings unless the latter are "clearly erroneous”, Lenawee County Board of Comm’rs v Abraham, 93 Mich App 774, 779; 287 NW2d 371 (1979). We find no occasion to overrule the trial court’s factual finding that most of the functions performed by the division in question continued to be performed at "serviceable” levels, because they were: (1) duplicated by other divisions or departments, including the state police, (2) were back-up for nonmandated functions, or (3) were still being performed by personnel under the auspices of the jail division. The court’s admonition in Jones v Wittenberg, supra, against judicial entanglement in local political disputes such as the present one further restrains us from disturbing the carefully compiled findings of the lower court.
We find no merit in plaintiffs remaining contention that the trial court abused its discretion in denying plaintiff an opportunity to call certain officials, including several commissioners, district judges, mayors, police chiefs, and other county sheriffs, as witnesses. A trial court has a broad measure of discretion in determining whether to exclude relevant evidence and may properly rule in favor of exclusion where a proposed witness’s testimony would cause undue delay, a waste of time or needless presentation of cumulative evidence, MRE 403. In the present case, the court properly excluded the testimony of the witnesses in question as cumulative. For example, the court allowed plaintiff to call several of the individual members of defendant board of commissioners, despite the fact noted above that such boards exercise powers as a single entity and not individually, Saginaw County v Kent, supra; see also Sheffield Development Co v City of Troy, 99 Mich App 527; 298 NW2d 23 (1980), lv den 411 Mich 974 (1981). In light of Saginaw County, supra, and Sheffield Development, supra, the very fact that the court allowed plaintiff to call individual board members at all was by itself an exercise of discretion favoring plaintiff. The court’s subsequent refusal to allow plaintiff to call all 27 individual board members was certainly justified by the court’s factual finding that "the commissioners who testified were a fair representation of the Board of Commissioners who passed the budget”, a factual finding which we cannot conclude was clearly erroneous. If the commissioners who testified fairly represented the board as a whole, fur ther commissioner testimony would have been cumulative and was properly excluded, MRE 403.
The foregoing conclusion applies equally to the proposed testimony of other local officials, such as other county sheriffs. The statements of those officials would have added little to the testimony already given below. There is no basis for plaintiff’s argument that the testimony of certain witnesses. (notably other county sheriffs) would have been particularly probative merely because those witnesses had less apparent "interest” in the outcome of the proceedings. Nothing in the record or the court’s opinion suggests that the court based its ruling upon a finding that plaintiffs witnesses were biased or that additional witnesses giving comparable testimony might have swayed the court to reach a different result. Cf., Johnson v Detroit, 79 Mich App 295; 261 NW2d 295 (1977).
Finally, the trial court did not err in denying plaintiffs request that defendants pay his costs and attorney fees in connection with this action. In any declaratory judgment action, it is within a trial court’s discretion to decide whether to grant a plaintiffs request for attorney fees. Stein v Continental Casualty Co, 110 Mich App 410, 426; 313 NW2d 299 (1981), lv den 414 Mich 853 (1982). We find no abuse of discretion here. Recovery of attorney fees is allowed only where expressly authorized by statute or court rule. City of Center Line v 37th District Court Judges, 74 Mich App 97; 253 NW2d 669 (1977), modiñed on other grounds 403 Mich 595 (1978). The statute cited by plaintiff in support of an award of fees, MCL 49.73; MSA 5.826, requires the board of commissioners to employ attorneys to represent the sheriff when the latter is named as a defendant, but contains no language authorizing, let alone requiring, employment of attorneys to represent a county official who initiates an action. See, also, Exeter Twp Clerk v Exeter Twp Board, 108 Mich App 262; 310 NW2d 357 (1981), where the official in question was named a defendant in a mandamus action.
The cases cited by plaintiff, Wayne Circuit Judges v County of Wayne, 386 Mich 1; 190 NW2d 228 (1971); Beattie v County of Wayne, Wayne County Circuit Court No. 249,447 (1949), are distinguishible. In each case, the appellate court found that a lower court, being part of the judicial branch of government, had inherent power to retain private counsel and to compel payment of the judges’ attorney fees. However, the outcome in each case turned upon the fact that judicial officers were being forced to defend against encroachments upon the autonomy of the judiciary at their own expense. Under such circumstances, the courts in each case held that the county’s payment of the judges’ attorney fees was necessary to ensure the autonomy of the judiciary and that any contrary result would have impaired the judiciary’s ability to function as a separate and equal branch of government. No comparable policy considerations are involved here.
We need not rely upon the foregoing distinctions in denying plaintiff’s request for an order compelling payment of his attorney fees. Equitable and practical considerations compel the conclusion that the denial of fees was proper. In each case cited by plaintiff, the public official who succeeded in obtaining reimbursement of fees had prevailed on the merits of the action. In the present case, plaintiff has failed to persuade either the trial court or this Court that defendants’ actions were arbitrary, capricious, or in any other respect invalid or unlawful. Plaintiff’s failure to prevail on the merits is by itself a sufficient basis in equity for denying reimbursement of fees.
Practical realities reinforce our conclusion. Sparing the county the expense of plaintiffs fees is appropriate, given that the severe fiscal crisis which precipitated this action remains unresolved. The county can hardly be expected to stretch its severely limited resources even further to cover the expense of every challenge to its officials’ budget decisions, particularly where, as here, the challenge is unsuccessful on the merits.
Affirmed.
We note that there are two functions which arguably have been rendered less than "serviceable” by the defendants’ action. First, plaintiff has made a cogent argument in support of his position that the marine division, which performs various functions mandated by the Marine Safety Act, MCL 281.1001 et seq.; MSA 18.1287(1) et seq., was the agency to which the Legislature intended to delegate primary responsibility for marine law enforcement. The governing statutes do specifically delegate enforcement functions to the sheriff’s office and contain language suggesting that the sheriff’s office was intended to perform a central role in this area of enforcement. However, defendants pointed out to the trial court (1) that the statutes authorize the sheriff to call upon other agencies for assistance in connection with his marine duties and (2) that, under the Marine Safety Act, the Legislature transferred funding for marine safety and law enforcement in Wayne County to the Department of Natural Resources. These considerations support a conclusion that much of the sheriff’s function of marine law enforcement can be effectively transferred to other agencies. Although we might not have reached the same conclusion sitting as the trier of fact below, we decline to overturn the lower court’s findings regarding the marine division as having been "clearly erroneous”.
The remaining function which has arguably been rendered less than "serviceable” is the sheriff’s duty toward Brownstown Township, which does not maintain its own police force. However, since Browns-town Township, a party plaintiff below, has not appealed the lower court’s judgment with respect to its access to the sheriff department’s services, we find no occasion to consider this function in the present appeal.
We acknowledge that the present action was brought in good faith by a county department head for the purpose of protecting his department’s ability to provide services and that, under the circumstances, the present litigation provides little personal benefit to the department head in question, plaintiff William Lucas. We also realize that neither corporation counsel nor the prosecuting attorney could have represented plaintiff without a conflict of interest (so that any request for corporate counsel representation would have been futile) and that the small legal staff of one attorney assigned to the sheriff’s office could not conceivably have had the resources to provide representation comparable to that of a large law firm, whose services had been made available to defendants. We cannot overlook the potential inequity of requiring a sheriff who is involved in a major budget dispute to choose between relying upon his own staff’s limited legal resources or resorting to outside counsel at his own expense. Perhaps in some future situation, where a county department head such as the sheriff brings a meritorious action challenging a county appropriations decision, this Court may depart from its general rules denying reimbursement of fees. However, we find dispositive the fact that in the present case, plaintiff has completely failed to prevail on the merits. Accordingly, we conclude that the trial court did not abuse its discretion in denying plaintiff’s request for an award of attorney fees. | [
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] |
R. B. Burns, P.J.
The facts in this case are simple but the issue is one of first impression in Michigan.
The decedent and his wife, Amelia, spent most of the afternoon drinking in a bar. Sometime between 12:30 and 1 a.m. an argument occurred and Amelia stormed out of the bar, leaving her husband. The decedent followed her into the park-, ing lot. Amelia got into, the car, locked all of the doors and attempted to drive away. Mr. Roesch knew that he would be compelled to walk 13 miles home in chilly weather if his wife left him behind. In order to force his wife to drive him home, Mr. Roesch climbed onto the hood of the car, so she would be compelled to stop.
Mrs. Roesch estimated that the car was moving at the rate of 2 miles per hour when Mr. Roesch climbed aboard. Mrs. Roesch immediately applied the brakes. The forward inertia caused Mr. Roesch to slide off the front of the car and he was struck by the right front tire. As a result, Mr. Roesch suffered fractures to his collarbone, shoulders and spine, a concussion, and contusions.
Mr. Roesch filed a claim with the defendant, his no-fault carrier. The claim was denied. Mr. Roesch subsequently died and his estate was substituted as the party plaintiff.
The claim was denied by the defendant on the ground that Roesch’s injuries were "suffered or caused intentionally”, which barred him from no-fault recovery under MCL 500.3105(4); MSA 24.13105(4).
The trial judge granted defendant’s motion for summary judgment. The trial judge held that the term "accident” encompassed any logically foreseeable occurrence which resulted from a particular course of conduct.
MCL 500.3105; MSA 24.13105 provides in part:
"(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
"(4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.”
This dispute centers on the interpretation and application of subdivision 4 above. This provision does not adequately define what qualifies as an accidental injury. The plaintiff contends that an incident is accidental if the results were not intended by the actor. Thus, the plaintiff advocates a subjective standard which focuses on the actor’s personal intent to cause the ultimate injury, rather than his initial behavior. Conversely, the defendant asserts that an injury which results from an intentional act is not accidental if its consequences are foreseeable to a reasonable person.
As mentioned above, this is a case of first impression. It is beyond dispute that the Legislature sought to bar recovery by people who intended to injure themselves or commit suicide. The defendant insurer concedes that Mr. Roesch did not fall into either of those categories. Therefore, the issue in this case is whether an unintended injury which resulted from an intentional act falls within the ambit of MCL 500.3105(4); MSA 24.13105(4).
The defendant and the circuit court primarily relied upon Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12; 123 NW2d 143 (1963), and related cases. The cases defined an accident as:
" '[A]n event which under the circumstances is unusual and not expected to the person to whom it happened’.” (Footnote omitted.) State Farm Mutual Automobile Ins Co v Coon, 46 Mich App 503, 506; 208 NW2d 532 (1973).
The defendant seeks to automatically apply this definition to the case at bar. Certainly, it is foreseeable that a person who sprawls upon the hood of a moving vehicle will slide off and be injured. Furthermore, it is usually easier to determine if an accident occurred by applying the simpler foreseeability test rather than probing for the subjective intent of the actor.
The weaknesses of the foreseeability test far outweigh its benefits. A foreseeability test would greatly limit the liability of the insurer. Most automobile accidents involve volitional acts, such as speeding, drunk driving, or disobedience to traffic signals, which yield unintentional consequences. Negligence often involves an intentional act which falls below a recognized standard of care. A calamity is often a foreseeable consequence of a negligent act. The results of a negligent act are unintended. If the defendant’s position is carried to its logical extreme, a no-fault insurer could refuse to pay benefits to its insured because the mishap was a foreseeable consequence of the in sured’s negligent act. Certainly, the Legislature did not intend, in all situations, to bar recovery by people who were injured as a consequence of their own negligence.
The subjective standard, which is advocated by the plaintiff, allows a claimant who was unintentionally injured by his own negligent act to collect benefits. This position is supported by the recent case of Collins v Nationwide Life Ins Co, 409 Mich 271; 294 NW2d 194 (1980). In this case, the Supreme Court distinguished accidental death from accidental means:
"At the outset, it is important to note that a distinction has arisen in many states between the term 'accidental means’ and the terms 'accident’, 'accidental death’, and, as used in the policy at issue, 'accidental bodily injuries’. This distinction is succinctly explained in 10 Couch, Insurance (2d ed), § 41:28, pp 49-50:
" '[Accidental death is an unintended and undesigned result arising from acts voluntarily done, whereas death by accidental means is a result arising from acts unintentionally done or events undesignedly occurring. The term "accidental means” refers to the occurrence or happening which produces the result, rather than the result; it is concerned with the cause of the harm rather than the character of the harm.’ ” (Footnote omitted.) Collins, p 275.
The statute in this case, MCL 500.3105; MSA 24.13105, refers to "accidental bodily injury” not "bodily injury by accidental means”. By analogy, the distinction drawn by Collins v Nationwide Life Ins Co, supra, is fully applicable in injury cases as well as in death cases. Therefore, since Martin Roesch’s injuries were the unintended result of an intentional act, rather than the intended result, he was entitled to benefits from the defendant.
Reversed and remanded for trial. | [
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] |
G. R. Cook, J.
The people appeal by leave granted, GCR 1963, 806.2, the trial court’s suppression of statements made by defendant Margaretha Strieter. Strieter is charged with embezzlement over $100, MCL 750.174; MSA 28.371, and with being an habitual offender, MCL 769.12; MSA 28.1084.
Sometime in January, 1981, the prosecutor and defense counsel agreed that defendant would take a polygraph examination. Defense counsel believed that the prosecutor would drop the charges against defendant if she passed the examination, but the prosecutor denies that this was any part of the agreement. On January 26, 1981, the prosecutor sent a letter to defense counsel informing him that the polygraph examination was scheduled for February 12, 1981, at 9 a.m. at the Bay City, Michigan, state police post. Enclosed with the letter was a waiver form which stated that anything defendant said could be used against her. It also stated that her attorney would not be permitted to attend but that she could stop the questioning at any time. The waiver was to be signed by both defendant and her attorney. On the same date, the prosecutor sent a letter to the Bay City Police Detective Bureau informing them of the time and date of the polygraph examination.
Defense counsel conferred with defendant, advis ing her about the polygraph examination. He also sent her a letter advising her to read over the prosecutor’s waiver form and sign it. He informed her that he would not be present during the examination but told her to stop the test if she felt pressure. On February 2, 1981, Strieter signed the waiver form and sent it back to defense counsel. Defense counsel also signed the waiver but added the following addendum:
"Note: I expect our agreement above to be for the purposes of a polygraph only, and that the questions and answers are not to be used against her in a court of law, or in any other way used against her.”
Upon receipt of the waiver form containing defense counsel’s addendum, the prosecutor sent defense counsel a letter, the signed waiver form, and an unsigned waiver form. The letter informed defense counsel that the prosecutor believed that defendant’s answers to the questions asked during the examination were admissible at trial. The letter concluded:
"I am enclosing another copy of a request for polygraph examination which you and Mrs. Strieter can sign if you so desire. I do not wish to mislead you in any way concerning the questions and answers of the polygraph examination. Incriminating statements made by Mrs. Strieter will be used against her in a court of law. It was my understanding that it was your position that Mrs. Strieter is innocent of these charges and would have nothing to fear from the polygraph examination. If this is not the case, please inform me immediately as we will have to cancel this examination. Otherwise, I would expect that the request be signed and delivered to our office or to the Michigan State Police Post prior to February 12, 1981, so that the examination may be run.
The new waiver was never signed or returned and defense counsel testified he was unable to contact the prosecutor.
On February 12, 1981, defendant was taken to the state police post for the polygraph examination. While defense counsel had failed to inform defendant of the rejected waiver transaction, State Police Detective Lowthian, who was scheduled to conduct the examination, was aware of the waiver transaction between defense counsel and the prosecutor. Prior to commencing the "pre-test interview”, Lowthian informed defendant of her Miranda rights and had her execute a waiver which explained her Miranda rights and special warnings pertaining to polygraph examinations. Officer Lowthian testified that during the pre-test interview, which lasted for 1-1/4 hours, defendant made certain incriminating admissions. After the pretest interview, defendant was informed that she would not be given the polygraph test because she had admitted her guilt during the pre-test interview. Defendant was never given a polygraph examination. Upon obtaining access to a telephone, defendant contacted her attorney and informed him of what transpired.
On March 18, 1981, a motion to suppress Officer Lowthian’s testimony was brought before the trial court. After a Walker hearing, the trial court suppressed Lowthian’s testimony, finding that defendant had been denied due process and her right to counsel. The court held that defense counsel’s addendum to the waiver negated any agreement concerning the polygraph test. The court also found that it was the prosecutor’s duty to cancel the polygraph test. The trial judge declined to rule at that time on whether Lowthian’s testimony could be used to impeach defendant if she testified at trial.
On September 15, 1981, after a jury was selected but before it was sworn, the prosecutor informed the trial court that he intended to use Lowthian’s testimony to impeach defendant should she testify contrary to her alleged prior statements. Defense counsel moved to suppress the use of Lowthian’s testimony for impeachment purposes. The trial court granted defendant’s motion. The prospective jury was dismissed and the prosecutor filed this appeal.
On appeal, the prosecutor raises two issues. Initially, he argues that the trial court erred when it suppressed the use of Lowthian’s testimony in his case in chief.
I
When reviewing the findings of a trial court made during a Walker hearing, we are required to examine the whole record and make an independent determination of the ultimate issue of the voluntariness of a defendant’s statement. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). A trial court’s decision to suppress statements will be affirmed unless we are left with a definite and firm belief that a mistake has been made. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974).
The voluntariness of a defendant’s confession is a question of fact which is decided by viewing the totality of the circumstances surrounding the confession. People v Crawford, 89 Mich App 30, 32; 279 NW2d 560 (1979), lv den 409 Mich 914 (1980). Defendant’s waiver must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances. Edwards v Arizona, 451 US 477, 482-483; 101 S Ct 1880; 68 L Ed 2d 378 (1981).
In this case, we are not left with a definite and firm conviction that the trial judge erred when he suppressed Lowthian’s testimony concerning defendant’s statements. At the time the interrogation occurred defendant believed that her attorney approved of the procedure and that she would be allowed to take a polygraph examination. The police, on the other hand, were aware of the conflict between the prosecutor and defense counsel. They knew that defendant’s attorney objected to the use of any interrogations connected with the polygraph exam and to the use at defendant’s trial of any statements made by her. They failed to inform defendant of this conflict, allowing her to think that her attorney still approved of the procedure. Furthermore, they failed to inform defense counsel that the polygraph examination would be conducted as scheduled. While defense counsel should have informed his client not to talk to the police, under the facts of this case we are unable to say that defendant’s waiver of her right to counsel was voluntarily, intelligently, and knowingly made.
II
The people also appeal the trial court’s ruling that Lowthian’s testimony could not be used to impeach defendant if she took the stand and testified contrary to the statements made during the pre-test interview. According to the trial court, because the polygraph addendum was not in effect as defendant’s attorney believed it to be, defendant was deprived of her right to counsel and her waiver was not proper. Therefore, the trial court refused to allow the prosecutor to impeach defendant with her prior statements.
In Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), the Supreme Court held that otherwise inadmissible evidence may be used to impeach the testimony of a defendant. The Court stated:
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” 401 US 222, 226.
However, it must be noted that the defendant in Harris made no claim that his statements made to the police were coerced or involuntary. 401 US 222, 224.
In Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975), the Court reaffirmed its position in Harris, holding that the shield provided by Miranda cannot be "perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances”. 420 US 714, 722; People v Graham, 386 Mich 452, 457; 192 NW2d 255 (1971).
However, any criminal trial use against a defendant of his involuntary statement is a denial of due process of law "even though there is ample evidence aside from the confession to support the conviction”. Jackson v Denno, 378 US 368, 376; 84 S Ct 1774; 12 L Ed 2d 908 (1964). In Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978), the Court held that because the defendant’s statements were not the product of a rational intellect and a free will, his conviction could not stand.
In the instant case, the trial court held that defendant did not knowingly waive her right to remain silent because she was deprived of her right to counsel through a misunderstanding between her attorney and the assistant prosecutor; the court therefore held that her statements were involuntary as a result of that deprival. She has become the victim of the misunderstanding between the two attorneys involved.
In light of the foregoing, the trial court’s suppression of defendant’s statements should be affirmed.
Cynar, J., concurred.
The polygraph examination consisted of three phases. First, the examinee would be asked questions during the pre-test interview. The examinee would then take the polygraph examination. Finally, the examinee would be asked additional questions in the post-test interview.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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] |
R. B. Burns, J.
Plaintiffs appeal and defendants, Continental Insurance Company and Boynton Engineers, Inc., cross-appeal from the verdict in a personal injury and wrongful death case. The jury found in favor of plaintiffs and against both Continental Insurance Company and Boynton Engineers, Inc., on the basis of negligence and against Continental Insurance Company for wrongful interference with economic advantage.
The trial involved what is commonly referred to as a "suit within a suit”. By way of background, plaintiffs Jackovich had a new home erected. Although the new house was completed, the Jackoviches refrained from moving in because a serious problem with water entering the basement existed. Attempts to remedy the leakage were unsuccessful.
In order to alleviate the problem, the Jackoviches bought an electric sump pump to remove the water from the basement. Mr. Jackovich and Mr. George Stalo entered the basement of the home to pump out the accumulated water when the accident occurred. Apparently, when the plug of the pump was removed from the outlet, a spark flew and ignited a quantity of propane causing an explosion and a flashfire. Mr. Jackovich suffered burns over 40% of his body, and Mr. Stalo eventually died from the explosion.
The propane-fired boiler installed in the home had been connected to the propane tank by the propane supplier, Northern Propane Gas Company. The Jackoviches’ house was insured by Continental Insurance Company. Continental Insurance Company also carried the liability insurance for Northern Propane Gas Company.
Continental Insurance Company assigned the adjustment of the loss covered by the homeowners’ policy to Dean Albrecht of General Adjustment Bureau, Inc. On the other hand, as instructed by Continental, a local adjuster employed by Michigan Claims Service was in charge of investigating the liability coverage of Northern Propane Gas Company.
Dean Albrecht hired Boynton Engineers to ex amine the scene of the accident and locate the cause of the explosion. Boynton Engineers sent their employee, Simon Choi, to conduct the investigation. While on the sight of the accident Simon Choi removed a copper tubing, two flare nuts, and an elbow of the propane, line from the premises. The condition of these pieces was important because a carbon deposit known as "flashback” would appear on the tube if a propane leak caused the explosion.
Plaintiffs’ attorney requested a copy of the report that Choi prepared. The request was refused. Plaintiffs’ attorney twice filed motions in the circuit court to produce the report, which were denied. At this point, plaintiffs’ attorney had his own expert inspect the basement.
The fact that Choi had removed parts from the basement was not immediately apparent because on the day of the fire the local fire chief had removed some parts from the basement. Two months before the original trial was to begin, Choi’s deposition was taken. The deposition revealed, for the first time, that Choi had lost the parts removed from the basement.
Based on the fact that the parts Choi removed were no longer available for inspection, the efforts of the plaintiffs’ expert to determine the cause of the explosion were impeded. Plaintiffs’ attorney concluded that without a more concrete finding by his expert, he possibly could not establish his case. Thus, the case was settled. However, Northern Propane Gas Company, insured by Continental, did not contribute to the settlement, and the case against it was dismissed with prejudice. After the original case was settled, plaintiffs instituted this suit.
The first issue on appeal is whether the trial judge erroneously failed to instruct the jury on the elements of damage which would have been at issue if the original suit had gone to trial.
Plaintiffs and defendants, Continental Insurance Company and Boynton Engineers, Inc., argue that because this was a derivative suit, the jury should have received the same instruction that would have been given in the underlying action. Defendants Dean Albrecht and General Adjustment Bureau argue that, since the original case did not reach trial, it is impossible to determine what instructions the original jury should have received and, therefore, the judge’s refusal to instruct the jury in regard to the original action was proper.
The plaintiffs’ theory of the case was that defendants’ conduct reduced the chances of a suitable judgment in the original case. In order for a jury to evaluate this claim, the plaintiffs had to establish that but for defendants’ actions they would have recovered a higher verdict in the initial suit than the settlement gained.
The trial judge recognized that the litigation involved two lawsuits, i.e., a "suit within a suit”. Yet, he failed to give the jury any guidance or specific instructions on the theories surrounding the original action. He instructed the jury on the interplay between the two lawsuits as follows:
"You are further instructed that you are to assume that in the first original case between the plaintiffs and the eight defendants that a jury, or the jury in that case, if it would have been tried and not settled, would have been properly instructed as to the plaintiff’s [sic] theories of recovery, the damages, and the defendant’s [sic] affirmative defenses of denial of any liability.”
Although usually the litigation of a "suit within a suit” arises in the legal malpractice setting, cases have found that the same rules apply to claims of negligence by insurance adjusters. Gay & Taylor, Inc v American Casualty Co, 381 SW2d 304 (Tenn, 1964). The general rule in the litigation of a "suit within a suit” was set forth in Basic Food Industries v Grant, 107 Mich App 685, 692; 310 NW2d 26 (1981):
"As another commentator has stated the matter:
" 'A client’s burden of proving injury as a result of his attorney’s negligence is especially difficult to meet when the attorney’s conduct prevented the client from bringing his original cause of action or the attorney’s failure to appear caused judgment to be entered against him as a defendant. In addition to proving negligence, a client must show that but for his attorney’s negligence he would have been successful in the original litigation; in effect, he must prevail in two distinct suits.’ Note, Attorney Malpractice, 63 Colum L Rev 1292, 1307 (1963). (Emphasis added.)”
The jury, in order to determine if the plaintiffs would have been successful in the original litigation, needed to be specifically instructed on the theories involved in the underlying lawsuit. We appreciate the difficulty a trial judge confronts in determining what instructions are properly presented to a jury in a "case within a case”. Nonetheless, the instructions the jury received here were vague and afforded the jury little guidance.
Chocktoot v Smith, 280 Or 567, 571; 571 P2d 1255 (1977), where legal malpractice was claimed, emphasized that despite some shortcomings in the system a jury in a "suit within a suit” must be regarded as the original jury. The court stated:
"The question is on what information the jury is to reach this conclusion.
"The answer seems easiest when the outcome in the first case which is at issue in the second itself depended upon a verdict, for then one can in effect let the parties argue the first case to the second jury. That is the practical answer, although it is not a wholly logical one if the question were really to reconstruct what the earlier jury would have done. What is done, in effect, is to substitute for that question the customary legal fiction of an 'objective’ standard, in this instance the probable behavior of a reasonable jury, and to let the second jury cast itself in that role.” (Footnote omitted.)
The parties requested the judge to instruct the jury on the theories in the underlying cause of action. The trial judge refused the request. Failure to instruct the jury on applicable, accurate standard jury instructions pursuant to a request is reversible error. Javis v Ypsilanti Bd of Ed, 393 Mich 689, 697; 227 NW2d 543 (1975); Socha v Passino, 405 Mich 458; 275 NW2d 243 (1979). Therefore, we find that the trial judge erroneously refused to give the relevant Standard Jury Instructions applicable at the time the original trial was scheduled.
Plaintiffs next claim that they should have been allowed to cross-examine the attorney who represented Northern Propane Gas Company in the underlying suit. MCL 600.2161; MSA 27A.2161 provides:
"Sec. 2161. In any suit or proceeding in any court in this state, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or pro ceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”
The trial court refused to permit plaintiffs to cross-examine the attorney concluding "that Mr. McCarthy is not an opposite party, neither an employee or an agent”.
Where no agency relationship exists, a judge’s denial of the right to cross-examine a witness is proper. Thompson v Essex Wire Co, 27 Mich App 516; 183 NW2d 818 (1970). However, attorney McCarthy’s testimony falls under the ambit of MCL 600.2161; MSA 27A.2161. Attorney McCarthy represented Northern Propane Gas Company during the underlying suit. Northern Propane Gas Company, represented by Continental Insurance Company, was an adverse party to plaintiffs because their best interests were in conflict. We find that the attorney was an agent of Northern Propane Gas Company in the role he played in the settlement negotiations. See Frazier v Hurd, 6 Mich App 317; 149 NW2d 226 (1967).
Defendants argue that despite the mandate of the statute, the judge’s ruling was proper, pursuant to MRE 611(a). MRE 611(a) provides:
"Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”
The general rule is that where a conflict exists between a statute and a general court rule, the latter prevails. In re Nathan, 99 Mich App 492, 494; 297 NW2d 646 (1980). However, the purpose underlying MCL 600.2161; MSA. 27A.2161 is to allow the truth to be brought out with great regularity. Ferguson v Gonyaw, 64 Mich App 685; 236 NW2d 543 (1975). This purpose is consistent with MRE 611(a). Moreover, MRE 611(c) specifically provides:
"Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”
We conclude that the trial court erred in denying plaintiffs the right to cross-examine.
Defendant Continental Insurance Company argues that the jury’s verdict cannot be allowed to stand because it is legally and logically inconsistent. The jury found Continental Insurance Company liable for negligently selecting Choi, an employee of Boynton Engineers. Dean Albrecht, of General Adjustment Bureau, not Continental Insurance Company, hired Boynton Engineers, Inc. Yet, General Adjustment Bureau was found not negligent for hiring Choi.
We agree that the verdict is inconsistent. Continental Insurance Company, who was further removed from the selection process than General Adjustment Bureau, was found to be negligent. General Adjustment Bureau was excused from any negligence. When an inconsistent verdict is delivered, a trial judge has the obligation to remedy the verdict with or without objection by the parties. Farm Bureau Ins Co v Sears, Roebuck & Co, 99 Mich App 763, 766; 298 NW2d 634 (1980).
Harrington v Velat, 395 Mich 359; 235 NW2d 357 (1975), involved an action against the City of Detroit and some Detroit police officers. A verdict was returned against the city but not against the police officers. The Supreme Court reversed the decision because the city’s liability was derivative. Harrington, supra, 360, stated:
"However, the general rule is that where a verdict in a civil case is inconsistent and contradictory, it will be set aside and a new trial granted.
" 'Ordinarily, a verdict may and should be set aside and a new trial granted where it is self-contradictory, inconsistent, or incongruous, and such relief should, as a rule, be granted where more than one verdict are [sic] returned in the same action and they are inconsistent and irreconcilable.’ 66 CJS, New Trial, § 66, pp 197-198.”
Farm Bureau Ins v Sears, Roebuck & Co, supra, 769, held that the proper remedy to correct an inconsistent verdict was "via further instruction and jury deliberation”.
Here, no action was taken to correct the inconsistent verdicts. The failure to ensure that the defective verdict was remedied requires that a new trial be granted.
The next issue plaintiffs dispute on appeal is that where the claim of intentional interference with economic interest was presented to the jury the judge’s refusal to instruct the jury on punitive damages was error. The defendants argue that plaintiffs’ challenge is unmerited: the requested instruction was a total misstatement of the law of damages in Michigan.
Plaintiffs’ proposed instruction reads as follows:
"If you find that any or all of the defendants intentionally or willfully interfered with the proper handling of plaintiffs’ earlier personal injury case in a wrongful manner, you may award punitive damages to the plaintiffs from any and all defendants who acted in such a manner.
"Punitive damages may be imposed to punish a defendant for wrongful conduct which is willful and intentional.”
The issue of the applicability of punitive damages usually is raised in actions for tortious interference with a contract. Yet, we find the same principles apply here to the rights of the parties undertaking litigation. Both situations are concerned with an economic expectancy.
In American Central Corp v Stevens Van Lines, Inc, 103 Mich App 507, 514-515; 303 NW2d 234 (1981), this Court stated:
"The terms 'punitive’ and 'exemplary’ damages have frequently been confused or used interchangeably. However, the focus of the two damages is different. Punitive damages are awarded solely to punish or to make an example of a defendant because of the malice or recklessness with which he acted. Wronski v Sun Oil Co, 89 Mich App 11, 27; 279 NW2d 564 (1979), lv den 407 Mich 863 (1979); Ray v Detroit, 67 Mich App 702, 704; 242 NW2d 494 (1976), lv den 397 Mich 828 (1976). Exemplary damages are awarded for injury to feelings and for the sense of indignity and humiliation suffered by a plaintiff because of injury maliciously and wantonly inflicted. Ray, supra. In short, the former focuses on 'punishing’ the defendant and the latter focuses on 'compensating’ the plaintiff.”
In Ray v Detroit, 67 Mich App 702, 704; 242 NW2d 494 (1976), this Court discussed the circumstances under which the award of compensatory damages is proper:
"The terms 'exemplary’ damages, 'punitive’ damages and 'vindictive’ damages have frequently been confused or used interchangeably. However, in Michigan only exemplary damages which are compensatory in nature are allowable. They are recoverable for injury to feelings and for the sense of indignity and humiliation resulting from injury maliciously and wantonly inflicted. Recovery is restricted to the party who has received the physical injury. They are never allowed, however, for the purpose of punishing or making an example of a defendant. Smith v Jones, 382 Mich 176; 169 NW2d 308 (1969) (concurring opinion of Justice Adams), Ross v Leggett, 61 Mich 445; 28 NW 695 (1886); McFadden v Tate, 350 Mich 84; 85 NW2d 181 (1957); Detroit Daily Post Co v McArthur, 16 Mich 447 (1868); Hyatt v Adams, 16 Mich 180 (1867).”
More recently, the Supreme Court also has provided that an award of punitive damages for punishing a defendant is prohibited in Michigan. Willett v Ford Motor Co, 400 Mich 65; 253 NW2d 111 (1977); Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980).
We agree with the defendants’ argument, namely, that the instruction represents a misstatement of Michigan law. Where the conduct is found to be intentional and the jury seeks to compensate plaintiffs for humiliation, sense of outrage and indignity, an award for exemplary damages is proper. However, the proposed instructions sought punitive damages for the purpose of punishing the defendants. Such an instruction, which requested that punitive damages be awarded solely to punish defendants, is not recognized in Michigan. See Willett v Ford Motor Co, supra; Kewin v Massachusetts, supra. The trial judge properly refrained from giving the requested instruction since it misstated the Michigan law of damages.
Plaintiffs and defendants raise a multitude of issues which may be disposed of summarily.
The defendants’ request for a directed verdict in plaintiffs’ cause of action for fraud and misrepresentation was granted. Plaintiffs claim that this was error because they established a prima facie case that Continental Insurance Company had a duty to divulge its conflict of interests. Defendants assert that the evidence showed no foundation for plaintiffs’ claim of fraud and misrepresentation.
A review of a motion for a directed verdict is made with "the proofs and reasonable inferences therefrom * * * viewed in the light most favorable to plaintiff”. Humenik v Sternberg, 371 Mich 667, 669; 124 NW2d 778 (1963). Following this standard, we find that the directed verdict was properly granted. Continental Insurance Company, aware of a conflict, made sure that the two claims were kept separate and that independent investigations were pursued. General Adjustment Bureau and Albrecht did not benefit from the alleged fraud or misrepresentation.
The granting of a directed verdict in favor of defendants was proper. The element of intent is required to support a claim of conversion. Thoma v Tracy Motor Sales, Inc, 360 Mich 434; 104 NW2d 360 (1960). This element was lacking where no evidence was presented to'establish that Choi intentionally lost the parts.
Plaintiffs argue that the trial judge erroneously granted defendants’ motion for a directed verdict on the claim of bad faith. The granting of the motion was proper. The plaintiffs base their argument on the breach of an alleged oral contract with Continental Insurance Company to share a mutual expert. The jury specifically found that there was no breach of a contract by Continental Insurance Company.
Defendant Boynton Engineers, Inc., alleges that the trial court erred in denying its motion for a directed verdict on plaintiffs’ claim of negligence against Boynton Engineers, Inc., because there was not sufficient evidence to conclude that the loss of the pertinent parts prejudiced plaintiffs’ initial case. If reasonable men could differ as to inferences drawn from the evidence, a directed verdict must be denied. Cryderman v Soo Line R Co, 78 Mich App 465, 480; 260 NW2d 135 (1977). Here, due to the loss of the parts, the plaintiffs were deprived of a conclusive opinion, formulated by their expert, as to the origin of the explosion. Therefore, the judge’s ruling on the motion for a directed verdict was proper.
The plaintiffs argue that the trial court erred when it excluded the testimony of the attorney for the contractor in the underlying suit.
The admission of evidence into trial is within the trial judge’s discretion. Jarecki v Ford Motor Co, 65 Mich App 78, 83; 237 NW2d 191 (1975). The judge’s ruling on the evidence offered will not be upset absent a clear abuse of discretion. Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959). We find that no abuse of discretion occurred here, where the attorney asserted the attorney-client privilege until the trial, thereby excluding the possibility of discovery by the defendants prior to the trial. Other attorneys representing other defendants in the original suit did testify at the trial.
Plaintiffs further assert that the trial court erroneously refused to allow an employee of Continental Insurance Company to testify. To repeat, the admissibility of evidence rests in the trial judge’s discretion. Aetna Life Ins Co v Brooks, 96 Mich App 310; 292 NW2d 532 (1980). Where large portions of the employee’s deposition were read into trial, it was not an abuse of discretion to preclude the live testimony of the employee. The evidence already was before the jury. The plaintiffs were permitted to examine the employee on nonrepetitive testimony.
The trial judge’s instruction to the jury on plaintiffs’ claim under the insurance policy for property damage coverage is appealed as constituting reversible error. However, the parties failed to object below, as required by GCR 1963, 516.2. Where a party fails to object below to an instruction, absent manifest injustice, the trial judge’s instruction will be upheld. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). No manifest injustice occurred here.
The limitation provision in the insurance policy, limiting the time for bringing a suit, is reasonable and therefore valid. See Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588, 592; 242 NW2d 396 (1976). The jury specifically rejected plaintiffs’ claim that the company waived the limitations clause.
During jury deliberations the jury asked two questions concerning the issue of contributory negligence. The defendants protest the judge’s response to the second jury question, claiming that his answers to identical questions were inconsistent. The second question, to which the judge answered negatively, inquired:
"Would a theory of contributory negligence on the part of the plaintiff in the first trial bar awarding any damages for defendants in the trial?”
The judge informed the attorneys:
"Well, I’m going to take the question in its literal sense. I’m not going to presuppose what they’re referring to or anything of that kind. * * * The court’s answer is, no. Your decision is to be based solely upon the evidence presented in the present case and the court’s previous instructions.”
The theory of a breach of an implied warranty was also at issue in the trial. A finding of contributory negligence would not preclude damages being assessed against defendant Continental Insurance Company on the theory of a breach of an implied warranty. Therefore, the trial judge’s ruling was proper.
Defendant Continental Insurance Company next contends that the plaintiffs’ claim of economic interference erroneously was submitted to the jury. Plaintiffs counter that the instruction presented clearly stated the applicable law and was properly before the jury.
A trial court is required to give the jury instructions that a party requests if they are applicable and accurately state the law. Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978). Evidence was presented during the trial which could support a finding that Continental Insurance Company did interfere with the plaintiffs’ rights. Therefore, it was an issue properly before the jury. We find no fault with the exercise of the trial judge’s discretion in presenting the instruction to the jury.
The instruction the trial judge gave to the jury on the issue of the existence of a conflict of interest is protested by defendant Continental Insurance Company as being misleading, because the trial judge did grant a directed verdict in defendant’s favor on this precise theory. Plaintiffs retort that the instruction merely outlined the duties imposed on the insurance carrier, and in no way prejudiced Continental’s case.
The instruction at issue provided:
"Now, you are further instructed that where an insurance company assumes the duty of defending claims against its insured, the company is deemed to have a fiduciary duty to its insured and, therefore, where a conflict of interest arises between the insurer, as agent, and the insured, as principal, conduct of the company will be subject to closer scrutiny than that of an ordinary agent because of the adverse interests.”
Although the instruction may not have been completely applicable, any error was harmless.
Lastly, defendants Boynton Engineers, Inc., and Continental Insurance Company contend that the doctrine of estoppel precluded the trial of this case because the parties had arrived upon a settlement. We reject defendants’ argument that no cognizable claims were presented at trial. The law of Michigan recognizes the tort of interference with economic relations. Wilkerson v Carlo, 101 Mich App 629, 632; 300 NW2d 658 (1980). Moreover, Choi’s misplacement of the parts did appear to be negligent.
For the above reasons, the case is reversed and remanded for a new trial.
Beasley, P.J., concurred. | [
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M. Warshawsky, J.
Plaintiff, Victor Herman, appeals as of right from an order of the trial court granting defendant’s motion for accelerated judgment, holding that plaintiff’s claims were barred by the applicable statute of limitations under GCR 1963, 116.1(5).
The standard for determining whether to grant a motion for accelerated judgment requires that all well-pled allegations be accepted as true and construed most favorably to the plaintiff. George v Petoskey, 55 Mich App 433; 223 NW2d 6 (1974). An accelerated judgment is properly entered where the claim is barred because of the statute of limitations. GCR 1963, 116.1(5). Where a factual issue exists, however, it is improper to grant a motion for accelerated judgment. Tonegatto v Budak, 112 Mich App 575; 316 NW2d 262 (1982); Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781; 311 NW2d 139 (1981); H Hirschfield Sons, Co v Colt Industries Operating Corp, 107 Mich App 720; 309 NW2d 714 (1981); Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976). See Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 3 Det C L Rev 397 (1976). The trial judge is not called upon to determine facts.
Examination of plaintiff’s complaint and deposition reveals the following asserted factual basis of plaintiff’s claims. Victor Herman alleges that in the summer of 1931, at the age of 16, he was an employee of the Ford Motor Company. Plaintiff alleges that the Ford Motor Company contracted with the Soviet Union through a Russian corporation to lend technical assistance in the erection and operation of an automobile plant. Plaintiff asserts that both he and his father executed contracts with the Russian corporation committing them to travel to the Soviet Union and be employed in the building and staffing of the automobile facility in Russia. He asserts that prior to the execution of the agreement, he was interviewed by Ford Motor Company engineers and personnel and that representations were made to him that Ford Motor Company would maintain a representative in the Soviet Union to oversee the involvement of1 Victor Herman and his co-workers with that country and to render necessary assistance to return him to the United States upon completion of his contractual obligations and termination of his employment in the automobile facility. Plaintiff alleges that Ford Motor Company had a special relationship with the Soviet Union at that time that would enable it to obtain permission for plaintiff to depart the Soviet Union upon request.
Plaintiff, his father, and other members of his family traveled to the Soviet Union in 1931. Upon arrival, the family members began work in the automobile plant in Gorky. Plaintiff, in his deposition, stated that he was arrested by the Russians on July 20, 1938, and accused by the authorities of spying for Ford Motor Company, although in his complaint, plaintiff alleged that he was arrested in 1937. Thereafter, plaintiff was exiled to Siberia and was otherwise detained by the Soviet authorities until 1976 when he was allowed to leave the Soviet Union and return to the United States. Plaintiff alleges that during the entire period, from his arrival in the Soviet Union until his return to this country, defendant was in breach of its obligation to him to have representatives available to assist him in his general welfare and in his departure from the Soviet Union. For breach of these obligations plaintiff claims damages.
The trial court initially entered an accelerated judgment in favor of defendant on August 3, 1978, on the ground the statute of limitations barred plaintiff’s claim. Plaintiff appealed as of right, and on November 13, 1979, this Court affirmed the trial court in an unpublished per curiam opinion, Docket No. 78-3295. This Court held that plaintiff’s tort action was barred in 1940, and his other causes were barred in 1943, there being no statute tolling the applicable statutes of limitations by reason of his imprisonment in the Soviet Union.
Plaintiff sought leave to appeal to the Michigan Supreme Court. The Supreme Court, in a tersely worded order, from which Coleman, C.J., and Ryan, J., dissented, reversed the lower courts:
"Leave to appeal considered July 15, 1980 and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the Court of Appeals and circuit court judgments and remand the case to the Wayne Circuit Court for further proceedings. The statute of limitations on plaintiffs tort and contract claims did not run while the plaintiff was imprisoned in a Soviet prison or was otherwise detained outside the United States by the Soviet government.” Herman v Ford Motor Co, 409 Mich 870 (1980).
Upon remand to the trial court, defendant again brought motions for accelerated and summary judgments. The trial court held that even if the statute of limitations was tolled when plaintiff was held by Russian authorities, his claims remained barred by the statute. We reverse.
The statute of limitations in effect in 1938 provided as follows:
"All actions in any of the courts of this state shall be commenced within six (6) years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however,
"2. Actions to recover damages for injuries to person or property shall be brought within three (3) years from the time said actions accrue, and not afterwards.” 1929 CL 13976.
We reject plaintiffs suggestion that the issue of whether the statute of limitations barred his ac tion could not have been raised by defendant after the Supreme Court’s order by virtue of the doctrine of the law of the case. See Edwards v Joblinski, 108 Mich App 371; 310 NW2d 385 (1981). The Supreme Court’s order expressly addressed only the legal issue of whether the statute of limitations was tolled while plaintiff was in Russian custody. The Court did not indicate which statute of limitations was applicable to any of plaintiffs claims, nor whether plaintiffs suit was barred by a statute of limitations.
We reject, as incorrect, the trial court’s conclusion that plaintiffs claims accrued on the day the contract expired in 1934. We reiterate what was said in our prior disposition of this case, and again conclude that plaintiffs causes of action accrued on the date of his imprisonment, alleged to be July 20, 1938, which we must accept as true for purposes of the motion:
"A cause of action based in contract arising out of a breach of duty accrues at the time of the actual act of [sic] omission. Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974). The pleadings in this cause do not definitively reveal the point in time at which plaintiff contends that Ford Motor Company failed to assist him in his departure from the Soviet Union and return to the United States. However, construing the pleadings most favorably for the plaintiff it must be assumed that in [1938] when the plaintiff was arrested and imprisoned by the Soviet authorities he would desire to depart from the Soviet Union for this country. According to the plaintiffs allegations the defendant’s failure to act under the contract at that time would constitute a breach of the contract. Therefore, the contract cause of action accrued in [1938] at the latest.
"The decision in Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), establishes the test for accrual of tort causes of action. In that case the Court stated:
" 'In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
" 'It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.’ Connelly, pp 150-151.
"Certainly an application of the method of accrual detailed in Connelly, supra, requires a holding that plaintiff’s tort action accrued in [1938] when he was imprisoned by the Soviet authorities.”
Given that plaintiff’s causes of action accrued on July 20, 1938, and that any applicable statute of limitations was tolled from that date until plaintiff’s release on February 15, 1976, the applicable statute would have run only a total of 28 months prior to the filing of the instant action on June 16, 1978. Regardless of whether the three- or six-year period of limitations applies, see Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977), plaintiff’s complaint was timely filed.
Defendant’s argument that plaintiff’s claim is also barred by MCL 600.5851(1); MSA 27A.5851(1), providing that a party has one year after a disability tolling the statute of limitations is removed to bring an action, ignores the language of MCL 600.5869; MSA 27A.5869. That saving clause mandates that the limitation of actions is governed by the law in effect at the time the cause of action, accrued, in this case, 1929 CL 13978, which provides that the period in which an action can be brought after a disability is removed is that of the original limitation in personal actions. See Head v Children’s Hospital of Michigan, 407 Mich 388; 285 NW2d 203 (1979), reh den 407 Mich 1165 (1980).
Reversed and remanded. | [
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R. B. Burns, P. J.
Defendant was convicted by a jury of carrying a concealed weapon. MCLA 750.227; MSA 28.424. We affirm.
A gas station attendant notified police that he had observed a pistol in the front seat of a car he had just serviced. The police stopped the car and discovered a .22-caliber pistol.
The defendant claimed that his sister left the pistol in the car and that he did not have any knowledge of the presence of the pistol in the car.
Defendant claims he was denied due process of law because the police failed to dust the weapon for fingerprints.
The cases cited by the defendant to substantiate his position deal with prosecutors withholding evidence to the detriment of the defendant. In this case, there was no evidence suppressed or withheld and defendant’s rights were not violated.
Defendant also claims that his rights were violated by the failure of the trial judge to advise him of his right to testify at his Walker hearing and that such testimony could not be admitted at a later trial. People v James Johnson, 26 Mich App 314; 182 NW2d 92 (1970), and People v Cooper, 39 Mich App 389; 197 NW2d 519 (1972), hold to the contrary.
The last claim of error raised by the defendant concerns the waiver of recording the final arguments of counsel. Both the prosecutor and defense counsel waived the recording of final argument. The defendant now argues that such a right cannot be waived except by the defendant personally. The defendant cites for authority, Hardy v United States, 375 US 277; 84 S Ct 424; 11 L Ed 2d 331 (1964), that a complete transcript is needed for effective appellate advocacy. The case did not consider the issue of whether or not counsel could waive transcribing of counsel’s argument. The Court of Appeals had allowed the defendant, an indigent, only a portion of the transcript. The Court held that the defendant, especially with different counsel representing him on appeal, was entitled to a complete transcript.
In Marsh v Barnard, 236 Mich 471, 477; 210 NW 478, 480 (1926), the Court stated, "If counsel desired the stenographer to take the argument he should have asked him so to do and perfected his record”. The case left the decision of recording final argument to counsel.
GCR 1963, 915.2(2) states:
"The stenographer who commences to record a case shall take the record of the entire case unless he shows good cause for failure to do so, or is otherwise excused by the trial judge.”
In the present case the stenographer was excused from recording final argument by the trial judge due to the stipulation of counsel. No error occurred, although in our opinion the better practice is to record final argument, especially in view of the numerous appeals wherein the appellant claims that opposing counsel indulged in prejudicial argument.
Affirmed.
All concurred. | [
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Holbrook, P. J.
Plaintiffs, neighboring residents of the defendant Tylers, sought an injunction against the defendant township to prevent it from rezoning the Tyler property so that it could be used as a mobile home park, and sought an injunction to prevent the Tylers or their grantees from placing mobile homes on the Tyler land. The trial judge denied the requested relief and plaintiffs appeal raising essentially six issues.
I
Could the Antwerp Township board validly pass an ordinance zoning the Tyler property when the property was in the unincorporated area of the township and three of the four members of the board present and voting for the zoning change resided in incorporated villages outside the unincorporated areas?
MCLA 41.102; MSA 5.151 gives "[e]ach inhabitant of any township, having the qualifications of an elector, * * * a right to vote on all matters and questions before any township meeting”. A qualified elector need only be a resident of the township for 30 days, and meet other Michigan constitu tional requirements to vote. MCLA 168.10; MSA 6.1010; Const 1963, art 2, § 1. MCLA 41.70; MSA 5.62 describes the membership of the township board, and provides that the township board shall consist of officers elected generally from the entire township. MCLA 168.342; MSA 6.1342 states that only qualified electors of the township are eligible to be elected to the township board. On the other hand, the township zoning board, which makes zoning change recommendations to the township board, must take at least two-thirds of its membership from unincorporated areas of the township. MCLA 125.274; MSA 5.2963(4). More importantly, MCLA 125.282; MSA 5.2963(12) provides the inhabitants of unincorporated areas the final say whether to accept or reject a proposed zoning ordinance for unincorporated township lands.
In essence, resident electors of unincorporated portions of the township are secured a powerful voice in the zoning of the areas they live in. Moreover, the township board, which appoints the township zoning board, could conceivably be made up entirely of residents of unincorporated portions of the township, since nothing prevents qualified electors from any part of the township from run ning for any township office. Simply because three of the four members of the township board, which authorized the change of the zoning ordinance in issue here, perchance happened to live in the incorporated areas of the township did not deprive plaintiffs of any of their constitutional or statutory rights.
II
Was the action of the Antwerp Township board invalid because it was not according to a statutory plan, was not in compliance with the township planning act, and was "spot zoning”?
There are really three parts to this issue. First, the objection is made that the record fails to show any attempt by the township to zone according to a plan as is required by the township rural zoning act, 1943 PA 184, specifically MCLA 125.273; MSA 5.2963(3), which reads in pertinent part: "The provisions of the zoning ordinance shall be based upon a plan designed to promote the public health, safety, morals and general welfare”. (Emphasis supplied.) The trial judge correctly pointed out that there is no requirement in 1943 PA 184 that the "plan” be written or be anything beyond "a generalized conception by the members of the board as to how the districts in the township shall be * * * used”. This "generalized conception” is exhibited in the zoning ordinance itself, since the document zones districts, prescribes variances, land uses, etc., for the entire township, and thus plans the township’s future development.
However, plaintiffs do not see the requirement for a "plan” only in the township rural zoning act (MCLA 125.273; MSA 5.2963[3] quoted above), but also in the township planning act (MCLA 125.321 et seq.; MSA 5.2963[101] (et seq.). Thus arises the second part of this issue, i.e., whether the provisions of the township planning act were complied with. Plaintiffs claim in their brief that pursuant to the township planning act the township board on April 14, 1970, created a planning commission and thereafter only it had the power to hold hearings and make zoning change recommendations to the township board, and these recommendations could not be made except on the basis of a written plan prescribed by the township planning act, which plan did not exist at the time of the zoning change in issue here. Even assuming a planning commission had in fact been created on April 14, 1970, MCLA 125.331; MSA 5.2963(111) gives the township board the option to transfer all powers of the township zoning board to the planning commission. In . addition, under this statute the township board must postpone for one year the transfer of the zoning board’s powers if the latter is nearing the completion of its zoning plan. Plaintiffs have not shown that the township board has transferred the zoning board’s powers, or demonstrated whether the one-year postponement was or was not in effect. This failure of proof precludes a favorable ruling in plaintiffs’s behalf on this question.
The third part of the issue is whether the rezoning of the Tyler land constituted "spot zoning”. The basic reviewing standard is that normally a zoning ordinance comes to this Court clothed with every presumption of validity, and it is the burden of the party attacking the ordinance to prove affirmatively that the ordinance is arbitrary and unreasonable. Midland Twp v Rapanos, 41 Mich App 75; 199 NW2d 548 (1972). "Spot zoning” has most recently been defined in SBS Builders, Inc v Madison Heights, 389 Mich 323, 327; 206 NW2d 437, 438 (1973):
" 'A zoning ordinance or amendment of the present type creating a small zone of inconsistent use within a larger zone is commonly designated as "spot zoning”. [Citations ommitted.] Such an ordinance is closely scrutinized by a court and sustained only when the facts and circumstances indicate a valid exercise of the zoning power.’ Penning v Owens, 340 Mich 355, 367; 65 NW2d 831, 836 (1954).”
While the plaintiffs alleged in their complaint that the rezoning action of the township board was arbitrary and capricious, plaintiffs introduced no real evidence to substantiate this allegation. On the other hand, there was testimony by a member of the township board that except for one 500-foot strip with one mobile home on it, there were no mobile home zones in the unincorporated area of the township. We are unwilling to second guess the township board’s legislative determination that allowing a new mobile home park in the unincorporated portion of the township would serve the general welfare of the community, at least not without countervailing evidence of arbitrary action by any of the township legislative bodies.
Ill
Was the rezoning of the Tyler property invalid because no public hearing was held as provided by the statute?
MCLA 125.284; MSA 5.2963(14) requires that a public hearing, when requested in writing by a property owner, shall be conducted by the township board prior to amendments to the zoning ordinance. This statute was enacted as part of 1943 PA 184. Plaintiffs have stipulated on appeal:
"21. That a request for hearing on Ordinance No. 17 was duly served upon the township on or about July 15, 1970 pursuant to 1943 PA 184, as appears in the ordinance book.
"22. That a hearing was held in answer to that request Wednesday, August 26, 1970.
"23. That there was no notice of hearing published or posted or served personally or by mailing of any notice of hearing of the meeting of the township board on August 26, 1970 on Ordinance No. 17, except a letter to William H. Culver and a notice published in the Courier Leader August 21, 1970, which said there would be a special meeting of the Antwerp Township board on August 26,1970, at 8 p.m.”
Plaintiffs cannot stipulate on appeal that a hearing was held and then claim in their appellate brief that a hearing was not held.
Plaintiffs’ further objection that inadequate notice was given prior to the township board’s public hearing is without merit. Plaintiffs assert that MCLA 125.279; MSA 5.2963(9) requires that notice of the hearing shall be given by two publications in a newspaper of general circulation in the township, but fail to note that this statute applies to hearings held by the township zoning board, not the township board. 1943 PA 184 does not speicfically indicate what the notice requirements are for a public hearing held by the township board. Clearly, some notice is required. Lake Twp v Sytsma, 21 Mich App 210; 175 NW2d 337 (1970). However, simply because two notice publications in a local newspaper are required for meetings of the township zoning board does not mean that two notice publications are a constitutional requirement. As long as the notice is reasonably calcu lated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections, constitutional requirements of due process are met. Robinson v Hanrahan, 409 US 38; 93 S Ct 30; 34 L Ed 2d 47 (1972). While publication might under some circumstancés not be sufficient for due process purposes, since here publication was coupled with notice to plaintiffs’ attorney, this Court deems it constitutionally adequate. See Brown v Shelby Twp, 360 Mich 299; 103 NW2d 612 (1960); cf. Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950).
IV
Do the mobile homes on the Tyler property violate the township building code or code for mobile homes, and, if not, does the discrimination made between the two codes violate constitutional guarantees of equal protection of the laws?
Plaintiffs argue that once a mobile home becomes immobile, has utilities attached to it, wheels removed, etc., it is like any other home in the township and therefore must meet the township’s building code applicable to permanent residences. The township has adopted a separate building code for mobile homes, which allows, for example, the ceiling in a mobile home to be a minimum of seven feet high, as opposed to the seven feet six inch minimum required of "permanent” residences by the residence building code.
We find no merit to this issue. Townships have long had the power to devise their own building codes for unincorporated portions of the township. See 1943 PA 185 (MCLA 125.351 et seq.; MSA 5.2973[1] et seq.). 1943 PA 185 was repealed and replaced by the State Construction Code Act of 1972, 1972 PA 230 (MCLA 125.1501 et seq.; MSA 5.2949[1] et seq., effective January 1, 1973). Pursuant to 1972 PA 230, a new statewide construction code is to be promulgated no later than January 1, 1974. MCLA 125.1504; MSA 5.2949(4). The new act specifically deals with mobile homes, requiring that:
"The standards for premanufactured housing shall be no less than the standards required for non-premanufactured housing except that mobile homes shall be deemed to have complied with this requirement by compliance with the state code provisions adopting a nationally recognized mobile home code.” MCLA 125.1508; MSA 5.2949(8).
Other provisions dealing with mobile homes in the new act are MCLA 125.1502 to 125.1519; MSA 5.2949(2) to 5.2949(19). The new act also provides that until six months after the new state code is promulgated "construction regulations heretofore or hereafter adopted by a county, city, village or township continue in effect”. MCLA 125.1524; MSA 5.2949(24). Rights acquired under existing construction regulations are saved as long as the regulations remain in effect. MCLA 125.1530; MSA 5.2949(30). The new act, therefore, represents in part a legislative recognition of the past power of townships to devise their own building codes according to the conditions and character of the township.
The new act also recognizes, through MCLA 125.1508; MSA 5.2949(8) and MCLA 125.1519; MSA 5.2949(19), that mobile homes are of a different character than "permanent” residences and therefore may be subject to different building codes. Plaintiffs object that treating "immobilized” mobile homes and "permanent” residences differ ently under varying building codes violates constitutional guarantees of equal protection of the laws. We disagree. Simply because statutes discriminate between certain classes, when the classes are not suspect ones such as race or sex, does not make the discrimination arbitrary or unreasonable if it is founded on a reasonable distinction. Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970). The Supreme Court of the United States has rejected the argument that equal protection of the laws is denied to landowners subjected to varying building code restrictions if the restrictions are rationally based. See, eg., Welch v Swasey, 214 US 91; 29 S Ct 567; 53 L Ed 923 (1909); Gorieb v Fox, 274 US 603; 47 S Ct 675; 71 L Ed 1228 (1927). We also find nothing in Const 1963, art 1, § 2 that prohibits the diverse classification of mobile homes versus "permanent” residences for building code purposes, as long as the classification is reasonably based. Pusquilian v Cedar Point, Inc, 41 Mich App 399; 200 NW2d 489 (1972). In any case, the party who assails the classification carries the burden of showing that it is arbitrary, a burden not carried by plaintiffs here. McDaniel v Campbell, Wyant & Cannon Foundry, 367 Mich 356; 116 NW2d 835 (1962), cert den, 371 US 968; 83 S Ct 551; 9 L Ed 2d 538 (1963).
V
Did the public notices given for the proceedings before the zoning board and township board satisfy the constitutional requirements for notice?
We have previously discussed the issue of whether notice was sufficient for the meeting of the township board. As for adequate notice preceding the township zoning board meeting, plaintiffs claim that lack of personal notice to adjoining landowners of the rezoned property violated due process requirements. While the amended version of MCLA 125.284; MSA 5.2963(14) now requires notice to adjoining landowners, the statute in effect at the time of the township zoning board hearing did not require such notice. To repeat, notice is adequate if reasonably calculated, under the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to be heard. Robinson, supra. The cases plaintiffs cite for the proposition that notice by publication is insufficient where the names and post office addresses of those affected are available are not on point, since they concerned "interested parties” who also happened to be either plaintiffs or defendants in judicial, not legislative, proceedings. Mullane, supra; Ridenour v Bay County, 366 Mich 225; 114 NW2d 172 (1962). We find no constitutional inadequacy in the notice given here.
VI
Was the recommendation of the township zoning board invalid because only two of the three members present at the hearing actually voted for the rezoning?
Only three members of the township zoning board were present at the public hearing held on the zoning change request, July 16, 1970. At the July 21, 1970 meeting of the township zoning board, four of five members of the board voted to recommend the rezoning of the property, but only two of those four had been at the public hearing held July 16, 1970. Plaintiffs claim, therefore, that no public hearing was held as is required by MCLA 125.275; MSA 5.2963(5).
We find this contention without merit. The statutory scheme does not require any set quorum for a public meeting of the township zoning board. A quorum for a meeting of the township boards is a simple majority, however, and we see no reason for a higher requirement for a meeting of the township zoning board, absent some statute to the contrary. MCLA 41.70; MSA 5.62. We note that a majority of the membership of the township zoning board was present at the public hearing held July 16, 1970.
Affirmed. No costs, a public question being involved.
All concurred.
The statute reads:
"Within 30 days following the passage by the township board or its rejection of such zoning ordinance, a petition signed by 15% of the persons residing in and owning property assessed for taxes located in the unincorporated portion of the township may be filed with the township clerk praying therein for the submission of such ordinance to the electors residing in the unincorporated portion of the township for their approval or rejection. Upon the filing of such petition, any ordinance passed by the township hoard shall not be invalidated until the same shall have been rejected by a majority of the persons residing in and owning property assessed for taxes located in the unincorporated portion of the township voting thereon at the next regular election which supplies reasonable time for proper notices and printing of ballots, or at any special election called for that purpose. The township board shall provide the manner of submitting any ordinance to the voters for their approval or rejection, and determining the result thereof.” (Emphasis supplied.) | [
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] |
Bashara, J.
Defendant was convicted by a jury of felonious assault by use of a dangerous weapon. Defendant thereafter pled guilty to a supplemental information charging him as a second offender under the habitual criminal act. He appeals of right.
This cause arises out of an incident which occurred at a shopping center in Kent County, Michigan. Defendant was accused by a store security guard of stealing a certain item of clothing. Some words were exchanged between the two individuals and defendant started to exit the store. A chase ensued involving the defendant, two store em ployees, and several customers. Defendant was eventually trapped in the parked car of a companion, the wires having been extracted to prevent him from driving away. After an attempted escape on foot the defendant returned to the safety of the car and sought to discuss matters with his pursuers. He emerged from the car but this time with a tire iron which he swung at the individuals nearest to him. No one was injured by these actions and defendant once again returned to the car interior to await the arrival of the police.
Defendant first asserts that the trial judge erred in failing to instruct the jury on a lesser included offense of assault and battery. Defense counsel did not object to the instructions as given nor request further charges on lesser included offenses. GCR 1963, 516.1, 516.2 would normally foreclose defendant from now alleging error on appeal, People v Maybee, 44 Mich App 268, 272-273; 205 NW2d 244, 247 (1973). However, we are cognizant of those decisions which have found reversible error where the trial judge has affirmatively excluded lesser included offenses from the consideration of the jury. People v Lemmons, 384 Mich 1; 178 NW2d 496 (1970); People v Herbert Van Smith, Jr, 388 Mich 457; 203 NW2d 94 (1972). The case at bar differs from both Lemmons and Smith, supra, as no request was made nor did the trial court affirmatively exclude lesser included offenses from the jury. People v Taylor, 44 Mich App 640; 205 NW2d 884 (1973); People v Carroll, 49 Mich App 44; 211 NW2d 233 (1973).
Defendant’s contention also fails when he asserts that assault and battery is a lesser included offense. It has been decided that the only lesser offense to felonious assault is simple assault. Peo ple v Richard Johnson, 42 Mich App 544, 546; 202 NW2d 340, 341 (1972).
Defendant asserts, as his second ground for reversal, that the trial court improperly emphasized the testimony of prosecution witnesses concerning the issue of self-defense. Once again the record is void of any objections to the instruction, although the trial judge invited comments by the respective counsel. The trial court’s comment on the positive nature of testimony by the prosecution’s witnesses was made within the context of explaining the defendant’s claim of self-defense. Examining the instructions and comment as a whole, we find no reversible error. People v Dye, 356 Mich 271; 96 NW2d 788 (1959); People v Roberson, 44 Mich App 105, 108; 205 NW2d 50, 52 (1972).
Defendant next argues that the trial court erred in accepting his guilty plea to the supplemental information charging him as a second offender without complying with the mandates of People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). A guilty plea, according to Jaworski, supra, must be set aside if the plea-accepting judge did not advise defendant of his right to a jury trial, his right to confront witnesses against him and his privilege against self-incrimination. The procedure for charging a defendant under the habitual criminal act, however, does not require advice of the Ja worski privileges. The act provides only that the court inform defendant of the allegations in the information and his right to be tried as to the truth thereof. The court is then statutorily mandated to require defendant to say whether he is the same person as charged in the information or not. It is only where the defendant pleads not guilty or remains silent that he has a right to trial by jury. In the instant case, defendant was informed of the accusations, of his right to counsel, and the right to trial by jury. He chose to waive these rights and plead guilty to the information charging him as a second offender. The procedure followed was all that was required by the act and we do not interpret Jaworski, supra, as applying to this particular sentencing proceeding.
A fourth issue raised on appeal was whether defendant should have been given credit for the time spent in jail between revocation and reinstatement of his bond. Error has been conceded by appellee in this regard and we agree. We therefore direct that defendant be credited for the 43 days he was incarcerated.
Affirmed in all other respects.
All concurred.
MCLA 750.82; MSA 28.277.
MCLA 769.10, 769.13; MSA 28.1082, 28.1085.
MCLA 750.81; MSA 28.276.
MCLA 769.13; MSA 28.1085 states in pertinent part as follows:
"[T]he court in which such conviction was had shall cause the said person whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information, and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person, or remains silent, the court shall enter a plea of not guilty, and a jury of 12 jurors shall be empanelled from the petit jurors serving at the then or a following term of said court to determine the issues raised by such information and plea. The accused may waive trial by jury in the manner provided by this act.” | [
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V. J. Brennan, J.
Plaintiff appeals from a decision of the Wayne County Circuit Court granting defendant’s motion for judgment notwithstanding the verdict (GCR 1963, 515.2) overturning an award granted to him by the jury of $550,000.
Hal F. Schulte, Jr., brought this action individually and as next friend of Roger A. Schulte who was injured when a long aluminum irrigation pipe, which he and two other boys were holding, contacted a 40,000-volt transmission line erected and maintained by defendant. The precise manner in which the accident occurred was not revealed at the trial because Roger, apparently suffering from partial amnesia as a result of the accident, was unable to recollect any of the events that occurred on the night of the accident. Evidence presented at the trial reveals, however, that the three boys attempted to erect a long aluminum pipe on a vacant lot owned by the City of Ann Arbor and used by the neighborhood children as a playground. In this attempt the pipe apparently contacted the defendant’s power line, killing one of the boys and severely injuring the other two. Roger suffered severe burns over portions of his body, had one leg amputated below the knee and had a part of his other foot amputated also.
In his complaint plaintiff alleged that the defendant was negligent for failing to use due care in the erection of the power lines, for failing to use due care in the maintenance of the power lines and for failing to warn the public that the power lines were high voltage transmission wires. Plaintiff also sought to hold defendant liable on counts of trespass and nuisance. After plaintiff closed his proofs, the trial judge directed a verdict against him but plaintiff was then allowed to reopen his case and present additional evidence. After both sides completed their presentation, the case was allowed to go to the jury who awarded judgment in favor of plaintiff for $550,000. The trial court then granted defendant’s motion for judgment notwithstanding the verdict.
The evidence presented at the trial reveals that the power lines were erected across the lot by defendant and that the lines were 40,000-volt transmission wires. Although the power lines were first proposed to be erected directly through the middle of the lot, they were subsequently located nearer its edge after a resident of the area informed defendant that the lot was used as a play area by children. Residents of the area also testified that they did not know that the lines were high voltage. No warning signs were posted either in or around the lot. On cross-examination, Roger admitted, however, that he knew that an electric transmission line crossed the lot and that he knew that such lines were dangerous.
Evidence presented at the trial also reveals that the lot on which the accident occurred had been used by the neighborhood children as a play area for approximately 18 to 20 years. Although the lot was not an official park or playground of the city, it was located adjacent to the Huron Municipal Golf Course and maintained by their personnel. The lot was owned by the City of Ann Arbor and acquired to create a buffer zone between the golf course and nearby residences. Mr. Sheldon Sproull, former Superintendent of Parks for Ann Arbor, testified that he was not aware that the lot was used for any purpose other than that of a buffer zone for the golf course. He stated that he went by the lot periodically and noticed that persons other than golfers were on the lot but that they were not often there. Residents of the area testified, however, that the lot was frequently used by children as an area on which to fly kites or model airplanes and as a general play area.
Plaintiff presented Mr. Edwin S. Cay, a landscape architect for the Department of Parks and Recreation of the City of Detroit, as an expert witness on the issue of safety in the construction of power lines oyer parks and playgrounds. He was not allowed to testify as to matters of electrical safety, however, because he was not qualified as an expert in this area. He was allowed to testify, though, without objection, that it was not customary to erect power lines across recreational areas. The plaintiff was also allowed to read into the record portions of a deposition of Mr. Paul M. Hoffrichter, a Service Planning Supervisor of the Detroit Edison Company. Mr. Hoffrichter stated that it was customary to avoid placing high power lines over areas used as parks by children, especially designated parks. On the other hand, defendant presented Mr. Allen Price, Director of Lines Engineering for Detroit Edison Company, who, in effect, testified that there was no custom with regard to the placing of power lines over play areas.
Summary dispositions of negligence cases are to be employed only in the clearest cases. Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970). In reviewing a trial court’s grant of a motion for judgment notwithstanding the verdict, this Court must view the facts and all legitimate inferences therefrom in the light most favorable to the plaintiff. Marietta v Cliffs Ridge, Inc, 385 Mich 364; 189 NW2d 208 (1971); Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965). If reasonable men could honestly differ as to defendant’s negligence on the facts presented, then it is error to grant a defendant’s motion for judgment notwithstanding the verdict. Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223; 123 NW2d 768 (1963); Sparks v Luplow, 372 Mich 198; 125 NW2d 304 (1963).
Defendant’s motion for judgment notwithstanding the verdict was granted by the trial judge because he said there was not any competent evidence on the issue of negligence to submit to the jury. The trial judge stated that there was no competent evidence presented on the issue of custom and, further, that evidence of the violation of a custom of the trade is not sufficient to allow the case to go to the jury.
Viewing the evidence presented in this case in the light most favorable to the plaintiff, we hold that it was error for the trial court to grant defendant’s motion for judgment notwithstanding the verdict. Testimony was presented from which the jury could properly have found that the defendant was negligent in constructing a 40,000-volt transmission line over property used as a playground. Evidence was presented from which the jury could have found that in placing the transmission wires where they did the defendant violated the custom of the industry.
We also disagree with the trial court’s statement that although violation of a custom is evidence of negligence, it is not sufficient for submission of the case to the jury. While the authorities which the learned trial judge cites support his statement of the law, they do not reflect the current state of the law in Michigan.
In Kawbawgam Hotel Co v Michigan Gas & Electric Co, 372 Mich 507; 127 NW2d 377 (1964), an explosion in the plaintiff’s hotel was caused by the ignition of gas which came from the defendant’s broken gasline. Defendant’s employees had earlier supervised an excavation and backfilling around the pipe. The only evidence of negligence presented was that the method of backfilling employed during the operation did not comport with the ordinary practice of the gas company. Our Supreme Court ruled that a judgment notwithstanding the verdict was improperly granted because a factual question of negligence was presented.
Fries v Merkley, 8 Mich App 177; 154 NW2d 50 (1967), is to the same effect.
We hold, therefore, that under Kawbawgam and Fries, supra, it was error for the trial court to grant defendant’s motion for judgment notwithstanding the verdict.
Reversed and remanded for proceedings not inconsistent with this opinion. Costs to the plaintiff.
All concurred. | [
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Peterson, J.
Pursuant to an agreement for consent election, the Michigan Employment Relations Commission held a representation election to determine a recognized bargaining representative of certain designated employees of Michigan State University. Prior to the election, the employer submitted to the commission a list of names and addresses of eligible voters pursuant to MERC Rule 45. The election failed to provide a majority for either the plaintiff, hereinafter called MSUEA, or intervening defendant, hereinafter called AFSCME, and a run-off election was scheduled for November 13-14, 1972. Although there had been considerable controversy, including litigation, preceding the election, no party ñled objections to the election.
On November 13, 1972, the employer produced a revised list of employees eligible to vote and challenged each employee from the original list who appeared to vote and whose name was not on the revised list. AFSCME challenged some of the same employees. In all, 179 employees were challenged by the three parties.
MERC Rule 46(2) authorizes challenge to the eligibility of the employee "prior to the time the voter casts his ballot”, and in accordance with that rule, the challenged ballots were marked and set aside, Rule 46 also provides:
"If it is determined by the board or its election agent that the challenged ballot, or ballots, is decisive of the result, the board shall determine the merits of any challenged ballot and decide whether or not the person is an eligible voter.”
A tally of the unchallenged ballots disclosed 634 votes for AFSCME and 617 for MSUEA. The 179 challenged ballots would thus be decisive of the result. Before scheduling a hearing under Rule 46 to determine the merits of the challenges, the commission scheduled a conference for December 12, 1972, to determine whether the matter might be resolved by informal means. At that meeting, the employer withdrew 87 of its challenges. Of this number, three had also been challenged by AFSCME which declined to withdraw its challenges and contended that the employer should not be permitted to withdraw its challenges. The commission permitted the withdrawal of the employer’s challenges, and counted the 84 ballots thus allowed. One was spoiled, 54 were cast for plaintiff and 29 for intervening defendant. MSUEA now had the majority of the ballots counted, 671 to 663, with 95 challenged ballots remaining.
A hearing on the merits of the challenges was scheduled for January 22, 1973. On December 27, 1972, however, the employer advised the commission that it would withdraw all of its challenges. The commission solicited comment from the interested parties, then determined that the question of challenge withdrawal should be formally heard and that the scheduled January 22nd hearing would be limited to the sole issue of whether the employer’s request to withdraw the challenges should be granted. Notice was given, the hearing was held, and the commission order followed finding that the employer was entitled to withdraw its challenges. AFSCME appeals on leave granted. It contends that once the right to challenge for eligibility is exercised, the commission must determine the merits of the challenged ballots if they are decisive to the election unless all parties agree to withdrawal of the challenges. It is further argued that to permit unilateral withdrawal of challenged ballots is an abuse of discretion and violative of the commission’s statutory mandate since its effect is to permit an employer by such withdrawal to confer representation voting privileges upon specifically excluded employees.
As to the latter, suffice it to say that for the practical purposes of an election, the voting eligibility of a particular employee is conceded by any party to the election, whether employer or prospective bargaining representative, who makes no challenge. AFSCME made such concessions by its failure to challenge. When the only party challenging withdraws that challenge, it is, at the least, exercising the choice it originally had of conceding voting eligibility. But something more is involved: the abandonment of a right to litigate questioned status, a right which the challenging party alone has invoked and which would thence appear to be peculiarly the right of the challenging party, absent unusual circumstances. Neither by that abandonment of right nor by an initial failure to challenge, can any party to the representation election be held to have affirmatively con ferred upon anyone a right to vote. And while it may appeal to the emotion to state the issue here as one of the employer conferring voting rights on ineligible employees, the right to challenge or not, and to withdraw a challenge, is not peculiarly that of the employer, but is identical for any of the parties.
Does a right to withdraw a challenge exist? This is apparently a case of first impression. While challenges to eligibility are provided by rule, there is no authorization for their withdrawal. Yet nowhere has it been held that a challenge, once made, can only be pursued and adjudicated. To the contrary, both parties note a practice existing in Michigan and elsewhere, which is not merely tolerated but encouraged, of allowing challenges to be withdrawn in the interest of resolving labor elections economically, expeditiously, and with finality. It was in the course of such practice that the commission-sponsored conference of December 12, 1972, was scheduled.
Nor are we cited to any opinion, judicial or administrative, as to whether a challenge by one interested party to the election can only be withdrawn by the consent of all parties. We see nothing useful to be accomplished by such a holding, only the potential for delay and burdensome administrative litigation. There is, after all, no reason why a challenger need rely on the challenge of another party, and a requirement that he make his independent challenge imposes no hardship. To require a party’s "affirmative assent to withdrawal of the challenge of another party is scarcely different than allowing a postelection challenge contrary to Rule 46(2) which requires challenge before the ballot has been cast. To that analogous point, both parties have cited NLRB v A J Tower Co, 329 US 324; 67 S Ct 324; 91 L Ed 322 (1946), where the Court held that a refusal to entertain postelection challenges was not an abuse of discretion by the National Labor Relations Board, saying:
"The fact that cutting off the right to challenge conceivably may result in the counting of some ineligible votes is thought to be far outweighed by the dangers attendant upon the allowance of indiscriminate challenges after the election. * * *
"We are unable to say, therefore, that the Board’s prohibition of postelection challenges is without justification in law or in reason. It gives a desirable and necessary finality to elections, yet affords all interested parties a reasonable period in which to challenge the eligibility of any voter.” Pages 331, 332-3..
The Michigan Employment Relations Commission has similarly exercised its discretion in Rule 46(2), requiring challenges to be made prior to the casting of the ballot. We think the commission’s general practice of allowing the withdrawal of challenges, although not formalized by rule, and its specific ruling here that such withdrawal may be made over the objection of another party to the election, are equally within the rationale of AJ Tower, and within the discretion of the commission.
That is not to say that in an appropriate case, the commission might not be presented with facts by a party objecting to proposed withdrawal of a challenge which would warrant the commission in refusing the right of withdrawal, or in the face of which it might be an abuse of discretion to permit the challenge to be withdrawn. We see no such abuse of discretion here.
Affirmed.
All concurred.
Much is made of this shortened list as not complying with the seven day requirement of Rule 45. The remedy, if any, lies in a protest of the election. And unlike the situation where a party is suddenly confronted with an expanded list, it is hard to see how AFSCME could be damaged thereby in exercising its challenges. The normal rule is that the burden of reviewing such lists and challenging is on the parties and not on the regulatory agency, sua sponte. Calcor Corp, 106 NLRB 539; 32 LRRM 1498 (1953); NLRB v Paper Art Co Inc, 430 F2d 82 (CA 7, 1970). Here there was ample time to investigate the original list and to determine whether any, including those omitted by the later list, were in fact ineligible and subject to challenge.
AFSCME was actually agreeable to withdrawal of part of the challenges. As to the remainder, its position was that a challenging party could not withdraw its challenge over the objection of the other parties.
And counsel for AFSCME claimed in oral argument that it should have the right to postelection challenge. | [
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Wiest, C. J.
February 13, 1932, in accordance with the provisions of. 1 Comp. Laws 1929, § 348 (Stat. Aiin. § 3.691), Howard C. Lawrence, treasurer of the State of Michigan, by agreement to such effect, designated the Capital National Bank of Lansing a depository for surplus State funds. As such depository the bank gave three bonds, aggregating $600,000, with the Central West Casualty Company surety thereon, with the condition in each bond to — ‘ ‘ pay over upon demand all moneys belonging to the said State of Michigan, and deposited with it by the said State treasurer in accordance with the said contract, to the said State treasurer, his successor or successors in office, or to any other person lawfully entitled to receive the same. ’ ’
The bonds also provided:
“It is mutually understood and agreed between the parties hereto that if the said surety shall so elect its liability for future actions or omissions of said principal may be terminated by giving 30 days ’ notice in writing to the said Howard C. Lawrence, as treasurer as aforesaid, or his successor or successors in office, and a like notice to the secretary of State and auditor general of said State; and the liability of said surety for the future actions or omissions of said principal shall cease at the expiration of said 30 days, the said surety remaining liable for all or any acts of commission or omission covered by this bond or said contract up to and including the date of expiration of said 30 days’ notice.”
It is stipulated that:
“The Capital National Bank of Lansing was open for the regular conduct of ordinary business on Saturday, February 11, 1933, until 12:30 p. m., but, on Tuesday, February 14, 1933, following the holiday of Lincoln’s birthday, it failed to reopen for the unrestricted transaction of all business, because of the proclamation of the governor of the State of Michigan of February .14,1933; the concurrent resolution of the senate and house of representatives of the State of Michigan, number 23, adopted Febru ary 20, 1933; the proclamation of the governor of the State of Michigan dated February 23, 1933; and an enactment of the legislature of the State of Michigan, known as Act No. 47, Pub. Acts 1933 (Stat. Ann. § 23.411), effective April 7,1933; and an enactment of the legislature of the State of Michigan, known as Act No. 73, Pub. Acts 1933 (Stat. Ann. §23.421), effective May 6, 1933; proclamation No. 2039 of the president of the United States, dated March 6, 1933 (see note to 12 USCA, § 95); procla-. mation No. 2040 of the president of the United States, dated March 9, 1933; executive order No. 6073, dated March 10,1933 (see note to 12 USCA, § 95); Federal legislation being 48 Stat. .at L. 2, § 4 (12 USCA, § 95). After 12:30 p. m. of February 11, 1933, the said bank never reopened for the unrestricted transaction of business.”
January 1, 1933, Theodore I. Fry became State treasurer, as successor of Howard C. Lawrence, and the pivotal question is whether the bonds obligated the surety thereon beyond the term of office of Mr. Fry’s predecessor.
The terms of the bonds answer the question in the affirmative, and there is no admissible reasoning to the contrary. The bonds expressly provide for accountability to the then “State treasurer, his successor or successors,” and, in case the surety cared to be released from future default of the bank it was provided that such should not be accomplished until after 30 days ’ notice in writing to the treasurer, or his successor or successors in office, as well as to the secretary of State and the auditor general.
Mr. Fry, by agreement with the bank on January 3, 1933, continued the bank as depository of surplus funds and, as treasurer, deposited and withdrew moneys.
Notice of termination of liability was given by the surety on January 13, 1933, but it is stipulated that default of the principal, the hank, occurred prior to February 13th and, therefore, it must be held that liability had attached before the notice of termination became effective.
Counsel for the surety company cite cases relative to the construction of surety obligations and undertakings but, as said before, the purpose expressed in the bonds here involved is too plain to admit of any other meaning than that so clearly stated therein.
The depository contract fixed the rate of interest on the deposits and such rate governs the obligation of both principal and surety in an action to have recovery. Lawrence v. American Surety Co., 263 Mich. 586 (88 A. L. R. 535).
After January 1, 1933, Mr. Fry, as State treasurer, entered into a depository contract with the bank, without new bonds, and made deposits and withdrawals and the surety invokes the doctrine of “first in, first out.” The doctrine is wholly inapplicable under our holding herein.
Full recovery of the deposits, less withdrawals, within the penal sums of the bonds and their pro rata clauses is adjudged and the declaratory judgment in the circuit court, being in line with this opinion, is affirmed.
Defendant surety company having appealed and the plaintiff State treasurer having filed a cross-appeal with reference to interest and now waiving the same, and a public question being involved, neither party will recover costs.
Butzel, Bushnell, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred. | [
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] |
McAllister, J.
Plaintiff sold fixtures to defendant on a title-retaining contract which provided that, upon default in payments by defendant, plaintiff had the right to enter upon the premises and retake the property.
After most of the fixtures had been delivered to defendant, plaintiff claims that defendant refused to take the balance provided for in the contract and refused to make payment in accordance therewith. Defendant alleged that plaintiff had been guilty of fraudulent representations and that he was damaged thereby in the amount of $3,000. Defendant further claims that no demand was ever made upon him by plaintiff for return of the property.
There is no question but that defendant did not pay according to the terms of the contract. The court submitted to the jury the question of whether a demand had been made by plaintiff. A verdict was rendered in favor of plaintiff, upon which judgment was entered. Defendant appeals, claiming that the court erred in refusing to rule that plaintiff, in order to maintain its action of replevin, must prove performance by it of the executory contract; that there was no wrongful taking or detention of the property by defendant; that the court erred in permitting plaintiff to waive its right to possession; that the court erred in permitting plaintiff to recover a money judgment as general damages instead of the judgment for the value of the goods at the time of the alleged detention; and that it was error to receive a general verdict.
It was not error for the court to refuse to instruct the jury that plaintiff could recover only on proof of its performance of the executory contract. Defendant was admittedly in default in the payments. Plaintiff claims that defendant refused to accept the balance of the equipment; to which claim defendant made denial. Title was in plaintiff and, by the terms of its contract, it was entitled to possession on default. On refusal of the defendant to permit plaintiff to retake possession, replevin was a proper remedy.
With regard to whether there was a demand made by plaintiff and a refusal of defendant to surrender the equipment, we are bound by the verdict and judgment for the reason that defendant included no testimony in the settled record. It appears, however, that this question was submitted to the jury.
On the trial, plaintiff waived return of the property and sought a judgment for its value. This was its right under 3 Comp. Laws 1929, § 14844 (Stat. Ann. § 27.1842), which provides:
“Whenever the plaintiff or defendant shall be entitled to a return or surrender of the property replevied, instead of taking judgment for such return or surrender as above provided, he may take judgment for the value of the property replevied. ’ ’
However, the case must be reversed for manifest error in the amount of the judgment.
Plaintiff relies upon the case of J. L. Hudson Co. v. Barnett, 255 Mich. 465, in which this court said:
“The difficult question in the case, however, is whether the judgment was for the correct amount. This is due largely to a lack of testimony in regard to the value of the goods. Either party had the right to show the amount of depreciation of the goods. The measure of damages in a replevin suit where there is no return of the property is the value at the time of the conversion, plus interest. Hanselman v. Kegel, 60 Mich. 540. The unpaid balance is ‘the measure of damages where the value is not otherwise determined and the value is greater than such balance. Johnston v. Whittemore, 27 Mich. 463. The measure of damages in such a case is the amount of the price unpaid, not, however, exceeding the value of the goods. Lacey v. Railway Co., 70 Mont. 346 (225 Pac. 808, 38 A. L. R. 1331); Dasher v. International Harvester Co., 42 Ga. App. 130 (155 S. E. 211); Reed v. Rowell, 100 Vt. 41 (134 Atl. 641); Winton Motor Carriage Co. v. Blomberg, 84 Wash. 451 (147 Pac. 21); Wright Motor Co. v. Shaw, 171 Ark. 935 (287 S. W. 177).”
In the instant case, the facts are not the same as in the Hudson Case. The declaration alleges that the defendant agreed to pay $2,060 for the property specified, and sets up the contract, so providing, as part thereof. On the date on which the sale contract was executed, as far as appears from the record, defendant sold plaintiff the old fixtures in the store for the sum of $294.50. The record is scanty on the nature of this transaction, as the case is before us with no transcript of testimony. Plaintiff claims, however, that the price of the property to be sold to defendant was $2,294, and that the sale by defendant of the old fixtures at $294.50 was in the nature of a down payment or part of the purchase price; that the written contract was executed after such understanding, providing for a sale price of $2,060 after giving defendant credit for the old fixtures. Defendant claims that the purchase price of the new fixtures was $2,060; that the sale of the old fixtures was subsequent to the written contract, and that defendant should be allowed a credit of $294.50 on the purchase price as set forth in such contract.
Assuming, plaintiff’s claim to be correct for the purpose of our determination, defendant was en titled to a credit of $294.50 upon the amount of $2294, claimed as the original purchase price by plaintiff, leaving a balance of $1,999.50, to be paid by defendant. Upon this amount defendant paid $560 leaving a balance under the contract of $1,439.50. But it is admitted by plaintiff that equipment specified in the contract of the value of $487 was not delivered to defendant, it being alleged that defendant refused to accept it. Plaintiff could not recover for this equipment in replevin, although he claims that he was holding it for defendant. Replevin, by 3 Comp. Laws 1929, § 14815 (Stat. Ann. § 27.1813), lies only when goods or chattels have been unlawfully taken or unlawfully detained. It will not lie unless there was an' unlawful taking or detention. LeDuc v. Beechler, 252 Mich. 633. The gist of the action of replevin is an unlawful taking or detention at the time of the institution of the suit. Plaintiff elected to take judgment for the value of the property. Such judgment may be taken only for goods in defendants’ possession at the time suit was brought. Hinchman v. Doak, 48 Mich. 168. Goods not in defendants’ possession at the time of the institution of suit may not be recovered in replevin and their value may not be recovered in such action. Reid, Murdoch & Co. v. Parks, 122 Mich. 363. Instructions and a verdict permitting a recovery in replevin for property which had not been received by defendant would be error.
The jury, however, in a colloquy with the court at the time the verdict was rendered, stated that it did not include in its verdict in favor of plaintiff any damages for the property in plaintiff’s hands which had not been delivered to defendant. But the fatal error was in not crediting defendant on the contract purchase price with the value of the undelivered property; and in using the unpaid balance of the entire purchase price as the measure of damages for the lesser portion of the property represented by that price. Defendant, therefore, at the time of replevin, was holding property worth $2294, less $487 (the value of the undelivered equipment), or property worth $1,707; upon which he was entitled to credit for $560 paid in cash, and $294.50 which plaintiff had allowed on the old equipment; or a total credit of $854.50. The unpaid balance of the purchase price of the property held by defendant at the time of replevin would therefore be $852.50. Under defendant’s claim that he was entitled to the deduction of $294.50 from the price in the written contract rather than from the price as alleged in a prior agreement, the unpaid balance on the property held by defendant at the time of replevin would be $558. The verdict was in the amount of $1,382.68. Under the theory of either plaintiff or defendant, such verdict was manifest error.
The distinction between J. L. Hudson Co. v. Barnett, supra, and the instant case is that, in the Hudson Case, all of the property represented by the purchase price had been delivered to defendant. Since the value of the property was not otherwise determined, the measure of damages was held to be the amount of the purchase price unpaid, not, however, exceeding the value of the goods. In the instant case, part of the goods was not delivered. In such a case, if the value be not otherwise determined, the measure of damages is the amount of the price unpaid upon the property which the defendant in replevin has received, not exceeding the value of such property. The measure of damages in such a case is not the amount of the entire purchase price of the property sold in the contract, including the property received by defendant in replevin as well as property not delivered to him.
Complaint is made of the general verdict of the jury. Such a verdict was not, in form, an assessment of the value of the property at the time of conversion. In replevin, where the value is otherwise undetermined and the verdict corresponds to the unpaid purchase price of the property withheld by defendant, not exceeding the value thereof, such verdict amounts to the same result as an assessment of the value of the property. Under such circumstances, the form of the verdict was not objectionable.
For the reasons herein set forth, the judgment is reversed and a new trial granted, with costs to defendant.
Btjtzel, O. J., and Wiest, Btjshnell, Sharpe, Potter, and Chandler, JJ., concurred. North, J., took no part in this decision. | [
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Wiest, J.
John and James Hacker are brothers and each is above 80 years of age. For years they owned neighboring farms, and the bill herein was filed by John against his brother and wife to have an accounting under the claim that James, throughout the years, acted in a fiduciary capacity for plaintiff and deposits by James in various banks represented money belonging to plaintiff, and that defendant’s wife held title to real estate, subject to a parol trust and, therefore, money she received from the sale thereof should be accounted for as belonging to plaintiff.
The circuit judge decreed that money deposited in certain banks by James belonged to John, and found James and his wife indebted to John in three amounts specified.
Appeal is by defendants. Plaintiff not having appealed, the issues here are limited to the items allowed in the circuit court.
Counsel for plaintiff claims that James “was a self-appointed guardian of John and that John submissively consented to the skill, better judgment, and experience and honesty of his older brother. ’ ’
Under the theory of a trust relationship between these parties we are asked to review their affairs over a period of nearly 40 years.
April 28, 1909, James J. Hacker was appointed guardian of Sophia Lorens, an incompetent, in the probate court for the county of Sanilac. His annual account as guardian, filed in January, 1911, showed $6,042.18 in bank deposits. Sophia Lorens died September 21,1911, and James J. Hacker was appointed executor of her estate and, as such, his final account was allowed on January 13, 1912, and, in accordance with her will, the estate was assigned to' James J. and John C. Hacker in equal parts. James J. Hacker, however, retained the whole estate and filed plaintiff’s satisfaction of his share. This express satisfaction by John was in fulfillment of an agreement theretofore made between the brothers. The aunt, in consideration of the nephews, John and J ames Hacker, providing her a home and care, executed a will in December, 1897, devising to them her estate. The aunt first went to live at the home of plaintiff. Plaintiff was then living with his second wife, whom he had married in 1890, and what then happened is well set forth in plaintiff’s sworn answer to a bill for divorce by his wife, filed January 25, 1912, within 12 days after the estate of the aunt had been closed, in which bill it was charged that John, her husband, for the purpose of depriving her and her children of rights had, in pursuance of a conspiracy with his brother James, turned his share in the estate of his aunt and certain real estate over to James. John C. Hacker was granted a divorce on his cross-bill. We quote from that sworn answer and cross-bill the following:
“Said; complainant’ * * * would not keep .the house in such condition as to provide a fit home for your orator’s aunt, said Sophia Lorens, thus making it impossible for your orator to carry out his part of the aforesaid arrangements with his said aunt, and while he at first had made arrangements with his said brother, James Hacker, to provide for said children (four young children of his first marriage) for a fixed sum per week, he finally found that it became and was impossible to carry the burden thus placed upon him, whereupon he was forced by said conduct of complainant to arrange with his brother, James, for his said brother, James Hacker, to assume all of your orator’s obligation to his said aunt and to care for, and support and educate the aforesaid four children of your orator and in payment thereof said James Hacker was to receive your orator’s full inheritance, whatever that might be, from the estate of said aunt, Sophia Lorens, which said arrangement has been fully carried out by all parties to the same, and after the death of said aunt, said arrangement being fully completed, your orator received no part of said estate, your orator’s share which would have amounted to about $2,000, only for the aforesaid contract, was retained by the said James Hacker, who was executor of the estate, in full payment and satisfaction of the aforesaid contract, your orator receipting therefor that the estate of the said Sophia Lorens might be closed.”
James cared for and educated plaintiff’s four children until they reached ages of self-care and support, and cared for and supported the aunt until her death.
The decree below awarded plaintiff $4,539.52, evidently computed as his share of the aunt’s estate, with interest. In so far as traceable to that estate the award is reversed and such part, if any, not so traceable cannot be recovered in this suit.
During the years here involved John was not a mental incompetent, nor is such claim made, but rather that he Was frugal, industrious and mentally capable of managing his own affairs, had he cared to do so. The dealings between plaintiff and defendants were a matter of choice on the part of John, not induced by fraudulent purpose on the part of defendants, and stand without the essentials required to constitute the relation an “equitable wardship” or trust rendering defendants accountable in the court of equity.
Deposits by James, with certificates made payable to “James J. Hacker” or “John C. Hacker,” or to “James * * * or in the event of his death to John,” were at all times the deposits of James, subject to his control in reissuance or withdrawals and carried no evidence of fixed rights therein in plaintiff upon which to base a holding of conversion by James of money belonging to John.
In April, 1924, Carolena Tanner, daughter of plaintiff, and Charles Tanner, her husband, wanted to purchase 80 acres of land, with title thereto standing in defendants, under deeds from plaintiff and, on April 30, 1924, defendants, for a consideration of $2,500, conveyed the premises to the Tanners by warranty deed. Plaintiff was present when the money was paid to James and made no claim of right thereto.
It is now claimed, in behalf of plaintiff, that defendants held the title for his benefit under a verbal agreement, and the court below so adjudged and awarded plaintiff a certificate of deposit found to represent $1,469.63 of the purchase money.
In 1912, in his sworn answer to the bill of complaint of his then wife for divorce, plaintiff averred:
“This defendant admits that he has been industrious all of these years and has raised some cattle, but never by the aid of said complainant who has always been- a detriment to this defendant and her endeavors have invariably been to work in every manner against the interest of this defendant in his attempts to accumulate property for complainant, this defendant and their family. He denies that he has ever turned any property over to his brother, James, in pursuance of any conspiracy or deprived said complainant of any rights therein, or for any other purpose whatsoever, except as such as he has sold to his said brother, James, or as belonging to his said brother.
“This defendant denies, as he has heretofore denied, any conspiracy whatsoever, and verily believes he could have been worth some property had he never mot complainant, or had complainant performed her duties as a wife and not squandered their property in divers manners and particularly in instituting divorce proceedings.
“This defendant has no knowledge of what said complainant may have been informed but alleges the truth and fact to be that said complainant well knows that she urged upon this defendant to sell said 40 acres of land and went herself to see the brother of this defendant, James Hacker, and urged him to buy this land, and it was to please the whims of said complainant that this defendant consented to and did sell the same to said James Hacker, and to carry out said sale said complainant went with said defendant to the office of a justice of the peace to make’said deed.”
We will not extend this opinion by the recital of other evidence, clearly showing that plaintiff deeded property to defendants and vested title thereto in fee simple.' Such being the case no trust or verbal reservation thereover existed or could be impressed by the court. The statute of uses and trusts, 3 Comp. Laws 1929, § 12967 et seq. (Stat. Ann. § 26.51 et seq.), and the statute of frauds, 3 Comp. Laws 1929, § 13411 (Stat. Ann. § 26.906), forbid. A trust in real estate cannot be established by parol evidence. As between the parties the deed, if in fee simple, con trols. Longe v. Kinney, 171 Mich. 312; Funk v. Engel, 235 Mich. 195; Hewelt v. Hewelt, 245 Mich. 108; Elson v. Elson, 245 Mich. 205.
There is no evidence of mistake or fraud and nothing upon which to predicate a resulting trust.
The testimony of the brothers, because of their ages and mental infirmities, is not helpful. Claimed casual remark by James that money in a bank in his name belonged to John constitutes the weakest of evidence and, under the circumstances here disclosed, is of no decisive importance. The fact that James accumulated a considerable estate and John has little or nothing cannot lead to a division of James’ property in behalf of John, especially considering the claim John made in 1912, when his second wife applied for a divorce, and he made answer that on account of her extravagances he had lost practically all of his property.
We are unable, from this record, to find James possessed of any moneys belonging to John.
Upon due consideration of the whole record and applicable law the plaintiff made no case justifying the decreed awards, and the decree is reversed and the bill dismissed, with costs to defendants.
Bushnell, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred. Butzel, C. J., did not sit. | [
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McAllister, J.
On September 23, 1936, plaintiff, a woodchopper, suffered an injury to his right eye, necessitating its removal. The accident occurred in the course of his work, and resulted from a piece of steel breaking from a wedge and striking his eye. He made application for compensation under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq. [Stat. Ann. § 17.141 et seq.]). The defense was that at the time of the injury plaintiff was not an employee of the defendant, but was an independent contractor. On hearing before the deputy commissioner, compensation was denied on the ground that plaintiff was an independent contractor; but on review the department found that the relation between plaintiff and defendant was that of employee and employer, and awarded plaintiff compensation at the rate of $7 per week for a period of 100 weeks for the specific loss of his right eye.
Plaintiff testified that he came upon the premises of defendant and asked the “strip boss” for a job cutting wood. He was employed and told where he was required to cut the wood and how much was to be cut. Plaintiff further testified that he was working under the instructions of a foreman called a “strip boss,” and was working where such foreman showed him to work. He also stated that he was told how to cut the wood. Defendant’s foreman testified that when a man did not do his work properly, he was discharged. Plaintiff was paid according to the amount of wood he cut; the foreman would come around during the cutting and tell plaintiff not to put any crooked limbs in the piles, how long to cut it and how to split it. He was paid every Saturday night, at the time when all the employees of defendant were paid.
On the hearing, defendant introduced in evidence a printed contract form apparently used on some occasions by defendant company. It provided for the cutting of wood by contract; contained stipulations as to the contractor furnishing his own tools; and required a two-day notice of termination of the contract. It was not claimed that plaintiff had signed such contract, nor had it been presented to him before he was given the job. He was asked by the deputy commissioner:
“Q. But are those the same terms and conditions you were working under at the time of the accident?
“A. Yes, sir, about the same.”
Such contract was insufficient to prove that the relation of independent contractor existed. It was not claimed that plaintiff signed the card or was even •shown it before starting his work. His answer that the terms of his work were “about the same” has no probative value. One contracts with regard to certain terms and not on terms “about the same” as that of some other contract.
“Whether or not the relation of master and servant exists in a given case, under oral contract, is often a question of fact, or of mixed law and fact.” Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 400 (Ann. Cas. 1918 C, 664).
)“The courts have declared several factors as in-dices of an independent contract, among them a fixed price for the work to be done and the specific and limited character of the work, Hone of them, however, conclusive. The basic test is that the employer’s right of control of the workman extends only to the results to be accomplished by him and not to the method or means of accomplishment.
“The work here involved is of a character which is ordinarily not the matter of an independent contract at least when the employer provides the transportation of the furniture. It is usually common labor over which the employer retains the right of full control.” Hamilton v. J. Kelsey McClure, Inc., 278 Mich. 307.
In Salmi v. New Era Life Association, 276 Mich. 457, the court after discussing the contradictory claims and conflicting evidence of the parties as to the nature of the employment, said:
“Notwithstanding such testimony, we still find under this record that a question of fact was presented for the determination of the department of labor and industry as to whether plaintiff at the particular time and place was acting in the capacity of an employee or that of an independent contractor or representative of defendant company. Under such a record on review by certiorari the determination of the department of labor and industry is binding upon this court.
“ 'The difference between an independent contractor and a mere servant is not determined solely by the retention of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole, by its spirit and essence, and not by the phraseology of a single sentence or paragraph.’ Foster v. City of Chicago (syllabus), 96 Ill. App. 4.
“ 'Department of labor and industry may draw inferences from the faets and circumstances in determining whether relation of employer and employee or that of independent contractor existed.’ Glenn v. McDonald Dairy Co. (syllabus), 270 Mich. 346.”
In Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89, it was said:
“An apt case illustrative of the common-law distinction between an independent contractor and an employee, under circumstances similar to those in the case at bar, is Waters v. Pioneer Fuel Co., 52 Minn. 474 (55 N. W. 52, 38 Am. St. Rep. 564). In that case the owner of a team and running gear of a wagon applied for work and had work for about three months delivering coal, was paid 35 cents per ton for delivering and received his pay each week. He was not sure of business every day, could quit at will, loaded the coal and delivered as directed, collected the money for it, procured receipts showing delivery, and returned the money and receipts to the company. In an action by a third person against the company to recover for injuries occasioned by his negligence, held that he was an employee and not an independent contractor.”
In Bradley v. Republic Creosoting Co., 281 Mich. 177, the court was called upon to pass upon the question of whether in a case in which the facts included indicia of the relation of master and servant, as well as that of independent contractor, the determination was a question of fact or law:
“The defendant had logs at different farms. It engaged plaintiff to haul them to its plant at a price of $6 per 1,000 feet for a 20-to-30-mile haul, $7 for a 30-to-40-mile haul, and $8 for a haul of over 40 miles. Plaintiff furnished a truck and hired a helper whom he paid. After he was injured, his helper continued the work and plaintiff received the agreed payment from defendant therefor.
“These are incidents of an independent contract but are not conclusive. Begovac v. Northwestern Cooperage & Lumber Co., 264 Mich. 508; Eber v. Bauer, 252 Mich. 571; Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89; Brower v. W. H. Isgrigg & Son, 216 Mich. 365; Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918 C, 664).
“On the other hand, defendant filed report of the accident, as compensable and described plaintiff therein as employee. Plaintiff was not engaged to haul a specified quantity of logs; nor was a time fixed for performance of the work. He could have quit the job or could have been discharged at any time. These are indices of an employment.
“The other testimony presents no definite and controlling incident of either relationship. In a general way, plaintiff’s instructions were to finish hauling the logs from one farm and then go to another, and to haul as rapidly as possible. Defendant engaged others to help in loading the logs and sometimes in unloading them. It told plaintiff where to get logs and, on delivery, where to put them in the yard. The directions were not inconsistent with employment or independent contract.
“Under the testimony, it cannot be held as a matter of law that plaintiff was an independent contractor and the award must be affirmed.”
In Warner v. Fullerton-Powell Hardwood Lumber Co., 231 Mich. 328, in a case involving the question now before us, it was held that plaintiff was an employee rather than an independent contractor:
“The contract of the parties was oral and provided for compensation at the rate of $10 per thousand feet. Plaintiff was to use his own team and equipment, and was usually paid every Tuesday after the logs were scaled. It appears that plaintiff worked when he pleased and laid off when he pleased. He could draw a large or a small load, and select his own highway. It appears that the defendant lumber company directed where and how the logs should be unloaded and piled in the railroad yard, and directed what logs should be hauled. It also had the right to terminate plaintiff’s employment at any time and to direct that no work should be done on certain days. The contract did not provide that plaintiff should haul any definite number or amount of logs, and Mr. Cochrane, who had charge of the business, testified that plaintiff had no authority to hire another man and team in his stead, or to hire an additional man and team.
“The question of determining whether plaintiff was an employee or an independent contractor is one not without difficulty, as is usual in such cases. Plaintiff, when at work, appears to have been treated very much like the other employees that were driving the company’s teams, except the fact that the company did not direct the number of loads nor the size of them which should be drawn daily by him, nor did it provide that he should work every day. The manner of paying plaintiff by the thousand feet made the company rather indifferent to these details. In the essentials the company appears to have controlled. It directed what logs should be drawn, where they should be drawn to and how they should be piled. It selected its own time for scaling the logs and making payment for the hauling. There was no definite amount or number of logs to be hauled, as is usual in cases of independent contract. The question as to how long plaintiff was to work and whether he should work at all were also reserved by the company. And it would have been no violation of the contract if plaintiff had quit at any time. It appears that plaintiff had no right to substitute another team for his own, nor to employ an additional man and team. We think there is enough in the testimony to support the conclusion of the board that plaintiff was an employee, although the case is a close one.
“Defendants are of the opinion that this case ought to be ruled by Polka v. Lynch Timber Co., 227 Mich. 606. It is similar in that in both cases plaintiff was paid not by the day but by the amount of work he did. They differ, however, in this: In the Polka Case the amount of work to be performed was definite, and Polka could employ what labor he chose to assist him. He was under obligation to do a stated amount of work, and could not be legally discharged if he were doing his work according to contract. These elements were not present in the case at bar.”
In Begovac v. Northwestern Cooperage & Lumber Co., 264 Mich. 508, the court having before it a question similar to that in the instant case, said:
“Plaintiff was a piece worker, cutting logs at a stated sum per log, varying with the size of the timber. The relationship had some of the elements of an independent contractorship, such as that plaintiff was paid by the piece; that he furnished his own tools; that he engaged a partner to work with him; and that he was given a strip of timber to cut. Kimberg v. Murray, 233 Mich. 543; Donithan v. Michigan Iron & Chemical Co., 227 Mich. 609. On the other hand, there were indices of the relationship of employer and employee from testimony that the camp boss required piece workers to begin work each day when the crew started, that the boss could discharge them before they had finished their strips, that if they wanted to quit they would be paid and let go, that they were moved from one strip to another or to general timber before they had finished the first, that after plaintiff was hurt the foreman would not permit his partner to get a man to help him and continue the work because there were too many logs ahead, and he placed him on other day’s work, and that plaintiff had been paid compensation on a former occasion when working under similar arrangement. Conrad v. Cummer-Diggins Co., 224 Mich 414; Dominic v. Faucett, 245 Mich. 337.
“The case presented an issue of fact for the department, and its decision is final.”
In Tuttle v. Embury-Martin Limber Co., supra, plaintiff’s decedent was engaged in hauling logs for defendant when he met with an accident causing his death. In his work, he furnished his own equipment consisting of a team, was paid $2 per thousand for the logs he hauled, worked when he wished to, determined the size of the loads he hauled, and was under no control while hauling, except that in loading he drove his team ahead or backed up, according to the directions of the foreman. Further, he did not live in camp under the supervision of the foreman and was not required to unload the logs as were employees of the company; and he could be discharged at will. In holding plaintiff’s decedent an employee rather than an independent contractor, the court said:
“We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cye. p. 1547.
“In our opinion there was such control over the work of Tuttle, by the company, as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to terminate it at any time, and it was for no definite period or amount. The loading and unloading were under control of the company, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, but that was true of all the drivers, whether working by the month or the thousand.
“The most that can be said for the respondents is that, upon the evidence in the record, it might be for a jury to say, under proper instructions, whether the company participated and directed in the work of Tuttle to such a degree that the relation of master and servant existed, or whether he was an independent contractor.”
No specific factor of control appears to be conclusive as differentiating the relation of master and servant from that of independent contractor. It lies in the extent or degree of control exercised; and this is to be determined often, from the nature of the work or service to be performed, and the manner in which it is carried out. The fact that the work or service can be considered a definite entity in itself, that the task has a contour which makes it a distinct and complete operation — a whole rather than a segment, may be an indication of the nature of the relationship. The fact, also, that it can be treated as an undertaking to be carried out by another than the party to the transaction, indicates that the supervisory control is not exercised to the same degree as it would be over the party to the agreement; for it would be expected that third parties would be supervised by the original party undertaking performance, and that the same degree of control or supervision would not be exercised in carrying out the agreement, over the party undertaking to have the service performed, as it would be in case he had actually performed it himself. The status of one who employs others to do the work which he agrees to perform recedes from the relation of servant and approaches that of a contractor. The terms of payment, whether in a lump sum or on the basis of time required, may indicate a difference between independent contract, and wages for employment. The direction of the work — whether a party could be discharged at will— whether he was subject to carry out the work at specified times — bear upon the degree of control. Gratuitous directions, suggestions, definite supervision, and the right to control, in oral contracts, are often evidenced only during performances, and the agreement and understanding between the parties as to whether the right to control extends only to the result to be accomplished and not to the methods of accomplishment, must be ascertained from the conduct, or inferences to be drawn from the conduct, of the parties. In such a case, the question is one of fact.
Authorities, relied upon to sustain the claim that plaintiff was an independent contractor, can be distinguished from this case. In Kimberg v. Murray, 233 Mich. 543, plaintiff was to furnish his own help and was not subject to control except in securing the results contracted for; in Gross v. Michigan Iron & Chemical Co., 219 Mich. 200, plaintiff who sought to be considered an employee could have employed men to do the work which he had contracted to do, and defendant had no control over him so long as the work was done according to contract; in Polka v. Lynch Timber Co., 227 Mich. 606, plaintiff hired whatever help he desired; in Eberly v. Sanders Lumber Co., 282 Mich. 315, plaintiff hired men to keep three hauling trucks busy and was not required to do the work himself. All of these circumstances are strong indicia of the status of independent contractor. In Zoltowski v. Ternes Goal & Lumber Co., 214 Mich. 231, plaintiff was engaged to unload a specific car of lumber for a lump sum payment, and tbe conclusion reached therein that he was an independent contractor is not in conflict with our decision herein.
In the case before us, the department found the facts to be that defendant reserved the right to discharge plaintiff if his work was unsatisfactory, and also retained and exercised the right of supervision of the work during its performance. There is evidence to sustain such findings of fact and, accordingly, they are conclusive on this court.
Award affirmed, with costs to plaintiff.
Sharpe, Potter, Chandler, and North, JJ., concurred with McAllister, J.
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Chandler, J.
Defendant and appellant, Thomas A. E. Weadock, was assignee of a judgment rendered March 23, 1931, in the Wayne circuit court in favor of David E. Stott and against plaintiff in the amount of $5,369.92, said assignment having been made on July 19,1932.
Execution issued and a levy was made on September 8, 1931, by Irving Miller, deputy sheriff under Henry Behrendt, sheriff of Wayne county, upon 10,046 shares of Stott Realty Company stock standing in the name of Arthur F. Stott on the books of the company, subject to a claim of said company against Arthur F. Stott in the approximate amount of $140,000.
Various sheriffs’ sales of the stock levied upon were advertised during the years following the levy but the sales were postponed or went down because of litigation between the parties out of which restraining orders issued. The last of such restraints on the sale was lifted by Judge Keidan on August 6, 1937, when he denied plaintiff’s request for an injunction and directed the sale to proceed. Meanwhile, the term of Sheriff Behrendt had expired on December 31,1936, and he was succeeded in office by Sheriff Thomas E. Wilcox.
Sale of the stock was advertised to be held at noon on August 25, 1937, and notices of said sale were duly posted by Irving Miller, ex-deputy sheriff under Henry Behrendt. The record shows that on August 24th and 25th, prior to the sale, unsuccessful efforts were made on defendant’s behalf to locate and communicate with Irving Miller for the purpose of reminding him of the sale. When he failed to arrive to conduct the sale, after waiting between 45 minutes and an hour, defendant requested Charles Sansone, deputy sheriff under the incumbent sheriff, Thomas E. Wilcox, to conduct the same. Sansone conducted the sale in the regular manner and. in the absence of other bids, sold the stock to defendant for $5,165.61. Plaintiff did not attend the sale, bnt his sister, Mrs. Orloff, a stockholder in the Stott Realty Company, was among those present.
Although a certificate of sale was delivered to defendant on the day of the sale, the sheriff’s return was not made by deputy Sansone until January 3, 1938, after numerous requests were made by defendant to have the same filed.
On August 26, 1937, the day following the sale, ex-deputy Miller went to defendant’s office and made an excuse for his absence at the time and place of sale. He claimed that he was at Walled Lake, Oakland county, about 50 miles from Detroit, and that his car became disabled, preventing him from being present. He stated that he did not telephone Mr. Weadock, the defendant, because of lack of funds.
On January 4, 1938, plaintiff filed his bill of complaint herein, making Thomas A. E. Weadock, David E. Stott, Ernest C. Stott, president and secretary, respectively, of the Stott Realty Company, and Sheriff Thomas C. Wilcox, defendants, the purpose of the bill being to attack the sale of August 25, 1937. An order to show cause why a temporary injunction should not issue, restraining David E. Stott, president, and Ernest C. Stott, secretary, from transferring said 10,046 shares, restraining defendant Weadock from exercising any right of ownership in said stock, and restraining Sheriff Wilcox from making any return upon the execution, was obtained. A restraining order as to defendant Weadock was granted on January 8, 1938, and the motion dismissed as to the other defendants. On June 6,1938, the court entered a decree for plaintiff, holding the sale to be void by reason of Sansone’s lack of authority to conduct the same. Defendant Weadock appeals.
Whether or not the sale was valid must be determined by an interpretation of 3 Comp. Laws 1929, § 14102 (Stat. Ann. § 27.769) and 3 Comp. Laws 1929, 114556 (Stat. Ann. § 27.1521). These statutes provide, respectively, as follows:
“Sheriffs, undersheriffs and deputy sheriffs may execute all such original or final process as shall be in their hands at the expiration of the term for which such sheriffs were elected, the execution of which shall have been begun by him, and shall made (make) due returns thereof in their own name; and in case of a vacancy in the office of sheriff, every deputy in office under him, may execute any writ or process in his hands, or in the hands of such sheriff, at the time such vacancy happened, and shall have the same authority, and be under the same obligation to serve and execute and return the same, as if such sheriff had continued in office.” (3 Comp. Laws 1929, § 14102.)
“When an officer shall have begun to serve an execution and shall die, or be incapable of completing the service and return thereof, the same may be completed by any other officer who might by law have executed the same if originally delivered to bim ; and if the first officer shall not have made a certificate of his doings, the second officer shall certify whatever he shall find to have been done by the first, and shall add thereto a certificate of his own doings in completing the service.” (3 Comp. Laws 1929, § 14556.)
It is the duty of the court to construe the statutory provisions so as to ascertain from the language thereof, if possible, the legislative intent. The statutory rule of construction is to be found in 1 Comp. Laws 1929, § 76 (Stat. Ann. § 2.212), which provides in part:
“All words and phrases shall be construed and understood according to the common and approved usage of the language.”
In June v. School District No. 11, Southfield Township, Oakland County, 283 Mich. 533 (116 A. L. R. 581), we said:
'‘ The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the legislature as expressed in the statute. Rapid Railway Co. v. Michigan Public Utilities Commission, 225 Mich. 425 (P. U. R. 1924B, 585); Gwitt v. Foss, 230 Mich. 8. When the words of a statute are not precise and clear, the construction which is most reasonable and best suited to accomplish the objects of the statute, should be adopted, and a construction leading to an absurd consequence shall be disregarded. Attorney General v. Railway, 210 Mich. 227. If it can be avoided, the statute will not be given a construction which will create a hardship and injustice. Attorney General, ex rel. Common Council of the City of Detroit, v. Marx, 203 Mich. 331.”
Applying the foregoing rules of statutory construction, we are constrained to hold that the provisions of the two sections under consideration, so far as they apply to ex-sheriffs, ex-undersheriffs and ex-deputies continuing the execution of process in their hands at the time of the expiration of the term for which they were elected or appointed, are permissive and not mandatory insofar as the validity of the execution of such process may be concerned.
We believe that section 14102 permitting the execution of original or final process by ex-sheriffs or ex-deputies inures to the benefit of such ex-officers and was so intended by the legislature. In most cases, and particularly where a levy has been made upon personal property, the officer acquires a certain interest in the property, at least to the extent of his fees and expenses, and has also incurred certain liabilities and responsibilities by reason of his possession of the property seized. He should, therefore, be permitted, and required under certain circum stances, to complete the execution of such process so commenced by him. However, in case such ex-officer negligently or intentionally absents himself from the county on the day fixed for the completion of the execution of such process, or is prevented by reason of circumstances beyond his control from being present in the county at such time, as is claimed by ex-sheriff Miller in the instant case, must all proceedings taken under such process fail and the judgment creditor be required to either look to such ex-officer for relief by way of damages or be compelled to resort to going through the same proceeding if the defaulting ex-officer continues to claim the county in which suit is pending as his residence ? An affirmative answer to this question would be an absurd consequence.
In the case at bar there is no claim of any fraud or lack of due diligence on the part of defendant in attempting to obtain a sale of the stock levied upon by ex-deputy Miller. We find nothing in the allegations in the bill of complaint, or in the record, to indicate that the plaintiff was in any way prejudiced because the stock levied upon by Miller was sold by Sansone, then acting deputy sheriff, who offered and sold the same at public sale at the time and place provided in the notice, and who made due return of his doings and of the doings of ex-députy Miller by virtue of said process in compliance with the provisions of 3 Comp. Laws 1929, § 14556. From the record we believe we are justified in finding that Miller, who made the levy by virtue of the execution issued upon defendant’s judgment and who posted notices of sale, at the time fixed for said sale, was just as incapable of completing the doings required of him by said execution as though he were dead or 1,000 miles away from the place of sale. We believe he was intentionally absent because anyone of sufficient men tality and experience to be a deputy sheriff would certainly know that, in spite of lack of personal funds, he could have telephoned the defendant and had the charge's therefor reversed.
A search discloses but one case in this jurisdiction where section 14556 was involved. In Taylor v. Boardman, 23 Mich. 317, an execution was issued on a judgment against defendant Francis D. Boardman and placed in the hands of A. N. Norton, then sheriff of Kent county. The return to the execution was made by said Norton, showing levy by him on certain lands on February 3, 1860. The property was sold on the 23d day of August, 1862, by Sluman S. Bailey, then sheriff of Kent county, whose return was as follows:
“Kent county, ss. — A. N. Norton, late sheriff of Kent county, having become incapacitated by enlisting in the army and going to the war, and is now in one of the cavalry regiments, to-wit, New York First Lincoln Cavalry, and being now actually out of the State, from perfecting sale under this execution, the same has, this 26th day of June, A. D. 1862, been placed in my hands for completion by plaintiff’s attorney.
“And I do hereby further return, that on the 23d day of August, A. D. 1862, due notice having been given as is required by law, I sold the above described northeast quarter of southwest quarter of section 18 in town 7 north, of range 11 west (the land in question), for the sum of $843.19, to Julius C. Dennison, the person named above, for whose benefit the within execution is, he being the highest bidder, and that sum being the highest sum bid at said sale, and I hereby return the within execution, satisfied in full by sale of land as above set forth. Sheriff’s costs paid by J. C. Dennison.”
The defendant Boardman insisted that the sale was invalid because the levy was made by one sheriff and the sale by another. In affirming a decree in favor of plaintiff, this court said:
“The decree below ought to be affirmed. All the points essential to the complainant’s case appear to be made out, and it would be useless to recite them or repeat the record.
“There is no force in the objection that the levy was made by one sheriff, and the sale by another. The proceeding appears to be regular under 2 Comp. Laws 1857, § 4474 (now 3 Comp. Laws 1929, § 14556).
“We think the evidence is nearly, if not quite, unanswerable, that the title set up by the Boardmans in opposition to that of complainant was, and is, fraudulent against the latter; and we discover nothing in the elaborate brief of defendant’s counsel which breaks its force or averts its operation.”
We feel justified in holding that ex-deputy Miller, being absent from Wayne county with no means of reaching the place of sale at the time fixed therefor, was as much incapacitated from making the sale of the stock levied upon as was Mr. Norton, the ex-sheriff of Kent county, by reason of his absence from the State because of enlistment in the army.
The appellee claims that the price for which the stock was sold was grossly inadequate, contending that “the sale of this one-seventh interest in the Stott Realty Company with its extensive and valuable assets for $5,165.61, or about one per cent, or less of the value of this stock, is a penalty that no court should permit to be inflicted upon any litigant. ’ ’ In view of the following statement made by one of the attorneys for plaintiff upon the hearing of the case in the court below, we give no consideration to this question.
“Mr. O’Hara: I am not interested in the value of the stock except for the reason that I have given to your honor on the question of jurisdiction. Otherwise, I am not interested in it at all. I make no claim in here of inadequacy of price insofar as my allegations are concerned in reference to the legality or illegality of this sale. I am basing that entirely upon the statute. ’ ’
Defendant Weadock filed a cross-bill in which, among other things, he prayed for relief against David E. Stott, president, and Ernest C. Stott, secretary of the Stott Realty Company, who were defendants in the original bill, in the nature of a mandate from this court requiring said officers to issue and to deliver to him a proper certificate for the 10,046 shares of the capital stock of the Stott Realty Company purchased by him subject to the claim or lien of said company in the approximate sum of $140,000. We think that the defendant and cross-plaintiff is entitled to such an order.
We therefore conclude that plaintiff has not established a case for equitable relief and that his bill of complaint should be and the same is hereby dismissed with costs to defendant, and that a decree should be entered in favor of the defendant and cross-plaintiff and against the president and secretary of the Stott Realty Company requiring the issuance to defendant of a proper certificate showing him to be the owner of plaintiff’s interest in the 10,046 shares of stock purchased by defendant at the execution sale, the ownership of said stock by defendant to be subject to any and all claims or liens of the Stott Realty Company in force at the time of sale. No costs will be allowed against cross-defendants in favor of cross-plaintiff, the defendant herein.
Bittzel, C. J., and Wiest, Bushnell, Sharpe, Potter, and McAllister, JJ., concurred. North, J., took no part in this decision. | [
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McAllister, J.
Defendant, Margaret Manning, signed a mortgage note, dated April 19, 1926, for $8,000. Tlie parties have considered this note to be negotiable. She also executed at the same time a mortgage in a like sum to the Union Trust Company on certain property in the city of Detroit, which was not deeded to Mrs. Manning until April 21, 1926. Both, the note and mortgage, after several assignments, passed to the plaintiff, a Delaware corporation, which brought this suit in assumpsit to collect the unpaid principal of the note, together with interest, certain taxes and insurance premiums.
Defendant’s husband, Bart Manning, now deceased, was then vice-president of the original mortgagee, Union Trust Company. From time to time Manning presented various papers to his wife for her signature and she admitted that she was in the habit of signing such papers without either reading or inquiring into the nature of the particular instrument, and that on one such occasion she might possibly have signed this note and mortgage without knowledge of their contents. She claimed, however, that, even if she had signed them, it was never her personal transaction and that she received no benefit or consideration in connection therewith. She did not deny execution of the note (Court Rule No. 29 [1933]) or that she held title to the property described in the mortgage.
At the close of plaintiff’s proofs, the trial court, sitting without a jury, granted defendant’s motion for a judgment of no cause of action. The court held that plaintiff had failed to establish that Mrs. Manning, who was a married woman at the time of the execution of the note and mortgage, had received any consideration in connection with the transaction. Judgment was entered for defendant and plaintiff appeals.
Appellant claims that it was entitled to rely upon the presumption of consideration provided in the negotiable instruments law, 2 Comp. Laws 1929, § 9273 (Stat. Ann. § 19.66), and that the judgment entered for defendant was improper. Appellee, Margaret Manning, argues that plaintiff did not prove that any consideration passed either to her or any other person, and that the presumption of consideration is inapplicable to negotiable instruments given by a married woman, because her right to contract is limited, and for this reason the validity of her undertakings cannot be presumed but must be affirmatively shown. Appellant questions the court’s ruling of nonadmissibility of a certain mortgage accrual card, offered by it as secondary evidence of the distribution of the proceeds of the mortgage.
After defendant signed the note and mortgage before two witnesses and acknowledged the mortgage before a notary, even if it be assumed that she was still ignorant of the entire transaction, she cannot be heard to challenge the validity of the execution of the instrument in the absence of a claim of fraud, duress or mistake. Not only is one who voluntarily signs an instrument without reading it precluded, as a general rule, from denying his signature, Gardner v. Johnson, 236 Mich. 258; Draeger v. Kent County Savings Ass’n, 242 Mich. 486, but this court has specifically said that where “a wife signs an instrument at the request of her husband, and she testifies that she did so habitually and always, and the husband is thereby enabled to borrow money upon such instrument, the lender relying upon the paper being what it purports to be upon its face, the wife should be held to be estopped from denying the validity of such execution and delivery.” Ehle v. Looker, 182 Mich. 248, 254. See, also, Eadus v. Hunter, 249 Mich. 190, 193.
Although defendant claimed she was unaware of the mortgage obligation until sometime in February of 1931, the record shows that she executed a warranty deed on January 9, 1930 to Robert Oak-man, conveying the property in question, and re citing the existence of the mortgage. After the date on which she claims she discovered the existence of the mortgage she made no attempt to repudiate it and, on February 9, 1931, Oakman and wife gave a quitclaim deed to the same property to Mrs. Manning, which was recorded on March 11, 1931. She received rentals from the property and, although she denied his authority to act for her in this respect, defendant’s son signed an application for a renewal of the mortgage on February 10, 1931.
Section 26 of the negotiable instruments law, 2 Comp. Laws 1929, § 9273 (Stat. Ann. § 19.66), provides that:
“Every negotiable instrument is deemed prima facie to have been issued for valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. ’ ’
Notwithstanding the plain language of the statute, appellee claims that where a negotiable instrument is executed by a married woman, consideration cannot be presumed, but it must be affirmatively proved that there was good legal consideration given and that actual value passed, citing, in support of this argument, a line of cases, including Kenton Ins. Co. of Kentucky v. McClellan, 43 Mich. 564; Fechheimer v. Peirce, 70 Mich. 440; Fish v. Mills, 104 Mich. 433; and Judd v. Judd, 187 Mich. 612.
There is broad language in some of these decisions which seems to support appellee’s view, but these cases, without exception, deal with the power of a married woman to contract. These authorities hold that, in order to charge a married woman upon her agreement, it must be shown that such contract was with respect to her sole and separate estate. 3 Comp. Laws 1929, § 13057 (Stat. Ann. § 26.161). The question of consideration is another matter. Although usually, as in the cases just cited, proof of the nature of the consideration will show whether the married woman’s separate estate is involved, there is no necessary connection between an inquiry into the type of property as to which the obligor had power to bind herself and the nature of the consideration that was given to induce and support her obligation. As appellant points out, the foregoing cases only hold that the presumption of consideration cannot be relied upon to show that a married woman’s separate estate was involved in the transaction, but they do not say that the presumption cannot be relied upon to show the existence of some consideration. This distinction is also implied in our holding in Shepard v. Bestar, 271 Mich. 219, where we said:
‘' There is no rule of law in this State preventing a married woman from executing her note or notes, secured by mortgage on real estate, of which she is the sole owner in fee, and letting her husband use the money. Such a contract is her own, bears relation to her separate estate, is within her power and not rendered otherwise if the lender is aware of the purpose. It does not constitute the wife a surety for the debts and obligations of the husband.
“The mortgage would not be subject to any defense here offered. Peoples Wayne County Bank v. Wesolowska, 256 Mich. 45. The notes, accompanying the mortgage, carry the same freedom from the grounds of attack here made. The loan for which the mortgage and notes were given was for the benefit of her sole property, and she could deal therewith as though unmarried.”
A married woman may convey her property to secure the debts of her husband, Kieldsen v. Blodgett, 113 Mich. 655, and she can execute a mortgage for the same purpose, Marx v. Bellel, 114 Mich. 631; Seymour v. Powers, 255 Mich. 624; Farmers & Merchants National Bank & Trust Co. v. Globe Indemnity Co., 264 Mich. 395. Mrs. Manning had the legal right to mortgage her own property and, whether her husband or some other person received the benefits thereof, is immaterial. Shepard v. Bestar, supra.
There is some suggestion in the opinion of the trial court that, when plaintiff attempted to prove actual consideration, it waived its right to rely upon the presumption. The prima facie case raised by the presumption persists until evidence to the contrary is produced, Steep v. Harpham, 241 Mich. 652, and, whatever may have been the deficiencies in plaintiff’s proofs, they were not inconsistent therewith. See Durland v. Durland, 153 N. Y. 67 (47 N. E. 42), and Citizens National Bank of Pocomoke City v. Custis, 155 Md. 173 (141 Atl. 556). Nor would defendant’s denial that she received the proceeds of the loan be sufficient to rebut the presumption of consideration. See Watts v. Copeland, 170 S. C. 449 (170 S. E. 780); Drake v. Seek, 116 Kan. 717 (229 Pac. 67); American National Bank of Mt. Carmel v. Woolard, 342 Ill. 148 (173 N. E. 787); Merchants National Bank of Raleigh v. Andrews, 179 N. C. 341 (102 S. E. 500).
The judgment entered for defendant was erroneous because the trial court denied plaintiff the benefit of the presumption. There are also several other questions which require comment.
Quite apart from the presumption of consideration, we cannot say that the record is “barren of any testimony to the effect that there ever was any consideration paid,” as was held by the trial court. Plaintiff, after proving the note, introduced some evidence that a voucher for the loan had been prepared by officers and employees of the mortgagee in the usual course of business on April 21,1926. This voucher shows that the loan was entered on the books and that it reached the teller and auditor. It was also shown that, in the usual course of business, the proceeds of such loans were either paid out in cash or by check, or that a credit was made to a so-called investment deposit account, which was similar to an ordinary savings account at a bank. Both Mrs. Manning and her husband had such accounts with the Union Trust Company. Plaintiff’s witnesses testified that the proceeds of the mortgage loan must have been so paid in cash or by check or credited to some account, since the books of the trust company would not otherwise have balanced at the end of the day. There was testimony that on the day in question the books did balance.
Drawing from this evidence all reasonable inferences in plaintiff’s favor, Hale v. Cole, 241 Mich. 624 ; Steep v. Harpham, supra, the record does contain sufficient evidence of consideration to raise a question of fact. McQuillan v. Eckerson, 178 Mich. 281.
Plaintiff offered in evidence a so-called mortgage accrual card, which purported to be an individual record of the Margaret Manning mortgage transaction and kept by the mortgagee. It included details of payments on principal and interest as well as entries of moneys advanced for taxes, insurance, et cetera, by the Union Trust Company and its successors. As to items subsequent to May 1, 1929, after which time the original ledgers of the Union Trust Company were destroyed, the card was admitted, but the trial court refused to allow the card as proof of disbursements prior to that date. The first entry on the card was
“Debit
“Balance
“Forwarded, $8,000.”
Plaintiff claimed this entry was proof of the payment of $8,000 for the benefit of Mrs. Manning.
The admission, of such cards was considered in Collateral Liquidation, Inc., v. Lippman, 273 Mich. 586, and same case, 278 Mich. 508. In that case, on rehearing, plaintiff “produced competent evidence showing that the records of original entry had been inadvertently destroyed during the pendency of the former appeal. It introduced the person making the transfer of the balance entry from the original records (now destroyed) to the mortgage record card. It further proved the additional items upon the mortgage record card. Official tax statements from county and municipal treasurers containing the receipts of the respective officials of payment of taxes upon the property involved were produced by plaintiff, which with the mortgage record card showed payment by plaintiff thereof. This was uncontradicted.”
We held that such proof was sufficient.
Here, on the other hand, the testimony shows that the original ledger sheets, from which the debit balance was claimed to have been taken, had been deliberately destroyed by plaintiff because it was thought that there was “no further use for them and they were taking up space.”
We agree with the trial court that one cannot make entries in ledgers from time to time, then destroy them after making a card which, it is claimed, is an accurate copy, and have such card admitted in evi dence. Whether or not the debit balance item was copied from the ledger, as plaintiff claims, or was a summary of the original ledger entries, as the trial court found, in neither event is it admissible under 3 Comp. Laws 1929, §14208 (Stat. Ann. §27.903). This statute deals with lost instruments, and any necessity for the introduction of the card in question is caused by plaintiff’s own deliberate act. The card was made three years after the transaction of which it purports to be a record. It is therefore inadmissible as a memorandum made at the time and in the ordinary course of business. 3 Comp. Laws 1929, § 14207, as amended by Act No. 15, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 14207, Stat. Ann. §27.902).
The judgment entered for defendant is vacated and the cause is remanded for a new trial. Costs to appellant.
Butzel, C. J., and Bushnell, Sharpe, and Chandler, JJ., concurred with McAllister, J. | [
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Chandler, J.
These two suits by the plaintiffs as beneficiaries under life insurance policies issued by the respective defendants, presenting the same questions of law, were consolidated for trial and have been considered together on this appeal from a denial of reserved motions for directed verdicts and motions for new trials.
The facts are not in dispute. Defendants have paid the life insurance benefits under the policies and the suits were instituted to recover payment under the accidental death provisions contained therein. One policy insured against death resulting, “directly and independently of all other causes from bodily injury, effected solely through external, violent and accidental means.” It also provided that, “The additional accidental death benefit shall not be payable if the insured’s death results * * * directly or indirectly from infirmity of mind or body; from illness or disease, or from any bacterial infection other than bacterial infection occurring in direct consequence of accidental and bodily injuries.” The other policy insured against death resulting, “directly and independently of all other canses, of bodily injuries sustained through external, violent and accidental means,” but not if death was “the result of * * * or caused by or contributed to directly or indirectly or wholly or partially by disease or by bodily or mental infirmity.”
It is agreed that there is no substantial distinction between the language of the two policies as far as these cases are concerned, and for ease in discussion the clause in both policies specifically excluding recovery if death resulted from disease or bodily infirmity is referred to as clause two, and the first provision creating liability for death resulting “directly and independently of all other causes” from accidental means is referred to as clause one.
The insured was injured on January 20, 1936, when he sustained a crushing of the tips of two fingers on his left hand. Following the accident, he suffered extreme pain until his death the next day, from a cerebral hemorrhage. Defendants offered no proof but were content to rely upon the medical testimony adduced by plaintiffs which established that the intense pain caused an increase in blood pressure which became so great as to result in the bursting of a blood vessel in the brain and the hemorrhage which followed. The proof showed deceased to be afflicted with cerebral arteriosclerosis in a marked degree for a man of his years, and it was conceded that due to the consequent weakness of the blood vessels the increased pressure of the blood due to the suffering was sufficient to cause a rupture, resulting in death. It was also conceded, that had it not have been for the existence of the cerebral arteriosclerosis, the accident sustained would not have been sufficient to have caused death. Defendants claim that because the condition of the blood vessels was necessarily a factor in conjunction with the accident in producing the fatal result, there can be no recovery under the provisions of the policies.
The trial court based its decision on Kangas v. New York Life Ins. Co., 223 Mich. 238, and held that plaintiffs were not precluded from recovery if the accident was the efficient, dominant, proximate cause of death, even though death was contributed to by the sclerotic condition of deceased’s blood vessels ; and that the question as to whether or not such accident was the efficient, dominant, proximate cause of death was for the decision of the jury.
Defendants claim that the test applied in the Kangas Case is inapplicable here, and that where it is undisputed that the accident alone would not have resulted in death had it not have been for the concurrent effect of arteriosclerosis, the court should have found as a matter of law that plaintiffs could not prevail; and, that it was error to submit the case to the jury. In support of this proposition, the insurers rely principally upon Jiroch v. Travelers Ins. Co., 145 Mich. 375; Rathman v. New Amsterdam Casualty Co., 186 Mich. 115 (L. R. A. 1915 E, 980, Ann. Cas. 1917 C, 459); Skinner v. Commercial Travelers Mutual Accident Ass’n, 190 Mich. 353; and Flood v. Order of United Commercial Travelers of America, 276 Mich. 648. Defendants argue that these cases are comparable to the case at bar because they involved policies similar to clause two, and are to be distinguished from the Kangas Case because the latter contained no such provision.
In the Jiroch Case, plaintiff brought suit upon an accident policy containing a provision similar to clause two. He had sustained severe burns of both feet, and gangrene developed, necessitating the amputation of one leg. The defendant claimed that the insured at the time of the accident was suffering from diabetes, which was responsible for the gan grenous condition. The only question decided was whether or not the finding of the jury that the diabetes and gangrene resulted from the accident was contrary to the weight of the evidence. The instruction of the trial court, that there could be recovery only if the accident alone, without the contribution of any preexisting disease or bodily infirmity, either directly or indirectly or wholly or in part, produced the disability, was not questioned by either party or discussed upon appeal.
In Rathman v. New Amsterdam Casualty Co., supra, we held as a matter of law that it appeared from the evidence that deceased’s death was caused, in part at least, by illness and that therefore there could be no recovery by the beneficiary named in the policy. The policy there involved contained an exclusion clause providing that there should be no liability for “any loss caused or contributed to by illness or disease or disappearance or by suicide, whether the assured be sane or insane. ’ ’ Although the existence of this clause in the policy is indicated in the opinion, it is mentioned by way of emphasis on the fact that liability under the policy attached only to a loss caused by accidental means. There is no statement contained in the opinion justifying the inference that the result would have been affected if the exclusion clause had been omitted.
Standing by itself, however, the Rathman Case must be said to sustain defendants and would lead to the result that there could be no recovery in the instant case if disease contributed in any manner to the death. However, it is to be noted that the only subsequent case in which it was cited as authority in this jurisdiction is Abbott v. Travelers Ins. Co., 208 Mich. 654, in which the same member of this court prepared an opinion in accordance with the views previously expressed by him in the Rathman Case. However, the court, evenly divided, affirmed a decision of the trial court holding that there could be recovery even if the disease was .a contributing factor if the accident was the efficient, dominant, proximate cause of the result. Although the latter view as far as the Abbott Case is concerned was the law of that case only, it was subsequently followed and became the law of this jurisdiction in Kangas v. New York Life Ins. Co., supra, and cases following. It can fairly lie said, therefore, that the view on this question expressed by Mr. Justice Steere in the Abbott Case has been modified.
In Skinner v. Commercial Travelers Mutual Accident Ass’n, supra, we approved the following instruction :
“If the cancer which is claimed by the defendant to have existed prior to that time existed and contributed to his death unquestionably, gentlemen, you must find a verdict for the defendant, because then it would not be the sole cause, and any blow he received would not be the sole cause, and he can only recover where the accident was the sole cause.”
The approval of the foregoing instruction places this case in the same category as Rathman v. New Amsterdam Casualty Co., supra, as far as the question of cause and effect is concerned. It was cited and commented upon by Justice Steere in the Abbott Case, and the law evolved by approval of the foregoing instruction must be said to have been modified in subsequent cases by adopting the “efficient, dominant, proximate cause” rule as later enunciated.
As far as provisions are concerned, the policy involved in the Skinner Case contained a clause comparable to clause two in the instant case. However, no distinction was drawn on this ground from cases in which a similar clause was not to be found in the policy.
Flood v. Order of United Commercial Travelers of America, supra, cited by defendants, presents facts not comparable to the instant case.
Plaintiffs rely upon Abbott v. Travelers Ins. Co., supra; Kangas v. New York Life Ins. Co., supra; Sanborn v. Income Guaranty Co., 244 Mich. 99 and Hoff v. Mutual Life Ins. Co. of New York, 266 Mich. 380.
In the Abbott Case, involving a policy not containing a provision to be compared to clause two, it was held that even though a preexisting disease may have contributed to the result following the accident, liability attached if the accident was the.efficient, dominant, proximate cause of such result, and that this question was to be determined by the jury. The policy provided for liability if the death resulted from “bodily injury effected through external, violent and accidental means independently of all other causes.” It should be noted that some of the cases cited in support of the holding involved policies containing clauses similar to clause two in the instant case, including Moon v. United Commercial Travelers, 96 Neb. 65 (146 N. W. 1037, 52 L. R. A. [N. S.] 1203, Ann. Cas. 1916B, 222) and Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa, 423 (166 N. W. 363, 168 N. W. 884, 3 A. L. R. 1295). The decision in the Abbott Case contains nothing to indicate that a different result would have been reached had the policy contained clause two.
The Kangas Case followed the law as applied in the Abbott Case, and, after stating the claims of the parties, it was said (pp. 244, 245):
“Each of these conflicting claims was supported by some competent evidence. It was therefore a question for the jury to determine the cause of death, and if both causes concurred, to say which was the efficient, dominant, proximate cause.”
Although that policy contained a clause somewhat similar to clause two, it was not commented upon or emphasized as bearing upon the result reached.
The Abbott and Kangas Cases were subsequently followed in Sanborn v. Income Guaranty Co., supra, and Hoff v. Mutual Life Ins. Co. of New York, supra.
We have thus briefly reviewed the cases bearing upon the question in this jurisdiction, some, as we have seen, containing a provision similar to clause two, and others containing no such provision. The important consideration, however, lies in the fact that in none of the cases mentioned did the court in any way indicate that the presence or absence of such a provision had any substantial relation to the result reached.
We recognize that some cases seem to draw a distinction such as is urged by defendants. See 34 L. R. A. (N. S.) 445; 52 L. R. A. (N. S.) 1203. A reading of the cases reviewed in the foregoing annotations, however, leaves doubt as to whether many of them support the distinction relied upon. The doubt is recognized by the commentator in 25 Michigan Law Review, p. 803. And the distinction was expressly repudiated in Kerns v. Ætna Life Ins. Co. (C. C. A.), 291 Fed. 289, wherein the court, although not following the “efficient dominant, proximate cause” rule, said:
“But it is contended that in Shryock [National Masonic Accident Ass’n of Des Moines v.] (20 C. C. A. 3 [73 Fed. 775]) this court had before it for interpretation a contract which contained the further condition that the policy should not ‘ cover any death which resulted wholly or in part, directly or indirectly, from disease or bodily infirmity,’ while the contract in the instant case, insures against death from accident ‘resulting directly and independently of all other causes.’ This is true; the differences in verbiage inhere. But it is difficult, if not impossible, to eke out any legal distinction be tween death which results directly and independently of all other causes, and death caused wholly or in part from disease or bodily infirmity. The language used in the policy before us, by limiting liability to cases of death, wherein such death is caused by accident directly and independently of all other causes, just as certainly and effectually excludes liability in a case wherein the accident co-operates with preexisting disease or bodily infirmity, as it would if the latter words were set out in the policy.”
A review of many cases is convincing that most courts divide in result depending upon whether or not the particular jurisdiction in question adopts the view that there can be a recovery under policies containing provisions similar to clause one even though a preexisting disease may have contributed in some manner to the result, and not upon any distinction drawn by reason of the presence or absence of so-called clause two.
In this State we have adopted the rule that the beneficiary can recover if the accident was the efficient, dominant, proximate cause of the disability or death although a preexisting disease may have contributed to the result, and this rule should be equally applicable to the policy here involved in the absence of some sound and substantial legal distinction to be drawn because of the presence of clause two.
Although it was conceded that the accident and the condition of deceased’s arteries cooperated to cause death, and that neither was sufficient of itself to obtain this result, under the facts presented, the question as to whether the accident was the efficient, dominant, proximate cause still remained to be determined by the jury.
The judgments are affirmed, with costs to plaintiffs.
Bushnell, Potter and McAllister, JJ., concurred with Chandler, J. | [
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Per Curiam.
On March 1, 1979, defendant was convicted on his pleas of guilty of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and prison escape, MCL 750.193; MSA 28.390. On April 4, 1979, he was sentenced to three years, four months to five years imprisonment on the escape conviction and 10 to 25 years imprisonment on the assault conviction, both to commence at the expiration of the term defendant was serving when he escaped. Defendant appeals as of right.
On appeal, defendant argues that he is entitled to resentencing because he was excluded from an in-chambers conference between the court and defendant’s attorney prior to his sentencing hearing. Defendant claims that this exclusion deprived him of his constitutional and statutory right to be present at all critical stages of the proceedings.
We find no error. There is no requirement that a defendant be present during an in-chambers discussion with counsel regarding sentencing. People v Worden, 91 Mich App 666, 685; 284 NW2d 159 (1979), People v Dumas, 102 Mich App 196; 301 NW2d 849 (1980). See also People v Briggs, 94 Mich App 723, 727; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980). We note that the Michigan Supreme Court has granted leave and ordered this issue to be briefed in People v Pulley, 407 Mich 946 (1979).
Aifirmed. | [
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] |
J. H. Piercey, J.
This case presents a question of first impression under the Michigan equal accommodations act, MCL 750.146 et seq.; MSA 28.343 et seq. The issue is whether a legally blind person may validly be refused unrestricted membership in a health and exercise club on the ground that the physical limitations deriving from his blindness constitute a significant safety hazard effectively precluding his safe use of club facilities. We recognize no such "safety exception” to the equal accommodations act and, consequently, reverse the trial court’s determination that defendant’s exclusion of plaintiff was proper.
In 1975, plaintiff, a legally blind person, visited the Ann Arbor facility of defendant, Vic Tanny International, Inc., a nationwide organization of health and exercise clubs. Plaintiff’s application for membership in the club was thereafter rejected by a club representative for insurance reasons. Plaintiff filed suit, alleging that defendant had discriminatorily denied him membership in its club because of his blindness. Defendant answered, asserting that its rejection of plaintiff’s application for membership was based upon concern for his safety rather than upon any intent to discriminate. After partial summary judgment had been granted to plaintiff, defendant’s "safety issue” was tried to the court on August 14 and 15, 1979, with the trial judge concluding that defendant’s "facilities are of such a nature that they could not be utilized in safety by unsighted, totally blind, or legally blind, individuals”, and that defendant had "no intention to discriminate against persons who are blind, or to discriminate against this plaintiff; that the defendant’s actions have been based on safety considerations”.
Plaintiff now appeals the dismissal of his suit as the result of the trial court’s ruling on the "safety issue”. Defendant cross-appeals, claiming that the lower court erred reversibly by finding that defendant’s business is a place of public accommodation under MCL 750.146; MSA 28.343.
At the heart of the present dispute are §§ 146 and 147 of the Michigan equal accommodations act. Section 146, MCL 750.146; MSA 28.343, provides in pertinent part:
"All persons within the jurisdiction of this state shall be entitled to full and equal accommodations, advantages, facilities and privileges of inns, hotels, motels, government housing, restaurants, eating houses, barber shops, billiard parlors, stores, public conveyances on land and water, theatres, motion picture houses, public educational institutions, in elevators, on escalators, in all methods of air transportation and all other places of public accommodation, amusement, and recreation, subject only to the conditions and limitations established by law and applicable alike to all citizens and to all citizens alike, with uniform prices.”
MCL 750.147; MSA 28.344 states in pertinent part:
"Any person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place who shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages, facilities and privileges thereof * * * on account of race, color, religion, national origin, sex or blindness * * * shall for every such offense be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 or imprisoned for not less than 15 days or both such fine and imprisonment in the discretion of the court; and every person being an owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, and who violates any of the provisions of this section, shall be liable to the injured party, in treble damages sustained, to be recovered in a civil action.” (Emphasis supplied.)
The threshold question to be decided is whether defendant’s business is a place of public accommodation within the ambit of MCL 750.146; MSA 28.343. In answering this question affirmatively and awarding summary judgment to plaintiff on the issue, the trial judge recognized that it was essential to analyze a number of facts in deciding whether the defendant’s facility was within the scope of the statute.
The trial judge observed that defendant "exhibits none of the indices of membership selectivity necessary to support its defense of private club status. 'Club’ members have no say regarding admission or rejection of applicants for 'club’ membership and there is no requirement that applicants obtain a recommendation from a 'club’ member.” The court additionally noted:
"Defendant’s internal memorandum emphasizes the commercial nature of defendant’s membership screening process; it lists the following factors to be considered when passing upon applicant’s request for 'club membership’: 1) financial responsibility; 2) communications problems; 3) emotionally disturbed people; 4) bodily hygiene, and 5) medical problems. Nowhere is any attention given to the protection of the personal associational preferences of its existing members or to the preservation of any modicum of exclusivity of member ship. Only the need to recognize certain minimal guidelines so as to maintain a profitable commercial enterprise is considered. Establishments which embrace this broad 'membership’ policy can not be considered a truly private club. * * *
"Further is the requirement that the alleged private club not engage in broad-based advertising campaigns which indiscriminately seek new members from the public at large. * * * Such advertising acts as a bar to private club status which cannot be relaxed.”
Finally, the lower court observed that "[p]rivate clubs whose members have no control over club operations, own no equity in club property or fail to receive a share of club profits are not legally considered to be private clubs; rather, these establishments are businesses operated for a profit and are not exempt from the scope of the [act]”.
We concur with the trial court’s conclusion that defendant’s facility is not exempt from the Michigan equal accommodations act as a "private club”. See Nesmith v Young Men’s Christian Ass’n of Raleigh, NC, 397 F2d 96 (CA 4, 1968), United States v Jordan, 302 F Supp 370 (ED La, 1969).
Defendant, however, contends that the Michigan equal accommodations act does not operate with respect to health clubs or their like in the absence of specific language encompassing such facilities. This argument is without merit in light of the comprehensive wording of § 146 providing for equal accommodations in "all other places of public accommodation, amusement, and recreation”. We hold that defendant’s business is within the purview of that language. See Riegler v Holiday Skating Rink, Inc, 393 Mich 607; 227 NW2d 759 (1975), and Magid v Oak Park Racquet Club Associates, Ltd, 84 Mich App 522; 269 NW2d 661 (1978) (assuming, without deciding, that tennis clubs were places of public accommodation within the meaning of §§ 146 and 147).
We turn next to an analysis of whether a so-called "safety exception” should be read into the equal accommodations act so as to modify its facially absolute prohibition against discrimination on account of blindness. Defendant asserts that blindness constitutes a physical handicap which is qualitatively different from other statutorily-enumerated factors as race or religion and that the physical limitations deriving from blindness should permit a "safety exception” precluding strict application of the act to the present facts, unlike alleged discrimination on account of race, color, religion, etc. Defendant maintains that because there exists a real quantum of difference between blindness — which deprives a person of a physical sense — and the negligible effects of skin color, birthplace, religious belief, or ancestry, it follows that considerations of safety contingent upon loss of sight permit the exclusion of a blind person from defendant’s establishment without doing violence to the act.
In support of its argument, defendant cites by analogy § 302 of the Michigan Handicappers’ Civil Rights Act, MCL 37.1302; MSA 3.550(302). That statute provides in pertinent part:
"Except where permitted by law, a person shall not:
"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a handicap that is unrelated to the individual’s ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids.”
Both parties properly recognize that the above-quoted provision is not controlling of the case at bar because the statute did not become effective until after the instant case was instituted, and plaintiff does not rely upon the handicappers’ act for relief. Rather, defendant maintains that just as § 302 operates only where a handicap is unrelated to an individual’s ability to utilize services, by analogy a "safety exception” should be judicially integrated into the equal accommodations act to preclude its application where, as here, plaintiff allegedly cannot utilize defendant’s facility safely due to his handicap.
Without denigrating the cogency of defendant’s arguments, we are not persuaded that a "safety exception” of the type sought for by defendant should be judicially incorporated into the equal accommodations act. Where, as here, the language of the act is clear, unequivocal, and absolute on its face, judicial construction or interpretation of the statutory language in the manner argued for by defendant would be improper. Our function is to give full credence to "the legislative will as we find it, without regard to our own views as to the wisdom or justice of the act”. McKibbin v Corporation & Securities Comm, 369 Mich 69, 81; 119 NW2d 557 (1963).
We note that the limitation in § 302 of the handicappers’ act was legislatively — not judicially —created. Furthermore, the Legislature has previously amended § 146 of the equal accommodations act by adding a limitation upon strict application of the act in certain areas of sex discrimination. Defendant’s present arguments should therefore be directed to the Legislature which, if persuaded by them, can amend the equal accommodations act in the manner suggested by defendant. It is not this Court’s prerogative to alter the act by judicial fiat.
Since we find no "safety exception” to the equal accommodations act permissible, it is unnecessary to review the evidence regarding plaintiffs ability safely to utilize defendant’s facility.
The trial court’s award of partial summary judgment for plaintiff is affirmed. Its determination in favor of defendant on the "safety exception” issue is reversed and the case remanded to the lower court for entry of judgment for plaintiff on this issue. Costs to plaintiff. | [
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N. J. Kaufman, J.
Defendant Michigan Department of State Police appeals from a unanimous opinion and order of the Worker’s Compensation Appeal Board which affirmed the award of compensation benefits to plaintiff, Bertha A. Teddy, the widow of Harold D. Teddy, who had been a lieutenant in the Michigan Department of State Police.
This case involves a fatal heart attack. Proceedings were initiated by plaintiff in a petition for hearing filed September 10, 1975, which alleged, inter alia, that the injury resulting in the death of her husband occurred at State Police Headquarters in East Lansing and that:
"On April 7, 1975 the employee while at work suffered a myrocardial infarction [sic]/acute resulting from his employment. The employee died on May 29, 1975 as a result of the myrocardial infarction [sic] ”
A hearing was held before an administrative law judge who, on June 28, 1976, found that plaintiffs husband’s fatal heart attack, as well as a previously suffered heart attack, was compensable within the meaning of the Worker’s Disability Compensation Act. This decision awarded benefits pursuant to that act.
Defendants Michigan Department of State Police and the Michigan State Accident Fund appealed this decision to the Worker’s Compensation Appeal Board (hereinafter WCAB). The WCAB conducted a de novo hearing at which extensive lay and medical testimony was presented. See Herrala v Jones & Laughlin Steel Corp, 43 Mich App 154; 203 NW2d 752 (1972). In unanimously affirming the award of compensation benefits the WCAB concluded:
"We find decedent worked from 1956 until April 7, 1975, in defendant’s Personnel Division where he was assistant commanding officer. He worked long hours, including work at night. The workload was huge and continued to grow larger with no particular increase in staff. Decedent was confronted with multiple conflicting demands, unreasonable time pressures and hostilities and abuse from aggrieved employees in the department. As Captain Lenon put it, 'there is no good news in Personnel, most of it is adverse news or questions and problems.’ Decedent, given his position, shouldered a considerable portion of the workload, troubles, and problems in Personnel.
"Claim of work-related injury.
"The applicable test is set forth in Kostamo v Marquette Iron Mining Co, 405 Mich 105 (1979):
" 'We know also that it is not possible to determine medically whether particular stress caused a particular injury. Nevertheless compensation may be awarded based on an assessment of the probabilities in light of the background factual circumstances and any opinion testimony.’
"We find that plaintiff sustained her burden of proving work-related injuries.
"Dr. Bates testified for defendant. His testimony reveals he did not understand the nature of decedent’s job. He apparently decided that decedent possessed a kind of sinecure doing work consisting of serene, undemanding paper pushing. Captain Lenon’s unrebutted testimony establishes just the opposite. Decedent worked in a literal pressure cooker facing conflicting, unreasonable demands from all sides. In our judgment, Dr. Bates’ viewpoint is substantially eroded by his lack of understanding of plaintiff’s job. The hearing referee also noted Dr. Bates’ unawareness of decedent’s duties which the referee correctly characterized as a 'full range of rather awesome responsibilities.’
"Dr. Johnson described the many factors involved in the development of decedent’s heart disease — one of them was the effect of emotional stresses upon the arteries which ultimately led to damage of the interior artery walls. Plaintiff’s work, we find, relying upon Dr. Johnson’s testimony, was at least one of the factors in the development of his arteriosclerotic heart disease. For such reason, his employment was also at least one factor in the actual heart attacks occurring on April 7 or 8 and May 29, 1975.”
It is from this decision and from certain findings relating to the type and amount of pensions received by plaintiff and the amount of deceased’s salary stipulated to by parties that defendant Department of State Police (hereinafter the term defendant shall refer to defendant Department of State Police) now appeals, by leave granted.
Defendant raises three issues, two of which were properly preserved for appeal. Defendant first alleges that the decision of the WCAB was not supported by competent, material and substantial evidence on the whole record. The first part of defendant’s argument, which concerns alleged hearsay testimony, is without merit. The WCAB cured any possible error by not considering the disputed testimony in rendering its opinion.
The question which thus remains is whether there was any other evidence to support the decision of the WCAB. Defendant asserts that the testimony set forth by the WCAB does not establish a work-related compensable heart attack un der the standard adopted in Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979). Defendant argues that the testimony relied on by the WCAB does not, as required by Kostamo, establish any job stress, work related acceleration or aggravation of diseases and infirmities, or stresses that may cause attacks including anxiety, anger, fear, exhilaration, fatigue or environmental hazards.
Plaintiff asserts that the WCAB properly relied upon and applied Kostamo and did all things necessary to present a reviewable opinion to this Court. See Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978). We agree. The WCAB applied the correct legal standard in this case. This is evident from its citation of and quotation from Kostamo, supra. See the previously quoted portion of the WCAB’s opinion. As required by Kostamo, the WCAB carefully assessed the probabilities in light of the factual background through an examination of both medical and lay testimony. It is also clear from the opinion which testimony was accepted and which was rejected by the WCAB.
It is for the WCAB, and not this Court, to act as the trier of fact, weighing the credibility of the evidence and drawing reasonable inferences from the facts established. While this Court may review questions of law, the findings of fact made by the WCAB where supported by competent evidence on the record may not be disturbed on appeal. Carter v Kelsey-Hayes Co, 386 Mich 610; 194 NW2d 326 (1972), MCL 418.861; MSA 17.237(861), Const 1963, art 6, § 28.
It is our opinion that the WCAB properly set forth the legal standard to be employed, the testimony adopted, and the path it followed through the conflicting evidence in reaching its conclusion. There was ample evidence to support a causal nexus between the deceased’s job and his heart attacks. The WCAB was definite in its conclusion that the employment was related to the injury. The evidence, both from the record of the hearing before the administrative law judge and from the independent hearing conducted by the WCAB, amply supports the WCAB’s conclusion and, therefore, may not be disturbed on appeal.
The second issue raised by defendant on this appeal gives us greater pause. Defendant contends that the decision of the WCAB that plaintiff need not elect between workers’ disability compensation benefits and pension benefits is inconsistent with the law as it applies to the facts of the instant case.
When defendant addressed this question to the WCAB, the WCAB concluded:
"Defendants argue that plaintiff must elect between worker’s compensation and pension benefits, citing Johnson v City of Muskegon, 61 Mich App 121, 127 (1975). That case deals with pension benefits of a city policeman. That case and the statute, MCLA 418.161(l)(a), does not apply to the present case involving a state police officer and his dependents. Further, there is a speciñc statute governing the pension rights of state police officers. See MCLA 28.101 et seq.’’ (Emphasis supplied.)_
In support of its position, defendant cites Schave v Dep’t of State Police, 58 Mich App 178; 227 NW2d 278 (1975), lv den 394 Mich 765 (1975). That case involved an interpretation of MCL 418.405(3); MSA 17.237(405X3), which provides that as a condition precedent to filing an application for workers’ compensation benefits a claimant must first make application for any pension benefits to which he might be entitled. If pension benefits are not awarded, then the presumption of injury, as provided in that section, would apply. Schave held that the purpose of this provision is to prevent double recovery of like benefits by an injured person by the receipt of both disability pension and workers’ compensation benefits for the same disability.
Defendant also refers to MCL 418.161(l)(a); MSA 17.237(161)(l)(a), which provides in relevant part:
"Policemen or firemen or employees of the police and fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in the charter but shall not be entitled to like benefits from both.”
Defendant contends that the above-quoted statutory language indicates that both compensation and pension benefits may not be received. In Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975), where a city policeman received a disability pension and also sought workers’ compensation benefits, this Court held that the employee could not have both workers’ compensation and pension benefits for the same disability and that the administrative law judge must advise such employees that they must make an election between the benefits under a disability pension and the workers’ compensation act.
Although § 161(l)(a) speaks in terms of municipal and village policemen, defendant maintains that the rationale of the Schave case relative to the intent of § 405 mandates that the provisions of § 161(l)(a) apply equally to state police officers. Defendant’s analysis is that the Schave interpretation of § 405, which would prevent double recovery by state police officers, is the same interpretation that has been applied to § 161(l)(a), which prevents double recovery by village and municipal police officers. Defendant further contends that an interpretation allowing a state police officer to recover both workers’ compensation and pension benefits would constitute a violation of equal protection, by treating state officers differently from local and city police who must elect between the two types of benefits under § 161(l)(a).
What defendant overlooks, however, is that the statute and case law cited bar only the recovery of like pension and workers’ compensation benefits for disability. Moreover, the language of § 7 of the public safety department pension fund act, MCL 28.107; MSA 3.337, which governs state police pensions, recognizes that both workers’ compensation and pension benefits may be paid. MCL 28.107 provides in pertinent part:
"The pension payable either to the spouse or children shall not be more than an amount which, when added to statutory workmen’s compensation benefits applicable in the case, exceeds the average annual salary paid to the member for the 2 years immediately prior to death.”
To construe §§ 161(l)(a) and 405 as barring any recovery of both pension benefits and workers’ compensation benefits renders the language of MCL 28.107 a nullity. Courts, wherever possible, must give effect to statutory language so that the language is not rendered a nullity. Lynes v St Joseph County Road Comm, 29 Mich App 51; 185 NW2d 111 (1970). Whether the benefits are like benefits depends on whether the pension was a disability pension or a retirement pension. In its order granting leave, this Court requested further information regarding the pension. The parties prepared a stipulation in answer to this order, which was certified to this Court by the WCAB on February 12, 1980. Although the stipulation does not expressly state that the pension was either a retirement or disability pension, the documents attached to the stipulation, incorporated by reference, establish clearly that the pension was a retirement pension. _
Because receipt of a pension based on retirement and receipt of workers’ compensation benefits for a work-related injury does not constitute double recovery, we hold that plaintiff is entitled to both.
Defendant attempts to raise a third issue on appeal. Defendant alleges that the pension and the compensation benefits received by plaintiff are in excess of the deceased’s average annual salary for the two years immediately prior to his death and are, thus, statutorily prohibited. See MGL 28.107. This issue was not raised before either the administrative law judge or the WCAB. It is axiomatic that failure to present an issue to the WCAB will generally preclude review of such issue by this Court. Cotton v Campbell, Wyant & Cannon Foundry, 57 Mich App 52; 225 NW2d 187 (1974), Norton Shores v Carr, 81 Mich App 715; 265 NW2d 802 (1978), lv den 403 Mich 812 (1978).
Let us merely note that, in support of its contention, defendant has manipulated the figures to improperly reach the conclusion that the amount received in benefits is greater than the amount Lieutenant Teddy would have received in salary. Thus, even if we were to reach this issue, it would not alter our disposition of this case.
Affirmed. No costs, a statutory interpretation and a public question being involved.
MCL 28.101; MSA 3.331 provides as follows:
“There is hereby created and established a continuing fund to be known as the Michigan department of public safety pension, accident and disability fund. Such fund shall be made up from contributions from members of the Michigan department of public safety who have subscribed to the constitutional oath of office, from the rewards offered and accepted for such fund and from a yearly sum to be paid into such fund from the appropriation of the Michigan department of public safety in such an amount as shall be deemed sufficient by the commissioner of the Michigan department of public safety approved by the state administrative board to carry out the provisions of this act.”
From the affidavit of Bertha Teddy, included in the stipulation:
"2. I am currently receiving a pension, because of my husband’s service with the Department of State Police, from the State Police Retirement System.” (Emphasis supplied.)
From an interoffice memo to Bertha Teddy as an "enlisted retiree”:
"House Bill No. 4984 was signed into law by Governor William Milliken on January 4, 1979. Included in this bill is a supplement to the retirement allowance for those enlisted members or beneficiaries who retired before June 30, 1976 and who were on the rolls for July 1, 1978.
"Section 8c. (1) of the bill is repeated below:
"Section 8c. (1) The monthly retirement allowance payable to a retirant or beneñciary after September 30, 1976, who was on the rolls for July 1, 1978, is supplemented as follows: * * (Emphasis supplied.)
From an interoffice memo to Bertha Teddy regarding the tax status of the pension:
"Subject: Income Tax on Retirement Income
"The Lansing Office of the Internal Revenue Service advises:
"1. The pension income is taxable.
"2. If the pensioner recovers all monies paid into the pension fund within three years, the pensioner need pay no tax on the pension income until the entire amount paid in has been recovered.
"3. If all monies paid into the pension fund are not recovered within a three year period, an annuity plan, based on life expectancy, should be used when paying income tax. In this manner, the amount paid in would be prorated over the number of years of life expectancy remaining to the pensioner; for example, a person who had paid $20,000 into the pension plan and was expected to live 20 years, after retirement, could deduct $1,000 per year for 20 years.
"4. These same provisions also apply to the widow of an officer killed in line of duty, or dying of natural causes after completing sufficient years of service to qualify the widow for a pension.” (Emphasis supplied.)
From a letter to Bertha Teddy, explaining the benefits due her upon her husband’s death:
"As Harold was employed 10-9-50 and completed 24 years, 7 months and 20 days of service as an enlisted officer, you will be entitled to a monthly pension from the Michigan State Police Pension, Accident and Disability Fund. Your death would terminate the pension unless there are children under the age of 18 years that would survive you. The Business Administration Division Accounting Unit will soon furnish a copy of the retirement computation for your information, as well as the amount of contributions made to the pension fund by Harold through 6-30-74.” (Emphasis supplied.)
The stipulation of the parties, as certified by the WCAB, provides:
"The amount of the pension received by Lieutenant Teddy’s widow, Bertha Teddy, from the Michigan Department of Public Safety Pension, Accident & Disability Fund is as follows:
"Effective June 1,1975: $934.56 per month
"Effective October 1,1976; $953.25 per month
"Effective October 1,1977: $972.32 per month
“Lieutenant Teddy’s average annual salary for the two years prior to his death was $22,809.40.”
It is agreed that Mrs. Teddy’s workers’ compensation benefits are $118 per week. $118 times 52 weeks equals $6,136. Assuming the highest amount paid in pension, $972.32 per month, the yearly pension benefits would be equal to $11,667.84. The sum of the two is $17,803.84, far below the average annual salary of $22,809.40. For some reason, the defendant reduced the annual salaries for 1973 and 1974 by the tax withheld from Harold Teddy’s checks during those years (which does not represent either the stipulated average annual salary, nor an actual amount of tax paid for the year) in figuring an "actual net salary”. Defendant next reduces the pension by applicable taxes, adds this amount to the workers’ compensation benefits, and determines that the sum total exceeds the actual net salary. The statute does not make provision for taxes, but rather speaks in terms of "the average annual salary paid”. | [
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Per Curiam.
Plaintiffs, Donald and Marianne Bohlinger, appeal by leave granted from an accelerated judgment entered in favor of defendant, Detroit Automobile Inter-Insurance Exchange (DAIIE), on December 22, 1980.
On December 9, 1974, plaintiff Donald Bohlinger was injured in an automobile accident. Shortly thereafter, he claimed personal protection insurance benefits from his first-party insurer, defendant DAIIE. Plaintiffs have acknowledged payment of all medical bills and their only claim is for wage-loss benefits. According to plaintiffs’ brief, Donald Bohlinger was initially out of work for six weeks, and defendant reimbursed him for loss of wages at the maximum rate of $1,000 per month. He unsuccessfully attempted to return to work and then applied for further wage-loss benefits.
Subsequently, defendant arrived at a determination that Donald Bohlinger’s disability was primarily attributable to a pre-existing back condition and, in May, 1975, defendant began paying him a reduced wage-loss benefit in the sum of $500 per month. Mr. Bohlinger accepted and cashed these checks.
Finally, defendant determined Donald Bohlinger to be no longer suffering any disability attributable to the 1974 automobile accident, and on April 27, 1977, terminated benefits. Plaintiffs were notified of this termination by a telephone conversation and confirmation letter.
On July 12, 1977, plaintiffs’ attorney contacted defendant seeking to obtain benefits allegedly due under the insurance contract. An exchange of correspondence ensued, which is contained in the record on appeal.
On July 5, 1979, plaintiffs commenced this action against defendant. Defendant moved for summary judgment on the basis that plaintiffs’ suit was barred by the one-year period of limitation contained within the no-fault insurance act. MCL 500.3145(1); MSA 24.13145(1). The trial court treated defendant’s motion for summary judgment as a motion for accelerated judgment and granted it as such, although the order of judgment entered on December 22, 1980, is denominated "summary judgment”.
Two issues are raised on appeal. First, plaintiffs allege that a six-year period of limitation for breach of contract applies to their suit. Second, plaintiffs contend that if the one-year period of limitation set forth in the no-fault insurance act applies to this case, defendant nevertheless is es-topped from asserting it by having engaged in dilatory tactics.
Plaintiffs’ primary contention on appeal is that defendant breached its contract by arbitrarily setting the amount of work loss it was going to pay Donald Bohlinger and that, since the dispute is over the sum to be paid according to the terms of the policy, the proper time limitation for recovery is six years under MCL 600.5807; MSA 27A.5807. This proposition is without merit.
MCL 500.3145(1); MSA 24.13145(1), in pertinent part, provides:
"(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.”
It is well settled by prior decisions of this Court that this section establishes the time limitation for bringing an action for the recovery of personal protection insurance benefits. English v Home Ins Co, 112 Mich App 468; 316 NW2d 463 (1982); Allstate Ins Co v Frankenmuth Mutual Ins Co, 111 Mich App 617; 314 NW2d 711 (1981); Aldrich v Auto-Owners Ins Co, 106 Mich App 83; 307 NW2d 736 (1981); Dozier v State Farm Mutual Automobile Ins Co, 95 Mich App 121; 290 NW2d 408 (1980).
The language of the statute is clear and unambiguous and we see no reason for departing from the literal interpretation. It is both a statute of limitations and a recovery limitation provision. It allows an action to be commenced at any time within one year of the most recent "allowable expense”. It also limits recovery of personal property insurance benefits to losses incurred within one year prior to the action. English, supra; Allstate, supra; Aldrich, supra.
Plaintiffs contend that a dispute over the "existence” of a loss should be distinguished from a dispute over the "amount” of a loss and that the one-year limitation period of MCL 500.3145(1) applies only to the former, whereas the six-year limitation period provided for general contract actions (MCL 600.5807) applies to the latter. This is contrary to the clear language of the statute, and to so hold would be to indulge in unwarranted judicial legislation.
Since some payments have already been made by defendant, plaintiffs could properly commence an action for personal protection insurance benefits at any time after the most recent allowable expense was incurred. Plaintiffs’ recovery, however, is limited to only those losses incurred within one year prior to the date on which their action was commenced.
Work-loss benefits (the only benefits now claimed by plaintiffs) are recoverable as compensation for loss of income from work an injured person would have performed during the ñrst three years after the date of the accident if he had not been injured. MCL 500.3107; MSA 24.13107. Plaintiff Donald Bohlinger’s right to work-loss benefits ended December 9, 1977. Therefore, plaintiffs had until December 9, 1978, to initiate a timely action, with recovery being limited to work-loss incurred within one year prior to the date of filing. Since all loss claimed by plaintiffs had been incurred more than one year before commencement of this action, defendant’s motion was properly granted.
Plaintiffs’ contention that defendant is estopped from pleading the limitation provisions of MCL 500.3145(1) was not seriously argued in the trial court. The question on appeal is whether the trial court erred in concluding that plaintiffs failed to allege facts sufficient to estop defendant from asserting the period of limitation as a defense.
A plaintiff who relies upon an estoppel theory to avoid a statute of limitations defense must show "that the conduct of the defendant has induced the plaintiff to refrain from bringing action within the period fixed by statute, and that such conduct should estop the defendant”. Renackowsky v Bd of Water Comm’rs of Detroit, 122 Mich 613, 616; 81 NW 581 (1900). Actions by a defendant relevant to establishing estoppel include concealment of a cause of action, misrepresentation as to the statutory time in which an action may be brought, and inducement not to bring the action. Yarger v City of Hastings, 375 Mich 413, 418-419; 134 NW2d 726 (1965). A promise to pay or settle a claim, special knowledge on the part of a defendant, and fiduciary relationship are also factors to consider. DiGiovanni v Yacenick, 9 Mich App 590, 596; 157 NW2d 785 (1968).
The only allegations in the complaint pertaining to defendant’s handling of plaintiffs’ claim are set forth in ¶ 6:
"6. That defendant, Detroit Automobile Inter-Insurance Exchange, began payment of benefits due and owing to the plaintiffs until such time that it arbitrarily, unreasonably, without excuse or legal justification, wilfully and intentionally breached and repudiated its contract of insurance and withheld or otherwise refused payment, contrary to the Statutes of the State of Michgian, MCL 500.3004 et seq. ”
In response to defendant’s pleading as an affirmative defense:
"3. That plaintiff has filed this instant action on July 5, 1979, beyond the applicable one year statute of limitations as provided in MCL 500.3145(1)”,
plaintiff merely pleaded as follows:
"Now come the above-named plaintiffs, by and through their attorneys, Metry, Metry & Sanom, by Frederick E. Metry, and hereby deny the allegations contained in defendant’s affirmative defenses because they are untrue.”
Plaintiffs failed to submit affidavits or other evidence of estoppel in opposition to the period of limitation defense. GCR 1963, 116.3. The pleadings fail to establish a basis for equitable estoppel that would bar the operation of the period of limitation. Plaintiffs allege no representation or conduct by defendant which misled them, or upon which they reasonably relied, to the extent that they failed to bring the action within the statutory period.
Plaintiffs’ "Answer to Defendant’s Motion for Summary Judgment” asserts that "defendant waived the statute of limitations, MCL 500.3145(1), through negotiations and dilatory tactics”. In support of these conclusions plaintiffs offer only appended copies of correspondence between plaintiffs, defendant and the Michigan Department of Commerce Insurance Bureau. At the hearing on defendant’s motion for summary judgment the trial court considered plaintiffs’ argument for estoppel and the letters in question and concluded as follows:
"At some point in time the insurance company did cancel his benefits and suit was not brought for something like two years after that. And I don’t believe from reading the letters and the correspondence that there was any [negotiation] here. I just think he’s out of luck here.”
We agree.
Defendant’s letter of July 20, 1977, merely acknowledges receipt of a "letter of retention” from plaintiffs’ attorney.
Defendant’s letter of September 14, 1977, states defendant’s reason for reducing Donald Bohling er’s wage-loss benefits in May, 1975, and for the termination of said benefits in April, 1977.
In response to a letter dated January 30, 1978, from plaintiffs’ attorney seeking a copy of Donald Bohlinger’s insurance policy and further explanation for the reduction of wage-loss benefits, defendant’s letter of February 10, 1978, succinctly concluded, "* * * I refer you to my September 14, 1977 correspondence addressed to you. Our file is closed.”
The remainder of the correspondence consists of letters between plaintiffs’ attorney and the Insurance Bureau and defendant and the Insurance Bureau, the final item being a letter from the Insurance Bureau to plaintiffs’ attorney dated May 5, 1978. Said correspondence contains nothing which plaintiffs could allege by amended pleading to be a reasonable basis for good-faith failure to commence -action within the statutory period, either under the doctrine of equitable estoppel or a theory of promissory estoppel.
Finally, as the trial court noted, plaintiffs did not commence this action until substantially more than one year after the date of the last of the letters submitted in support of their estoppel theory.
"[A]n estoppel will be deemed effective only for so long as the creditor reasonably relied upon the defendant’s representations as an excuse for not instituting the action. According to some authorities, where a debtor, by his representations, promises, or conduct, is estopped to assert the statute of limitations, the estoppel continues until the plaintiff is given a reasonable time in which to sue. According to other authorities, the estoppel continues, following the expiration of the statutory period, until the creditor is allowed an equal period in which to commence the action.” (Footnotes omitted.) 51 Am Jur 2d, Limitation of Actions, § 437, p 903.
Assuming arguendo that plaintiffs’ pleadings incorporating their answer to defendant’s motion for summary judgment and attached letters are sufficient to allege an equitable estoppel to the limitations defense, the clearly unsatisfactory conclusion of correspondence left plaintiffs with no reasonable basis for not instituting action. The Legislature having determined one year to be a reasonable and appropriate period for bringing this type of action, plaintiffs are deemed to have a like period following termination of the estoppel within which to bring action.
Plaintiffs have not suggested, even in general terms, how any representations or conduct of defendant insurance company induced them not to commence suit. There has been no allegation of fact which would indicate any action on the part of defendant to hinder plaintiffs’ bringing their action. Rather, the facts indicate that plaintiffs ill-advisedly sought to resolve their dispute with defendant through the Michigan Insurance Bureau rather than by litigation. Upon consideration of all factors relevant to plaintiffs’ claim of equitable estoppel, plaintiffs must be deemed to have sat on their rights while the statutory time in which they could have brought their action ran out.
The judgment entered by the trial court is affirmed. Costs to defendant. | [
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Per Curiam.
In August, 1974, William Gage (plaintiff), as administrator of the estate of Frederick Denlar, filed, suit against Ford Motor Company (Ford) and Buffalo Scale Company (Buffalo), in Wayne County Circuit Court. The complaint alleged that in February, 1969, plaintiffs decedent was fatally injured while working on Ford property and while standing on a scale manufactured and installed by Buffalo. Plaintiff alleged negligence and product liability. The cause was dismissed as to Buffalo, pursuant to stipulation by the parties, on February 1, 1978. Great American Insurance Company was added as a party plaintiff on February 6, 1978.
The case was tried before a jury and, at the close of all the proofs, defendant moved for a directed verdict of no cause of action. The lower court denied the motion for directed verdict.
On March 13, 1979, the jury returned a verdict in favor of plaintiff in the amount of one and a half million dollars. An order denying defendant’s motion for a judgment non obstante veredicto and for a new trial was entered on June 12, 1979.
Before the accident, plaintiff’s decedent was a truck driver for the Edward Levy Company (Levy). Levy and Ford entered into a contract whereby Levy would remove steel wastes (slag) from a Ford steel plant. Levy sold the slag material, after processing it, for some productive purpose. Ford charged Levy for the slag on a quantity basis. Levy was required to build the necessary facilities for processing the slag and conveying it across the Rouge River to levy’s own plant. Levy was allowed to build the facilities on Ford property.
Levy trucks would enter the Ford plant, load the slag into the trucks and then leave through gate 12. On the other side of the gate, the truck would drive onto a scale for weighing the slag. The truck driver would punch a ticket which would indicate the weight of the slag. The material would then be dumped into a crusher and processer. Some of the material would be returned to Ford and the rest was conveyed across the river to the Levy plant.
At trial, Mr. Fisher testified that he was employed by Levy and was working at the Ford steel mill loading slag on the date of the accident. He stated that only Levy employees conducted this operation. At the end of the day and after loading the last load of slag onto decedent’s truck, Mr. Fisher rode out of the Ford plant with him. Decedent’s truck was a 30-ton capacity dump truck.
After decedent drove the truck onto the scale, there was only about a foot and a half on each side of the scale. The scale was eight to ten feet above ground. There was no guardrail on the side of the scale. Steel cables were strung perpendicular to the scale, but they were always loose, according to the witness. Decedent got out of the truck in order to go to the ticket punching machine. Mr. Fisher also jumped out of the truck on the passenger side, a moment or two later than the decedent. As Mr. Fisher was exiting from the truck, he heard the decedent cry for help. He went around the truck and looked over the side of the scale. He observed the decedent lying on the ground, motionless. The decedent told Mr. Fisher that he got caught in the cables and fell.
Mr. Fisher sent for an ambulance. The decedent was taken to the hospital where it was determined that he was paralyzed from the neck down. Decedent died within two years of the accident, as the result of complications from the injury.
Interrogatories were then read into evidence. The defendant admitted ownership of the scale but stated that it was unknown who designed or installed it. There appeared to be some confusion concerning to which scale the interrogatories were referring. Levy had another operation in the same plant and a different gate, gate 6. Ford told the judge that it was confused by the interrogatories and thought that they were referring to the scale at gate 6, since the questions talked about plant 6. The judge told Ford that it would have a chance to enter any other interrogatories or evidence to clear up any confusion.
Decedent’s widow testified that in their ten years of marriage they had four children. The decedent was a healthy, active person prior to the accident. Two weeks prior to the accident, she had started working outside the home for the first time since their marriage.
After the accident, her husband spent the next nine months in the hospital. He was paralyzed from the neck down. He was in a lot of pain and was very depressed. She wanted to care for him, so he went home when the doctor stated that they could no longer help him at the hospital. He died after being home for 11 months without any recovery from the paralysis.
Hospital records and wage earning records were entered into evidence. The contract between Levy and the defendant was entered into evidence and a copy was given to each juror to read.
Dr. Greenslit testified as follows: The decedent’s fourth and fifth vertebrae were crushed, thereby paralyzing him. His breathing and bowel and bladder functions were impaired. He developed pneumonia at one time during his stay at home from the breathing impairment. The decedent was in a great deal of pain in his shoulder, upper arm and neck areas because these areas still had a little nerve supply. The chances of death in a parapalegic with impaired bodily functions, such as the decedent, is very great. Death usually occurs within six months of the injury. The decedent died of chronic pyelonephritis uremia, which is a poisoning of the body resulting from kidney and bladder infection. This was a result of the initial injury.
The defendant called Mr. Doroshewitz to testify. He testified as follows: He is a Ford industrial engineer in the steel division. Ford and Levy entered into the contract concerning the gate 12 operations in 1962. Levy built the slag crushers, conveyers and other facilities on Ford property, pursuant to the contract, in 1963. No Ford employees were involved. Ford did not have the scale at gate 12 listed on its property list so he assumed it was not owned by Ford but by Levy. The only trucks using the scale at gate 12 were Levy trucks, to the best of his knowledge. No Ford trucks used the scale. Ford did not do any maintenance or have anything to do with the scale, with two exceptions. They checked the accuracy of the scale occasionally. Also, Ford complained to Levy of the slag flying off the trucks and onto Ford employees’ cars.
Mr. Levy testified as follows: He is the president of the Edward C. Levy Company. He negotiated the 1962 contract. Levy built the facilities on the Ford premises at gate 12. Levy owns the scale from which the plaintiff fell. It was purchased by Levy for use at the Ford operations. The scale is 13 feet wide. Only Levy people were involved in installing it. No Ford people were involved except to show Levy where water mains were so they would not hit them, and other similar types of warnings. If maintenance was needed on the Levy scale, Levy people would do it.
On cross-examination, it was pointed out that Levy does substantial business with Ford through several Levy subsidiaries.
This matter was scheduled to be argued in the Court of Appeals during the June, 1980, case call and was heard on June 19, 1980. Defendant filed a motion on June 10, 1980, and noticed said motion for hearing on June 17, 1980. The motion was entitled: "Motion of defendant-appellant Ford Motor Company to amend or strike answers to inter rogatories”. By order of this Court the hearing on the motion took place on the call of this appeal on June 19, 1980. The motion was denied on June 24, 1980, and a motion for rehearing was also denied July 16, 1980.
Defendant argued in support of its motion to amend or strike answers to interrogatories that the suit herein was brought some five years after the accident, thereby causing Ford difficulty in investigation, which difficulty was compounded by plaintiffs alleged incorrect description of the accident site. The answers to plaintiffs interrogatories of October 14, 1975, were read to the jury by plaintiffs attorney over defendant’s objection. Ford contended that the incorrect interrogatory answer indicated that, on information and belief, the scale was owned by Ford, but used, controlled, and maintained by Levy Company. Ford contends that the statement of facts in its brief on appeal is conclusive on the issue of ownership, control and maintenance of the scale, as it recites undisputed testimony from trial to the effect that Edward C. Levy Company, and not Ford, purchased, installed, constructed, maintained, repaired, owned and controlled the scale. Relying on GCR 1963, 820.1, Ford requested that this Court enter an order striking the incorrect answers made to the plaintiffs supplemental interrogatories, or allow the damaging answer to be amended, or allow further evidence to be submitted to show that the answer was incorrectly given.
Plaintiff correctly indicates that the motion before this Court was noticed to be heard two days before the scheduled oral argument of this appeal. At no time prior to trial did defendant attempt to amend or to explain these answers. At trial, defendant did not call D. R. Jolliffe, who answered the interrogatories, to explain his answers. During the first day of trial, defense counsel represented that the answers were in error. The trial court allowed the answers to be read to the jury and the defense was given an opportunity to offer contrary evidence.
At the close of proofs, defendant moved for a directed verdict of no cause of action on the ground that Ford and Levy had a lessor-lessee relationship, thereby absolving Ford of any liability in this matter. The lower court heard argument, considered the briefs, and concluded that the contract was not a lease but a license or permit. Defendant’s motion was denied. The lower court also denied Ford’s motion for a judgment notwithstanding the verdict, which was premised on the same argument.
When reviewing the lower court’s denial of a motion for a judgment non obstante veredicto, this Court must give the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. Where reasonable men could differ as to whether the plaintiff has satisfied his burden of proof on the necessary elements of the cause of action, the lower court properly denied the motion. Cormack v American Underwriters Corp, 94 Mich App 379, 382; 288 NW2d 634 (1979). This is the same standard of review for motions for directed verdicts. Kucken v Hygrade Food Products Corp, 51 Mich App 471; 215 NW2d 772 (1974).
In the case at bar, the lower court properly considered the terms of the contract in determining that the parties did not intend to create a leasehold by the agreement. McCastle v Scanlon, 337 Mich 122; 59 NW2d 114 (1953).
Based upon a thorough reading of the contract, it is evident that Levy’s use of the Ford property was dependent upon the continuance of the slag operation and that Levy could use the property only for that purpose. Consideration was measured on a per pound basis, rather than a monthly or annual lease. Ford was still permitted to enter the land and to give Levy instruction on how to keep it safe. The parties themselves called it a "land use permit”, rather than a lease. The permit was revocable within 90 days, at will. Therefore, we find that the lower court did not err in holding that it was a license or permit, rather than a lease.
Defendant argues that even if the contract did create a permit rather than a lease, the defendant was not liable for the faulty scale, which was owned and installed by Levy. Since this issue was not raised in the lower court, it is not properly before this Court for review.
At any rate, we find that the issue is without merit. Case law on the duty of the invitor to the invitee must be examined. Decedent, being on defendant’s premises for a purpose beneficial to both parties, was an invitee. Kucken, supra, Dobbek v Herman Gundlach, Inc, 13 Mich App 549; 164 NW2d 685 (1968), lv den 381 Mich 804, 806 (1969). In such cases, the invitor has a duty to exercise reasonable care not to injure him and to warn him of latent dangers of which defendant knew or reasonably should have known. Kucken, supra, Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965).
The evidence was uncontradicted that Ford owned the property where the plaintiff was injured. The evidence as to who owned and maintained the scale was conflicting. Ford’s own answer to plaintiffs interrogatory admitted ownership of the scale. Ford told the judge that it was confused when the interrogatories were answered because it thought the question was referring to another scale. The judge properly told Ford that it could present supplemental interrogatories and other evidence, if desired, in order to refute its answer but ruled that the answers to said interrogatories were admissible. Ford introduced the testimony of Mr. Levy, who stated that he owned, installed and maintained the scale. A Ford employee stated that Ford did not own the scale. There being evidence upon which reasonable men could differ as to the ownership of the scale, the lower court properly allowed the question to go to the jury.
Ford raises several objections to the jury instructions. Since defendant failed to object to the instructions, this issue was not properly preserved for review. Tiffany v The Christman Co, 93 Mich App 267; 287 NW2d 199 (1979), GCR 1963, 516.2. At any rate, we hold that, reviewing the instructions as a whole, the theories of the parties and the applicable law were fairly and adequately presented to the jury. Berline v Snyder, 89 Mich App 38; 279 NW2d 322 (1979), lv den 407 Mich 867 (1979), Dowell v General Telephone Co of Michigan, 85 Mich App 84; 270 NW2d 711 (1978), lv den 405 Mich 803 (1979).
Ford further alleges that various remarks made by opposing counsel denied it a fair trial. With one exception, Ford failed to object to the remarks thus waiving review of this issue. Hatten v Bane, 16 Mich App 10; 167 NW2d 466 (1969), lv den 382 Mich 753 (1969). Reading the entire transcript, it cannot be said that Ford was denied a fair trial. Wayne County Board of Comm’rs v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975).
If we could assume that the answer to the interrogatory in question was in fact erroneous, submission of such an answer to the jury for its consideration, and a determination by the jury in favor of the plaintiff based on the answer to the interrogatory, would in effect defeat the truth-seeking process in this case. We cannot so assume based on what was submitted for our consideration.
There was an absence of any motion to strike or amend the answers to interrogatories in the court below. Other than argument of defense counsel, the record is devoid of any explanation by D. R. Jolliffe, who answered the interrogatory, as to why he answered as he did. If there was confusion or mistake, defendant had a chance to rebut the answer and to offer contrary testimony. As the record stood, ownership of the scale was a question of fact. The instructions given by the court to the jury left it to the jury to decide who owned the scale. Defendant did not object to the jury instructions. Following the entry of a judgment on the verdict, the defendant filed a motion for a judgment notwithstanding the verdict or for a new trial. The reasons recited in support of the motion did not raise any claimed error regarding the submission to the jury of the answer to the interrogatory alleged to have been erroneously made by an authorized agent of the defendant.
Argument of counsel on appeal of this matter was heard on June 19, 1980. On June 10, 1980, defendant had filed a motion pursuant to GCR 1963, 820.1(1), (4), (5), and (7) asking this Court to enter an order allowing it to file supplemental corrected answers to plaintiff’s interrogatories, or strike the incorrect interrogatory answer previously filed, and if necessary, continue the cause until further evidence could be taken, if the court should deem it necessary in order to do justice. Based on what was submitted for our consideration, a determination was made to deny the motion and an order was entered accordingly. This disposed of this matter insofar as this Court is concerned.
Affirmed with costs to plaintiff. | [
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] |
M. R. Knoblock, J.
This is an appeal, by leave granted, from an order of the trial court removing this action to arbitration. The following facts are taken from plaintiffs complaint and from the lower court records.
On February 27, 1978, plaintiffs decedent, Christine Edwards, was admitted as an inpatient in the defendant St. Mary’s Hospital for the purpose of undergoing surgery to remove a pituitary tumor. Prior to surgery Mrs. Edwards executed an arbitration agreement with the hospital. On February 28, 1978, the surgical procedure was performed by defendant Dr. Hedeman, with defendant Dr. Thompson serving as anesthesiologist. Plaintiff claims that, though Mrs. Edwards’ chart indicated she was allergic to penicillin, the chart was not consulted and she was intravenously administered a dose of ampicillin. As a result, shortly thereafter, she suffered a cardiovascular collapse and fell into a coma.
In April, 1978, while Mrs. Edwards remained in a comatose condition, her husband, the plaintiff in this action, mailed a letter signed by him to defendant hospital purportedly revoking the arbitration agreement. Mrs. Edwards remained as a patient in St. Mary’s Hospital until May 3, 1978. She died on August 4, 1978, without regaining consciousness.
On October 24, 1978, plaintiff Willie C. Edwards was appointed administrator of the estate of his deceased wife by probate court order, and on April 23, 1979, commenced this suit alleging professional negligence. Defendants moved for an order to proceed to arbitration asserting the attempt to revoke the arbitration agreement was ineffective since plaintiff was not his wife’s "legal representative” as that term is used in the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., and, therefore, the revocation was ineffective. Plaintiff appeals from the trial court’s order granting defendant’s motion.
Plaintiff raises several issues on appeal but does not challenge the constitutionality of the medical malpractice arbitration act. Though this issue was not raised, since we find it dispositive of this appeal, we think it proper to consider it. See Dearborn v Bacila, 353 Mich 99; 90 NW2d 863 (1958); Vermeylen v Knight Investment Corp, 73 Mich App 632; 252 NW2d 574 (1977); People v Noel, 88 Mich App 752; 279 NW2d 305 (1979).
There is a difference of opinion reflected in the decisions of the Court of Appeals as to the constitutionality of the medical malpractice arbitration act with one unanimous panel upholding its constitutionality, Brown v Siang, 107 Mich App 91; 309 NW2d 575 (1981), and one unanimous panel finding it unconstitutional, Jackson v Detroit Memorial Hospital, 110 Mich App 202; 312 NW2d 212 (1981), lv gtd 412 Mich 885 (1981). Divided panels have held in accord with Brown, supra, in four cases; Morris v Metriyakool, 107 Mich App 110; 309 NW2d 910 (1981), lv gtd 412 Mich 884 (1981), Williams v O’Connor, 108 Mich App 613; 310 NW2d 825 (1981), Cushman v Frankel, 111 Mich App 604; 314 NW2d 705 (1981), and Rome v Sinai Hospital of Detroit, 112 Mich App 387; 316 NW2d 428 (1982); and one in accord with Jackson, supra; Piskorski v Art Centre Hospital, 110 Mich App 22; 312 NW2d 160 (1981). The issue is currently pending before the Supreme Court, leave having been granted in Morris, supra, and Jackson, supra. We are of the opinion that the reasoning set forth in Jackson, relying on the dissenting opinion in Morris, represents the better position, and we adopt that view.
Reversed and remanded for trial.
R. B. Burns, P.J., concurred. | [
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Per Curiam.
On October 15, 1979, at about 11:15 p.m., two Garden City police officers forcibly entered defendants’ home. They had no search warrant. The officers were attempting to arrest a third person who they believed was in the house. This third person, who was the subject of an outstanding arrest warrant for traffic violations, was not a resident of the house. The officers searched the house over defendants’ protests and after a scuffle at the door of the house. They did not find the man they sought, and left. They later sent tickets to the defendants for interfering with an officer in the discharge of his official duty. MCL 750.479; MSA 28.747.
The defendants were tried by jury in the 21st District Court. A guilty verdict was given, but Judge Richard L. Hammer entered a judgment of acquittal notwithstanding the verdict on March 11, 1980. Judge Hammer ruled that the search of defendants’ home was illegal, and therefore the defendants were rightfully defending their property. The City of Garden City appealed the acquittal to the Wayne County Circuit Court. Judge Charles Kaufman reversed the judgment and reinstated the jury’s verdict. The defendants appeal to this Court. We reverse.
In Steagald v United States, 451 US 204; 101 S Ct 1642; 68 L Ed 2d 38 (1981), federal Drug Enforcement Administration agents entered defendant Steagald’s home looking for Lyons. They had a warrant for Lyons’ arrest, but not a search warrant for Steagald’s home. While searching for Lyons, the agent discovered cocaine and other incriminating evidence. They arrested Steagald on drug charges. The trial court admitted the seized evidence over objection. The Supreme Court reversed, holding that the search was illegal.
The Court noted the difference in interests protected by arrest warrants and search warrants. When a magistrate considers issuing a search warrant, the interests in privacy in the areas to be searched or the items to be seized are directly considered. When issuing an arrest warrant, though, third persons’ interests are not generally considered by the magistrate. While the arresting magistrate considers the possibility that officers will have to enter the subject’s home on the strength of the arrest warrant alone, the possibility that other unknown residences may have to be entered is not considered. Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). It is too much to speculate whose interest will be implicated if officers can enter any home on the sole authority of an arrest warrant.
Steagald controls this case. Because the officers conducted a search of defendants’ house without first obtaining a search warrant, it was prima facie unreasonable. No exigent circumstances save this search from unconstitutionality. There was no danger that evidence of the underlying traffic violations would be destroyed.
Because the entry was unlawful, the defendants had a common-law privilege to use reasonable force to prevent this search. People v Krum, 374 Mich 356; 132 NW2d 69, cert den 381 US 935; 85 S Ct 1765; 14 L Ed 2d 699 (1965) (unlawful arrest). They therefore did not unlawfully interfere with police officers. The circuit court must therefore be reversed.
Defendants also raise as error a district court instruction on the right of police officers to enter any building to make an arrest after announcing their purpose and being refused admittance. See MCL 764.21; MSA 28.880. Because this Court is reinstating the judgment of acquittal, there can be no prejudicial error stemming from jury instructions. We therefore decline to address the validity of the instructions or the facial constitutionality of the statute. Steagald prohibits warrantless searches of third persons’ homes absent exigent circumstances. The Supreme Court in Steagald did not address searches of "any building”, and we similarly limit our discussion to the facts of this case.
We reverse and remand to the district court for reinstatement of the judgment of acquittal. | [
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M. E. Clements, J.
Plaintiff Detroit Edison Company (Edison) appeals as of right from a circuit court order granting summary judgment in favor of defendant Michigan Mutual Insurance Company (Mutual) and from a denial of a motion for reconsideration of that summary judgment order. Edison had sought a declaratory judgment and a declaration of duty to defend to compel Mutual to defend Edison in a personal injury suit that was then pending.
On March 23, 1976, Salvatore Tocco severely injured his left hand and arm in an accident at the Edison Monroe plant. Tocco was an employee of Michigan Boiler Company, which was doing work at the Edison plant.
At the time of the accident, Edison was insured by a comprehensive general liability policy issued by Mutual. The policy provides:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage A. personal injury or Coverage B. property damage to which this policy applies, caused by an occurrence or event arising out of (1) the work described in Item 4 of the declarations, (2) supervisory acts or omissions, including instructions and inspections, by the named insured in connection with such work and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”
Item 4, the description of work insured, contains the following language:
"All work let to any person or organization by The Detroit Edison Company and including all work performed by or for such person or organization on behalf of the named insured.”
Another provision of the policy excludes liability coverage for:
"personal injury or property damage arising out of any act or omission of the named insured or any of his employees, other than supervisory acts or omissions including instructions and inspections, of work performed for the named insured.”
Tocco filed suit against Edison seeking a total of $850,000 in damages. Paragraph 5 of the complaint alleged:
"That the negligence of the defendant, DETROIT EDISON COMPANY, consisted of improperly maintaining the machinery and equipment; failing to properly control the hydraulic devices and cylinders Plaintiff was required to work upon; that although the said Defendant knew or should have known that Plaintiff was working in the vicinity upon said hydraulic cylinders, Defendant recklessly and negligently left the cylinders in an operating condition and/or turned them on at the time he was working upon said cylinders, thereby causing the injuries and damages.”
When Mutual declined to defend this case, Edi son filed a complaint on September 9, 1977, to compel Mutual to defend the suit. After several hearings were held, the lower court judge granted Mutual’s motion for summary judgment finding that Tocco’s complaint alleged negligence on the part of Edison’s employees rather than supervisory acts or omissions.
Subsequently, Edison filed a motion for reconsideration of the summary judgment order based on the fact that Tocco had amended his complaint so that it specifically alleged that Edison’s negligence included its failure to properly supervise the project Tocco was working on. This complaint alleged that Edison failed to properly inspect the machinery and failed to warn Tocco of the condition of the hydraulic cylinders.
Mutual’s attorney filed an affidavit in response to Edison’s motion for reconsideration in which he stated that he had spoken with Tocco’s attorney who indicated that the amended complaint had been filed at Edison’s request, that the additional language had been supplied by Edison, and that the facts alleged in the original complaint were the ones being primarily relied on in the suit against Edison. The lower court judge, in denying the motion for reconsideration, emphasized the facts stated in Mutual’s affidavit.
Shortly before oral arguments on this appeal were heard, Tocco settled his claim against Edison for $50,000.
Because we find that the allegations in either Tocco’s original complaint or in his amended complaint established a duty to defend on the part of Mutual, we reverse the lower court’s summary judgment order in favor of Mutual.
The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party’s allegations to analyze whether coverage is possible. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. 14 Couch on Insurance 2d, § 51:45, p 538.
Applying these rules to the facts of this case, we find that Tocco’s original compláint created a duty to defend on the part of Mutual because it can reasonably be inferred from that complaint that Tocco was alleging that Edison failed to properly supervise his work to insure his safety. Several decisions from other jurisdictions have found that a duty to defend arose under circumstances similar to those involved in this case. Chesapeake & Potomac Telephone Co of Maryland v Allegheny Construction Co, 340 F Supp 734, 742-743 (Md, 1972), Continental Casualty Co v Florida Power & Light Co, 222 So 2d 58 (Fla App, 1969), Western Casualty & Surety Co v Southwestern Bell Telephone Co, 396 F2d 351 (CA 8, 1968).
Mutual cites Citizens Mutual Ins Co v Employers Mutual Liability Ins Co of Wisconsin, 49 Mich App 694; 212 NW2d 724 (1973), which was relied on by the lower court judge. In that case the defendant was insuring a sewer construction project to protect the City of Alma from claims arising out of the project. The policy excluded coverage for:
"any act or omission of the named insured or any of his employees, other than general supervision of work performed for the named insured by independent contractors.” 49 Mich App 698.
An employee of the sewer contractor was killed when a water main broke and flooded the sewer ditch. The employee’s co-workers could not shut off the water because no one had a hydrant key. The employee’s estate sued Alma for failing to inspect and supervise the construction operation and failing to provide the contractor with a hydrant key. The defendant, along with the plaintiff insurance company, participated in the defense of the negligence action against Alma under a denial of liability and a reservation of rights. The case was eventually settled for $45,000 and the plaintiff sued the defendant for reimbursement of the amount of the settlement.
This Court found that the defendant was not liable under the policy it had issued. Without citing any authority, this Court held that the policy coverage for "general supervision” did not include the failure to keep a hydrant key available for use in an emergency. On the contrary, this Court concluded, the failure to have the hydrant key available was the negligent act of an Alma employee and was, therefore, excluded from the policy coverage.
Citizens Mutual can be distinguished from the present case in that the insurer in Citizens Mutual had participated in the defense of the insured so that the principles applicable to a determination of whether a duty to defend existed were not involved. Further, the policy at issue in the present case specifically provided coverage for supervisory acts or omissions, including instruction and inspections. This emphasized language was not present in the policy litigated in Citizens Mutual.
In any event, we decline to follow Citizens Mutual to the extent that it is inconsistent with our holding today. Virtually every negligent supervisory act or omission can also be called employee negligence. To deny coverage for any injury resulting from a negligent supervisory act of an employee would render protection provided for liability resulting from supervisory acts meaningless.
In Signs v Detroit Edison Co, 93 Mich App 626; 287 NW2d 292 (1979), this Court stated that an employer of an independent contractor can be held liable for injuries to an employee of the independent contractor, despite the general rule to the contrary, where the employer has breached a duty to supervise properly. The policy at issue in the present case appears to provide coverage for such liability. Tocco’s claim against Edison was arguably within the policy coverage. The lower court erred in finding there was no duty to defend.
We must next determine the appropriate remedy in view of the settlement of Tocco’s claim against Edison. The general rule is that the insurer’s unjustified refusal to defend makes it bound to pay the amount of any reasonable, good faith settlement made by the insured in the action brought against him by the injured party. 14 Couch on Insurance 2d, § 51:54, p 552. In Elliott v Casualty Ass’n of America, 254 Mich 282, 287; 236 NW 782 (1931), the Court quoted with approval the following language from a Minnesota case:
" 'Where the insurer has agreed to settle or defend an action brought to recover of the insured for an accident covered by the policy, and has wrongfully refused to so settle or defend the action, and the insured defends the same and in good faith makes a settlement thereof, he may recover the amount paid on such settlement, unless it is shown that there was in fact no liability, or that the amount paid was excessive. The settlement is presumptive evidence that there was a liability, and as to the amount thereof.’ Butler Bros v American Fidelity Co, 120 Minn 157 (139 NW 355, 44 LRA [NS] 609); 14 RCL, p 1322; 36 CJ, p 1116.”
The Elliott Court indicated that two options are available to an insurer when it is asked to defend an action brought against the 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. In Elliott, the insurer refused to defend. When the insured brought suit to recover the amount of the settlement, the insurer presented no evidence to show that there was no liability or that the settlement was unreasonable or not made in good faith. The Elliott Court, therefore, ordered the insurer to pay the amount of the settlement.
Mutual contends that its refusal to undertake Edison’s defense was not wrongful because it had obtained a lower court ruling in the declaratory judgment action that it had no duty to defend. Elliott suggests that the best way for an insurance company to protect itself is to defend the action against the insured while giving notice that it is not waiving its right to deny its own liability on the policy. In Zurich Ins Co v Rombough, 384 Mich 228, 235; 180 NW2d 775 (1970), the Court spoke out against the practice of delaying third party actions against an insured while the insurer’s duty to defend is determined in a separate declaratory judgment action. When an insurer relies on a lower court ruling that it has no duty to defend, it takes the risk that the ruling will be reversed on appeal. The lower court, ruling that Mutual had no duty to defend does not make the principle set forth in Elliott any less applicable to this case.
Because Edison did not enter into the settlement with Tocco until after the declaratory judgment action had been decided in circuit court, Mutual has not had an opportunity to present evidence to show that the settlement was unreasonable or made in bad faith or that there was no liability. Before a judgment for the amount of the settlement is entered against Mutual, Mutual should be allowed to attempt to make such a showing. Elliott, supra. In view of the ambiguity in the complaint against Edison as to whether supervisory or nonsupervisory negligence was being alleged, Mutual should also be permitted to attempt to show that, even though Edison was liable to Tocco, Edison’s liability was not covered by the policy issued by Mutual. See Dochod v Central Mutual Ins Co, 81 Mich App 63, 67; 264 NW2d 122, 123-124 (1978), Afcan v Mutual Fire, Marine & Ins Co, 595 P2d 638 (Alas, 1979), Thornton v Paul, 74 Ill 2d 132; 384 NE2d 335 (1978). But see Space Conditioning, Inc v Insurance Co of North America, 294 F Supp 1290 (ED Mich, 1968).
Reversed and remanded for proceedings not inconsistent with this opinion. | [
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] |
J. H. Gillis, P.J.
Plaintiff appeals a July 12, 1979, order of the Genesee County Circuit Court which granted partial accelerated judgment to the defendant.
Plaintiff’s decedent began treatment at defendant hospital on October 30, 1975, under the care of Paul Markunas, M.D., a staff physician. That treatment continued until January 28, 1976. The decedent thereafter sought treatment at a different hospital. On March 5, 1976, the decedent was diagnosed as having a long-standing cancerous condition. He died on December 13, 1977.
Plaintiff filed her complaint on September 28, 1978, alleging that defendant: (1) failed to properly supervise the care and treatment provided the decedent by Dr. Markunas, (2) failed to utilize proper diagnostic techniques, and (3) was negligent in the selection and retention of Dr. Markunas as a staff physician.
On November 8, 1978, defendant moved for accelerated and summary judgment, arguing respectively that this is a medical malpractice action barred by a two-year statute of limitations, MCL 600.5805(3); MSA 27A.5805(3), and that governmental immunity barred the suit. The motion for summary judgment was denied. That denial has not been appealed.
The motion for accelerated judgment was granted in part. The lower court reasoned as follows:
(1) This is a wrongful death action;
(2) Plaintiff’s first and second allegations allege medical malpractice;
(3) A two-year statute of limitations applies in a wrongful death action where the alleged wrong is medical malpractice;
(4) A medical malpractice action must be filed within two years of the date of the injured person’s last treatment or within six months after that person discovers or should have discovered the existence of the claim, whichever is later, MCL 600.5838; MSA 27A.5838;
(5) Plaintiff’s complaint was not filed within either of these periods;
(6) Allegations (1) and (2) were barred by the running of the statute of limitations;
(7) Plaintiff’s third allegation alleges general negligence. Thus, a three-year statute of limitations is applicable. MCL 600.5805(7); MSA 27A.5805(7). That period had not run as of the date on which plaintiff filed her complaint. Plaintiff’s third allegation was not barred by the running of the applicable statute of limitations.
Accelerated judgment was granted as to allegations (1) and (2) and denied as to allegation (3). Plaintiff appeals the grant of accelerated judgment as to allegations (1) and (2). We reverse.
We begin our analysis by emphasizing that this is a wrongful death cause of action, and that "the wrongful death statute is a remedial act intended to provide compensation to persons whose injuries are real but of a type not actionable at common law”. Crystal v Hubbard, 92 Mich App 240, 243; 285 NW2d 66 (1979), lv gtd 408 Mich 895 (1980). These persons are "of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate”. The damages which may be recovered in such an action include "recovery for the loss of the society and companionship of the deceased”. Finally, "[t]he amount recovered in every such [wrongful death] action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto”. MCL 600.2922(2); MSA 27A.2922(2).
Given the identity of the persons who may recover in a wrongful death suit and the nature of the damages which are assessed therein, it is generally held that a wrongful death cause of action does not accrue until the death occurs. Coury v General Motors Corp, 376 Mich 248, 251; 137 NW2d 134 (1965). Likewise, in wrongful death cases which are grounded on medical malpractice, regardless of when the malpractice cause of action accrues, the wrongful death plaintiff’s cause of action could not accrue until death occurred. See, e.g., Weiss v Bigman, 84 Mich App 487, 496; 270 NW2d 5 (1978), lv den 405 Mich 820 (1979) (Cav anagh, J., concurring separately). Were it otherwise, the personal representative of the decedent (by whom the suit must be brought) would have to be prescient, or the suit would be barred in cases where the limitation period runs before death occurs.
Given the fact that plaintiffs decedent died on December 13, 1977, and that the complaint was filed on September 28, 1978, we need not reach the issue of which statute of limitations applies. As this suit was brought within one year of the date of death, it matters not whether we apply the two-year medical malpractice statute or the three-year statute for all other actions to recover for injuries to persons and property. Accordingly, allegations (1) and (2) of plaintiffs complaint were not barred by the running of the statute of limitations. The grant of partial accelerated judgment was erroneous and is reversed.
Reversed and remanded for proceedings consistent with this opinion.
A. C. Miller, J., concurred.
We distinguish the present case from medical malpractice cases which do not result in death. In such cases we note that the accrual of the cause of action is governed by MCL 600.5838; MSA 27A.5838.
In September 1978, MCL 600.5805(3); MSA 27A.5805(3).
In September 1978, the correct statutory citation was MCL 600.5805(7); MSA 27A.5805(7). Effective December 1978, this section was amended to provide that "[t]he period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property”. MCL 600.5805(8); MSA 27A.5805(8). (Emphasis supplied.) | [
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Per Curiam:.
Defendant was convicted, on her pleas of guilty, of delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and of being a seventh offender under the habitual offender statute, MCL 769.12; MSA 28.1084. Pursuant to a sentence agreement reached with the trial court, defendant was sentenced to a prison term of from 4 to 20 years. She now appeals by right.
Defendant first argues that the controlled substances provisions of the Public Health Code violate the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. The parties have filed excellent briefs on this issue. While admitting that it is a close question, we elect to follow People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980), and find no constitutional infirmity.
Defendant also contends that her guilty plea was the result of an illusory sentence agreement. She argues that because her conviction in the instant case was for an offense contained in article 7 of the Public Health Code she could only be supplemented under the provisions of that article, MCL 333.7413; MSA 14.15(7413), and not under the general habitual offender statutes, MCL 769.10 et seq.; MSA 28.1082 et seq. She then argues that since none of her prior convictions were for drug-related offenses no supplementation was possible and she faced only a 20 year maximum sentence rather than a possible life sentence.
The sentence supplementation provisions of article 7 which are claimed to be applicable to the instant case provide:
"(2) Except as otherwise provided in subsection (1), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both.
"(3) For purposes of subsection (2), an offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to a narcotic drug, marihuana, depressant, stimulant, or hallucinogenic drug.”
MCL 333.7413(2)-333.7413(3); MSA 14.15(7413)(2)-14.15(7413)(3). Clearly, these provisions are applicable only to an individual who has at least one prior conviction on a drug-related offense. Because the defendant has no such convictions, the statute is inapplicable by its own terms. For this reason, defendant’s reliance on People v Edmonds, 93 Mich App 129, 135; 285 NW2d 802 (1979), lv den 408 Mich 918 (1980), is misplaced. See, also, People v Elmore, 94 Mich App 304; 288 NW2d 416 (1979). This is not a case where the sentence enhancement provisions of article 7 and those of the general habitual offender statutes are both seemingly applicable. Use of the general habitual offender statutes was permissible.
Affirmed._
Defendant does not deny the existence of the six prior convictions, but points out that the first three convictions arose out of a single plea-taking proceeding and that the offense which became the fifth conviction took place before the date of the fourth conviction. Accordingly, she argues that for purposes of the habitual offender statute she had only three prior convictions. See People v Phillip Smith, 90 Mich App 572; 282 NW2d 399 (1979), rev’d on other grounds, 407 Mich 906 (1979), People v Roderick Johnson, 86 Mich App 77; 272 NW2d 200 (1978). We disagree. The rationale of the above-cited cases is that the habitual offender statutes do not apply unless the prior felony convictions exist at the time of the commission of the subsequent felony for which the defendant is to be supplemented. At the time of the commission of the offense in the instant case, defendant had six prior felony convictions. Accordingly, defendant was properly charged as a seventh offender.
Edmonds and Elmore involved application of § 48 of the Controlled Substances Act, MCL 335.348; MSA 18.1070(48), which has since been repealed. The provisions of MCL 333.7413(2)-333.7413(3); MSA 14.15(7413)(2)-14.15(7413)(3), are almost identical to § 48 of the Controlled Substances Act. | [
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Per Curiam.
Defendant was charged with the armed robbery, MCL 750.529; MSA 28.797, of a clothing store. A jury found him guilty as charged and he was ultimately sentenced to a term of from 15 to 30 years in prison.
While the police were investigating at the scene of the crime, they were told by one Sylvester Fields that he knew where the people who had robbed the store lived. Fields had seen three men, allegedly including defendant, running through the alley carrying clothing shortly after the robbery had occurred. The police were led by Fields to the defendant’s home. The police had no information that anyone had recently entered the house. Three patrolmen and one sergeant were at the house when the decision to announce their presence was made. When the police knocked on the door and identified themselves, they heard some running and men talking inside. The officers, receiving no response, forced upen the door. Somewhere between 15 to 30 minutes had elapsed from the time of the robbery until the police forcibly entered defendant’s house. Defendant was found hiding in the basement under a pile of clothes. Donald Kline and Robert Owens were also found hiding in the house along with stolen items from the clothing store. Defendant had $284 in cash and a woman’s diamond ring, which had been stolen from a salesperson in the store, on his person. Robert Owens had $322 and an Omega watch on his person.
Kline pled guilty to the charge of armed robbery and testified that defendant was not involved in the crime. People v Kline, 113 Mich App 733; 318 NW2d 510 (1982). Defendant testified that he was home in his basement repairing a broken water pipe at the time of the robbery.
Defendant raises a number of issues, one of which requires reversal. Defendant argues that the police lacked probable cause to conduct a warrant-less search and seizure at defendant’s residence and, therefore, the resulting evidence should have been suppressed.
The lower court’s decision denying the motion to suppress, according to the briefs filed in this appeal, was grounded on the position that the police were in "hot pursuit” and therefore, were justified in entering the house. Once the officers were in the house, the evidence seized apparently was in "plain view”. Both of these terms relate to exceptions to the warrant requirements of US Const, Am IV, and Const 1963, art 1, § 11. All too often, terms such as these are used in an arcane manner without solid legal analysis.
A warrantless search is unreasonable per se unless there exists both probable cause and circumstances establishing one of the delineated exceptions to the warrant requirement. People v Mullaney, 104 Mich App 787, 792; 306 NW2d 347 (1981). Probable cause has been defined as a state of mind which stems from some fact, circumstance or information which would create an honest belief in the mind of a reasonably prudent person. People v Gwinn, 47 Mich App 134, 140; 209 NW2d 297 (1973). Exigent circumstances are present where immediate action is necessary to: (1) protect the police officers or other persons, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the suspect. People v Dugan, 102 Mich App 497, 503; 302 NW2d 209 (1980).
In Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980), the Court held that absent exigent circumstances, a warrantless, non-consensual entry into a house to make a routine felony arrest is prohibited. People v Woodward, 111 Mich App 528; 314 NW2d 680 (1981). In Woodward, a panel of this Court found the forcible entry into the home and the subsequent arrests of the defendants therein to be illegal due to the lack of exigent circumstances. The police were led to the Woodward house by one of the apprehended participants in the underlying robbery shortly after the crime. After announcing themselves as police, the team of officers heard running inside the house which prompted the police to force open the door. On the basis of Payton, the warrantless arrests were found to be illegal due to the lack of exigent circumstances.
In People v Van Auker, 111 Mich App 478; 314 NW2d 657 (1981), the people argued that a warrantless, nonconsensual entry was necessary to prevent defendant’s escape and prevent destruction of evidence. The Court stated:
"There was testimony that at least five police officers were present at the time of defendant’s arrest and that there was only one entrance to the apartment in which he was hiding. Under these circumstances, we believe that the officers could have kept watch over the building and prevented any attempted escape while waiting for an arrest warrant to be issued.” 111 Mich App 482.
The Woodard and Van Auker decisions demonstrate that the term exigent does not mean expedient. The officers in Woodard knew nothing more than that defendant lived in the house, not that he was in the house. The running they heard did not create exigent circumstances. The officers in Van Auker had the apartment completely under their control and the defendant could not escape and they were in no danger. Therefore, they were required to obtain a warrant rather than forcibly enter the dwelling, which was more expedient.
In the case at bar, the officers had the house under control. They were in no danger and there was no testimony that the police believed defendant could escape or would destroy valuable evidence. Exigent circumstances were lacking in this case.
The prosecutor cites Warden v Hayden, 387 US 294; 87 S Ct 1642; 18 L Ed 2d 782 (1967), as authority for upholding the search in this case. That case, we believe, differs radically from the one at bar. The distinction is that a reliable third party saw the suspect enter the house. The officers’ actions, therefore, were not directed to a house where the suspect was living but rather where he had entered moments before. Compare, People v Stergowski, 391 Mich 714; 219 NW2d 68 (1974), and People v Strelow, 96 Mich App 182; 292 NW2d 517 (1980), with People v Lynn, 91 Mich App 117; 283 NW2d 664 (1979), aff'd 411 Mich 291; 307 NW2d 61 (1981).
We conclude, therefore, that exigent circum stances were lacking for the officers to enter the house. The trial court erred in failing to suppress the evidence. People v Kline, supra.
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R. M. Maher, P.J.
Defendant was convicted after a jury trial of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and of assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(l); MSA 28.788(7)(1). He was sentenced to a prison term of from 15 to 40 years on the first-degree criminal sexual conduct conviction and to a prison term of from 5 to 10 years on the assault conviction. Defendant appeals as of right.
After less than four hours of deliberation, the jury informed the trial court that it was unable to reach a decision and wished further instructions. The record reveals that an unreported conference was then held in the trial court’s chambers for the purpose of deciding what action would be taken on the jury’s request. At this conference defense counsel referred the trial court to the Supreme Court’s decision in People v Sullivan, 392 Mich 324, 327-329; 220 NW2d 441 (1974), and suggested that the instruction which had been given at the trial in that case, which was reprinted in the Court’s opinion in Sullivan, be read to the jury. The trial court read the instruction aloud and all counsel agreed that the instruction should be given. Back in the courtroom, the trial court expressed its intention to give the instruction, and counsel for both sides, as well as the defendant, indicated for the record that there was no objection. After the instruction was given, the jury continued its deliberations for about two hours before reaching a verdict.
The sole issue on appeal concerns the giving of the Allen-type instruction. In Sullivan, supra, the Supreme Court actually discussed two deadlocked-jury instructions. The first, which had been given at the trial in Sullivan and which was read to the jury in the instant case, was analyzed by the Sullivan Court to determine if it impermissibly coerced jurors into reaching a verdict. The Court decided that an Allen-type charge was not coercive per se and that the question of whether such an instruction was coercive in a particular case required a case-by-case determination. The Court in Sullivan concluded that the instruction given in that case was neither coercive per se nor coercive under the particular facts and circumstances presented.
The second Allen-type or deadlocked-jury instruction discussed in Sullivan was that found in § 5.4 of the standards relating to trial by jury promulgated by the ABA Project on Minimum Standards for Criminal Justice. There is a delicate balance between the beneficial purposes of a deadlocked-jury instruction and such an instruction’s undeniably coercive effect. The Court noted that in order to emphasize the former while minimizing the latter many jurisdictions had adopted the ABA standard. Agreeing with this trend, the Court prospectively adopted the ABA charge:
"[W]e are persuaded that any possible future danger of coercive effect by the giving of an Allen-type charge is one which can and should be avoided. An analysis of recent cases and commentaries confirms our belief that the better practice is to be found in the recommended ABA jury standard 5.4.
"Therefore, prospectively from the date of this opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by this Court. Any substantial departure therefrom shall be grounds for reversible error.” Sullivan, supra, 342. (Emphasis added.)
We believe that the Supreme Court in Sullivan intended to announce a prophylactic rule eliminat ing the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge. One form was approved, and the Court clearly indicated its intent that only that form be used in the future. Because the new rule was made prospective, Alien-type charges in trials occurring before Sullivan were still subject to a case-by-case analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan involves whether the instruction given is a "substantial departure” from the ABA charge. See People v Dupie, 395 Mich 483, 492-493; 236 NW2d 494 (1975), People v Lawson, 56 Mich App 100, 106; 223 NW2d 716 (1974), lv den 395 Mich 766 (1975). To the extent that other decisions of this Court have suggested that deadlocked-jury instructions given in post -Sullivan trials are to be examined on a case-by-case basis for their coercive effect, we believe they were wrongly decided. See People v Harman, 98 Mich App 541; 296 NW2d 303 (1980), People v Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd on other grounds 402 Mich 938 (1978).
Analysis of the instruction given in the instant case reveals that it substantially differs from the ABA charge. Clearly the two instructions differ drastically in form, but the substantive differences are equally as great. While the instruction actually given contains the essential points set out in the ABA charge, it goes much further and advises the jury that the inability to reach a consensus could lead to the downfall of the jury system, that no future jury should be supposed to be more intelligent or more impartial, that it should not be supposed that a new trial would produce more or clearer evidence, and that jurors in the minority should reconsider their positions in light of the fact that fellow jurors of equal honesty and intelligence reach a different conclusion. We are not concerned with whether such statements are true or whether they are coercive. Our sole inquiry is whether they represent a substantial departure from the ABA charge, and, on that point, we may only conclude that they do. It makes no difference that in Sullivan the Supreme Court held that the instruction challenged in the instant case was not coercive. The trial which we are reviewing took place after Sullivan so that questions of coercion are no longer involved. The Supreme Court could not have more clearly directed that the issue is no longer one of "coercion” but of "substantial departure” from the ABA charge. Accordingly, we find that the trial court erred in giving a deadlocked-jury instruction that substantially departed from the ABA charge adopted in Sullivan.
In light of the fact that defendant did not object to the instruction as given, the issue becomes whether the error in this case requires reversal. On this point also we believe the Supreme Court has clearly spoken. "Any substantial departure therefrom shall be grounds for reversible error.” Sullivan, supra, 342. See People v Goldsmith, 94 Mich App 155; 288 NW2d 372 (1979). Were the rule otherwise, appellate courts seeking to deter mine the presence or absence of "manifest injustice” would be plunged back into the sort of coercive-effect analysis the Supreme Court was attempting to avoid. While we do not condone the harboring of such error for purposes of appeal, we are convinced that the prophylactic rule of Sullivan requires the result we reach. At the time of the trial of the instant case, Sullivan had been law for just short of five years. This fact alone should have been sufficient to avoid the error in the instant case. In the pressure of the moment, however, the error was not avoided, and that error must be considered grounds for reversal.
Reversed and remanded for a new trial.
By order dated April 17, 1980, this Court remanded the instant case to the trial court for an evidentiary hearing concerning the circumstances surrounding the giving of the Allen charge. At this hearing, held May 2, 1980, testimony was taken concerning what transpired at the unreported in-chambers conference. The principal point of contention at the hearing was whether the defendant was personally present at that conference. Given our disposition of this appeal, we now deem the resolution of that issue to be irrelevant.
The instruction was taken practically verbatim from that reported in Sullivan, supra.
See Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).
"Length of deliberations; deadlocked jury.
"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
“(i) that in order to return a verdict, each juror must agree thereto;
"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and j
"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
"(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”
Although the ABA charge by its own terms may be given prior to the start of deliberation, the timing of the charge presents a separate issue not presently before the Court. See People v Goldsmith, 94 Mich App 155; 288 NW2d 372 (1979).
We are presently unable to determine whether the trials in Hannan and Thompson took place before or after Sullivan. Our disapproval of the analysis in these cases is based on the premise that the trials took place after Sullivan.
Compare the instruction reported in Sullivan, supra, 327-329, with that reported in Sullivan, supra, 335.
Although People v Tooks, 55 Mich App 537; 223 NW2d 63 (1974), held that review of an Allen-type charge was foreclosed absent objection, that case involved a pre-Sullivan trial, so that the rule of Sullivan was inapplicable. The more recent case of Thompson, supra, involved a similar analysis, but our disapproval of the approach taken in Thompson has already been registered. | [
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Mackenzie, P.J.
Defendant was charged with embezzlement of property of a value of more than $100, MCL 750.174; MSA 28.371. On November 16, 1979, defendant pled guilty to larceny of property of a value of more than $100, MCL 750.356; MSA 28.588. Defendant admitted taking approximately $18,000 from a gas station at which he was the manager. The court delayed sentencing until January 4, 1980, and imposed the condition that defendant pay $4,000 toward restitution. At the hearing on January 4, 1980, the judge noted that defendant had paid the $4,000 toward restitution, delayed sentencing until December 19, 1980, and imposed the condition that defendant pay further restitution at the rate of $200 per month. At the hearing on December 19, 1980, the judge noted that defendant had paid only $300 toward restitution since the previous hearing. Defendant explained that he had been out of work and unable to find a job. Defendant was sentenced to imprisonment for two to five years. Defendant’s motion to vacate the sentence was denied and defendant appeals by right.
I
Defendant first argues that through delay the circuit court lost jurisdiction to sentence him and that his sentence must therefore be vacated. Michigan courts have long been empowered to delay sentencing for good cause for a reasonable time after trial and conviction. People v Reilly, 53 Mich 260; 18 NW 849 (1884); People v Kennedy, 58 Mich 372; 25 NW 318 (1885). In People v Jagosz, 253 Mich 290; 235 NW 160 (1931), the Court held that a delay of 63 days after conviction before sentence was imposed presented no error even though no cause for the delay was shown. By 1961 PA 185 the Legislature amended the statute which is now MCL 771.1; MSA 28.1131 to specifically authorize delayed sentencing in certain circumstances. That statute now provides in relevant part:
"[I]n an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order stating the reason for delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.”
The statute was construed in People v McLott, 70 Mich App 524, 528-531; 245 NW2d 814 (1976):
"The deferred sentencing statute is not as plain and unambiguous as defendant would have us believe. It states that the court does not lose jurisdiction to sentence if sentencing is completed within one year. It does not forthrightly state that jurisdiction is lost if for some reason, particularly if the reason be sound or unavoidable, sentencing is postponed beyond the year deadline. Thus, it is only inferentially that one arrives at a ' conclusion that in every instance jurisdiction is lost. We also note that when carefully read the statute grants a one-year delay 'for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice’. Thus, the statute does not speak to whether an additional delay can be granted for some other purposes such as allowing a trial judge to recover from illness. Accordingly, there is room for construction of the statute. Neither logic nor precedent based upon analogous situations leads us to conclude that the Legislature intended that jurisdiction is irretrievably lost in every situation where the delay in sentencing exceeds one year. * * *
"An analogous situation is found in the Court’s construction of the statutory 180-day rule in MCLA 780.131; MSA 28.969(1). That statute requires that where charges are pending against an inmate in the Department of Corrections 'such inmate shall be brought to trial within 180 days’ and MCLA 780.133; MSA 28.969(3), provides that if action is not commenced within the 180-day period 'no court of this state shall any longer have jurisdiction thereof. Despite the clear wording of the statute the Court has held that the law doesn’t require actual trial but only a good faith effort to try on the part of the prosecution. People v Castelli, 370 Mich 147, 153; 121 NW2d 438 (1963); People v Wilder, 51 Mich App 280, 284; 214 NW2d 749 (1974).
"Our analogy to the statutory 180-day rule does not imply that we hold that the one-year limitation of the within statute may be exceeded whenever a good faith effort is evident. In our opinion the prompt and efficient administration of justice including a final dispensation of sentence mandates a stricter interpretation of the statute, viz.: one which would permit the one-year period to be exceeded in only the most limited circumstances.” (Footnote omitted.)
In People v Turner, 92 Mich App 485, 489; 285 NW2d 340 (1979), the Court said:
"Waiver of the right to be sentenced by consenting to a delay is meaningless. Such a consent is inherently unsound since a defendant, as a practical matter, will always opt for freedom. Furthermore, the question of retention or loss of jurisdiction should not depend solely on the consent or waiver of the defendant. See People ex rel Harty v Fay, 10 NY2d 374; 179 NE2d 483 (1961).”
While we agree that the question of retention or loss or jurisdiction should not depend solely on the consent or waiver of defendant, we find the Turner panel’s characterization of waiver as "meaningless” impossible to reconcile with the Supreme Court’s holding in In re Tinholt, 223 Mich 483, 484; 194 NW 131 (1923):
"By consenting, plaintiff has waived the right to complain of the indefinite postponement. Assuming that, though the agreed postponement was indefinite, the delay thereunder should not be unreasonable, we find, under the circumstances, no unreasonable delay.”
Here defendant was eventually sentenced 1 year and 33 days after his plea of guilty. However, as was noted in McLott, the statute does not deprive the sentencing court of jurisdiction when an additional delay takes place for some purpose other than those purposes involved in deferred sentencing. A defendant may not be sentenced for a felony before the judge obtains a presentence report. People v Brown, 393 Mich 174; 224 NW2d 38 (1974). Resentencing is required where the record does not reveal that a presentence report was prepared or consulted. People v McDonald, 99 Mich App 150; 297 NW2d 639 (1980). In an ordinary case, we would hold that the statutory period does not begin to run until the original sentence hearing, provided that the hearing was not delayed beyond a reasonable time necessary for preparation of a presentence report. Compare People v Felker, 61 Mich 110, 113; 27 NW 869 (1886). Here, however, the record demonstrates that proper procedures were bypassed with defendant’s consent. At the plea proceeding on November 16, 1979, immediately after a factual basis for the plea was elicited from defendant, the following took place:
"The Court: Very well, the court wants to indicate it has discussed the matter of your sentence in chambers this morning with counsel and I want to ask the prosecutor and defense counsel if in their opinion the court has complied with court rule 785.7?
"/Assistant Prosecutor]: Yes, your Honor.
7Defense counsel]: Defense is satisfied.
"The Court: I’m satisfied the plea is accurate, voluntarily and understanding^ made and I will accept the plea.
"What I’m going to do is delay sentencing in this matter until January 4, 1980, for the condition that you make payment into the court of $4,000 at that time. At that time, then, we’ll reconsider your sentence.”
As the record does not show that a presentence report was prepared or consulted before the foregoing took place, part of the delay between November 16, 1979, and January 4, 1980, was attributable to the necessity for preparation of a presentence report. It is not clear if all of the delay was attributable to that necessity, since January 4, 1980, appears to have been selected for the next sentencing hearing as part of an invalid attempt at delayed sentencing. We hold that, under the unique circumstances presented here, the statutory period did not begin to run until after a reasonable time necessary for preparation of a presentence report. We note that, in any event, the delay of 33 days beyond the statutory 1-year period was less than the unexplained delay of 63 days which the Court in Jagosz, supra, held did not deprive the sentencing court of jurisdiction. We further note that defendant consented to the delay in sentencing. At sentencing on December 19, 1980, defendant sought a further delay on the ground that he had recently qualified for a job and would soon be able to make further restitution. Under the circumstances presented here, we cannot say that the circuit court lost jurisdiction to sentence defendant.
II
Defendant argues that the sentencing judge erred by considering his federal conviction for conspiracy to commit theft from an interstate shipment, 18 USC 371. The conviction had been set aside under the Federal Youth Corrections Act, 18 USC 5005 et seq. 18 USC 5021(b) provides:
"Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.”
Defendant argues that a conviction set aside under the act is "expunged” and that thereafter the youth offender may not be considered a convicted felon for any purpose. There has been considerable controversy in federal courts as to whether a conviction set aside under the act is "expunged” and as to the effect of setting aside a conviction whether or not it is considered "expunged”. See the cases discussed in Anno: Construction & application of provisions of federal youth corrections act (18 USCS § 5021) authorizing setting aside of youth offender’s conviction, 38 ALR Fed 470. Two cases have considered whether the conviction set aside under the act may be considered in sentencing. In People v Wunnenberg 85 Ill 2d 188; 52 Ill Dec 42; 421 NE2d 905 (1981), aff'g 87 Ill App 3d 32; 42 Ill Dec 606; 409 NE2d 101 (1980), the court held that such a conviction should not be considered in sentencing because the purpose of the act is to give a youthful offender a second chance free of a record tainted by such a conviction. However, in United States v Klusman, 607 F2d 1331, 1334 (CA 10, 1979), the sentencing judge stated on the record that he remembered defendant’s conviction in previous proceedings before him. The conviction had subsequently been set aside under the act. The court noted the public interest in the sentencing judge’s broad discretion to design a sentence to fit an individual defendant and held that it was unnecessary to remand the case for determination of whether the conviction was actually a factor in sentencing.
Wunnenberg and Klusman show that the issue before us does not turn on whether a conviction set aside under the act is characterized as "expunged”. Rather, resolution of this issue requires us to balance and, if possible, reconcile the competing policies noted in Wunnenberg and Klusman. In People v McFarlin, 389 Mich 557, 574-575; 208 NW2d 504 (1973), the Court held that a defendant’s juvenile record could be considered in sentencing. The Court explained:
"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence. A defendant’s juvenile court history may reveal a pattern of lawbreaking and his response to previous rehabilitative efforts. This, together with information concerning underlying social or family difficulties, and a host of other facts are essential to an informed sentencing decision, especially if the offender is a young adult.”
We agree with the Wunnénberg court that the purpose of setting aside a conviction under the act is to give a youthful offender a second chance free of a record tainted by a conviction. Setting aside a conviction under the act thus is a part of a program of rehabilitation. However, where defendant is subsequently convicted of another crime it is evident that rehabilitation has not been successful and that further efforts will be necessary.' Mc-Farlin shows that complete information is necessary to set an individualized sentence which both serves society’s need for protection and maximizes defendant’s potential for rehabilitation. We therefore conclude that the rehabilitative goals of the act would not be served by a rule which prevents a sentencing judge from considering a conviction set aside under the act.
Ill
Defendant argues that the guarantees of equal protection of laws contained in US Const, Am XIV and Const 1963, art 1, § 2 were violated when the sentencing judge imposed a term of imprisonment. Defendant points out that the sentencing judge relied on his failure to make restitution and argues that he was prevented from making restitution by indigency. It is well settled in Michigan that probation may not be revoked for failure to make required restitution payments where defendant is financially unable to make the payments. Revocation in such circumstances constitutes impermissible discrimination on the basis of economic status. People v Gallagher, 55 Mich App 613, 620; 223 NW2d 92 (1974); People v Billy Williams, 66 Mich App 67, 72; 238 NW2d 407 (1975); People v Terminelli, 68 Mich App 635, 637-638; 243 NW2d 703 (1976); People v Lemon, 80 Mich App 737, 745; 265 NW2d 31 (1978); People v Courtney, 104 Mich App 454, 457; 304 NW2d 603 (1981). The purpose of delayed sentencing is to give a defendant an opportunity to prove himself eligible for probation or other lenient treatment. See MCL 771.1; MSA 28.1131. It is no more consistent with the constitutional guarantees of equal protection to deny defendant probation or other lenient treatment on the basis of his economic status than to revoke defendant’s probation on such a basis. We see no basis, however, for holding that a violation of equal protection is presented by requiring defendant to make good faith efforts to find a job and enable himself to make restitution.
The record here does not clearly demonstrate that defendant was denied probation or other lenient treatment on the basis of his economic status. At sentencing, defendant explained his efforts to find a job and enable himself to make restitution. The sentencing judge responded:
"I realize it isn’t easy to find a decent job today, certainly, but you just haven’t done — you just haven’t measured up.”
At the hearing on defendant’s motion to vacate the sentence, a similar argument was made. The sentencing judge responded:
"There was a special treatment given to him to keep him out of jail. He didn’t measure up to it. But I see nothing there that convinces the court to dismiss the charge or change its opinion or prior holding on the matter so I’m denying the motion.”
We are unable to discern from the foregoing whether the sentencing judge regarded defendant’s efforts to find a job and enable himself to make restitution as inadequate or whether the judge viewed defendant’s efforts as irrelevant in view of his failure to make restitution. A similar problem was presented in People v Fisher, 106 Mich App 616, 619-620; 308 NW2d 188 (1981), in which the Court held:
"We believe that principles of fairness mandate that, where, as here, the trial court gives a defendant an opportunity to demonstrate eligibility for lenient treatment, defendant is entitled to a hearing as to whether failure to comply with conditions imposed on defendant was in fact due to circumstances beyond defendant’s control.
"We therefore remand the case for such a determination. We note in doing so that we do not require a hearing in every case of sentencing after a delay. All we require here is that the trial court act in conformity with its own pronouncements. We note further that the trial court is not responsible for providing treatment for defendant’s alcoholism and that it may still, in its discretion, decide that incarceration is necessary if defendant has not, in fact, stopped drinking or did not attend a suitable alcohol treatment program.”
Application of a similar remedy is appropriate here. If, on remand, the sentencing judge finds that defendant’s failure to find a job and enable himself to make restitution was due to circumstances beyond his control, defendant’s sentence should be vacated and defendant resentenced.
IV
Defendant also argues that his sentence was influenced by the judge’s erroneous belief that he had several prior felony convictions. At sentencing, the judge said:
"Well, I appreciate what you’ve said, Mr. Baker, but the problem is, as you know you have a record of felonies here. You’ve never really done any time at all and maybe that’s been the problem.” (Emphasis added.)
It is undisputed that defendant had only one prior felony conviction, the federal conviction discussed above. Defendant preserved this issue for appellate review by a motion to vacate the sentence; see Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975). It is not impossible that the sentencing judge’s use of the plural of "felony” was a harmless slip of the tongue; however, the judge denied defendant’s motion to vacate the sentence without explaining this point. If, on remand, the judge finds that defendant’s sentence was based in part on a mistaken belief that defendant had more than one prior felony conviction, defendant’s sentence should be vacated and defendant resentenced. Id., 137.
Remanded for further proceedings not inconsistent with this opinion. We retain no jurisdiction. | [
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M. F. Cavanagh, P. J.
Defendant was bound over for trial on charges of possession of a controlled substance, MCL 333.7403; MSA 14.15(7403), and possession of a controlled substance with intent to deliver, MCL 333.7401; MSA 14.15(7401). The trial court suppressed all of the evidence seized pursuant to a search warrant, quashed the information, and dismissed the charges against defendant. The people appeal as of right.
There are two issues on appeal. First, did the affidavit in support of the search warrant establish probable cause to believe that the items sought were on the stated premises? Second, should the exclusionary rule be applied when there is a good-faith violation of the Fourth Amendment?
A search warrant may not be issued by a magistrate unless it is supported by probable cause, which is established by oath or affirmation. US Const, Am IV; Const 1963, art 1, § 11; MCL 780.651; MSA 28.1259(1). Probable cause consists of facts and circumstances which would warrant a person of reasonable prudence to believe that the items sought are in the stated place. People v Dinsmore, 103 Mich App 660, 674; 303 NW2d 857 (1981). Panels of this Court have differed regarding the standard of review to be accorded to a magistrate’s determination of such probable cause; the determination has been entitled to either "great deference” or has been upheld absent an "abuse of discretion”. Dinsmore, supra; People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978); People v Battle, 71 Mich App 136, 144; 246 NW2d 389 (1976); People v Iaconis, 29 Mich App 443, 457; 185 NW2d 609 (1971), aff'd sub nom People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972).
In Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), the Court held that affidavits supporting a search warrant may be based on hearsay information, which may come from an unnamed informant. Although the informant’s identity need not be revealed, the affiant must state facts which allow the magistrate to independently judge the accuracy and reliability of the informant’s information. There are two prongs to the Aguilar-Spinelli test regarding the reliability of an informant’s information. The first prong of the test is satisfied if the informant’s information is sufficiently detailed so that the magistrate can conclude that the information was based upon the informant’s personal knowledge. The second prong of the test is satisfied by the affiant’s statements regarding the informant’s past reliability. Aguilar, supra, 114; Spinelli, supra, 413. If the informant’s information fails under this two-prong test, the magistrate must consider whether the affidavit contains other information which would corroborate the informant’s information. Spinelli, supra, 415.
In the instant case, the affidavit contained a single statement of hearsay received from the unnamed informant. In the affidavit, the police officer stated that the informant told him that the informant’s marijuana had been purchased from a subject in the trailer. Although the informant’s statement may have been sufficient to satisfy the first prong of the Aguilar-Spinelli test, in that the informant had stated where the drugs were, the affidavit fails under the second prong of the test. The affidavit made no allegation that the informant was credible or that his information had proven reliable in the past. Without such a showing, therefore, the informant’s information can only be used if independently corroborated.
We agreed with the lower court’s finding that there is nothing here to corroborate the informant’s statement that he bought the drugs in the trailer. On the facts presented to the magistrate, it is just as likely that the informant took some of his own drugs from the trailer and gave them tp the police.
Since the informant’s statement fails under the Aguilar-Spinelli test, the affidavit must be considered as if the informant’s statement were not included. See People v Broilo, 58 Mich App 547, 552; 228 NW2d 456 (1975).
The affidavit described what is known as a "controlled buy”. The informant was searched and found not to be in possession of drugs. While under constant police surveillance, the informant entered the trailer. When the informant returned to the police, he possessed drugs. On the basis of this evidence, the police had cause to believe that the informant got the drugs while in the trailer.
In People v Ferguson, 94 Mich App 137; 288 NW2d 587 (1979), a substantially similar controlled buy was held to establish probable cause for a search warrant. See also People v Davis, 72 Mich App 21; 248 NW2d 690 (1976). However, in both these cases, the credibility of the informant was demonstrated by the affiant because on numerous instances convictions had been obtained as a result of the informant’s information. We are not convinced that a controlled buy alone is enough to establish probable cause for. the issuance of a search warrant. There must be some indication of the reliability of the buyer-informant so that a conclusion that a purchase actually took place may be legitimately drawn.
Even if probable cause for the search warrant existed after the controlled buy, this does not mean that probable cause existed when the warrant was issued, approximately three days later. The passage of time is a valid consideration in deciding whether probable cause exists. People v Gillam, 93 Mich App 548, 552; 286 NW2d 890 (1979). For a warrant to be issued, there must be a showing of reasonable cause to believe that illegal activity is occurring at the time of the warrant request. People v Siemieniec, 368 Mich 405, 407; 118 NW2d 430 (1962).
In Siemieniec, supra, the police officer’s affidavit stated that defendant had illegally sold liquor four days earlier. The Court noted that the fact that defendant sold liquor four days earlier was not probable cause to believe that she was continuing to illegally sell liquor. The Court held that the affidavit must state that there is some sort of continuing illegal activity. Similarly, in Broilo, supra, the defendant made a drug sale to a police officer. Forty-two days after the second and final sale, the police officer obtained a search warrant. Citing to Siemieniec, the Court held that any probable cause which had existed when the drug sale was made was stale by the time the search warrant was obtained. The Court stated that when there is a substantial delay, no warrant may be issued unless there is a showing of continuing criminal activity.
The validity of the search warrant is to be decided on the facts given to the magistrate when the warrant is requested. We do not hold that a three-day delay renders an affidavit stale; however, in the case at bar, the affidavit alleged only a single sale, not continuing drug sales. The affidavit did not even state that defendant possessed any marijuana after he made the sale to the informant. On the facts presented to the magistrate, there is absolutely no evidence to suggest that defendant would still possess marijuana three days after the sale to the informant. We find that, whether extending great deference to the magistrate’s determination of probable cause or reviewing that determination for an abuse of discretion, the circuit court properly held that the magistrate’s decision to grant the search warrant was erroneous.
The people also argue that the exclusionary rule should not be applied when there is a good-faith violation of the Fourth Amendment. The people maintain that, since the purpose of the exclusionary rule is to deter police misconduct, the rule should not be applied when the deterrent effect would not be furthered, as in a case of good-faith mistaken behavior on the part of the police.
The federal exclusionary rule, a judicially created means of effectuating Fourth Amendment rights, was made applicable to the states via the Fourteenth Amendment in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). This was already the law of this state since the exclusionary rule was first applied to unconstitutional searches and seizures in People v Margelis, 217 Mich 423; 186 NW 488 (1922). The purpose of the exclusionary rule is to deter violations of the Fourth Amendment and promote judicial integrity so that a court is not a party to the use of illegally seized evidence. Thus, under both the United States and Michigan Constitutions, illegally seized evidence generally must be suppressed. Mapp v Ohio, supra; People v Plantefaber, 410 Mich 594; 302 NW2d 557 (1981).
In Stone v Powell, 428 US 465; 96 S Ct 3037; 49 L Ed 2d 1067 (1976), the Court stated that the concept of judicial integrity has limited force as a justification for the exclusionary rule and, thus, Fourth Amendment violations could not be raised in federal habeas corpus proceedings. With the rule’s primary justification being deterrence, illegally seized evidence is admissible when its exclusion would not deter illegal police activity. See Michigan v DeFillippo, 443 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979); Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975). The people would have us go one step further and find that where the police act unconstitutionally, but in good faith, the exclusionary rule need not be applied.
Such a holding would, in effect, remove the probable cause requirement from the Fourth Amendment. A "good-faith” exception to the excusionary rule would insulate the magistrate’s decision to grant a search warrant from appellate review. In every case where a constitutionally infirm search warrant was issued, the prosecution could reasonably claim that the police acted in good faith. In effect, the constitutional language that all warrants be issued only on a showing of probable cause would become a nullity.
Furthermore, adoption of a "good-faith” standard would remove the incentive for police officers to find out what sort of police conduct constitutes an unreasonable invasion of privacy. On a police force, efficiency in obtaining convictions is rewarded so recognition of a good-faith exception to the warrant requirement would encourage police officers to remain ignorant of the law in order to garner more evidence and obtain more convictions. The end result, increased illegal police activity, is the very problem that the exclusionary rule is designed to avert.
Only one federal court of appeals has possibly created a "good-faith” exception to the exclusionary rule. In United States v Williams, 622 F2d 830 (CA 5, 1980), cert den 449 US 1127; 101 S Ct 946; 67 L Ed 2d 114 (1981), the court held that it was irrelevant whether the arrest was legal because the police acted in good faith. The court reasoned that the United States Supreme Court’s decisions supported a good-faith exception, even though a majority of the Supreme Court has never officially embraced such a concept. To our knowledge, no state yet has decided a case using the Williams good-faith exception. In Illinois v Pierce, 88 Ill App 3d 1095; 44 Ill Dec 326; 411 NE2d 295 (1980), the court stated it approved of Williams, but it did not apply the exception.
We find that the Williams decision, purporting to create a "good-faith” exception to the exclusionary rule, establishes no precedent for us to follow and is wrong as a matter of policy. Since we recognize no good-faith exception to the Fourth Amendment, the exclusionary rule was correctly applied. We affirm the decision of the circuit court which suppressed the seized evidence and quashed the information.
Affirmed.
R. M. Maher, J., concurred. | [
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Per Curiam:.
Following a jury trial held on April 29, 1980, in Wayne County Circuit Court, defendant, Ricky Dean Korona, was found guilty of felonious assault, MCL 750.82; MSA 28.277, malicious destruction of property over $100, MCL 750.377a; MSA 28.609(1), and felony-firearm, MCL 750.227b; MSA 28.424(2), but mentally ill, MCL 768.36; MSA 28.1059. On July 7, 1980, defendant was sentenced to two years probation on the first two counts and to the two-year mandatory imprisonment for the felony-firearm conviction. Defendant appeals by right.
The trial judge instructed the jury that felonious assault was a general intent crime and that voluntary intoxication was not a defense thereto. These instructions constitute reversible error.
Felonious assault is a specific intent crime. See People v Wilson, 113 Mich App 591; 318 NW2d 479 (1981); People v Owens, 108 Mich App 600, 607; 310 NW2d 819 (1981), lv den 412 Mich 866 (1981); People v Braddock, 106 Mich App 11, 13-14; 307 NW2d 341 (1980); People v Slager, 105 Mich App 593, 598; 307 NW2d 376 (1981); People v McMaster, 105 Mich App 162, 167-172; 306 NW2d 434 (1981), lv den 411 Mich 988 (1981); People v Rae, 103 Mich App 293, 297-300; 302 NW2d 845 (1980); People v Szymanski, 102 Mich App 745, 746-747; 302 NW2d 316 (1981), lv den 411 Mich 863 (1981). Defense counsel’s failure to object to the instruction at trial does not preclude review of this issue inasmuch as the trial judge is obligated to charge the jury on the law applicable to the case. Wilson, supra; People v Ideis, 101 Mich App 179, 183; 300 NW2d 489 (1980), lv den 411 Mich 854 (1981). Thus, the trial judge erred in instructing the jury that voluntary intoxication was not a defense to the crime of felonious assault. Wilson, supra. Voluntary intoxication is a defense to a crime requiring specific intent. People v Crittle, 390 Mich 367; 212 NW2d 196 (1973).
Defendant also contends that the mandatory two-year term of imprisonment for a felony-firearm violation does not apply to defendants found guilty but mentally ill. In addition, defendant argues that the two-year term of imprisonment constitutes cruel and unusual punishment, in violation of Const 1963, art 1, § 16. Although we reverse defendant’s conviction on his first claim of error, we address the present argument to aid the trial court.
We are not persuaded by defendant’s argument. Had the Legislature intended to exempt defendants found guilty but mentally ill from the mandatory sentencing provision, it would have ex pressly done so. Cf. People v Abend, 94 Mich App 13, 14; 286 NW2d 926 (1979). Neither the felony-firearm statute, MCL 750.227b; MSA 28.424(2), nor the guilty but mentally ill statute, MCL 768.36; MSA 28.1059, provides the exception claimed by defendant. Instead, MCL 768.36(3); MSA 28.1059(3) states that "[i]f a defendant is found guilty but mentally ill * * * the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense”. In Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 391; 280 NW2d 793 (1979), reh den 406 Mich 1127 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979), the Court found that the Legislature expressed its judgment in the felony-firearm statute that carrying a firearm during the commission of a felony entails a distinct social harm inimical to the public health, safety, and welfare. Thus, the mandatory term . of imprisonment for violating the felony-firearm statute applies to defendants found guilty but mentally ill.
The mandatory two-year sentence for violating the felony-firearm statute, as applied to defendant, does not constitute cruel and unusual punishment, nor does it violate the rehabilitation test defined in People v Lorentzen, 387 Mich 167, 180; 194 NW2d 827 (1972); Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 433; 285 NW2d 318 (1979), lv den 408 Mich 905 (1980). Individual offenders receive psychiatric care under the sentence; if it is not provided, they may seek a writ of mandamus to compel the Department of Corrections to carry out its duty. See People v Willsie, 96 Mich App 350, 355; 292 NW2d 145 (1980).
Reversed and remanded. | [
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Per Curiam:.
Defendant pled guilty to a charge of breaking prison, MCL 750.193; MSA 28.390. He was sentenced to a prison term of from one and one-half to five years and appeals by right.
At the taking of defendant’s plea, the following exchange occurred:
"The Court: Yes, 16 it is. The question is, 'Has anybody promised you that you would be treated more leniently if you pled guilty than if you stood trial,’ and the answer is 'yes’.
"You want to explain that, Mr. Tolbert?
"Mr. Tolbert: Yes, sir, your Honor. My attorney brought to my attention that if I pled guilty to this, with a plea of guilty I was offered a one-and-a-half-year max and in regards to where it’s a five-year max. And my understanding to that is therefore, if I pled guilty to it, I’d get a one-and-a-half-year max instead of a five. And that, my interpretation of it was it was being lenient, you know, that’s just the way I, you know, I was just answering it the way I felt it should be answered, you know.
"The Court: That’s the only agreement that you’re aware of to get you to plead guilty to the charge of breaking prison; is that right?
"Mr. Tolbert: Yes, sir.”
Defendant claims on appeal that his plea was hot knowing and voluntary, since no actual agreement had been entered limiting his sentence to one and one-half years. We agree. On the record, it appears that defendant was not aware of the maximum sentence as required by OCR 1963, 785.7(l)(b). Although we have no doubt that the trial judge thought defendant meant the highest minimum when he said "maximum”, we do not know what defendant meant. After defendant told the court he had been promised a one and one-half year maximum sentence in return for his plea, it was incumbent on the prosecutor to object if he thought no such promise had been made. In re Valle, 364 Mich 471, 478-479; 110 NW2d 673 (1961). The record suggests that defendant thought an agreement had been reached with the judge, who indicated he had discussed the matter of sentencing in chambers with defense counsel.
This Court has stated:
"[T]he voluntariness of a guilty plea may be called into question where defendant argues that he pled guilty due to unfulfilled promises of leniency. The promised leniency need not have been an assurance by the prosecutor, and an unfulfilled promise or misleading statement by defense counsel can be the basis for setting aside a plea. * * *
"This Court has generally rejected as a basis for reversal off-the-record promises of leniency supported only by defendant’s post-conviction allegations. This is particularly true where, as here, defendant has sworn that no promises other than those on the record were made to him. * * *
"On the other hand, this Court has occasionally-remanded to the trial court for a hearing on the alleged promises of leniency. This is particularly true where the record contains some support for the notion that promises of leniency have been made. * * *” People v Schirle, 105 Mich App 381, 385; 306 NW2d 520 (1981).
See also People v Rodriguez, 61 Mich App 42, 47-49; 232 NW2d 293 (1975), and People v Rogers, 55 Mich App 491, 493; 223 NW2d 20 (1974). In this case, the record strongly supports defendant’s claim. On remand, the prosecutor should be allowed to present evidence showing that defendant understood one and one-half years to be the highest minimum sentence he would receive, rather than the maximum sentence. Absent such proof, defendant should be allowed to withdraw his plea.
Remanded. | [
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] |
R. M. Maher, P.J.
This opinion will address the issues raised in four consolidated cases. In Nos. 61738 and 61856, defendants appeal as of right from the trial court’s December 22, 1981, order of judgment reinstating student transportation in the Alpena School District. In No. 61963, the proposed intervening plaintiff appeals as of right from the trial court’s December 22, 1981, order denying intervention. In No. 61790, the proposed intervening defendants appeal, by leave granted, from the trial court’s December 22, 1981, order denying intervention.
Defendant Alpena Public Schools is a third-class school district. The district, one of the largest in Michigan, serves approximately 6,850 students and covers an area in excess of 600 square miles. Prior to the eruption of this controversy, approximately 5,140 of those students were bused to and from school in 39 buses provided by the district. The cost to the district was approximately 75 cents per student per mile. At that time, the State of Michigan was reimbursing the district for 40% of the transportation costs. At the beginning of the 1981-1982 school year, all voter-approved operating millages of defendant Alpena Public Schools had expired. The only funding available to the district was an allocated millage of 7.98 mills and state school aid payments. The Alpena Board of Education closed the district schools on October 14, 1981, due to the lack of funding. On October 30, 1981, the voters approved a 20.25-mill levy, but rejected a separate 3.45-mill proposal.
The Alpena Board of Education conducted a meeting and assessed its options in light of the available funding. According to school officials, the projected cost of providing bus transportation for students for the remainder of the school year would be approximately $800,000. If the school district were to have implemented such a plan, it would have been forced to close some schools. Other possible ramifications were increased class sizes, reduction of counselling, and cutbacks in libraries, new supplies, and books. Faced with such alternatives, the board decided, in the exercise of its discretion, to stop providing student transportation.
On November 12, 1981, after a hearing, the trial court ruled that education is a fundamental right under the Michigan Constitution. After a trial on the merits, the court issued two opinions in which it ordered the resumption of student transportation on the ground that it was necessary for participation in the constitutionally mandated free system of public schools. The court held that the state has a constitutional duty, and the Alpena Board of Education a statutory duty, to provide a system of student transportation. In separate orders, the trial court denied motions to intervene brought by the proposed intervening plaintiff and defendants. On January 7, 1982, this. Court granted defendants-appellants ’ motion for stay of the order of judgment until further order of this Court. On January 15, 1982, this Court granted proposed intervening defendants’ application for leave to appeal.
On appeal, defendants contend that the trial court erred in finding that the state has a constitutional duty, and the board of education a statutory duty, to provide student transportation. Const 1963, art 8, § 2 provides in part:
"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.”
Clearly, then, under the Michigan Constitution, the citizens of this state have a fundamental right to a free public education. Plaintiffs contend, not unreasonably, that the existence of such a right implies a duty on the part of the state to provide any services necessary to the meaningful enjoyment of this right. See, e.g., Bond v Ann Arbor School Dist, 383 Mich 693, 702; 178 NW2d 484 (1970), in which the Supreme Court held that "books and school supplies are an essential part of a system of free public elementary and secondary schools”, and that, therefore, the state had a duty to provide such services.
Under some circumstances, it would appear that school transportation is necessary to permit some students to enjoy their right to a free education. After all, a free public school is of little use when the school is so far away that transportation to and from school is prohibitively expensive. Nevertheless, in this state, the right to a free education is limited by other language found in Const 1963, art 8, §2: "The legislature may provide for the transportation of students to and from any school”.
The word "may” is construed as permissive rather than mandatory unless a contrary legislative intent appears. Smith v Amber Twp School Dist No 6, Fractional, 241 Mich 366; 217 NW 15 (1928). We find no indication of any such contrary intent. Thus, the foregoing provision makes it clear that the Legislature has the power, but not the duty, to provide for the free transportation of students to and from school.
We find the foregoing language dispositive of plaintiff’s claim. Accordingly, we hold that Const 1963, art 8, §2 does not require the state to provide students with transportation to and from school.
Under the foregoing analysis, the trial court also erred in finding that the board of education has a statutory duty to provide transportation. The statutory provision relied upon by the trial court, MCL 380.246(d); MSA 15.4246(d), states in pertinent part that the board shall "[pjrovide adequate facilities for transportation within the school district of pupils from and to their homes if the board deems it advisable”. The trial court conceded that the statute, on its face, gave discretion to the board, but held that the board’s discretion was limited by the constitutional mandate. Since the trial court based its finding of a statutory duty on the assumption that the state has a constitutional duty to provide transportation, we have no difficulty concluding that the board actually has considerable discretion in this regard, and that, therefore, the trial court erred in finding a statutory duty.
We also hold that the board of education did not abuse its discretion in deciding to stop providing transportation to and from school, in light of the shortage of funding.
Proposed intervening defendants are taxpayers, teachers, and next friends of school-age children. Proposed intervening plaintiff is the sole and exclusive bargaining representative of a unit of bus drivers employed by the Board of Education for the Alpena Public Schools. On appeal, these parties contend that the trial court erred in denying them permission to intervene as of right.
GCR 1963, 209.1(3) provides:
".1 Intervention of Right. Anyone shall be permitted to intervene in an action
"(3) upon timely application when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant may be bound by a judgment in the action.”
In D’Agostini v Roseville, 396 Mich 185, 188; 240 NW2d 252 (1976), the Supreme Court interpreted GCR 1963, 209.1(3) to require three elements:
"a. Timely application;
"b. Representation of the applicant’s interest by existing parties is or may be inadequate;
"c. Applicant may be bound by a judgment in the action.
"All of the above must be present in order for the applicant to qualify for intervention of right * * *.”
Under D'Agostini, the trial court correctly denied the proposed intervening plaintiffs and defendants’ motions. First of all, their applications were untimely. Secondly, they made no showing that their interests were not sufficiently represented by the parties to the principal suit. It also appears that proposed intervening defendants could not demonstrate that they would be bound by the circuit court’s judgment.
We also find that the trial court did not abuse its discretion in denying proposed intervening plaintiffs and defendants’ motions for permissive intervention.
The voters of Alpena and Presque Isle have persistently refused to authorize sufficient funding to support both an adequate education system and a school transportation system. We are disturbed by the prospect that the burden of this policy decision may fall disproportionately upon a minority of rural families who are politically powerless to alter the situation. Be that as it may, it is the responsibility of the Legislature — and not the judiciary — to remedy any such inequity.
The judgment of the trial court in Nos. 61738 and 61856 is reversed. The trial court’s orders denying intervention in Nos. 61963 and 61790 are affirmed. No costs, since an important constitutional question was involved. | [
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Per Curiam.
Defendant appeals as of right from his March 21, 1984, jury conviction for criminal sexual conduct in the first degree, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). Defendant was sentenced to a prison term of from 40 to 60 years.
This case involves an incident which occurred at defendant’s apartment located on Van Burén in Bay City on August 13, 1983. The complainant, Melissa Wright, testified that she was seven years old and was playing in the park near defendant’s apartment when she decided to go to defendant’s apartment for some popcorn. When defendant answered the door, she in fact asked him for some popcorn. However, at some point that afternoon, defendant took his penis out of his pants and placed in in Melissa’s mouth. According to Melissa, defendant also touched her in the vaginal area. Two other witnesses, both age seven, testified that they witnessed the offense in question.
Defendant, age 57, testified that Melissa did come to his house on the day in question and asked for some popcorn. Defendant, however, denied any sexual contact with Melissa.
Defendant raises six issues on appeal, none of which require reversal.
Defendant first argues that the trial court erred in ruling that jurors could not ask questions during the presentation of evidence.
Defendant’s failure to object to the trial court’s refusal to allow the jurors to ask questions of the witness precludes appellate review^ unless a miscarriage of justice would otherwise result. People v Charles, 58 Mich App 371, 378-379; 227 NW2d 348 (1975), lv den 397 Mich 815 (1976).
The practice of permitting questions to witnesses propounded by jurors is within the sound discretion of the trial court. People v Heard, 388 Mich 182; 200 NW2d 73 (1972). In this case, at the time the jury asked permission to ask the seven-year-old witness, Sampson, a question, the witness had just been sworn in. The trial judge ruled that "at least for the time being” he was not going to entertain questions from the jury. The trial court’s ruling did not preclude the jury from asking witnesses questions at a later time during the trial. While it would have been a better practice to establish on the record the content of the jury’s question of the witness, we conclude that no miscarriage of justice resulted from the trial court’s ruling.
Defendant also argues that the trial court committed an error requiring reversal by refusing to give CJI 3:1:12 (Witnesses — Conflicting Testimony) in its entirety. The court deleted subparagraph (3) from its instruction.
CJI 3:1:12(3), as it existed at the time of the trial in this case, read as follows:
"(3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant.”
Jury instructions must be read as a whole, People v Johnson, 93 Mich App 667, 670; 287 NW2d 311 (1979), and not extracted piecemeal in an effort to establish error requiring reversal. People v Choate, 88 Mich App 40, 45; 276 NW2d 862 (1979), lv den 406 Mich 940 (1979).
The omission of subparagraph (3) did not remove an issue from the jury’s consideration. The trial court instructed the jury on its role in evaluating the testimony for weight, believability and credibility. Our review of the record indicates that the jury was given the greater portion of the requested instruction and that the trial court fully instructed the jury on the burden of proof beyond a reasonable doubt. We therefore conclude that the instructions, taken as a whole, adequately informed the jury of the applicable law. People v Stewart, 126 Mich App 374; 337 NW2d 68 (1983).
Defendant next argues that the trial court impermissibly considered his denial of guilt in imposing sentence.
Our review of the record indicates that the trial court’s consideration was not contrary to People v Yennoir, 399 Mich 892 (1977). The trial court merely stated that defendant’s failure to accept the fact that he has a problem suggested that rehabilitation would not be forthcoming and that, therefore, the sentence should not be reduced.
The next issue raised by defendant involves the trial court’s consideration of uncharged crimes in determining defendant’s sentence.
"A trial judge has wide discretion in imposing a sentence, and may consider other criminal activity for which no conviction resulted, provided the defendant is given an opportunity for refutation”; however, the trial judge may not make an independent finding of a defendant’s guilt on another charge. People v Carter, 128 Mich App 541, 550-551; 341 NW2d 128 (1983).
In the present case, the trial court indicated that it considered information that defendant had molested other children on previous occasions. This information was apparently derived from the presentence report. Before imposing sentence, the trial court specifically inquired as to whether defendant and defense counsel had an opportunity to review the presentence report and whether there were any corrections to be made to it. Defendant raised no objection to the allegations in the presentence report that he had engaged in prior criminal sexual conduct which did not result in conviction. Under the circumstances, we find no error in the trial court’s consideration of the uncharged crimes in determining defendant’s sentence.
Next, defendant argues that the trial court abused its discretion in departing from the sentencing guidelines. We disagree.
The recommended sentence range under the guidelines is three to six years (36 to 72 months) to life. The sentence imposed by the trial court is 40 to 60 years. The Sentencing Information Report (SIR) lists the following reasons for the trial court’s departure from the sentencing guidelines: 1) the fact that defendant had a history of past sexual contact with his daughters, complainant and complainant’s sister, and 2) the fact that defendant had threatened his son with a shotgun. The sentencing transcript additionally indicates that the trial court was convinced that society needed to be protected from defendant. The trial court further indicated that others should be deterred from committing like offenses and that defendant had to be disciplined for committing the charged offense. We conclude that the trial court’s reasons for departing from the sentencing guidelines were adequate. The sentence imposed by the trial court does not shock the judicial conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
Defendant’s final argument involves the trial court’s order dated May 1, 1984, which indicates that defendant’s $1,000 cash bond may be applied to fines, costs and attorney fees. Because the trial court was without authority to impose a fine in this first-degree criminal sexual conduct case, see MCL 750.520b(2); MSA 28.788(2)(2), we modify the lower court’s order to permit retention of the $1,000 only for payment of attorney fees.
Affirmed in part and modified in part. | [
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] |
Mackenzie, P.J.
Defendant and codefendant Clarence Walker were charged with breaking and entering an unoccupied structure with intent to commit larceny, MCL 750.110; MSA 28.305, in a complaint and warrant dated October 14, 1980. The same complaint and warrant charged defendant separately with possession of metallic knuckles, MCL 750.224; MSA 28.421. By an order dated October 14, 1980, the same counsel was appointed to represent both defendants. On October 21, 1980, both defendants waived preliminary examination and were bound over to circuit court. Supplemental informations wére filed on October 27, 1980, charging defendant as a second-felony offender, MCL 769.10; MSA 28.1082, and codefendant Walker as a third-felony offender, MCL 769.11; MSA 28.1083.
On January 28, 1981, defendant pled guilty to breaking and entering an unoccupied structure with intent to commit larceny in return for the prosecutor’s agreement to dismiss the habitual offender and possession of metallic knuckles charges. At the same proceeding, codefendant Walker also pled guilty to breaking and entering an unoccupied structure with intent to commit larceny in return for the prosecutor’s agreement to dismiss the habitual offender charge. On March 5, 1981, defendant was sentenced to imprisonment for from two years and three months to ten years. Codefendant Walker received an identical sentence. Defendant appeals by right.
The only issue raised by defendant on appeal concerns his representation by the same counsel that represented codefendant Walker. In Cuyler v Sullivan, 446 US 335, 348-350; 100 S Ct 1708; 64 L Ed 2d 333 (1980), the Court said:
"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.
"[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. * * * But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”
Defendant made no objection in the course of the proceedings below and on appeal points to no conflict of interest actually affecting the adequacy of his representation. Our examination of the 'record discloses no such conflict or effect. Instead, defendant relies upon the failure of the circuit judge to comply with GCR 1963, 785.4(4). That rule, adopted November 18, 1980, effective November 21, 1980, stated:
"(4) Whenever two or more defendants who have been jointly charged or whose cases have been consolidated are represented by the same lawyer, the court shall inquire into any potential conflict which might jeopardize the right of each defendant to the fidelity of his or her lawyer. The same lawyer may not represent two or more defendants unless
"(a) the lawyer proposing to represent two or more defendants states, on the record before trial, that joint representation will in all probability not cause a conflict of interest and states the reasons for the conclusion; and
"(b) the defendants state, on the record, after the court’s inquiry and the lawyer’s statement, that it is their desire to proceed with the same lawyer; and
"(c) the court finds, on the record, that joint representation will in all probability not cause a conflict of interest and states the reasons for the finding.
"If an unanticipated conflict occurs during trial, a lawyer who is representing two or more defendants shall immediately inform the court; if the court agrees that a conflict has arisen, it shall appoint an additional lawyer or lawyers or afford one or more of the defendants the opportunity to retain separate counsel, as the case may require. The court may, on its own motion, inquire into any potential conflict which becomes apparent during trial, and the court may take such action as the interests of justice require.”
Here, no attempt was made to comply with the rule. The rule took effect after defendant was bound over to circuit court on the charges at issue here but before defendant pled guilty. The court’s obligation under the rule is not tied to any particular stage of the proceedings and the prosecution concedes that the rule could and should have been complied with. The circuit court’s failure to comply with the rule, however, did not, of itself, violate defendant’s right to counsel. See Cuyler, supra, 346-347:
"[N]othing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. Indeed, as the Court noted in Holloway [v Arkansas, 435 US 475, 485-486; 98 S Ct 1173; 55 L Ed 2d 426 (1978) ], trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. 'An "attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’ ” 435 US at 485, quoting State v Davis, 110 Ariz 29, 31; 514 P2d 1025, 1027 (1973). Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” (Footnotes omitted.)
This case, therefore, presents us with a question of first impression: whether failure to comply with GCR 1963, 785.4(4) requires reversal where defendant’s right to counsel was not shown to have been infringed. We hold that it does not.
The stated purpose of the rule was to protect the rights of defendants to the effective assistance of counsel in a joint representation situation. People v Gardner, 406 Mich 369, 373; 279 NW2d 785 (1979) . Effectuation of that purpose does not necessarily require reversal in a case in which there was no showing of a conflict of interest actually affecting the adequacy of representation. The rule does not expressly state that failure to comply is reversible error. Reversal is not always required for violations of similar rules. See, for example, Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), in which the Court held that whether a particular departure from GCR 1963, 785.7 requires reversal depends on the nature of the noncompliance. The rule is not rendered a nullity if reversal is not required for noncompliance; the rule may still be enforced through writs of superintending control. People v Winegar, 380 Mich 719, 731; 158 NW2d 395 (1968). We note that in the pre-Cuyler case of United States v Foster, 469 F2d 1, 5 (CA 1, 1972), the circuit court exercised its supervisory powers to require trial courts to inquire into the propriety of multiple representation but declined to adopt a rule of automatic reversal.
In view of the foregoing, we cannot say that GCR 1963, 785.4(4) expresses an intent of our Supreme Court to require reversal for noncompliance with the rule absent a showing of conflict of interest actually affecting the adequacy of representation.
Affirmed. | [
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Per Guriam.
Defendant appeals as of right from an order entered in the Oakland County Circuit Court, prohibiting him from operating his inner-city Detroit grocery and housewares business under the trade name of "Thrifty Acres”.
For purposes of this appeal, we adopt the trial court’s statement of facts:
"The testimony of Frederick Meijer, chairman of the board and chief executive officer of the plaintiff establishments, was to the effect that in 1961 a contest was conducted to select a name for their retail store operation in western Michigan. After selecting and incorpo rating the name 'Thrifty Acres, Inc.’, on October 16, 1961 the plaintiff opened their first Thrifty Acres store at 1540 28th Street, S.E., in Grand Rapids, Michigan, on June 7, 1962. Thereafter, plaintiffs opened stores and commenced doing business as Thrifty Acres in. the following Michigan cities: Holland; Jenison; Grand Haven; Ypsilanti; Canton, Flint; Jackson; Ionia; Battle Creek; Traverse City; Taylor; Royal Oak; Wyoming; Sterling Heights; Burton; Muskegon and Saginaw. There was testimony that in February of 1971 the plaintiff began studies of the Detroit area for possible store locations, and on February 16, 1973 the Oakland Press published a story describing plaintiff’s projected new stores for the Detroit area, following up with an article on April 25, 1973 regarding the establishment of Thrifty Acres stores in the Detroit area. Evidence was presented that seven sites have been acquired in the Detroit area by the plaintiffs for future stores. Numerous articles were printed in the trade journals of the grocery business, outlining the eastward movement of the Thrifty Acres banner into the Detroit area. Plaintiffs chief officer testified at length regarding the high standards maintained by his stores, such as clean restrooms, honesty in advertising, and sanitation measures in his meat markets. Additionally, the establishments provided facilities for the handicapped long before the state enacted legislation to that end. Plaintiffs chief complaints against the use of the name 'Thrifty Acres’ are the difference in prices between defendant’s store and those prices appearing in circulars distributed by plaintiff, and that defendant does not carry the items advertised by the plaintiff.
"Evidence was introduced that two complaints were filed with the Consumer Protection Division of the Attorney General’s office by two patrons of defendant’s store, and the complaints were charged to plaintiffs by the investigator. Any fair reading of plaintiffs exhibits 7 and 8 reveals that there was obvious confusion with respect to the name 'Thrifty Acres’.
"Additionally, there was evidence introduced that plaintiff was named as a defendant in a lawsuit brought in the United States District Court by a former employee of defendant for wages and restitution under the Fair Labor Standards Act. Plaintiff was also named as a defendant in a lawsuit brought in the Circuit Court for Wayne County by a customer who slipped on a grape in the defendant’s store.
"Substantial testimony was introduced regarding the areas of advertising: television, radio, and newspapers (circulars). The plaintiffs store in Taylor is approximately 12 miles from defendant’s store located in Detroit, and thus within the radius of television, radio, and newspaper advertising coverage. In 1979 the plaintiff spent in excess of $5,000,000 in advertising in the Detroit area. An interesting and informative study conducted in 1977 in the Detroit area was presented by the plaintiff regarding the question as to whether there was customer confusion with respect to the use of the name 'Thrifty Acres’. The awareness study was based on sample questions asked of persons living in the area of defendant’s place of business and resulted in a finding that there was confusion with respect to the advertising of Thrifty Acres as to whether it pertained to plaintiffs stores or any other business with that name. Plaintiffs presented substantial evidence that much time, effort, and expenditures of money were injected into the development of operations in the Detroit area.
"On October 22, 1973 defendant, Amir Al-Naimi, filed an assumed name certificate with the Wayne County clerk’s office listing his business as Thrifty Acres Super Market. After his first store burned, the defendant opened a new store across the street and installed signs reading 'Thrifty Acres’.
"Defendant introduced evidence that his store was a family operation that catered to the people living in the immediate area of the store, mostly blacks and welfare recipients. The food items carried by the defendant are those primarily consumed by blacks, such as greens, chitlings, and hog jowls. It was the position of the defendant at trial that his operation is distinctly different from that of the plaintiff, and definitely not in competition with the plaintiff.”
The first basis for the trial court’s decision enjoining defendant’s use of the "Thrifty Acres” name was that the moniker had acquired a "secondary meaning”. Defendant asserts, however, that, in light of the lower court’s specific finding that "the evidence at trial did not preponderate in favor of plaintifi[s] regarding the question of competition between the parties”, the court’s determination that "Thrifty Acres” had acquired a "secondary meaning” is clearly erroneous. We disagree.
A trade name can acquire a "secondary meaning” without the existence of actual competition between the businesses. The question is whether the business alleged to be infringing on the trade name is exploiting words or symbols which have become associated in the minds of potential customers with the other business. Boron Oil Co v Callanan, 50 Mich App 580, 583-584; 213 NW2d 836 (1973), and authorities cited therein. We take the lower court’s finding of no competition between the parties to mean that few, if any, of the Detroit inner-city customers who constitute the bulk of defendant’s clientele would travel the distances necessary to shop for groceries and housewares in one of plaintiffs’ stores. Conversely, we believe the finding suggests that plaintiffs’ customers would not travel into Detroit to buy their groceries and housewares in defendant’s store. Nonetheless, even in the absence of actual competition, a business is not allowed to exploit a name or symbol made valuable by another business entity. In this case, for instance, defendant may be attracting patrons who believe there is a connection between plaintiffs’ and defendant’s businesses. These customers, if they knew that, in fact, no such connection actually existed, might very well still decline to travel the distances necessary to patronize one of plaintiffs’ stores, but might also choose to shop in a grocery store in the area other than defendant’s. Thus, although the evidence fails to show that defendant is actually taking customers away from plaintiffs, defendant may well be exploiting the use of the "Thrifty Acres” name and symbol and thereby be taking patrons away from other local grocers who do not use names which are similar to other well-established merchandising chains. In such situations, despite any proof of direct competition with the business associated with the trade name, the infringing business is still taking an unfair advantage over other competitors who do not use names which have developed a secondary meaning.
The foregoing is supported by the Michigan Supreme Court decision in Montgomery Ward & Co, Inc v Ward Furniture & Appliance Co, 327 Mich 582; 42 NW2d 747 (1950). There, the Court indicated that a trade name had acquired a secondary meaning when its use by another would lead to "confusion and deception”. The decision in Montgomery Ward does not indicate that any actual competition existed between plaintiff and defendant. Rather, noting plaintiff’s extensive operations and its advertising budget, the Court concluded that defendant’s use of the name would cause confusion in the minds of the citizenry. See, also, First National Bank & Trust Co of Kalamazoo v First National Credit Bureau, Inc, 364 Mich 521; 111 NW2d 880 (1961); Bell v Service Coal Co, 280 Mich 172; 273 NW 435 (1937); Grand Rapids Furniture Co v Grand Rapids Furniture Shops, 221 Mich 548; 191 NW 939 (1923).
As in Montgomery Ward, plaintiffs established that they operate a number of general merchandise retail stores throughout Michigan. Plaintiffs further established that they have spent millions of dollars on advertising which features and promotes its trade name, "Thrifty Acres”. The trial court also noted in passing marketing studies presented by plaintiffs showing that 71% to 84% of food shoppers, depending on location in Southeastern Michigan, associated the term "Thrifty Acres” with plaintiffs’ retailing business. The proofs also tended to show that the lesser name association of "Thrifty Acres” with plaintiffs in defendant’s marketing area was a product of defendant’s use of the name. Plaintiffs also presented photographs showing that defendant’s "Thrifty Acres” sign was similar to its own in design and color scheme.
The lower court also properly applied the "business expansion doctrine”: that is, that the senior appropriator of a trade name has a legitimate right to use said trade name over the entire territory in which it may be reasonably expected that normal expansion of the business will occur. See 74 Am Jur 2d, Trademarks and Tradenames, § 139, p 795. See, also, Grocer’s Baking Co v Sigler, 132 F2d 498 (CA 6, 1942), and Koffler Stores, Ltd v Shoppers Drug Mart, Inc, 434 F Supp 697 (ED Mich, 1976).
Finally, although not reached by the trial court, we conclude that plaintiffs’ assertion that defendant pirated the "Thrifty Acres” name is sufficiently proven on the record. Where actual pirating has occurred, this, in and of itself, will justify enjoining the use of a trade name. Boron Oil Co, supra, 583; Tisch Hotels, Inc v Americana Inn, Inc, 350 F2d 609, 615 (CA 7, 1965); 74 Am Jur 2d, Trademarks and Tradenames, § 129, p 788.
Defendant admitted that he must have known of the trade name, "Thrifty Acres”, prior to his appropriation of the same. Defendant further stated that when he went to the Wayne County clerk’s office to file an assumed name certificate, he requested "Thrifty Food Center” and then "Thrifty Market”, but these assumed names were taken. However, on cross-examination, defendant stated that he asked for "Thrifty Acres”, "Thrifty Foods”, and "Thrifty Food Center” all within a matter of three seconds, and he did not know which name he had requested first. Defendant further stated on cross-examination that he had not been told that "Thrifty Food” or "Thrifty Market” were unavailable as assumed names.
In addition, defendant’s "Thrifty Acres” sign is substantially similar in color scheme and design to plaintiffs’ sign. Furthermore, the exterior color of defendant’s store is substantially the same exterior color as plaintiffs’ stores.
Finally, the term "Acres” is not particularly descriptive of defendant’s store which is less than one-quarter of an acre. It thus seems implausible that defendant’s choice of the name "Thrifty Acres” was not motivated, at least in part, by an effort to appropriate the benefits associated with plaintiffs’ efforts to make the "Thrifty Acres” name synonymous with high quality at reasonable prices.
Affirmed. Plaintiffs-appellees may tax costs. | [
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Per Curiam.
Plaintiffs appeal as of right from the entry of accelerated judgment in favor of defendants.
Plaintiffs filed suit against defendants on July 30, 1981, alleging that on December 24, 1980, plaintiff William Houghtaling ate two brownie cookies which contained marijuana while at his place of employment, an Oldsmobile plant in Lansing. The complaint alleges that the brownies were made by defendant Chapman and offered to William Houghtaling by defendant Pentecost. According to plaintiffs, the ingestion of the brownies caused William Houghtaling to lose control of his arms, legs and speech, eventually resulting in severe mental and physical injuries.
Defendants moved for accelerated judgment, contending that William Houghtaling and the defendants were coemployees. Defendants argue that, under these circumstances, plaintiffs’ action is barred by the exclusive remedy provision of the Worker’s Disability Compensation Act (act). MCL 418.131; MSA 17.237(131). Defendant Pentecost in his answer included an affirmative defense, contending that, because William Houghtaling and defendants were coemployees, workers’ compensation was the sole remedy. Plaintiffs’ answer to defendants’ motion for accelerated judgment denies that defendants had acted within the scope of their employment and denies that workers’ compensation is the sole remedy. Plaintiffs’ first amended complaint alleges negligence and deliberate, careless or intentional infliction of harm on the part of the defendants.
Section 131 of the act provides that benefits, as provided in the act, shall be an employee’s exclusive remedy against the employer. MCL 418.131; MSA 17.237(131). Section 827 of the act preserves the employee’s right of action against a tortfeasor other than a natural person in the same employ. MCL 418.827; MSA 17.237(827).
Numerous Michigan cases have enforced the principle that issues concerning injuries and whether they arose out of and in the course of the employment relationship are exclusively within the purview of the Bureau of Workers’ Disability Compensation (bureau). In Sewell v Bathey Mfg Co, 103 Mich App 732, 737; 303 NW2d 876 (1981), this Court stated:
"It is also beyond peradventure that the question of whether the act applies to a particular injury, i.e., whether an injury arose out of and in the course of a worker’s employment (and thus is compensable under the act), is a question to be resolved in the first instance exclusively by the Bureau of Workmen’s Compensation. Szydlowski v General Motors Corp, 397 Mich 356, 358-359; 245 NW2d 26 (1976); St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 377-378; 230 NW2d 440 (1975); MCL 418.841; MSA 17.237(841).”
Accord, Bednarski v General Motors Corp, 88 Mich App 482; 276 NW2d 624 (1979); Cowan v Federal-Mogul Corp, 86 Mich App 619; 273 NW2d 487 (1977); Herman v Theis, 10 Mich App 684; 160 NW2d 365 (1968), lv den 381 Mich 772 (1968).
Exclusive jurisdiction lies with the bureau even though a plaintiff’s complaint does not allege or rely on an employment relationship between the parties. Bednarski, supra; Dixon v Sype, 92 Mich App 144; 284 NW2d 514 (1979).
The only exception to the bureau’s exclusive jurisdiction is where it is obvious that the cause of action is not based on the employer-employee relationship. In such cases, the circuit court has authority to reject the claimed applicability of the exclusive remedy provision. Panagos v North Detroit General Hospital, 35 Mich App 554, 559; 192 NW2d 542 (1971); Modeen v Consumers Power Co, 384 Mich 354; 184 NW2d 197 (1971).
We feel that the trial court in the instant case went too far when it concluded that, as a matter of law, workers’ compensation is the sole and exclusive remedy for William Houghtaling’s injuries. That question must first be decided by the bureau. We reverse the circuit court’s order in that respect and remand the matter to the circuit court. William Houghtaling shall, within 30 days of the release date of this opinion, file with the bureau an application for a hearing on the question in controversy. If such application is timely filed, the circuit court shall hold the instant action in abeyance pending the decision of the bureau. If the bureau determines that William Houghtaling’s injuries were suffered in the course of his employment, or if William Houghtaling fails to apply for a bureau determination within 30 days or to seek review of this decision in the Supreme Court in timely fashion, the accelerated judgment of dismissal in the circuit court shall stand affirmed but without prejudice for the reasons stated in this opinion. If the bureau finds the injuries not to be work-related, the circuit court action may proceed. See Johnson v Arby’s, Inc, 116 Mich App 425; 323 NW2d 427 (1982), and Buschbacher v Great Lakes Steel Corp, 114 Mich App 833; 319 NW2d 691 (1982).
Reversed and remanded. | [
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D. F. Walsh, J.
Plaintiff, Martha Paavola, guardian of the estate of Karen Rae Paavola, a mentally incompetent person, appeals entry of accelerated judgment for defendant Saint Joseph Hospital Corporation. The trial court ruled that plaintiffs suit was barred by the statute of limitations. GCR 1963, 116.1(5).
Plaintiffs daughter and ward, Karen Rae Paavola, was given medical treatment at defendant hospital in 1973. During a September 15, 1973, operation, plaintiffs daughter went into cardiac arrest, was deprived of oxygen for a matter of minutes, and apparently suffered permanent brain damage which rendered her mentally incompetent.
Plaintiff was appointed her daughter’s guardian on June 19, 1979. In that capacity she filed suit against defendant hospital on February 25, 1981, alleging that her daughter’s mental incompetence was caused in 1973 by defendant’s negligence. Defendant filed a motion for accelerated judgment on the ground that the suit was barred by the running of the period of limitation. The trial court agreed, ruling that suit could have been brought by plaintiff only within one year of her appointment as guardian of her daughter. Because suit was brought approximately 20 months after the appointment, accelerated judgment was entered for defendant. We reverse.
At issue is interpretation of the following statutory saving provision:
"If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have one year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run * * MCL 600.5851(1); MSA 27A.585(1).
The question presented is whether Karen Rae Paavola’s disability was removed by the appointment of her mother as her guardian. The trial court ruled that it was and that the one-year statutory grace period began to run at the time of that appointment. We disagree.
In Keating v Michigan Central R Co, 94 Mich 219; 53 NW 1053 (1892), the Supreme Court held that, for purposes of the statutory saving provision, the disability of a minor is not removed until he or she attains the age of majority. The Court rejected the defendant’s claim that the term "disability” means disability to bring suit and ruled that the appointment of a guardian for a minor does not start the running of the period of limitation against the minor. This ruling was reaffirmed in Klosky v Dick, 359 Mich 615; 103 NW2d 618 (1960). Cf. Smith v Bordelove, 63 Mich App 384; 234 NW2d 535 (1975), lv den 395 Mich 772 (1975).
Defendant argues that the disabilities of infancy and insanity should be treated differently for purposes of resolution of the issue presented in this case. The statute, however, makes no pertinent distinction between these two disabilities and we are not persuaded that such distinction is warranted. See Whalen v Certain-Teed Products Corp, 108 Ga App 686; 134 SE2d 528 (1963).
In jurisdictions where this issue has been addressed, it has generally been held that, absent contrary statutory authority, the appointment of a guardian for a mentally incompetent person does not have the effect of starting the running of a period of limitation tolled by virtue of the disability of mental incompetence. Emerson v Southern R Co, 404 So 2d 576 (Ala, 1981); Zini v First National Bank in Little Rock, 228 Ark 325; 307 SW2d 874 (1957); Shambegian v United States, 14 F Supp 93 (D RI, 1936); Johnson v United States, 87 F2d 940, 942 (CA 8, 1937) ("* * * it has been generally held under such statutes that the insane person may maintain an action by his guardian at any time during the continuance of his disability”); Wolf v United States, 10 F Supp 899, 900 (SD NY, 1935):
"Where there is a statute to the effect that a suit on a cause of action accruing to an infant or insane person may be brought within a specified time after removal of the disability, it is generally held that the appointment of a guardian or committee is not a removal of the disability in the sense that it starts the running of the time limitation. The saving clause is held to cover the time of continuance of infancy or insanity. Funk v Wingert, 134 Md 523; 107 A 345; 6 ALR 1686 [1919]; Monroe v Simmons, 86 Ga 344; 12 SE 643 [1890]; Hervey v Rawson, 164 Mass 501; 41 NE 682 [1895]; Keating v Michigan Central R Co, 94 Mich 219; 53 NW 1053 [1892]; Finney v Speed, 71 Miss 32; 14 So 465 [1893]; Bourne v Hall, 10 RI 139 [1872]. The view is taken that the Legislature had in mind, not merely the inability to sue, but also the difficulties of the incompetent in giving information and in testifying. Funk v Wingert, supra.”
See Anno: Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward, 86 ALR2d 965.
Nothing in Michigan’s statute suggests legislative intent that an insane person’s exemption from the running of periods of limitation is to end upon appointment of a guardian for him or her. We adopt the view generally held in other jurisdictions and hold that the appointment of a guardian for an insane person does not constitute removal of the insane person’s disability for purposes of MCL 600.5851(1). Periods of limitation, therefore, do not begin to run against insane persons upon such appointment. The filing of plaintiffs complaint on behalf of her mentally incompetent daughter was, therefore, timely.
Defendant urges that our holding effects the "impalatable result” that the guardian of a mentally incompetent person may bring suit on the ward’s behalf during the entire period of mental incompetency — a period potentially many decades long. In our judgment, however, a contrary holding would constitute unjustifiable tampering with the significant public policy clearly reflected in MCL 600.5851(1) — the protection and preservation of the substantive rights of mentally incompetent persons.
Reversed. Costs to plaintiff.
The statute further provides:
"The term insane as employed in this chapter means a condition of mental derangement such as to prevent the sufferer from comprehending rights he is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane.” MCL 600.5851(2); MSA 27A.5851(2). That Karen Rae Paavola is insane for purposes of this statute is not disputed.
Emery v Chesapeake & Ohio R Co, 372 Mich 663; 127 NW2d 826 (1964), and Geisland v Csutoras, 78 Mich App 624; 261 NW2d 537 (1977), involved suits brought by guardians on behalf of mentally incompetent plaintiffs. In discussing whether the period of limitation had run against the plaintiffs, the appellate courts focused solely on the issue of the mental condition of the plaintiffs. While the issue of the effect of the appointment of guardians was not presented, it is clear that the appointments played no part in the Courts’ resolution of the statute of limitations questions. | [
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