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Per Curiam.
The prosecutor appeals from the Oakland County Circuit Court’s May 7, 1984, order dismissing a supplemental information filed against defendant. We affirm.
Defendant was charged with breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. On October 6, 1983, the date set for arraignment, defendant waived arraignment by filing an arraignment by mail form. See GCR 1963, 785.5(2) [MCR 6.101(D)(2)]. On October 19, 1983, the prosecutor filed a supplemental information charging defendant as a fourth-felony offender, MCL 769.12; MSA 28.1084. Neither defense counsel nor defendant was served with notice of the supplemental information until November 3, 1983, the date of the arraignment on the supplemental information.
Defendant filed a motion to dismiss the supplemental information on the ground that the prosecutor failed to give notice of its filing within the 14-day period prescribed in People v Shelton, 412 Mich 565; 315 NW2d 537 (1982). The trial court granted the motion following a hearing on December 22, 1983, and an order was entered accordingly on May 7,1984.
In People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), the Supreme Court held that a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. 407 Mich 98. The Court in People v Shelton, supra, p 569, stated:
"The purpose of requiring a prosecutor to proceed 'promptly’ to file the supplemental information is to provide the accused with notice, at an early stage in the proceedings, of the potential consequences should the accused be convicted of the underlying offense.
* * *
"Accordingly, we hold that a supplemental information is filed 'promptly’ if it is filed not more than 14 days after the defendant is arraigned in circuit court (or has waived arraignment) on the information charging the underlying felony, or before trial if the defendant is tried within that 14-day period. We believe that such a rule allows the prosecutor sufficient time to make a decision concerning supplementation while at the same time providing notice at an early stage of the proceedings to the defendant of the potential consequences of conviction of the underlying felony.”
Although the Supreme Court in Shelton stated that a supplemental information is promptly filed if it is filed within the 14-day period, it is apparent that the Court was concerned primarily with providing notice to the accused at an early stage of the proceedings. That purpose is not accomplished if the prosecutor can comply by simply filing the supplemental information and delaying notice to the accused. In order to further the purpose of the rule established in Shelton, we hold that, at the least, the prosecutor must serve defense counsel with notice of the filing of the supplemental information within the 14-day period prescribed in Shelton. See also, OCR 1963, 107.1 [MCR 2.107(A)],
In this case neither defense counsel nor defendant were provided with notice of the supplemental information until November 3, 1983, 28 days after defendant waived arraignment on the information charging the underlying felony. Accordingly, we conclude that the trial court properly dismissed the supplemental information.
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Williams, J.
Introduction
We granted leave to appeal in these two cases to address the issue of "whether sentencing disposition is an appropriate subject for plea agreement; and, if so, what is the proper role of the court with respect to a sentence agreement”. 408 Mich 958, 959 (1980). We recognize that "charge bargaining” is a traditionally accepted practice in Michigan. We now proceed to determine whether or not sentence bargaining will likewise be accepted and, if accepted, under what terms.
We hold that sentencing concerns are appropriate subjects for plea bargaining. However, we hold that the judge’s role in plea negotiations, sentence bargaining included, is limited to consideration of the bargain between the defendant and the prosecutor. The judge may not become involved in the negotiation of the bargain. Finally, the defendant must be given the opportunity to withdraw his guilty plea if the judge rejects the proffered bargain or chooses not to follow the prosecutor’s sentence recommendation.
We are appreciative of the helpful briefing of counsel, particularly the Wayne County Prosecutor.
I. Facts
People v Briggs
Defendant Briggs was initially charged with armed robbery, MCL 750.529; MSA 28.797; assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279; and possession of a firearm during commission of a felony, MCL 750.227b; MSA 28.424(2). Before trial commenced, the defendant and the prosecutor agreed that the defendant would plead guilty to the armed robbery count in exchange for (1) dismissal of the assault and firearm charges, (2) a recommendation by the prosecutor that the defendant receive no more than a 12- to 25-year sentence, and (3) the prosecutor’s promise not to bring an habitual offender charge against the defendant.
The trial judge accepted the guilty plea but prefaced his acceptance with the warning that he was not bound by the sentence recommendation: 'T will state I have not agreed upon the possibility of a plea or possible sentence in this case with anyone whomsoever, and I hereby accept your plea”.
At sentencing 18 days later, the trial judge again emphasized that he was not required to follow the prosecutor’s sentence recommendation, repeated the recommendation of 12 to 25 years, and proceeded to sentence the defendant to 20 to 40 years imprisonment.
On appeal, the Court of Appeals held that the defendant should have been given the opportunity to withdraw his plea, once the judge decided not to follow the prosecutor’s sentence recommendation. 94 Mich App 723, 726; 290 NW2d 66 (1980).
People v Killebrew
In November, 1977, the defendant was charged with two unrelated charges of armed robbery. The defendant stood mute at the preliminary examination; the prosecutor’s office offered no reduced pleas. Pretrial conference commenced with the judge, the defendant, and defense counsel present; the prosecutor was absent. The judge proceeded as follows:
"This is file 77-09003 — Mr. Killebrew, you’re charged with two counts of robbery armed. And of course, they both carry life and in addition you have been convicted twice in the past of robbery armed, so you can expect that you will get life if you are convicted. I presume also that the prosecutor’s office would look in terms of bringing an habitual offender [charge] against you, which also carries life if you are convicted of either of these.”
The trial judge then engaged in sentence negotiations with the defendant and his counsel and reached the agreement that if the defendant pled guilty he would receive a sentence of no more than 15 to 25 years on each count to run concurrently with whatever sentence the defendant would receive on a pending felony offense. The plea was entered in the presence of the defendant, his coun sel, and an assistant prosecuting attorney. The judge then sentenced the defendant pursuant to his agreement. On appeal as of right, the Court of Appeals affirmed the defendant’s convictions without opinion.
On June 20, 1980, this Court granted leave to appeal to the prosecutor in People v Briggs, 408 Mich 958 (1980), and to the defendant in People v Killebrew, 408 Mich 959 (1980).
II. Plea Bargaining
No challenge is being directed today at the constitutionality of the practice of plea bargaining. In Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), the Supreme Court of the United States sanctioned its use, recognizing the pervasiveness of the practice and the advantages of the procedure for both the defendant and the state.
By all estimates, the practice of plea bargaining is even more pervasive today. As one commentator noted:
"The criminal justice system now disposes of virtually all cases of serious crime through plea bargaining. Depending on the jurisdiction, as many as 99 percent of all felony convictions are by plea. This nontrial procedure has become the ordinary dispositive procedure of American law.” Langbein, Torture & Plea Bargaining, 46 U Chi L Rev 3, 9 (1978).
Given the prevalence of its use, it is not surprising that the Supreme Court of the United States has labeled plea bargaining "an essential component of the administration of justice”. Santobello v New York, 404 US 257, 260; 92 S Ct 495; 30 L Ed 2d 427 (1971).
Of course, merely because the practice is deeply entrenched does not prove its value. The Supreme Court of the United States, however, has enumerated the benefits of the procedure.
"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.” Santo-bello, supra, 261. See also Brady, supra, 397 US 752.
Thus, we begin with the premise that the general practice of plea bargaining withstands constitutional scrutiny and offers significant benefits to both the defendant and the state. Charge bargaining, a species of plea bargaining, has also been specifically approved by the Supreme Court of the United States, Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), and its practice is well-established in Michigan. See, e.g., Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972). We now, therefore, direct our attention to two other variations of the practice: sentence agreements and prosecuto-rial sentence recommendations.
III. Sentence Bargaining
Any inquiry into the parameters of plea bargain ing must include an analysis of the mechanics. In essence, the practice involves the act of self-conviction by the defendant in exchange for various official concessions. Alschuler, Plea Bargaining and Its History, 13 Law & Society Rev 211, 213 (1979). The state, in the persons of the prosecuting attorney and the judge, has at its disposal various concessions to induce the defendant’s guilty plea.
The judge’s bargaining strength clearly lies in his statutorily granted sentencing power, MCL 769.1; MSA 28.1072. Judges can use this power to offer reduced sentences in order to persuade defendants to plead guilty.
The prosecuting attorney’s strength stems from his charging power and his ability to make a sentencing recommendation to the judge.
The prosecutor has various devices in his arsenal of concessions — first, charge bargaining. The prosecuting attorney may agree with the defendant to bring reduced charges or to dismiss certain charges or cases altogether. Alternately, the prosecutor may file a supplemental information charging the defendant as an habitual offender. Since, generally, the defendant has little interest in the title of his crime, the prosecuting attorney’s bargaining power is his ability to circumscribe the judge’s sentencing discretion by locking defen dant’s crime into a lower sentencing range. The second device is sentence agreement. The prosecuting attorney, after conference with the defendant, may present to the court a sentence agreement stating that the parties agree that a specifically designated sentence is the appropriate disposition of the case. The court may either accept or reject the agreement. However, if the court rejects the agreement, the defendant does not enter his guilty plea. The third device is sentence recommendation. The prosecuting attorney may promise the defendant to recommend a specific sentence, or promise to make no recommendation at all. We will subsequently discuss what the court’s reaction to this should be.
From this brief analysis, it is clear that the defendant may be persuaded to surrender his valuable right to trial with its accompanying rights and procedural safeguards in exchange for concessions aimed at sentence reduction and certainty. He wants to know in advance what will happen to him when he leaves the courtroom; he is bargaining for the length of his incarceration.
Given this reality, it would be disingenuous to say that sentencing concerns have no place in plea bargaining; bargaining over the duration of the sentence is the primary focus of plea bargaining. In fact, the consideration of sentencing in the plea-negotiating procedure has been tacitly recognized in GCR 1963, 785.7(4)(b), which requires the trial judge to record any plea or sentence agreements between the defendant and the prosecutor.
Our formal recognition today that sentence concerns are appropriate subjects for plea negotiations will, it is hoped, sweep away the last vestiges of belief that the defendant must place reliance in covert promises of the prosecutor and utter hollow answers to the judge that no promises were made. It should hereafter be understood by everyone that sentence negotiations need not and shall not be made furtively. Honest responses to bargain inquiries, including sentence agreements, will facilitate appellate review. More importantly, candor must be the order of the day to preserve the integrity of the court in the eyes of the defendant and the public.
IV. Judicial Role in Sentence Bargaining
Having recognized the central role that sentence considerations play in plea negotiations, our next inquiry becomes the appropriate role for the judge in the procedure. Various models have been proposed which range the full spectrum from noninvolvement of the judge to judicially instigated negotiations. Each model, of course, builds on the feature thought most essential to insuring a fair and workable procedure. However, we find two competing considerations which must be accommodated: on the one hand, judicial involvement in the procedure must be kept to a minimum to avoid a coercive effect on the defendant and loss of public confidence in the judicial system; on the other hand, the statute requires the judge to ultimately impose the sentence.
First the judicial role in the negotiation process must be limited for several reasons — to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.
The problem of coercion arises from the disparate bargaining positions of the judge and the defendant: the judge wields the decisive sentencing power to which the defendant must submit. Should the trial judge exert or even seem to exert the authority of this position to induce the defendant to plead guilty, the voluntariness of the defendant’s subsequent waiver of his right to a jury trial becomes questionable.
Any waiver of a constitutional right, such as the right to jury trial, must be voluntary. Brady v United States, supra; Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). The principle of voluntariness seeks to insure the protection of the defendant’s rights and the accuracy of the plea, and to discourage pleas which, though perhaps accurate, were induced by undesirable methods. McCoy & Mirra, Plea Bargaining as Due Process in Determining Guilt, 32 Stanford L Rev 887, 899-900 (1980).
In Brady v United States, the Supreme Court of the United States while condoning the practice of inducing guilty pleas by promises of leniency, recognized the potential coercive influence of the prosecutor and the judge. Analogizing the practice of obtaining guilty pleas to that of obtaining confessions, the Court found that the coerciveness of the prosecutor’s position could be dissipated by the presence of competent defense counsel. Brady, p 754. However, the Court reserved the question of judicial participation, tacitly recognizing that the same protective device would not neutralize the coercive power of the trial judge. The Court explained:
"In Brady’s case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.” (Emphasis added.) Id., p 751, fn 8.
Due to the nature of the unequal bargaining positions of the judge and the defendant, any involvement in the negotiations transforms discussions into perceived coercion. As the federal Court of Appeals for the Second Circuit eloquently explained:
"Nor can we fail to consider the subtle pressures that may be exercised by a judge against a defendant who rejects an opportunity, presented by such a response as the judge here proposes to make, the acceptance of which may relieve the judge of a lengthy trial. Any predilections of guilt that a judge might hold regarding a defendant must inevitably be reinforced by the knowledge that the defendant wishes to engage in plea bargaining discussions. While these factors inhere in all plea bargaining agreements, their effect on the voluntariness of the plea and the subsequent trial could only be greater where the judge is himself the active participant in constructing the terms of the rejected agreement.” United States v Werker, 535 F2d 198, 202 (CA 2, 1976).
Nor is it only the defendant who is harmed by allowing the judge to become involved in the negotiation of the plea bargain. The public perception of the judge as a neutral arbiter must suffer when the judge descends from the bench to barter with the defendant and prosecutor over the terms of the deal he advocates. The Werker court explained:
"Rule 11 [prohibiting judicial participation in plea bargaining] implicitly recognizes that participation in the plea bargaining process depreciates the image of the trial judge that is necessary to public confidence in the impartial and objective administration of criminal justice. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant.” (Footnote omitted.) United States v Werker, supra, 203.
See also State v Buckalew, 561 P2d 289 (Alas, 1977); People v Clark, 183 Colo 201; 515 P2d 1242 (1973).
Therefore, judicial participation must be limited in order to minimize the coercive effect of such participation on the defendant, to insure the vol-untariness of plea, and to preserve public confidence in the judicial system.
The second consideration which we feel is essential to our analysis is the fact that the judge must be involved ultimately in the sentence-bargaining process. This involvement is mandated by statute.
As we have discussed, the primary focus of plea bargaining is the determination of sentence duration. The sentencing function, however, has been designated by the Legislature as a function of the judiciary. MCL 769.1; MSA 28.1072; People v White, 41 Mich App 370, 379; 200 NW2d 326 (1972), aff'd 390 Mich 245; 212 NW2d 222 (1973). If the judge divorces himself from the sentencing process completely, he has abdicated a statutory function. The prosecuting attorney through negotiated sentence "agreements” and recommendations then becomes the sentencing authority contrary to statute.
In balancing these competing considerations— that the degree of involvement must be kept minimal to avoid a coercive atmosphere and to retain public confidence in the judicial system and that judicial control of sentencing is required by statute —we now hold that a trial judge shall not initiate or participate in discussions aimed at reaching a plea agreement. He may not engage in the negotiation of the bargain itself. The trial judge’s role in the plea-bargaining procedure shall remain that of a detached and neutral judicial official. The judge’s involvement in agreements will therefore proceed along the format described in Part V. _'
V. The Sentence-Bargaining Procedures
If the prosecuting attorney and the defendant choose to negotiate, and in fact reach a sentence agreement or sentence recommendation, the court shall require disclosure in open court of the details of the agreement at the time the plea is offered. GCR 1963, 785.7(2)(b).
A. Sentence Agreement
If the sentence bargain includes a sentence agreement, whereby the defendant agrees with the prosecuting attorney to plead guilty in exchange for a specific sentence disposition, the court must accept or reject the agreement or defer action until the judge has had the opportunity to consider the presentence report. In any event, the judge must have considered the presentence report before final acceptance of the sentence agreement.
If the judge feels that the agreed-upon disposition will serve the interests of justice, he may accept the agreement. The court shall then so inform the defendant, accept the plea, and embody the terms of the plea agreement in the judgment and sentence.
However, if the judge, in the exercise of his discretion, finds that the bargain is not tailored to reflect the particular circumstances of the case or the particular offender, he shall reject tne plea at that time. The court shall then, on the record, inform the defendant that the court will not accept the plea or be bound by the agreement.
This Court recognized more than 20 years ago that the waiver of a jury trial cannot be knowing or voluntary when the waiver was induced by reliance on a total package of concessions by both parties to which one party — the state — is no longer bound. If the judge refuses to agree to the state’s concessions, the defendant may refuse to waive his constitutional rights. In re Valle, 364 Mich 471, 476; 110 NW2d 673 (1961).
B. Sentence Recommendations
On the other hand, if the sentence bargain includes a prosecutorial sentence recommendation, i.e., a mere prosecutorial recommendation without mutual agreement by the judge, the posture of the bargain is slightly altered. Technically, the defendant has not been promised a specific sentence. He may nonetheless tender his guilty plea, waiving his valuable right to trial.
Although the prosecutorial "recommendation” would seem to inform the defendant of the consequences of his plea — that the prosecutor is merely suggesting a sentence and that the judge is not bound to follow the recommendation — the truth is that most defendants rely on the prosecutor’s ability to secure the sentence when offering a guilty plea. This is true even when the court specifically admonishes the defendant that it is not bound by the prosecutor’s recommendation. All disclaimers that the court is not bound are often viewed as ceremonial incantations. State v Goodrich, 116 NH 477, 479; 363 A2d 425 (1976); Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum L Rev 1059, 1069 (1976).
This situation closely parallels the one prohibited in In re Valle, supra, described by the Court with a quotation from a Georgia case:
" ’Of course, in theory, the accused knew that [the court was not bound]; but if they in fact honestly thought the agreement would be carried out, then they ought to have relief from the plea. If the State is not bound by the agreement its counsel made, then the accused ought not to be held to their waiver made on the faith of such agreement.’ ” 364 Mich 476-477, quoting Griffin v State, 12 Ga App 615, 630; 77 SE 1080 (1913).
To most defendants, the distinction between a sentence agreement and a sentence recommendation is little more than a variation in nomenclature.
A full understanding of the consequences of a plea is impossible where the defendant, believing that he has negotiated a specific length of sentence, tenders his guilty plea, only to find that he is bound by the act of self-conviction, but the trial judge is free to impose any sentence within the statutory range.
However, it is not our intention to circumscribe the judge’s statutorily granted sentencing discretion.
Therefore, we now hold that if the plea agreement offered to the court by the prosecutor and defendant includes a non-binding prosecutorial recommendation of a specific sentence, the judge may accept the guilty plea (after consideration of the presentence report), yet refuse to be bound by the recommended sentence. The judge retains his freedom to choose a different sentence. However, the trial judge must explain to the defendant that the recommendation was not accepted by the court, and state the sentence that the court finds to be the appropriate disposition. The court must then give the defendant the opportunity to affirm or withdraw his guilty plea.
Through this procedure, the defendant will be fully aware of all the consequences of his guilty plea. He will thus be able to make a knowing and intelligent waiver of his right to trial and its companion rights. Additionally, the judge will have full exercise of his sentencing discretion.
Various panels on the Court of Appeals have addressed this issue with contradictory results. We agree with those panels finding that principles of fairness require that the defendant be given the opportunity to withdraw his guilty plea.
C. Discussion
We feel that these methods of procedure for sentence agreements and sentence recommendations have several important advantages. First, by limiting judicial participation, the judge is better able to maintain his role as a neutral arbiter. Having not participated in nor, indeed, in some courts, even directed the negotiations, the trial judge has no vested interest in seeing the plea agreement effectuated. Second, because the judge has maintained his neutrality, the trial judge is in a better position to determine the voluntariness of the plea, as required by GCR 1963, 785.7(2). Third, the judge will retain control over sentencing. If the judge feels that the agreement reached by the defendant and government attorney will serve the interests of justice, he may accept the agreement or recommendation. If, however, the judge, in an exercise of his discretion, finds that the bargain is not appropriate, he is free to reject the plea. Thus, the judge’s sentencing discretion is unhampered. Fourth, this system eliminates the impropriety of judicial negotiations with either the defendant or the government’s attorney. Perhaps just results were reached during such negotiations, but the appearance of covert activity which resulted from off-the-record discussions destroys a defendant’s faith in the judge’s neutrality, as well as the public’s respect for the law. Fifth, the elimination of covert negotiations and the greater certainty infused in the guilty-plea proceedings by bringing sentencing bargaining out into the open should reduce appeals for post-conviction relief on the basis of the bargaining. Also, review of the appeals that are taken will be facilitated by the record made of the proceedings. Finally, the coercive atmosphere of the bargaining process will be minimized.
The model for limited judicial participation in plea-bargaining which we adopt today envisions the judge’s role to be similar to that espoused in several proposed models. It is quite similar to Federal Rule of Criminal Procedure 11(e)(1)-(4), except that under our system, when the judge rejects the recommended sentence, the defendant may affirm or withdraw his plea, whereas under the federal system, the defendant does not have the option to withdraw the plea.
We believe that the procedures we adopt today will encourage a higher quality of justice and greater faith in the judicial system.
VI. Application
The retroactive eifect of this opinion is limited as hereinafter described. Some of the practices proscribed in this opinion have resulted in disparate Court of Appeals opinions. Other practices have been proscribed because of fairness and public policy, rather than a specific rule of law.
The rules articulated in this opinion will be applied: (1) to all future trial court decisions where the defendant moves the sentencing court to vacate the sentence and withdraw the plea; (2) to all appeals or applications for leave to appeal filed prior to the date of this opinion where the issue is properly raised; and (3) to the two instant cases.
VII. Conclusion
Applying these principles to the facts before us, we affirm the Court of Appeals decision in People v Briggs. In this case, the prosecutor offered to recommend a specific sentence. Although the prosecution kept his promise, and the judge cautioned the defendant that the court was not bound by the recommendation, we find that the court must offer the defendant an opportunity to affirm or withdraw his plea. This will ensure that his guilty plea is grounded on a complete understanding of its consequences. The Court of Appeals decision is therefore affirmed.
In People v Killebrew, the trial judge initiated plea negotiations with the defendant. We find that the coercive atmosphere fostered by this type of judicial participation in the plea-bargaining process renders the defendant’s subsequent guilty plea involuntary. The judicial role in the bargaining process is limited to accepting or rejecting an agreement proffered by the parties. The Court of Appeals decision is therefore reversed, and the case is remanded to the trial court.
Kavanagh and Levin, JJ., concurred with Williams, J.
Coleman, J., concurred with Williams, J., as to Killebrew only, and did not take part in the decision of Briggs.
The decision to prosecute under one statute rather than another, or to prosecute at all, is an exclusively executive function, vested within the discretion of the prosecutor. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).
See Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), holding that due process is not violated when a prosecutor carries out a threat made during plea negotiations to charge a defendant with more serious offenses if he does not plead guilty to the offense originally charged.
Newman, Conviction: The Determination of Guilt or Innocence Without Trial (Boston: Little, Brown & Co, 1966), p 105; Note, Restructuring the Plea Bargain, 82 Yale L J 286, 287-289 (1972); People v Palmer, 55 Mich App 43, 50-51; 222 NW2d 26 (1974).
It is crucial to the successful operation of plea bargaining that these "recommendations” are usually accepted. Otherwise the bargain lacks sufficient certainty to induce a defendant to waive his right to trial.
In fact, the recommendations generally are accepted. See People v Byrd, 12 Mich App 186, 196; 162 NW2d 777 (1968) (Levin, J., concurring) ("[B]y and large, prosecutors deal and judges accept the deal, and were it otherwise the backlog would become completely intolerable.”) Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum L Rev 1059, 1065 (1976).
See, e.g., Note, Restructuring the Plea Bargain, 82 Yale L J 286 (1972); Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum L Rev 1059 (1976); American Law Institute, Model Code of Pre-Arraignment Procedure, § 350.3 (1975); Handbook of the National Conference of Commissions on Uniform State Laws, Uniform Rules of Criminal Procedure, Rule 441 (1974); ABA Standards for Criminal Justice (2d ed), Pleas of Guilty, Standards 14-3.1 to 14-3.4. People v Earegood, 12 Mich App 256, 258-259; 162 NW2d 802 (1968).
In fact, the Brady decision gave four illustrations of permissible types of plea bargaining: a guilty plea based on a prediction by the defense attorney that the trial judge will be more lenient than the jury; a guilty plea induced by the defense counsel’s prediction that the judge will sentence a defendant who pleads guilty more leniently than one who goes to trial; an agreement to plead guilty to a lesser offense; a guilty plea induced by the dismissal of other charges. None of these methods involves judicial participation. See also Bordenkircher v Hayes, 434 US 357, 364; 98 S Ct 663; 54 L Ed 2d 604 (1978).
The situation referred to in the judicial issue of the quotation has been addressed by F R Crim P 11 which prohibits judicial participation in plea negotiations in federal courts.
The following procedure is based on F R Crim P li(e)(1)-(4). The applicable sections read as follows:
"(e) Plea Agreement Procedure
"(1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:
"(A) move for dismissal of other charges; or
"(B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
"(C) agree that a specific sentence is the appropriate disposition of the case.
"The court shall not participate in any such discussions.
"(2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea.
"(3) Acceptance of Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
"(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”
When the revision of F R Crim P 11 was adopted in 1975, the wording of the rule caused some confusion among the courts regarding the difference between a recommendation and a specific disposition. Cf. United States v Savage, 561 F2d 554 (CA 4, 1977), with United States v White, 583 F2d 819 (CA 6, 1978). See also Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum L Rev 1059, 1070, fn 42 (1976).
The distinction was clarified with the 1979 amendment. The obligation the prosecutor assumes in a "recommendation” is discharged when he presents the agreed-upon recommended disposition to the court. In comparison, the prosecutor has not complied with the agreements to dismiss charges or to obtain a specific disposition until the charges are dismissed, or the sentence is entered. These later two agreements contemplate a specific disposition; this certainty is lacking in the prosecutorial recommendations.
We emphasize the limited time frame under discussion. The defendant must be given the opportunity to withdraw his plea immediately after the trial judge announces his decision to reject the plea bargain. To the extent that People v Severn, 303 Mich 337; 6 NW2d 536 (1942), and People v Bencheck, 360 Mich 430; 104 NW2d 191 (1960), conflict with this result, they are modified.
However, if the defendant chooses to affirm his guilty plea and acknowledges to the court his awareness that the bargain or a certain part of the bargain has been completely rejected by the court, the right to withdraw his plea lapses, and the former standards governing plea withdrawal will be utilized by the court. See People v Lewandow-ski, 394 Mich 529; 232 NW2d 173 (1975).
We note that under F R Crim P 11(e)(3) the defendant has no right to withdraw his guilty plea if the recommendation form of plea agreement is used. Our notion of fairness requires the contrary result.
For cases granting defendant an opportunity to withdraw his plea, see, e.g., People v Hagewood, 88 Mich App 35, 38; 276 NW2d 585 (1979); People v Black, 103 Mich App 109; 302 NW2d 612 (1981); People v Bahlhorn, 105 Mich App 118; 306 NW2d 416 (1981); People v Newsum, 105 Mich App 755; 307 NW2d 412 (1981). Other panels have held that if the court has informed the defendant that it is not bound by the proffered recommendation, the defendant need not be given the opportunity to withdraw the plea. See, e.g., People v Davis, 74 Mich App 624; 254 NW2d 335 (1977); People v Armstrong, 99 Mich App 137; 297 NW2d 637 (1980); People v Yates, 99 Mich App 396; 297 NW2d 680 (1980); People v Crabtree, 112 Mich App 720; 317 NW2d 537 (1982).
ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 3.3 (Approved Draft, 1968) (the 1979 revisions of the ABA standards have modified the § 3.3 total ban on judicial participation to allow a judge a limited role, see ABA Standards for Criminal Justice (2d ed), Pleas of Guilty, Standard 14-3.3; ALI, Model Code of Pre-Arraignment Procedure, § 350.3(1) (1975); Handbook of the National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure, Rule 441(a) (1974). | [
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Rehearing denied. Reported at 415 Mich 603. | [
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] |
Rehearing denied. Reported at 416 Mich 453. | [
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Rehearing denied. Reported at 415 Mich 362.
Williams, C.J., not participating. | [
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Fitzgerald, C.J.,
and Williams, Coleman, and Ryan, JJ. This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
The original complaint in this inverse condemnation class action was filed May 9, 1974. Proper notice was given to all eligible class members. Owners of 42 parcels of land joined the class. On August 18, 1978, the trial court granted defendant’s motion for accelerated judgment on the ground that all but seven of the plaintiffs’ claims were barred by the three-year statute of limitations pertaining to damages for injuries to persons and property.
The Court of Appeals affirmed the trial court’s decision, holding that the three-year statute of limitations was the proper statute to employ. 97 Mich App 697; 296 NW2d 151 (1980). This Court granted leave to appeal to determine whether the three-year statute of limitations for "injuries to persons and property” applies to inverse condemnation actions and, if not, what limitations period, if any, is applicable. Furthermore, if we find that a statute of limitations is applicable, we are asked to determine when the limitation period would begin to run as to the properties in this case.
Facts
The Court of Appeals decision succinctly set forth the pertinent facts as follows:
"This appeal is submitted on a stipulated statement of facts. The statement indicates that the parcels of realty in question are located within the boundaries of defendant’s Elmwood Park Urban Rehabilitation Project No. 3 (Elmwood 3). A part of Elmwood Park, the affected area contains approximately 1,400 separate parcels of land. Elmwood 3 was originally conceived by city planners in the mid-to-late 1950’s. As part of its urban renewal efforts, defendant City of Detroit has acquired and demolished the structures upon virtually every parcel within Elmwood Park in order to facilitate redevelopment.
"All parties have stipulated that the actions of defendant in the Elmwood 3 project resulted in a de facto taking of plaintiffs’ property without just compensation therefor. However, in each instance the subject properties were either directly or indirectly acquired by defendant as a result of nonpayment of taxes. This occurred after the de facto takings but well prior to the commencement of any formal condemnation proceedings by defendant. The plaintiffs now appealing were not joined as parties to any of 12 formal condemnation proceedings filed by defendant from August 3, 1971, to November 27, 1972.
"On May 9, 1974, the within action was instituted, well after all the parcels involved in this controversy were conveyed for nonpayment of taxes, and more than three years after the right of equity of redemption had expired with respect to every parcel.
"Because this right had expired with respect to the parcels formerly owned by the plaintiffs on appeal, the lower court concluded that each plaintiff’s cause of action accrued, at the latest, on the date of expiration of their right to redeem. Applying (as noted hereinbe-fore) the three-year statute of limitations found in MCL 600.5805(7); MSA 27A.5805(7), the trial court held that the claims of the plaintiffs now appealing were barred thereby because their claims accrued, at the latest, more than three years prior to the institution of the class action suit, and were thus without the statute of limitations.”
Hart, supra, 97 Mich App 700-701.
I
Inverse condemnation is a taking of private property for a public use without the commencement of condemnation proceedings. Under the Michigan and United States Constitutions, a victim of such a taking is entitled to just compensation for the value of the property taken.
The parties agree that the real property involved here was de facto taken but not paid for by the City of Detroit pursuant to In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965), and Foster v Detroit, 405 F2d 138 (CA 6, 1968). The disputed issue is whether this action is barred by a statute of limitations.
Plaintiffs first contend that due process rights guaranteed by the state and federal constitutions cannot be cut off by any statute. Since the issue is one of first impression in this state, plaintiffs primarily rely on Ackerman v Port of Seattle, 55 Wash 2d 400; 348 P2d 664 (1960), to support this proposition.
The Ackerman court did state that an action for compensation predicated on a constitutional taking would not be barred by any statute of limitations. However, this would only apply when the individual still held an interest in the property. If the individual lost this interest by adverse possession, such an action would be barred. The court stated:
"We have held that an action for constitutional taking is not barred by any statute of limitations and may be brought at any time before title to the property taken is acquired by prescription.” (Emphasis added.) 55 Wash 2d 405.
This point was further clarified in City of Sno-homish v Joslin, 9 Wash App 495; 513 P2d 293 (1973), where the court denied plaintiff’s claim for compensation regarding property which the city had acquired by prescription. The court upheld the Ackerman rule as quoted above but stated:
"We recognize anomaly inherent in the statement of the rule. Acquisition of title by way of prescription is the result of the barring of an action by a statute of limitation.” 9 Wash App 497.
Therefore, it is not totally accurate to state that in Washington an inverse condemnation action is not barred by any statute of limitations. Under these cases, a plaintiff’s constitutional right to compensation would expire whenever title to the property was lost by prescription; such a loss of title is predicated on the expiration of a statute of limitations.
Additionally, plaintiffs’ contention that no statute of limitations can bar a constitutional right is not supported by pertinent holdings of the United States Supreme Court. In United States v Dickinson, 331 US 745; 67 S Ct 1382; 91 L Ed 1789 (1947), a leading case on the applicability of statutes of limitations in inverse condemnation cases, a six-year federal statute of limitation period established for claims founded upon the United States Constitution was applied. Because the plaintiff’s claim was founded on the Fifth Amendment provision that private property shall not be taken for public use without just compensation, the Court held that the applicable statute of limitations was six years. See, also, Soriano v United States, 352 US 270; 77 S Ct 269; 1 L Ed 2d 306 (1957); Loesch v United States, 227 Ct Cl 34; 645 F2d 905 (1981).
In view of the context of these determinations, we are not persuaded by plaintiff’s claim that no statute of limitations should apply in this case. In determining which limitation period is applicable, three Michigan statutes are relevant:
MCL 600.5801; MSA 27A.5801:
"No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
"(4) In all other cases under this section, the period of limitations is 15 years.”
MCL 600.5805(7); MSA 27A.5805(7):
"The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
MCL 600.5813; MSA 27A.5813:
"All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.”
Plaintiffs contend that if a statute of limitations must apply, the one most closely analogous to an inverse condemnation action is the 15-year limitation which applies to adverse possession actions. On the facts of this case, however, the analogy falls short.
It is well-established in Michigan that adverse possession must be actual, visible, open, notorious, exclusive, continuous, under cover of claim of right and uninterrupted for the statutory period. Burns v Foster, 348 Mich 8; 81 NW2d 386 (1957); Rose v Fuller, 21 Mich App 172; 175 NW2d 344 (1970); Whitehall Leather Co v Capek, 4 Mich App 52; 143 NW2d 779 (1966). If the party alleging title by adverse possession does not prove it by clear and positive proof, then the original owner regains possession of the property. Burns and Rose, supra.
In contrast, a party who institutes an inverse condemnation action usually concedes that the condemnor has taken the property indirectly by its actions preceding formal institution of condemnation proceedings. It would be unusual for the condemnor’s acts to be of such a degree as to satisfy the strict test for adverse possession. Plain tiffs do not allege that the city’s actions here would satisfy this test. Neither would the stipulated facts support such a claim.
Furthermore, the plaintiff in an inverse condemnation suit does not ordinarily seek repossession of his property, but rather, just compensation for the value of the property taken. Tamulion v State Waterways Comm, 50 Mich App 60, 66; 212 NW2d 828 (1973). This is again unlike the adverse possession case where, if title to the property is secured by the adverse possessor, the original owner is not entitled to payment.
We do recognize that in actions such as the present one compensation to the original owner, as a substitute for the property itself, is the only viable alternative. The eminent domain power of the condemnor leaves the property owner with no option other than to seek compensation. Accordingly, these differences do not necessarily cause us to reject the 15-year adverse possession limitation period. Nevertheless, a final fatal flaw exists in plaintiffs’ analogy with respect to this case.
The concept of adverse possession rests upon an interest in title to property. Plaintiffs point out that Texas, California, and Nebraska have adopted the adverse possession statutes of limitations (ten, five, and ten years, respectively) for inverse condemnation actions. However, the rationale for applying the adverse possession limitation period rests on the owner’s present interest in the property. This was explained in Frustuck v City of Fairfax, 212 Cal App 2d 345, 374; 28 Cal Rptr 357 (1963), where the court stated:_
"The rationale of these latter cases is that the owner’s right of recovery is founded upon and grows out of his title to land and that until such title is lost by adverse possession the owner should have the right to maintain an action to recover that which represents the property itself.” (Emphasis added.)
However, plaintiffs here lost all title and interest to the properties upon the expiration of the period of redemption following the sale of the properties for nonpayment of taxes. Rosin v State Land Office Board, 314 Mich 482, 486; 22 NW2d 833 (1946). When the present action was commenced, plaintiffs had no ownership rights in the properties, legal or equitable. Under such circumstances, there is no foundation to apply a 15-year limitation period that is predicated upon the plaintiff having continual ownership rights.
We do not foreclose the possibility that on the proper facts, where a plaintiff retains ownership rights in the property when suit is brought, the analogy to adverse possession may be applied. However, on the facts of this inverse condemnation action, we decline to adopt the adverse possession statute of limitations.
Defendant contends that the Court of Appeals was correct in upholding the trial court’s finding that the three-year limitation period for "injury to persons and property” should be employed. Defendant claims there is ample authority for the proposition that the three-year limitation period applies to this case, citing Foster v Detroit, 405 F2d 138, 145 (CA 6, 1968), and Silverstein v Detroit, 335 F Supp 1306,1308 (ED Mich, 1971).
In both Foster and Silverstein, the City of Detroit asserted the three-year statute as an affirmative defense. Yet, the question of whether the three-year period was the proper limitation period was not directly contested or addressed. Although both federal courts assumed that the three-year limitation period would apply, in neither case was the plaintiff’s cause held to be barred by the statute. Defendant points to no prior Michigan case in which recovery in an inverse condemnation suit was barred by application of the three-year statute of limitations.
In response to the claim that the three-year statute is applicable, plaintiffs contend that the three-year statute applies only to injury to property and not to the taking of property. Defendant agrees with plaintiffs that, because of the language of the Michigan Constitution, Michigan is a "taking” state rather than a "taking or damaging” state. However, defendant maintains that "damage” and "injury” to property are synonymous with a "taking” of property in an inverse condemnation action and that, therefore, the three-year limitation period for "injury to property” should apply.
We agree that a "taking” of property may be the end result of serious injury to and diminution in the value of real property. Thom v State Highway Comm’r, 376 Mich 608; 138 NW2d 322 (1965). "Taking” is a term of art with respect to the constitutional right to just compensation and does not necessarily mean the actual and total conversion of the property. Whether a "taking” occurs for which compensation is due depends on the facts and circumstances of each case. Thom, supra; Heinrich v Detroit, 90 Mich App 692; 282 NW2d 448 (1979).
Both an injury to property and an absolute conversion of property may result in a taking in the constitutional sense. While each situation could result in a finding that a constitutional "taking” of property has occurred for which just compensation is due, there is a recognizable distinction between the two situations.
The owner who suffers injury to his property, less than a total conversion, may remain in possession and continue using his property. His claim is for diminution in value and interference with the use and enjoyment of his property. On the other hand, the owner who suffers a conversion of his property is left with nothing. His claim is for the value of the entire piece of realty.
It might appear that the injury to property situation, less than a total conversion, is analogous to the "injury to property” cases in which the three-year statute of limitations is applicable. However, the test to prove injury is not the same. In an inverse condemnation action, it is not enough for the owner to prove injury to his property by the defendant with resultant damages. Rather, plaintiff must prove that the condemnor’s actions were of such a degree that a taking occurred. This issue is decided by the trier of fact. If the plaintiff cannot prove that the condemnor has taken his property, other causes of action are still available to him, e.g., trespass, nuisance, and negligence, with their attendant statutes of limitations.
In situations where the plaintiff alleges that a total conversion of his property has occurred, the analogy to the injury to property statute is even less satisfactory. A plaintiff in such a situation claims a complete loss of his realty by the condem-nor’s actions. He seeks recovery for the total value of his property which has been taken by the condemnor. He does not retain the value of possession and use of his property.
Although we recognize a distinction between the two types of "taking” to establish an inverse condemnation cause of action, the plaintiff in each situation must prove that a taking in the sense of conversion has occurred, not merely that he has suffered injury to his property. Accordingly, we find that the three-year statute of limitations for "injuries to persons and property” is not applicable to inverse condemnation actions.
The final statute of limitations to be considered is the general six-year period for "personal actions”. The Court of Appeals majority rejected this limitation period by stating that personal claims do not include claims based upon real property rights. 97 Mich App 702. However, this rationale ignores cases in which the six-year period has been applied to personal actions which arose in connection with interests in real property. Weeks v Sla-vik Builders, Inc, 384 Mich 257; 181 NW2d 271 (1970) (action for breach of implied warranty of roof on new home); Sweet v Shreve, 262 Mich 432; 247 NW 711 (1933) (action for fraud in exchange of real estate); Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975) (action by tenant against landlord and general contractor for negligent construction of drainage system); George v City of Petoskey, 55 Mich App 433; 223 NW2d 6 (1974) (action for damages to financial expectations and economic benefit arising from property ownership).
Thus, even though the present plaintiffs’ personal action arises out of their property interests, it does not make the six-year statute of limitations for personal actions automatically inapplicable. There is no dispute that the present plaintiffs no longer have any right to regain possession of the subject property, since the redemption periods following the tax sales have expired. Rosin, supra. Accordingly, it may be recognized that plaintiffs assert personal claims arising out of their former property ownership and based on their constitutional right to just compensation.
We are cognizant that the instant action has not been clearly provided for in any specific statute of limitations. Neither do the facts of this case come within the confines of either the 15- or 3-year statute by analogy. As the plaintiffs are not seeking recovery of their lands but compensation for a taking by the sovereign, this cause of action may be logically conceptualized as a personal action which arises in relation to a former interest in real property. We thus conclude that the general six-year statute of limitations applies to this action. See Schreiber v Lowe’s, Inc, 147 F Supp 319, 322 (WD Mich, 1957).
II
Plaintiffs also contend that the trial court and the Court of Appeals erred in determining that their cause of action accrued on the last day of the redemption period, thereby triggering the running of the statute of limitations. We concur with the trial court and the Court of Appeals on this point.
The time of “taking” in an inverse condemna tion action is not necessarily coincidental with the time plaintiffs cause of action accrues. Foster and Silverstein. It is common for such actions to involve a continuous wrong by the condemnor rather than a single act. In an inverse condemnation action such as the present one, in which plaintiffs claim a continuous wrong by the condemnor, it is well-settled that the statute of limitations does not begin to run until the consequences of the condem-nor’s actions have stabilized. Dickinson and Silver-stein. The precise point in time when the running of the limitation period is triggered is determined by the facts and circumstances of each case. Foster and Silverstein.
The parties to the instant action have stipulated that there was a de facto taking of the property prior to the date of the tax sales. It is for the trier of fact to determine whether a continuous wrong was involved here and, if so, when the consequences of this wrong had stabilized, thus triggering the statute of limitations. If the trier of fact finds that the condition had stabilized prior to the expiration of the redemption period, then that is the date when the limitation period would begin to run. However, if the trier of fact finds that the condition had not yet stabilized, then the latest point in time that plaintiffs’ cause of action could have accrued was the last date on which plaintiffs held any interest in the subject property — the day the right of redemption expired. Silverstein, supra, 335 F Supp 1309-1310. It is on this date that the limitation period would begin to run. Clearly, if instead' of the tax sales plaintiffs had voluntarily sold their property to third parties, they could not claim damages which had accrued after the sale.
Accordingly, those claims in which the redemp tion period had expired more than six years prior to the filing of this action are barred by operation of the statute of limitations.
Conclusion
The proper limitation period to employ in this inverse condemnation action is the general six-year period for personal actions. MCL 600.5813; MSA 27A.5813. On the facts of this case, the latest date on which the limitation period could begin to run was on the day the right of redemption expired. Affirmed in part. Reversed in part. No costs, a public question being involved.
Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ., concurred.
"2 Elmwood Park, an area on the lower east side of Detroit, not far removed from downtown, also includes Elmwood 1 and 2, Urban Renewal Areas as well, which abut Elmwood 3.
"3 The parcels were conveyed via tax deeds. Those acquired indirectly were purchased by defendant from the State of Michigan for a nominal consideration of $1 per parcel.”
Const 1963, art 10, § 2.
US Const, Am V.
See, generally, 30 CJS, Eminent Domain, § 399, p 475; 27 Am Jur 2d, Eminent Domain, § 478, p 408.
See 28 USC 2401.
After the accelerated judgment was granted in this case, 1978 PA 495 renumbered this section MCL 600.5805(8); MSA 27A.5805(8), and made stylistic changes and minor substantive changes not here relevant.
Brazos River Authority v City of Graham, 163 Tex 167; 354 SW2d 99 (1961); Frustuck v City of Fairfax, 212 Cal App 2d 345; 28 Cal Rptr 357 (1963); Krambeck v City of Gretna, 198 Neb 608; 254 NW2d 691 (1977).
Const 1963, art 10, § 2 provides:
"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.”
This distinction was also recognized by the Washington and California courts in Ackerman, 55 Wash 2d 406, and Frustuck, 212 Cal App 2d 374.
Although recognizing the inverse condemnation cause of action, the Legislature did not specify a limitation period in its recently enacted Uniform Condemnation Procedures Act, 1980 PA 87, MCL 213.51 et seq.; MSA 8.265(1) et seq. | [
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Williams, J.
Introduction
This is a case of first impression. The issues are whether the comparative negligence provisions of MCL 600.2949; MSA 27A.2949, applies to a products liability action sounding in "negligence, breach of warranty and other misconduct”; and, if so, whether it is retrospective; and, if retrospective, whether it is constitutional.
This diversity case was removed from Oakland Circuit Court to the United States District Court for the Eastern District of Michigan. Plaintiff was injured when the terminal of an industrial air conditioner manufactured by defendant, a foreign corporation, blew out. After a verdict for the plaintiff, the federal trial judge, under MCL 600.2949; MSA 27A.2949, reduced plaintiff’s damages by the corresponding amount that plaintiff was negligent, which was 95% of the total.
Specifically, we have agreed to answer three questions certified to us by the United States Court of Appeals for the Sixth Circuit. The three questions are the following:
"I. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., is to be construed as abrogating the principle of Michigan implied warranty jurisprudence that a plaintiff injured by breach of an implied warranty is entitled to recover the full measure of damages sustained, irrespective of any negligence by the plaintiff.
"II. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., if so construed, is to be applied to an implied warranty action accruing and sued upon prior to the enactment of the statute and brought to trial after the effective date of the statute.
"III. Whether the Michigan products liability statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., if so construed and applied, violates the Due Process Clause (art 1, § 17) of the Michigan Constitution of 1963.”
We hold first that under MCL 600.2949; MSA 27A.2949 a plaintiff injured by breach of an implied warranty is not entitled to recover the full damages sustained, if the plaintiff was negligent. Second, under Michigan law, the comparative negligence principle established in MCL 600.2949; MSA 27A.2949 can be applied to an implied warranty action accruing and sued upon prior to the enactment of the provision, but brought to trial after the effective date of that provision. Third, applying the statute in that way does not violate the Due Process Clause of the Michigan Constitution. Const 1963, art 1, § 17.
Facts
In certifying the instant case from the Court of Appeals for the Sixth Circuit under GCR 1963, 797.2, the following statement of facts was entered by order:
"On May 23, 1975, while employed in Southfield, Michigan, as an air conditioner repairman, plaintiff William Karl was injured when the terminal of an industrial air conditioner manufactured by defendants blew out. On February 28, 1978, plaintiff filed suit in Oakland Circuit Court, alleging negligence and breach of implied warranty. Thereafter, the action was removed by defendants to the United States District Court for the Eastern District of Michigan pursuant to 28 USC 1441. As a case falling within federal diversity jurisdiction, the substantive law which the trial judge was obliged to apply, and which this Court is required to apply, is the substantive law of the State of Michigan.
"While this case was pending in the trial court, the Michigan Legislature, on December 13, 1978, enacted the Michigan products liability statute, MCL 600.2945 et seq. [MSA 27A.2945 et seq.], effective immediately. Thereafter, this action came for trial before the Hon. Charles W. Joiner and a jury. At the conclusion of trial, the jury returned a special verdict finding, in pertinent part, that the total damages sustained were $52,000.00, that defendants breached an implied warranty, that plaintiff was negligent, and that plaintiff’s negligence amounted to 95% of the total.
"Defendants then sought entry of judgment in the amount of $2,600 (5% of $52,000), while plaintiff sought entry of judgment in the amount of $52,000, the fiill measure of damages. Judge Joiner accepted the position advocated by defendant. Plaintiff then appealed to this Court, presenting the above-described issues of Michigan law.”
I. Whether the Michigan Products Liability Statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., Is To Be Construed As Abrogating the Principle of Michigan Implied Warranty Jurisprudence That a Plaintiff Injured by Breach of an Implied Warranty Is Entitled to Recover the Full Measure of Damages Sustained, Irrespective of any Negligence by the Plaintiff.
The United States Court of Appeals for the Sixth Circuit has requested that we consider whether the federal trial judge erred, as a matter of Michigan law, in reducing plaintiffs recovery by 95% under the comparative negligence principle adopted in MCL 600.2949; MSA 27A.2949. This requires us to determine whether the comparative negligence principle in that section was intended to apply to products liability actions sounding in implied warranty. _
The plaintiff argues that both historically and presently products liability actions may sound either in negligence or breach of warranty without establishing privity with the defendant. See Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120, 134-135; 90 NW2d 873 (1958); Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98; 133 NW2d 129 (1965).* * He then makes three points. First, " 'concepts of negligence and fault, as defined by negligence standards, have no place in warranty recovery cases. Proof of negligence is unnecessary to liability for breach of implied warranty and the lack of it is immaterial to defense thereof ”. Pierceñeld, supra, 96, quoting Picker X-Ray Corp v General Motors Corp, 185 A2d 919 (DC App, 1962). Second, the Legislature did not repeal the implied warranty cause of action in enacting MCL 600.2949; MSA 27A.2949 and, thereby create a "single theory of recovery” as found by Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979). In other words, he argues there is no warrant to diminish the verdict by the percentage of plaintiff’s comparative negligence, because a breach of warranty action is extant and is a contractual, not a negligence, action. Among other reasons advanced for this conclusion were (a), that since redress was sought for injury caused by "manufacture, construction, design”, etc., the Legislature was not thinking of an implied warranty action, and (b), that the term "comparative fault” was rejected in favor of the term "comparative negligence”. Third, in MCL 600.2949; MSA 27A.2949, the Legislature intended to apply comparative negligence only to products liability negligence actions; and this also indicates that the Legislature was not thinking of implied warranty actions.
Defendant, on the other hand, has made two main arguments. First, referring to Jorae, supra, and to Justice Levin’s opinion, as a Court of Appeals judge, in Cova v Harley Davidson Motor Co, 26 Mich App 602, 614; 182 NW2d 800 (1970), the defendant suggests that the Legislature in 1978 PA 495 may have intended to create "one theory of 'products liability’ ” and thereby eliminate the so-called contractual exemption from contributory negligence and comparative negligence. Second, defendant argued that the Legislature intended the comparative negligence provision to apply by its plain and specific language to "all” and "any” products liability actions._
Our reading of the statute does not require us to determine whether the Legislature completed the possible confluence of products liability negligence and implied warranty actions into one cause of action or whether two separate actions still remain extant. We hold that the combination of § 2949, the products liability comparative negligence section, and §2945, the section defining products liability actions, by plain, unambiguous language, indicates that the Legislature intended to apply comparative negligence to all products liability actions, regardless of whether two separate actions in negligence and breach of warranty remain extant or whether a new unified products liability action was created by the act.
Before examining the actual language of the statute, it is well to have in mind certain rules of statutory construction. The most important rule, of course, is to discover and give effect to the legislative intent. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 187; 253 NW2d 646 (1977); Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971).
The next rule is to derive the legislative intention from the actual language used in the statute. Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922). If the language used is clear and the meaning of the words chosen is unambiguous, a common-sense reading of the provision will suffice, and no interpretation is necessary. Dussia v Monroe County Employees Retirement System, supra, p 248; MacQueen v City Comm of Port Huron, 194 Mich 328, 342; 160 NW 627 (1916).
We believe that the language of § 2949, particu larly in conjunction with § 2945, is clear and unambiguous. Sections 2949 and 2945 are here set out for review:
"Sec. 2949. (1) In all products liability actions brought to recover damages resulting from death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or the plaintiffs legal representatives, but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.” (Emphasis added.)
"Sec. 2945. As used in sections 2946 to 2949 and section 5805, 'products liability action’ means an action based on any legal or equitable theory of liability brought for or on account of death or injury to person or property. caused by or resulting from the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, advertising, packaging, or labeling of a product or a component of a product.” (Emphasis added.)
In §2949, the operative language is "all products liability actions”. This language is defined in § 2945 as follows: " 'products liability action’ means an action based on any legal or equitable theory of liability”. It is difficult to imagine, any language more all-inclusive.
As a consequence, it is clear and unambiguous that the Legislature intended that comparative negligence should apply to "all products liability actions”, which include a " 'products liability action’ * * * based on any legal or equitable theory of liability”. It is inescapable that any and every products liability action is included regardless of whether it is labeled a possible unified action, a possible negligence action, or a possible implied warranty action.
We believe that the Legislature’s use of the words "all” and "any” require, without further interpretative inquiry, the construction that comparative negligence applies to all and any products liability actions, including those sounding in implied warranty. See Paquin v Harnischfeger Corp, 113 Mich App 43, 50; 317 NW2d 279 (1982); McGrath v Clark, 89 Mich App 194, 197; 280 NW2d 480 (1979). As a consequence, we are not persuaded by plaintiffs arguments that the Legislature intended § 2949 to apply only to negligence actions. The plain, unambiguous language of the statute is such that we need not speculate on its legislative history. Furthermore, we are not impressed by the plaintiffs argument that an implied warranty products liability action is not included in the long litany found in § 2945 which describes the act’s effect on the various stages a product may go through before it causes injury to a plaintiff.
Thus, we hold that the comparative negligence principle adopted in MCL 600.2949; MSA 27A.2949 dictates that "damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff” irrespective of the fact that a plaintiff is injured by the breach of an implied warranty. _
II. Whether the Michigan Products Liability Statute, MCL 600.2945 et seq.; MSA 27A.2945 et seq., If So Construed, Is To Be Applied to an Implied Warranty Action Accruing and Sued Upon Prior to the Enactment of the Statute and Brought to Trial After the Effective Date of the Statute.
A. The Four Rules of Retrospectivity
In answering Question I, we have held that the products liability statute, in light of § 2949, establishes the principle of comparative negligence in an action based on implied warranty. In considering Question II, we address whether § 2949 applies where the statute was enacted subsequent to the injury and commencement of an implied warranty action, but prior to the trial and judgment in that action. We hold that §2949 should be applied under such circumstances.
In answering this question, we must consider four rules in determining whether a new act applies to a pre-enactment cause of action. First, is there specific language in the new act which states that it should be given retrospective or prospective application. See headnote no. 1, Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963). Second, "[a] statute is not regarded as operating retrospectively [solely] because it relates to an antecedent event”. Hughes v Judges’ Retirement Board, 407 Mich 75, 86; 282 NW2d 160 (1979). Third, "[a] retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past”. Hughes, supra, p 85; Ballog v Knight Newspapers, Inc, 381 Mich 527, 533-534; 164 NW2d 19 (1969). Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954).
B
The first and second rules are inapplicable to the instant case. As to the first rule, the products liability statute contains no specific language indicating either retrospective or prospective application. Second rule cases relate to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute, whereas the instant case relates to what if any changes may be made with respect to a cause of action begun under one rule of law by a subsequent statute. Examples of second rule cases are measuring the amount of a judicial pension not only by years served subsequent to enactment but also by years served under a previous act, Hughes, supra, and measuring the amount of highway entitlement not only by expenditures subsequent to enactment but also by expenditures under a previous act. Clearwater Twp v Kalkaska County Supervisors, 187 Mich 516; 153 NW 824 (1915).
C
Rules three and four define the issue in Question II. Both rules relate to retrospective application of a new law to prior facts. The third rule and the cases thereunder define those retrospective situations that are not legally acceptable, whereas the fourth rule defines those that are acceptable.
The third rule states that retrospective application of a law is improper where the law "takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past”. Hughes, supra, p 85. The fourth rule was stated in Hansen-Snyder, supra (headnote no. 1):
"1. Statutes — Remedies — Retrospective Operation — Amendment. Statutes related to remedies or modes of procedure which do not create new or take away vested rights, but only operate in furtherance of a remedy or confirmation of rights already existing will, in the absence of language clearly showing a contrary intention, be held to operate retrospectively and apply to all actions accrued, pending or future, there being no vested right to keep a statutory procedural law unchanged and free from amendment.”
We will examine the general statement of each rule and the specific factors in the cases relating to that rule. When we have done this, we will then compare the facts in the instant case with those rules and factors to determine which rule should cover the instant case.
D. Rule Three Cases
1. Impairment of Contractual Rights
In marshaling his arguments under this certified question, the plaintiff relies on two lines of cases which have a distinct cleavage, even though the Court in both lines of cases has invoked the general proscription found in rule three. Under the first line of cases, the plaintiff asserts that a retrospective application of the products liability statute interferes with his "contractual cause of action” since "implied warranty litigation is essentially contractual in nature”. E.g., Campbell v Judges’ Retirement Board, 378 Mich 169; 143 NW2d 755 (1966); Byjelich v John Hancock Mutual Life Ins Co, 324 Mich 54; 36 NW2d 212 (1949); McGavock v Ducharme, 192 Mich 98; 158 NW 173 (1916).
A review of these cases, however, does not support plaintiffs position, since the contracts in those cases did not involve implied warranties but were "express” contracts.
2. Abolition of a Cause of Action
The general rule against retrospective application has been applied in cases where a new statute abolishes an existing cause of action. It is clear that once a cause of action accrues, — i.e., all the facts become operative and are known — it becomes a "vested right”. See Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150-152; 200 NW2d 70 (1972); Devlin v Morse, 254 Mich 113, 115; 235 NW 812 (1931). A new statute which abolishes an existing cause of action brings the statute within the general proscription of rule three.
In Devlin, for example, this Court held that the guest passenger act should not have been applied to a plaintiffs claim which accrued prior to the new act. When the plaintiff passenger was injured, the common law recognized his right to sue the driver of the car for ordinary negligence. The new act, however, only allowed suit when a driver was grossly negligent. This Court refused to apply the new act to the plaintiffs common-law claim, which was sued upon after the new act became effective, but where the injury had occurred before its enactment, because the new law abolished the plaintiffs accrued cause of action. Devlin, supra, p 116.
Similarly, in Cusick v Feldpausch, 259 Mich 349, 353; 243 NW 226 (1932), the plaintiff passenger was held to have a statutory claim to sue the owner of a car for the ordinary negligence of the driver. The amendment of that statute, which was adopted after plaintiffs action had accrued, only allowed the plaintiff to sue the owner where the driver was grossly negligent. Because plaintiffs cause of action would have been totally barred by a retrospective application, we stated that this case did not involve a "mere change in remedy or procedure”, but affected a rule of substantive law.
Finally, in Minty v Board of State Auditors, 336 Mich 370; 58 NW2d 106 (1953), the plaintiff sustained personal injuries at a time when the state waived sovereign immunity from liability for the injuries caused by the tortious conduct of its employees. Before the plaintiffs cause of action had been reduced to judgment in the Court of Claims, the act was repealed. The state argued that it could raise the total bar of governmental immunity. Once again, this Court refused to apply a statute retrospectively because it totally barred the plaintiff from recovery for his damages.
The converse factual setting to the cases discussed is found in Rookledge, supra. At the time of the plaintiffs work-related accident, he had to elect between workers’ compensation benefits from his employer and bringing an action against a third-party tortfeasor. The plaintiff elected to re ceive compensation benefits, thereby barring his third-party claim. After he received his compensation benefits, the workers’ compensation act was amended to permit the worker both options. He brought suit against the third-party tortfeasors, and this Court held that the defendant did not have a "vested right” in the statutory defense dependent upon the plaintiffs election accorded him prior to the new act. 340 Mich 457.
E. Rule Four Cases
The case law development of rule four establishes the corollary to the general proscription found in rule three. A remedial or procedural statute may operate retrospectively if it does not "take away vested rights”. Ballog v Knight Newspapers, Inc, supra, pp 533-534, quoting from headnote no. 1 of Hansen-Snyder Co v General Motors Corp, 371 Mich 480 (1963).
Moreover, in Guardian Depositors Corp v Brown, 290 Mich 433, 439-440; 287 NW 798 (1939), this Court, in a "contract case”, stated that the Legislature may modify, limit, and even alter the remedy for enforcement of a contract without violating the rule against retrospectivity. Thus, such a new act would fall into rule four because it does not completely deny a remedy with such restrictions that it impairs the value of the contract or the substantive right.
Although Rookledge, supra, was considered in our discussion of rule three, its holding supports our analysis of rule four. While the Rookledge Court found that the defendant third-party tortfea-sor did not have a vested right in a statutory defense which barred the plaintiff from suit once he elected workers’ compensation benefits, that Court implicitly recognized, consistent with rule four, that the fact that the new statute changes the legal consequences of a prior act does not prevent a retrospective application of that statute, since that statute is remedial in nature.
In Hansen-Snyder, supra, this Court held that a plaintiff could take advantage of a statutory amendment which extended the period for serving notice of intent to claim a lien from 60 days to 90 days from the date of first furnishing labor and material. The plaintiff, who had begun work under the prior statute, had failed to file within the old act’s 60-day prescription. Nevertheless, the new act was viewed as a procedural amendment which was applicable to the plaintiff’s claim.
Once again, in Ballog, supra, this Court, in a case procedurally similar to the instant case, applied a new act retrospectively. The Court in Bal-log had to determine whether a statute in effect at the time of the plaintiff’s injury which granted interest "from the date of judgment” or a new act which granted interest "from the date of filing the complaint” was applicable. The plaintiff’s personal injury cause of action accrued before the new act became effective, and he also filed suit before its enactment. Nevertheless, we indicated that the new act fell within the remedial or procedural classification which did not take away a vested right, and, thus, we gave the new act retrospective effect. 381 Mich 533-536.
F. Comparing the Instant Case to Rule Three and Four Cases
In comparing the instant case to rule three and rule four cases discussed, it is immediately apparent that the federal trial judge did not err under Michigan law in applying the products liability statute in the case at bar where plaintiff’s claim accrued and was sued upon prior to the time the new statute became effective. On the one hand, it is conceded that plaintiffs right became "vested” when his cause of action accrued. But, on the other hand, two things are clear. First, §2949 is part of a remedial statute which may be applied retrospectively. Second, the relevant case law indicates to us, when we compare it to the case at bar, that plaintiffs right was not taken away in the technical meaning of the case law proscription.
1. Rule Three Cases
Comparison of "rule three cases” to the instant case indicates that application of the products liability statute did not trigger the proscription found in rule three. First, the statute did not interfere with plaintiffs "contractual cause of action” since an implied warranty action for personal injuries caused by a defective product is different from an express contract. Second, this rule is also triggered when a plaintiff’s accrued cause of action would be totally barred or taken away by a new act. While the total' damages which plaintiff could have received were significantly reduced by §2949, plaintiffs cause of action was not legally barred or taken away.
Section 2949 does not bar any claim, legal or equitable, but it states that "damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff”. See, also, Li v Yellow Cab Co of California, 13 Cal 3d 804, 828-829; 119 Cal Rptr 858, 875; 532 P2d 1226, 1243 (1975). Section 2949 is not a legal bar, but is a principle established by the Legislature which mitigates damages in products liability actions.
In short, we hold that the applicability of the products liability statute in the instant case did not offend Michigan’s general rule against the retrospective application of a statute which "take[s] away vested rights”. Ballog, supra, pp 533-534.
2. Rule Four Cases
Notwithstanding the general proscription of rule three, this Court has recognized that new remedial or procedural statutes which do not destroy vested rights should be given retrospective application. The plaintiff does not contend that his cause of action was destroyed by the application of § 2949. Thus, the key factor is to determine whether the new act concerns remedies or modes of procedure.
The tenor of the products liability statute and the legislative history referred to in the briefs indicate that the Legislature was responding to complaints about the cost of products liability insurance and the operation of products liability law prior to its enactment. See Products Liability Task Force, 58 Mich Bar J 524, 525 (1979). See, also, Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979). Since the Legislature has adopted comparative negligence as a principle which reduces plaintiff’s damages in proportion to the amount of his negligence, such legislation operates to improve and further a remedy. As Rookledge, Hansen-Snyder, and Ballog make explicitly clear, legislation with such a purpose is remedial in nature.
Thus, rule four supports our holding that the federal trial judge did not err, as a matter of Michigan law, in applying the comparative negligence principle adopted in § 2949 to an implied warranty action for personal injuries caused by a defective product which had accrued and was sued upon prior to the enactment of the products liability statute and was brought to trial after the effective date of that statute.
III. Whether the Michigan Products Liability Statute, If So Construed and Applied, Violates the Due Process Clause (art 1, § 17) of the Michigan Constitution.
The plaintiff asserts that if this Court holds that the Legislature intended the act to be given retroactive effect, such an interpretation violates the Due Process Clause of the Michigan Constitution. He argues that once his claim accrues, it becomes a vested property right subject to due process protection. The plaintiff contends that his cause of action accrued and vested on May 23, 1978, and that any impairment of this "vested property right in an implied warranty action must be measured against due process guarantees”.
The nature of plaintiffs argument is the undoing of his constitutional claim. An application of the comparative negligence provision at trial, besides promoting important societal policy, did not destroy or bar plaintiffs cause of action. This Court is reluctant, on constitutional grounds, to apply statutes which accomplish this evil. See Minty v State, supra, pp 389-391. As the defendant so adroitly points out, the products liability statute neither destroys nor bars plaintiffs cause of action, nor does it impair plaintiffs right to contract. Simply stated, the statute only affects a remedy which "has been changed so that the measure of plaintiffs damages is to be reduced by the amount of the plaintiffs own fault which also proximately caused the injuries complained of’. Thus, the Legislature’s adoption of such a remedial scheme is reasonable and does not violate the Due Process Clause of the Michigan Constitution.
Conclusion
Our review of MCL 600.2949; MSA 27A.2949 arid the relevant case law indicates that the Legislature intended comparative negligence to apply in an action for breach of implied warranty. Moreover, our interpretation of Michigan law leads us to hold that MCL 600.2949; MSA 27A.2949 can be applied in a case where the implied warranty action accrues and is sued upon prior to the enactment of the provision and is brought to trial after the effective date of that provision. Finally, such an application does not violate the Due Process Clause of the Michigan Constitution. Const 1963, art 1, § 17.
Fitzgerald, C.J., and Kavanagh, Levin, Coleman, and Ryan, JJ., concurred with Williams, J.
Riley, J., took no part in the decision of this case.
MCL 600.2949; MSA 27A.2949 provides that:
"(1) In all products liability actions brought to recover damages resulting from death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or the plaintiff’s legal representatives, but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
"(2) If the court determines that the claim or defense is frivolous, the court may award costs and reasonable attorney’s fees to the prevailing party in a products liability action.
Moreover, MCL 600.2945; MSA 27A.2945 provides that:
"As used in sections 2946 to 2949 and section 5805, 'products liability action’ means an action based on any legal or equitable theory of liability brought for or on account of death or injury to person or property caused by or resulting from the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, advertising, packaging, or labeling of a product or a component of a product.”
During oral arguments, Justice Ryan addressed the following question to defense counsel: "whether it is within the competence of the Legislature to make a law concerning what is and what is not admissible evidence”. He further asked whether counsel was familiar with Perin v Peuler, 373 Mich 531; 130 NW2d 4 (1964). Defense counsel’s answer and a review of the briefs clearly indicates that the parties in the instant case were unfamiliar with Perm. Moreover, this issue was not considered by the trial court.
The certified questions in the instant case do not raise the propriety of applying the statutory rules of evidence found in the products liability statute. See MCL 600.2946; MSA 27A.2946, MCL 600.2947; MSA 27A.2947, MCL 600.2948; MSA 27A.2948.
Since the issue has not been raised or briefed and its consideration is not necessary in answering the certified questions, the general rule of law is that this Court will not consider such an extraneous issue. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965). See, also, Heider v Michigan Sugar Co, 375 Mich 490, 517; 134 NW2d 637 (1965) (Adams, J., dissenting). See, also, Swartz v Dow Chemical Co, 414 Mich 433; 326 NW2d 804 (1982).
See Comment, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both, 15 Wayne L Rev 1558 (1969). See, also, Dolan, Commercial Transactions, 1980 Annual Survey of Michigan Law, 27 Wayne L Rev 589, 605 (1981).
In Smith v E R Squibb & Sons, Inc, 405 Mich 79, 91; 273 NW2d 476 (1979), this Court stated that:
"This opinion is limited solely to its facts. We do not suggest that implied warranty and negligence are not independent causes of action. When the factual issue is the adequacy of the warnings given, the legal standard under either theory is one of reasonable care under the circumstances. Note should be made, however, that on different facts it could be prejudicial error not to give the implied warranty instruction. See, e.g., Midgley v S S Kresge Co, 55 Cal App 3d 67; 127 Cal Rptr 217 (1976) (issue of contributory negligence requires instruction on both negligence and strict liability).”
On May 15, 1978, the second draft of House Bill 5689, which preceded MCL 600.2949; MSA 27A.2949, was introduced. This provision stated:
"Sec. 2949. (1) IT SHALL BE-A REBUTTABLE DEFENSE IN A PRODUCTS LIABILITY ACTION THAT THE PLAINTIFF WAS COMPARATIVELY NEGLIGENT OR AT FAULT. THE COURT OR A JURY IN DETERMINING LIABILITY OR THE AMOUNT OF DAMAGES IF THIS DEFENSE IS ALLEGED SHALL WEIGH THE COMPARATIVE NEGLIGENCE OR FAULT OF EACH PARTY AND ASSESS A PORTION OF THE LIABILITY OR DAMAGES BASED ON THE COMPARATIVE NEGLIGENCE OR FAULT OF EACH PARTY.”
See, also, 12 ULA, Civil Procedural & Remedial Laws, Uniform Comparative Fault Act, § lb, p 34 (1982 Cum Supp); Products Liability Task Force, 58 Mich Bar J 524, 525 (1979).
See, generally, Note, Timmerman v Universal Corrugated Box Machinery Corp — An Exception to the Doctrine of Comparative Negligence in Products Liability Litigation: Michigan Courts Speak out on Public Act 495, 1981 Det C L Rev 222, 235. See, also, Comment, Public Act 495 — A Beginning Step in Products Liability Reform in Michigan, 1979 Det C L Rev 677, 688 if.
In Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 47, fn 12; 323 NW2d 270 (1982), this Court, in effect, refused to address some of the questions in the instant case. We stated that:
"We decline to speculate about the effect of Placek and the products liability statute, MCL 600.2945; MSA 27A.2945, on the law of products liability. This case, as well as Tulkku and Funk, are negligence cases. The cases cited in our brother’s opinion for the proposition that comparative negligence should not apply are inapplicable. Zerby v Warren, 297 Minn 134, 141; 210 NW2d 58 (1973), held that no comparative negligence defense was available under a statute imposing strict liability for selling model airplane glue to a minor; Suter v San Angelo Foundry & Machine Co, 81 NJ 150; 406 A2d 140 (1979), was a strict liability case holding that comparative negligence was unavailable under those facts but noting that comparative negligence is a defense in some strict liability cases. See Ettin v Ava Truck Leasing, Inc, 53 NJ 463; 251 A2d 278 (1969); Cintrone v Hertz Truck Leasing & Rental Service, 45 NJ 434; 212 A2d 769 (1965).”
Const 1963, art 1, § 17, states that:
"No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.” | [
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Boyle, J.
The issues of law in this case, as stipulated by the parties and as certified by the Ingham Circuit Court, are as follows:
"1. Where (a) an initiative proposal to amend a statute is placed on the ballot by petition of the electorate, pursuant to Const 1963, art 2, § 9 and (b) the Legislature enacts an amendment to the same statute, subject to Const 1963, art 4, § 34 after the initiative petitions have been filed and (c) there are conflicting provisions in both measures and (d) both measures are approved by the electors at the same election and (e) the legislative proposal receives a higher number of affirmative votes;
"(1) Does either the initiative or legislative proposal prevail in its entirety thereby rendering the other proposal inoperative; or
"(2) Where the provisions of the initiative proposal and the legislative proposal conflict, do the conflicting provisions of one proposal prevail thereby rendering conflicting provisions of the other inoperative; and
"(3) If the conflicting provisions of one proposal prevail over the other, must meaning and effect be given to the remaining provisions of both proposals?
"2. After petitions for an initiative proposal to amend a statute have been filed pursuant to Const 1963, art 2, §9, may the Legislature enact a statute, subject to referendum, to amend the same law to be voted on at the same election as the initiative proposal, and assuming an answer in the negative, does the decision of the courts in Michigan State Chamber of Commerce, et al v Secretary of State, et al, Michigan Court of Appeals No. 65841, * * * [lv den 414 Mich 913 (1982)] constitute a bar to a decision on such question?”
We rephrase the second certified question as follows: was the legislative proposal properly submitted on the general election ballot; if it was not, can this Court consider the question in light of the previous decision of the Court of Appeals in Michigan State Chamber of Commerce; and, if this Court can consider the question and finds an impropriety, is invalidation of the legislative proposal permitted?
We answer as follows:
(1) The legislative proposal prevails over the initiative proposal in its entirety, having received the highest number of affirmative votes on the general election ballot; and
(2) The Legislature may enact a statute pursuant to Const 1963, art 4, § 34 after petitions for an initiative proposal have been filed; Proposal H was properly submitted on the ballot; and, therefore, we need not reach the issue whether the decision of the Court of Appeals in Michigan State Chamber of Commerce constitutes a bar to a decision on the question.
The matter was submitted to this Court upon a stipulated statement of facts certified by the Ingham Circuit Court. The instant controversy arose out of various attempts to reform the law governing utility rate regulation, MCL 460.6 et seq.; MSA 22.13(6) et seq. The initial proposal, Proposal D, was the result of a petition brought by registered voters pursuant to art 2, § 9, filed with the Secretary of State on May 26, 1982, certified by the Board of State Canvassers, submitted to both houses of the Legislature on July 22, 1982, and placed on the November 2, 1982, general election ballot.
After the initiative petition was filed with the Secretary of State, but before the petition was received by the Legislature, a second proposal, Proposal H, was passed by the Legislature. This proposal, which was signed by the Governor on July 3, 1982, was explicitly made subject by the Legislature to voter approval at the November 2, 1982, general election, pursuant to Const 1963, art 4, § 34. A challenge was raised to the submission of Proposal H to the voters on the November ballot, which resulted in the Secretary of State’s refusal to place it on the ballot and in the commencement of litigation in the Court of Appeals. Michigan State Chamber of Commerce, supra. On September 3, 1982, the Court of Appeals ordered the Secretary of State to place Proposal H on the November ballot, and subsequently this Court denied leave to appeal. 414 Mich 913 (1982). Both proposals were placed on the ballot, and both received more affirmative votes than negative votes, with Proposal H receiving 197,939 more affirmative votes than Proposal D.
On November 19, 1982, plaintiffs commenced the instant litigation in the Ingham Circuit Court and received a temporary restraining order which remains in effect at the present time. At the joint request of the parties, the Governor urged this Court to order the lower court to certify these questions directly to this Court, which this Court did on January 19, 1983. 417 Mich 1101 (1983).
A third proposal for utility rate regulation reform, 1982 PA 304, was passed by the Legislature, and became immediately effective when signed by the Governor on October 13,1982._
The following chronology of relevant dates is necessary to a full understanding of the issues presented:
May 26, 1982 Proposal D initiative petitions filed with the Secretary of State.
July 3, 1982 Proposal H signed by the Governor, effective upon approval by the voters at the November 2, 1982, general election.
July 22, 1982 Proposal D initiative petitions certified by the Board of State Canvassers and Proposal D delivered to the Legislature.
October 13, 1982 1982 PA 304 signed by the Governor, effective immediately.
November 2, 1982 General election; Proposals D and H are approved by the voters; Proposal H receives the highest affirmative vote.
November 22, 1982 The Board of State Canvassers certifies that both Proposals D and H passed; Proposal H becomes effective (by its terms).
December 3, 1982 Proposal D becomes effective.
Before the certified questions themselves are addressed, a brief discussion of the substance of the various proposals and of the recent history of utility rate regulation is in order.
In response to the energy crisis of the 1970’s, the Legislature enacted 1972 PA 300, which permitted utility companies to unilaterally adjust the cost of fuel to utility consumers during the course of the year without having to await the general rate hearing before the Public Service Commission. The adjustment clause mechanism was strongly criticized by various consumer groups. In this milieu the three proposals at issue in this litigation were drafted.
The key features of each proposal are as follows:
Proposal D, an initiative grounded on art 2, § 9, amends MCL 460.6a, 460.6b; MSA 22.13(6a), 22.13(6b); outlaws unilateral fuel, purchased power, and purchased gas adjustment clauses in residential utility rate schedules; and prohibits public utilities from passing through fuel costs to customers in increased rates without prior approval at a general rate hearing. Under Proposal D, no rate increase hearing may be conducted simultaneously with or distinct from a general rate proceeding. The latter proceeding is a complete hearing on all elements of utility service.
Proposal H, a legislative enactment submitted to referendum pursuant to art 4, § 34, also amends MCL 460.6a, 460.6b; MSA 22.13(6a), 22.13(6b), but in contrast to Proposal D, allows rate adjustment clauses where the clauses operate after a limited issue hearing on the cost of fuel, purchased power, and purchased gas. Under Proposal H, the hearing to determine the cost of fuel, purchased power, and purchased gas may proceed distinct from and concurrent with the general rate hearing.
Finally, 1982 PA 304, a legislative enactment effective immediately upon signature of the Governor, amended MCL 460.6a, 460.6b; MSA 22.13(6a), 22.13(6b) and added MCL 460.6h-460.6m; MSA 22.13(6h)-22.13(6m). In contrast to Proposal D, 1982 PA 304 allows existing adjustment clauses to remain in effect temporarily. Like Proposal H, 1982 PA 304 authorizes future rate adjustment clauses which operate after a limited issue hearing on the cost of fuel, purchased power, and purchased gas. 1982 PA 304 then goes beyond both Proposals D and H to provide a comprehensive full-hearing procedure for rate recognition of increased fuel, purchased power, and purchased gas costs.
We allowed certification in this case to decide which of the two conflicting proposals passed by the voters at the November 2, 1982, general election is operative. In resolving this question, we turn first to the second certified question which has been previously stated.
I. Second Certified Question
Two provisions of the constitution are in issue here. Const 1963, art 4, § 34 reads as follows:
"Any bill passed by the legislature and approved by the governor, except a bill appropriating money, may provide that it will not become law unless approved by a majority of the electors voting thereon.”
Article 2, § 9 of the 1963 Constitution provides:
"Sec. 9. The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
"No law as to which the power of referendum prop erly has been invoked shall be effective thereafter unless approved by a majority of the electors voting thereon at the next general election.
"Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.
"If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. The legislature may reject any measure so proposed by initiative petition and propose a different measure upon the same subject by a yea and nay vote upon separate roll calls, and in such event both measures shall be submitted by such state officer to the electors for approval or rejection at the next general election.
"Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect 10 days after the date of the official declaration of the vote. No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature. Laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof. If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail.
"The legislature shall implement the provisions of this section.”
Defendants contend that once the petitions for Proposal D were filed the Legislature was obli gated to proceed, if at all, under art 2, §9 rather than art 4, § 34 and that, because the Legislature failed to comply with the provisions of art 2, § 9, Proposal H was improperly placed on the ballot. Therefore, defendants maintain, Proposal D is the only validly approved measure on the subject and Proposal D must prevail as the applicable law.
Plaintiffs respond that Proposal H was enacted pursuant to the Legislature’s powers under art 4, § 34, not art 2, § 9. Therefore, the plaintiffs argue, the provisions of art 2, § 9 are not dispositive of the validity of Proposal H as a ballot measure. Accordingly, plaintiffs conclude that Proposal H was properly placed on the ballot at the November 2, 1982, general election.
We agree with the plaintiffs. We begin this discussion by acknowledging that Proposal H addresses the same subject matter and amends the same sections of MCL 460.6a, 460,6b; MSA 22.13(6a), 22.13(6b) as does Proposal D. Moreover, the changes proposed in Proposal H clearly conflict with those in Proposal D. See the discussion above. We do not, however, find these facts dispositive.
We are unable to agree with defendants’ contention that when an initiative petition is filed with the Secretary of State, any conflicting legislative action on the same subject must be treated as a countermeasure to the initiative under art 2, § 9, ¶ 4 and that the provisions of art 4, § 34 are suspended. Defendants’ assertion is contradicted by the plain language of art 2, § 9, ¶ 3, which provides that the Legislature shall act with regard to a law proposed by initiative petition "within 40 session days from the time such petition is received by the legislature.” (Emphasis added.) Thus it is clear that the framers of the constitution did not intend the provisions of art 2, § 9, ¶ 4 to apply upon filing of an uncertified petition. Rather, it is only when a certified petition is "received by the legislature” that the provisions of art 2, § 9, ¶¶ 3-4 come into play.
In addition, we are guided by the fundamental rule of constitutional construction which requires this Court to construe every clause or section of a constitution consistent with its words or sense so as to protect and guard its purposes. Michigan Farm Bureau v Secretary of State, 379 Mich 387, 394; 151 NW2d 797 (1967). We are also mindful of the principle that all constitutional provisions enjoy equal dignity. People v Blachura, 390 Mich 326, 333; 212 NW2d 182 (1973). We therefore reject defendants’ approach which would require us to nullify the plain language of art 2, § 9, ¶ 3 and to restrict the operation of art 4, § 34.
We are satisfied that the result here reached does not frustrate the constitutional policy and objective of the initiative process. This Court has stated that art 2, § 9 does not bar re-enactment by the Legislature of the same or similar measures after the effectiveness of a prior measure has been suspended by certification of a petition for referendum. Michigan Farm Bureau, supra, p 396. If art 2, § 9 does not suspend legislative power under the circumstances described in Michigan Farm Bureau, then it is consistent for us to hold that the filing of an initiative petition does not suspend the Legislature’s authority to act under art 4, § 34.
Defendants also contend that Proposal H must fail because, assuming that the Legislature had authority to enact Proposal H, the constitution affords a “higher plane” to measures adopted un der the initiative provisions of art 2, § 9. Defendants contend that because Proposal D was placed on the ballot pursuant to that provision it must prevail over Proposal H which was not enacted under art 2, § 9.
We recognize that the initiative provisions are powers reserved to the people and that therefore they must be guarded against "conceivable if not likely evasion or parry by the legislature.” Michigan Farm Bureau, p 393.
However, there is simply no foundation for a "higher plane” theory on the facts of this case. Application of such a theory here would produce a result contrary to the rationale of the theory. The notion of a "higher plane” for initiative measures is based on the concept that the people are the ultimate repository of political authority. Its application in this case would require this Court to invalidate a proposal which has been enacted by almost 60% of the voters and validate a proposal adopted by a bare majority. Such action by this Court would be in derogation of the expressed popular choice in the name of a theory advanced on behalf of the popular choice. In addition, that result would be contrary to the strong presumption which favors the validity of a legislative enactment which has received both legislative approval and approval of the qualified voters of the state at a regularly called election. City of Raton v Sproule, 78 NM 138, 142; 429 P2d 336 (1967). See, also, Chaney v Bryant, 259 Ark 294; 532 SW2d 741 (1976); City of Jackson v Comm’r of Revenue, 316 Mich 694, 718; 26 NW2d 569 (1947). Absent a valid claim that enactment of Proposal H was an impermissible infringement on the initiative power, such an anomalous result cannot be accepted.
Finally, while not urged directly, it has been suggested that the Legislature’s failure to comply with the terms of art 2, § 9, ¶ 4 and the inclusion of both Proposals D and H on the same ballot impermissibly affected the outcome of the election by confusing the voters. It can fairly be said that the potential for voter confusion is equally inherent in the countermeasure procedure of art 2, § 9, ¶ 4. However, the political foundation for initiative and referendum is the assumption that a free people act rationally in the exercise of their power. This assumption is the cornerstone of a democratic form of government:
" 'The people are presumed to know what they want, to have understood the proposition submitted to them in all of its implications, and by their approval vote to have determined that this [proposal] is for the public good and expresses the free opinion of a sovereign people.’ ” Keenan v Price, 68 Idaho 423, 434; 195 P2d 662 (1948).
Fundamental principles of democratic self-government preclude the judiciary from substituting its judgment for that of the people. We have only that authority to overturn a proposal adopted by the people given us by the constitution. "Voter confusion” regarding Proposals D and H, whether an ancillary result of the initiative process or a product of political activity in support of, or in opposition to, the proposed laws, does not permit the judiciary to assume an authority to take corrective action which has not been granted by the organic instrument of government.
In summary therefore, we conclude that the provisions of art 4, § 34 were not suspended by the filing of the initiative petitions, and therefore, Proposal H was properly submitted to the voters.
II. First Certified Question
We next turn to the first certified question in which we are asked to resolve the conflict between two competing proposals adopted by the voters at the same general election. Defendants maintain that Proposal D should prevail despite the fact that it was Proposal H which received the greater number of affirmative votes. In essence, defendants ask us to invalidate a law enacted and approved by a majority of the voters of this state. This we decline to do.
We acknowledge that there is no directly applicable constitutional provision to guide us in resolving this question. The constitution of this state does not contain a provision to resolve the situation in which voters approve both an initiative proposal and a legislative enactment submitted to the voters for approval. However, as a matter of constitutional interpretation, we are not precluded from looking to other sections of the constitution for guidance in deciding this issue.
Article 2, § 9, ¶[ 5 of the Constitution of 1963 contains the following conflict resolution provision:
"If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail.”
We conclude that this provision may appropriately be "borrowed” to resolve the conflict presented here.
In addition, even if we did not resolve the conflict question by borrowing the resolution clause of art 2, § 9, ¶ 5, our holding on this issue is supported by the basic premise that in a republican form of government the "Supreme Power resides in the body of the people.” Chisholm v Georgia, 2 US (2 Dall) 419, 457; 1 L Ed 440 (1793); In re Interrogatories Propounded by Senate Concerning House Bill No 1078, 189 Colo 1, 9; 536 P2d 308 (1975). This principle is embodied in the reservation clause of the Michigan Constitution, art 1, § 1. A holding in this case which would enable a proposal receiving less than the highest number of affirmative votes to prevail would be contrary to the above premise and an infringement on the power of the people to express their will.
While several courts have stated in dicta that in the absence of a conflict-resolution provision two conflicting proposals passed on the same day must both fail because it is impossible to know the final will of the voters, we have found no instance in which a court has actually struck down both enactments. In each instance the courts have strained either to invalidate one of the two proposals or to construe the proposals harmoniously. See, e.g., Opinion to the Governor, 78 RI 144, 148; 80 A2d 165 (1951); State ex rel Nelson v Jordan, 104 Ariz 193, 196; 450 P2d 383 (1969); see, also, In re Interrogatories, supra.
We therefore find that Proposal H prevails over Proposal D, because Proposal H received the highest affirmative vote in the November 2, 1982, general election.
Consistent with this reasoning, we also hold that Proposal H prevails in its entirety. The voters of this state exercised a choice between Proposals H and D as whole proposals, and chose Proposal H. Any piecemeal integration of the nonconflicting provisions of Proposal D would be in derogation of this choice.
We reject defendants’ contention that Proposal D impliedly repealed Proposal H by virtue of Proposal D’s later effective date. As noted above, art 2, § 9, ¶ 5 can be borrowed to resolve any conflict. Furthermore, both proposals were enacted on the same day by popular approval of the voters. Consequently, contrary to defendants’ assertions, this is not an instance in which a later enactment operates to repeal a prior one of the same session where their terms conflict. It is the date of enactment, rather than the effective date, that is dispositive. See 1A Sands, Sutherland Statutory Construction (4th ed), § 23.17, p 251; OAG 1967-1968, No 4617, p 210 (March 18, 1968).
III. Effect of 1982 PA 304 on Proposal H
In addition to the certified questions, we requested that the parties address the effect of 1982 PA 304 on Proposal H. Defendants argue that the Legislature enacted 1982 PA 304 after it enacted Proposal H and that, because these two measures conflict, 1982 PA 304, the later-enacted provision, repeals Proposal H, rendering it void and of no effect. We reject this assertion on the basis of our conclusion that Proposal H was enacted on November 2, 1982, by popular approval of the voters. Prior to that date, Proposal H had no effect and hence was not yet "enacted”. Accordingly, Proposal H was the later enactment and was not repealed by the enactment of 1982 PA 304.
IV. Conclusion
For the reasons stated, we find that Proposal H prevails in its entirety over Proposal D.
No costs.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
This proposal was enacted by the Legislature as 1982 PA 212. This opinion will refer to 1982 PA 212 exclusively as Proposal H.
The official results of the November 2, 1982, general election ballot, as certified by the Board of State Canvassers, are as follows:
Yes No
Proposal H 1,670,381 1,131,990
Proposal D 1,472,442 1,431,884
We are not faced with the question here of whether the Legislature may act under art 4, § 34 after it receives a certified initiative petition. Therefore, we do not decide under what circumstances, if any, it may constitutionally do so.
Plaintiffs also contend that Proposal D violates the constitutional principles of federal pre-emption and due process. Because of our resolution of the conflict between Proposal D and Proposal H by resort to art 2, § 9, ¶ 5, this challenge has been mooted. Defendants’ motion to strike plaintiffs’ constitutional challenge is likewise mooted.
Proposal H was passed by the Legislature and signed by the Governor on July 3, 1982, subject to the approval of the voters at the next general election. 1982 PA 304 was passed by the Legislature on October 13, 1982, effective immediately.
Both parties acknowledge that there are inconsistencies between Proposal H and 1982 PA 304, although the parties differ as to the extent the two might be reconciled. While this Court raised the question of the eifect of 1982 PA 304 on Proposal H, the converse question of the effect of Proposal H on 1982 PA 304 was not asked, nor was it among the questions certified to this Court. Because this issue was not properly raised and its consideration is not necessary in answering the certified questions, we decline to consider it here. In re Certified Questions, Karl v Bryant Air Conditioning Co, 416 Mich 558, 564, fn 2; 331 NW2d 456 (1982); Swartz v Dow Chemical Co, 414 Mich 433, 446; 326 NW2d 804 (1982); Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965); Heider v Michigan Sugar Co, 375 Mich 490, 517; 134 NW2d 637 (1965) (Adams, J., dissenting). | [
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Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ.
This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
The substantive issue presented in this pre-nofault case is whether a person injured in a motor vehicle accident may recover benefits from his or her own uninsured motorist insurance policy when the tortfeasor’s liability insurance policy limits are exhausted by other claimants and the tortfeasor is uncollectible.
Consistent with the unambiguous language of MCL 500.3010; MSA 24.13010, we hold that a person may not collect benefits from his or her own uninsured motorist policy when the tortfeasor’s insurance coverage meets the statutorily required limits.
Plaintiff, Mary Kay Lotoszinski, then a minor, was injured on June 3, 1971, when a motorcycle on which she was a passenger collided with an automobile driven by Norma Jean Hunter. The automobile was owned by Norma Jean’s husband, Richard Hunter. The Hunter vehicle was insured by Auto-Owners Insurance Company for the minimum limits allowed by statute.
Plaintiff obtained a judgment against the Hunters in the amount of $180,000. Her mother, Margaret Lotoszinski, obtained a judgment in excess of $10,000 for the medical bills of her minor daughter. The Hunters’ insurer paid Margaret Lotoszinski $10,000. The driver of the motorcycle had previously been paid $10,000. These payments exhausted the limits of the Hunters’ liability insurance, and Mary Kay received nothing. She was also unable to collect from the Hunters, who were discharged in bankruptcy.
Plaintiff then filed a claim under the uninsured motorist provisions of the separate policies issued by defendant, State Farm Mutual Automobile Insurance Company, to Mary Kay and her mother. The policies provided for arbitration of claims made under the uninsured motorist provisions. State Farm denied coverage under the relevant policy provisions and refused to proceed to arbitration. Plaintiff filed suit in the Ingham Circuit Court demanding arbitration, which the circuit court ordered. After an arbitration hearing, an award favorable to defendant was entered.
Plaintiffs motion to vacate the arbitration award was denied. The Court of Appeals affirmed, stating that because the arbitrators had not exceeded their authority, the Court had no authority to overturn their decision. Lotoszinski v State Farm Mutual Automobile Ins Co, 94 Mich App 164; 288 NW2d 369 (1979). This Court granted leave to appeal. 408 Mich 960 (1980).
The initial issue presented „ is the standard of review to be employed by the courts when reviewing arbitration decisions. This issue was recently addressed by this Court in DAIIE v Gavin and DAIIE v Standfest, 416 Mich 407, 443; 331 NW2d 418 (1982). The judicial standard of review adopted therein was as follows:
" 'Where it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside.’ ”
This is the standard we now follow in determining whether the instant arbitration award should be vacated.
The substantive issue presented is whether a person injured in a motor vehicle accident may recover under the uninsured motorist provision of his or her own policy of insurance when the tortfeasor’s liability insurance policy limits are exhausted by other claimants and the tortfeasor is uncollectible because of bankruptcy.
Plaintiff advances two theories which she con tends justify recovery. First she contends that Norma Jean Hunter was an "uninsured motorist” as the Legislature used that term in MCL 500.3010; MSA 24.13010. Second, she contends that Norma Jean Hunter was an "uninsured motorist” as that term is defined in her policy with State Farm. Thus, plaintiff believes she is entitled to recover both under the statute and the language of her policy.
Defendant replies that the Hunters were insured both under the terms of the statute and their policy with plaintiff. Thus, neither justifies plaintiff’s recovery.
Plaintiff’s policy included uninsured motorist coverage, in compliance with the provisions of MCL 500.3010; MSA 24.13010. Plaintiff contends that the Legislature’s purpose in requiring uninsured motorist coverage was to provide a minimum recovery to innocent motorists so insured. In support of this contention plaintiff cites Porter v Empire Fire & Marine Ins Co, 106 Ariz 274; 475 P2d 258 (1970), modified 106 Ariz 345; 476 P2d 155 (1970). In Porter the plaintiff was one of several victims of an accident caused by a negligent motorist who carried the minimum amount of insurance required by statute. Porter’s pro-rata recovery from the tortfeasor’s insurer was $2,500, an amount insufficient to compensate him for his injuries. He then sought to recover under his own uninsured motorist coverage an additional $7,500, the difference between the statutory minimum of $10,000 and his $2,500 recovery.
The Porter court opined that "[t]he uninsured policy is issued for the protection of the insured in the minimum amount provided in the Financial Responsibility Act.” Porter, 106 Ariz 279. The court drew an analogy between Porter’s situation and other cases in which, although the tortfeasors' had some form of insurance, the insurers denied coverage or became insolvent or had issued policies which failed to conform to the state’s financial responsibility laws. These authorities, according to the court, led to the conclusion that a partially insured motorist could be treated as an uninsured motorist. Because only $2,500 and not $10,000 was available to Porter, the court held that recovery of the full statutory minimum was the protection which the insured expected and the Legislature intended.
We recognize that the opposite- result would mean that the insured would be in a much better position had the tortfeasor been totally uninsured. However, we are not persuaded by the Porter court’s rationale that this anomalous result is a sufficient reason to extend the plain meaning of the statute.
"A due regard for the differing functions of the legislative and judicial branches of government requires that the courts refrain from rewriting, under the pretext of interpretation, the clearly expressed language of a legislative enactment which the court deems to be preferable to that which the legislation requires.” Simonette v Great American Ins Co, 165 Conn 466, 471; 338 A2d 453 (1973).
We refuse to read additional meaning into the unambiguous language of our statute absent any indication that the Legislature intended such a result.
At the time of plaintiffs accident MCL 500.3010; MSA 24.13010 read:
"No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in section 504 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.504 of the Compiled Laws of 1948, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners. or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice, displayed prominently on the front page of the policy, in at least 8-point type that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.”
The plain meaning of "uninsured” is not insured. The only other situation in which the statute made uninsured motorist coverage available was when the tortfeasor’s insurer was insolvent.
The Hunters were insured for the statutorily required amount. Their insurer was solvent and paid claims to the policy limit. The Hunters were not uninsured as the plain meaning of that term was used in the statute.
The statutorily required minimum limits for uninsured motorist coverage extant on the date of injury were "$10,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $20,000.00 because of bodily injury to or death of 2 or more persons in any one accident”. This meaning is clear. The Legislature guaranteed a minimum level of coverage for each accident, not a minimum amount to be recovered by each injured person. The inclusion of the words "2 or more persons in any one accident” makes it obvious that the Legislature knew that a $20,000 per accident limit would not guarantee a $10,000 recovery to each injured person when more than 2 persons are injured.
We recognize, as plaintiff points out, that under our result she would have been in a better position had the Hunters carried no insurance. It is most unfortunate that the minimum limits then afforded under the policy in combination with the payments made to the other claimants failed to cover to any extent the damages awarded to plaintiff. However, the solution is not for this Court under the guise of interpretation to revise an unambiguous statute to reach what it may consider a just result. Simonette, supra. There is no ambiguity in the statute which would allow us to extend coverage to an individual injured in an accident caused by a motorist insured in the statutorily required amount because that amount proves to be inadequate. Nor is there any indication that the Legislature would have intended such a result.
The Legislature’s intent, as we perceive it, was to protect the public from a noninsured, financially irresponsible motorist, not one who was insufficiently insured. See Lund v Mission Ins Co, 270 Or 461; 528 P2d 78 (1974). "The protection intended is against an 'uninsured’ motorist, not one who is ’underinsured’. The legislature required that a minimum level of coverage be available for each accident when more than one person was injured. It did not undertake to guarantee an irreducible minimum sum available to every injured person under every set of circumstances but simply to make available a policy offering minimum levels of coverage.” Gorton v Reliance Ins Co, 77 NJ 563, 572; 391 A2d 1219 (1978).
Furthermore, the practical effect of the Porter position is troublesome for it effectively transforms uninsured motorist coverage into a policy of excess accident insurance. "That is not the coverage for which the insured paid a premium, nor would it conform to any rational public policy. We hesitate to contemplate what premiums insured motorists would have to pay for uninsured motorist coverage should this court declare that to be the proper interpretation of legislative intent.” Travelers Ins Co v Bouzer, 39 Cal App 3d 992, 995; 114 Cal Rptr 651 (1974). See also Gorton, supra.
Plaintiff also contends that a proper interpretation of her policy with State Farm supports her recovery. Her policy provided in pertinent part that a motor vehicle was uninsured if "there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is coverage thereunder”. Plaintiff contends that be cause she received nothing from Auto-Owners, they denied coverage.
A denial of coverage within the insuring language of the State Farm policy would require that Auto-Owners had denied that it had a duty to indemnify the Hunters against damages arising out of the accident. This was never done. Rather, Auto-Owners acknowledged the liability of its insured and paid out claims to the policy limits which were the same as the minimum limits required by the Michigan financial responsibility law.
The proposition suggested by the plaintiff would lead to an untenable result. It would mean that whenever a liability insurance carrier had coverage inadequate to fully defray all claims and refused to pay more than the policy limits which met the statutorily required minimum limits, the uninsured motorist carrier would automatically become liable on the ground that the liability carrier had "denied coverage”. Such an interpretation finds no support in the clear and unequivocal language of the parties’ contract.
The Hunters were insured with a policy which met the statutorily required minimum limits. Their solvent insurer admitted the Hunters’ liability and paid claims to the policy limits. Without twisting the unambiguous language of the parties’ contract, we cannot find that the Hunters were uninsured or that Auto-Owners denied coverage.
Conclusion
To hold in favor of the plaintiff would require this Court to exercise powers which it does not possess, namely, to revise the statute and reconstruct the parties’ contract.
Accordingly, we hold that a person may not collect benefits under his or her own uninsured motorist coverage when the tortfeasor’s insurance coverage meets the statutorily required limits. Thus, employing the Gavin/Standfest standard of review, the instant arbitration award is upheld.
The decision of the Court of Appeals is affirmed on other grounds.
Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ., concurred.
MCL 500.3101 et seq.; MSA 24.13101 et seq.
At the time of the accident, this statute read as follows:
"No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in section 504 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.504 of the Compiled Laws of 1948, Under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by an insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice, displayed prominently on the front page of the policy, in at least 8-point type that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.”
MCL 257.504(d); MSA 9.2204(d) set minimum limits of "$10,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $20,000.00 because of bodily injury to or death of 2 or more persons in any one accident”. The minimum limits were increased to $20,000 and $40,000 respectively effective October 1, 1971. 1971 PA 67.
Plaintiff also relies on Gorton v Reliance Ins Co, 137 NJ Super 558; 350 A2d 77 (1975). We note that this decision was reversed. 77 NJ 563; 391 A2d 1219 (1978).
See fn 3.
See Ziegelmayer v Allstate Ins Co, 403 A2d 653, 655 (RI, 1979), and cases cited therein at fn 2.
More fully, the uninsured motorist provision of plaintiffs policy provided:
"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle”.
An uninsured motor vehicle was defined as:
"(1) a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the described motor vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is any coverage thereunder or is or becomes insolvent”. (Emphasis added.)
See Hallowell v State Farm Mutual Automobile Ins Co, 443 A2d 925 (Del, 1982); Villarreal v Texas Farmers Ins Co, 510 SW2d 633 (Tex Civ App, 1974); Golphin v Home Indemnity Co, 284 So 2d 442 (Fla App, 1973). | [
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Ryan, J.
In March of 1977, Carl and Nancy Pickles, appellees, purchased from appellants, William and Martha Messerly, a 600-square-foot tract of land upon which is located a three-unit apartment building. Shortly after the transaction was closed, the Lenawee County Board of Health condemned the property and obtained a permanent injunction which prohibits human habitation on the premises until the defective sewage system is brought into conformance with the Lenawee County sanitation code.
We are required to determine whether appellees should prevail in their attempt to avoid this land contract on the basis of mutual mistake and failure of consideration. We conclude that the parties did entertain a mutual misapprehension of fact, but that the circumstances of this case do not warrant rescission.
I
The facts of the case are not seriously in dispute. In 1971, the Messerlys acquired approximately one acre plus 600 square feet of land. A three-unit apartment building was situated upon the 600-square-foot portion. The trial court found that, prior to this transfer, the Messerlys’ predecessor in title, Mr. Bloom, had installed a septic tank on the property without a permit and in violation of the applicable health code. The Messerlys used the building as an income investment property until 1973 when they sold it, upon land contract, to James Barnes who likewise used it primarily as an income-producing investment.
Mr. and Mrs. Barnes, with the permission of the Messerlys, sold approximately one acre of the property in 1976, and the remaining 600 square feet and building were offered for sale soon thereafter when Mr. and Mrs. Barnes defaulted on their land contract. Mr. and Mrs. Pickles evidenced an interest in the property, but were dissatisfied with the terms of the Barnes-Messerly land contract. Consequently, to accommodate the Pickleses’ preference to enter into a land contract directly with the Messerlys, Mr. and Mrs. Barnes executed a quitclaim deed which conveyed their interest in the property back to the Messerlys. After inspecting the property, Mr. and Mrs. Pickles executed a new land contract with the Messerlys on March 21, 1977. It provided for a purchase price of $25,-500. A clause was added to the end of the land contract form which provides:
"17. Purchaser has examined this property and agrees to accept same in its present condition. There are no other or additional written or oral understandings.”
Five or six days later, when the Pickleses went to introduce themselves to the tenants, they discovered raw sewage seeping out of the ground. Tests conducted by a sanitation expert indicated the inadequacy of the sewage system. The Lenawee County Board of Health subsequently condemned the property and initiated this lawsuit in the Lenawee Circuit Court against the Messerlys as land contract vendors, and the Pickleses, as vendees, to obtain a permanent injunction proscribing human habitation of the premises until the property was brought into conformance with the Lenawee County sanitation code. The injunction was granted, and the Lenawee County Board of Health was permitted to withdraw from the lawsuit by stipulation of the parties.
When no payments were made on the land contract, the Messerlys filed a cross-complaint against the Pickleses seeking foreclosure, sale of the property, and a deficiency judgment. Mr. and Mrs. Pickles then counterclaimed for rescission against the Messerlys, and filed a third-party complaint against the Barneses, which incorporated, by reference, the allegations of the counterclaim against the Messerlys. In count one, Mr. and Mrs. Pickles alleged failure of consideration. Count two charged Mr. and Mrs. Barnes with wilful concealment and misrepresentation as a result of their failure to disclose the condition of the sanitation system. Additionally, Mr. and Mrs. Pickles sought to hold the Messerlys liable in equity for the Barneses’ alleged misrepresentation. The Pickleses prayed that the land contract be rescinded.
After a bench trial, the court concluded that the Pickleses had no cause of action against either the Messerlys or the Barneses as there was no fraud or misrepresentation. This ruling was predicated on the trial judge’s conclusion that none of the parties knew of Mr. Bloom’s earlier transgression or of the resultant problem with the septic system until it was discovered by the Pickleses, and that the sanitation problem was not caused by any of the parties. The trial court held that the property was purchased "as is”, after inspection and, accordingly, its "negative * * * value cannot be blamed upon an innocent seller”. Foreclosure was ordered against the Pickleses, together with a judgment against them in the amount of $25,943.09.
Mr. and Mrs. Pickles appealed from the adverse judgment. The Court of Appeals unanimously affirmed the trial court’s ruling with respect to Mr. and Mrs. Barnes but, in a two-to-one decision, reversed the finding of no cause of action on the Pickleses’ claims against the Messerlys. Lenawee County Board of Health v Messerly, 98 Mich App 478; 295 NW2d 903 (1980). It concluded that the
mutual mistake between the Messerlys and the Pickleses went to a basic, as opposed to a collateral, element of the contract, and that the parties intended to transfer income-producing rental property but, in actuality, the vendees paid $25,500 for an asset without value.
We granted the Messer lys’ application for leave to appeal. 411 Mich 900 (1981).
II
We must decide initially whether there was a mistaken belief entertained by one or both parties to the contract in dispute and, if so, the resultant legal significance.
A contractual mistake "is a belief that is not in accord with the facts”. 1 Restatement Contracts, 2d, § 151, p 383. The erroneous belief of one or both of the parties must relate to a fact in existence at the time the contract is executed. Richardson Lumber Co v Hoey, 219 Mich 643; 189 NW 923 (1922); Sherwood v Walker, 66 Mich 568, 580; 33 NW 919 (1887) (Sherwood, J., dissenting). That is to say, the belief which is found to be in error may not be, in substance, a prediction as to a future occurrence or non-occurrence. Henry v Thomas, 241 Ga 360; 245 SE2d 646 (1978); Hailpern v Dryden, 154 Colo 231; 389 P2d 590 (1964). But see Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957).
The Court of Appeals concluded, after a de novo review of the record, that the parties were mistaken as to the income-producing capacity of the property in question. 98 Mich App 487-488. We agree. The vendors and the vendees each believed that the property transferred could be utilized as income-generating rental property. All of the parties subsequently learned that, in fact, the property was unsuitable for any residential use.
Appellants assert that there was no mistake in the contractual sense because the defect in the sewage system did not arise until after the contract was executed. The appellees respond that the Messerlys are confusing the date of the inception of the defect with the date upon which the defect was discovered.
This is essentially a factual dispute which the trial court failed to resolve directly. Nevertheless, we are empowered to draw factual inferences from the facts found by the trial court. GCR 1963, 865.1(6).
An examination of the record reveals that the septic system was defective prior to the date on which the land contract was executed. The Messerlys’ grantor installed a nonconforming septic system without a permit prior to the transfer of the property to the Messerlys in 1971. Moreover, virtually undisputed testimony indicates that, assuming ideal soil conditions, 2,500 square feet of property is necessary to support a sewage system adequate to serve a three-family dwelling. Likewise, 750 square feet is mandated for a one-family home. Thus, the division of the parcel and sale of one acre of the property by Mr. and Mrs. Barnes in 1976 made it impossible to remedy the already illegal septic system within the confines of the 600-square-foot parcel.
Appellants do not dispute these underlying facts which give rise to an inference contrary to their contentions.
Having determined that when these parties entered into the land contract they were laboring under a mutual mistake of fact, we now direct our attention to a determination of the legal significance of that finding.
A contract may be rescinded because of a mutual misapprehension of the parties, but this remedy is granted only in the sound discretion of the court. Harris v Axline, 323 Mich 585; 36 NW2d 154 (1949). Appellants argue that the parties’ mistake relates only to the quality or value of the real estate transferred, and that such mistakes are collateral to the agreement and do not justify rescission, citing A & M Land Development Co v Miller, 354 Mich 681; 94 NW2d 197 (1959).
In that case, the plaintiff was the purchaser of 91 lots of real property. It sought partial rescission of the land contract when it was frustrated in its attempts to develop 42 of the lots because it could not obtain permits from the county health department to install septic tanks on these lots. This Court refused to allow rescission because the mistake, whether mutual or unilateral, related only to the value of the property.
"There was here no mistake as to the form or substance of the contract between the parties, or the description of the property constituting the subject matter. The situation involved is not at all analogous to that presented in Scott v Grow, 301 Mich 226; 3 NW2d 254; 141 ALR 819 (1942). There the plaintiff sought relief by way of reformation of a deed on the ground that the instrument of conveyance had not been drawn in accordance with the intention and agreement of the parties. It was held that the bill of complaint stated a case for the granting of equitable relief by way of reformation. In the case at bar plaintiff received the property for which it contracted. The fact that it may be of less value than the purchaser expected at the time of the transaction is not a sufficient basis for the granting of equitable relief, neither fraud nor reliance on misrepresentation of material facts having been established.” 354 Mich 693-694.
Appellees contend, on the other hand, that in this case the parties were mistaken as to the very nature of the character of the consideration and claim that the pervasive and essential quality of this mistake renders rescission appropriate. They cite in support of that view Sherwood v Walker, 66 Mich 568; 33 NW 919 (1887), the famous "barren cow” case. In that case, the parties agreed to the sale and purchase of a cow which was thought to be barren, but which was, in reality, with calf. When the seller discovered the fertile condition of his cow, he refused to deliver her. In permitting rescission, the Court stated:
"It seems to me, however, in the case made by this record, that the mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as there is between an ox and a cow that is capable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale; but the mistake affected the character of the animal for all time, and for her present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy. She was not a barren cow, and, if this fact had been known, there would have been no contract. The mistake affected the substance of the whole consideration, and it must be considered that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact no existence. She was sold as a beef creature would be sold; she is in fact a breeding cow, and a valuable one.
"The court should have instructed the jury that if they found that the cow was sold, or contracted to be sold, upon the understanding of both parties that she was barren, and useless for the purpose of breeding, and that in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and to refuse to deliver, and the verdict should be in their favor.” 66 Mich 577-578.
As the parties suggest, the foregoing precedent arguably distinguishes mistakes affecting the essence of the consideration from those which go to its quality or value, affording relief on a per se basis for the former but not the latter. See, e.g., Lenawee County Board of Health v Messerly, 98 Mich App 478, 492; 295 NW2d 903 (1980) (Mackenzie, J., concurring in part).
However, the distinctions which may be drawn from Sherwood and A & M Land Development Co do not provide a satisfactory analysis of the nature of a mistake sufficient to invalidate a contract. Often, a mistake relates to an underlying factual assumption which, when discovered, directly affects value, but simultaneously and materially affects the essence of the contractual consideration. It is disingenuous to label such a mistake collateral. McKay v Coleman, 85 Mich 60; 48 NW 203 (1891). Corbin, Contracts (one vol ed), § 605, p 551.
Appellant and appellee both mistakenly believed that the property which was the subject of their land contract would generate income as rental property. The fact that it could not be used for human habitation deprived the property of its income-earning potential and rendered it less valuable. However, this mistake, while directly and dramatically affecting the property’s value, cannot accurately be characterized as collateral because it also affects the very essence of the consideration. "The thing sold and bought [income-generating rental property] had in fact no existence”. Sherwood v Walker, 66 Mich 578.
We find that the inexact and confusing distinction between contractual mistakes running to value and those touching the substance of the consideration serves only as an impediment to a clear and helpful analysis for the equitable resolution of cases in which mistake is alleged and proven. Accordingly, the holdings of A & M Land Development Co and Sherwood with respect to the material or collateral nature of a mistake are limited to the facts of those cases.
Instead, we think the better-reasoned approach is a case-by-case analysis whereby rescission is indicated when the mistaken belief relates to a basic assumption of the parties upon which the contract is made, and which materially affects the agreed performances of the parties. Denton v Ut ley, 350 Mich 332; 86 NW2d 537 (1957); Farhat v Rassey, 295 Mich 349; 294 NW 707 (1940); Richardson Lumber Co v Hoey, 219 Mich 643; 189 NW 923 (1922). 1 Restatement Contracts, 2d, § 152, pp 385-386. Rescission is not available, however, to relieve a party who has assumed the risk of loss in connection with the mistake. Denton v Utley, 350 Mich 344-345; Farhat v Rassey, 295 Mich 352; Corbin, Contracts (one vol ed), § 605, p 552; 1 Restatement Contracts, 2d, §§ 152, 154, pp 385-386, 402-406.
All of the parties to this contract erroneously assumed that the property transferred by the vendors to the vendees was suitable for human habitation and could be utilized to generate rental income. The fundamental nature of these assumptions is indicated by the fact that their invalidity changed the character of the property transferred, thereby frustrating, indeed precluding, Mr. and Mrs. Pickles’ intended use of the real estate. Although the Pickleses are disadvantaged by enforcement of the contract, performance is advantageous to the Messerlys, as the property at issue is less valuable absent its income-earning potential. Nothing short of rescission can remedy the mistake. Thus, the parties’ mistake as to a basic assumption materially affects the agreed performances of the parties.
Despite the significance of the mistake made by the parties, we reverse the Court of Appeals because we conclude that equity does not justify the remedy sought by Mr. and Mrs. Pickles.
Rescission is an equitable remedy which is granted only in the sound discretion of the court. Harris v Axline, 323 Mich 585; 36 NW2d 154 (1949); Hathaway v Hudson, 256 Mich 694; 239 NW 859 (1932). A court need not grant rescission in every case in which the mutual mistake relates to a basic assumption and materially affects the agreed performance of the parties.
In cases of mistake by two equally innocent parties, we are required, in the exercise of our equitable powers, to determine which blameless party should assume the loss resulting from the misapprehension they shared. Normally that can only be done by drawing upon our "own notions of what is reasonable and just under all the surrounding circumstances”.
Equity suggests that, in this case, the risk should be allocated to the purchasers. We are guided to that conclusion, in part, by the standards announced in § 154 of the Restatement of Contracts, 2d, for determining when a party bears the risk of mistake. See fn 12. Section 154(a) suggests that the court should look first to whether the parties have agreed to the allocation of the risk between themselves. While there is no express assumption in the contract by either party of the risk of the property becoming uninhabitable, there was indeed some agreed allocation of the risk to the vendees by the incorporation of an "as is” clause into the contract which, we repeat, provided:
"Purchaser has examined this property and agrees to accept same in its present condition. There are no other or additional written or oral understandings.”
That is a persuasive indication that the parties considered that, as between them, such risk as related to the "present condition” of the property should lie with the purchaser. If the "as is” clause is to have any meaning at all, it must be interpreted to refer to those defects which were unknown at the time that the contract was executed. Thus, the parties themselves assigned the risk of loss to Mr. and Mrs. Pickles. _
We conclude that Mr. and Mrs. Pickles are not entitled to the equitable remedy of rescission and, accordingly, reverse the decision of the Court of Appeals.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Ryan, J.
Riley, J., took no part in the decision of this case.
James Barnes was married shortly after he purchased the property. Mr. and Mrs. Barnes lived in one of the apartments on the property for three months and, after they moved, Mrs. Barnes continued to aid in the management of the property.
Linehan Realty Company and Andrew E. Czmer, doing business as Andrew Realty Company, were also named as third-party defendants, but were later dismissed from the lawsuit by stipulation of the parties.
The parties stipulated that this amount was due on the land contract, assuming that the contract was valid and enforceable.
Judge Mackenzie dissented from this part of the opinion. She would have held that the trial court’s refusal to grant rescission to Mr. and Mrs. Pickles was not an abuse of discretion.
"I would find that the trial court correctly denied rescission to Mr. and Mrs. Pickles, who received essentially the same property they bargained for and failed to prove that any mistake or failure of consideration existed at the time the parties entered into the contract.” 98 Mich App 494.
Mr. and Mrs. Pickles did not allege mutual mistake as a ground for rescission in their pleadings. However, the trial court characterized their failure of consideration argument as mutual mistake resulting in failure of consideration. Recognizing a potential difficulty in reversing the trial court on an issue not raised by the pleadings, the Court of Appeals devoted a footnote to an explanation of its decision to consider the mutual mistake argument.
"4 The pleadings below set forth the Pickleses’ theory as failure of consideration. However, it appears that the trial judge considered the failure of consideration issue to be essentially rooted in an allegation of mutual mistake. While issues not pleaded or otherwise presented to the trial court are not available for use on appeal, Long Mfg Co, Inc v Wright-Way Farm Service, Inc, 39 Mich App 546; 197 NW2d 862 (1972), rev’d on other grounds, 391 Mich 82 (1974), we address the issue of mutual mistake as one 'otherwise presented to the trial court’.
"We further note that an exception to the general rule that an issue not raised before the trial court cannot be raised on appeal exists where the issue has been fully briefed,’ and this Court in the interest of justice chooses to consider it. Turner v Ford Motor Co, 81 Mich App 521, 525, fn 2; 265 NW2d 400 (1978).” 98 Mich App 485, fn 4.
Since the mutual mistake issue was dispositive in the Court of Appeals, we find its consideration necessary to a proper determination of this case.
Mr. and Mrs. Pickles did not appeal the trial court’s finding that there was no fraud or misrepresentation by the Messerlys or Mr. and Mrs. Barnes. Likewise, the propriety of that ruling is not before this Court today.
The trial court found that the only way that the property could be put to residential use would be to pump and haul the sewage, a method which is economically unfeasible, as the cost of such a disposal system amounts to double the income generated by the property. There was speculation by the trial court that the adjoining land might be utilized to make the property suitable for residential use, but, in the absence of testimony directed at that point, the court refused to draw any conclusions. The trial court and the Court of Appeals both found that the property was valueless, or had a negative value.
The Court of Appeals decision to affirm the trial court’s finding of no cause of action against Mr. and Mrs. Barnes has not been appealed to this Court and, accordingly, the propriety of that ruling is not before us today.
We emphasize that this is a bifurcated inquiry. Legal or equitable remedial measures are not mandated in every case in which a mutual mistake has been established.
It is crucial to distinguish between the date on which a belief relating to a particular fact or set of facts becomes erroneous due to a change in the fact, and the date on which the mistaken nature of the belief is discovered. By definition, a mistake cannot be discovered until after the contract is executed. If the parties were aware, prior to the execution of a contract, that they were in error concerning a particular fact, there would be no misapprehension in signing the contract. Thus stated, it becomes obvious that the date on which a mistaken fact manifests itself is irrelevant to the determination whether or not there was a mistake.
The parties have invited our attention to the first edition of the Restatement of Contracts in their briefs, and the Court of Appeals cites to that edition in its opinion. However, the second edition was published subsequent to the issuance of the lower court opinion and the filing of the briefs with this Court. Thus, we take it upon ourselves to refer to the latest edition to aid us in our resolution of this case.
Section 152 delineates the legal significance of a mistake.
"§ 152. When Mistake of Both Parties Makes a Contract Voidable "(1) Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154.
"(2) In determining whether the mistake has a material effect on the agreed exchange of performances, account is taken of any relief by way of reformation, restitution, or otherwise.
"§ 154. When a Party Bears the Risk of a Mistake
“A party bears the risk of a mistake when
"(a) the risk is allocated to him by agreement of the parties, or
"(b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
"(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.”
This risk-of-loss analysis is absent in both A & M Land Development Co and Sherwood, and this omission helps to explain, in part, the disparate treatment in the two cases. Had such an inquiry been undertaken in Sherwood, we believe that the result might have been different. Moreover, a determination as to which party assumed the risk in A & M Land Development Co would have alleviated the need to characterize the mistake as collateral so as to justify the result denying rescission. Despite the absence of any inquiry as to the assumption of risk in those two leading cases, we find that there exists sufficient precedent to warrant such an analysis in future cases of mistake.
Hathaway v Hudson, 256 Mich 702, quoting 9 CJ, p 1161.
An "as is” clause waives those implied warranties which accompany the sale of a new home, Tibbitts v Openshaw, 18 Utah 2d 442; 425 P2d 160 (1967), or the sale of goods. MCL 440.2316(3)(a); MSA 19.2316(3)(a). Since implied warranties protect against latent defects, an "as is” clause will impose upon the purchaser the assumption of the risk of latent defects, such as an inadequate sanitation system, even when there are no implied warranties.
An "as is” clause does not preclude a purchaser from alleging fraud or misrepresentation as a basis for rescission. See 97 ALR2d 849. However, Mr. and Mrs. Pickles did not appeal the trial court’s finding that there was no fraud or misrepresentation, so we are bound thereby. | [
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Levin, J.
The judges of the 60th District Court voted to discharge Jem Schmeling, the assignment clerk of the court, two days after a union meeting. Schmeling was the chief steward for the bargaining unit of court employees. She filed a complaint with the Michigan Employment Relations Commis sion, which found that the 60th District Court, "has violated Section 10(l)(a)[ ] by interfering with, restraining and coercing employees in the exercise of their rights guaranteed by Section 9[ ] of [the public employment relations act], and has violated Section 10(l)(c)[ ] by discriminating in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization”. The commission directed the district court to offer Schmeling reinstatement to her former, or a substantially equivalent, position as assignment clerk and to make her whole for any loss of pay she may have suffered.
The Court of Appeals affirmed, Teamsters Union Local 214 v 60th District Court, 102 Mich App 216; 302 NW2d 203 (1980).
The Attorney General has filed a brief in behalf of the 60th District Court contending:
1. The PERA, in providing that the commission has jurisdiction of appeals by employees of the judicial branch of government, violates Const 1963, art 3, § 2, concerning the separation of the powers of government.
2. The provisions of Const 1963, art 4, § 48, authorizing the Legislature to enact laws providing for resolution of disputes concerning public employees notwithstanding, Const 1963, art 3, § 2, concerning the separation of the powers of government, precludes the application of the PERA to a court employee, such as an assignment clerk, whose work responsibilities, it is contended, are essential to the judicial process.
3. The decision and order of the commission is not "supported by competent, material and sub stantial evidence on the whole record”. Const 1963, art 6, § 28.
The Court of Appeals carefully reviewed and rejected each of these contentions in a comprehensive opinion by Judge Walsh for the Court. We adopt the opinion and reasoning of the Court of Appeals, and affirm.
We have considered whether the commission’s findings that (i) Schmeling’s role as assignment clerk was "administrative and/or clerical in its essential character” and not "central to the administration of * * * justice, bordering on a judicial role”, and (ii) the cause of discharge was Schmeling’s activities at the union meeting, rather than unsatisfactory job performance, were contrary to the weight of the evidence or clearly erroneous although "supported by competent, material and substantial evidence on the whole record”. We have concluded that, measured by such higher standards, the commission’s order should also be sustained.
We have reviewed the record against higher standards because it may be necessary to apply higher standards in order to preserve the separation of powers, and, in particular, the power of a court to discharge for cause a court employee whose function is central to the administration of justice.
Because it is not necessary to decision, we do not adopt higher standards for future cases, but rather reserve the question until it is necessary to decision and intimate no opinion thereon.
Affirmed. No costs, a public question.
Williams, C.J., and Kavanagh and Brickley, JJ., concurred with Levin, J.
MCL 423.210(l)(a); MSA 17.455(10)(l)(a).
MCL 423.209; MSA 17.455(9).
MCL 423.210(l)(c); MSA 17.455(10)(l)(c).
Const 1963, art 6, § 28. | [
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Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the order of the Attorney Discipline Board is modified, to the extent that it provides otherwise, to provide that during the stay of the revocation order the respondent shall remain suspended from the practice of law. In all other respects the application for leave to appeal is denied. Reconsideration denied June 23, 1983. | [
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Graves, J.
This is an action of ejectment which the court tried without a jury and decided in favor of the plaintiff. The defendant asks a review on a case made. The plaintiff’s counsel objects that the record fails to raise any point for the reason that no objections appear as a basis for the exceptions. This position is not tenable. The circuit judge made a special finding and the defendant specially excepts to the conclusions of law. The steps taken are sufficient to entitle him to contend that the facts do not support the judgment. Rules S9 and 90 of the Circuit Court. The omission to comply with amended Rule 84 is not complained of, and as the court finds no difficulty in seeing what is relied on as error, it is thought best to consider the case.
The judge found that the plaintiff received a patent from the State on the 9th of October, 1850, for the land in question ; that George H. White bought the premises at tax sales for the taxes of 1850, 1859, 1862, 1868, 1864,1865 and 1866, and received deeds from the Auditor General in completion of the sales; that in October, 1859, Mr. White contracted the premises to the defendant, and the latter agreed to pay all taxes which should be assessed thereafter. The land was wild and unoccupied, and finally the defendant in August, 1866, took possession of it and enclosed it with a fence and has since continued in exclusive possession; that in July, 1868, White quitclaimed to defendant.
The suit was commenced in August, 1877. The defendant insists that under the finding the plaintiff was barred by the limitation, of ten years prescribed by the second subdivision of section 7137 of the Compilation. It is a sufficient answer to this argument that there is no finding that the defendant’s holding was adverse to the plaintiff. Some circumstances possessing value as evidence on the question are set forth, but the fact itself is neither affirmed nor negatived. For aught that appears the holding by the defendant may have been in harmony with the right asserted by the plaintiff. Yelverton v. Steele 40 Mich. 538; Hamblin v. Warner 30 Mich. 95. Cf. course a possession which is reconcilable with the right of the other party is not within the statute.
The second and remaining position is that in view of the facts found the defendant is entitled to judgment on the strength of the tax-title. It is unnecessary to advert to the ' facts on which the judge ruled against the deeds representing the sales for the taxes of 1850 and 1859. He found that in each of the remaining years from two to twelve parcels of land within the township, and which in previous years had been assessed, were omitted from the assessment roll, and in connection with such finding observed: “No evidence was offered as to how these omissions came to be made. The bare fact was shown that they appeared on the face of the rolls, and I conclude from the foregoing facts that such omissions were through negligence rather than accident.”
There is nothing further in the case to impugn the deeds given on the sales for taxes, subsequent to 1859. The meaning of this finding and explanation is that as there was no evidence one way or the other the judge held an opinion that as a matter of law or of fact it was correct to impute negligence to the assessing officers and thereupon overturn the sale sof lands in that township for those years. It seems quite obvious that the opinion in question is not tenable. Whether if correct, it would be possible to use it as a finding of fact is not certain. During the years in question several classes of real estate was exempt, and amongst others certain lands held by the state and by cities, villages, townships and school-districts, and by library, benevolent, charitable and scientific corporations, and land occupied by houses of public worship.
There is no finding and there seems to have been no evidence that the omitted parcels belonged to the class of lands liable to be rated, and as the law itself made exemptions which for aught that appears may have covered all the par cels left out, there was nothing to warrant the observation that their being left out was due to negligence. It appears affirmatively in the finding as matter of fact that there was no evidence tending to prove it; and moreover the circumstances in point of law permitted a presumption that the assessors discharged their duty and hence that the parcels left out were omitted because it was proper to omit them. That in former years they had been rated either properly or improperly did not explain their condition and show that they were taxable in the years in question.-
It is further. noticeable that there is no finding that these land's possessed any known value in the years when they were not assessed, and the fact cannot be arbitrarily assumed here. If they were worthless, their omission was not important. We think the court erred in ruling against the tax title arising on the sales for taxes after 1859 on the facts as found, and that judgment ought to have been given for the defendant.
Claims for valuations were filed under the statute, (Comp. L. §§ 6252, 6253, amended in 1873 ; 1 Sess. Laws 1873, p. 472,) and the circuit judge made the necessary findings on them. .But the view taken of the case leaves them without utility.
The judgment must be reversed and one entered here in favor of the defendant with the costs of both courts.
The record will be remanded however to enable the plaintiff to proceed under the statute for a new trial as he may be advised and as shall be agreeable to law.
The other Justices concurred. | [
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Campbell, J.
Kittridge sued Miller in replevin for the skin of a fox, which he claimed because the animal was first started and wounded by him, and chased to earth by his dog, and finally caught by the dog and killed by his help. As there is no evidence whatever tending to show that Miller had or claimed any interest in, or control over, the skin, there was no ground for an action of replevin, and we shall not discuss the respective interests of the several men and dogs that killed the fox.
This case, which involved only one dollar and a half, was brought in the circuit court, and not before a justice. While the former may have jurisdiction it certainly ought not to have it, and probably was not intended to have it. Such a case should not have been brought there, and is evidently a matter of bad feeling and not of serious grievance. Neither the public nor the parties should have been put to the expense of such a litigation.
The judgment must be affirmed with costs.
Marston, C. J. and G-raves, J. concurred. | [
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Graves, J.
In approaching this contention it seems needful to refer at some length to certain historical data about which there is no room for controversy. It must be borne in mind however that there are many incidents of special significance more or less connected with these facts; but which, as being mere disputes or matters of dispute, are in such shape that no account can be given of them in their natural order without digressing into utter confusion. Their bearing and the color they lend to particular points and their ultimate effect can only be understood by a thorough study of the record. This intimation is needed to warn against hasty inferences and implications. By disregarding it and confining attention to a group of undisputed facts exhibited apart from their surroundings and unattended by the conflicting explanations of parties and witnesses there would be great danger of forming most distorted and erroneous views of the actual case on which the court is compelled to adjudicate.
Prior to 1862 complainant’s father and mother lived in the little hamlet of Waterford in Oakland county. The place, as may be inferred, contained less than two hundred inhabitants. The dwelling was a small cheap structure, designed to serve as a lean-to for a future upright, and the lot consisted of an acre of ground enclosed with a rail fence, and the whole premises were in a rude condition. The title was in the wife. Complainant’s father went into the army and in 1862 lost his life. Complainant was the only child and was about six years of age. In 1866 his mother intermarried with defendant who was then nearly destitute of property. His business was that of carriage-maker, trimmer and painter. They made the premises referred to their place of abode. From this time forward during the life-time of complainant’s mother the relations between the three appear to have been not merely pleasant, but affectionate. Complainant was well provided for by defendant and evidently treated with indulgence. He was kept at school and no further tasked apparently than was conducive to his own good. The prevalence of good feeling was reciprocal and constant, and the intercourse was very frank, the complainant manifesting no reserve in his conversation with defendant, nor anything like unpleasant subordination in his deportment. There is not a hint in the case of any approach towards ill feeling or disagreement or any jar in their association prior to this controversy. The correspondence in the record affords the strongest evidence of the closeness of their intimacy and the absence of all constraint in their mutual communication.
Sometime after the marriage, but the date is not explained, complainant’s mother, in character of his guardian, received from the Hnited States $649. But before this money was received the defendant commenced improving the little homestead; yet the greater portion of the improvements and indeed nearly all were made afterwards. In the course of a few years a considerable amount in money and labor was expended. He smoothed the face of the lot, planted trees, made fence, erected a barn and outbuildings and added a two-story front to the house. In carrying on this improvement, however, the most of which was about 1870, he used a little over $400 of the money so received by Mrs. Streeter as the guardian of complainant. During these events complainant’s maternal grandfather and grandmother lived near. A married aunt resided in the vicinity and two uncles in Detroit. One of the latter is the gentleman who now appears as complainant’s solicitor. The other subsequently 'removed to Florida. The defendant had two married sisters in Waterford. A state of ill feeling existed between defendant and his mother-in-law, the grandmother of complainant, and complainant felt that his mother’s relations were neither warm nor just- and not entitled to his hearty love and respect. He was not inclined to confer with them freely and fully.
In August, 1878, his mother died intestate, leaving him her sole heir-at-law. The record contains intimations that there were some small parcels of real estate at ornear Detroit, which fell to him in addition to his right at law, to the place at Waterford. A few days succeeding his mother’s death, and about the 9th of September, 1878, complainant, who was then nearly 22 years of age, went to Detroit. It seems to have been his purpose to seek employment there if practicable. His uncle, the solicitor in this case, gave him some assistance. He likewise received aid from his grandmother and from the defendant. He soon entered a business college there and pursued a six months’ course. During this time he corresponded with defendant, and complained that his uncle and grandmother were not disposed to give him much assistance, and were far from being warm and generous towards him. The other uncle, previously mentioned, owned a large tract of land in southern Florida, and was getting ready to remove there and settle, and complainant desired to go with him. But he lacked the necessary means, and neither of his relations tendered any, nor attempted to help him obtain them. He wished to procure from $7o to $100, and expected on reaching Florida to get wages by laboring for his uncle, and imagined that he might in time succeed in getting a fruit farm for himself, and that possibly the defendant would finally join him. He suggested his desires and speculations to the latter, and spoke of one or two schemes for hiring the money. December 24th he went to Waterford, and visited defendant; and on the 27th the two went to Pontiac, and complainant there gave him a quit-claim deed of the homestead, and at the same time each executed a will in favor of the other. Complainant then returned to Detroit; but on the 7th of January, 1879, he again visited defendant, who at that time gave him $100. It was mutually understood 'that in consequence of the attitude of complainant’s relatives and the desire expressed by complainant to escape their inter-meddling and annoyance the existence of the deed should be kept from their knowledge until he should be away from them, and beyond their reach. Soon after the reception of the $100, his uncle was apprised of it, and was led to suppose it was an advance from defendant, and -that the latter had nothing to show for it, and he instructed complainant that it was not proper to transact business in that way, and that he must give defendant his note for the money. With a view of keeping the real transaction from his uncle and his other relatives, he at once executed a note and gave his uncle to understand that he would forward it. He subsequently cut his name off and sent the note, thus mutilated, to defendant. He explained to the latter how the note came to be made, and that liis purpose in forwarding it was that it might be represented that his uncle’s directions had been complied with. He observed, that of course he would not have the money to pay it on its coming due, and if his uncle or his grandmother should wish to pay it, it would be all right, and he would be $100 better off. These explanations were made by letter after complainant had gone south, which was on the 15th of January, 1879. They kept up a frank and cordial correspondence until the summer of 1879.
June 30, 1879, defendant sold the Waterford property, and received therefor $250 cash, a horse worth from $50 to $80, according to the testimony, and a house and lot in Detroit, said to be of the value of eight or nine hundred dollars, and on the 10th of August he married. Complainant almost immediately returned to Detroit, and in September he filed this bill. The case made by it, which was set forth under oath, cannot be misunderstood. It is in substance that the transaction covering the deed and the furnishing the $100, was exclusively an advance of money by defendant to be repaid, and a giving of security therefor by complainant, and was not intended to be, and in fact was not a sale nor a conveyance of complainant’s estate in the land. In support of this claim, and for the purpose of accounting for the form and appearance given to the transaction, the complainant makes this sworn representation in the bill:
“ Y our orator further shows that in the month of December, 1878, that he was in poor and failing health, and had been for several months prior thereto; that he became anxious to go to the State of Florida for the purpose of recovering the same, and to obtain employment there; that the said defendant advised and encouraged him to go to Florida, and offered to furnish him money to defray his traveling expenses, on conditions hereinafter mentioned, as your orator had no means of his own; that thereupon the said defendant stated to your orator, that if he would execute a conveyance of said premises to him he would advance to your orator the sum of $100 for the purpose aforesaid, and hold the same as security therefor: that said defendant further stated to your orator that if he executed said deed to him he would neither sell nor dispose’ of said premises ; that he would not record said deed until your orator had come into possession of other property, either by inheritance or otherwise, and that he only wanted said deed to secure himself for said advances in case of accident, or the death of your orator; that he would never marry again, and that upon his death the property shold revert to your orator, and that he, said defendant, would make his will in your orator’s favor for that purpose; and your orator further shows that said defendant used every argument he could to induce your orator to execute said deed, and resorted to every means to excite your orator’s sympathies. Amongst other things he stated in the most affecting manner, with tears in his eyes, that he was growing old ; that his working days were about over; that he was your orator’s dearest friend; that your orator’s other relations were unfriendly, and took no interest in your orator. Your orator further show’s that the said defendant is now about the age of forty-two years.
“ Your orator further shows that he was so filled with the idea of going south, and being ignoramt of the effect of executing such a paper as the defendant desired, and relying entirely upon the honesty of said defendant, as well as the said representations so made, and believing that the said conveyance was merely to secure the payment of the said $100 until his return from Florida, agreed to do as he desired, and thereupon on the 27th of December, 1878, he executed and delivered to said defendant a paper which he supposed was a mere security for said aa/oamce, but which he has since been informed and beUeves was am. absolute conveyamce of said premises, as a reference to the record thereof, in the office of the register of deeds for said Oakland county will show when produced and proven,” and “ your orator a/oers that he would not have executed such paper unless' he had supposed it was a mere security for said advances, and that, as he relied entirely on his said stepfather’s good faith and relations towards him, he took no advice or counsel as to the nature or effect of said paper.”
The answer positively denies every material matter here stated except the fact of the giving of the deed and the payment of the $100, and proceeding to give his version the defendant explains substantially that in view of all the circumstances, including the furnishing of the $100, and considering how large a proportion of the existing value of the homestead was owdng to defendant’s means, labor and management, and considering how long and well he had provided for complainant and his mother, the complainant avowed his purpose to recognize the defendant’s moral right byresolving it into legal interest through an absolute conveyance, and that he understandingly and freely gave the deed in execution of this purpose. The answer also sets up in substance that all the improvements were made by the defendant and without any extrinsic aid, and that it was expressly understood between himself and decedent that he should have a lien for his labor and expenditures.
The position of complainant not only as having the affirmative of the issue concerning the nature of the transaction between himself and the defendant, but also as insisting that the effect prima facie due to the deed is not the effect equitably due to it, subjects him to the burden of proof to show that the effect was actually intended to be as claimed. Howland v. Blake 97 U S. 624, 626; Haines v. Thomson 70 Penn. St. 434; 1 Jones on Mort. (2d ed.) § 326 and cases.
"Without losing sight of this consideration it may be well to pause a moment at this point and see how far these claims must be regarded as palpably untenable. In the first place it is clear enough that complainant’s profession of being ignorant of the difference between a deed and mortgage is not worthy of belief. It is not possible to read his correspondence without seeing that the statements in the bill on this subject have no foundation. When he executed the deed he must have known its nature and mode of operation as contradistinguished from the nature and mode of operation of a mortgage. Again, the proof in the case is ample to show that the representation made in the bill, of the state of his health and of the influence it had upon him to raise money to enable him to go to the South, is grossly exaggerated. In respect to what was said between the parties in the course of their arrangement for the conveyance and the payment of the money, there is no evidence except their testimony, and their statements on the subject are fatally conflicting. The representation by defendant that there was nothing in complainant’s condition of health to stimulate his desire to go to Florida is too broad and is not warranted by the evidence. There was just enough in his state of health to give somewhat more tone to the purpose which other considerations generated.
The claim that the improvements were all made by defendant or at his cost was not true. He admitted on the stand that more than $400 which his wife held as guardian was thus applied. Again, no proof has been offered to sustain the allegation that he was to have a lien for improvements. The result of this review is, therefore, that whilst the defend ant’s explanations are materially impeached, the case set forth by complainant is in part disproved, and in what remains is very much weakened. The actual transaction is left without any other direct explanation than is furnished by the papers and the account given by Brown and others as to what occurred when they were made; and the complainant is necessarily compelled to rely on the acknowledged incidents and on such other circumstantial indications as the case affords. And one considerable difficulty is that several matters are of equivocal import, and may be as well accounted for on one theory as another. For example, the parties were evidently bent on misleading complainant’s relatives in respect to the extent and true nature of their dealing, and their course and pretences in furtherance of this design may be as well credited to defendant’s theory as to that of complainant.
In applying this jurisdiction it is needful to proceed with great circumspection. The natural wcA prima facie effect of a conveyance expressing no condition, and regularly executed in the presence of attesting witnesses and duly acknowledged as an absolute deed, ought not to be controlled and qualified by oral evidence, and brought down to the effect due to a mere security, on a slight showing. The great current of authority is distinct in holding that the party thus seeking to modify the operation of the instrument and prove himself entitled against the terms of his own deed to an equity of redemption is not only bound to make out that the transaction was in truth and justice nothing more-than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind. Unless the testimony, say the Supreme Court of the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. Howland v. Blake, supra. And many cases use much stronger language. Bingham v. Thompson 4 Nev. 224; Zuver v. Lyons 40 Iowa 510; Schade v. Bessinger 3 Neb. 140; Stall v. City of Cincinnati 16 Ohio St. 169 ; Haynes v. Swann 6 Heisk. 560; Campbell v. Dearborn 109 Mass. 130. A very full reference to the authorities will be found in 1 Jones on Mortgages, ch. 8 (2ded.).
Another point worthy of attention may be noticed here. The complainant is confined to the ground of action on which he has founded his case. He is not permitted to say now that he misstated the transaction and that he admits that he meant to convey the land fully and absolutely, but that the vice he wishes to complain of is that the defendant induced him thereto by undue influence. This would be in direct contradiction of the positive allegations of the bill and contrary to the scheme and equity of the case. The very gist of the bill is that the transaction was in truth not a sale nor an absolute conveyance, but an arrangement having no other end than the obtainment by complainant of $100 by way of loan and the giving of security therefor.
In dealing with the facts their applicability must be observed. They can have no force except as they are pertinent to the case made by the bill and are fitted to help prove or disprove it, and hence the relations of the parties, in so far as they have that tendency, are worthy of consideration. Beyond that they are of no importance now. The case must be examined and determined with reference to the principles which are appropriate to it, and not under a doctrine which is only germane to a claim of a different nature. The circumstance that defendant was complainant’s stepfather — that they were close friends and mutual confidants — has been made conspicuous, and no doubt .it is worthy of attention on this issue. Still the bearing of the fact is not exclusively applicable to the theory of complainant. So far as it has any aptness to influence the case at all, its character as well fits it to be pressed into the support of defendant’s contention as into that of complainant. The argument is certainly admissible that it was a natural tendency of the relation to lead the complainant to espouse what was morally just and right towai’ds the defendant, and that the existence of the relation is consequently entitled to weigh in favor of the construction that complainant’s purpose was to make defendant the absolute owner of the little homestead, and not merely a mort gagee for the one item of $100 then or thereafter furnished. It is only necessary to read the correspondence to see that when the transaction took place the defendant held no ascendancy over complainant. The latter was about twenty-two years of age and was not destitute of self-sufficiency nor lacking of self-reliance. The glimpse afforded by the evidence of what occurred at the law office in Pontiac is pretty signicant in its indication that he was very far from being the weak and passive victim of the stronger will, superior intelligence and overreaching craft and influence of the defendant. The case, however, creates an impression that there was some competition for his partiality. The defendant appears to have taken pains to fix and preserve his attachment and to strengthen his dislike of his mother’s relatives, and they seem to have tried to dislodge his regard for defendant and induce him to side with them against the latter. The evidence that strong antipathies existed between defendant and his relations on the one side and the relatives of complainant on the other may be easily traced. It appears in some parts of the testimony which it undoubtedly colors. A careful scrutiny results in the opinion that neither complainant nor defendant has established any claim on the confidence of the court.
The evidence of admissions and declarations is conflicting and much of it comes from biased sources. Moreover, a portion of it, if not the most important, is equivocal. It would not disagree with the theory that the deed, while understood as a full transfer of ownership, and so meant, was intended to be concealed from complainant’s relatives, who, as both parties deshed, were to be misled in regard to what was actually done.
The cost to defendant for the improvements on the premises is a subject of dispute. The evidence is utterly conflicting, and it is also widely at variance in reference to the value of the place at the time of defendant’s marriage. The difficulty encountered in dealing with these matters is greatly enhanced by the fact that there was an extreme fluctuation in prices. The special expense which complainant caused defendant is not explained. That there was considerable can hardly be doubted, and there is ground for supposing that the actual outlay of defendant in expenses on the property for permanent objects, and in the support and assistance of complainant until he went south, may have been nearly if not quite equal to the cash value of the property in December, 1878. If such was the case there was a moral consideration sufficient to explain the transaction in harmony with the natural import of the deed. But whatever may be the truth in regard to this, it is sufficient that after rejecting whatever is not worthy of belief and judging as well as possible on the numerous contradictions, the matter available to make out the case and prove that the transaction was a giving of security is too slight and uncertain. It falls far short of what is required, according to the authorities, to authorize a court to decree that the intent the parties chose to manifest by their solemn deed is not the true one.
The decree should therefore be reversed and the bill be dismissed with the costs of both courts.
The other Justices concurred. | [
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Graves, J.
This is an amicable application to the Court to obtain an interpretation of an important part of Article 14 of the Constitution.
The question raised is whether that portion of the pledged specific taxes not required for interest on the educational funds, and which the treasury is to collect and bold for State indebtedness, and which bas now outgrown tbat indebtedness, is so controlled by the words of the Constitution that it must hereafter be allowed to keep accumulating in the treasury, not only until the whole debt is due in 1890, but until it is entirely extinguished, however remote the event, and notwithstanding the amount of accumulation may prove to be many times larger tlian the debt for tbe satisfaction of which the provision was intended.
In October last the State debt was $905,149.97 and the balance to the credit of the sinking fund was $1,208,895.27, and should the present practice continue of adding the residuum of the specific taxes, the amount in 1890 will probably exceed $3,000,000.
The attorney general, speaking on the side of the State treasurer, argues that the words of section one must be taken literally, and that they unavoidably require that the specified annual residuum of these taxes shall be added without interruption or abatement to the fund for the discharge of the State debt and interest, whether needed therefor or not, until they are extinguished.
The relator’s counsel, admitting the literal sense of the provision to be as represented, yet strongly contends that there are insuperable objections to the adoption of a literal meaning. lie argues that an attempt to carry out such a construction can end only in rendering the article hopelessly impracticable; that the case is one where it is indispensable to deviate from the literal import and to seek for and accept that ulterior sense which is called for by the end intended; that if this rule is observed all difficulties will disappear, and it will be found that the real object was to make sure provision for meeting the public obligations by means of a scheme imbedded in the Constitution, and that there was no ground or motive for a regulation to gather and impound a fund of indefinite amount, and which could not be put to any use connected with the object of the provision, and would most likely, under the theory of literal interpretation, be screened from any.other, and that an intention to effectuate such a state of things ought not to be imputed.
The question is one of high practical importance, but the ground of discussion is very narrow. It is fully opened by the statement of the points.
Neither the condition of the finances nor the state of public opinion in 1850 will facilitate a solution. It might be expected that the proceedings of the Convention would give some clue to the precise manner in which it was understood this section (§ 1, Article 14) should actually operate in the contingency which has occurred, but they do not. True, a member suggested that a surplus might arise, but the remark was made and understood evidently as a mere casual observation in the course of debate and too fanciful to be noticed, and it seems not to have been noticed.
There was much difference of opinion relative to the proper disposition of the specific taxes. Some thought they ought to be used exclusively to pay the interest on the State debt, and to cancel the principal. Others believed they should be devoted wholly to the primary school and other educational funds.
A further question was whether specific taxes from corporations in the Upper Peninsula should be included in the general disposition, or be so left that the legislature might, if it was deemed best, appropriate them, or a part at least, to local objects of necessity in that territory; and lastly, it was strenuously urged by several gentlemen, that certain corporations paying specific taxes and holding large amounts of property in particular localities, ought to be subject to municipal taxation in common with other property holders in the same vicinity.
The entire Convention was earnestly in favor of placing the educational system on a high and sure foundation, and the plan of free schools had the support of a large majority. It was believed by many of its supporters that full operation of the scheme would be much hastened by a liberal application of these taxes in favor of education, and they were anxious to make that the chief, if not the exclusive purpose to which they should be devoted. But this was resisted by those who contended that the State debt was to be preferred, and also by others who wished to leave the subject to legislation. The result was in effect a compromise.
It was ruled by the majority that the specific taxes on mining companies in the Upper Peninsula should be left to legisn tion, and that for the time being the interest accruing on the educational funds should be first paid out of the other specific taxes, and that what might remain, if anything, should be absorbed by the interest on the State debt, and by the debt itself, so long as it should' exist. The claim for local taxation on companies paying specific taxes was not embodied.
The Convention proceeded under the evident belief that the interest on the educational funds would so nearly consume the taxes that the residue would not be enough to make any serious impression on the principal of the State debt, and that its final extinguishment would ensue from other resources devised and contemplated by the Constitution. The expedient of a sinking fund as marked out in section two was viewed as being the main and efficient instrumentality for effacing the existing general debt. No one seems to have made a methodical calculation of probabilities respecting the time in which the debt, funded and fundable, and then being $2,529,872.87, would be paid under the scheme of the Convention. But all considered that its extinguishment could not be expected in less than a quarter of a century, and one gentleman observed that before it could be accomplished the Constitution would be again revised, and opportunity would be thus presented for contriving such a disposition of these taxes as might be deemed best. There were proposals that their application on the State debt should come to an end in 1852, in 1855, in 1865, and in 1880, and 1852 was agreed on. It was already understood that whenever such application should cease, they were to pass to the Primary School Interest Fund, and without being charged with the interest on the other educational funds. Some members who felt particular solicitude about this interest, and several who felt that these taxes, or at least a portion of them, had been devoted by the legislature to the payment of the State debt, were, as may be gathered from the proceedings, not satisfied with this arrangement. The latter in particular were apprehensive that so early a withholding the Whole of these taxes from application on the State debt, however meager the resource they might afford, and without reference to the forwardness of the means of payment through other channels, would appear like bad faith to the public creditors. 'After some consideration and the lapse of a short time, and at the instance of the chairman of the committee, the fixed date was dropped and the present phraseology inserted.
Turning from the debate to the final work of the Convention, it seems certain that as to the question before us the language was not cautiously chosen. The expressions in section one cannot be allowed to carry their literal sense without leading to confusion and involving various consequences too unreasonable to be defended ; and it would be an affront to common sense to suppose that any such result was intended. As argued by counsel, the extinguishment spoken of, if contemplated in the dry and strict sense of the word and in reference to the subject-matter, would be an actual satisfaction by means ■ of payment; and as nothing more could be applied in paying the debt than the amount of the debt, and nothing could be so applied in actual satisfaction before the maturity of the debt unless by the voluntary assent of the holders, and the full amount of the debt being already obtained in advance of its arrival at maturity, and the holders not consenting to receive payment in fact, the application of an accruing excess must be and remain naturally impossible.
The second section, which is closely associated in purpose with the first, required the legislature to create a sinking fund of $20,000 a year, commencing in 1852, with compound interest at six per cent., and an annual increase of at least five per cent, to be applied solely to the payment and extinguishment of the principal of the State debt, and declared it should “be continued until the extinguishment thereof.” This requirement, it was expected, would be met by taxation. H o other resources could have been contemplated.
. It was a matter of plain sense that whenever the sinking fund should come to be equal to the principal of the debt nothing would be left to which a further accumulation could possibly apply. Such would be the natural effect. The specification of the object and the express declaration that it should be used therefor would moreover bespeak a purpose to exclude whatever might be accumulated, from any different use. And it was not impossible that the fund might grow to an equality with the debt before the latter would mature and long before it would be possible to cancel every fraction of it.
Yet by the terms of the section literally expounded the process of accumulation was not to cease on the acquisition •of enough to satisfy the debt and on occasion of the complete ■exhaustion of the object, but was to be kept up so long as the debt, for any reason, accidental or otherwise, should remain uncancelled. Now, in devising this plan, was it the meaning of the Convention that after the obtainment of a ■sufficient sum to fully and effectually clear off the debt, and whilst holding the means on hand for actual application, there should be no pause, and the inflow' should be hence maintained with entire indifference to the fact of the fund being full already, and should be continued so long as a particle of the debt should happen to escape positive extinguishment ? If so, the conclusion could scarcely be avoided that there was a covert purpose in the Convention to create by vague provisions and under a deceptive color what, in effect, would be a second' fund not appointed to any use and of indefinite amount and enveloped in doubt respecting its legal availability even if admitted to be accessible without an •amendment of the Constitution. Grant that the literal sense is the true one, and the difficulties indicated are irrepressible. A fund must be drawn from the people for no other end than to be locked up in the treasury until the debt for which it is not needed is finally satisfied by other means, and in the interim, which cannot be measured, the Primary School Inter■est Fund must be deprived of the incalculable aids which would naturally flow from it if allowed to receive it. The same narrow sense being appropriated to the status of the accumulated excess, and the fund cannot escape being regarded as devoted by the Constitution to an object which, so far as concerns the possibility of application, has no •existence.
It is required that the entire amount brought in under the provision shall be “ applied solely to the payment and extinguishment of the principal of the State debt.” The-right to make use of the whole or of any part for any different purpose is excluded. But the amount necessary to take up the debt being on hand under the proper regulation, no-debt remains to receive the application. Speaking potentially, it is paid. Among the consequences, therefore, of a literal reading in the case actually before us, we see that the treasury must accumulate what in substancé is the same as-two funds, one to be the full equivalent of the State debt, being the clear and unquestioned object of the Constitution, and the other an anomaly without utility or object, involving loss to the community and burdening the treasury with care- and responsibility without any sound reason.
This view cannot be maintained, and being rejected, we have not far to seek the natural alternative. What was the-substantial object of the Convention as disclosed by the debates and evinced by the result, and what is the spirit and essence of the constitutional provision?
The final purpose, so far as it concerns our present inquiry to refer to it, was to make certain the preservation of the public faith and the punctual payment of the existing State debt, together with the interest. And as subsidiary to this end the State was placed under many restrictions to prevent it from running into new debts, or in any way impairing its ability to maintain financial independence and discharge its-obligations. And as the most pregnant parts of the policy directed to the end here mentioned, the Convention ordained the creation of the sinking fund, and as a sort of supplementary or superadded security, devoted to the same important object whatever remnant there might be of the specific taxes in question, after payment of the interest on the educational funds. Their eventual application exerted influence.
It was not difficult, in view of the various other provisions destined to facilitate the payment of the debt, for those who-made it a leading object to secure the permanent addition of these taxes to the Primary School Interest Fund, to accept as a. condition that full application to the fund should be deferred until such time as the means of discharging the State i debt should be in the treasury, and either waiting for it to mature, or waiting for the lawful evidences to be presented. But they would never have consented that such application should not only be delayed until the debt should be so met, but for such further and uncertain time as might elapse before the literal extinguishment of the last dollar of it. Against a condition not only .so impolitic and so uncalled for but so repugnant to common sense; they would have raised objections equally plain and decisive.
Further enlargement on the question is not deemed needful. The result reached is that there being no arrears of interest on the State debt in question, and the fund accumulated being sufficient for the payment of the principal, and being now held in the treasury applicable thereto and in readiness therefor whenever the creditors will receive it, any excess, apart from what shall be annually required to meet the annual interest accruing on the debt, must be held applicable under the Constitution, so long as there is no failure in the fund for the payment of the priiicipal, to the Primary School Interest Fund, and ought to be assigned thereto.
Marston, C. J. and Cooley, J. concurred.
Article XIV.
Section 1. All specific State taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the Primary School University, and other educational funds, and the interest and principal of the State debt, in the order herein recited, until the extinguishment of the State debt, other than the amounts due to educational funds, when such specific taxes shall be added to and constitute a part of the Primary School Interest Eund. The Legislature shall provide for an annual tax, sufficient, with other resources, to pay the estimated expenses of the State government, the interest of the State debt, and such deficiency as may occur in the resources.
Sec. 3. The Legislature shall provide by law a sinking fund of at least twenty thousand dollars a year, to commence in eighteen hundred and fifty-two, with compound interest at the rate of six per cent per annum, and an annual increase of at least five per cent, to be applied solely to the payment and extinguishment of the principal of the State debt, other than the amounts due to educational funds, and shall be continued until the extinguishment thereof. The unfunded debt shall not he funded or redeemed at a value exceeding that established by law in one thousand eight hundred and forty eight. | [
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] |
Cooley, J.
Tins is an action of ejectment. The plaintiffs claim title to the land in dispute as heirs at law of one Thorn. The defendant claims through a deed which he alleges was given by Thorn in his life-time to one Hamilton. He also claims by tax-title and by adverse possession for twenty years. Elaborate testimony was taken in the court below, at the conclusion of which the defendant would seem to have insisted that the plaintiffs had not proved their heirship, and also that by reason of a failure to suggest of record in due form the death of a plaintiff, the surviving plaintiffs were not in position to take judgment. In this state of the casé, after argument by counsel, the circuit judge addressed the jury as follows: “ G-entlemefi of the jury: I have this to say to you; only this and nothing more. The defendant is entitled to . your verdict.” The jury returned a verdict accordingly, and the whole case is now brought before us on exception to the charge.
This Court reviews the judgments of the circuit court in law cases on questions of law only. What question of law is involved in this charge of the circuit judge? Was he of opinion that the plaintiffs had given no evidence tending to the proof of their heirship ? If he had said that, we could have reviewed the evidence on that point, and should probably have had no difficulty in pointing out his error. Did he think adverse possession was satisfactorily made out ? If so, as that is a defense resting wholly upon facts, it is plain he should have taken the opinion of the jury, unless the facts were unmistakable in their import and were undisputed. Did he think the defendants had proved title out of Thorn through the alleged deed to Hamilton ? This again was a question of fact, and the existence of the fact was denied and vigorously contested. But we need not proceed from point to point in the case and endeavor to surmise on what ground the plaintiffs were turned out of court. The circuit judge has given us no light on that point, and the record can afford none.
What we are asked to do in this case is to examine an elaborate record in order to ascertain whether the plaintiffs made out such a case as entitled them to go with it to the jury, and if so, whether the defendant met it by any defense that was so entirely unquestionable as to leave to the jury no discretion to do otherwise than give him a verdict. In other words we are invited to review this case upon all the facts. It is sufficient for us to say in reply that the law has given us no such authority.
What the circuit judge should have done in this case, was to submit the evidence to the jury under proper instructions. If in his opinion the plaintiffs had given no evidence fairly tending to prove any essential point in their case, it was his privilege to direct the attention of the jury to that point, and advise them to render verdict accordingly. It was also his right and his duty to advise the jury upon the bearing of the evidence upon adverse possession, upon the alleged deed of Thorn to Hamilton, upon the tax-title, and upon any other point in the case arising upon the facts that might in any view be controlling. The jury would thereby be enabled to discharge their duty intelligently, and if a dissatisfied party shall then bring the case up for review, we shall have no difficulty in addressing our attention to the questions — and the only questions — that under the Constitution and laws we are at liberty to pass upon. It must be a very clear case indeed that will justify the judge in taking the case from the jury on the evidence, and he should never do so without specifying the particular ground or grounds which appear to him to justify it.
The judgment must be reversed and a new trial ordered. But as the result in the suit below was in the nature of a mistrial, no costs will be awarded.
The other Justices concurred. | [
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] |
Cooley, J.
This is a bill for divorce on the ground of extreme cruelty. The parties were married in October, 1874. In October, 1875, a child was born to them, and in 1877 complainant was pregnant a second time, and went to the house of her parents a few miles- away to remain until after confinement. The husband seems to have objected to this, but nevertheless went with her, and then returned to his own residence. When the second child was born she sent him word, but he did not come to see her, and in a few days she sent her father over to ascertain why he did not come. The father testifies that “ he. said we had undertaken to run his business, and we might continue to do so: he should not‘ run after her: she might go to the devil.” This was repeated, and as the father was going away he said if his wife was not back as soon as she could come he should commence legal proceedings. When this was reported to complainant she wrote him a reproachful letter, and he then went to see her. According to the evidence he commenced the conversation by saying he had just got a letter from her full of lies, and he had come to warn her that if she was not back before the next week’s paper was issued he should advertise her. He then turned to go away and she called him back, but this only made matters worse, for before lie left he by indirection charged her with incest with her father, intimated that the child just born was not his own, and said that if it had been it would have been born at home,, but now it had been delivered where it belonged. At this-time the wife was still confined to the bed. He actually went then, as he had threatened, and advertised her in the next issue of a local paper as having deserted him.
In the evidence produced nothing appears to justify or excuse the defendant’s conduct, unless it is to be found in the wife’s desire to be confined at her mother’s notwithstanding his wish that she should remain and be confined at home. They were then living with his parents, and there was nothing unnatural or unreasonable in her desire to be-with and have the assistance of her own mother. New men under like circumstances, it is to be hoped, would have made objections. It put him to little or no trouble, and to-no cost, and it did not interfere with ordinary household arrangements. His failure to visit his wife immediately on receiving notice of her confinement stands wholly unexcused, and his conduct when he did so fully justifies us in holding that it makes out a case of extreme and wanton cruelty, and would entitle the complainant to a divorce without any aid from the subsequent insult in the newspaper. • If she was a. decent and self-respecting woman — and there is no evidence to the contrary — she could not with comfort cohabit as wife with the defendant afterwards. Briggs v. Briggs 20 Mich. 20. The decree granting a divorce must be affirmed.
An order for temporary alimony was made before final decree, and an execution issued for its collection. This is supposed to be authorized by Public Acts 1877, p. 32, but that statute applies to permanent alimony only. The order, So far as it awards execution, will therefore be reversed. The circuit court reserved the question of permanent alimony, and the custody of the children, and the record will be remanded that they may be dealt with.
The other Justices concurred. | [
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The Court having received the mandate of the Supreme Court of the United States, the Court’s order of June 14, 1982, is vacated. The parties are directed to file supplemental briefs in 24 typewritten copies on the question whether the search of the automobile trunk was permissible under South Dakota v Opperman, 428 US 364 (1976), or the Michigan Constitution. Defendant-appellant’s supplemental brief and appendix, if necessary, are to be filed and served not later than October 3, 1983, and plaintiffappellee’s brief shall be filed and served not later than November 7, 1983. The briefs of the parties having been considered on February 29, 1984, the clerk is directed to place the case on the next available session calender for argument and resubmission. Former opinion reported: 413 Mich 461 (1982). Reversed and remanded by the Supreme Court of the United States: — US 103 S Ct 3469; 77 L Ed 2d 1201 (1983). | [
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Per Curiam:.
This case involves the towing of automobiles that are illegally parked. Michigan State University uses towing as a means of enforcing its parking regulations. The issue before us is whether the university’s towing ordinance is authorized by statute. We hold that it is not.
I
On February 22, 1979, the plaintiff’s husband parked her motor vehicle on the campus of Michigan State University. As the plaintiff has acknowledged from the beginning, the vehicle was parked in a lot that is reserved for vehicles with faculty and staff permits, despite the fact that the vehicle did not have such a permit. The Michigan State University Department of Public Safety ticketed the vehicle and directed that a private towing company remove the vehicle to an impoundment lot. In order to retrieve her vehicle, the plaintiff was required to pay a $20 towing fee.
The plaintiff then filed a complaint in the Court of Claims in which she asked that the ordinance under which the towing took place be declared void and that it be determined that the university was denying due process of law in towing vehicles without prior notice or an opportunity for a hearing.
Without answering the complaint, the university filed a motion for summary judgment which the Court of Claims granted. The three Court of Appeals judges split in their view of this case. Judge Beasley found neither a statutory nor constitutional flaw in the university towing practice that was before him. Judge Deneweth concurred in the result. Judge T. M. Burns dissented. He was persuaded by the plaintiff that the university had deprived her of due process of law. Molony-Vierstra v Michigan State University, 101 Mich App 353; 301 NW2d 18 (1980). Over Judge T. M. Burns’ dissent, the Court of Appeals denied a rehearing.
II
We find it unnecessary to decide the constitutional question which has been so ably debated by the Court of Appeals panel. Rather, we believe that the plaintiff is correct in contending that the university is without authority to enact the ordinance under which the towing took place.
It is clear, as Judge Beasley explained, that the Board of Trustees of Michigan State University has the general power and obligation to oversee the safe and responsible operation of the university. Const 1963, art 8, § 5; MCL 390.102, 390.106; MSA 15.1122, 15.1126. The specific authorization for the university to enact parking, traffic, and pedestrian ordinances is found in MCL 390.891; MSA 15.1120(51). This statutory provision requires a parking, traffic, or pedestrian ordinance to "be in substantial conformity” with the Uniform Traffic Code that the Department of State Police has promulgated pursuant to MCL 257.951; MSA 9.2651.
At the time of the incident that forms the basis of this litigation, § 2.5 of the Uniform Traffic Code read:
"A member of the police department may remove a vehicle from a street or highway to the nearest garage or other place of safety, or to a garage designated or maintained by the police department or otherwise maintained by this governmental unit, under the circumstances hereinafter enumerated. The necessary costs for the removal shall become a lien on the vehicle and the person into whose custody the vehicle is given may hold it until the expenses involved have been paid:
"(a) When a vehicle is left unattended on a bridge, viaduct, causeway, subway, tube, or tunnel where the vehicle constitutes an obstruction to trafile.
"(b) When a vehicle on a street is so disabled as to constitute an obstruction to trafile, and the person in charge of the vehicle is, by reason of physical injury, incapacitated to such an extent as to be unable to provide for its custody or removal.
"(c) When a vehicle is left unattended on a street and is so parked as to constitute a definite hazard or obstruction to the normal movement of traffic.
"(d) When a vehicle is found being driven on the streets or highways in such an unsafe condition as to endanger persons or property.
"(e) When a vehicle is left unattended on a street continuously for more than 48 hours and may be presumed to be abandoned.
"(f) When the driver of the vehicle is taken into custody by the police department and the vehicle would thereby be left unattended upon the street.
"(g) When removal is necessary in the interest of public safety because of fire, flood, storm, snow, or other emergency reason.
"(h) When a vehicle is found parked in a 'tow-away zone’ designated by the traffic engineer and properly signposted.”
The corresponding university ordinance read:
".03 — Impound vehicles. Members of the Department of Public Safety are hereby authorized to remove a vehicle from a street, highway or parking area to the nearest garage or other place of safety, or to a garage designated or maintained by the Department of Public Safety, under the circumstances hereinafter enumerated:
".031 — When any vehicle is left unattended upon any bridge, viaduct or causeway, or subway where such vehicle constitutes an obstruction to traffic;
".032 — When a vehicle upon a highway is so disabled as to constitute an obstruction to traffic and the person or persons in charge of the vehicle are by reason of physical injury incapacitated to such an extent as to be unable to provide for its custody or removal;
".033 — When any vehicle is left unattended upon a street or parking area and is so parked illegally as to constitute a definite hazard or obstruction to the normal movement of traffic;
".034 — When a vehicle is found being driven upon the streets and is not in proper condition to be driven;
".035 — When a vehicle is left unattended upon a street continuously for more than forty-eight hours and may be presumed to be abandoned;
".036 — When the driver of such vehicle is taken into custody by the Department of Public Safety and such vehicle would thereby be left unattended upon the street;
".037 — When removal is necessary in the interest of public safety because of fire, flood, storm, snow or other emergency reason;
".038 — When any vehicle is left unattended in any parking area under such circumstances as to be presumed to be abandoned;
".039 — When any vehicle is found in violation and where it is determined that there are three or more outstanding violation citations against the same vehicle. Such a vehicle shall not be released from impoundment until there is satisfactory evidence that all outstanding citations relating to the vehicle have been cleared with the Court;
".0310 — When any vehicle is found parked in an area specifically reserved for vehicles bearing a certain type of university permit or in a parking space specifically reserved for the exclusive use of one vehicle;
".0311 — When any vehicle is found parked so as to obstruct university operations or is parked on lawns or in shrubbery.”
Judge Beasley believed the university ordinance to be in "substantial conformity” with the Uniform Traffic Code:
"This portion of the ordinance is closely modeled after § 2.5 of the Uniform Traffic Code. While the ordinances include situations where parked vehicles can be towed which are not included in the Code, these modifications appear to be a reasonable attempt to adopt the Code — which was promulgated for use by cities, townships and villages — to the particular needs of Michigan State University. It is noted that the board of trustees is granted authority to enact parking ordinances in MCL 390.891; MSA 15.1120(51), and that the Uniform Traffic Code does not cover the subject of off-street parking. We find that the challenged portion of the ordinance is in 'substantial conformity’ with the Uniform Traffic Code and that there is a valid statutory basis for [its] adoption.” Molony-Vierstra, supra, 101 Mich App 361.
We disagree. While it is obvious that the ordinance is "closely modeled” on § 2.5 of the Uniform Traffic Code, we do not think that sufficient. To be "closely modeled” is not necessarily to be in "substantial conformity”. An examination of § 2.5 reveals eight lettered paragraphs describing situations in which towing is authorized. Each describes a situation in which the public is endangered, traffic is obstructed, or a vehicle could not be moved unless it were towed.
The final paragraphs of the ordinance, however, are quite different. Sections 46.039 and 46.0310 call for towing in situations quite unlike those found in the code. An ordinance that uses towing as a routine measure to aid in the enforcement of parking regulations is not in "substantial conformity” with a traffic code that authorizes towing of dangerous, obstructive, and abandoned vehicles.
In lieu of granting leave to appeal, we reverse the judgments of the Court of Claims and Court of Appeals and remand this case to the Court of Claims for further proceedings not inconsistent with this opinion.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred. _
Other courts have split on the question whether, and to what extent, the constitution protects persons from summary towing and subsequent impoundment. Compare, for example, Patterson v Cronin, 650 P2d 531 (Colo, 1982) and Sutton v City of Milwaukee, 672 F2d 644 (CA 7, 1982).
This language is reproduced in 1979 AC, R 28.1105. Section 2.5 has since been amended, primarily to provide detailed procedures for the disposition of impounded vehicles. The language now provides for removal "from public property or any other place open to travel by the public”. See 1981 AACS, R 28.1105(1).
Michigan State University Ordinances, 1974, § 46.03 et seq.
Judge Beasley’s opinion contains a statement that "the Uniform Traffic Code does not cover the subject of off-street parking”. The fact remains, though, that MCL 390.891; MSA 15.1120(51) provides that parking ordinances, as well as traffic and pedestrian ordinances, "shall be in substantial conformity” with the code.
Paragraph (h) says that one may tow a vehicle that is "found parked in a 'tow-away zone’ designated by the traffic engineer and properly signposted”. Neither the Legislature nor the Department of State Police could have intended to delegate to the traffic engineers of the state the unfettered discretion to designate any spot in the state as a tow-away zone. Read in pari materia with the preceding paragraphs, paragraph (h) could permit designation of a tow-away zone where there is a particular need. | [
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] |
Brickley, J.
These consolidated cases present the same legal issues. Appellants contend that a tenured teacher cannot be discharged for failing to pay agency service fees to an authorized bargaining representative. Alternatively, they contend, if discharge is permissible, resort must be had to the substantive and procedural provisions of the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. We disagree.
We find it best, as did the Court of Appeals, to consider this case in the factual setting of Parks. Anne B. Parks had been a teacher in the Detroit Public Schools since 1935. Beginning with the 1969-1971 contract, the Detroit Federation of Teachers, Local 231, AFT, AFL-CIO, the autho rized bargaining agent for the teachers, and the Detroit Board of Education included in their contract an agency shop clause. This contract provision required that all non-union teachers pay to the union "agency service fees” in an amount equal to the amount paid as dues by union members. The Detroit Board of Education was required to discharge employees who failed to pay. Al though Parks initially paid the fees under protest, after the 1973-1974 contract year she refused further payment. In March of 1978, at the request of the union, the Detroit Board of Education discharged her. Parks appealed to the State Tenure Commission, and the commission ordered her reinstatement on the ground that the procedures of the teacher tenure act were not followed. The Wayne Circuit Court, on appeal by both the De troit Board of Education and the union, reversed the decision of the commission. The Court of Appeals affirmed the decision of the circuit court. 98 Mich App 22; 296 NW2d 815 (1980). As relevant to the issues before this Court, the Court of Appeals held that a tenured teacher could be discharged for failing to pay agency service fees under a contract to that effect and that the teacher tenure act was both substantively and procedurally inapplicable. We granted leave to appeal to finally settle those aspects of this controversy. 411 Mich 970 (1981).
Section 10(1) of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., provides:
"It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9; (b) to initiate, create, dominate, contribute to or interfere with the formation or administration of any labor organization: Provided, That a public employer shall not be prohibited from permitting employees to confer with it during working hours without loss of time or pay; (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization: Provided further, That nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative; (d) to discriminate against a public employee because he has given testimony or instituted proceedings under this act; or (e) to refuse to bargain collectively with the representatives of its public employees, subject to the provisions of section 11.” MCL 423.210(1); MSA 17.455(10X1).
Our first concern is with the meaning of the phrase "condition of employment” in the proviso of § 10(l)(c). Appellants contend that discharge is not a permissible remedy available to the union and the employer when a public employee breaches the condition of employment of paying agency service fees.
In construing PERA, this Court has frequently sought guidance from federal court decisions construing analogous provisions of the National Labor Relations Act, 29 USC 151 et seq. See Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 636; 227 NW2d 736 (1975), app dis sub nom Crestwood Ed Ass’n v Bd of Ed, 427 US 901 (1976). The present language of PERA § 10(l)(c) is quite similar to the language presently used in § 8(a)(3) of the NLRA, even though the two sections have quite different histories.
As originally proposed in Congress, § 8(3) of the Wagner Act, 49 Stat 449, the predecessor to § 8(a)(3) of the present NLRA, merely forbade employers from discriminating against employees in order to encourage or discourage membership in a union. In Congress, the fear was expressed that this language standing alone would forbid the use of union-security agreements. See NLRB v General Motors Corp, 373 US 734; 83 S Ct 1453; 10 L Ed 2d 670 (1963). To allay that fear, the following proviso was added to § 8(3):
"Provided, That nothing in this [act] or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein”.
The consistent interpretation of the federal proviso has been that discharge is a permissible remedy for the breach of this contractual condition of employment. See, e.g,, Radio Officers’ Union of the Commercial Telegraphers Union, AFL v NLRB, 347 US 17; 74 S Ct 323; 98 L Ed 455 (1954); NLRB v Brotherhood of Teamsters, Local 85, 458 F2d 222 (CA 9, 1972); International Union of Electrical, Radio and Machine Workers, AFL-CIO Frigidaire Local 801 v NLRB, 113 US App DC 342; 307 F2d 679 (1962), cert den 371 US 936 (1962). See, also, Smigel v Southgate Community School Dist, 388 Mich 531, 546; 202 NW2d 305 (1972). (Opinion of Brennan, J.)
As enacted, PERA § 10(3) merely prohibited discrimination against employees on the basis of their membership in a union. The fears of Congress for the federal system were realized in Michigan when the lack of a provision authorizing some form of union-security device in § 10(3) led to this Court’s decision in Smigel v Southgate Community School Dist, supra, which struck down agency shop agreements as discriminatory. There, we found an agency shop agreement to be the practical equivalent of membership in a union. In direct response to this Court’s decision in Smigel, the Legislature authorized agency shop agreements "to require as a condition of employment that all employees in the bargaining unit pay” agency service fees.
We find it inconceivable that, in adopting the phrase "to require as a condition of employment” from federal law, the Michigan Legislature did not also intend to adopt the construction placed on that language by the federal courts. Even without this authority, we would find it difficult to allow any other interpretation than the obvious — "condition of employment” as used in § 10(l)(c) means that employment may be conditioned on payment of the agency service fees.
Appellants seek to avoid this conclusion by arguing that the phrase "condition of employment” is a term of art which can only be interpreted in light of PERA §§11 and 15. Section 11 refers to the recognition and responsibility of an exclusive bargaining representative and § 15 refers to the duty of the parties to bargain collectively "with respect to wages, hours, and other terms and conditions of employment * * *.”
"Terms and conditions of employment,” as used in these sections, it is obvious to us, refers to those things over which a union and an employer must bargain. Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974). Because breach of these "conditions” need not always result in discharge, appellants contend, neither should a failure to pay the agency dues result in discharge. We agree that discharge is not always a remedy for the violation of a condition of employment, but it is also clear that discharge can be a remedy, if so provided in the contract, as it was in this case. In other words, the remedy for an employee’s failure to pay agency fees is a "term and condition of employment” subject to collective bargaining.
Appellants also argue that the availability of remedies less harsh than discharge precludes a finding that discharge is a permissible remedy.
Appellants’ argument again misses the point. PERA § 10(l)(c) is permissive. Of course, nothing forbids the union and employer from agreeing on a less harsh remedy. A union and an employer could agree that agency service fees would be automatically deducted from each employee’s paycheck by the employer. MCL 408.477; MSA 17.277(7) autho rizes such deductions without the consent of the employee when "required or expressly permitted * * * by a collective bargaining agreement”. The collective-bargaining agreement here, however, does not require or expressly permit agency service fee deductions in the absence of a signed authorization by the employee. Instead, the collective-bargaining agreement here allows the employer to make an automatic payroll deduction "from the pay of each employee from whom it receives an authorization to do so * * *”. Appellant Parks has not authorized a payroll deduction.
Another remedy available to the union would be a civil action against the employee for the recovery of agency service fees. Again, such a remedy could be provided for in the collective-bargaining agreement. See, e.g., Eastern Michigan University Chapter of the American Ass’n of University Professors v Morgan, 100 Mich App 219; 298 NW2d 886 (1980). Where, as in the present case, the employer and the union have expressly provided for the remedy of discharge, we will not, as a matter of policy, require preliminary resort to the cumbersome remedies available in litigation. We conclude that a union and an employer may validly agree that employees who fail to pay agency service fees must be discharged. The next question which must be answered, however, is how such a discharge is to be accomplished.
Article IV, § 1, of the teacher tenure act, in relevant part, provides:
"Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided.” MCL 38.101; MSA 15.2001.
Appellants contend that the "reasonable and just cause” standard for discharge in the act can coexist with the proviso of PERA § 10, allowing discharge for failure to pay agency service fees. We disagree.
"This Court has consistently construed the PERA as the dominant law regulating public employee labor relations.” Rockwell v Crestwood School Dist, supra, p 629. See, also, Local 1383, International Ass’n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642; 311 NW2d 702 (1981); Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978). When there is a conflict between PERA and another statute, PERA prevails, diminishing the conflicting statute pro tanto. Local 1383, International Ass’n of Fire Fighters, AFL-CIO v City of Warren, supra.
The express language in the proviso of § 10 that "nothing * * * in any law of this state” shall preclude the inclusion of an agency shop clause in a collective-bargaining agreement alone provides sufficient grounds to find the "reasonable and just cause” provision of the teacher tenure act inapplicable. Furthermore, a review of the purpose of § 10 reveals a repugnancy between it and the reasonable and just cause standard of the teacher tenure act.
The purpose of PERA § 10(l)(c) is set forth in § 10(2):
"(2) It is the purpose of this amendatory act to reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require, if such requirement is negotiated with the public employer, that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative by paying to the exclusive bargaining representative a service fee which may be equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative.” MCL 423.210(2); MSA 17.455(10X2).
As the United States Supreme Court observed when comparing PERA § 10(l)(c) with its analogous federal provision, "[t]he desirability of labor peace is no less important in the public sector, nor is the risk of 'free-riders’ any smaller.” Abood v Detroit Bd of Ed, 431 US 209, 224; 97 S Ct 1782; 52 L Ed 2d 261 (1977). Imposition of a reasonable and just cause standard for discharge onto a contract provision requiring discharge for the failure to pay agency service fees does nothing to promote the legislative policy against free riders. It, instead, reads § 10(l)(c) out of PERA.
The reasonable and just cause standard of the teacher tenure act has been construed to forbid discharge unless the activity complained of bears a rational and specific relationship to a detrimental effect on the school and the students. See Beebee v Haslett Public Schools, 66 Mich App 718; 239 NW2d 724 (1976), rev’d on other grounds 406 Mich 224; 278 NW2d 37 (1979). The State Tenure Commission has held that the failure to pay agency service fees can never meet this standard. Jackson v Swartz Creek Community Schools, No 75-12 (State Tenure Commission, February 9, 1978). Imposition of the reasonable and just cause standard upon § 10(l)(c) of PERA would render it meaningless.
The primary purpose of the teacher tenure act is to maintain an adequate and competent teaching staff, free from political and personal interference. Boyce v Royal Oak Bd of Ed, 407 Mich 312; 285 NW2d 196 (1979). The act was not designed to cover labor disputes. In Rockwell, supra, this Court found that the substantive provisions of the teacher tenure act were inapplicable when a teacher was discharged under PERA § 6 for engaging in an unlawful strike. We found that the express language of PERA § 6 controlled over the reasonable and just cause standard of the teacher tenure act. PERA § 10 is likewise controlling.
Appellants, however, contend that even if the teacher tenure act is substantively inapplicable to the present case, the procedural aspects of the teacher tenure act must govern the discharge of a teacher, even when the discharge is for the failure to pay agency service fees authorized by PERA § 10. Appellants note that PERA § 10, unlike § 6, contains no procedure for discharging a teacher who fails to pay agency service fees. Appellants argue that the discharge procedure contained in the teacher tenure act is not repugnant to PERA § 10, and that, therefore, a discharge can only take place within the procedural confines of the teacher tenure act. Appellants thus distinguish Rockwell. Nevertheless, we find the procedural aspects of the teacher tenure act irrelevant to a discharge for failing to pay agency fees.
The procedures of the teacher tenure act are designed to protect a tenured teacher from discharge for improper reasons, reasons other than those of professional competency. Of necessity, the often subjective determination of a teacher’s competency must be carefully scrutinized. The teacher tenure act provides that prior to discharge a tenured teacher is entitled to written notice of the reasons for discharge at least 60 days prior to the end of the school year. A formal hearing must be held before the controlling board within 45 days. MCL 38.102, 38.104; MSA 15.2002, 15.2004. An appeal by right to the State Tenure Commission is provided. MCL 38.121; MSA 15.2021. We cannot conclude that the Legislature intended to also use this elaborate procedure for the simple purpose of determining whether a teacher has, in fact, paid his agency service fees. More importantly, we find that a procedural scheme does exist to protect a teacher from a factually incorrect claim that the agency service fees have not been paid.
A union that improperly demands that an employee be discharged for the failure to pay agency service fees commits an unfair labor practice under PERA §§ 10(l)(c) and 16(a). An employer that improperly discharges an employee for failure to pay agency service fees likewise commits an unfair labor practice. The Michigan Employment Relations Commission has exclusive jurisdiction over unfair labor practices. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977). A teacher who contests the claim that his agency service fees were not paid, or in some other way contests the legality of the service fee, is free to file an unfair labor practice complaint. See, e.g., Teamsters Local 328, 1976 MERC Lab Op 166; Garden City School Dist, 1978 MERC Lab Op 1145. The procedure set forth in PERA for the adjudication of unfair labor practices before MERC is more than sufficient to satisfy any due process concerns that appellants may have.
We hold that neither the substantive nor the procedural provisions of the teacher tenure act apply when a teacher is discharged, pursuant to a contractual authorizing provision, for failure to pay agency service fees. The decision of the Court of Appeals, as far as it is not inconsistent with this opinion, is affirmed.
The case is remanded to the Wayne Circuit Court for further proceedings not inconsistent with this opinion.
Williams, C.J., and Kavanagh, Levin, and Ryan, JJ., concurred with Brickley, J.
Cavanagh and Boyle, JJ., took no part in the decision of this case.
The lengthy and precedent-setting history of these cases was set forth by the Court of Appeals. We reproduce its summary here for the convenience of the reader:
"Parks was originally a plaintiff in Warczak v Detroit Bd of Ed, one of the consolidated appeals herein, which was filed in November of 1969 in the Wayne County Circuit Court. Plaintiffs in that case sought a ruling that the agency shop clause * * *, included for the first time in the collective bargaining agreement for the years 1969-1971, was contrary to various provisions of the United States and Michigan Constitutions and to statutes of the State of Michigan, including the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The Warczak complaint also alleged that a 'substantial part’ of the agency shop fees required of nonmembers of the DFT were not being used solely for collective bargaining purposes but for 'activities and programs which are economic, political, professional, scientific and religious’. In January, 1970, Judge Kaufman granted defendants’ motion for summary judgment for failure to state a claim. The order stated that the challenged agency shop clause 'is valid and of full force and effect according to its terms’, and that the clause 'does not contravene the Constitution of the United States or of the State of Michigan or the statutes of the State of Michigan’, including the PERA and the tenure act. Because of its decision in Smigel v Southgate Community School Dist, 388 Mich 531; 202 NW2d 305 (1972), the Supreme Court vacated this judgment and remanded to the circuit court for further proceedings in December of 1972. 389 Mich 755 (1972).
"Meanwhile, in 1970, the complaint in Abood v Detroit Bd of Ed was filed and was consolidated with Warczak for the remand proceedings. In response to Smigel, the Legislature amended § 10 of the PERA specifically to allow a public employer and an exclusive bargaining representative to include an agency shop clause in a collective bargaining agreement. Defendants’ renewed motion for summary judgment was granted by Judge Kaufman in December of 1973. This order stated that the 1973 amendment to PERA authorized agency shop clauses, both prospectively and retrospectively, and restated the holdings of the 1970 order. The plaintiffs in Warczak and Abood appealed the 1973 summary judgment to this Court, asserting error in the circuit court’s retroactive application of the PERA amendment and in the finding that the agency shop clause was constitutional. In Abood v Detroit Bd of Ed, 60 Mich App 92; 230 NW2d 322 (1975), this Court reversed the circuit court’s holding that the PERA amendment applied retroactively. We also held that the agency shop clause was constitutional but that plaintiffs could not be compelled to pay for non-collective-bargaining activities. However, as plaintiffs had failed to list the objectionable activities with specificity, they had failed to state a cause of action on this issue. When review of this decision was denied by the Michigan Supreme Court, plaintiffs appealed to the United States Supreme Court. While that appeal was pending, the complaint in Kyes v Detroit Bd of Ed was filed. In an opinion issued May 23, 1977, the United States Supreme Court agreed with the Court of Appeals that the agency shop clause is constitutional insofar as fees are used for collective bargaining purposes but unconstitutional to the extent that it compels plaintiffs to support other political or ideological activities of which they do not approve. Abood v Detroit Bd of Ed, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). The Supreme Court held that plaintiffs had adequately stated a cause of action as to these objectionable activities, and the Court of Appeals decision was vacated and remanded for further proceedings upon the issue.
"After remand to circuit court in September of 1977, the case was consolidated with Kyes. Also in September, 1977, plaintiffs moved for an order allowing escrow payments of the agency shop fees. This motion was denied, and no appeal was taken. In February of 1978, the circuit court granted defendants’ motion to dismiss Anne Parks and Genevieve Repeta as plaintiffs for failure to pay agency shop fees. In March, 1978, Parks was discharged from her employment by the Board for failure to pay the fees, and she appealed her discharge to the State Tenure Commission. Repeta apparently retired at this time. In April, 1978, defendants filed a 'Motion for Partial Accelerated and Summary Judgment of Dismissal, On Remand, Nunc Pro Tunc’, seeking reaffirmance of the circuit court’s prior orders of December, 1973, and February, 1978. On August 16,1978, Judge Kaufman issued an order granting defendants’ motion which included the following findings:
"1. The 1973 PERA amendment prospectively authorized agency shop clauses;
"2. The agency shop clauses contained in the agreements between the Board and the DFT 'were valid and of full force and effect according to their terms, effective June 14, 1978’;
"3. The agency shop clause does not contravene the United States or Michigan Constitutions or any statute of the State of Michigan including the PERA and the tenure act, among others;
"4. The tenure act is inapplicable, proeedurally and substantively, to termination of teachers for noncompliance with an agency shop clause; and
"5. Plaintiffs Parks and Repeta are dismissed as parties plaintiff for failure to pay agency shop fees.
"The circuit court retained jurisdiction over the issues of whether or what portion of agency shop fees had been used for constitutionally objectionable purposes and whether the agency shop clause was enforced prior to 1973, when it was authorized. However, on the same day, August 16, 1978, Judge Kaufman also issued a stay of the circuit court proceedings pending exhaustion of internal union procedures for refund of the fees and denied plaintiffs’ renewed motion for escrow of the fees. Leave to appeal from these orders was applied for and denied by this Court in October of 1978.
"Plaintiffs now appeal from the August 16, 1978, order granting partial summary judgment, especially paragraph 4 thereof, which they claim was never a part of the prior judgments of the circuit court and therefore never properly within its subject matter jurisdiction. As this appeal has now been consolidated with the Parks appeal and we decide the res judicata effect of Abood on Parks, we find it unnecessary to address the issue of jurisdiction in Abood, as the issue of the applicability of the tenure act was properly before the circuit court in Parks. We also find it unnecessary to deal with the issue of whether Parks was properly dismissed as a plaintiff for lack of standing because of her failure to pay the fees. The other issues raised in this case will be discussed and decided in the factual context presented in Parks. ” Detroit Bd of Ed v Parks, 98 Mich App 22, 46-48, fn 24; 296 NW2d 815 (1980).
The Court of Appeals conclusion that the 1973 or 1978 summary judgments issued in Abood were not res judicata in Parks has not been raised in this Court and is not considered. Also not raised or considered is the propriety of the trial court’s dismissal of Parks from the Abood case.
An agency shop agreement requiring the payment of agency service fees is a particular type of union security device. Such agreements provide that all employees represented by a union, regardless of whether they are union members, must pay a service fee to the union. Non-union member fees are equal to the amounts paid by union members as dues. Agency shop agreements have been held constitutional by the Supreme Court of the United States. Abood v Detroit Bd of Ed, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977). In contrast, a "union shop” agreement not only requires the payment of dues, but also requires that the employee become a member of the union. "Union shop” agreements are expressly authorized under Michigan law for the private sector. MCL 423.14; MSA 17.454(15). No such "union shop” authorization exists for the public sector. See Smigel v Southgate Community School Dist, 388 Mich 531; 202 NW2d 305 (1972).
The following provisions from the 1977-1979 contract are applicable to Parks:
"C. Union Membership Dues or Agency Shop Service Fees
"1. All employees employed in the bargaining unit, or who become employees in the bargaining unit, who are not already members of the Union, shall, within sixty (60) days of the effective date of this Agreement (as to present employees), or within sixty (60) days of their date of hire (as to future employees), become members, or in the alternative, shall as a continuing condition of employment, pay to the Union each month a service fee in an amount equal to the regular monthly Union membership dues uniformly required of employees of the Board who are members of the Union.
"2. The Board upon receiving a signed statement from the Union indicating that the employee has failed to comply with this condition shall immediately notify said employee that his/her services shall be discontinued at the end of sixty (60) days, and shall dismiss said employee accordingly.
"3. An employee who shall tender or authorize the deduction of membership dues (or service fees) uniformly required as a condition of acquiring or obtaining membership in the Union, shall be deemed to meet the conditions of this Article so long as the employee is not more than sixty (60) days in arrears of payment of such dues (or fees).
"4. The Board shall be notified, in writing, by the Union of any employee who is sixty (60) days in arrears in payment of membership dues (or fees).
"5. If any provision of this Article is invalid under Federal or State law, said provision shall be modified to comply with the requirements of said Federal or State law.
"6. The Union agrees that in the event of litigation against the Board, its agents or employees arising out of this provision, the Union will co-defend and indemnify and hold harmless the Board, its agents or employees for any monetary award arising out of such litigation.
"7. The Board shall deduct from the pay of each employee from whom it receives an authorization to do so the required amount for the payment of Union dues or Agency Shop service fees. Checked-off authorization for Union dues or Agency Shop service fees which were executed prior to the execution of this Agreement shall remain of full force and effect. Checked-off dues or fees, accompanied by a list of employees from whom they have been deducted and the amount deducted from each, and by a list of employees who had authorized such deductions and from whom no deduction was made and the reason therefore [sic], shall be forwarded to the Union office no later than thirty (30) days after such deductions were made. Employees who have not authorized check-off of Union dues or Agency Shop service fees may pay such dues or fees semi-annually, in advance, directly to the Union, not later than thirty (30) days after the employee’s first work day each semester.
"8. The Board shall inform all present employees within thirty (30) days of the opening of the school year, and future employees and employees returning from leave within thirty (30) days of hire or return, of their obligations under this section; provided that the failure of the Board to so inform shall not be a defense to any employee who has failed to comply with the provisions of this section. The Board shall continue to notify the Union of all new hires, and returns from absence or leave, and separations.”
We express no opinion as to whether we would reach different conclusions on the basis of the language in previous collective-bargaining agreements between the Detroit Board of Education and the union. | [
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Levin, J.
These cases, consolidated on appeal, concern the standard for determining the validity of zoning which prevents the extraction of natural resources. In both cases, the Court of Appeals upheld zoning regulations which would prevent the extraction of natural resources without considering whether "very serious consequences” would result from the extraction. We reaffirm the rule of Certain-teed Products Corp v Paris Twp, 351 Mich 434; 88 NW2d 705 (1958), that zoning regulations which prevent the extraction of natural resources are invalid unless "very serious consequences” will result from the proposed extraction.
I
A. Clare Silva and Karen J. Silva purchased an 80-acre parcel in an area zoned for specialized farming and single-family residences. The Silvas intended to use this property to strip mine for gravel. The Silvas’ property is surrounded by agricultural, residential, and undeveloped property.
The Silvas filed two applications for rezoning with the township zoning authorities, but their applications were denied. In their second application, the Silvas proposed several ways in which they would attempt to minimize any adverse effects of their operations, including limiting mining to ten years, regrading, and recontouring the property at the conclusion of the mining operations to make it suitable for farming or home development, fencing, using stockpiles as visual and sound buffers, and restricting the extraction to a 46-acre area.
After their unsuccessful efforts to obtain rezoning, the Silvas filed an action in the Kent Circuit Court. Judgment was entered in favor of the township, and the Court of Appeals affirmed.
The Ottawa Silica Company, intending to mine silica sand, purchased 31 acres in an area zoned for residential use, adjacent to land which it already mines. The south end of Brownstown Township, where this property is located, remains basically rural and undeveloped except for one large subdivision. Two or three homes are directly across from the property.
The township denied a request for reclassification. Ottawa Silica then commenced this action in the circuit court. The court found that:
"The resource to be mined is a unique type of silica sand, which, because of its qualities of being both round and white, is particularly valuable for foundry use and the manufacturing of fine crystal. There is no other deposit of such sand in this country at this relatively shallow level underground, which means that it can be mined more economically than if it were deeper under the ground, and hence can be sold at a most competitive price.”
Approximately 49% of the parcel is within a flood plain and cannot legally be built upon. The court ruled the zoning unconstitutional insofar as it applied to the portion of the land west of a stream bisecting it. The Court of Appeals reversed.
II
This Court has recently reaffirmed that a zoning ordinance must be reasonable to comport with the requirements of substantive due process. Zoning ordinances are presumed to be reasonable, and a person challenging the ordinance has the burden of proving otherwise. These appeals concern the standard to be employed in determining reasonableness where the zoning would prevent the extraction of natural resources.
A
Zoning regulations seek to achieve a land use which serves the interests of the community as a whole. Because of the important public interest in extracting and using natural resources, this Court has applied a more rigorous standard of reasonableness when the zoning would prevent the extraction of natural resources.
This Court first noted that zoning which prevents the extraction of natural resources involves different considerations than zoning regulations generally in North Muskegon v Miller, 249 Mich 52, 57; 227 NW 743 (1929), which concerned a zoning ordinance preventing the drilling of oil wells:
"The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one’s property, through zoning ordinances, unless some very serious consequences will follow therefrom.”* ** (Emphasis supplied.)
In Certain-teed Products, supra, p 467, this Court reaffirmed that zoning would not be sustained unless very serious consequences would result from the mining operations:
"To sustain the ordinance in such case there must be some dire need which, if denied the ordained protection, will result in 'very serious consequences.’ ”
We again reaffirm the "very serious consequences” rule of Miller and Certain-teed.
Natural resources can only be extracted from the place where they are located and found. Preventing the mining of natural resources located at a particular site prevents all use of those natural resources. As the United States Court of Appeals for the Sixth Circuit said in Village of Terrace Park v Errett, 12 F2d 240, 243 (CA 6, 1926):
"There is * * * a substantial difference between an ordinance prohibiting manufacturing or commercial business in a residential district that may be conducted in another locality with equal profit and advantage, and an ordinance that wholly deprives the owner of land of its valuable mineral content.”
Preventing the extraction of natural resources harms the interests of the public as well as those of the property owner by making natural resources more expensive. Because the cost of transporting some natural resources (e.g., gravel) may be a significant factor, locally obtained resources may be less expensive than those which must be transported long distances. It appears that the silica sand involved in one of the cases here on appeal is unique in quality and location.
In most cases, where natural resources are found the land will be suited for some other use and can reasonably be devoted to that use. Unless a higher standard is required, natural resources could be extracted only with the consent of local authorities or in the rare case where the land cannot be reasonably used in some other manner. The public interest of the citizens of this state who do not reside in the community where natural resources are located in the development and use of natural resources requires closer scrutiny of local zoning regulations which prevent development. In this connection, we note that extraction of natural resources is frequently a temporary use of the land and that the land can often be restored for other uses and appropriate assurances with adequate security can properly be demanded as a precondition to the commencement of extraction operations.
B
In both Ottawa Silica and Silva, the Court of Appeals held that Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974); Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976); Ed Zaagman, Inc v City of Kentwood, 406 Mich 137; 277 NW2d 475 (1979), and Turkish v City of Warren, 406 Mich 137; 277 NW2d 475 (1979), were controlling. Those cases were concerned with the validity of zoning ordinances in general. There was no consideration of and, hence, they could not have overruled, the "very serious consequences” rule of Miller and Certain-teed. Kropf, supra, 161-163, reaffirmed prior case law, and Kirk, supra, 434, 439, 441, and Zaagman-Turkish, supra, 153, reaffirmed Kropf. In reaffirming prior case law, the Kropf-Kirk-Zaagman-Turkish decisions did not dis-affirm this aspect of prior case law. The Court of Appeals erred in disregarding the rule of Miller and Certain-teed and in concluding that it had been overruled sub silentio.
C
Our reaffirmance of the "very serious consequences” rule does not imply that zoning which prevents the extraction of natural resources is unreasonable. Zoning regulations are presumed to be reasonable and a person challenging zoning has the burden of proving otherwise. The party challenging the zoning has the burden of showing that there are valuable natural resources and that no "very serious consequences” would result from the extraction of those resources.
The Court of Appeals failed to apply the "very serious consequences” standard in determining the validity of the zoning in the instant cases. We reverse and remand both cases to the Court of Appeals for further consideration.
Fitzgerald, C.J., and Kavanagh and Williams, JJ., concurred with Levin, J.
Silva v Ada Twp, 99 Mich App 601; 298 NW2d 838 (1980).
"A plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of legislation, in this case a zoning ordinance, which has, in the final analysis, no reasonable basis for its very existence. The power of'the city to enact ordinances is not absolute.” Kropf v Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974).
See also Robinson Twp v Knoll, 410 Mich 293, 312; 302 NW2d 146 (1981).
Kropf, supra, 158; Ed Zaagman, Inc v City of Kentwood, 406 Mich 137, 157; 277 NW2d 475 (1979).
In Euclid v Ambler Realty Co, 272 US 365, 387; 47 S Ct 114; 71 L Ed 303 (1926), the United States Supreme Court said that zoning ordinances must be justified "in some aspect of the police power, asserted for the public welfare”. In Alderton v Saginaw, 367 Mich 28, 33; 116 NW2d 53 (1962), this Court said that zoning ordinances must bear a "direct and substantial relation to the * * * public health, safety, morals, and general welfare, of the community as a whole.”
See also Pioneer Trust & Savings Bank v Village of Oak Park, 408 Ill 458, 465; 97 NE2d 302, 305 (1951), quoted with approval in Midland Electric Coal Corp v Knox County, 1 Ill 2d 200, 209; 115 NE2d 275, 281 (1953):
"If the gain to the public by the ordinance is small when compared with the hardship imposed upon the individual property owner by the restrictions of zoning ordinance, no valid basis for the exercise of police power exists.”
and Herman v Village of Hillside, 15 Ill 2d 396, 406; 155 NE2d 47, 52 (1958):
"In addition to the factor of the loss to the owners, there must also be taken into consideration the loss to the public generally.”
"In the administration of our zoning laws, while we seek to protect our homes, we must likewise take into account the public interest in the encouragement of full employment and vigorous industry.” Certain-teed Products Corp v Paris Twp, 351 Mich. 434, 465; 88 NW2d 705 (1958) (separate opinion of Edwards, J.).
See also Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957).
In Kropf, supra, p 158, this Court considered the validity of zoning in general and held that parties attacking an ordinance must prove: "first, that there is no reasonable governmental interest being advanced * * * or secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.”
In Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976), this Court summarized the principles discussed in Kropf:
“1. '[T]he ordinance comes to us clothed with every presumption of validity.’
"2. '[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * *. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.’
"3. 'Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.’
"4. 'This court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.’ ” (Citations omitted.)
Kropf did not advert to zoning that would prevent the extraction of natural resources.
Before this Court’s opinion in Kropf, the Court of Appeals had adopted a "preferred use” doctrine. This doctrine was first articulated by the Court of Appeals in Bristow v City of Woodhaven, 35 Mich App 205; 192 NW2d 322 (1971), which concerned the validity of a zoning ordinance preventing the construction of a mobile-home park. The Bristow Court found that the proposed use of the land had acquired a "favored” status in the law, thus shifting the burden to the municipality to justify the exclusion:
"[wjhere a proposed use has acquired a 'favored’ status and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion.” Bristow, supra, p 212.
In Kropf, this Court disapproved Bristow, but did not address or consider the prior decisions of this Court holding that zoning which prevents the extraction of natural resources would not be upheld unless very serious consequences would result from the proposed extraction.
Kirk, Zaagman, and Turkish likewise did not consider or overrule the "very serious consequences” rule. These cases simply applied the rules of Kropf in contexts not involving natural resources. Kirk and Zaagman concerned zoning ordinances preventing the development of a mobile-home park and Turkish concerned an ordinance preventing the use of plaintiff’s property for multiple family dwellings. | [
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] |
Ryan, J.
In this case we are called upon to reconsider the so-called "misdemeanor cutoff’ rule of People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975). After careful consideration, we conclude that the policies behind the Chamblis rule would be better served by a more flexible approach to lesser included offense instructions on misdemeanors. Whenever an adequate request for an appropriate misdemeanor instruction is supported by a rational view of the evidence adduced at trial, the trial judge shall give the requested instruction unless to do so would result in a violation of due process, undue confusion, or some other injustice. While the Chamblis rule may be applied to jury instructions given within 30 days after the release of this opinion, adherence to the standards set forth in this opinion shall be required thereafter.
I
The defendant, Robert Lee Stephens, was charged with the felony of breaking and entering with intent to commit a felony or larceny. The evidence presented to the jury established that on the afternoon of April 27, 1978, the apparently intoxicated defendant was observed repeatedly falling into the path of traffic on Fenton Road, a busy thoroughfare located in Flint, Michigan. The police were called in order to protect the safety of the defendant. Before the police arrived, the defendant kicked in the glass door of his family doctor’s office, which was closed, and crawled through the opening. The defendant was apprehended by the police while still in the building. He was found in possession of a pad of the doctor’s prescription blanks and $56 crumpled into his pocket, the exact amount of money which the doctor later testified was missing from his cash box. When questioned by the police the next day, the defendant stated that he went to the doctor’s office to obtain money, but didn’t remember too much because of his consumption of "downers” and alcohol. The defendant did not dispute the allegation of breaking and entering into the doctor’s office. Indeed, those facts were admitted during closing argument by defense counsel. The defense theory was that the defendant lacked the requisite intent to commit larceny. The evidence of intoxication was used to bolster the argument that Mr. Stephens lacked the intent to commit larceny.
At the close of the proofs, defense counsel requested a lesser included offense instruction on the misdemeanor of entering without permission. Al though expressing dissatisfaction with the "misdemeanor cutoff rule”, the trial judge felt compelled by our Chamblis opinion to deny the request. The jury was instructed that it must choose one of two possible verdicts: guilty as charged, or not guilty. The defendant was found guilty, and his motion for a new trial was denied. On appeal, the Court of Appeals affirmed in an unpublished per curiam opinion. While feeling constrained to follow Cham-blis, the Court of Appeals also urged reconsideration of that policy rule. We accepted that invitation by granting leave to appeal. 411 Mich 974 (1981).
II
In Chamblis, the Court advanced several theoretical reasons in support of a misdemeanor cutoff rule: to prevent harassment of the defendant, to serve the cause of justice by limiting compromise, and to avoid confusing the jury with too long a list of instructions. The policy against prosecutorial harassment is never implicated where, as in this case, the defendant requests the lesser included misdemeanor instruction. Nor is the situation so fraught with potential for prosecutorial abuse that a prophylactic rule is required. Of course, in those instances where it appears on the record that the prosecutor has abused his discretion in requesting instructions on lesser included misdemeanors, the trial judge may properly refuse the instructions. Cf. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974).
While any lesser included offense instruction creates the possibility of a compromise verdict, this only serves to caution against the indiscriminate use of such instructions and does not justify an arbitrary limitation according to the maximum term of confinement. The Chamblis rule went far beyond precluding a misdemeanor assault and battery instruction in a first-degree murder case. It precluded an instruction on a lesser included misdemeanor offense, even if the value of the property involved was the only element separating the misdemeanor from the felony, and even if the value of the property was actually in dispute. See People v Miller, 406 Mich 244; 277 NW2d 630 (1979), where the Chamblis rule was modified to allow such a misdemeanor instruction.
We fail to see how a dispute over the value of property can be distinguished from a dispute over the defendant’s assaultive intent, see People v Joeseype Johnson, 407 Mich 196, 274; 284 NW2d 718 (1979) (opinion by Levin, J.), or a defendant’s intent with regard to marijuana, see People v Potter, 115 Mich App 125; 320 NW2d 313 (1982); People v Vasher, 97 Mich App 372; 296 NW2d 30 (1980); or the defendant’s level of intoxication, see People v Harold Johnson, 96 Mich App 652; 293 NW2d 664 (1980); People v Pipkin, 93 Mich App 817; 287 NW2d 352 (1979). Instead of continuing to erode the Chamblis rule on a crime-by-crime basis, we are of the view that the rulé should be abrogated.
From the defendant’s point of view, a misdemeanor lesser included offense instruction may serve the cause of justice by preventing a felony conviction unsupported by the jury’s belief of guilt beyond a reasonable doubt. From the prosecutor’s point of view, a defendant should not be granted immunity from prosecution for misdemeanors simply because the defendant’s conduct might also be characterized as a more serious felony. The fact that the prosecutor may have overestimated the strength of his or her case does not justify an acquittal for any misdemeanors that may have been committed as well. The requirement that there be a "realistic relationship” between the offense charged and the offense returned by the jury would require prescience on the part of the prosecutor.
The goal of avoiding confusing the jury with too long a list of instructions is an important one. However, we are satisfied that the limitations imposed on misdemeanor instructions in this opinion will suffice to limit the number of such lesser included offense instructions. In addition, we would note that less confusion should result from a number of lesser included offenses all rationally supportable by the evidence than from an equal number of lesser included offenses not supportable by any rational view of the evidence. See People v Lovett, 396 Mich 101; 238 NW2d 44 (1976); People v Kamin, 405 Mich 482, 500; 275 NW2d 777 (1979).
Our abandonment of the rigid misdemeanor cutoff rule was presaged by our unanimous opinion in People v Cazal, 412 Mich 680; 316 NW2d 705 (1982). In Cazal, we refused to apply the Chamblis rule to bench trials, holding that a judge sitting as a trier of fact was well-equipped to avoid confusion and improper compromise verdicts. Implicit in that decision was the view that if the possibility of confusion and improper compromise could be reduced in jury trials, the rationale for the Chamblis rule would disappear. We believe that the following standard will provide, in practice, the advantages that the theoretical Chamblis approach failed to provide during its seven-year trial, and we, therefore, overrule that part of Chamblis setting forth the "misdemeanor cutoff” rule.
Ill
The lesser included offense rule for misdemeanors we adopt in this case is derived from the federal rule established in United States v Whitaker, 144 US App DC 344; 447 F2d 314 (1971). The Whitaker case is remarkably similar to this case in that an apparently intoxicated defendant battered down the door of a dwelling house and entered. Once inside, defendant Whitaker did not take or disturb anything. The occupants detained the defendant until the police arrived and arrested him. The defendant was charged with first-degree burglary, for which a conviction could be obtained upon proof of an unlawful entry with intent to commit a crime. The principal issue raised by defense counsel was the lack of intent to commit a crime; the defendant testified at trial that he was looking for his friend Williams. The trial court rejected the defense request for an instruction on the lesser included offense of unlawful entry, and the jury returned with a verdict of guilty as charged.
The first condition for a lesser included offense instruction is a proper request. This requirement is not novel or extraordinary; except for cases involving first-degree murder, see People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), the trial judge may, but need not, sua sponte instruct on lesser included offenses. People v Henry, 395 Mich 367; 236 NW2d 489 (1975); People v Johnson, 409 Mich 552, 562; 297 NW2d 115 (1980). However, the prosecutor or defense counsel must adequately apprise the trial judge of exactly what lesser in- eluded offenses are being requested; a general request for "the lesser included offense” will not suffice. People v Herbert Smith, 396 Mich 362; 240 NW2d 245 (1976).
The second condition is that there must be an appropriate relationship between the charged offense and the requested misdemeanor. As the Whitaker court put it,
"there must also be an 'inherent’ relationship between the greater and lesser offense, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.” 144 US App DC 349.
This requirement is also familiar to our jurisprudence. In People v McDonald, 9 Mich 150, 153 (1861), the Court found the offense of assault, or assault and battery, "included” within an indictment charging felonious assault. In People v Ora-Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), the Court referred to "the common purpose of the statutes”, which protected the same "societal interest”. See also United States v Johnson, 637 F2d 1224, 1234 (CA 9, 1980); United States v Stolarz, 550 F2d 488 (CA 9, 1977), cert den 434 US 851; 98 S Ct 162; 54 L Ed 2d 119 (1977), adopting the "inherent relationship” test. This test is required to prevent misuse of lesser included offense instructions by the defense. Whitaker, p 349.
The third condition is that the requested misdemeanor must be supported by a rational view of the evidence adduced at trial. This means that not only must there be some evidence which would justify conviction of the lesser offense, but that
"proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.” Whitaker, p 347. (Footnote omitted.)
In refusing to extend the rule of Ora Jones, supra, and People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), reh den 396 Mich 976 (1976), to lesser included misdemeanors, we are in accord with both Michigan and federal precedent. In Michigan, the duty to instruct on lesser included offenses has long been held to depend upon the evidence. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971); People v Patskan, 387 Mich 701; 199 NW2d 458 (1972); People v DeMeaux, 194 Mich 18; 160 NW 634 (1916); People v Beverly, 108 Mich 509; 66 NW 379 (1896). Similarly, the federal decisions hold that
"a lesser offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v United States [351 US 131; 76 S Ct 685; 100 L Ed 1013 (1956)]; Sparf v United States, 156 US 51, 63-64; 15 S Ct 273; 39 L Ed 343 (1895). In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v United States, supra; Sparf v United States, supra, pp 63, 64.” Sansone v United States, 380 US 343, 349-350; 85 S Ct 1004; 13 L Ed 2d 882 (1965).
In the recent case of Hopper v Evans, 456 US 605; 102 S Ct 2049; 72 L Ed 2d 367 (1982), the Court held that instructions on lesser included offenses in a capital case were not required when the undisputed evidence negated the possibility that the jury could have rationally returned a verdict of guilty of a lesser included non-capital offense. The case of Beck v Alabama, 447 US 625; 100 S Ct 2382; 65 L Ed 2d 392 (1980), was distinguished on the basis that the jury could have rationally found the defendant guilty of a lesser included offense.
In adopting a rational basis test for lesser misdemeanor offense instructions, we do not wish to be understood as adopting such a rationale for lesser included felony offense instructions. People v Ora Jones is still controlling thereon.
The fourth condition for an instruction on a lesser included offense is that if the prosecutor requests the instruction, the defendant must have adequate notice of it as one of the charges against which he is expected to defend. While the trial court should consider the possibility of adjournment in the event of genuine surprise, "in an extreme situation * * * the defendant would not have been permitted to fairly develop his case and defend himself and thus would be denied a fair trial”. People v Ora Jones, supra, p 395 (concurring opinion by Williams, J.). In such a case, the trial judge should deny the requested instruction. However, the doctrine of mutuality should not prevent the defendant from requesting a lesser included offense instruction that the prosecutor would be barred from requesting. Whitaker, supra, 144 US App DC 351.
The fifth condition is that the requested instructions not result in undue confusion or some other injustice. As noted in Cazal, supra, an important policy seeks to avoid confusing the jury by presenting it with an unmanageable number of possible resolutions. This policy should be implemented on a case-by-case basis, with the circuit judge exercis ing his or her discretion "to see to it that the case goes to the jury in a clear and intelligent manner”. People v Murray, 72 Mich 10, 16; 40 NW 29 (1888).
We cannot anticipate from this appellate remove the multitude of legal and factual variations presented to the trial courts. We are satisfied, therefore, to vest the circuit and recorder’s court judges with substantial discretion in determining whether the cause of justice would be served by giving lesser included misdemeanor instructions on the facts of any given case.
On the facts of the case before us, we see no particular confusion or injustice that would have resulted from giving the misdemeanor instruction. Indeed, the circuit judge expressed his willingness to do so but for the Chamblis policy rule. We are confident that trial judges will give lesser included misdemeanor instructions freely when justice requires; consequently, the decision to grant or deny a requested lesser included misdemeanor instruction will be reversed on appeal only upon a finding of an abuse of discretion.
IV
The final issue that merits discussion is whether our abrogation of the Chamblis rule entitles this defendant to a new trial, or whether our decision should be purely prospective. The case most closely on point is People v Miller, supra, where we adopted an exception to the Chamblis rule effective 30 days after the decision in that case. As in Miller, the defendant in this case would have been entitled to the requested instruction but for the Chamblis rule. Miller, fn 2. However, we are persuaded that the better rule is to require adherence to the rule we announce today for instructions given more than 30 days after the release of this opinion.
First, we must emphasize that the trial judge and the Court of Appeals correctly applied the Chamblis rule in deciding this case. It would be anomalous to argue that the lower courts erred in following applicable precedent, especially when to do so would reward disregarding the opinions of this Court in favor of personal preferences. Secondly, we must recognize that both the Chamblis rule and the standards adopted in this case rest not on the constitutional rights of the defendant, but on this Court’s supervisory power over the courts of Michigan. Const 1963, art 6, § 5. In abandoning the Chamblis rule, we do not find that the defendant’s due process rights have been violated, especially in light of the relatively strong evidence of this defendant’s larcenous intent. Finally, the Linkletter factors point to prospective application. The widespread reliance on the Cham-blis rule, the fact that the defendant’s guilt was fairly determined by a jury, and the adverse impact of retroactive application convince us that prospective application is the more prudent course.
Accordingly, our decision in People v Chamblis, supra, is overruled in part. The defendant’s conviction is affirmed.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Ryan, J.
Riley, J., took no part in the decision of this case.
"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.”
The new rules may be applied to any instructions given on or after the release date of this opinion.
MCL 750.110; MSA 28.305, provides in relevant part:
"Any person who shall break and enter with intent to commit any felony, or any larceny therein, any tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any of such buildings or any unoccupied dwelling house, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years.”
"[Defense Counsel]: We don’t deny that there was a window broken. We don’t deny that Mr. Stephens was in that office, but we do say that he had no intention to commit a larceny when he went in there.”
MCL 750.115; MSA 28.310:
"Any person who shall break and enter, or shall enter without breaking, any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, or any cottage, clubhouse, boat house, hunting or fishing lodge, garage or the out-buildings belonging thereto, or any other structure, whether occupied or unoccupied, without first obtaining permission to enter from the owner or occupant, agent, or person having immediate control thereof, shall be guilty of a misdemeanor: Provided, That this section shall not apply to entering without breaking, any place which at the time of such entry was open to the public, unless such entry has been expressly denied.
"This section shall not apply in cases where the breaking and entering or entering without breaking were committed by a peace officer or some one under his direction in the lawful performance of his duties as such peace officer.”
" 'Does not the policy against harassment and a continual siege of accusations and charges seem to have some application?’ Comment, 57 Nw U L Rev 62, 73 (1962). We answer in the affirmative.” Chamblis, p 428.
"We are convinced that the cause of justice is not well served by convicting of assault and battery a defendant charged with murder. As a matter of policy people who commit serious crimes should be punished for those offenses, and those who did not commit such serious crimes should not be tried for those crimes only to be found guilty of a much lower offense.
"At some point, both the defendant and the prosecution should be able to prevent any further potential for 'compromise’.” Chamblis, p 428.
Justice Coleman’s concurring opinion, p 431, noted that without the rule, jurors would be exposed to a
"foreseeably lengthened 'laundry list’ of offenses and jurors * * * would be required to absorb possibly dozens of pages of instructions regarding the many offenses possible under the 'cognate’, 'related’ or 'allied’ offense theory of [People v] Ora Jones [395 Mich 379; 236 NW2d 461 (1975)].”
The decisions of this Court in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975); People v Lovett, 396 Mich 101; 238 NW2d 44 (1976); and People v Kamin, 405 Mich 482, 500; 275 NW2d 777 (1979), require certain lesser included felony instructions even if such instructions are not supportable by any rational view of the evidence, confuse the jury, and invite juror compromise on issues such as identity that should not be compromised. However, this case is not an appropriate vehicle to reconsider those decisions.
"Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other —precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v United States, 412 US 205, 212-213; 93 S Ct 1993; 36 L Ed 2d 844 (1973).
Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), applied in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971); People v Rich, 397 Mich 399; 245 NW2d 24 (1976); People v Young, 410 Mich 363; 301 NW2d 803 (1981). | [
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Ryan, J.
In this public utility rate case, we address a relatively simple, but important, procedural question:
Whether an order of the Michigan Public Service Commission granting "partial and immediate” rate relief under MCL 460.6a; MSA 22.13(6a), is a "final decision or order” within the meaning of the Administrative Procedures Act and Const 1963, art 6, § 28.
We hold that it is not, reverse the judgment of the Court of Appeals, and remand the matter to that Court for further consideration.
I
In July of 1977, The Detroit Edison Company filed an application with the Michigan Public Service Commission for a permanent rate increase of 122.3 million dollars. Its petition was accompanied by a written motion for a "partial and immediate” rate increase of 69.9 million dollars.
A request for interim rate relief, as a petition for a "partial and immediate” rate increase is generally known in public utility litigation, is specifically authorized by MCL 460.6a; MSA 22.13(6a), and is intended to enable a utility to obtain a partial and immediate rate order to meet its increased costs during the time its petition for a permanent rate increase is being contested before the commission and considered by it. _
Detroit Edison began the presentation of its case before the commission on September 26, 1977, after first giving notice to the public and interested parties within the service area affected, as is required by subsection (1) of § 6a. The presentation and cross-examination of Edison’s case took approximately 40 days of hearing and concluded on November 29, 1977. Some three weeks later, on December 21, 1977, the commission filed its staff report recommending that Edison be granted a partial and immediate rate increase of 37.9 million dollars. A hearing on the motion for the interim relief was held on January 4, 1978, at which time the commission’s staff report was presented, and its sponsor, Charles W. Geyer, testified in support of the recommendation and was cross-examined. The only other testimony had been offered by Edison’s witness, Richard C. Viinikainen. All par ties, including the plaintiffs, were afforded the opportunity to file briefs and make oral argument concerning the interim rate request. The plaintiffs were not allowed, however, to present any evidence, it being the judgment of the hearing officer that they were not entitled to do so. That ruling was later confirmed by the commission, which held that § 6a "does not provide for submission of evidence by intervenors prior to the commission’s ruling on interim relief’.
By its February 17, 1978, order granting in part the motion for partial and immediate revenue relief, the commission granted Edison an immediate revenue increase of 35.4 million dollars which it found to be necessary to protect Edison from "harmful and unreasonable loss of revenue” while the petition for permanent rate relief was under consideration. The commission ordered that the 35.4 million dollars be produced by a uniform surcharge to all of the utility’s customers of .96 mills per kilowatt hour. The order required that Edison post a bond sufficient to cover a possible refund to its utility customers, in the event the interim rate increase was later determined to be excessive.
The plaintiffs, industrial energy users, filed an application for rehearing before the commission on March 8, 1978. They registered no objection to the amount of the rate increase, but strongly protested the commission’s formula for producing the revenue. The plaintiffs claimed that a flat uniform surcharge to all classes of utility customers was an inequitable distribution of the interim rate burden, and that each of the classes of the utility’s customers should be required to absorb only that percentage of the interim rate increase which corresponds with the permanent rate assigned to each.
Under the existing rate structure, the industrial plaintiffs paid lower rates per kwh than did residential customers. The flat rate surcharge authorized by the interim order meant that industrial users would be paying a greater proportion of the rate increase than if the surcharge were a percentage increase of previous rates. In fact, the .96-mill surcharge increased the rates to the domestic customer class approximately 2.15%, to the commercial class rates approximately 1.99%, and to the industrial class of users about 3%. While the percentage differential is small, it reflects a substantial sum of money for the industrial users. The plaintiffs, for example, allege that they paid $138,-000 more per month under the flat rate surcharge of the interim order than they would have paid had an equal percentage increase been imposed on all customer classes.
Although it is this rate design dispute which is at the heart of this litigation, we do not now address the matter further because our disposition of this appeal directs that the issue be considered on remand by the Court of Appeals.
The industrial users’ request for rehearing was denied, and on September 28, 1978, the commission issued a final order dissolving a temporary rate increase and granting Edison a permanent revenue increase in excess of $83,792,000 annu ally. No refund of any collections under the partial and immediate rate increase order was ordered and no appeal of any provision of the final order was taken by any party.
The plaintiffs filed suit in the Ingham Circuit Court attacking the commission’s orders granting partial and immediate relief and denying the utility users’ motion for rehearing. The first count of the plaintiffs’ complaint alleged a violation of § 85 of the Administrative Procedures Act, MCL 24.285; MSA 3.560(185), in that the flat rate surcharge was not supported by "competent, material and substantial evidence on the record as a whole or any portion thereof’. The second count of the complaint alleged a violation of Const 1963, art 6, §28, in that the flat rate surcharge was not supported by "competent, material and substantial evidence on the whole record” and that "in fact there was no evidence to support the rate design” of the order. The third count, apparently based on MCL 462.26; MSA 22.45, alleged that the challenged interim rate orders were "arbitrary, unreasonable, capricious, an abuse of discretion and unlawful”.
In an opinion dated October 24, 1978, the learned circuit judge held that the challenged orders were not "final” within the meaning of § 85 of the APA, and thus not subject to review under the "competent, material and substantial evidence” test of that section, or of Const 1963, art 6, §28. The circuit judge then considered and rejected the plaintiffs’ claim under MCL 462.26; MSA 22.45 that the rate design of the partial and immediate rate increase was confiscatory, unreasonable, or violative of due process. Upon a stipulation by the parties that the trial court’s opinion disposed of all the issues in the case, summary judgment was entered in favor of the commission on December 13, 1978.
On appeal, the Court of Appeals held that the commission’s order for partial and immediate rate relief was a "final decision or order” within the meaning of §85 of the APA, reversed the judgment of the circuit court, and remanded to the commission for further proceedings to be conducted in compliance with § 85 of the APA. The Court of Appeals did not decide whether the circuit judge was correct in holding that the flat rate surcharge was not "unlawful or unreasonable” within the meaning of MCL 462.26; MSA 22.45, resolution of that question being unnecessary in view of its decision concerning the applicability of § 85 of the APA.
We granted leave to appeal and directed the parties to include among the issues to be briefed whether the commission’s order granting partial and immediate relief is a "final decision or order” subject to the requirements of § 85 of the APA and Const 1963, art 6, § 28.
II
The significance of the stated question is that if an order for a "partial and immediate” rate increase, pursuant to § 6a, is a "final decision or order of an agency” under § 85 of the APA, it must be supported by findings of fact and conclusions of law in accordance with the fullness of form and content mandated by § 85, and "supported by and in accordance with * * * competent, material and substantial evidence” on the "record as a whole”. Similarly, Const 1963, art 6, § 28 requires that "[a]ll final decisions * * * of any administrative * * * agency [be] supported by competent, material and substantial evidence on the whole record”.
A
The plaintiffs contend that the detailed findings of fact and conclusions of law required by § 85 of the APA to support a "final decision or order” were not made by the commission in this case and that, in any event, the interim rate relief order is not supported by competent, material and substantial evidence on the whole record.
We do not decide whether the interim order, and particularly the rate design, has adequate eviden-tiary support in the record, however, because we confine our holding to the determination that the partial and immediate rate order is not a "final order” within the meaning of § 85 of the APA and Const 1963, art 6, § 28, and thus need not comply with their requirements.
In concluding that the commission’s order is not a "final decision or order” within the meaning of § 85, we recognize that the word "final”, in the context of appealability, is an "abstruse and infinitely uncertain term”. Its meaning, for purposes of this litigation, cannot be determined merely by examining its etymology and settling upon an acceptable dictionary definition as though the word were an adjective disassociated from any specific context. The expression "final decision or order” takes its meaning, in the usage involved in this case, from the context in which it is employed in § 6a and in light of a common-sense appreciation of what the Legislature intended the idiom to mean, had legislative thought been given to the specific question before us.
The plaintiffs argue that the finality of any rate decision should be determined by the effect of the commission’s order. Since the order challenged here had the immediate and significant effect of requiring plaintiffs to pay a substantially higher electric rate, with the concomitant loss of interest of some 20% per annum on those funds, or suffer the shutoff of their electric power, it is claimed that the order should have been immediately ap- pealable as of right under § 85 of the APA, and thus must have been "final”.
We think there are two answers to that contention:
Firstly, without deciding the matter, we observe that it appears unlikely that review of the commission’s permanent rate order in this case would not have provided an adequate remedy in the event the partial and immediate order later proved to be inappropriate, since the interim order required Edison to post bond to guarantee a source for refunds if the order was later found to be excessive. Any "appropriate refunds”, which might later be thought to have been warranted, might well have included a refund with interest for the period of time Edison held any funds that it should not have collected. This Court has recognized, in dicta, the propriety of a full refund, with interest, if a regulated utility collects funds under a preliminary injunction ultimately held to be unlawful. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624, 640-643; 209 NW2d 210 (1973); see also General Telephone Co of Michigan v Public Service Comm, 341 Mich 620, 632-633; 67 NW2d 882 (1954). There appears to be no logical reason why the commission may not predicate the grant of immediate rate relief on a bond to insure refunds with interest if requested to do so, and if appropriate.
Secondly, the order for partial and immediate relief is immediately reviewable as of right, without qualifying as a "final decision or order”.
The plaintiffs argue that a "final” order is ap-pealable as of right; that orders of the MPSC fixing a rate are appealable as of right, Attorney General v Michigan Public Service Comm, 392 Mich 660; 221 NW2d 299 (1974); MCL 462.26; MSA 22.45; and that, therefore, the order setting partial and immediate rates in this case is a "final” order for APA purposes. The invalidity of that apparent effort at syllogistic reasoning, however, is in the fact that an order fixing a rate is immediately appealable not because it is final, but because a specific statute grants a right to appeal from any rate order, whether interlocutory or final. MCL 462.26(a); MSA 22.45(a) provides:
"Any common carrier or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services, may within 30 days from the issuance of such an order and notice thereof commence an action in the circuit court in chancery for the county of Ingham, against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates fixed are unlawful or unreasonable.” (Emphasis added.)
The Court of Appeals reasoned that a partial and immediate order is "final” from the perspective of the utility because it limits the utility’s revenue until a new rate structure is approved and that "[f|or the sake of consistency, an interim order should not be final as against a utility which may not secure retroactive rates at a later date and not final for another aggrieved party which seeks relief. That haphazard application of § 85 would only confuse the commission’s operations”. 94 Mich App 694, 700; 290 NW2d 54 (1980). In the sense in which the notion of finality is used here, we find nothing inherently inconsistent with an order being "final” as to one party but not another, or for one purpose and not another. More important, an order is not necessarily "final” as to the utility simply because it has immediate and irreparable efiect. Certainly, it is true that if the APA applied, an aggrieved utility might well obtain leave to appeal on the basis of the fact that the' proscription against retroactive ratemaking makes appeal from the permanent order an inadequate remedy. MCL 24.301; MSA 3.560(201). But that is not the case before us. In any event, irreparable harm to a utility, in the sense of a prohibition against retroactive ratemaking, alone cannot make an otherwise interlocutory order "final” within the meaning of § 85 of the APA if that were not the legislative intention.
B
There are several reasons which suggest that it is not the intention of the Legislature that a § 6a order for partial and immediate relief is a "final order” as that expression is employed in § 85 of the APA and Const 1963, art 6, § 28.
The text of § 6a, which is set forth in footnote 1, is organized into three subsections. Only subsection (1) deals with the subject of partial and immediate rate orders and by its plain language contemplates that such an order is to be entered only during the pendency of the petition for a permanent rate change. The Legislature declared in subsection (1) (see fn 1) that an interim order is to be issued "upon written motion” and in the "dis cretion” of the commission, and is to be issued "pending the submission of all proofs by any interested parties” on the permanent rate change request. Both the language used to describe the conditions for the issuance of an interim order and its secondary and incidental place in the context in which it is found in subsection (1) suggests that the "partial and immediate” order is intended to be interlocutory, intermediate, and emergency relief, not required to be sustained at the time of issuance by the same quality of procedural process and substantive proof as is required by § 85 to support a "final” permanent rate order.
In subsections (2) and (3) of § 6a there is reference to a "final decision” five times. There is no reference to a "final decision” at all in the subsection (1) language dealing with a partial and immediate rate order, suggesting strongly that partial and immediate relief is something other than a "final decision”. The language of subsections (2) and (3) calls for the adoption of "rules and procedures” for processing utility rate change requests to enable the commission to "reach a final decision * * * within a period of 9 months from the filing thereof’. That language plainly refers to a petition for permanent relief, and contrasts sharply with the subsection (1) authorization for an "immediate” rate order "pending the submission of all proofs” which is not described as a final decision, suggesting an intended distinction. While subsection (1) does provide that interested parties are to be afforded a "full and complete hearing” on the motion for partial and immediate relief, the context of the provision forcefully suggests that it was the intent of the Legislature to provide an expedient, more summary, and less exhaustive hearing for the issuance of an interim rate order than for the issuance of a final order. If the more formal and detailed requirements of § 85 of the APA for a "final decision or order” were applicable, interested parties would be entitled to "an opportunity to present evidence and argument on issues of fact”. MCL 24.272(3); MSA 3.560(172X3). While such a requirement would be ideal, it would convert the motion-predicated interim rate relief request into a full-blown petition proceeding which would be pr'ocedurally indistinguishable from the permanent rate request procedures which § 6a contemplates may last for as long as nine months.
Because in our judgment the commission is required to conduct a less exhaustive hearing before granting partial and immediate rate relief "pending the submission of all proofs by interested parties”, its discretion in granting such relief is to be reviewed upon a less demanding standard of review: the "unlawful or unreasonable” test of MCL 462.26(a); MSA 22.45(a). As we have said, part of the significance of the claim that a "partial and immediate” rate order is a final decision is the fact that, by definition, a final decision must be based upon "competent, substantial and material evidence” on the whole record. Const 1963, art 6, § 28. Section 6a(l) expressly provides, however, that the decision upon the "motion” for interim relief is to be made "pending submission of all proofs” and, therefore, necessarily before "the whole record” exists. It is obvious that if the interim order is to be entered before • the whole record is made, it cannot be reviewable upon a standard of "competent, material and substantial evidence on the whole record”.
We are satisfied that the availability of immediate review under the "unlawful or unreasonable” test of § 26 is sufficient to protect the interests of both the utilities and utility customers alike and, at the same time, comply with the intent of the Legislature that the interim rate order be subject to prompt judicial scrutiny. Further protection, of course, is provided by way of an appeal from any final order of the commission which fails to direct payment of refunds when they are justified. If the parties had proposed the inclusion of such a remedy in the final order in this case, and the commission denied the payment of any refunds warranted by the facts, the plaintiffs could have appealed.
Finally, we must disagree with the fear expressed by the Court of Appeals that "the entire review scheme would be rendered a nullity” because the entry of "final” orders would render appeals from partial and immediate orders moot. While appeals by utilities of interim orders may be mooted because of a superseding final order and the ban against retroactive ratemaking, that is not always the case. See Michigan Bell Telephone Co v Public Service Comm, 85 Mich App 163, 165-167; 270 NW2d 546 (1978), Iv den 405 Mich 822 (1979), which, while not involving an interim order, addressed the same mootness argument. In any event, as to the plaintiffs in this case, it is clear that our determination that the partial and immediate rate order in question is not a "final decision or order” does not moot their appeal as of right under § 26 as embodied in count III of their amended complaint.
The circuit judge considered and rejected plaintiffs’ count III claim that the partial and immediate order was "unlawful or unreasonable”. Because of its disposition of the case, the Court of Appeals failed to address this issue and, thus, never reached the crucial dispute between the parties: whether the rate design of the interim order was valid.
We therefore reverse the decision of the Court of Appeals and remand the matter to that Court for consideration of plaintiffs’ appeal under § 26. We do not retain jurisdiction.
No costs. A public question is involved.
Fitzgerald, C.J., and Kavanagh, Williams, Coleman, and Levin, JJ., concurred with Ryan, J.
We burden the opinion with the reproduction of the entire text of § 6a because our resolution of the stated issue requires an appreciation of the context in which certain language of the section is used.
"(1) When any finding or order is sought by any gas, telephone or electric utility to increase its rates and charges or to alter, change or amend any rate or rate schedules, the effect of which will be to increase the cost of services to its customers, notice shall be given within the service area to be affected. When such utility shall have placed in evidence facts relied upon to support its petition or application to so increase its rates and charges, or to so alter, change or amend any rate or rate schedules, the commission, pending the submission of ail proofs by any interested parties, may in its discretion and upon written motion by such utility make a ñnding and enter an order granting partial and immediate relief, after first having given notice to the interested parties within the service area to be affected in the manner ordered by the commission, and after having afforded to such interested parties reasonable opportunity for a full and complete hearing: Provided, That no such finding or order shall be authorized or approved ex parte, nor until the commission’s technical staff has made an investigation and report: And provided further, That any alteration or amendment in rates or rate schedules applied for by any public utility which will result in no increase in the cost of service to its customers may be authorized and approved without any notice or hearing.” (Emphasis added.)
"(2) The commission shall adopt such rules and procedures for the filing, investigation and hearing of petitions or applications to increase or decrease utility rates and charges as the commission finds necessary or appropriate to enable it to reach a final decision with respect to such petitions or applications within a period of 9 months from the filing thereof. This section or any other law does not prohibit the incorporation of fuel or purchase gas adjustment clauses in rate schedules.
"(3) If a final decision has not been reached upon a petition or application to increase or decrease utility rates within the 9-month period, the commission shall give priority to such case and shall take such other action as it finds necessary or appropriate to expedite a final decision. If the commission fails to reach a final decision with respect to a petition or application to increase or decrease utility rates within the 9-month period following the filing of such petition or application, the commission, within 15 days, shall submit a written report to the governor and to the president of the senate and the speaker of the house of representatives stating the reasons a decision was not reached within the 9-month period, and the actions being taken to expedite such decision. The commission shall submit a further report upon reaching a final decision providing full details with respect to the conduct of the case, including the time required for issuance of the commission’s decision following the conclusion of hearings.”
Commission order of February 17, 1978, granting in part motion for partial and immediate revenue relief.
The plaintiffs-appellees point out that upon issuance of its September 28, 1978, order, "[tjhe record in this case was not closed, but left open to consider further rate increases as a result of 'the system availability incentive provisions and implementing the "other operations and maintenance” expense indexing system’.” Despite the record being "left open” for that purpose, we are satisfied that, for purposes of this litigation, the September 28 order was a "final decision or order” under § 85 of the APA. In any event, that point is not in contest.
MCL 462.26; MSA 22.45, in pertinent part, provides:
"(a) Any common carrier or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services, may within 30 days from the issuance of such order and notice thereof commence an action in the circuit court in chancery for the county of Ingham, against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates fixed are unlawful or unreasonable, or that any such regulation, practice or service fixed in such order is unreasonable; in which suit the commission shall be served with a subpoena and a copy of the complaint.”
Great Lakes Steel Division of National Steel Corp v Public Service Comm, 94 Mich App 694; 290 NW2d 54 (1980).
Will v United States, 389 US 90, 108; 88 S Ct 269; 19 L Ed 2d 305 (1967) (Black, J., concurring).
" 'Final’ is not a clear one-purpose word; it is slithery, tricky. It does not have a meaning constant in all contexts. What was said as to 'final’ orders a half century ago still holds: 'The cases, it must be conceded, are not altogether harmonious.’ There is still too little finality about 'finality’.” United States v 243.22 Acres of Land, 129 F2d 678, 680 (CA 2, 1942).
"B. The Detroit Edison Company shall file with the commission a suitable bond to ensure that appropriate refunds will be made to its customers in the event that the final order in this case provides for a lesser amount than the $35,415,000 annual revenue increase herein granted.”
It is not as though the hearing for interim relief in this case was cursory. The "partial and immediate” rate order granted in this case was issued six months after the written motion was filed. The proceedings relating to it are reflected in 5,675 pages of transcript and 61 exhibits. | [
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Kavanagh, J.
A St. Clair Circuit Court jury found defendant guilty but mentally ill, MCL 768.36; MSA 28.1059, of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and breaking and entering, MCL 750.110; MSA 28.305. He was sentenced to imprisonment of 20 to 40 years for the criminal sexual conduct conviction and 10 to 15 years for the other conviction.
The only issue disputed by the defendant was his sanity. In his opening statement to the jury, defense counsel conceded that defendant committed the acts alleged, but asked the jury to return a verdict of not guilty by reason of insanity. A motion in limine to submit only the issue of sanity to the jury and a motion for a directed verdict of not guilty by reason of insanity, made at the close of all the evidence, were both denied.
Defendant appealed to the Court of Appeals, arguing that, among other errors, the prosecution failed to present sufficient evidence of sanity. After finding inadmissible for lack of a proper foundation the testimony of police officers on the issue of sanity, the Court decided, there being no other evidence of sanity, to reverse the defendant’s convictions and remand for entry of judgment of not guilty by reason of insanity and an order committing defendant for psychiatric treatment pursuant to MCL 330.2050; MSA 14.800(1050). People v Murphy 100 Mich App 413; 299 NW2d 51 (1980).
The people now appeal, arguing that the police officers’ testimony was admissible, but that even without it, the Court of Appeals clearly erred in ruling that there was no evidence to support the findings of sanity. The defendant asks that we affirm the decision of the Court of Appeals.
We hold that, even with the police officers’ testimony, the prosecution failed to present sufficient evidence to convince a rational trier of fact that the defendant was sane at the time he committed the acts alleged. The Court of Appeals decision is affirmed.
Our review of the evidence for sufficiency to support a jury verdict of sanity is governed by the standard announced in Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), and adopted in Michigan in People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). The relevant question is whether, after viewing all of the evidence in the light most favorable to the prosecutor, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, p 319. The former review for any evidence to support a jury verdict, on which the prosecutor appears to rest in this case, was discarded in Jackson and Hampton in favor of a review which gives meaning to the standard of proof beyond a reasonable doubt.
The jury’s verdicts of guilty but mentally ill necessarily mean that the defendant was found sane at the time the offense was committed. The statute which authorizes the verdict of guilty but mentally ill requires that the trier of fact find "[t]hat the defendant was not legally insane at the time of the commission of that offense.” MCL 768.36(1)(c); MSA 28.1059(1)(c). Although found to be mentally ill, the defendant is held to be criminally responsible, People v Booth, 414 Mich 343, 354; 324 NW2d 741 (1982), that is, sane.
According to the testimony, defendant broke through the back door of the victim’s second-floor apartment around 11:30 p.m. on November 20, 1977. The victim, having been awakened by the noise, was standing by the back door when defendant entered. She testified that he immediately struck her face and forced her to the floor while strangling her. Suddenly he stopped, then dragged the victim by her hair across the floor of the kitchen and into her bedroom. There, for the next two and one-half hours, defendant engaged in sexual intercourse with the victim and compelled her to submit to bizarre sexual acts. Throughout the incident, defendant beat her and called her insulting names. Defendant said he could kill her. At one point, defendant wanted her to kiss him. She testified that, disgusted by the blood on her face, defendant took her to the kitchen and gently washed away the blood. He then made her kiss him.
Ultimately, defendant fell asleep on the bed. The victim fled her apartment by the front door, locking it behind her, and found refuge in a neighbor’s apartment. The police were called.
Police officers Davis and York arrived first. They kicked in the door to the victim’s apartment. In the bedroom they found defendant asleep in bed, partially covered with a sheet. Pulling back the sheet, the officers saw defendant lying there naked except for the socks he wore. They first handcuffed defendant and then woke him. Defendant reacted like "someone coming out of a deep sleep, sound asleep,” Officer Davis testified. Officer York agreed, saying that "when we woke him up he seemed to be like he had just woke up out of a real deep sleep. He just wasn’t with it. He was sluggish.” By then, two other police officers, Payne and Kornik, arrived and took defendant to the police station.
The victim and defendant’s wife knew each other in high school and worked together after graduation in 1973. The victim’s contact with defendant had always been brief and strictly incidental to her relationship with defendant’s wife. She last saw defendant in 1973.
On the issue of insanity, defendant presented the testimony of his mother, mother-in-law, a chaplain and a psychiatrist. Defendant did not testify. Defendant’s mother described an unusual childrearing. She testified that during her pregnancy with Gary, she suffered an extreme fear of death during childbirth. For the first three or four months after birth, Gary slept on his mother’s breast. For three years thereafter, Gary slept most of the time with his parents. During this time, the mother testified, she fluctuated between extremes of affection and rejection towards Gary. During periods of rejection, the mother stayed in bed and cried. At two years of age Gary prepared his own bottle. At three years, he prepared oatmeal and toast for himself. From the time Gary was four or five until his parents separated when he was ten years old, first one parent was out one night and the other the next. Between the ages of 11 and 15, Gary’s mother testified, Gary stayed home alone in the evenings and made his own meals because his mother worked. From a young age until Gary was in his late teens, the mother testified, she was frequently nude around the house. Until Gary was 19, his mother occasionally lay down beside him and held him while he slept. When Gary was in his mid-teens, his mother testified, she "started playing the full mother role with my whole heart, I meant it. * * * I used to bake him gingerbread boys when he was eighteen or nineteen or twenty years old, the things he should have had when he was five.”
Betty Haunstein, defendant’s mother-in-law, described Gary, whom she saw weekly, as a good father to his two sons and as a good husband until about six months prior to the offense. She said her daughter and son-in-law were buying a home which Gary had extensively remodeled. He worked steadily at a building supply company in Port Huron. Mrs. Haunstein said she never knew Gary to be aggressive or violent. She said he was well-read and frequently discussed current events with her husband.
All of this began to change about six months prior to Gary’s arrest, Mrs. Haunstein testified. She noticed a marked change in his behavior. She said he became sometimes withdrawn and sometimes intentionally aggravating. With a wild look; his eyes shifted from side to side, and he did not look directly at people who spoke to him. He was impossible to please, said Mrs. Haunstein.
During the six-month period prior to Gary’s arrest, his wife asked him to seek counseling. He went to Catholic Social Services, who referred him to a psychiatrist, but he never went.
The Reverend Father James Opferman, chaplain at the hospital where Gary’s wife worked, saw defendant around 5:30 p.m. the night of the offense. Father Opferman said he had met Gary three weeks earlier, around September 1, 1977, when Gary called him about "working things out better in his life.” At the second meeting, the evening of the offense, Gary had come to talk to his wife, whom he had earlier told to leave the house; she had since moved back in with her parents. Father Opferman said Gary acted more agitated than he had three weeks earlier. On that first meeting, the chaplain testified, Gary talked calmly and quietly. On this second meeting, however, Gary’s eyes were glassy, he shifted his weight from leg to leg, and he made little eye contact.
For expert testimony on defendant’s sanity, defense counsel offered Dr. Emanuel Tanay, who examined defendant for two hours one month after the offense on October 25, 1977, and again on a day during trial. Dr. Tanay also interviewed defendant’s mother the day before the first interview with defendant.
Dr. Tanay testified that, within the meaning of the insanity statute, defendant was mentally ill, could not adhere to the requirements of the law, and most likely could not appreciate, because of his disorganized state of mind, the wrongfulness of his conduct. During the criminal incident, Dr. Tanay testified, defendant was in a psychotic state.
For several reasons, the expert said, defendant suffered from mental illness and an impairment of mood and thought processes when the criminal event occurred. Defendant had no memory or recognition of what had happened. The nature of the crime indicated an extreme brutality and sadism of which most people with any form of conscience or restraint are incapable. There was no evidence of negative feelings by the defendant toward the victim. Defendant’s behavior after the offense, in falling asleep on the victim’s bed, indicated poor reality testing; the fact that he was in a deep sleep indicated an unusual state of mind. There was also a history of depression prior to the criminal event.
The expert said that defendant felt that his wife was very good to him, but that he was unable to return the affection. Defendant’s unwillingness to respond with love and affection for his wife and children, said Dr. Tanay, mirrored his mother’s failure to do that for him. Defendant harbored hate feelings toward his mother for her promiscuity. Dr. Tanay was convinced that defendant had suffered criminal abuse as a child. About six months prior to his arrest, defendant essentially raped his wife, Dr. Tanay testified.
To counter the evidence of insanity, the prosecutor offered the testimony of the arresting police officers and a psychologist, although the latter had reached the same conclusions as Dr. Tanay, the defense expert. Dr. Paul B. Revland, a clinical psychologist at the Center for Forensic Psychiatry in Ann Arbor, testified for the prosecution. Dr. Revland examined defendant on May 4 and 8, 1978, the second date to confirm his initial conclusions and to get as much information as possible. Dr. Revland concluded that defendant was not criminally responsible at the time of the crime, that he was mentally ill, and that he was out of contact with reality and unable to control his behavior or appreciate the wrongfulness of his acts. The expert testified that he did not believe defendant was insane all of the time, but that he was insane at the time of the crime and maybe at other times as well.
One paragraph of Dr. Revland’s report stated that it was impossible to determiné whether defendant’s memory loss was due to alcohol-related amnesia or to the repression of psychologically painful material. On this point, Dr. Revland said that he was satisfied to hear that none of the witnesses who were in contact with the defendant that evening (the victim, the four police officers, the chaplain, and defendant’s mother-in-law) smelled alcohol on him.
Against this evidence of insanity, the prosecutor posits the testimony of four policemen to sustain the people’s burden of proof. Officer Davis testified that at the time of his arrest, defendant appeared to understand and relate to the officers and did not appear to be out of touch with immediate reality. There was also the following testimony from Officer Davis:
"Mr. Houlahan [prosecuting attorney]: Were there any actions or any demeanor on the part of Gary Murphy which would have led you to believe that he may have been suffering from a mental problem at that time?
* * *
"Mr. Houlahan: Do you understand the question?
"A. Yes, sir, I do. No, sir, there wasn’t.”
On re-cross examination, Officer Davis said he observed defendant for five minutes. In addition, he testified that he did not believe he was qualified to express an opinion on whether defendant was mentally ill.
Officer Payne, who, with Officer Kornik, transported defendant to the police station, was with defendant for 30 minutes. He testified:
”By Mr. Houlahan:
"Q. In your observations of the individual, was there anything he did, his manner or actions or his behavior that would put you on notice that he was not of sound mind?
"A None.”
Officer York, who said he was present with defendant "just a short time”, answered "no” when asked whether there was anything about defendant’s behavior which "would put you on notice as to any abnormality”. Similarly, Officer Kornik was asked whether, in his observations of defendant, there was anything about him which would have led to the conclusion that defendant was "suffering from any type of mental disorder”. "Not from the brief contact I had with him”, answered Kornik.
A defendant in a criminal proceeding is presumed sane. Once any evidence of insanity is introduced, however, the prosecution bears the burden of establishing defendant’s sanity beyond a reasonable doubt. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Garbutt, 17 Mich 9, 23 (1868). The prosecution does not argue that defendant failed to controvert the presumption of sanity. Thus, defendant’s sanity at the time of the crime was as much an element to be proved by the prosecution beyond a reasonable doubt as the other statutory elements of the offenses charged. The presumption of sanity, however, is merely procedural and has no weight as evidence. "[T]he prosecution are at liberty to rest upon the presumption that the accused was sane, until that presumption is overcome by the defendant’s evidence”, Garbutt, p 22, meaning that the presumption vanishes and has no continued significance. (Emphasis added.)
The nature and quantum of rebuttal evidence of sanity sufficient to present an issue for a jury is to some extent determined by the strength of the case for insanity. United States v Bass, 490 F2d 846, 851 (CA 5, 1974). Necessarily, the sufficiency of evidence needed to put the question of sanity before a jury will vary from case to case. Wright v United States, 102 US App DC 36, 39; 250 F2d 4, 7 (1957), Alto v State, 565 P2d 492 (Alas, 1977). Merely some evidence of sanity may be sufficient to meet some evidence of insanity and yet wholly insufficient to meet substantial evidence of insanity. People v Ware, 187 Colo 28, 31-32; 528 P2d 224, 226 (1974).
Substantial evidence was offered to show defendant’s insanity. The psychiatrist introduced by the defense interviewed defendant and his mother one month after the offense occurred. He concluded that defendant was insane. The psychologist called by the prosecution also concluded that the defendant had been insane. Although his examination took place some months after the offense, he called the defendant back for a second examination to make certain of his conclusions. In addition, the defense presented the testimony of defendant’s mother which revealed an unusual childrearing; Dr. Tanay, the defense psychiatrist, opined that defendant had suffered criminal child abuse. Defendant’s mother-in-law observed defendant weekly over a period of years. She described a drastic change in defendant’s behavior, beginning about six months prior to his arrest, from that of a steady worker and amiable person to a nervous, withdrawn, and suspicious person. Finally, the chaplain observed a change in defendant’s behavior between the first time they met and the evening of the offense, about three weeks later, when the defendant appeared greatly agitated.
As against such a strong showing of insanity, the testimony of the police officers failed to supply evidence which could support a finding of sanity beyond a reasonable doubt. The testimony of lay witnesses may be competent evidence of sanity. It may also rebut expert testimony on the issue. Wright, supra, 102 US App DC 41-42; 250 F2d 9-10; Brock v United States, 387 F2d 254 (CA 5, 1967). At the same time, the prosecution cannot send a case to the jury by opposing substantial evidence of insanity with the testimony of arresting officers that they did not observe a "mental problem”.
The probative value of an opinion of sanity depends on the facts upon which it is based. In the present case, for example, there was no testimony that the police officers had observed defendant prior to the night in question so that they might compare his behavior. There was no testimony that at the time of defendant’s arrest they were particularly observant of defendant’s behavior for any manifestation of insanity. Moreover, their opportunity to observe defendant was limited to no more than 30 minutes and was as little as five minutes. Officer Davis, who did not believe he was qualified to express an opinion on mental illness, saw defendant for five minutes and said that he did not notice a mental problem. Officer Payne was with defendant for 30 minutes; his answer was "none” when asked if anything about defendant put him on notice that defendant was not of "sound mind”. Officers York, who was with defendant "just a short time,” and Kornik, who had "brief contact” with defendant, also said that they did not notice any "abnormality” or "mental disorder”.
In order to send this case to the jury, the prosecution needed to present something more than minimal evidence of sanity. A lay witness’s observation of abnormal acts by the defendant has greater value as evidence than testimony that the witness never observed an abnormal act unless the witness had prolonged and intimate contact with the accused. Wright, supra, p 42; 250 F2d 10. The testimony of these police officers that the defendant seemed all right has only slight probative value. Moreover, it is not clear that the witnesses’ testimony actually negated any part of the insanity test, which requires the prosecutor to prove that the defendant could appreciate the wrongfulness of his conduct and had the capacity to conform his conduct to the requirements of the law. Something more is needed than was presented here in order to pass appellate muster.
In order to bolster the evidence of sanity, the prosecutor argues that the jury could draw inferences and conclusions from the victim’s testimony, although the victim did not give an opinion on defendant’s sanity. Exactly what inferences and conclusions may have been drawn are not suggested, and we are unable to discern what they might be. The prosecutor also notes that Dr. Ta-nay did not know why defendant was unable to conform to the requirements of the law, that he admitted that people in all applied sciences differ in their opinions, that he admitted that he testified more commonly for the defense, and that Dr. Revland was young and relatively inexperienced. None of this testimony, however, is evidence of sanity. Finally, the prosecutor points to the results of the Minnesota Multiphasic Personality Inventory, given defendant by Dr. Tanay, which cautioned that the defendant gave an unusual number of extremely rare responses. This too is not evidence of sanity. Nevertheless, we have considered these arguments in viewing the evidence in the light most favorable to the prosecution, as we must in considering the sufficiency of all the evidence.
In short, all of the vital evidence in this case pointed towards defendant’s insanity at the time of the offense. In protecting the constitutional standard of proof in criminal cases, In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970), we conclude that the evidence of sanity offered by the prosecution was insufficient to convince any rational trier of fact that the defendant was sane beyond a reasonable doubt.
As the Court of Appeals correctly noted, the Double Jeopardy Clause, US Const, Am V, prohibits a second trial once a reviewing court has found the evidence insufficient to sustain the jury’s verdict of guilty. Burks v United States, 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978).
We affirm the judgment of the Court of Appeals and remand the cause for entry of a judgment of not guilty by reason of insanity and an order committing defendant for psychiatric treatment pursuant to MCL 330.2050; MSA 14.800(1050).
Fitzgerald, C.J., and Williams, Levin, and Ryan, JJ., concurred with Kavanagh, J.
Coleman, J.
I write separately because I do not believe that the prosecutor should have the burden of proving defendant’s sanity beyond a reasonable doubt.
Riley, J., took no part in the decision of this case.
Section 1 of the statute, in its entirety, reads:
"(1) If the defendant asserts a defense of insanity in compliance with section 20a, the defendant may be found 'guilty but mentally ill’ if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
“(a) That the defendant is guilty of an offense.
"(b) That the defendant was mentally ill at the time of the commission of that offense.
"(c) That the defendant was not legally insane at the time of the commission of that offense.”
MCL 768.21a; MSA 28.1044(1), defines insanity as follows:
"(1) A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
"(2) A person who is under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his alleged offense shall not thereby be deemed to have been legally insane.” | [
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Levin, J.
The defendant, John Edward Adams, was originally charged with armed robbery. He was convicted by a jury of three unarmed robberies and one larceny from the person following a holdup at a cocktail lounge. The Court of Appeals reversed because the trial judge refused to give defendant’s requested instructions on attempted armed robbery and attempted unarmed robbery. We reverse and reinstate the convictions.
In People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), the defendant was charged with armed robbery. This Court reversed the defendant’s conviction of larceny from the person because the judge had refused to instruct, as requested by the defendant’s lawyer, on the lesser included offense of attempted armed robbery. We said that attempted armed robbery is "necessarily included”.
While a completed offense may necessarily include as a factual matter conduct that, taken alone, would constitute an attempt to commit the offense, we are now of the opinion that because the elements of an attempt are not duplicated in the completed offense the judge is not required to instruct the jury on attempt without regard to the evidence or the defense presented or argued.
The purpose of instructions on lesser included offenses is to inform the jury of the verdicts it may return (1) for necessarily included or cognate offenses, if it finds that the prosecution has proven some, but less than all, elements of the charged offense, and (2) for cognate offenses, if there is evidence tending to establish an element of an offense having an element that is not an element of the charged offense._
Neither an attempt to commit an offense nor all the elements of an attempt to commit an offense are elements of the completed offense. See Part II.
A defendant’s request to instruct the jury that it may find the defendant guilty of the cognate offense of attempt to commit the charged offense or of one of the necessarily included offenses of the charged offense must therefore be granted only where there is evidence, or on jury view a lack of evidence, tending to establish the elements of the cognate offense of attempt.
I
In People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), this Court said that a defendant has a right to a jury determination on each element of the crime charged. The jury may find an element lacking notwithstanding overwhelming evidence to the contrary.
By charging an offense, the prosecutor asserts that he can establish all the elements of a necessarily included offense. Only the jury can decide which elements of the charged offense or of any necessarily included offense are present or lacking. The failure to give an instruction on necessarily included offenses may deprive the defendant of his right to have the jury, not the judge or prosecutor, find the facts and determine whether the requisite elements are present.
Unless a jury instructed on a greater offense is advised of the necessarily included offenses of which it may convict if it fails to find an element of the charged offense, it may, because of incomplete instruction, enter a verdict not consistent with its finding that the element was not proven beyond a reasonable doubt.
If the elimination of an element of the charged offense yields a lesser offense, the jury, upon due request from defendant’s lawyer, must be instructed what verdict to return if it finds that element to be lacking.
II
Neither an attempt to commit an offense nor all its elements are elements of the completed offense. In instructing the jury on armed robbery, the judge identifies eight or nine elements, none of which is an attempt to commit the offense. If the elements of armed robbery were successively peeled away, singly or in various combinations, the offense of attempt to commit armed robbery, or any necessarily included offense of armed robbery, would not emerge.
Since a jury asked to determine whether the elements of armed robbery have been established need not be instructed on attempt to commit that offense or a necessarily included offense in order to know what verdict to return if it finds some but not all the elements of armed robbery, the judge need not instruct on attempt unless there is evidence, or on jury view a lack of evidence, indicating that only an attempt was committed.
Ill
We have considered whether in the instant case there was evidence that only an attempt was committed and thus an instruction was required on attempt as a cognate offense.
The defendant testified that an armed robbery was committed and that it was in progress when he joined it. He did not ask the jury, for example, to disbelieve the evidence that wallets were taken, asserting that there was no larceny, only attempted larceny or robbery, but asserted that he acted under duress in collecting the wallets.
In providing for instructions on cognate offenses where the evidence or lack of evidence warrants, this Court drew a distinction between necessarily included and cognate offenses so that an instruction on a cognate offense would not be required in every case. It would be inconsistent with that approach to require an instruction on the cognate offense of attempt in every case because factually the charged offense cannot be committed without committing the cognate offense of attempt, and would transform attempt, which is not, because its elements are not elements of the charged offense, into a necessarily included offense although it is not elementally a necessarily included offense. We decline to so erase the distinction between necessarily included and cognate offenses which serves to create some balance in the number of lesser-offense instructions required.
We add that a judge has the discretion, without request, to instruct on attempt and is obliged to instruct on attempt when the defense is that there was only an attempt and there is evidence that the completed offense may not have been committed or the defense is that the jury should not credit evidence tending to show that it was completed.
People v Lovett is overruled to the extent that it is inconsistent with this decision.
Reversed and remanded to the Court of Appeals for further proceedings consistent with this opinion.
Fitzgerald, C.J., and Kavanagh and Williams, JJ., concurred with Levin, J.
The evidence tended to show that the defendant and his brother were drinking at the Happy Hour Bar in Flint. They stopped at the brother’s home where the brother picked up a shotgun, but the defendant said he did not see him do so. They arrived at the Back Door Lounge where each ordered a beer. The brother left to go to the car and returned with a shotgun and announced a robbery. The defendant collected patrons’ wallets and money from the cash register. The defendant admitted his participation in the commission of the offense but asserted, and there was some evidence from other witnesses to support this, that when his brother re-entered the bar with the gun, he just sat there. He testified that he picked up the billfolds "[bjecause I was afraid for my own life, besides other people’s, I didn’t know but what he would shoot somebody”. The jury was instructed on defendant’s defense of duress, but rejected it.
The brother pled guilty to a charge of unarmed robbery and testified for the defendant at his trial.
The order of the Court of Appeals is unreported.
In the instant case, there was evidence tending to show that the defendant joined a robbery in progress without having participated in the preceding attempt to commit it.
In People v Chamblis, 395 Mich 408, 420-423; 236 NW2d 473 (1975), this Court said:
"'Once a plea of not guilty is entered, the defendant "has an absolute right to a jury determination upon all essential elements of the offense. This right, emanating from the criminal defendant’s constitutional right to trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him * * ’
"The judge may not instruct the jury that if it believes a witness’ evidence on one element it must believe that witness’ evidence as to another element, even though in the judge’s view any other finding would be inconsistent or illogical.
"The judge’s right and obligation to charge does not depend upon whether there is a conflict or rebuttal or impeachment of the people’s evidence. In determining whether to instruct on a lesser included offense, the judge should recognize the jury’s right to believe or disbelieve any or all of a witness’ testimony.”
LaFave & Scott, Criminal Law, § 59, p 423:
“The crime of attempt, a relatively recent development of the common law, consists of: (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.” (Emphasis supplied.)
See People v Coleman, 350 Mich 268, 276; 86 NW2d 281 (1957), and People v Bowen, 10 Mich App 1, 7; 158 NW2d 794 (1968).
The authorities are in agreement regarding the elements, but they are grouped differently.
CJI 18:1:01 states there are seven elements of armed robbery.
Clark & Marshall, Crimes (7th ed), § 12.09, pp 881-882, states the elements of larceny under three headings and of robbery in two more; armed would make it six.
LaFave & Scott, fn 5 supra, § 94, p 692, states that there are eight elements of robbery, and one more for being armed would make it nine:
"Robbery consists of all six elements of larceny — a (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it — plus two additional requirements: (7) that the property be taken from the person or presence of the other and (8) that the taking be accomplished by means of force or putting in fear.”
See, also, People v Calvin, 60 Mich 113, 120; 26 NW 851 (1886).
The obligation to instruct on a lesser offense whenever there is evidence that the offense was committed, without regard to whether the elements of that offense are duplicated in the greater offense, is unaffected by today’s decision. The distinction between necessarily included offenses, lesser cognate offenses, and factually included offenses is irrelevant where there is evidence from which the jury could conclude that the offense upon which a charge is requested was in fact the actual crime committed.
Chamblis, supra, p 417.
It appears that the defendant filed a timely claim of appeal and a brief on appeal. The Court of Appeals entered an order granting defendant’s motion for peremptory reversal. It does not appear whether the defendant raised other issues with the Court of Appeals and, if so, whether they were considered and decided by the Court of Appeals. | [
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Coleman, J.
(for affirmance). Defendant seeks to reverse his convictions for possession of heroin and possession of cocaine on the ground that the trial court erred in failing to suppress tinfoil packets containing such drugs that the police retrieved from his mouth. He argues, first, that the search followed an unlawful pretextual arrest, and second, that the search of his mouth was otherwise unreasonable under the Fourth Amendment.
It is argued that defendant’s conviction should be reversed on the ground that the arrest pursuant to a warrant for a traffic violation was a pretext for the search. There is no constitutional significance in this assertion, and likewise we find defendant’s other contention to be without merit.
I
The only persons testifying at the suppression hearing were the two Battle Creek police officers who effected the arrest and search. Officer Nibley DiMattio testified that on November 23, 1976, he was the sergeant in charge of the tactical surveillance unit involved in the investigation of various forms of street crime, including narcotics offenses. On that date, as he was working in plain clothes in an unmarked vehicle with fellow officer Thomas O’Connell, he saw defendant, for whom there was an outstanding arrest warrant, driving a car. DiMattio followed defendant and sounded his horn to prompt defendant to pull over to the curb. Defendant obliged. DiMattio approached defendant’s car on the driver’s side and advised defendant that he had a traffic warrant for his arrest. The officer noticed two open plastic film canisters between defendant’s legs on the front seat of the car. This observation was relayed to Officer O’Connell, who was stationed at the passenger side of defendant’s car. Defendant was removed from the vehicle and was placed under arrest for driving with a suspended license. O’Connell, who in the meantime had seized the canisters, told DiMattio that the canisters contained a brown powdery residue.
The usually talkative defendant said nothing during this period, but was seen to be chewing on something.
The suppression hearing transcript additionally reveals that DiMattio had been acquainted with defendant, had arrested defendant previously, and, at the time of the search, was aware of defendant’s recent arrest for possession of narcotics. The officer had spoken to defendant on numerous earlier occasions ("at least 20 times”), and defendant always had been talkative. From his experience with narcotics trafficking, DiMattio knew that controlled substances frequently are stored in tinfoil packets, which then are placed in moisture-proof film canisters.
Several times, DiMattio asked defendant what he had in his mouth. Defendant shook his head and declined either to answer or to open his mouth, but continued to chew. DiMattio advised defendant that if he failed to open his mouth of his own accord his mouth would be forcibly opened. Defendant did not respond. Assisted by O’Connell, DiMattio proceeded to apply pressure to the sides of defendant’s jaws below the cheekbones, while defendant, handcuffed since arrest, was leaning back against the car. Placing his fingers inside of defendant’s mouth, DiMattio retrieved nine chewed tinfoil packets which further analysis proved contained heroin and cocaine. The forcible extraction was quickly accomplished. Defendant was not harmed as a result of the encounter.
Officer O’Connell, the other witness at the suppression hearing, confirmed much of Officer DiMattio’s testimony. In addition, he stated that he assisted DiMattio in the search of the defendant’s mouth by pressing on defendant’s throat to prevent him from swallowing whatever was in his mouth. According to O’Connell, the entire procedure took approximately ten seconds, and defen dant remained standing throughout the search. O’Connell, who also had talked with defendant on prior occasions, had "never known Charlie to keep quiet”, and considered it most unusual that defendant kept his mouth closed on this particular day.
In denying defendant’s motion tó suppress the evidence, the trial judge emphasized the officers’ previous confrontations with defendant; their observation of the chewing motion made by defendant, along with his uncharacteristic silence; their experience in the manner in which narcotics are packaged for street purposes; the discovery of a brown residue in the film canisters; and the exigency of the circumstances, i.e., that evidence of a crime was being destroyed and defendant’s own life may have been in peril (the officers had no specific knowledge as to whether the narcotics they had reason to believe were lodged in defendant’s mouth were in loose form or were packaged). The Court of Appeals ruled that the trial court’s determination in this regard was not clearly erroneous.
II
Defendant argues, and our colleague would agree, that the heroin and cocaine obtained from his mouth should have been suppressed because the evidence was discovered following a "pretext” arrest. Defendant asserts that his arrest, pursuant to a warrant the police officers were carrying, for driving with a suspended license, was effectuated merely for the purpose of allowing a search. We are not persuaded that any constitutional infirmities were present. The police effectuated a lawful arrest pursuant to a valid warrant. The evidence they thereafter discovered was also obtained lawfully, as discussed below. The fact that the police officers effectuated the arrest also realizing that they might find narcotics or other evidence of illegal activity is entirely irrelevant, unless police officers primarily concerned with enforcing certain laws are prohibited from enforcing other laws as well. We are aware of no such constitutional proscription.
Ill
On appeal, defendant contends that the forcible search of his mouth violated his right under the Michigan and United States Constitutions to be free from unreasonable searches and seizures. A natural starting point for a discussion of the constitutional implications of a search of a person’s mouth is with the prominent decisions of the United States Supreme Court on the subject of intrusive searches. Two cases are foremost, Rochin v California, 342 US 165; 72 S Ct 205; 96 L Ed 183 (1952), and Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966).
Rochin was decided before Mapp v Ohio pronounced the Fourth Amendment exclusionary rule applicable to the states, and so was premised upon the due process principles outlined in the Fourteenth Amendment. In Rochin, three police officers, acting pursuant to an obscure tip that Rochin was dealing in narcotics, entered his home without a warrant and observed Rochin place some capsules in his mouth. Without probable cause to believe that the substances Rochin was attempting to swallow were contraband, the officers grappled with him in an attempt to retrieve the capsules from his mouth. When this effort proved futile, Rochin was handcuffed, transported to a hospital, and forced to ingest an emetic solution which caused him to vomit the capsules. Further analysis indicated that the capsules contained morphine. The capsules were the principal evidence against Rochin at his trial on charges of possessing a morphine preparation. The Supreme Court concluded that the methods used to extract the evidence from Rochin were "too close to the rack and the screw to permit of constitutional differentiation” and were shocking to the conscience. Rochin, 342 US 172. Rochin has been criticized as having failed to establish a clear workable standard because the Court did not say whether reversal was predicated upon a combination of the circumstances surrounding the extraction of the evidence, or the body intrusion alone. But see Blackford v United States, 247 F2d 745 (CA 9, 1957), a border search case which distinguished Rochin in part because Rochin portrayed a sequence of offensive conduct.
In Schmerber, the second noteworthy intrusive search case, the Supreme Court considered a variety of constitutional challenges, but primarily focused upon the reasonableness of the search which had been conducted. The factual scenario of Schmerber is markedly different from that of Ro-chin. Schmerber concerned a nonconsensual taking for purposes of chemical analysis of a blood sample from the defendant at a hospital where he was being treated for injuries sustained in an automobile collision. The analysis report, which revealed that the defendant had a certain percentage of alcohol in his blood, was admitted at the defendant’s trial on charges of driving while under the influence of intoxicating liquor. Noting that "the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner”, Schmerber, 384 US 768, the Supreme Court concluded that, on the facts presented, no Fourth Amendment violation had been demonstrated. The Court listed several criteria to be considered in deciding the reasonableness of an intrusive search: (1) the government must have a "clear indication that in fact such [incriminating] evidence will be found”; (2) the police officers must have a warrant, or, in the absence of a warrant, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) the method used by the government to extract the evidence must be a reasonable one, and must be performed in a reasonable manner. 384 US 770-772. The Court sanctioned "minor intrusions into an individual’s body under stringently limited conditions”, 384 US 772, but emphasized that its judgment was restricted to the facts under consideration.
IV
Turning to the precise issue before us — the constitutional validity under the circumstances of a search of the defendant’s mouth without a warrant for evidence of a crime — the weight of authority is that the use of a reasonable amount of force by the government, in conjunction with the use of a reasonable method in executing the search, for the purpose of preventing the destruction of material evidence of a crime, is constitutionally permissible. See, e.g., State v Lewis, 115 Ariz 530; 566 P2d 678 (1977) (due process was not infringed where the defendant was nervous, evasive, spoke with her teeth clenched, and made a swallowing motion when asked by the police officer to open her mouth, and the force used to obtain a balloon containing heroin secreted in her mouth included a chokehold and back-slapping during a one- or two-minute struggle); State v Jacques, 225 Kan 38; 587 P2d 861 (1978) (police conduct was not shocking to the conscience where the defendant, who had been observed placing balloons in his mouth, refused to cooperate with police demands that he spit them out, and, in the ensuing scuffle, one officer placed his hand on the defendant’s throat to prevent the balloons from being swallowed); State v Santos, 101 NJ Super 98, 102; 243 A2d 274 (1968) (the defendant claimed that police brutality with regard to his accomplice rendered the accomplice’s testimony inadmissible; the police had grabbed the accomplice by the throat and had attempted to pry open his mouth in an effort to obtain glassine envelopes containing narcotics; the court rejected the claim, stating, "The police have a right short of outright brutality of a shocking nature to apply such reasonable force to a suspect as is fairly necessary to prevent an imminent destruction of evidence of the commission of crime.”); Foxall v State, 157 Ind App 19; 298 NE2d 470 (1973) (no due process deprivation was found where the defendant was seen placing something into his mouth; police officers used a plastic shoehorn to extract tinfoil packets containing narcotics from the defendant’s mouth, and the defendant sustained slight injuries in the scuffle); Hernandez v State, 548 SW2d 904 (Tex Crim App, 1977) (no Bochin problem was found where the officers noticed the defendant attempting to put something in his mouth, the defendant was wrestled to the ground, and his arms were held by one officer while a second officer applied pressure to his throat until he spit out balloons containing heroin). See, also, United States v Harrison, 139 US App DC 266; 432 F2d 1328 (1970); State v Young, 15 Wash App 581; 550 P2d 689 (1976); State v Winfrey, 359 So 2d 73 (La, 1978).
California has waded against the current of the more permissive view taken by many other jurisdictions by altogether outlawing conduct involving the application of force to a defendant’s throat to prevent him from swallowing evidence. See, e.g., People v Sanders, 268 Cal App 2d 802; 74 Cal Rptr 350 (1969); People v Martinez, 130 Cal App 2d 54; 278 P2d 26 (1954). However, a California Court of Appeals, in a recent case, sanctioned a procedure seen as less threatening to the defendant’s well-being, i.e., forcing the defendant’s chin upon his chest to keep him from swallowing. People v Lara, 108 Cal App 3d 237; 166 Cal Rptr 475 (1980). The Washington Court of Appeals has subscribed to the California "no-choke” position in State v Williams, 16 Wash App 868; 560 P2d 1160 (1977). For a critique of decisions which in every instance purport to disallow seizure of a defendant’s throat to retrieve evidence, see 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 5.2(i), p 296.
In summary, the United States Supreme Court has stated that intrusive searches which, with a view toward all of the circumstances, so denigrate human dignity that they shock the conscience or in some other way are unreasonable under Fourth Amendment standards may not be sanctioned. State and lower federal courts which have had occasion to consider the precise issue presented by this case in light of the Supreme Court’s dictates for the most part have condoned the reasonable use of force to retrieve evidence of a crime which has been secreted in the mouth.
V
On the basis of the discussions of intrusive searches undertaken by the United States Supreme Court in Schmerber and Rochin, with courteous reference to the positions adopted by a number of other jurisdictions confronted with this delicate constitutional question, and after consideration of the facts presented, we conclude that the search conducted in the case at bar did not abridge defendant’s right to be free from unreasonable searches and seizures.
In this state, law enforcement officers making an arrest are authorized to recover from the person being arrested "incriminating articles which he may have about his person”. MCL 764.25; MSA 28.884. Of course, any attempt to recover these incriminating articles must be accomplished in a manner which comports with the hallowed dictates of our federal and state constitutions, e.g., to with stand scrutiny under the Fourth Amendment, any search must be reasonable. Reasonableness is to be ascertained from the totality of the circumstances. Schmerber, supra.
We find that the police conduct practiced here to retrieve evidence from defendant’s mouth did not constitute conduct shocking to the conscience under Rochin. As indicated previously, Rochin involved a sequence of illicit police activity which culminated in the forcible search of the defendant’s stomach. The facts of this case are radically different. Here, there was no aggregation of unlawful governmental conduct, nor was the intrusion into defendant’s body of such a serious nature.
Nor has it been demonstrated that these facts, when measured against the Fourth Amendment principles of reasonableness enunciated in Schmer-ber, require suppression of the critical evidence against defendant. The tests outlined in Schmer-ber for differentiating between minor (i.e., constitutional) and major (i.e., unconstitutional) body intrusions have been amply satisfied in this case. On the basis of their past experiences with defendant (his invariable loquaciousness and his previous arrest for a narcotics violation), their observation of defendant’s chewing motions, and the presence of open film canisters between defendant’s legs on the seat of the car, canisters which these experienced officers knew were frequently connected with the drug trade, Officers DiMattio and O’Connell had a "clear indication” that defendant had secreted contraband in his mouth. The method and manner of the search were not unreasonable: defendant remained standing throughout; the search took a relatively brief time; defendant’s blood supply and air passages were not restricted or cut off; defendant did not require hospitalization and did not appear to be injured as a result of the contact; and it appears that no more force was used than was reasonably necessary.
Moreover, exigent circumstances were present which would have made it extremely impractical for the officers to obtain a warrant. Defendant was in the process of destroying what was likely the only evidence the government had to convict him of possession of narcotics. The officers were without particular knowledge of whether this evidence was packaged in a receptacle which would be impervious to intestinal processes (should such foolproof packaging exist). Had the narcotics been in loose form, the evidence could have dissipated in defendant’s bloodstream before blood analysis could be undertaken (assuming a small quantity was ingested). Or it is quite possible that, had the officers not forced defendant to expel the substance, there would have been no defendant left to prosecute. Further, although defendant’s constitutional contentions may not be well-satisfied by stating that less reasonable procedures could have been employed by the officers, it is worth noting that defendant’s objections would certainly have been more forceful had the officers permitted him to swallow the contraband and then hauled him off to a hospital to have his stomach pumped. No less intrusive alternatives (e.g., the monitoring of body wastes) were reasonably available to the officers.
This minor intrusion into defendant’s mouth is a reasonable search under the limited circumstances of this case.
VI
We agree with the Court of Appeals that the trial judge did not clearly err in his determination of defendant’s motion to suppress the evidence. The conduct of the police officers did not violate defendant’s right to be free from unreasonable searches and seizures under either the United States or the Michigan Constitutions.
Affirm.
Fitzgerald, C.J., and Williams and Ryan, JJ., concurred with Coleman, J.
Levin, J.
(for reversal). Charles Edward Holloway was convicted by a jury of possession of heroin and possession of cocaine. The drugs were seized following a search of Holloway after he was arrested under an outstanding traffic warrant.
The trial judge denied Holloway’s motion to suppress the evidence, finding the search and the resulting seizure not unreasonable. The Court of Appeals held that this determination was not clearly erroneous. We would reverse.
I
On November 23, 1976, two Battle Creek police officers, Nibley DiMattio and Thomas O’Connell, were operating as part of a tactical surveillance unit which concentrates on various forms of street crime, including narcotics offenses. Late that afternoon, while working in plain clothes and driving an unmarked vehicle, they observed Holloway driving a car in the vicinity. The officers followed Holloway, pulled him over, and advised him that they had a traffic warrant for his arrest.
The officers then noticed two apparently empty film canisters on the seat between Holloway’s legs. As DiMattio removed Holloway from the car to arrest him, Officer O’Connell seized and examined the canisters, finding a brown, powdery residue inside them.
Throughout this period, Holloway was silent and appeared to be chewing on something. After handcuffing Holloway, the officers asked him what was in his mouth. When he refused to answer, the officers forcibly opened Holloway’s mouth by pinching his jaws while pressing on his throat to prevent him from swallowing. Several tinfoil packets later found to contain heroin and cocaine were then extracted from Holloway’s mouth and subsequently admitted at trial.
At the suppression hearing, Officer DiMattio testified that, at the time of the seizure, he had known Holloway for about two years and was aware of Holloway’s recent arrest for possession of narcotics. He further stated that the surveillance unit kept "up almost on a daily basis with driving records, any outstanding warrants, anything that might lead * * * to apprehending * * * in some capacity” people suspected of narcotics trafficking. In fact, just a day or two before the arrest, Officer DiMattio had submitted a LEIN (Law Enforcement Information Network) computer check on Holloway to the Secretary of State’s office and determined that his license had been suspended. Both officers admitted that they were not on traffic duty at the time of the arrest, but had the traffic warrant for Holloway’s arrest attached to a clipboard in their vehicle. One reason for this , practice, according to Officer DiMattio, was so that they would have cause to stop suspected persons and "shake them down”.
Holloway maintains that the traffic stop and arrest were an obvious subterfuge to search for narcotics and that the evidence acquired by the subsequent search of his mouth should be suppressed. We agree.
II
"Pretext arrests” are arrests in which the officer, although making an apparently lawful arrest, is making the arrest to conduct a search for which there is no independent probable cause. The basic principle is simply that "[a]n arrest may not be used as a pretext to search for evidence”, United States v Lefkowitz, 285 US 452, 467; 52 S Ct 420; 76 L Ed 2d 877 (1932).
The lawfulness of an arrest does not automatically render any contemporaneous search and seizure constitutional. When the officer’s purpose is to search, he must have probable cause for the search. If an arrest is a pretext for making a search, then the evidence obtained is inadmissible. When an otherwise unlawful search is made incident to a traffic arrest, the discovery of contraband does not legitimize the search. _
A
The rationale for the pretext-arrest rule becomes clear upon examination of the policy underlying the rule permitting searches incident to arrest. In Chimel v California, 395 US 752, 762-763; 89 S Ct 2034; 23 L Ed 2d 685 (1969), the Supreme Court of the United States said:
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”
Thus, an exception to the Fourth Amendment’s warrant requirement was created in the case of a search incident to arrest because of the danger that evidence may be concealed or destroyed, and because the police need to protect themselves against potentially dangerous arrestees.
There is no reason for concern about the concealment or destruction of evidence in the case of a pretext arrest. When a person is arrested for a traffic violation, there is almost never evidence of the crime which is the subject of the arrest and, hence, nothing to be destroyed.
There may, however, be some reason for concern about the arresting officers’ safety, even where the arrest is for a minor traffic violation. But where the arrest is merely a pretext for making a search which would otherwise violate the Fourth Amendment, the potentially dangerous situation has been created by the officer solely in order to fabricate a justification for searching. It would subvert the Fourth Amendment to permit this artificially created danger to serve as the basis for the search in question.
The constitution permits the police to search in order to facilitate an otherwise lawful arrest. It does not permit them to arrest in order to facilitate an otherwise unlawful search. If this practice were permitted, any minor offense committed by a significant proportion of the population could be used by the police as a basis for arresting and searching whomever they pleased. Recognizing this danger, the Court in Amador-Gonzalez v United States, 391 F2d 308, 318 (CA 5, 1968), stated:
"The significant element in this case is the danger that the lowly offense of a traffic violation — of which all of us have been guilty at one time or another — may be established as the basis for searches circumventing the rights guaranteed by the Fourth Amendment.”
B
Although the Supreme Court of the United States has yet to thoroughly analyze pretext situations, the Court has indicated that activity involving Fourth Amendment rights undertaken on a pretextual basis is unconstitutional. For example, in Abel v United States, 362 US 217, 230; 80 S Ct 683; 41 L Ed 2d 668 (1960), the Court upheld a search incident to the arrest of an illegal alien who claimed that the true motivation of the arresting officers was to search for evidence of espionage. The Court noted that had the arrest been pretextual, "our view of the matter would be totally different”. In South Dakota v Opperman, 428 US 364, 376; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), in approving an inventory search of an automobile, the Court added that there was no evidence that the search had been "a pretext concealing an investigatory police motive”. Most recently, in Steagald v United States, 451 US 204, 215; 101 S Ct 1642; 68 L Ed 2d 38 (1981), police officers, relying upon an arrest warrant, searched the home of a person not named in the warrant, ostensibly to arrest the person named in the warrant. The Court held that, absent exigent circumstances, this practice is unconstitutional. One reason given by the Court was that:
"an arrest warrant may serve as the pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place”. _
United States Courts of Appeals have said that the search must be incident to the arrest, and not vice versa. Where the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself as well as the search is illegal. From this it follows that, on a showing that an arrest was made as a pretext to search, the evidence thus obtained must be suppressed.
In Amador-Gonzalez v United States, supra, the United States Court of Appeals for the Ninth Circuit held that heroin seized after a traffic arrest had to be suppressed where the arrest was a pretext to search for narcotics. The Court said that the officer making the arrest for a minor traffic violation was not assigned to traffic or general enforcement, but was a detective in the narcotics division.
Similarly, in Taglavore v United States, 291 F2d 262 (CA 9, 1961), the Court of Appeals found that the arresting officers had engaged in a deliberate scheme to evade the Fourth Amendment by using warrants for traffic offenses to search the defendant for narcotics. These illegal activities rendered the narcotics seized inadmissible even though the defendant’s conduct had given the officers probable cause to arrest him for possessing narcotics.
We have found no case sustaining a search where it was established that the officers’ purpose in arresting was to conduct an otherwise unlawful search.
C
In the instant case, all the circumstances indi cate that the traffic arrest was merely an excuse to search for evidence of narcotics offenses. Officer DiMattio maintained that the primary purpose in stopping Holloway was to arrest him for a traffic offense. However, judged objectively, the circumstances and the officers’ own testimony reveal that the purpose was to search for evidence of narcotics offenses. At the time of the arrest, both officers, members of a tactical surveillance unit, were working in plain clothes and driving an unmarked car. The officers were not on traffic duty nor involved in general enforcement. They did not witness a moving traffic violation, but had earlier obtained a traffic warrant for Holloway’s arrest. The officers kept outstanding traffic warrants attached to a clipboard in their vehicle so that they would have cause to stop persons suspected of narcotics trafficking and "shake them down”. Officer O’Connell stated that after Holloway was stopped he got into Holloway’s vehicle, sat down next to him, told him that he was under arrest, and then seized the canisters on the seat between Holloway’s legs. He did not say that he had stood outside the car until Officer DiMattio told him about the film canisters, as Officer DiMattio testified. Officer O’Connell had no need to enter Holloway’s vehicle in order to execute the traffic warrant, but it did place him in an advantageous position to search for contraband.
Under these circumstances, where it is unnecessary to speculate about the officers’ subjective intent because the objective evidence is clear, it is apparent that the purpose of the arrest was to search. The fruits of the search must therefore be suppressed.
Ill
It is argued that the search ensued from "plain view” observations made by police officers after a legitimate stop. The plain-view doctrine is, however, subject to limitations. The plain-view exception to the search-warrant requirement developed from the notion that if police happen upon evidence in the course of their legitimate activities, they should not be required to avert their eyes and ignore it. This reasoning does not apply where the plain-view observations resulted from a pretext arrest. Just as the police may not use an arrest as a subterfuge for conducting a search, neither may they use an arrest as a subterfuge for making plain-view observations.
The plain-view rule, like the search incident to arrest rule, carves out an exception to the Fourth Amendment. As such, it should not be allowed to overreach its justification. There is good reason for permitting the police to make use of evidence discovered inadvertently in the course of an otherwise necessary intrusion. There is no reason for permitting them to make unnecessary warrantless intrusions in order to obtain evidence which they could not otherwise obtain.
The fruits of plain-view observations are admissible only if the intrusion they follow was justified on some other grounds. This limitation was stated by Justice Stewart in his plurality opinion in Coolidge v New Hampshire, 403 US 443, 466; 91 S Ct 2022; 29 L Ed 2d 564 (1971):
"What the 'plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion * * *. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure.” (Emphasis supplied.)
The plain-view exception to the Fourth Amendment thus applies only where the intrusion which led to the plain-view sighting was itself justified on other grounds. The plain-view exception does not apply where the arrest was merely a pretext for a search.
The arrest of Holloway was pretextual, and the search and seizure unreasonable. Reversed.
Kavanagh, J., concurred with Levin, J.
Riley, J., took no part in the decision of this case._
The substance of the officer’s testimony with regard to defendant’s usual willingness to talk is as follows:
"Q. [Mr. Norlander (Prosecuting Attorney)]: Now, you also indicated that Mr. Holloway wasn’t saying anything to you. Had you had occasion to talk to Mr. Holloway before on previous occasions?
"A. [Officer DiMattio]: On numerous occasions.
"Q. Prior to the 23rd of November?
"A. Yes, sir.
"Q. All right. And has Mr. Holloway ever been hesitant to talk to you about anything?
"A. Absolutely not.
"Mr. Hofman: I object to that as well, your Honor; that the fact that he on this occasion may have exercised his right to remain silent in no way is material and I think it’s error for the prosecutor to elicit that.
"Mr. Norlander: I’m [sic] Honor, I’m just trying to go back into the probable cause again with the officer. I believe that the whole situation, the officer’s knowledge of the defendant, his relationship with him, his past meetings and dealings with the defendant, I think all go to the issue of probable cause.
"The Court: Is this just one meeting prior that you base this on or more?
"The Witness: On every occasion- that I’ve had contact with Mr. Holloway, sir.
"The Court: How many occasions have you had contact with him?
"The Witness: Countless times, your Honor. I would see Mr. Hollo way a number of times where I’ve had particular conversations with him and personal contact at least 20 times prior to that.
"The Court: It’s your statement that on all those occasions he was talkative with the exception of this one?
"The Witness: Absolutely.
"The Court: For that — to show that purpose, then, your objection is overruled.
"Mr. Norlander: All right. Thank you, your Honor.”
An earlier motion to suppress, made by defendant at the time of his preliminary examination, had been denied by the district judge.
US Const, Am IV; Const 1963, art 1, § 11.
367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
See Minton, Recent Cases, Criminal Procedure — Surgical Removal of Evidence, 43 Mo L Rev 133, 134 (1978).
Also deserving of mention is a case decided between Rochin and Schmerber, Breithaupt v Abram, 352 US 432; 77 S Ct 408; 1 L Ed 2d 448 (1957). The Breithaupt Court, in a pre-Mapp context, confronted with the due process implications of a Schmerber-like involuntary extraction of a blood sample, upheld the procedure, finding it neither brutal nor offensive.
In addition to his claim based upon the Fourth Amendment guarantee against unreasonable searches and seizures, the defendant asserted that his Fourteenth Amendment right to due process, 'his Fifth Amendment privilege against self-incrimination, and his Sixth Amendment right to counsel had been infringed by the extraction of his blood and its use as evidence against him at trial.
MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), since repealed by 1978 PA 368.
MCL 335.341(4)(b); MSA 18.1070(41)(4)(b), since repealed by 1978 PA 368.
People v Holloway, 99 Mich App 174; 297 NW2d 607 (1980).
We do not reach the question whether this intrusion was reasonable.
People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959).
See, e.g., United States v Harris, 321 F2d 739 (CA 6,1963).
Henry v United States, 361 US 98; 80 S Ct 168; 4 L Ed 2d 134 (1959).
See also Preston v United States, 376 US 364; 84 S Ct 881; 11 L Ed 2d 777 (1964); United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973).
See, e.g., 2 LaFave, Search and Seizure, § 5.2(e), pp 281-282.
United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973), and Scott v United States, 436 US 128; 98 S Ct 1717; 56 L Ed 2d 168 (1978), do not suggest otherwise. In Robinson and Gustaf-son, the Court held that when an officer conducts a search incident to an arrest, the fact that the officer does not think that the suspect is armed is irrelevant as long as, viewed objectively, the arrest is valid. Robinson and Gustafson do not suggest that when an officer engages in a deliberate subterfuge to avoid the warrant requirement of the Fourth Amendment, the evidence will be admitted. As Justice Powell said in his concurring opinion:
"Gustafson would have presented a different question if the petitioner could have proved that he was taken into custody only to afford a pretext for a search actually undertaken for collateral objectives. But no such question is before us.” Gustafson, supra, p 238, fn 2.
In Scott, the defendants argued that evidence obtained by wiretap was inadmissible because the officers failed to make good faith efforts to minimize the number of calls intercepted, in violation of 18 USC 2518(5) and the Fourth Amendment. The Court found it unnecessary to consider whether the agents had acted in good faith because, viewed objectively, the number of calls intercepted was reasonable.
Neither the Supreme Court, nor the Courts of Appeals cases cited in Scott, suggested that evidence would be admissible when it is obvious that the search was a deliberate attempt to circumvent the warrant requirement of the Fourth Amendment.
E.g., Henderson v United States, 12 F2d 528, 529 (CA 4, 1926) ("Instead of the search being incidental to the arrest, therefore, the arrest was incidental to if not a mere pretext for the search.”); McKnight v United States, 87 US App DC 151; 183 F2d 977 (1950).
Worthington v United States, 166 F2d 557 (CA 6, 1948).
Worthington v United States, 166 F2d 557, 566 (CA 6, 1948).
See also United States v Keller, 499 F Supp 415, 416, 418 (ND Ill, 1980), in which the officer testified that he "stopped [the defendant] on [a] technical traffic violation only because he hoped to recover evidence of a more serious crime”. The officer then searched the defendant and found several stolen credit cards in his wallet. The Court held that "since the technical traffic violation stop of Keller was purely pretextual, all evidence derived from it should be suppressed”.
One requirement of the plain-view doctrine is that objects observed must be immediately recognizable as evidence incriminating the accused. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). In the case before us, the record discloses conflicting testimony as to whether the canisters between Holloway’s legs were open at the time of the seizure. While both arresting officers maintained that the tops were off the canisters, Officer O’Connell stated that he "opened them up and took a look inside”. Whether the film canisters, open or closed, could be regarded as objects which are immediately recognizable as evidence or implements of a crime is at best uncertain.
Accordingly, we disapprove of People v Edwards, 73 Mich App 579; 252 NW2d 522 (1977), to the extent that it implies that evidence obtained as a result of a "pretext” arrest, but in plain view, is admissible as long as the arrest is not used as a pretext for conducting a search.
Not every case in which evidence is found in open view is subject to the "plain view” rule. The plain-view rule is an exception to the Fourth Amendment and as such applies only when there has been a "search” or “seizure” within the meaning of that Amendment. Where, for example, the police see a crime being committed in a public place, there has been no intrusion into a constitutionally protected area. There is thus no reason to meet the requirements of the plain-view exception in support of a subsequent arrest. See 1 LaFave, Search and Seizure, § 2.2(a), pp 240-243; Scott, "Plain View’’— Anything But Plain: Coolidge Divides the Lower Courts, 7 Loyola U of L A L Rev 489 (1974); Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident’’ Geography Battle, 26 Mercer L Rev 1047 (1975).
The stopping of defendant’s automobile was an intrusion into a constitutionally protected area, and thus the limitations on plain-view searches and seizures apply. As the Supreme Court stated in Terry v Ohio, 392 US 1, 19, fn 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968):
"Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure’ has occurred.”
Harris v United States, 390 US 234, 236; 88 S Ct 992; 19 L Ed 2d 1067 (1968).
None of the justices in Coolidge disputed this limitation. 403 US 490 (Harlan, J., concurring); p 492 (Burger, C.J., dissenting in part and concurring in part); p 493 (Black, J., concurring and dissenting); p 510 (White, J., concurring and dissenting).
There is another reason for our willingness to apply the plain-view doctrine to the officers’ observations at the time of the arrest. In his opinion in Coolidge, p 469, Justice Stewart announced a second limitation on the plain-view doctrine:
"The second limitation is that the discovery of evidence in plain view must be inadvertent.”
One commentator has suggested that Justice Harlan’s concurrence implicitly accepts this limitation, giving it the support of a majority of the Coolidge Court. Moylan, fn 16 supra, pp 1048-1049. Most courts have adopted this limitation. See cases collected in Scott, fn 16 supra, pp 508-509, fn 129.
The inadvertence limitation, like the pretext-arrest rule, is designed to prevent the police from making otherwise lawful intrusions into constitutionally protected areas, in order to obtain evidence that they could not lawfully obtain by other means. To ensure that the plain-view doctrine does not provide any additional incentive for making these intrusions, Justice Stewart thought it wise to limit the admissibility of evidence found in plain view to evidence which is discovered inadvertently. By definition, if the evidence is discovered inadvertently, the intrusion could not have been motivated by the officers’ desire to find it. If the intrusion would not have been conducted absent the expectation that evidence would be found, it is not justified by that expectation alone.
"Justice Stewart may well have meant that plain-view seizures must be limited to inadvertent discoveries in order to prevent the police from using the exception in conjunction with a deliberately timed arrest to seize evidence that, absent a judicially authorized search warrant, would remain hidden.
"In this not uncommon situation, where the police have probable cause to arrest, their best strategy is to defer arrest until the suspect is at home so that they have a chance of discovering evidence in plain view which they would not have had if they made their arrest elsewhere. This use of the arrest power for the ulterior purpose of gaining access to a person’s house amounts to a planned warrantless search and seems at the heart of Justice Stewart’s concern. * * * [I]f non-inadvertence means a less than probable cause expectation that certain evidence will be found, the plurality’s rule eliminates the efficacy of this type of police behavior and limits the invasion of a citizen’s privacy upon arrest to the formal seizure of his person and a limited search incident to the arrest.” The Supreme Court, 1970 Term, 85 Harv L Rev 40, 244-245 (1971). | [
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People v Ford
Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ.
This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
On November 6, 1978, defendant pled guilty to a charge of uttering and publishing a false instrument or other writing. MCL 750.249; MSA 28.446. Defendant was sentenced to a minimum of 4 and a maximum of 14 years imprisonment to be served consecutively with a sentence defendant was already serving.
Following an appeal of right to the Court of Appeals, that Court set aside defendant’s conviction, holding that it was an abuse of prosecutorial discretion to charge defendant under the general uttering and publishing statute when, on the facts presented, there existed a more specific charge, misuse of a credit card. MCL 750.157q; MSA 28.354(16). People v Richard Ford, 95 Mich App 412; 291 NW2d 60 (1980).
This Court granted leave to appeal to determine the impact of the credit card protection act on the issue of whether an accused who forges a credit card slip is properly chargeable with uttering and publishing, and whether the prosecutor abused his discretion in charging the defendant in the instant case under the uttering and publishing statute.
We hold that the credit card statutes do not preclude charging an accused with uttering and publishing when a credit card slip is forged and that, on the facts of this case, there was no abuse of prosecutorial discretion. The Court of Appeals decision is reversed and defendant’s conviction is reinstated.
Facts
On July 22, 1978, defendant presented a Clark Oil credit card to the attendant of a Battle Creek area gas station. The card had been issued to the Calhoun County Action Agency in the name of A1 Johnson. Defendant signed the name A1 Johnson on the credit card sales slip and obtained $21.30 in cash from the attendant. Defendant’s possession and use of the credit card were unauthorized. Defendant admitted that when he presented the card he did so with the intent to defraud the attendant._
Defendant was charged with uttering and publishing in violation of MCL 750.249; MSA 28.446. Defendant’s guilty plea to the charge was entered pursuant to a plea agreement. Under this agreement, the prosecutor agreed to recommend to the court a 5- to 14-year sentence and further, that a supplemental information would not be filed. Defendant was sentenced to a 4- to 14-year term to be served consecutively to the sentence he was already serving.
In setting aside the defendant’s conviction, the Court of Appeals held that it was an abuse of prosecutorial discretion to charge defendant with uttering and publishing, carrying a maximum 14-year penalty, when a more specific statute, credit card misuse, carrying a maximum 4-year penalty was more applicable to the offense.
I
There is no dispute that defendant’s forgery of the credit card sales slip, combined with his presentation of the slip and his intent to defraud, constitutes the offense of uttering and publishing. People v Hester, 24 Mich App 475; 180 NW2d 360 (1970). On the facts of the instant case, defendant could also have been charged with misuse of a credit card, since defendant used the credit card knowing that such use was unauthorized.
Defendant contends that by its passage of the credit card bill, 1967 PA 255, the Legislature demonstrated its intent that all credit card crime would be controlled by this act’s eight sections. Therefore, claims defendant, it was improper for the prosecutor to charge him with the general uttering and publishing violation when the more specific credit card statute was applicable.
Because there is no exclusivity provision in the credit card statutes, it is necessary to ascertain what effect the Legislature intended the current credit card statutes to have on other statutory violations.
The enactment of the present credit card statutes, MCL 750.157m-750.157u; MSA 28.354(13)-28.354(20) in 1967 replaced the single credit card statute which had punished misuse of a credit card as a misdemeanor. MCL 750.219a; MSA 28.416(1). When this single credit card statute was in effect, the Michigan Court of Appeals decided two cases on point. In People v Hester, supra, the Court upheld the defendant’s conviction of forgery of a credit card slip under the uttering and publishing statute. Although the issue whether Hester was properly charged under the general statute instead of the credit card statute was not directly addressed, the Court was cognizant of the issue. Hester, p 483.
In People v Shaw, 27 Mich App 325; 183 NW2d 390 (1970), lv den 385 Mich 760 (1971), the defendant was charged with forgery of a credit card slip contrary to MCL 750.248; MSA 28.445 and was convicted following a jury trial. Shaw’s argument on appeal was the same as that advocated by defendant Ford in this case. Shaw contended that the prosecutor had abused his discretion in charging him under the general forgery statute when the statute concerning the unauthorized use of a credit card was available.
While the Shaw Court acknowledged the "fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control”, it found this rule not to be applicable because the two statutes did not cover the same subject matter. Shaw, p 326. The actual forgery necessary to establish an offense under the forgery statute was not necessary to prove the offense of credit card misuse. Therefore, the Shaw Court held: "Where the specific credit card offense charged did not necessarily involve the same elements as a more general statutory prohibition, a specific credit card statute will not preclude prosecution or conviction under more general statutes.” Shaw, p 327.
We hold that the Shaw Court’s analysis is still good law and is applicable to the case at bar. Defendant Ford could have been charged under the present credit card statute; however, his prosecution under the general uttering and publishing statute was not precluded. Violation of the credit card statute occurs whenever a credit card is knowingly misused, regardless whether .a forgery is committed. When the facts of a given case indicate that the additional element of forgery is present, then the facts will support a conviction under either the general statute or the credit card statute.
Defendant Ford claims that the Shaw analysis can no longer be used in light of the credit card act. However, there are several indications that the Legislature did not intend these statutes to be the exclusive chargeable offenses when misuse of a credit card includes presentation of a forged credit card slip.
First, all but one of the seven specific offenses delineated are felonies, compared to the prior single credit card offense which was a misde meanor. This indicates the Legislature’s intent to attach harsher penalties to credit card crimes. Forgery of a credit card sales slip or presentation of a slip was already a felony with a maximum sentence of 14 years. The punishment matrix developed by the Legislature in the credit card statutes was intended to complement the existing general felony statutes.
In addition, a close analysis of the included offenses in the credit card act reveals that a substantive offense such as the one at bar was not specifically addressed. This is especially significant when one notes the detail and specificity of the new offenses which are included. The Legislature’s failure to specifically address the act of misusing a credit card involving a forgery in its list of credit card misuse felonies indicates that the omission was deliberate. This is made even clearer by the fact that forgery committed by any person to whom a credit card is presented is covered. MCL 750.157u; MSA 28.354(20).
Furthermore, it is logical to reason that the Legislature intended the general forgery statutes to be applicable when misuse of a credit card includes, a forged sales slip. The additional forgery element makes the offense more culpable, thus justifying different treatment and a harsher penalty. Prior to the enactment of the credit card statutes, the act of presenting a forged credit card slip could have been punished as a felony under either the forgery statute (see fn 4) or the uttering and publishing statute (see fn 1). None of the specific felony credit card offenses listed in the credit card act is clearly applicable to the factual scenario of the instant case. We thus conclude that in passing the credit card act, the Legislature intended to specify more credit card misuse offenses as felonies than those cases in which a felony could already be chargeable because a forgery was involved. Accordingly, in those credit card misuse cases which include a forgery, the Legislature left it within the discretion of the prosecutor to charge under either the general statutes or the credit card statutes.
The instant case is unlike People v LaRose, 87 Mich App 298; 274 NW2d 45 (1978), Iv den 406 Mich 943 (1979), which held that it was an abuse of prosecutorial discretion to charge the defendant under the general false pretenses statute, MCL 750.218; MSA 28.415, instead of under the statute which prohibits delivery of an insufficient funds check, MCL 750.131; MSA 28.326. On the facts of LaRose, the defendant’s only false pretense was his false representation incident to the giving of an insufficient funds check. Therefore, the Court concluded that LaRose should have been charged under the insufficient funds statute. The LaRose Court did acknowledge, however, that the presentation of an insufficient funds check if accompanied by additional false representation may justify conviction under the false pretenses statute. See, e.g., People v Vida, 2 Mich App 409; 140 NW2d 559 (1966), aff'd 381 Mich 595; 166 NW2d 465 (1969), and People v Niver, 7 Mich App 652; 152 NW2d 714 (1967).
Since this case involves misuse of a credit card and the additional element of forgery, under the LaRose analysis defendant Ford could be charged under either the general statutes or the credit card statute. The case at bar is not a case in which two possible applicable statutes prohibit the same conduct. Rather it is a case where the statutory crimes are distinct.
This point was found determinative in People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975), aff’d 402 Mich 460; 265 NW2d 1 (1978).. The Sanford defendants argued that it was an abuse of prosecutorial discretion to charge them with assault with intent to rob while unarmed, MCL 750.88; MSA 28.283, instead of with unarmed robbery, MCL 750.530; MSA 28.798. The Court rejected the defendants’ claim that the two statutes prohibited the same conduct: "Because MCL 750.88; MSA 28.283 requires an assault as an element, and because MCL 750.530; MSA 28.798 requires either an assault or force and violence, the two statutes prohibit different crimes. The prosecutor properly has the discretion to charge defendants under either statute.” Sanford, p 105.
This same analysis applies to the instant case. The knowing presentation of a forged writing is a requisite element of the uttering and publishing offense. This element is not required to support a conviction under the credit card statute. Therefore, as in Sanford, the prosecutor has the discretion to charge under either statute. _
II
Having found that the facts of this case support charges under both the uttering and publishing and the credit card statutes, we now examine the prosecutor’s decision to charge under the general 14-year felony statute rather than the 4-year credit card felony statute to determine whether there was an abuse of discretion.
Prosecutors have broad discretion in determining under which of two applicable statutes to prosecute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). However, that discretion is not unlimited. Bordenkircher v Hayes, 434 US 357, 365; 98 S Ct 663; 54 L Ed 2d 604 (1978). This Court can review and correct an abuse of discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). It is the danger of arbitrary and discriminatory law enforcement that must be protected against. The record , of this case adequately supports the prosecutor’s exercise of his charging discretion. The facts do not support a finding of árbitrary or discriminatory charging.
The Court of Appeals finding of prosecutorial abuse was based on considerations of the maximum penalties, 4 and 14 years, of the two possible chargeable offenses and the relatively small sum of $21.30 obtained by the defendant. Although these factors may properly be considered, they constitute an insufficient basis on which to find abuse of prosecutorial discretion. Other factors which should be considered include the circumstances under which the crime took place, such as the offender’s role in the crime and his motive, and factors personal to the particular offender, such as age and general background.
Prior to the issuance of the warrant in the instant case, the prosecutor considered several factors before making his decision to charge under the uttering and publishing statute. In examining the nature of the crime involved, as discussed in Part I, the misuse of a credit card included the additional element of a forged credit card slip, making the crime even more culpable. Also, the police report indicated that the defendant had made numerous fraudulent credit card purchases between June 23, 1978, and July 23, 1978, on a Calhoun Community Action Agency credit card at a Battle Creek Clark gas station. A review of the credit card slips involved in these purchases indicated a loss of more than $1,500.
Furthermore, in considering the personal factors of this particular defendant, the prosecutor was confronted with a 34-year-old suspect with an extensive criminal record which spanned the past 17 years. We find adequate justification for charg ing defendant with the greater offense.
Conclusion
Accordingly, the Court of Appeals decision is reversed, and defendant’s conviction under MCL 750.249; MSA 28.446 is reinstated.
Fitzgerald, C.J., and Williams, Coleman, and Ryan, JJ., concurred.
Kavanagh, J.
(for affirmance). I am satisfied that the enactment of the specific statute covering crimes involving the forgery and use of credit cards was a clear expression of legislative intent that they should be distinguished from crimes involving the forgery and uttering and publishing of other forms of commercial paper.
For this reason I would hold that prosecution of credit card crimes must be brought under MCL 750.157m-750.157u; MSA 28.354(13)-28.354(20) and not under MCL 750.249 et seq.; MSA 28.446 et seq.
I would affirm the judgment of the Court of Appeals.
Levin, J., concurred with Kavanagh, J.
People v Gonzales
People v Howard
Williams, J.
The basic issue in this case is what discretion, if any, prosecutors have to charge a defendant with the felony of larceny in a building rather than with the misdemeanor of general larceny, when items under $100 in value are stolen from a store. The additional critical requirement in charging the felony is that the misconduct take place in a building.
The prosecutors argue in limine that the exercise of such discretion is immune from judicial review except for discriminatory and intentional prosecution on the basis of such criteria as race, religion or penalizing the exercise of a constitutional right. They base this immunity on the con stitutional separation of powers. However, they further argue that if this Court finds grounds for review, their discretion to choose between two applicable statutes is recognized by this Court, for example, in Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), and by the United States Supreme Court in United States v Batchelder, 442 US 114; 99 S Ct 2198; 60 L Ed 2d 755 (1979).
Defendants, for their part, maintain that the Legislature did not intend "to have the larceny in a building statute applicable in shoplifting cases”, relying on People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978). Furthermore, defendants argue that if the Legislature did intend a statutory scheme permitting a prosecutor to charge petty shoplifting as either a felony or a misdemeanor, such legislation is unconstitutional for three reasons. First, it lacks due process for failure to provide adequate clarity to notify the defendant of standards to govern prosecutorial discretion. Second, it denies equal protection, because it gives unguided discretion to the prosecutor to charge the same acts as either a misdemeanor carrying a 90-day penalty, or a felony carrying a four-year penalty. Third, permitting a four-year penalty for petty shoplifting is cruel and unusual punishment. In the Howard case, defendant also claims that he lacked effective assistance of counsel.
We hold that this Court has jurisdiction to review the exercise of prosecutorial discretion in the choice of statutes under which to charge where it is contended that such choice violated a constitutional right. We also hold that no right was violated in these cases and that a prosecutor may charge larceny in a building rather than general larceny, although the larceny involved items valued less than $100, where there is no proof of invidious discrimination by the prosecutor. We further hold that defendants, in failing to argue the cruel and unusual punishment issue in the Court of Appeals or to raise it in their application for leave to appeal to this Court, failed to preserve the matter. Finally, without prejudice, we do not review the issue of ineffective assistance of counsel in the Howard case because the record is inadequate and present counsel failed to ask the trial court for a Ginther hearing.
I. Facts
A. People v Gonzales
On November 10, 1977, the defendant was arrested in Belscott’s Department Store, where it was alleged that he stole a shirt and two pairs of slacks. On November 12, 1977, a warrant was issued charging defendant with larceny in a building, MCL 750.360; MSA 28.592. A preliminary examination was conducted on November 22, 1977.
According to the testimony of the store security guard, defendant and an accomplice secreted a shirt and two pairs of slacks in a paper bag while inside the store. When confronted at the store exit, defendant refused a request by the guard to inspect the bag. Defendant broke away and ran, leaving the bag behind. Shortly thereafter, the
police apprehended the defendant and returned him to the store. On December 5, 1977, defendant was arraigned on the information in Berrien County. Several weeks later, a supplemental information was filed charging defendant as a prior offender because of a previous conviction of larceny in a building.
In January of the following year, the defendant pled guilty in exchange for the prosecutor’s promise to forego prosecution on the supplemental information. He was sentenced to a term of from 2-1/2 to 4 years imprisonment. He appealed to the Court of Appeals, which affirmed his conviction in an unpublished per curiam opinion.
We granted defendant’s application for leave to appeal on November 20, 1980. 409 Mich 945 (1980).
B. People v Howard
On September 8, 1978, defendant was arrested in a Spartan Atlantic Department Store with a codefendant for stealing three pairs of pants. Defendant was charged with larceny in a building. He exercised his right to a jury trial, but part way through voir dire he elected to plead guilty as charged, allegedly in exchange for the prosecutor’s agreement to recommend a minimum sentence of one year.
The trial court in Wayne County accepted the plea and sentenced defendant to from 2-1/2 to 4 years imprisonment. While the case was pending on appeal before the Court of Appeals, the trial court signed a nunc pro tunc correction of sentence which amended it to from 1 to 4 years. The Court of Appeals issued its opinion affirming defendant’s conviction.
We granted defendant’s application for leave to appeal on November 20, 1980. 409 Mich 945 (1980).
II
We first consider plaintiffs’ contention that "the prosecutor’s election to charge the higher of two applicable statutes is not subject to judicial review”. It is true that under the doctrine of constitutional separation of powers each branch of government is sovereign in its own sphere. Const 1963, art 3, § 2. However, it is basic law that the authority to determine the parameters of power to be exercised by each branch is vested in the courts. Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 135 (1803). This authority "is an awesome power and responsibility and must be exercised both courageously and with understanding and restraint”. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 675; 194 NW2d 693 (1972). The self-imposed principle of judicial restraint must yield, however, when, as here, the activity of the executive branch is alleged to be unconstitutional, illegal, or ultra vires. See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974); Detroit v Wayne Circuit Judge, 79 Mich 384; 44 NW 622 (1890). We therefore proceed to determine what discretion, if any, a prosecutor has in the matter at hand.
III. Prosecutorial Discretion
The prosecutor is the chief law enforcement officer of the county. His office is recognized in the constitution. His duties and powers are established by statute. We commented on the prosecutor’s broad discretion in the determination on which of two statutes to base a charge in Genesee Prosecutor v Genesee Circuit Judge, supra, 386 Mich 683, as follows:
"We have held in the past that the prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be instituted. People v Lombardo, 301 Mich 451, 453 (1942); People v Thrine, 218 Mich 687, 690, 691 (1922); People v Mire, 173 Mich 357, 364 (1912). See also People v Graves, 31 Mich App 635, 636 (1971); People v Eineder, 16 Mich App 270, 271 (1969); People v Byrd, 12 Mich App 186 (1968), concurring opinion of Levin, J., 197, particularly fn 7; People v Ryan, 11 Mich App 559, 561 (1968).”
In this 1972 Genesee Prosecutor case, the circuit judge, against the will of the prosecutor, granted the defendant’s motion which allowed him to plead guilty to unlawfully driving away the automobile of another in lieu of the more severely penalized felony, possession of a motor vehicle known to be stolen, which the complaint had charged. We held that the court could not do this and that the prosecutor had discretion to charge under the statute of his choice, but limited our decision to the facts where the statute presenting a less severe penalty was not a "lesser included offense” of the greater. 386 Mich 684.
In the 1974 Genesee Prosecutor case, we reached the same conclusions where the circuit judge sought to accept, over the objections of the prosecutor, a plea of a "lesser included offense” of the crime charged, to wit, a plea of manslaughter to a charge of second-degree murder. 391 Mich 119, 122.
The Genesee Prosecutor cases stand for the proposition that a prosecutor may insist on prosecuting the greater offense even though the circuit judge wishes to accept a plea on a lesser offense, regardless of whether it is a separate or a lesser included offense. Obviously, in both cases the elemental misconduct was similar, and, in the 1974 (lesser included offense) case, the elemental misconduct was the same by definition.
As a consequence, unless there is some other reason, these cases stand as precedent to affirm the instant convictions, and, therefore, since we find no such reason, we hold that it is not an abuse of prosecutorial discretion to charge the felony of larceny in a building although the misdemeanor of general larceny might also have been charged.
IV. Legislative Intent Not to Include Shoplifting in the Larceny in a Building Statute
Defendants maintain that the Legislature did not intend to have the larceny in a building statute apply to shoplifting cases. They both rely on the following dictum from People v Carmichael, supra, 86 Mich App 422:
"It was not the intent of the Legislature to have the larceny in a building statute applicable in shoplifting cases.”
However, it is the first rule of statutory construction that where the language of a statute is clear and unambiguous, there is no need for interpretation of what the Legislature intended, because it has said what it intended. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971). The statute in question, MCL 750.360; MSA 28.592, reads as follows:
"Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony.”
As here applicable, the statute reads: "Any person who shall commit the crime of larceny by stealing in any * * * store * * * shall be guilty of a felony”. Nothing could be plainer or simpler. There is no suggestion that "larceny by stealing” is in any way limited by the value of the object stolen. It simply refers to the commission of "the crime of larceny by stealing”. In other words, MCL 750.360; MSA 28.592 is clear and unambiguous.
Furthermore, it is clear beyond peradventure that defendants’ acts of stealing clothing valued at under $100 in store buildings certainly fell within the proscription of the statutory language.
The fact that the same misconduct is also chargeable under the general larceny statute raises no special implications. As we have already noted in Genesee Prosecutor and other cases, the same misconduct can be and commonly is the subject matter of different statutes with different penalties. We particularly noted that the whole phenomenon of lesser included offenses indicates that the appearance of the same misconduct in a number of statutes is a general occurrence. In other words, the larceny in a building statute and the general larceny statute can be construed easily together, because no ambiguity is created by the fact that they have certain elements of misconduct in common. Despite these common elements, they are separate, independent statutes and must be so treated.
Returning to Carmichael, the quoted dictum appears to have been an honest but aberrant opinion. Other opinions of the Court of Appeals, both before and after Carmichael, have not noted any intention of the Legislature to except shoplifting from the intendment of the larceny in a building statute and have held to the contrary. Two cases in particular have considered the matter directly and thoughtfully. The seminal case of People v Jackson, 29 Mich App 654, 655-656; 185 NW2d 608 (1971), after setting forth the facts succinctly, covered most of the arguments raised in this case.
"Defendant argues that the conviction under the felony offense of larceny, when the stolen property is valued at $100 or less, is contrary to legislative intent. We do not accept defendant’s interpretation.
"Defendant would be guilty under either of the larceny statutes. The legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant, deserve felony status. See Black v Gladden, 237 Or 631; 393 P2d 190 (1964).
. "The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942); People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968); People v Eineder, 16 Mich App 270; 167 NW2d 893 (1969).
"Defendant’s arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the legislature to distinguish simple larceny and larceny in a building as separate social evils.
"Defendant’s further argument that the prison term constitutes cruel and unusual punishment is also merit-less. The prison term given defendant is not so disproportionate to the crime as to shock the conscience of this Court.”
This case established the law until Carmichael. Subsequent to Carmichael, the leading case has been People v Evans, 94 Mich App 4; 287 NW2d 608 (1979), which carefully considered the policy implications raised by the issue and found no abuse of prosecutorial discretion in charging larceny in a building where the theft was petty but the thief was an habitual offender.
In conclusion, it appears to us that the Legislature has clearly expressed its intention in the larceny in a building statute and that petty larceny in a store falls within the proscription of that statute.
V. Violation of Due Process Because of Lack of Legislative Standards
Defendants assert that the statutory scheme, permitting the prosecutor to charge the same act as either general larceny or larceny in a building, denies defendants due process. They rely heavily on Giaccio v Pennsylvania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1966). In Giaccio, the defendant, although found not guilty of a misdemeanor charge, was, under a peculiar Pennsylvania statute, assessed costs. The statute permitted the jury, after an acquittal in a case, to assess costs in their sole and unguided discretion against the county, the prosecutor, or the defendant with the further provision that if the defendant did not pay costs assessed against him, he would be committed to jail until the costs were paid, unless he gave security to pay within ten days. The United States Supreme Court held that there was a lack of due process because of vagueness and failure to provide legal standards.
The Giaccio case is not on point. First of all, the United States Supreme Court in that case found the Pennsylvania statute to be vague, whereas we find no vagueness in the statutory scheme here in question. Second, the problem of delegation is entirely different. In Giaccio, the jury was assigned an exotic duty with which it had no prior experience. In the instant case, as Batchelder, supra, indicates, the delegation of duty to prosecutors "is no broader than the authority they routinely exercise in enforcing criminal laws”. 442 US 126. In other words, there is "guidance * * * as reasonably precise as the subject matter requires”. Osius v City of St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956).
A. Vagueness
It is well established in due process analysis that the underlying principle is that no person shall be held criminally responsible for conduct which a person could not reasonably understand to be proscribed. See Colten v Kentucky, 407 US 104; 92 S Ct 1953; 32 L Ed 2d 584 (1972); United States v Harriss, 347 US 612; 74 S Ct 808; 98 L Ed 989 (1954); State v Lashinsky, 81 NJ 1; 404 A2d 1121 (1979). See also United States v Batchelder, supra. An additional tenet is that no person may be subject to peril of life, liberty, or property without a settled understanding of the potential sanctions or punishments established by a penal statute. A criminal statute will fall if it fails to give a person of ordinary intelligence reasonable notice that his behavior may be unlawful. United States v Batchelder; United States v Harriss. The key in resolving this issue is to determine whether the statutory scheme in question describes with sufficient clarity the consequences of violating the relevant criminal statute.
On a constitutional due process basis, it should make no difference, without a showing of something more, that two statutes cover the same conduct. Even if particular conduct violates more than one statute, this phenomenon alone does not diminish the notice afforded by each statute:
"Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provi sions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” United States v Batchelder, supra, 123. Accord, State v Weiner, 126 Ariz 454; 616 P2d 914 (1980).
Thus, since there is no allegation that the statutes in question do not individually describe crimes with sufficient particularity, we hold that such a statutory scheme in and of itself does not violate due process under the Michigan Constitution or the United States Constitution.
B. Impermissible Delegation
Defendants further believe that the statutory scheme of larceny in a building and general larceny provides for great disparity of treatment because there is no guidance in regulating prosecutors when they choose between these two provisions in prosecuting the defendants. Simply stated they believe that the alleged lack of standards is per se objectionable. We do not agree.
In United States v Batchelder, the defendant was convicted and sentenced under a federal statute prohibiting a previously convicted felon from receiving a firearm that has traveled in interstate commerce (18 USC 922[h]). This statute carried a five-year maximum penalty. The Court of Appeals for the Seventh Circuit reversed the sentence on the basis that the substantive elements of 18 USC 922(h) were identical with 18 USC Appendix 1202(a) which carries only a two-year maximum penalty. The Circuit Court of Appeals also postulated that the statutes might impermissibly delegate to federal prosecutors the legislative responsibility to set criminal penalties. The Supreme Court, however, soundly rejected this reasoning by stating:
"The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment * * * Congress has fulfilled its duty.” 442 US 126.
In our opinion, Batchelder answers the arguments advanced by the defendants.
VI. Violation of Equal Protection
Defendants assert that prosecutorial discretion to charge either the felony of larceny in a building or the misdemeanor of general larceny for petty shoplifting violates constitutional guarantees of equal protection. Their arguments are twofold. First, they rely on cases from four other states that seem to have adopted such a rule. Second, they rely on Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886).
Defendants argue that People v Calvaresi, 188 Colo 277; 534 P2d 316 (1975), State v Hagge, 224 NW2d 560 (ND, 1974), State v Pirkey, 203 Or 697; 281 P2d 698 (1955), State v Zornes, 78 Wash 2d 9; 475 P2d 109 (1970), and State v Collins, 55 Wash 2d 469; 348 P2d 214 (1960), are persuasive precedent. However, while these cases are interesting and discuss equal protection, they are inapposite.
The issue in the instant case is whether the prosecutor can charge a defendant under a felony statute rather than a misdemeanor statute where the act in question clearly is proscribed by both statutes and where there is no question as to the validity of either statute. In Calvaresi, the court declared one statute to be unconstitutional because it created a felony out of a "reckless” homicide, whereas another statute created a misdemeanor out of a "negligent” homicide, since the distinction between "reckless” and "negligent” was only semantic. In Hagge and Collins, the two courts held that the statutes under which the defendants were charged were repealed by implication by other special statutes relating to the same conduct. In Pirkey, the statute was declared unconstitutional because it defined only one crime but left it up to the jury or magistrate to penalize it as a misdemeanor or a felony. But see Klamath Falls v Winters, 289 Or 757; 619 P2d 217, 231 (1980) (the court in effect recognizes that Batchelder overrules Pirkey). In Zornes, the court held that a misdemeanor statute decriminalizing marijuana, which was passed while the case was pending before- the court, was retroactive and controlling rather than the prior statute which defined marijuana as a narcotic drug and made possession of such a drug a felony. In all these cases, the prosecutor was precluded from charging under a particular statute, not because of limitations of the law of prosecutorial discretion, but because the statute charged was invalid for one reason or another.
The defendants also argue that there has been illegal invidious discrimination in the application of the larceny in a building statute and hence a denial of equal protection under the doctrine of Yick Wo v Hopkins, supra. In general they have been innovative in this statistical argument, but they have left unacceptable gaps in their development of it.
The criterion to be used in determining whether the charging of a felony rather than a misdemeanor violates equal protection because of invidi ous discrimination is the two-prong test of intentional and purposeful discrimination. United States v Swanson, 509 F2d 1205, 1208-1209 (CA 8, 1975). First, it must be shown that the defendants were "singled” out for prosecution while others similarly situated were not prosecuted for the same conduct. Second, it must be established that this discriminatory selection in prosecution was based on an impermissible ground such as race, sex, religion or the exercise of a fundamental right. United States v Larson, 612 F2d 1301 (CA 8, 1980), cert den 446 US 936 (1980).
The defendants respond by asking this Court to take notice of the following facts. In 1977 in the United States, twice as many whites were arrested for larceny-theft as were blacks. The percentage of blacks in the United States is 11.7 and the percentage in Michigan is 11.2. Since the national number of arrests of whites for this category is more than twice that of blacks, it must be concluded that more than twice as many whites as blacks were arrested for this category in Michigan. Given the greater than two-to-one disparity in arrests, they claim a racially neutral application of the statute would result in twice as many whites being charged with the felony, and, thus, twice as many whites should go to prison for this category. There are no racial statistics in Michigan of those incarcerated for larceny in a building. However, because the composition of the Michigan prison system as of June 30, 1978, was 38.5% white and 56% black, the defendants conclude that the administration of sentencing for the larceny statutes is racially discriminatory.
The defendants have attempted an interesting method of analysis, but they have not dug deeply enough. Perhaps a better articulated and more logically connected analysis might show some of their objectives. But as it is, they ask us to take a quantum leap in equal protection analysis based on unproven assumptions and non-sequitur statistical inferences. Thus, under the two-prong test, the defendants have not shown that they have been singled out for prosecution. But more importantly, under the second prong, they have not shown a governmental purpose to discriminate in this neutral statutory scheme. In the absence of a purpose to cause racial discrimination, governmental action that has a disproportionate effect on a racial minority is not unconstitutional. Such an effect may permit an inference of an unlawful purpose, but, standing alone, it is not conclusive on the question whether governmental activity is racially discriminatory. See, e.g., Arlington Heights v Metropolitan Housing Development Corp, 429 US 252, 265; 97 S Ct 555; 50 L Ed 2d 450 (1977); Washington v Davis, 426 US 229, 242; 96 S Ct 2040; 48 L Ed 2d 597 (1976).
Additionally, the defendants argue an equal protection violation because they view the two larceny statutes to be duplicative in proof, allowing the prosecutor to create an arbitrary or discriminatory classification of defendants. See, e.g, Comment, Prosecutorial Discretion in the Duplicative Statutes Setting, 42 U Colo L Rev 455, 464-465 (1971). Actually, the two statutes under consideration, strictly speaking, do not fall within the definition of "duplicative”. According to the Colorado Law Review Comment, an example of a "duplica tive” situation is where "one statute proscribes 'possession of marijuana, LSD, or heroin’ as a felony, and another statute proscribes 'possession of marijuana’ as a misdemeanor, and if the requirements of proof placed on the prosecutor to sustain a conviction under the harsher statute are not more severe”. 42 Colo L Rev 462.
The two statutes in the instant case are not duplicative in that sense. On the one hand, the general larceny statute makes the unlawful stealing of tangible or intangible personal property of another a misdemeanor if the value of such property is under one hundred dollars. MCL 750.356; MSA 28.588. On the other hand, larceny in a building includes the elements of the general larceny statute, but it also includes one more important requirement, i.e., the statute requires proof beyond a reasonable doubt that the stealing occurred "in any dwelling house, house trailer, office, [or] store”. MCL 750.360; MSA 28.592. Thus, the Legislature has made it clear that before a certain class of larceny will be defined as a felony, the stealing must take place in one of the enumerated structures. In its wisdom, the Legislature has viewed the permanent taking of property in such structures to be more serious criminal activity. We cannot hold its action to be arbitrary or discriminatory. Furthermore, as the Supreme Court stated in Batchelder, supra, 442 US 125:
"[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.”
We find the same reasoning to be persuasive, and we hold that the exercise of discretion in these cases does not per se violate the Equal Protection Clause under either the federal or Michigan Constitution. See, e.g., United States v Brown, 602 F2d 909 (CA 9, 1979), cert den 446 US 966 (1980); State v Weiner, 126 Ariz 454; 616 P2d 914 (1980); State v Watts, 601 SW2d 617 (Mo, 1980); Klamath Falls v Winters, 289 Or 757; 619 P2d 217 (1980); Strickland v State, 276 SC 17; 274 SE2d 430 (1981); Mack v State, 93 Wis 2d 287; 286 NW2d 563 (1980); State v Karpinski, 92 Wis 2d 599; 285 NW2d 729 (1979).
VII. Cruel and Unusual Punishment
Both defendants argue that their sentences are invalid because they constitute cruel and unusual punishments. However, neither defendant argued this point in the Court of Appeals, nor raised it in his application for leave to appeal to this Court. In the Gonzales case, the prosecutor has argued that the matter is not properly before this Court and therefore should not be considered. People v Tyler, 399 Mich 564, 571; 250 NW2d 467 (1977). The prosecutor in Howard did not respond at all.
The rule certainly is that when a matter is not properly raised this Court will not consider it. Occasionally, this Court does make an exception where the matter is particularly significant and involves a miscarriage of justice. See People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972). Here the significant question is whether a prose cutor can exercise his discretion to charge the larceny in a building felony rather than the general larceny misdemeanor, and this is the question that the briefs and oral arguments have principally addressed. Furthermore, both defendants were sentenced within statutory limits and both defendants had prior felony records. We therefore see no reason to depart from our general rule.
VIII. Written Prosecutorial Standards
In addition to claiming that there were no legal standards to guide prosecutorial discretion, defendants decried the lack of written charging policies in most prosecutors’ offices. The Gonzales brief, for example, states: "The lack of formal charging policies in shoplifting cases is not only a violation of due process, it is a violation of the American Bar Association Standards”.
Nothing advanced in the way of argument or precedent by the parties convinces us that the lack of guidelines violates due process, although later argument might do so. Of course, we do not sit to enforce ABA standards. Nevertheless, we are impressed that charging guidelines might conceivably be a subject worthy of consideration in a proper forum in order to promote fair and uniform administration of justice, in which we, of course, have a decided interest and responsibility.
Michigan prosecutors might do well to take the initiative in developing their own guidelines for the exercise of prosecutorial discretion. Undoubtedly the State Bar Association, the Attorney General and other experts in the field would be available to render assistance, if, and when, the prosecutors would find such help useful. While this Court sees no immediate reason for it to be involved in this action in any of its capacities, it is not beyond possibility that, at a proper time and under appropriate circumstances, it might consider doing so. In any event, it believes that, for the present, the initiative properly lies with the prosecutors.
IX. Ineffective Assistance of Counsel
In Howard, the defendant asserts that he was denied effective assistance of counsel. Factually the record shows that on at least one occasion he was scheduled to go to trial and that date was postponed. On that occasion, defendant had subpoenaed two witnesses to appear in his behalf. On the next scheduled trial date, he exercised his right to a jury trial, but part way through voir dire he elected to plead guilty to the charged offense as the prosecutor agreed to recommend a sentence of one year.
The trial judge began explaining the rights that defendant was giving up in pleading guilty. In explaining the defendant’s right of compulsory process, the trial judge engaged in the following dialogue with the defendant:
’’The Court: You have a right to call your own witnesses if you have any, and if you had any difficulty in obtaining their presence, the court would assist you. Do you understand that?
’’Defendant Howard: Would you say that again, sir, please?
’’The Court: You have a right to call witnesses on your own behalf.
’’Defendant Howard: Uh-huh.
’’The Court: And if they refused to attend these hearings, then the court would order their presence.
"Defendant Howard: Is it true, sir, they will order their presence and they must show?
"The Court: Or go to jail.
"Defendant Howard: Yes, sir. Well, like I — that’s the problem, your Honor. My witnesses didn’t show.
"The Court: And that is the reason you are offering the plea?
"Defendant Howard: Yes, sir.
"The Court: Okay. Where are the witnesses?
"Defendant Howard: They both had jobs. One work at Fords and the other work at some other job. I forgot the other place where he work at. We was here on the other two days and they postponed them. Then I get arrested for violation of parole, and I been in the county jail since then.
"The Court: All right. Do you have their names?
"Defendant Howard: Yes, sir, I got their names.
"The Court: What are their names?
"Defendant Howard: Mr. Kenneth Walton and a Mr.—
"The Court: Kenneth?
"Defendant Howard: Yes.
"The Court: What is the last name?
"Defendant Howard: Walton.
"The Court: Walton?
"Defendant Howard: Yes, sir.
"The Court: And what is their address — or do you know their address?
"Defendant Howard: No, sir, I don’t know their address. I know Mr. James, he stay on—
"The Court (Interposing): What is his name?
"Defendant Howard: A1 James.
"The Court: A1 James?
"Defendant Howard: Yes, sir.
"The Court: All right.
"Defendant Howard: And I have another problem, your Honor.
"The Court: Where does Mr. James live?
"Defendant Howard: He — he live in Inkster on Du-rand, I believe. I’m not for sure.
“The Court: Well, Mr. Howard, I indicated that we can order them in, but I cannot order them if I don’t know where I can find them. Do you know where they work?
“Defendant Howard: Mr. James work at Ford Motor Company, Truck Plant.
“The Court: Where is that?
“Defendant Howard: In Wayne on Michigan Avenue. Mr. Walton, let me see. He is employed at — what is it? In the CETA program, I think.
“The Court: Do you know where he — you don’t know where, though?
“Defendant Howard: No, sir. But both of them work and they had to have them, you know, what you call them, subpoenas last time to carry back to the job with them stating why.
“The Court: They voluntarily came the last time; is that right?
“Defendant Howard: No. I served them with a subpoena through my attorney and they came the last time. And the second time the court date was set—
“The Court (Interposing): How did you serve them?
“Defendant Howard: She sent me a letter in the mail telling me it cost money to have the Wayne County Sheriffs serve warrants on witnesses and that I could serve them myself by taking—
“Ms. Hetmanski [defense counsel] (Interposing): No, I beg to differ. I said you should not serve it yourself, have a friend or relative of yours serve the defendants [sic].
“The Court: Were they served?
“Defendant Howard: Yes, sir, they was.
“The Court: Well, where did you serve them?
“Defendant Howard: I found Mr. Walton at home and I seen Mr. A1 James — Aaron James at his girl friend house. I forget her name — it’s Louise something — her last name. And since then, you know, I been working and I was in the hospital, and then I got incarcerated.
“The Court: Well, that is a principle of law, as I told you, but I can’t do anything unless I know where they are. We are at trial date now.
"Ms. Hetmanski: You said your mother talked to them this morning?
"Defendant Howard: Yes.
"Mother of defendant: I talked to them — excuse me, your Honor — last night, one of them. I called a while ago and there is trouble on both lines. You can check.
"The Court: Ma’am, do you know where they live?
"Mother of defendant: No, I don’t, sir, I don’t.
"The Court: How did you get their phone number?
"Mother of defendant: By my son gave me the card this morning, and one of them called last night. Now, you can check yourself, both lines, it’s something wrong with them. I have the card here because I just came from the hallway.
"Defendant Howard: Your Honor, just forget it. I accept a plea to larceny from the building, whatever it is.
"The Court: Well, I don’t want you to do anything, Mr. Howard, that you are not satisfied with. You know, if this plea is taken there will be certain consequences to it and it will only affect you, and so you are the person who has to make the decision. I can very easily say okay, if that’s the way you want it, I’ll go on with the business. But I am not charged with this offense, you are, and I don’t want you to do something that you don’t feel that you ought to do.
"Now, you have indicated to me that but for the absence of these witnesses you would go to trial. I have indicated to you that part of the court’s function in a criminal case is to insist and use whatever powers it has to bring them in. Now, if we were dealing in a situation where we had John Jones who lived at 1234 whatever street and he was sitting at home and just simply said, 'I’m not going down there, I don’t care what happens,’ then I would have no difficulty with that. I would ask the officer to dispatch one of his officers out there and arrest him, bring him in.
"We have some difficulty, a little difficulty here because we are scheduled for trial today. All the witnesses for the people are here and we have a jury sitting out in the hall now and we are ready to go. And then in addition to that we have the names of two people, but we don’t know where to get them exactly, and so that presents a problem.
"I suppose the obvious answer to that would have been if we had known about this, if it were brought to the attention of the court that you had two witnesses who you thought were material in your defense, that you talked with them and they refused to come, then we could have dealt with it more effectively than we can today. But I don’t want to foreclose you. This court is here to protect people, and that is part of my responsibility, and the law determines in those areas where I am obliged to afford protection to people who are in your circumstance charged with an offense.
"Now, you have given me some information. I don’t know what else I can do with it. I would like to have more to do what you want to be done. If you cannot give that to me or if that cannot be found in a reasonably short period of time, then I have to give some equal consideration to the people, give some consideration to the people, because matters have to be disposed of.
’’Defendant Howard: Yes, sir. Well, I believe the simplest thing is — I need that to take the plea, madam. I don’t even know what it’s supposed to say.
"Your Honor, due to the circumstances and the other unforeseen problems that we have in this trial, I am prepared to accept the plea that the prosecutor and so forth have set forth for me to take.
’’The Court: All right. And are you doing that freely and voluntarily, Mr. Howard?
’’[Defendant] Howard: Yes, sir, your Honor.
’’The Court: You are not doing it because of anything but your decision?
’’Defendant Howard: It’s my decision.”
The defendant believes that the facts on the record indicate that he was denied effective assistance of counsel because (1) his attorney failed to arrange for the presence of defense witnesses which forced him to plead guilty, and (2) his attorney failed to ensure that the defendant re ceive the benefit of the prosecutor’s promise to recommend a sentence of one year.
In People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), this Court held that where a convicted person attacks the adequacy of the representation he received at trial, he must prove his claim. "To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately.”
While the defendant contends that his claim is supported on facts in the record, we do not agree. There is no indication in the recoid of how the defendant was going to use the testimony of his witnesses at trial. For example, we cannot tell whether they were alibi witnesses and, if alibi witnesses, whether the proper notice was filed. In addition, the testimony may have been cumulative in nature or given on a collateral matter. Thus, any failure by the defendant’s attorney in ensuring their presence may have resulted in harmless error.
Finally, defendant’s claim arises in part because he was sentenced to from 2-1/2 to 4 years for the offense after the prosecutor had breached his promise to recommend one year at sentencing. This part of his claim is moot because the trial judge has entered a nunc pro tunc correction of sentence, amending it to from 1 to 4 years.
In short, without an evidentiary hearing to further develop facts on the record, we cannot determine the adequacy of representation accorded the defendant by his attorney. Ginther, supra, 443. Although we have the inherent authority to order a Ginther hearing, we will not do so because the defendant has not made the prerequisite showing or laid down the proper foundation at the trial level needed to determine whether an evidentiary hearing is appropriate. See People v Michael Anthony Williams, 391 Mich 832 (1974). See also People v Moore, 391 Mich 426, 431; 216 NW2d 770 (1974). Moreover, our disposition of this issue does not prejudice the defendant’s right to proceed in a manner consistent with the case law discussed above.
Conclusion
We hold that where a felony statute and a misdemeanor statute both include particular criminal misconduct, it lies within the discretion of the prosecutor to charge a defendant under the felony statute rather than the misdemeanor statute, and that where a violation of a constitutional right is charged, this Court has jurisdiction to review the exercise of that discretion. Furthermore, it is clear that in these matters there was no deprivation of due process or equal protection and that the question of cruel and unusual punishment was not properly raised for consideration. Finally, without prejudice to defendant Howard, we find that present counsel failed to seek a Ginther hearing and that there is an inadequate record in the Howard case to review the claim of ineffective assistance of trial counsel.
Affirmed.
Fitzgerald, C.J., and Coleman and Ryan, JJ., concurred with Williams, J.
MCL 750.249; MSA 28.446:
"Uttering and publishing forged instruments—
"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.”
MCL 750.157q; MSA 28.354(16):
"Any person who delivers, circulates or sells a credit card which was obtained or is held by such person under circumstances which would constitute an offense under sections 157n or 157p, or uses or permits or causes or procures the same to be used, delivered, circulated or sold, knowing the same to be obtained or held under circumstances which would constitute an offense under sections 157n or 157p, shall be guilty of a felony.”
As enacted in 1961, this section read:
"Any person who knowingly obtains or attempts to obtain credit, or purchases or attempts to purchase any goods, property or service, by the use of any false, fictitious or counterfeit credit card, credit number, telephone number or other credit device, or by the use of any credit card, credit number, telephone number or other credit device of another without the authority of the person to whom such card, number or device was issued, or by the use of any credit card, credit number, telephone number or other credit device in any case where such card, number or device has been revoked and notice of revocation, as provided in section 219b, has been given to the person to whom issued, is guilty of a misdemeanor.”
MCL 750.248; MSA 28.445:
"(1) Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.
"(2) The venue in a prosecution under this section may be either in the county in which the forgery was performed, or in a county in which any false, forged, altered or counterfeit record, deed, instrument or other writing is uttered and published with intent to injure or defraud.”
MCL 750.157s; MSA 28.354(18):
“Any person who, for the purpose of obtaining goods, property, services or anything of value, knowingly and with intent to defraud uses a credit card which has been revoked or canceled by the issuer thereof, as distinguished from expired, and notice of such revocation or cancellation has been received by such person through registered or certified, mail or by personal service, shall be guilty of a misdemeanor if the aggregate value of the goods, property, services or anything of value is $100.00 or less, and shall be guilty of a misdemeanor punishable by a fine of not more than $1,000.00 or imprisoned not more than 1 year, or both, if the aggregate value of the goods, property, services or anything of value is more than $100.00.”
MCL 750.157u; MSA 28.354(20):
"Any person to whom a cardholder presents a credit card for the purpose of obtaining goods, property, services or anything of value on credit who, by forging or aiding in the forgery of the cardholder’s signature or by filling out or completing a form supplied by the issuer of the credit card, causes the cardholder to be overcharged, shall be guilty of a felony.”
See McDuffy v State, 6 Md App 537; 252 A2d 270 (1969); McCrory v State, 210 So 2d 877 (Miss, 1968); Vannerson v State, 403 SW2d 791 (Tex Crim App, 1966); Shriver v Graham, 366 P2d 774 (Okla Crim App, 1961).
See American Bar Association Project on Standards for Criminal Justice, The Prosecution Function, Standard 3.9 and commentary.
We are not here considering whether such information could properly be used at trial or considered at sentencing.
The record reflects the following history of defendant’s convictions:
"Date: County: Offense:
"12/2/61 Kalamazoo Unlawful driving away automobile
"1/31/64 Kalamazoo Larceny from a building
"7/20/66 Kalamazoo Non-support
"11/13/67 Kalamazoo Soliciting
"3/4/68 Kalamazoo Larceny under $100
"7/11/68 Kalamazoo Larceny by conversion
"1/6/71 Kalamazoo Attempted larceny by trick
"3/24/71 Calhoun Concealing stolen property
"9/23/72 Calhoun Unlawful driving away automobile without authority but without intent to steal, CT. II
"2/15/74 Kalamazoo Larceny by conversion
"7/25/74 Calhoun Larceny under $100
"8/14/74 Calhoun Larceny by conversion
"3/10/75 Calhoun Larceny by conversion
"11/17/75 Calhoun Larceny under $100
"12/13/76 Kalamazoo Contempt of court
"3/31/76 Calhoun Felonious assault
"4/12/76 Calhoun Larceny under $100
"7/1/76 Kalamazoo Larceny from a building
"3/7/77 Calhoun Larceny in a building”.
MCL 750.360; MSA 28.592. See fn 3 for text.
MCL 750.356; MSA 28.588. See fn 3 for text.
The general larceny statute defines theft to be a misdemeanor if the value is under one hundred dollars and a felony if over it. MCL 750.356; MSA 28.588 provides:
"Sec. 356. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than $2,500.00. If the property stolen shall be of the value of $100.00 or less, such person shall be guilty of a misdemeanor.”
The provision under which the defendants were charged makes a theft in an enumerated structure like a store a felony regardless of the value of the property taken. MCL 750.360; MSA 28.592 states:
"Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony.”
"The rule articulated by most federal and state courts is that the prosecution violates the defendant’s equal protection rights * * * only when 'the government’s discriminatory selection of him for prosecution has been invidious or in bad faith * * Gifford, Equal Protection and the Prosecutor’s Charging Decision: Enforcing an Ideal, 49 Geo Wash L Rev 659, 661-662 (1981).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). — Reporter.
Berrien County Prosecutor’s brief. The Wayne County Prosecutor’s brief phrased it differently: "It is a violation of the separation of powers doctrine for a court to review a prosecutor’s exercise of charging discretion absent a showing of selective use of suspect criteria.”
Const 1963, art 7, § 4 which provides:
"There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney whose duties and powers shall be provided by law.”
MCL 49.153 et seq.; MSA 5.751 et seq.
Carmichael was decided on the trial court’s erroneous failure to permit the defendant to withdraw his guilty plea before sentencing, when it was clear that the plea was involuntary because the defendant pled in the midst of alcoholic withdrawal pains and after coercion by his attorney.
People v Benjamin, 101 Mich App 637, 643; 300 NW2d 661 (1980); People v Freeland, 101 Mich App 501, 511; 300 NW2d 616 (1980); People v Holmes, 98 Mich App 369, 371-372; 295 NW2d 887 (1980); People v Hart, 98 Mich App 273, 275; 296 NW2d 235 (1980); People v Evans, 94 Mich App 4; 287 NW2d 608 (1979); People v Bohm, 49 Mich App 244, 249; 212 NW2d 61 (1973); People v Graves, 31 Mich App 635, 637; 188 NW2d 87 (1971); People v Jackson, 29 Mich App 654; 185 NW2d 608 (1971). But see In re Bay Prosecutor, 102 Mich App 543; 302 NW2d 225 (1980).
While the clear and unambiguous language of MCL 750.360; MSA 28.592 obviates the necessity of other construction aids, we have considered, but have not been persuaded by, defendants’ efforts in this regard.
The same requirement of purposeful discrimination in equal protection analysis must also be shown where there are allegations of sex discrimination. Personnel Administrator of Massachusetts v Feeney, 442 US 256; 99 S Ct 2282; 60 L Ed 2d 870 (1979).
The notice provision for alibi witnesses is found at MCL 768.20; MSA 28.1043. | [
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Cavanagh, J.
The parties have stipulated to the facts in this case. Plaintiff Wittenbach was driving his farm tractor along a public road, heading to work in one of his fields, when he was struck from behind by an automobile which was owned and operated by the defendant’s insured. At the time of the accident, Wittenbach did not carry no-fault insurance covering his tractor; however, he did have a general farm policy with Pioneer State Mutual Insurance Company.
Pioneer compensated Wittenbach for his losses and then filed a timely claim for property protection benefits with Allstate Insurance Company, pursuant to § 3121 of the no-fault act. MCL 500.3121; MSA 24.13121. Defendant denied the claim, and this suit seeking the foregoing statutory benefits followed. Defendant moved for summary judgment under GCR 1963, 117.2, alleging that the property damage suffered by the plaintiffs was excluded from coverage under § 3123(l)(a) of the act. MCL 500.3123(l)(a); MSA 24.13123(l)(a). The trial court granted the defendant’s motion for summary judgment, ánd the Court of Appeals affirmed that decision. 107 Mich App 261; 309 NW2d 598 (1981). We granted the plaintiffs’ application for leave to appeal. 414 Mich 865 (1982).
The issue we are asked to decide is whether the damages sustained by a farm tractor in a motor vehicle accident which occurs while the tractor is being operated upon a public highway are excluded from property protection insurance coverage under § 3123 of the no-fault act. The no-fault act provides for compensation for property damage in the following manner:
"Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3123, 3125 and 3127.” MCL 500.3121(1); MSA 24.13121(1).
Sections 3125 and 3127 are not relevant to this appeal; the heart of this controversy lies in the interpretation of § 3123, which provides in pertinent part:
"(1) Damage to the following kinds of property is excluded from property protection insurance benefits:
"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.” MCL 500.3123(l)(a); MSA 24.13123(l)(a).
Plaintiffs argue that a farm tractor is not a "vehicle” as that term is used in § 3123(l)(a), and therefore property damage to the tractor is recoverable as property protection benefits when arising out of the ownership, operation, maintenance or use of a motor vehicle. To hold otherwise, the plaintiffs argue, would violate the statutory scheme designed to apply only to motor vehicles as defined in § 3101(2)(c) of the act, MCL 500.3101(2)(c); MSA 24.13101(2)(c), or render application of § 3123 a denial of due process and equal protection of the law. Defendant counters that § 3123 specifically defines those vehicles which are excluded from property protection benefits and that a farm tractor clearly falls within that definition.
We must thus determine whether a farm tractor is a vehicle "operated or designed for operation upon a public highway by power other than muscular power”. Plaintiffs first argue that the word "vehicle” as used in § 3123(l)(a) should be interpreted to mean "motor vehicle”, as that term is defined in § 3101(2)(c) of the act. Plaintiffs argue that if the Legislature had intended the term "vehicle” to refer to a body of tangible property distinct from that referred to where the term "motor vehicle” was used, the terms would have been used with careful differentiation throughout the act. However, since the Legislature used the terms interchangeably in several sections of the act, the plaintiffs argue that the Legislature intended those terms to refer to the same body of tangible property. See MCL 500.3113(a), 500.3114(4); MSA 24.13113(a), 24.13114(4). Plaintiffs also point out that this Court has used the terms synonymously in several of its opinions. See Heard v State Farm Mutual Automobile Ins Co, 414 Mich 139, 150; 324 NW2d 1 (1982), Lee v DAIIE, 412 Mich 505, 509; 315 NW2d 413 (1982), Miller v Auto-Owners Ins Co, 411 Mich 633, 640; 309 NW2d 544 (1981), and Shavers v Attorney General, 402 Mich 554, 630-632; 267 NW2d 72 (1978).
We disagree with the plaintiffs’ contention that the Legislature intended the term "vehicle” as used in § 3123(l)(a) to be synonymous with the term "motor vehicle” as defined in § 3101(2)(c). If the Legislature had intended these two terms to be synonymous, there would have been no need to provide a separate definition of the term "vehicle”, as found in § 3123(l)(a). Although the term "vehicle” is also used in other provisions of the act, it is not separately defined in those provisions as it is in § 3123(l)(a). Consequently, although the Legislature may have used the term "motor vehicle” and "vehicle” interchangeably in other provisions of the act, the fact that the term "vehicles” in § 3123(l)(a) is accorded a separate definition in order to preclude the application in that section of the more limited term "motor vehicle”, as defined in § 3101(2)(c), indicates that the Legislature obviously chose to include a broader class of vehicles within the scope of § 3123(l)(a).
Since we conclude that the term "motor vehicle”, as defined in § 3101(2)(c), and the term "vehicle”, as defined in § 3123(l)(a), are not synonymous in definition, the term "vehicle” as it is defined in § 3123(l)(a) must be examined independently. To do so, we apply the familiar rules of statutory construction:
"The most important rule, of course, is to discover and give effect to the legislative intent.
"The next rule is to derive the legislative intention from the actual language used in the statute. * * * If the language used is clear and the meaning of the words chosen is unambiguous, a common-sense reading of the provision will suffice, and no interpretation is necessary.” In re Certified Questions, Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456 (1982).
We believe that the language of § 3123(l)(a) is clear and unambiguous. The exclusion in that section applies to vehicles operated or designed for operation on a public highway by power other than muscular power. A farm tractor is a vehicle, see MCL 257.16; MSA 9.1816, and MCL 257.62; MSA 9.1862, operated by power other than muscular power, and in this case the tractor was operated upon a public highway at the time of the accident. We can reach no other conclusion than that a farm tractor falls within the exclusionary provision of § 3123(l)(a); any other result would require us to overlook unambiguous statutory language.
We note, however, that even if we were to accept the plaintiffs’ argument that § 3123(l)(a) refers to "motor vehicles” as that term is defined in § 3101(2)(c), a farm tractor would still meet this definition and thereby be excluded from property protection insurance coverage. A "motor vehicle” is defined under § 3101(2)(c) as follows:
" 'Motor vehicle’ means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949.” MCL 500.3101(2)(c); MSA 24.13101(2)(c).
In this case the farm tractor was clearly a vehicle being operated upon a public highway by power other than muscular power at the time of the accident. Additionally, a farm tractor has more than two wheels and is not a motorcycle or a moped. Consequently, even if the vehicles defined in § 3123(l)(a) only include motor vehicles as defined in § 3101(2)(c), Wittenbach’s farm tractor would still be excluded from property protection insurance coverage.
Plaintiffs next argue that a determination whether property is classified as a vehicle under § 3123(l)(a) must be based upon the property’s design and general pattern of use. Property should not fluctuate from being considered a vehicle under the act in one instance to not being a vehicle under the act in the next simply because of its location; rather, depending upon the property’s purposes in design or its general pattern of use, once the property becomes classified as a vehicle it should remain so until its essential or primary purpose and use is changed. Since the primary purpose of a farm tractor is not to operate upon a public highway, plaintiffs assert, it should not be considered a vehicle under § 3123(l)(a) merely because it happens to be located upon a public highway at the particular instant of loss.
We find this argument to be unpersuasive. If the Legislature had intended that property be designated once and for all as a vehicle or not a vehicle under § 3123(l)(a), the Legislature would not have included in the definition of a vehicle that it be one which is operated or designed for operation upon a public highway. These words of qualification clearly establish that property may or may not be a vehicle under this section, depending upon the location of its use.
Plaintiffs next argue that if owners of farm tractors are categorically denied the right to recover property protection insurance benefits for property damage to their tractors arising out of the ownership, operation, maintenance or use of a motor vehicle, then such owners are being denied their rights to equal protection and due process of the law.
The thrust of the plaintiffs’ constitutional challenge is twofold. First, the plaintiffs argue that the no-fault act abolishes tort liability for property damages in a motor vehicle accident, yet our interpretation of § 3123(l)(a) would render owners of damaged farm tractors ineligible for benefits under the act, thereby leaving such owners with the sole remedy of recovering from their own first party insurance carrier, if they have chosen to carry such coverage. This statutory scheme for property protection benefits is alleged to bear no reasonable relationship to any permissible legislative objectives. Second, the plaintiffs argue that denying property protection benefits to owners of farm tractors will result in a classification which permits recovery of such benefits for damages to some types of non-stationary property, but not others, a distinction allegedly without a rational basis.
We first note that our interpretation of § 3123(l)(a) does not result in the categorical denial of a farm tractor owner’s right to recover property protection insurance benefits. Under that section, the only vehicles which are excluded from property protection insurance coverage are those vehicles which are operated or designed for operation upon a public highway. As both parties note, farm tractors are not designed primarily for operation upon a public highway. Consequently, the owner of a farm tractor would be entitled to recover property protection benefits for damages received when the tractor is properly parked or when it is not being operated upon a public highway.
In Shavers v Attorney General, supra, pp 625-632, this Court held that the no-fault act’s property damage protection scheme does not violate the Due Process and Equal Protection Clauses of the Michigan and United States Constitutions. We included in our consideration an analysis of the argument that the act impermissibly abolished the common-law remedy in tort for those who suffered property damages in a motor vehicle accident, and we concluded that since the legislative scheme for property protection benefits bears a reasonable relationship to permissible legislative objectives, the act does not violate due process.
We are not persuaded by the plaintiffs’ argument that the legislative purposes for the property protection sections of the act which we found to be legitimate in Shavers should lose such recognition when those sections are applied to farm tractors. One of the primary legislative objectives encompassed within the no-fault scheme of compensation was to ensure that the cost of insurance coverage for vehicles traveling upon public roads would be lower and more equitable by having the cost of insurance premiums calculated on the basis of the value of repair costs to a known vehicle rather than on the potential damage to a vehicle of unknown value. Shavers, p 627. Thus, automobile owners are required to insure their own vehicles for property damage unless they wish to remain unprotected in accidents which are not related to parked vehicles because, under § 3123(l)(a), they would not be entitled to recover property protection benefits from the insurer of the other motor vehicle involved in the accident. Miller v Auto-Owners Ins Co, supra, pp 639-640, fn 1.
It is entirely reasonable for the Legislature to have intended, in order to meet its objective of promoting lower costs for insurance premiums, that all owners of vehicles traveling upon public highways should have to carry their own insurance against property damage or run the risk of having to absorb the damage themselves. If this were not the case, then insurance premiums would have to be higher in order for the insurance carrier to insure against possible damage to unknown vehicles traveling upon public highways, the very situation which the no-fault property damage benefits scheme was designed to prevent. This analysis is equally applicable whether the vehicle traveling along the public road is an automobile or a farm tractor. The legislative objective remains the same, and the means chosen to achieve that objective bear a reasonable relationship to it.
Plaintiffs also argue that our interpretation of § 3123(l)(a) results in a violation of equal protection because two classes of tangible non-stationary property which are not designed to be operated upon public highways are created, and the distinction is alleged to be without a rational basis. Plaintiffs contend that there is no reason to treat farm tractors any differently than such non-stationary property as farm animals or trains.
As we noted in Shavers, supra, p 613, the proper test to use in determining whether a statute comports with either due process or equal protection requirements is whether the legislative classification is rationally related to a legitimate governmental interest. However, we also stated in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542-543; 273 NW2d 829 (1979), that the responsibility for establishing priorities and drawing lines between alternatives rests with the Legislature, not the judiciary, and that perfection in making classifications is neither possible nor necessary. We pointed out in O’Donnell, p 543, that:
"In short, we do not sit 'as a superlegislature to judge the wisdom or desirability of legislative policy determinations’. We sit as a court to determine whether there is a rational basis for the Legislature’s judgment. If there is, then that judgment must be sustained”.
When allocating the responsibility for property damage, the Legislature certainly could have been justified in concluding that vehicles being operated upon a public highway often share some of the fault for an accident and may well be the cause of their own damage. This would apply both to automobiles and to farm tractors, especially since the latter often travel more slowly than other traffic, may be too wide and overlap the centerline thus obstructing the view of other motorists, and usually have inadequate safety devices such as lights and signals which are required to be used by other motor vehicles.
On the other hand, the Legislature also could have assumed that the owners of other non-stationary property such as farm animals or trains which may sustain damages in a motor vehicle accident on a public highway are usually not at fault and thus should not be required to maintain their own insurance to cover fortuitous accidents which might occur. Drawing the line to provide property damage insurance coverage for these types of non-stationary property results in a reasonable classification which serves the Legislature’s objective of keeping insurance costs down by requiring tangible non-stationary property which is more likely to be in an accident and to bear some responsibility for that accident to carry its own insurance. See Shavers, supra, pp 630-632. We find that no violation of equal protection results from our conclusion that farm tractors are excluded from property damage protection coverage under § 3123(l)(a).
The judgment of the Court of Appeals is affirmed.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cav-ANAGH, J. | [
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Brickley, J.
We are faced with a stop by the police of the defendants because of defective vehicle equipment followed by a detention at a time when the officers had no articulable basis for suspecting that the detainees had committed a crime.
We hold that a person may not be detained for roadside questioning beyond the scope of a stop, absent at least an articulable basis for suspecting other criminal activity. US Const, Am IV.
I
On December 16, 1977, Kent County Deputy Sheriff W. Phillip Blackport, while on road patrol in the Kentwood area, observed two black males driving slowly in an older model black Oldsmobile at approximately 6:35 p.m. Deputy Blackport was suspicious of the vehicle and its occupants because of its slow speed and because, "prior to that, the month before that, we had had armed robberies involving two black males, and it was either in an older model — there was information that Kent-wood and Grand Rapids had robberies, older model, either Buick or Oldsmobile, black over dark or black vehicle, and there were always two black males involved”.
Blackport radioed another unit to report the existence of the suspicious circumstances. He turned his vehicle around in an attempt to follow the Oldsmobile, but lost sight of it. He commenced a search.
At 6:57 p.m., Blackport encountered what appeared to be the same vehicle, again going in the opposite direction. Since the driver’s side window of the patrol car was now rolled down, he was able to hear that the vehicle had a defective exhaust. He stopped the vehicle for this equipment violation.
After requesting a back-up unit, Blackport approached the vehicle. He was met at the rear of the car by defendant Jessie Brown. Blackport requested that Brown display for inspection his driver’s license and the registration of the vehicle. Brown informed the officer that he did not have a driver’s license in his possession and that the vehicle belonged to a friend. While Brown and defendant Joe Anton Burrell, the passenger in the vehicle, searched the glove compartment for the registration, Blackport radioed a request for a Law Enforcement Information Network (LEIN) check of the vehicle, of Brown, and of "Joe Williams”, the name Burrell had given to Blackport.
At 7:10 p.m., Kent County Deputy Sheriff Allen Lee Blanker overheard the LEIN request by Deputy Blackport. The name "Jessie Brown” caused Deputy Blanker to recall briefing information he had received on "house burglary suspects” Jessie Brown and Joseph Burrell. Blanker radioed Black-port that he was en route with a "flier” or "hot sheet” regarding Jessie Brown and Joseph Burrell. Pictures of the two suspects were reproduced along the top border of the sheet. Blanker testified that he suspected that "Joe Williams” was Joe Burrell. Blanker arrived at the scene of the stop between 7:10 and 7:15 p.m.
Upon arrival, Blanker conferred with Blackport and Deputy Ed Westhouse, Blackport’s back-up. The officers noted that the pictures of Brown and Burrell resembled Brown and "Williams”. Blanker then walked up to "Joe Williams” and said, "I thought your name was Joe Burrell.” Burrell replied, "No, my name is Joe Williams.” Blanker relayed this denial to Blackport and Westhouse.
On the basis of Burrell’s denial and the picture on the "hot sheet”, the officers decided to detain Burrell for investigation and possible arrest for giving false information to a police officer.
By 7:15 p.m., the LEIN check was completed, and no adverse information was obtained. There were no "wants” or warrants for Brown or "Williams”. There was no report that the vehicle had been stolen. In addition, it was learned that Brown had been issued an operator’s license which was still valid.
At approximately 7:20 p.m., Blanker requested that his supervisor, Sergeaht DeBold, come to the scene. DeBold instructed the officers to pat-search the defendants and to detain them in Deputy Westhouse’s vehicle. DeBold arrived by 7:25 p.m. and took command of the investigation. Sometime after the defendants were detained in the back of Westhouse’s vehicle, but before Blanker left the scene to investigate a reported breaking and entering, Westhouse, in the presence of Blanker, allegedly asked Brown if he could "look inside the car”. Brown reportedly consented to the search.
At 7:30 p.m., a citation was issued to Brown for failure to have a valid operator’s permit in his possession while driving a vehicle, and he was specifically informed that he would not be allowed to leave the scene until a positive identification of his passenger could be obtained. He was further informed that he and Burrell were to be transported to the station house because, in the words of Deputy Blackport, "we were intending on taking him down for pictures and prints so we could obtain a positive identification of both subjects because we believed that we didn’t know for sure if Jessie Brown was Jessie Brown, and we believed Joe Williams was Joe Anton Burrell”. However, the officers did not leave the scene of the stop because they were informed that Detective Brown from the Walker City Police Department could positively identify Brown and Burrell. The officers requested that Detective Brown proceed to the scene. Detective Brown arrived shortly after 8:00 p.m.
At 7:41 p.m., Deputy Blanker was dispatched to investigate a breaking and entering at a nearby residence. Upon arrival at the residence, he was informed that two Christmas presents wrapped in "Mickey Mouse wrapping paper” had been stolen. Blanker recalled seeing packages similarly wrapped in Brown’s car. He alerted his radio supervisor at approximately 7:50 p.m. about this similarity and requested that the complainant accompany him to the scene of defendants’ detention to identify the packages in the back of the Oldsmobile. Arriving at 8:00 p.m., the complainant was instructed to look into the car. There he observed, "jammed under the seat”, two gift-wrapped packages similar to those which had been removed from his home.
Between 8:00 and 8:30 p.m., Kent County Detective Lieutenant Jack Christensen arrived on the scene and took charge of the investigation. Christensen had been attending the Kent County Sheriffs Department annual ball. He had been kept informed of the progress of the unfolding investigation by periodic phone calls. He recalled being told sometime between 7:30 and 8:00 p.m. that two as yet not positively identified suspects of a house burglary were being detained. He had instructed the officers "to make absolutely certain they knew who they had out there before they let anyone go”. Christensen left for the scene of defendants’ detention when he learned that a complainant had been found.
The complainant was later returned to the scene so that he could identify the packages in the presence of Christensen. The packages were still in the Oldsmobile. At 8:30 p.m., defendants were read their Miranda warnings, and they were questioned about their possession of the packages.
Defendants were arrested and charged with breaking and entering an occupied dwelling house. Informations were filed charging defendants as fourth-felony offenders. Defendants’ motions to suppress evidence seized incident to the stop were denied. On March 28, 1978, each defendant was convicted of the breaking and entering offense by the trial court, sitting without a jury. Immediately thereafter, the defendants were arraigned on the supplemental information. Motions for a new trial were denied. On May 9, 1978, each defendant was sentenced to a term of from 10 to 15 years imprisonment.
On June 8, 1978, each defendant was found guilty by a jury under the supplemental information of having been convicted of four felonies. On June 20, 1978, the trial court entered an order vacating the breaking and entering convictions in these cases because defendants had been convicted of being fourth-felony offenders. Each defendant was sentenced for a period of 20 to 40 years imprisonment.
The Court of Appeals affirmed defendants’ convictions in unpublished opinions per curiam.
We granted leave to appeal.
II
Defendants raise issues of constitutional stature about their stop and detention for roadside questioning. As to the stop, defendants claim that the motivation for the original stop of the vehicle was racial (two black men driving slowly in a dark automobile in a white suburb of Grand Rapids) and not because of defective equipment. Defendants contend that the conclusion that the stop was pretextual and that the inference that the stop was racially motivated is compelled by the fact that no citation was ever issued for the noisy exhaust system. Defendants further argue that the 90-minute roadside detention for questioning which preceded their arrest and during which their vehicle was searched was impermissible because they were held without cause to believe either that a crime had been committed or that they had committed a crime. Thus, defendants aver that the stop and the detention were violative of their Fourth Amendment rights to be free from unreasonable seizure and unreasonable search, and that, since the seizure and the search were illegal, evidence obtained as a result ought to have been suppressed.
This Court will not disturb a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. Resolution of facts about which there is conflicting testimony is a decision to be made initially by the trial court. The trial judge’s resolution of a factual issue is entitled to deference. This is particularly true where a factual issue involves the credibility of the witnesses whose testimony is in conflict. People v White, 401 Mich 482; 257 NW2d 912 (1977). See People v Dinsmore, 103 Mich App 660; 303 NW2d 857 (1981).
Proper evaluation of defendants’ claim obliges us to review the information known to the trial court at the time it denied defendants’ motions to suppress the evidence. Since the claimed error here involves deprivation of a constitutional right, our resolution of the issue is "guided but not controlled by the trial judge’s factual determination”. People v Smith, 19 Mich App 359, 367-368; 172 NW2d 902 (1969). If, upon our review of the record, we do not possess a definite and firm conviction that the trial court made a mistake, we must affirm. People v White, supra.
In the instant suppression hearing, it was disputed whether the Oldsmobile had a loud muffler. This is the basis for defendants’ claim that the stop was racially motivated. Deputy Blackport, and later Detective Christensen, stated that they heard a loud muffler. Defendant Brown disagreed. The trial court found that Deputy Blackport heard a loud muffler. Since the trial court was in a superior position to judge the credibility of these witnesses and since we are unable to conclude that the trial court clearly erred in the determination that there was a loud muffler, we assume that the original stop of the vehicle was lawful.
Although no citation was issued for the defective exhaust system, we are unable to conclude that Blackport abused his discretion as a police officer in failing to issue a citation for the defective equipment violation. Blackport also did not cite Brown for driving a motor vehicle without a registration, as he certainly could have done. It follows immediately that the fact that Blackport chose to cite Brown for driving without a driver’s license in his possession instead of a defective muffler does not necessarily support the inference that the original stop was racially motivated.
The constitution requires an "individualized, articulable suspicion” for a stop in the absence of traffic or equipment violations. Delaware v Prouse, 440 US 648, 662; 99 S Ct 1391; 59 L Ed 2d 660 (1979); United States v Brignoni-Ponce, 422 US 873; 95 S Ct 2574; 45 L Ed 2d 607 (1975). Here the stop was justified because of defective equipment, as found by the trial court and which we accept. We feel constrained to add, however, that a stop cannot be justified by individualized, articulable suspicion when a police officer merely observes two black men in a dark automobile driving slowly through a white or predominantly white community and recalls that armed robberies occurred the month before which were allegedly committed by two black males in a dark vehicle.
On the facts presented, we conclude that defendants’ argument that the stop was pretextual is without, merit.
Defendants’ argument with respect to the impermissible scope of the roadside detention is more problematic. If it is assumed that the stop was justified, then at least some part of the detention was justified. The question is at what point, if ever, did the detention become an impermissible violation of the defendants’ Fourth Amendment rights?
Briefly, defendants claim that the detention was impermissible because it lacked probable cause. Relying on People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980), which cites Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), and People v Harold Williams, 63 Mich App 398, 403; 234 NW2d 541 (1975), the people counter that detention is appropriate to determine identity.
The people argue that a detention does not rise to the level of a formal arrest and that its constitutionality is to be tested against a standard of reasonableness. Reasonableness "depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers”. United States v Brignoni-Ponce, supra, p 878, cited with approval in Pennsylvania v Mimms, 434 US 106, 108-109; 98 S Ct 330; 54 L Ed 2d 331 (1977).
The people advance five facts in support of the reasonableness of this detention: (1) neither occupant was the registered owner of the vehicle, nor did either produce a copy of the registration; (2) the true owner could not be contacted; (3) neither of the occupants had any identification; (4) the passenger identified himself with a fictitious name; and (5) the driver of the vehicle was cited for driving without a license. The people argue that detention under these circumstances was appropriate to determine if the car was stolen. In addition, the people conclude that even if defendant Burrell’s detention was illegal under a reasonableness standard the evidence against him is derived from a constitutionally reasonable detention of defendant Brown.
The problem with the people’s argument is that it treats two detentions as one, an admittedly reasonable detention pursuant to the initial stop and a second detention based on Burrell’s false statement. We treat each in turn.
Once the vehicle was properly stopped at 6:57 p.m., it took Deputy Blackport a somewhat incredible 33 minutes to issue a citation to Brown for failure to have a valid driver’s license in his possession. Approximately half of that time was consumed in running a LEIN check on both the defendants and the vehicle. By 7:15 p.m., .the LEIN checks were negative, and Deputies Westhouse and Blanker had arrived at the scene. By 7:20 p.m., it was decided that "Williams” (Burrell) had given false information to a police officer and was to be detained for investigation, if not arrest, Brown along with him. By 7:25 p.m., defendants were pat-searched and detained in Deputy Westhouse’s vehicle.
Analytically, given this state of facts, it is clear that more than one roadside detention occurred. Initially, driver Brown was properly stopped for an equipment violation. A detention following a stop for such a minor violation would be justified only for the length of time necessary to write a citation. Here, however, the stop immediately revealed a new set of circumstances, a driver without either an operator’s license or a vehicle registration. We agree that it was reasonable to suspect that the vehicle was stolen, and we also agree that detention was justified long enough to resolve the suspicion raised. When the LEIN check verifiéd that Brown was licensed and that the car was not reported as stolen, that suspicion expired. By 7:15 p.m., detention, again, could be justified only for the length of time required for Blackport to write a citation for Brown’s failure to have a valid driver’s license in his possession while driving.
Burrell’s false statement was the basis for the second detention. By 7:20 p.m., a decision was made and executed to detain Burrell for giving false information to a police officer. Shortly thereafter, Brown was informed that he too was detained until his passenger could be properly identified. Although Brown had not yet been issued a citation, the justification for his detention changed as of the moment that a determination was made to detain him until a proper identification of Burrell could be made. Moreover, once it was determined to hold Brown until Burrell could be identified, Brown’s detention became linked to Burrell’s detention. Thus, if it should be concluded that Burrell’s detention was unreasonable, then Brown’s detention became unreasonable when the officers made his freedom dependent on Burrell’s freedom.
Presented from this perspective, the people’s analysis of factors which justified Burrell’s detention collapses: (1) it is altogether unsurprising that a passenger of a vehicle is not its registered owner or is unable to produce a copy of the vehicle’s registration; (2) the fact that the police are unable to contact the registered owner is rarely a matter of moment in respect to a passenger; (3) it is unremarkable that a passenger in an automobile would not have a driver’s license or any other form of identification; (4) when asked, a passenger is under no obligation to identify himself; and (5) the fact that the driver of the vehicle has been cited for driving without a license does not reflect adversely on the passenger of the vehicle.
In sum, the people argue that the officers were provided a reasonable basis for their suspicion that criminal activity was afoot by their observation of a passenger in a vehicle which had been stopped for defective equipment and whose driver did not possess a driver’s license or registration, such passenger apparently being unwilling to truthfully identify himself. We disagree.
In Brignoni-Ponce, supra, 422 US 881-882, the United States Supreme Court applied the Terry "stop and frisk” doctrine to investigatory stops of automobiles by a roving border patrol. The Court condemned a random stop of a vehicle made because its three passengers appeared to be of Mexican descent. The Court concluded that appearance alone was an insufficient basis to allow a random stop and brief questioning. This result flowed naturally from the Terry requirement that more than "inchoate and unparticularized suspicion or 'hunch’ ” was necessary to justify a frisk of a suspicious individual. The Court held
"that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be 'reasonably related in scope to the justification for their initiation’. 392 US 29. The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.”
The Court thus articulated a standard of reasonable suspicion based upon an officer’s observations, such observations being tempered by his experience. Should reasonable suspicion be aroused, an investigatory stop was authorized for brief questioning.
In Delaware v Prouse, supra, the Court required that a police officer who stops and detains a motorist to check for a valid driver’s license and registration have at least an articulable and reasonable suspicion that the motorist is unlicensed or that the vehicle is not registered. The officer in the case testified that he had not observed traffic or equipment violations or any suspicious activity prior to making the stop. The Court ruled that his stop was unreasonable.
In the instant case, we do not deal with an improper stop. Therefore, neither Brignoni-Ponce nor Delaware v Prouse is dispositive. However, since a stop almost inevitably leads to a brief detention for questioning, we draw guidance from these decisions as to the standard applicable to a brief detention on an unrelated matter following an otherwise lawful stop. Proceeding from the premise that a brief detention is at least as intrusive for Fourth Amendment purposes as a stop, we conclude that a brief detention for questioning is permissible if based on a reasonable and articulable suspicion of criminal activity.
Since Fourth. Amendment rights are involved in a detention, however brief, the intrusiveness of the police activity must be carefully limited to the circumstances justifying the detention. Put another way, the detention must have an object (that fact or event which will resolve a police officer’s reasonable and articulable suspicion) which is ascertainable and near at hand. This is as true for a brief detention associated with a LEIN check to determine if a car is stolen as it would be for a longer detention when, as examples, suspicion is escalating or a crime has just been committed, a partial description is broadcast, and time is needed to sort out rapidly developing circumstances. Such a standard presumes individualized suspicious circumstances not found in Burrell’s detention.
In the instant case, the testimony of all the officers is consistent with generalized suspicion or hunch. The officers "suspected” that "Joe Williams” was Joe Burrell. The officers were in possession of a "hot sheet” which informed them that Burrell had an "extensive arrest record” and was suspected, along with Jessie Brown, of having committed recent house burglaries in northwest Grand Rapids. Deputy Blackport himself stated that this "hot sheet” was not a reason to arrest someone. There were no "wants” or warrants pending for the arrest of Burrell or for Brown. The officers had apparently observed gift-wrapped packages on the floor of the rear passenger area of the vehicle, a fact which should occasion little surprise since Christmas was nine days away, and new shoes on the floor board in front of defendant Burrell’s seat, a fact consistent with Christmas shopping for oneself.
No specific reasonable inferences of criminal activity could possibly be drawn from these facts. Even assuming, by hypothesis, that these facts do support reasonable, articulable suspicion, we are forced to confront the question, where does it lead? Here the stated objective for the detention was to confirm Burrell’s identity, presumably because Burrell was suspicious. What must be remembered is that it was not a crime for "Joe Williams” to be Joe Burrell or, for that matter, for Joe Burrell to be Joe Burrell. Absent any statutory provision to the contrary, Burrell was under no obligation to even respond to the question, much less to respond truthfully. Terry v Ohio, supra (concurrence by White, J.). We do not condone a detention of one person on the articulable suspicion that he is someone else, about whom there are only inarticulable suspicions.
We conclude on these facts that the detention of Joe Anton Burrell was not supported by any reasonable and articulable suspicion of criminal activity. Since Burrell’s detention was constitutionally unreasonable, Jessie Brown’s derivative detention was equally constitutionally unreasonable.
We are not unmindful that the result of our decision today is the suppression of otherwise good and highly incriminating evidence that led to the defendants’ convictions of breaking and entering a private dwelling, and that these convictions became the basis for fourth-oifender convictions, resulting in substantial sentences. That painful consequence is balanced by the fact that it is only in difficult situations such as those presented here that we can draw the fine lines between the authority of the police to protect us from crime and the use by the police of governmental power to violate our constitutional rights. Here, defendants were linked to the criminal activity which led to their convictions no sooner than 7:50 p.m., long after defendants were detained and even long after Blackport had completed his work connected with the original stop. Such is an impermissible use of the power to briefly detain. By analogy, rather than having a crime and looking for the criminals, the police, here, had the "criminals” and were looking for the crime.
We have reviewed the record in this case and evaluated the information known to the trial judge when he made his decision to deny defendants’ motions to suppress the evidence seized incident to the stop. On the basis of our review, we are left with a definite and firm conviction that a mistake was made. We are unable to find specific facts which would support a reasonable suspicion of criminal activity. Since all evidence of an incriminating nature was derived from the police officers’ exploitation of the illegal detention of Burrell and Brown, all the evidence should have been suppressed.
Reversed.
Williams, C.J., and Kavanagh, Levin, Ryan, and Cavanagh, JJ., concurred with Brickley, J.
Boyle, J., took no part in the decision of this case._
At the hearing on the motions to suppress the evidence seized incident to the stop filed by defendants, from which this statement of facts is drawn, Blackport freely acknowledged that he had no reason to stop the Oldsmobile when he first sighted it. He also candidly stated that he would have stopped it had the opportunity presented itself.
At the suppression hearing, Blackport testified that his windows were rolled up when he first encountered the vehicle.
MCL 257.707; MSA 9.2407.
It appears to have been the policy of the Kent County Sheriff’s Department to require passengers in a stopped vehicle to identify themselves. The following excerpt from the record of the suppression hearing is instructive.
"Q. [McWilliams, attorney for Burrell]: You did ask Mr. Burrell questions?
"A. [Deputy Blackport]: I asked Mr. Burrell his name, but prior to issuing the citation, to run LEIN on it.
"Q. What was the purpose of that?
"A. To find out who he was. He said his name was Joe Williams.
"Q. Why would you need to get verification on that? He wasn’t driving the vehicle, was he?
"A. No, sir, but passengers in the vehicle are normally required to identify themselves.
"Q. Are you aware of any legal requirement that they do so?
"A. No, not personally.
"Q. And as far as Mr. Brown’s ticket for driving without his operator’s license, and as far as the defective exhaust, there was no connection with Mr. Burrell at all? Those things solely concerned the driver of the vehicle and the owner of the vehicle, correct?
"A. Yes.”
Blackport described a "hot sheet” as follows: "A hot sheet isn’t a reason to arrest somebody. It depends on what’s on it.”
There appeared to be no doubt in the minds of the officers that "Joe Williams” was Joe Burrell. There certainly was no speculation that "Joe Williams” might be someone other than Burrell. Blackport had concluded that the picture of "Joe Anton Burrell matched the man who identified himself as Joe Williams”. "The picture of Joe Anton Burrell * * * looked exactly like the man who identified himself as Joe Williams.” Blackport testified that it was his intention to arrest Burrell for giving false information to a police officer if he could get "positive proof’ of Burrell’s identity. The detention, then, was to facilitate positive identification.
The quoted words are Deputy Blanker’s. Deputy Westhouse did not testify at the suppression hearing.
Brown denied that he consented to the search. The trial court found otherwise. It is not altogether clear what items were removed from the vehicle. In any event, the items which served as the basis for these prosecutions were not. See below.
MCL 257.311; MSA 9.2011.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
MCL 750.110; MSA 28.305.
MCL 769.12, 769.13; MSA 28.1084, 28.1085.
We assume that the order vacating defendants’ convictions was due to a clerical mistake. See MCL 769.13; MSA 28.1085.
"The parties are directed to include among the issues to be briefed whether the trial court ought to have granted defendant’s motion to suppress the evidence obtained as a result of the detention of defendant and the search of the automobile.”
Identical orders entered for each defendant. 409 Mich 948 (1980).
Defendants were at all times before the trial court treated as codefendants.
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment was made applicable to the states through the Fourteenth Amendment in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
MCL 257.223; MSA 9.1923.
Contrast with People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978).
In Grimmett, the defendant, a young black male, was stopped by the police who were seeking suspects in a stolen property ring and had warrants for approximately 130 persons, many of whom were young black males. The police asked the defendant for his name and destination. When the police determined that the defendant was not wanted for any involvement in the stolen property ring, the defendant was allowed to proceed. While walking away from the police, the defendant was observed to be carrying an object which appeared to be a small handgun. The suspicions of the police were aroused. They approached the defendant a second time to inquire about what he was trying to hide. A vial of heroin was discovered. The defendant’s conviction was affirmed, the original stop justified by the warrant, and the subsequent stop justified by "[a] new, unrelated set of circumstances”. 97 Mich App 215.
In Adams v Williams, a police officer was approached by an unnamed informant known to him and informed that a person seated in a nearby vehicle was carrying narcotics and had a handgun at his waist. Suspicions aroused, the officer approached the vehicle to investigate. When the occupant rolled down the car window instead of opening the door, the officer reached into the car and removed a fully loaded revolver from the occupant’s waistband. In affirming the defendant’s convictions of illegal possession of a handgun and possession of heroin, the Court noted: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” 407 US 146. The credibility of both the informant and the information imparted supplied the officer with reasonable, articulable suspicion.
In People v Harold Williams, the police were summoned to a motel to investigate a report by the manager that there were "suspicious” men in the motel parking lot. The police were directed to the defendant, who was seated alone in an automobile parked in the lot. The vehicle’s motor was not running. The lights were off. The officers asked the defendant to identify himself. The defendant got out of the vehicle, produced a wallet, and gave one of the officers a business card, while claiming that he had no other identification. The defendant was asked to check his wallet again. While the defendant was thumbing through the wallet, one of the officers observed the top part of an operator’s license. The officer seized the wallet and discovered that the names on the business card and the driver’s license did not match. The defendant was not able to explain the discrepancy. The officer then continued his investigation of the wallet and discovered credit cards with still other names. The defendant was arrested and charged with a credit card offense, MCL 750.157n; MSA 28.354(14). Defendant’s motion to suppress the evidence seized was denied. The Court of Appeals based its reversal on an illegal search of the defendant’s wallet at a stage in the investigation when the officers did not have probable cause or consent to search. The Court noted that detention may be permissible to request identification or to explain suspicious circumstances. However, the Court cautioned that field interrogation might prove inconclusive in resolving an officer’s suspicions. Absent escalating suspicion, continued detention was unjustified.
None of these cases supports the bare assertion that detention is appropriate to determine identity. To the extent that a rule common to all may be distilled, detention to determine identity is appropriate, given suspicious circumstances which justify the officer’s intrusion on an individual’s freedom of movement and personal security.
The people argue that defendant Brown was properly detained until Deputy Blackport "otherwise satisfactorily determine[d]” his identity. See MCL 257.727; MSA 9.2427. We do not disagree. The people then argue that Brown was not satisfactorily identified to Blackport until at least 7:30 p.m., hence his continued lawful detention. The, facts do not support this view. By 7:15 p.m., Blackport had started writing the citation for Brown. In addition, there was no dispute among the officers that Brown was Brown. Nor was there any dispute that the picture of Jessie Brown on the flier, blurred as it was, prevented identification. Arrayed against all of this, we are unpersuaded that Blackport’s lone statement of doubt as to the identity of Brown represents more than a rationalizing response to a difficult question posed by counsel for Burrell at the suppression hearing.
The officers created this unusual circumstance. We express no opinion as to the validity of the converse of this proposition.
The people do not cite any statute which makes it a crime to make an unsworn false statement to a police officer. Nor have we been able to find such a statute.
See the last question and Blackport’s reply in the excerpt from the suppression hearing quoted in fn 4.
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
In People v Freeman, 413 Mich 492, 496; 320 NW2d 878 (1982), this Court, relying on the decisions in Brignoni-Ponce and Delaware v Prouse, concluded that "[a] lone automobile idling in a darkened parking lot late at night does not, without more, support a reasonable suspicion of criminal activity”. It was not decisionally necessary in Freeman to reach the detention issue presented. As a result, it was unnecessary to decide if, unlike the constitutional requirements for a stop, detention for roadside questioning is permissible when based only on an officer’s inchoate and inarticulable suspicion or hunch.
See Michigan v Summers, 452 US 692, 700-701, fn 12; 101 S Ct 2587; 69 L Ed 2d 340 (1981).
See fn 5.
Contrast with People v Damaska, 404 Mich 391; 273 NW2d 58 (1978).
The basis for the detention could not have been the "hot sheet”. It should be recalled that the officers were apparently satisfied that Jessie Brown was the Jessie Brown of the "hot sheet” and were apparently prepared to free him — subject to Burrell’s positive identification.
See Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
In light of our decision in this case, the other issues which defendants raise need not be addressed. | [
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Fitzgerald, C.J.
Defendant was convicted by a jury of inciting, inducing, or exhorting another person to unlawfully burn property in violation of MCL 750.157b; MSA 28.354(2). The Court of Appeals reversed defendant’s conviction in an unpublished per curiam opinion, Judge Kaufman dissenting. We reverse the judgment of the Court of Appeals and reinstate defendant’s conviction.
I
Defendant owned and operated a store in the City of Detroit. Defendant contacted an alleged arsonist and arranged to burn down a competitor’s market which was located across the street from defendant’s place of business. Unknown to defendant, the alleged arsonist was a police informant. Several telephone conversations between defendant and the informant were taped by police officers. Transcripts of these conversations were introduced at trial and admitted into evidence. This evidence showed that the defendant agreed to pay $1,000 for destruction of the building.
The day before the fire was to occur, defendant directed his brother to telephone the informant and tell him to "forget everything about the store”. Defendant’s brother contacted the informant as instructed. The informant agreed not to burn the store.
At trial, defendant’s counsel requested an instruction that withdrawal constituted a defense to the crime charged. The court denied this request and instructed the jury as follows:
"Ladies and gentlemen of the jury, it is important that you keep in mind that the crime of inciting to burn real property is complete at the time the inciting, inducing or exhorting takes place. In other words, it is unnecessary that any overt act be done in furtherance of that which is incited, induced or exhorted. For example, in this case it is unnecessary to find that the market was actually ever burned or that any person or persons did any act as a result of the defendant’s incitement, if any incitement actually occurred. * * * If you ñnd that such an incitement, inducement or exhortation to burn had been made, [that] there had been a withdrawal is of no consequence, it’s net a defense of the act.” (Emphasis supplied.)
The jury convicted defendant of the crime charged.
The Court of Appeals held that no overt act by the informant need be proved for conviction of inciting, inducing, or exhorting the burning of real property. However, the Court reversed defendant’s conviction on the ground that the trial court erred in refusing to instruct the jury that withdrawal was a defense.
We granted leave to appeal and cross-appeal to resolve three questions: Does MCL 750.157b; MSA 28.354(2) require proof of an overt act and that the third party was incited? Was it reversible error for the trial court to refuse to charge on attempt? Is withdrawal or abandonment a defense to the charge of inducing, inciting, or exhorting another to unlawfully burn property under MCL 750.157b; MSA 28.354(2)? 406 Mich 1012 (1979). We answer these questions in the negative.
II
Defendant argues that proof of an overt act by the person sought to be incited is a necessary element of the crime of inciting, inducing, or exhorting the burning of real property. It is our determination that no overt act by anyone other than the defendant is necessary to convict under this statute.
MCL 750.157b; MSA 28.354(2) provides:
"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense incited, induced or exhorted.”
The Court of Appeals, in upholding the constitutionality of MCL 750.157b; MSA 28.354(2), wrote:
"The three terms used in the statute to describe the prohibited conduct are given similar definitions by Webster’s New World Dictionary (2d ed) (Collins & World Publishing Co, Inc, 1974).1 A fair reading of the definitions is that the terms 'incite, induce or exhort’ are essentially synonymous, and refer to conduct intended to bring about action on the part of another person. Cf. People v O’Neal, 22 Mich App 432; 177 NW2d 636 (1970).
"We think that the statute as written sufficiently informs a potential defendant that he is to refrain from conduct calculated to cause another person to commit an offense described in the statute. MCL 750.157b; MSA 28.354(2) is not unconstitutionally vague.” People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978).
"1 Incite: 'to urge to action; stir up; rouse’ (p 710). Induce: 'to lead on to some action * * *; prevail on; persuade’ (p 718). Exhort: 'to urge earnestly by advice, warning, etc.’ (p 491).”
This language speaks only to the conduct of the defendant. We agree with this focus.
It is the defendant’s inciting, inducing, or exhorting which constitutes the culpable conduct. We do not think the Legislature intended that conviction of a crime under this statute would depend on the incidental result of a third party’s conduct, that is, an overt act or proof of actual incitement.
This accords with the interpretation articulated in People v Plyler, 104 Mich App 437; 304 NW2d 859 (1981), a factually dissimilar case in which the "overt act” argument was also raised. In holding that no overt act need be established for conviction under this same statute, the Court noted that the purpose of the statute is to punish persons who incite, induce, or exhort dangerous conduct. The Court affirmed defendant’s conviction of inciting second-degree murder without proof of an overt act by a third party or proof of actual incitement.
A criminal incitement under the statute is conduct by which a person urges another to commit a specified crime with the intent that such a crime result. It is the use of words in this particular manner which constitutes the criminal offense. Defendant, here, sought to have his competitor’s store burned. At the point where the defendant successfully contacted the alleged arsonist for the purpose of inducing his participation, the statutory crime was complete.
Ill
Defendant argues that it was reversible error for the trial court to refuse to instruct on attempted inciting, inducing, or exhorting to burn real property. We conclude otherwise.
The statute, as drawn, meets constitutional requirements; an attempt to commit the statutory crime would not. We feel it was the Legislature’s goal to punish inciting, inducing, or exhorting dangerous conduct and not the attempt to commit this statutory crime. This legislative approach is consistent with constitutional considerations of overbreadth. To punish someone for attempting to incite, induce, or exhort a statutorily specified offense would be, perhaps, to punish unexpressed thoughts or otherwise non-culpable conduct. We do not believe that this is what the Legislature intended. Such a crime lacks the required element of imminence to be constitutionally permissible. People v Chapman, supra.
IV
The people contend that the trial court correctly ruled that withdrawal is not a defense to the charge of inciting, inducing, or exhorting to burn real property and that the Court of Appeals erred in reversing defendant’s conviction on this ground. We agree.
Enactment of MCL 750.157b; MSA 28.354(2) bespeaks the Legislature’s appreciation of the danger to society posed by inciting, inducing, or exhorting life-threatening crimes. In addition, completion of the statutory crime signifies the point at which control over the criminal act urged and intended effectively passes to a third party. The fortuitous circumstance of a third party’s inaction, as here, does not render the inciting, inducing, or exhorting less dangerous. Thus, a defense of withdrawal would be inconsistent with the legislative determination of the conduct to be punished.
The decision of the Court of Appeals is reversed and the defendant’s conviction is reinstated.
Williams and Coleman, JJ., concurred with Fitzgerald, C.J.
Levin, J.
Shafou solicited a police informant to burn a competitor’s store. On the day before the fire was to occur, Shafou’s brother telephoned the police informant and told him not to burn the store.
Shafou was charged with and convicted of inciting, inducing, or exhorting the police informant to unlawfully burn in violation of § 157b of the Penal Code, added in 1968 after the civil disturbances in Detroit in 1967.
We were prompted to grant leave to appeal by the decision of the Court of Appeals reversing Shafou’s conviction on the ground that withdrawal was a defense.
The lead opinion would reverse the judgment of the Court of Appeals on the withdrawal issue and reinstate Shafou’s conviction. That opinion agrees with the Court of Appeals in rejecting Shafou’s argument that "proof of an overt act by the person sought to be incited is a necessary element”. It would further hold that "actual incitement” need not be shown:
"A criminal incitement under the statute is conduct by which a person urges another to commit a specified crime with the intent that such a crime result. It is the use of words in this particular manner which constitutes the criminal offense. Defendant, here, sought to have his competitor’s store burned. At the point where the defendant successfully contacted the alleged arsonist for the purpose of inducing his participation, the statutory crime was complete.”
Justice Kavanagh would hold that "actual incitement”. is required; while the person solicited need not commit the solicited offense, there must be "some overt act resulting in actual incitement of the other person”. Since, in the instant case, the police informant was not actually incited, Shafou is guilty of attempted inciting, inducing, or exhorting, and the judge erred in refusing to charge on attempt.
We would hold that § 157b does not subject a person to criminal responsibility for utterances which do not cause an offense to be committed. A person who does no more than utter words urging commission of an offense is subject to liability, as before, only for solicitation except where the urgings are with the intent of instituting or maintaining a riot in which case a companion statute, also enacted in 1968, is applicable.
I
The lead opinion quotes from the per curiam opinion of the Court of Appeals in the instant case which sets forth definitions of the words "incite”, "induce”, and "exhort”.
It appears that while "incite” is sometimes used in the same sense as "exhort”, i.e., to urge, it is also used in the same sense as "induce”, an utterance which actually moves the listener to act.
To read the three words "incite”, "induce”, and "exhort”, as meaning "to urge” would be to deny a separate meaning to the word "induce” and to make "incite” superfluous, while to read the three words as meaning "to move to action” would be to deny a separate meaning to the word "exhort”* ******* and, again, to make the word "incite” superfluous. Confronted with three words: "incite”, which means both to urge on and to move to action — the lead opinion speaks of "actual incitement” — and "induce”, which requires a cause and effect relationship (to move to action), and "exhort” (to urge or admonish, without any cause and effect relationship), an appellate court asks what the Legislature intended. Did it intend that persons be subject to liability for simply uttering words or that the listener be persuaded? And, if persuasion is required, is it further necessary that the listener in fact act in the manner requested?
We acknowledge that to require a cause and effect relationship is arguably to read "exhort” out of the statute. It will not do, however, to say that each word must be given meaning and that the three words are stated in the disjunctive. That argument cuts both ways. The construction of § 157b set forth in the lead opinion, that it is enough that the defendant urged without regard to whether the listener was persuaded or, following persuasion, acted, denies a separate meaning to "induce” and, again, also makes superfluous the separate meanings of "incite”, to "stir up; rouse”, "to move to action”, to "stimulate or prompt to action”.
Confronted with a statute in which such an ambiguity inheres, courts generally look for the legislative intent or purpose, and ask which construction appears most reasonable in all the circumstances.
The primary rule of construction is to give effect to the legislative intent. To do so, courts will construe "or” as meaning "and” and "and” as meaning "or”. Moreover, "penal statutes are to be strictly construed and any ambiguity is to be resolved in favor of lenity”. People v Gilbert, 414 Mich 191, 211; 324 NW2d 834 (1982).
The prosecutor has claimed that § 157b is a solicitation statute. The lead opinion by its construction agrees, although it draws back from so characterizing it in those words, possibly because the penalties provided are greater than for solicitation in any other state of the union. The enormous potential disparity between the penalties provided by § 157b and those in Michigan before the enactment of this statute and in other states strongly suggests that the rule of lenity should be invoked and that § 157b should not be construed to be a solicitation statute.
The 1967 civil disturbance in Detroit prompted a review of the adequacy of the Penal Code provisions concerning riots and unlawful assemblies. Existing legislation did little more than impose obligations on officials to disperse unlawful assemblies and on the citizenry to disperse. Although part of the Penal Code, the legislation did not establish separate criminal penalties for unlawful assembly or rioting as such.
In 1968, existing legislation was repealed, and rioting and incitement to riot were made punishable by not more than ten years in prison. Unlawful assembly was made punishable by not more than five years. _
It was in this context that the Legislature added § 157b:
"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted”. (Emphasis supplied.)
If not a solicitation statute, what then is it? It is, we believe, a special kind of accomplice statute. Under prior Michigan law, accomplices are and continue to be punishable in the same way as those who commit the offense. Why then did the Legislature need to amend the statute? The answer to that question may explain why the Legislature did not stop at "incite” and "induce” and added "exhort”.
After the civil disturbance, the Wayne County Prosecutor had the task of prosecuting persons who had been active in fomenting the civil disturbance. He may have concluded or found that he would not be able to successfully prosecute as accomplices persons who shouted "burn, baby, burn” or "kill whitey” or "kill the blacks” because of the generality of the speech. Arguably the message was too general to impose accomplice responsibility for the actions of those who listened. For accomplice liability more than speech was required. It was necessary to show a closer nexus between the speaker and a listener who burned or killed.
Section 157b was added so that in circumstances such as prevailed in Detroit in the 1967 civil disturbance (riot or unlawful assembly) a person who "incited, induced or exhorted” other persons to actually commit a life-endangering offense would be subject to criminal responsibility as an accomplice and, therefore, subject to the same penalty as the person who committed the offense without regard to whether there was any further nexus or concert of action between the speaker and the person who committed the offense. We believe that the word "exhort” was added to make clear that the kind of cause and effect relationship generally required for accomplice liability was not required in the civil disturbance or riot situation. A general incitement, inducement, or exhortation which, in fact, resulted in the commission of life-endangering offenses would subject the offender to the severe penalties prescribed by § 157b.
Any other construction not only places Michigan beyond the pale in terms of the severity of penalty that can be imposed for solicitation, but is not consonant with the other legislation adopted at the time. The penalty for urging the commission of acts of unlawful force or violence in a riot is no more than ten years while under the construction in the lead opinion of § 157b the penalty for urging someone to commit a life-endangering felony without the added danger of a riot may be up to life imprisonment and even, it has been claimed, mandatory, non-parolable life imprisonment (where the offense solicited is murder).
We would not construe § 157b to be a solicitation statute but a special kind of accomplice statute designed to fill in the gap perceived following the 1967 riots in the reach of accomplice liability.
II
Complicity and solicitation are different. While the conduct in both cases can be similar — the encouragement of crime — the basis of responsibility and the appropriate punishment have traditionally been different.
One who assists in the commission of a crime is an accomplice, and encouragement, at least in the context of an adequate nexus between the request and the act, has been considered sufficient assis tance to make one an accomplice. Accomplices generally are punished as severely as the principal, on the premise that when a crime has been committed, those who aid in its commission should be punished like the principal. If the principal does not succeed in committing the crime, the accomplice, although he rendered the same aid, is an accomplice only to the attempt, which carries a lighter penalty.
Encouragement, where it amounts to no more than asking or urging another to commit a crime, constitutes the common-law offense of solicitation, a misdemeanor at common law. Solicitation focuses solely on the conduct of the solicitor. Criminal responsibility does not depend upon subsequent events; it is unimportant whether the person solicited actually commits the crime, is incited to commit the crime but does not complete it, or is not influenced at all. Solicitation remains a common-law offense in this state, and the maximum penalty is five years imprisonment.
The legislative history of § 157b shows that it was not intended to cover solicitation. A simultaneously passed riot statute that in terms covers simple urgings to commit crime provides lower penalties for speeches intended to incite a riot. Further, the history of § 157b indicates that the Senate intended the act to apply when the solicited crime was committed, and the House appears to have acquiesced in the Senate bill on the understanding that the statute punished those encouraging commission of a crime when the crime was committed.
A
The same day that § 157b was enacted, the Legislature enacted a revision of the riot statute making it unlawful for a person intending to cause or to aid or abet the institution or maintenance of a riot to do an act or engage in conduct that "urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property, or the unlawful interference with a police officer”. (Emphasis supplied.)
The penalty under the riot act, for advocating the same crimes described in § 157b, is set at a maximum of ten years. Section 157b allows a higher penalty, equal to the penalty for the violent crime "incited, induced or exhorted”. The lead opinion’s construction of § 157b, in combination with the language of the riot act, would mean that the Legislature, in passing these two acts on the same day, decided that advocacy of violent crime requires a penalty equivalent to the penalty for the crime called for, unless the advocacy was with intent to incite a riot, in which case a lesser penalty of only ten years is justified.
B
The Senate bill that became § 157b was, throughout the enactment process, addressed to accomplices — those successfully encouraging another to commit violent crime.
Three bills that dealt with encouragement of crime were introduced in the Senate within 11 days of each other in 1968. Essentially the same group of senators sponsored each of the three bills. Senate Bill No. 846, which became the riot act already discussed, provided:
"Sec. 2. It is unlawful and constitutes incitement to riot for a person or persons, intending to cause a riot or unlawful mob violence, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property, or the unlawful interference with a police officer, peace officer or fireman in the lawful performance of his duty.
* * *
"Sec. 4. (1) A violation of sections 1 or 2 is a felony, punishable by not less than 2 nor more than 10 years in prison or a fine of not more than $10,000.00, or both.”
Senate Bill No. 927, which became § 157b, provided:
"Any person who incites or exhorts any other person to burn unlawfully any property, to kill, to wound or to assault any persons, or to do any other act which is a felony, or which endangers or is likely to endanger the life or property of any person, or who aids and abets in any such inciting or exhorting, is guilty of a felony punishable by imprisonment in the state prison for not less than 5 nor more than 20 years.”
Senate Bill No. 928, which was not enacted into law, provided:
"Any person who incites or solicits another person to loot or commit an act of larceny or burglary is guilty of a felony punishable by imprisonment in the state prison for not more than 10 years or by a fine of not more than $10,000.00, or both.”
The Senate Judiciary Committee amended Senate Bill No. 927 to provide that anyone who "induced” another "to murder” would be subject to life imprisonment. (This suggests that at least as to murder § 157b does not apply unless a murder is induced.) Following this amendment, the bill’s penalty provision read "imprisonment in the state prison for life or any term of years”.
The Senate adopted two floor amendments, both proposed by Senator Fleming, who was a sponsor of the bill. First, the clause "to do any act which would constitute a felony or circuit court misdemeanor that may endanger or be likely to endanger the life or property of any person” (emphasis supplied) was amended to delete "or property”. The second amendment was to make the penalty equal to that for the crime incited, induced, or exhorted. The penalty in Senate Bill No. 928 was similarly amended four days later.
C
When the bills reached the House, a substitute bill was passed. The House substitute was addressed to solicitations — encouragements to commit a crime regardless of whether the crime was in fact committed. The penalties were considerably lower than those in the Senate. One who urged another to commit first-degree murder could be imprisoned for as long as 20 years; one who urged another to commit a crime punishable by 5 years to life in prison could be imprisoned for as long as 5 years; and one who urged commission of a lesser crime was guilty of a misdemeanor, punishable for as long as 2 years in prison. _
The Senate did not agree to the House bill. The conference committee recommended passage of the Senate version, and both houses agreed.
The Senate’s objection to the House bill appears to have been that it was a solicitation statute and did not provide adequately for what the Senate bill covered, successful encouragements to commit crime. The apparent agreement of the conference committee was to adopt a bill imposing accomplice responsibility for successful encouragements to commit crime.
D
Section 157b appears to have been intended to resolve a problem of establishing accomplice liability that arose following the 1967 civil disturbances in Detroit. Some persons had contributed to the disturbances by making speeches urging violence and disorder, including arson and other dangerous crimes. Although these speakers may have been responsible for crimes inspired by their speeches, a prosecutor would have difficulty in specifying the crime the speaker had committed.
Successful prosecution of such a speaker as an accomplice to the crimes he encouraged may have been doubtful. An accomplice must have the mens rea requisite to the commission of the crime itself. One who had merely encouraged arson in general, to no specific person and with no specific property in mind, might not be considered by a judge or a jury to have the mens rea necessary to be found an accomplice to a particular act of arson. The prosecutor may have been reluctant to charge speakers as accomplices. He could prosecute them for the common-law offenses of solicitation and incitement to riot, which carry a maximum penalty of five years.
Senate Bill No. 846, which became the riot act, codified the common-law crimes of riot and incitement to riot, and increased the maximum penalties to ten years. Senate.Bills Nos. 927 and 928 were also addressed to the speechmakers. In pass ing § 157b, the Legislature did not intend to punish speakers for urging criminal conduct — the riot act dealt with that problem — but instead provided a means to hold speakers in a riot responsible for the crimes which their oratory brought about.
Ill
One could nevertheless argue that the statutory language seems to cover both complicity and solicitation. This construction of the statute would make principals, accomplices, and those who unsuccessfully urge the commission of a crime subject to the same penalties. Such a treatment of solicitation, however, would be sharply at variance with the common law and the treatment of solicitation in every other jurisdiction. In short, the proposed construction of § 157b would work a drastic and heavy-handed change in the criminal law.
A
Common-law solicitation includes the invitation to commit any felony, and at least some misdemeanors. Under § 157b, only encouragements to felonies or misdemeanors that are "dangerous to life” would subject the offender to liability. The proposed construction of § 157b would leave importuning the commission of crimes that are not "dangerous to life” subject to the penalty for common-law solicitation, a maximum of five years.
This narrowing of the range of crimes urged, together with the higher penalty, might be construed as an intentional, coherent deviation from the common law: urgings to commit crimes dangerous to life should be punished more severely than urgings to commit other crimes. However, the Senate’s parallel amendment of the penalty provision of Senate Bill No. 928, which concerned larceny and burglary, does not support such a reading.
B
The proposed construction of § 157b might make one who advocated or urged murder automatically subject to a mandatory sentence of life imprisonment without parole. It is difficult to believe that the Legislature intended that mere words that persuaded no one, much less caused them to act, should call for the severest punishment.
If Shafou’s arsonist had gone ahead with the scheme to burn down the store after Shafou had tried to call the whole thing off, but the arsonist had been caught by the police before he could set the fire, Shafou would be punishable as one guilty of arson while the arsonist would be guilty only of attempted arson, which carries a lesser penalty.
If a person urged to commit a murder was persuaded to do so and fired a shot gravely wounding the victim who nevertheless survived, he could only be convicted of assault with intent to commit murder, but the speaker could be sentenced for murder (possibly for first-degree murder).
C
No other state treats simple urgings to commit crime as harshly as the proposed construction of § 157b. Sixteen states have adopted solicitation statutes based on the Model Penal Code. Under the Model Penal Code, the crime solicited need not be committed. The penalty for solicitation is the same as that for the crime invited except that a solicitation to commit a felony of the first degree is a felony of the second degree. There is, however, a defense of withdrawal. This is a coherent treatment of solicitation, punishing solicitors as harshly as those solicited when there is no withdrawal and the offense solicited is or would have been committed. The punishment does not depend on the fortuity of subsequent events, such as whether the solicitee was actually persuaded, or committed the crime, but because the Model Penal Code concentrates on the criminal disposition of the solicitor, one who subsequently repents and disavows the request escapes liability altogether. Moreover, the Model Penal Code provides that the penalty for solicitations of first-degree felonies, which are the most serious crimes, shall be reduced to the penalty for second-degree felonies so that the maximum sentence for solicitation under the Model Penal Code would be ten years and the minimum sentence cannot exceed three years.
The treatment of solicitation in other states is also far less harsh than the proposed construction of § 157b. Common-law solicitation, which seems to be the rule in 23 states, is a misdemeanor. Ten states have solicitation statutes not based on the Model Penal Code, and none of these states imposes a penalty greater than ten years. Only Montana has a statute resembling the proposed construction of § 157b. Montana’s statute says that the punishment for one convicted of solicitation may never exceed the penalty for the crime solicited; it does not make life imprisonment without parole mandatory for one who encourages murder.
IV
The maximum penalty for burning a building other than a dwelling house is ten years. Shafou was sentenced to five years probation, the first six months to be served in the Detroit House of Correction, and fined $1,000. If Shafou had been charged with the common-law offense of solicitation, he could have been punished as severely but no more so.
The issues here presented are of considerable importance in a number of cases, held in abeyance pending the disposition of this case, where the defendants were charged with and convicted under § 157b of soliciting the commission of life-sentence offenses. It would be preferable if the constructional issue were reviewed in such a context because then the potential enormity of the penal provisions of § 157b, construed as a solicitation statute, would be more readily apparent.
We would affirm the Court of Appeals.
Ryan, J., concurred with Levin, J.
Kavanagh, J.
The defendant was convicted by a jury of inciting, inducing, or exhorting another person to unlawfully burn property in violation of MCL 750.157b; MSA 28.354(2). The statute provides:
"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted.”
The Court of Appeals reversed the defendant’s conviction in an unpublished per curiam opinion on February 22, 1979. That Court held (1) an overt act on the part of the person sought to be incited, induced, or exhorted is not required for the defendant to be in violation of the statute, and (2) that it was reversible error to deny the defendant’s request to instruct the jury regarding the evidence of withdrawal or abandonment of the inciting, inducing, or exhorting.
On appeal to our Court three issues are raised: (1) is withdrawal or abandonment a defense to the crime of inciting, inducing, or exhorting another to unlawfully burn property under MCL 750.157b; MSA 28.354(2); (2) was it reversible error for the trial court to refuse to give an instruction on attempt; and (3) does MCL 750.157b; MSA 28.354(2) require proof of an overt act or that the other person was incited, induced, or exhorted? I would answer the last two questions in the affirmative and not reach the first.
There is little dispute about the facts in this case. Mr. Hazim Saeegh testified that, while he was working with the police as an informant in exchange for immunity from prosecution and dismissal of one of several indictments, the defendant approached him about burning a competitor’s store. Mr. Saeegh told the defendant it would cost $1,000, then reported the conversation to the police. The informant was told to stall the defendant so no one else would be hired. The informant subsequently telephoned the defendant on several occasions. These calls were taped by the police and transcripts of the conversations were admitted as evidence at trial.
The defendant testified that the informant approached him about burning the store. The defendant first declined and then agreed.
The defendant, his brother, and the informant testified that the day before the fire was to occur, the defendant’s brother called the informant and told him to "forget everything about the store”.
The defendant argues that under the facts of this case he did not violate MCL 750.157b; MSA 28.354(2) because Mr. Saeegh was cooperating with the police as an informant and was not in any way incited, urged, stirred up, or prevailed upon to commit the arson. The prosecution argues that the person who was solicited need not have been incited, for the crime was complete when the defendant asked the informant to burn the market.
The opinion for reversal treats the statute as a codification of the common-law crime of solicitation and holds that proof of an overt act and that the other person was incited is not required to find one guilty of violating the statute. I disagree.
I am satisfied for two reasons that the Legislature intended that there be some evidence the person sought to be incited was actually incited before the defendant could be convicted under MCL 750.157b; MSA 28.354(2). This statute was enacted as 1968 PA 308 in July, 1968, apparently in response to the 1967 Detroit riots. It was placed in the conspiracy chapter of the penal code. This indicates to me that interaction among persons was contemplated by the Legislature.
On the same day that 1968 PA 308 was enacted another statute entitled "Inciting to riot” was enacted as 1968 PA 302; MCL 752.542; MSA 28.790(2). This statute was placed in a supplemental chapter of the code on riots and related crimes and provides:
"It is unlawful and constitutes incitement to riot for a person or persons, intending to cause or to aid or abet the institution or maintenance of a riot, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property, or the unlawful interference with a police officer, peace officer, fireman or a member of the Michigan national guard or any unit of the armed services officially assigned to riot duty in the lawful performance of his duty.” (Emphasis added.)
This statute does not require that a person actually be incited before a crime is committed. It is clear from the emphasized language above that all that is required to violate this statute is an intent to cause or to aid or abet the institution or maintenance of a riot and an act that urges other persons to commit the unlawful acts specified. Thus, the gravamen of this crime is the effort to incite a crime.
In contrast, MCL 750.157b; MSA 28.354(2) provides that "[a]ny person who incites, induces or exhorts any other person to unlawfully burn any property, * * * or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted”.
Both acts deal with incitement of crimes and both were passed on the same day, apparently in response to the same social problem. Because the Legislature used different language to define the prohibited conduct, I am convinced that the Legislature intended to prohibit different activity under the different acts.
I would hold that it is the incitement to burn illegally rather than the effort to incite which is the gravamen of the crime prohibited by the statute under which the defendant was convicted. Accordingly, some overt act resulting in actual incitement of the other person must be proved by direct evidence or reasonable inference from circumstantial evidence to establish this crime. The overt act which must be proved to establish this crime need not be the commission of the crime sought to be incited. But until it is proved that the other person was incited this statutory crime has not been committed, however vigorous the attempt to incite may have been. Once the incitement has been demonstrated the crime is complete.
Having determined that MCL 750.157b; MSA 28.354(2) requires an actual incitement, I would find that to be an impossibility in this case. The person whom the defendant sought to incite, induce, or exhort was a police informant. The prosecution admits that the informant never intended to burn the market. Therefore, there is no proof of actual incitement and, at most, the defendant is guilty of attempted "inciting, inducing or exhorting” another person to unlawfully burn property. The trial court erred by refusing to charge the jury on attempt.
Chief Justice Fitzgerald’s opinion would hold that there was no request or evidentiary support for an instruction on attempt and finds no error in the trial judge’s failure to instruct the jury on attempt. I am convinced that a fair reading of the following excerpt from the record discloses that a request for an instruction on attempt was made.
"The Court: Mr. Steele, do you have any objections or additions to the jury charge that you would like the court to give?
"Mr. Steele [Assistant Prosecuting Attorney]: I have no objections, I would just suggest the possibility of an instruction on withdraw[al], since that was brought both in argument before the jury and testimony.
"The Court: Well, I don’t know if there’s any particular instruction, I can indicate so if you want me to, that Mr. Shafou had indicated and the testimony would support that he had withdrawn his request to Mr. Saeegh to have this place burned down, I certainly have no objection to it. I didn’t give an instruction on attempt, because I didn’t think it was applicable to this case whatsoever.
"Mr. Steele: No, I don’t either. My point is that if the jury in fact, finds that there was withdrawal, that’s not a defense. If the jury finds that defendant did in fact, incite, induce or solicit, so under our conspiracy [sic] defense of withdrawal.
"The Court: Well, that’s correct, there’s no questions about that, Mr. Steele.
"Mr. Parzen?
"Mr. Parzen [defense counsel]: Well, I think your Honor has covered everything pretty care — quite thoroughly, I think.
"The Court: All right. We’ll call the jury back in, I will add the statement that if they find that Mr. Saeegh had withdrawn — or, Mr. Shafou had withdrawn his request, that that doesn’t constitute a defense inasmuch as the elements only require that an inducement or incitement be made originally.
"Mr. Parzen: Did I understand your Honor to say he was not going to give any intent— [sic]
"The Court: That is correct because I don’t think it pertains to this whatsoever.
"Mr. Parzen: I make an — I’ll take an exception to that, your Honor.
"The Court: Okay. Based upon the testimony, Mr. Parzen, I wouldn’t see anything of an attempt at all.”
The applicable Michigan law regarding requests for instructions on lesser included offenses is clear.
In People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), this Court held:
"The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id., 36. People v Hamilton, 76 Mich 212; 42 NW 1131 (1889).
"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.”
In People v Chamblis, 395 Mich 408, 423; 236 NW2d 473 (1975), we set forth the standard for determining whether a lesser included offense instruction should be given upon request.
"In determining whether the instruction should be given, the trial court should consider whether, if the defendant had been originally charged only on the lesser offense, the evidence adduced at trial would have supported a guilty verdict on that charge. If it would have, the requested instruction must be given.”
In People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), we held in a per curiam opinion that it was reversible error for the trial judge to refuse to instruct on the lesser included offense of attempt, when the evidence showed the completed offense. See also People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943).
Chief Justice Fitzgerald’s opinion would hold that a violation of MCL 750.157b; MSA 28.354(2) is complete without proof of an overt act or that the other person was incited. It also would hold that there is no evidentiary support for an instruction on attempt, and the trial court did not err by refusing to give the instruction. Such view ignores the rule of Lovett, supra. I would hold that even accepting that interpretation of the statute, the defendant was entitled to an instruction on attempt as a cognate included offense.
The remaining issue in this case is whether withdrawal or abandonment is a defense to the crime of inducing, inciting, or exhorting another to unlawfully burn property under MCL 750.157b; MSA 28.354(2). The withdrawal defense is of no avail to the defendant because it is not a defense to a charge of a completed crime. Once the defendant attempted to solicit the police informant, the crime of attempt was complete. There is no need, therefore, to reach the broad issue of whether withdrawal can ever be a defense to an alleged violation of the statute.
This record establishes only an attempt to incite. The defendant should stand convicted of that crime, and the matter be remanded to the trial court for resentencing therefor.
Riley, J., took no part in the decision of this case.
See text accompanying fn 15 for text of § 157b.
Shafou could not be charged with conspiracy to burn a building (MCL 750.73; MSA 28.268) because one cannot enter into an unlawful agreement with a police informant who does not intend to commit an offense. People v Smyers, 398 Mich 635, 640, 651; 248 NW2d 156 (1976). On the assumption that a similar limitation does not inhere in § 157b, Shafou was charged with and convicted of inciting, inducing, or exhorting the police informant to unlawfully burn.
Charging a violation of § 157b exposes the defendant to the same punishment imposed on an accomplice or conspirator.
Shafou was sentenced to five years probation, the first six months to be served in the Detroit House of Correction, and fined $1,000. The evidence tended to show that Shafou was guilty of solicitation, a common-law, not a statutory, offense for which the same term of imprisonment and fine could have been imposed:
"Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.” MCL 750.505; MSA 28.773.
Burning a building other than a dwelling house subjects the offender to 10 years imprisonment. MCL 750.73; MSA 28.268.
Ante, p 121.
Ante, p 122.
"I would hold that it is the incitement to burn illegally rather than the effort to incite which is the gravamen of the crime prohibited by the statute under which the defendant was convicted. Accordingly, some overt act resulting in actual incitement of the other person must be proved by direct evidence or reasonable inference from circumstantial evidence to establish this crime. The overt act which must be proved to establish this crime need not be the commission of the crime sought to be incited. But until it is proved that the other person was incited this statutory crime has not been committed, however vigorous the attempt to incite may have been. Once the incitement has been demonstrated the crime is complete.” (Emphasis in original.) Post, p 149.
Justice Kavanagh would hold that withdrawal is not a defense to attempt to incite and would not reach the question whether withdrawal can be a defense to an alleged violation of § 157b. Post, p 152.
See fn 14.
The opinion sets forth Webster’s New World Dictionary (2d ed), (Collins & World Publishing Co, Inc, 1974), definitions of "incite”, "induce”, and "exhort”:
"Incite: 'to urge to action; stir up; rouse’ (p 710). Induce: 'to lead on to some action * * *; prevail on; persuade’ (p 718). Exhort: 'to urge earnestly by advice, warning, etc.’ (p 491).”
The Merriam-Webster dictionary (Webster’s New Collegiate Dictionary; Springfield, Mass.: G & C Merriam Co, 1975), definition of "incite” is:
"To move to action; stir up; spur on; urge on”.
The Random House Dictionary of the English Language (New York: Random House, 1969) states:
"To urge on; stimulate or prompt to action; to incite a crowd to riot.”
Merriam-Webster defines "induce” as:
"To lead on; move by persuasion or influence; to call forth or bring about by influence or stimulation; effect, cause; to cause the formation of; to produce (as an electric current) by induction; to arouse by indirect stimulation”.
Random House defines it as:
"To lead or move by persuasion or influence, as to some action, state of mind, etc.: to induce a person to go; to bring about, produce, or cause: Opium induces sleep.”
Merriam-Webster defines "exhort” as:
"To incite by argument or advice: urge strongly; to give warnings or advice: make urgent appeals.”
Random House defines "exhort” as:
"To urge, advise, or caution earnestly; admonish urgently; to make exhortation; give admonition.”
Indeed, one may wonder why if the construction of the lead opinion is correct the Legislature did not simply use the word urge as it did in the companion riot statute. See fn 14.
"Whenever it is reasonably necessary to accomplish the obvious purpose of a statute the word 'and’ may be read not only in the conjunctive but also in the disjunctive. Such has been the construction given by this court even to statutes constituting a part of our criminal law. See People v Harrison, 194 Mich 363; 160 NW 623 (1916).
" 'In the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to construe "or” as meaning "and”, and again "and” as meaning "or”.’ United States v Fisk, 3 Wall (70 US) 445; 18 L Ed 243 (1866).” Elliott Grocer Co v Food Market, Inc, 286 Mich 112, 115-116; 281 NW 557 (1938).
"[Cjourts have generally said that the words are interchangeable and that one may be substituted for the other, if to do so is consistent with the legislative intent.” 1A Sands, Sutherland Statutory Construction (4th ed), § 21.14, p 91.
MCL 750.521-750.528; MSA 28.789-28.796.
Section 528 did provide that persons so unlawfully assembled who had destroyed or injured a dwelling or other building or ship shall be guilty of a felony and answerable for damages. MCL 750.528; MSA 28.796.
Officers who neglected their duty were guilty of a misdemeanor. MCL 750.524; MSA 28.792.
If officials or persons acting by their order were killed or wounded "all the persons so unlawfully, riotously or tumultuously assembled, and all other persons who, when commanded or required, shall have refused to aid or assist the said magistrates or officers, shall be held answerable therefor”. MCL 750.527; MSA 28.795.
"Sec. 1. It is unlawful and constitutes the crime of riot for 5 or more persons, acting in concert, to wrongfully engage in violent conduct and thereby intentionally or recklessly cause or create a serious risk of causing public terror or alarm.” MCL 752.541; MSA 28.790(1).
"Sec. 2. It is unlawful and constitutes incitement to riot for a person or persons, intending to cause or to aid or abet the institution or maintenance of a riot, to do an act or engage in conduct that urges other persons to commit acts of unlawful force or violence, or the unlawful burning or destroying of property, or the unlawful interference with a police officer, peace officer, fireman or a member of the Michigan national guard or any unit of the armed services officially assigned to riot duty in the lawful performance of his duty.” MCL 752.542; MSA 28.790(2).
"Sec. 3. It is unlawful and constitutes an unlawful assembly for a person to assemble or act in concert with 4 or more persons for the purpose of engaging in conduct constituting the crime of riot, or to be present at an assembly that either has or develops such a purpose and to remain thereat with intent to advance such purpose.” MCL 752.543; MSA 28.790(3).
"Sec. 4. (1) A violation of sections 1 or 2 is a felony, punishable by not more than 10 years in prison or a fine of not more than $10,000.00, or both.
"(2) A violation of section 3 is a felony, punishable by not more than 5 years in prison or a fine of not more than $5,000.00, or both.” MCL 752.544; MSA 28.790(4).
MCL 750.157b; MSA 28.354(2).
Michigan has a general accomplice statute, MCL 767.39; MSA 28.979, which is codified in the Code of Criminal Procedure. It provides that one who "procures, counsels, aids, or abets” in the commission of a crime may be tried, and upon conviction punished, as if he had directly committed the offense. The main thrust of this statute is to eliminate the ancient procedural distinctions among principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. See People v Palmer, 392 Mich 370, 377-378; 220 NW2d 393 (1974); People v Smith, 271 Mich 553, 557-562; 260 NW 911 (1935); Meister v People, 31 Mich 99, 110-111 (1875); LaFave & Scott, Criminal Law, § 63, pp 495-501.
People v Chapman, 62 Mich 280; 28 NW 896 (1886); see LaFave & Scott, fn 16 supra, § 64, pp 502-503. See fn 16 concerning accomplice liability generally.
See Williams, Criminal Law: The General Part § 137 (1961).
See Model Penal Code § 5.01(3), commentary.
MCL 750.92; MSA 28.287.
See People v Hammond, 132 Mich 422; 93 NW 1084 (1903); Rex v Higgins, 102 Eng Rep 269 (1801); Anno: 35 ALR 961 (1925).
MCL 750.505; MSA 28.773.
See fn 14.
See fn 14.
See fn 14.
Advocacy of criminal acts is more dangerous to society when it may cause a riot. Courts have long recognized the need for extraordinary police measures in riot situations, because speeches made in a volatile atmosphere can trigger widespread violence and disorder. United States v Williams, 372 F Supp 65, 66 (D SD, 1974); Smith v United States, 330 F Supp 867, 870 (ED Mich, 1971); see also MCL 750.527; MSA 28.795. The Model Penal Code carefully limits the circumstances, justifying the use of deadly force in law enforcement, but then makes a blanket exception for riot situations. Model Penal Code § 3.07.
Senate Bill No. 846 was introduced on January 29, 1968, by Senators Fleming, Kuhn, Lodge, VanderLaan, Richardson, DeMaso, O’Brien, Hungerford, Schweigert, Zaagman, Bouwsma, Rozycki, Dzendzel, Lane, Lockwood, Youngblood, McCauley, Mack, Stamm, Beebe, Toepp, Novak, Faust, Bursley, Zollar, Bowman, Gray, and Huber. 1968 Senate Journal 85.
Senate Bill No. 927 was introduced on February 8, 1968, by Senators Fleming, Dzendzel, Rozycki, Kuhn, Beebe, Toepp, Stamm, VanderLaan, Bouwsma, Zaagman, Lockwood, Richardson, Lodge, Huber, Schweigert, Zollar, Rockwell, O’Brien, and DeMaso. 1968 Senate Journal 170.
Senate Bill No. 928 was introduced on February 8, 1968, by Senators Fleming, Dzendzel, Rozycki, Kuhn, Beebe, Toepp, Stamm, Van-derLaan, Bouwsma, Zaagman, Lockwood, Richardson, Lodge, Huber, Schweigert, Zollar, Rockwell, O’Brien, and DeMaso. 1968 Senate Journal 170.
Senate Bill No. 928, as amended, was passed by the Senate. 1968 Senate Journal 388. In the House, the Committee on Judiciary recommended a substitute bill. 1968 House Journal 2028. Rep. Cooper moved that the bill be re-referred to the Committee on Judiciary, and the House agreed. 1968 House Journal 2645. The same bill subsequently was proposed by Rep. Cooper as a substitute for Senate Bill No. 927, and was passed as amended by the House.
1968 Senate Journal 213.
1968 Senate Journal 355.
1968 Senate Journal 376.
"(1) Any person who, with the intent to cause another to engage in conduct constituting a crime, commands or solicits such other person to engage in that conduct, when such command or solicitation is given under circumstances which constitute a clear and present danger that such crime will be committed, is guilty of the crime of criminal solicitation.
"(2) It is no defense to a prosecution under this section that the person solicited or commanded to engage in conduct constituting a crime could not be guilty of such offense because of:
"(A) Criminal irresponsibility or other legal incapacity or exemption;
"(B) Unawareness of the criminal nature of the conduct in question or of the defendant’s criminal purpose; or
"(C) Any other factor precluding the mental state sufficient for the commission of the crime in question.
"(3) It is no defense to a prosecution under this section that the defendant belongs to a class of persons who are legally incapable in an individual capacity of committing the offense that the defendant commanded or solicited another to commit.
"(4) Any person guilty of criminal solicitation shall be punished as follows:
"(A) If the offense solicited is first degree murder, the person convicted of such solicitation shall be guilty of a felony punishable by imprisonment in the state prison not more than 20 years, or by a fine of not more than $2,500.00.
"(B) If the offense solicited is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such solicitation shall be guilty of a felony punishable by imprisonment in the state prison not more than 5 years, or by a fine of not more than $2,500.00.
"(C) If the offense solicited is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such solicitation' shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed $1,000.00.”
1968 Senate Journal 1513-1515. This bill the solicitation section, § 1010, of the proposed Michigan Second Revised Criminal Code. The renunciation defense in § 1010 was removed from the House substitute by a floor amendment. 1968 House Journal 2594.
1968 Senate Journal 1632.
1968 Senate Journal 1808-1809.
1968 House Journal 3193; 1968 Senate Journal 1809.
The Senate adopted the Conference Committee reports on both bills on June 6, 1968. 1968 Senate Journal 1807-1808. The House adopted the Conference Committee reports on both bills on June 25, 1968. 1968 House Journal 3192-3193. The Governor signed both bills on July 1, 1968. 1968 Senate Journal 2029-2030.
One might object that if § 157b is construed as an accomplice statute, it is redundant because MCL 767.39; MSA 28.979 (see fn 16) already makes accomplices punishable as principals. That statute, however, eliminates common-law distinctions in charging accessories at common law. See fn 16 supra.
LaFave & Scott, fn 16 supra, p 415.
1968 Senate Journal 376; see text and note at fn 30 supra. Although Senate Bill No. 928 was not enacted into law, the Senate did pass the bill as amended. See fn 27 supra.
Solicitation is a crime at common law for two reasons. First, the solicitor has displayed a criminal disposition, and his culpability should not depend upon the fortuity of whether or not the solicited crime ultimately was committed. Second, the populace should not be exposed to entreaties to commit crime.
Neither of those rationales for the crime of solicitation support a construction of § 157b that would treat urgings to commit crimes dangerous to life differently from urgings to commit other crimes. Some nonviolent felonies are punished as severely as the "dangerous” felonies described in § 157b. For example, the maximum penalty for embezzlement of over $100 is ten years, MCL 750.174; MSA 28.371, as is the maximum penalty for arson of a commercial building, MCL 750.73; MSA 28.268. One would not expect the Legislature to equate the penalties for these two crimes, one dangerous to life and the other not, but then to set different penalties for solicitations of the two crimes.
One might argue that urgings to commit dangerous felonies are more culpable because they have a greater probability of success. Crimes of violence need only arouse emotion to put them in motion, while nonviolent crimes require calm preparation and calculation. Thus, one might argue, urgings to commit crimes of violence should be punished more severely than urgings to commit other crimes.
There are two responses to this argument. First, that is not what the Legislature has done in § 157b. That section does not cover urgings to commit crimes of aroused emotion, but urgings to commit crimes that are dangerous to life. There are many crimes dangerous to life, such as the arson requested by Shafou, that require planning and preparation. There are also crimes of aroused emotion that are not dangerous to life, such as the malicious destruction of property.
More importantly, the probability of success of the urging is irrelevant to solicitation. If the solicitation is in fact successful, the solicitor will ordinarily have become an accomplice and may accordingly be punished as if he had committed the crime. Thus one would not expect that the Legislature would see a need to distinguish among forms of solicitation on the basis of the likelihood of their success.
MCL 750.316; MSA 28.548. MCL 769.9; MSA 28.1081. People v Hall, 396 Mich 650, 657-658; 242 NW2d 377 (1976).
The maximum penalty for arson of real property is 10 years. MCL 750.73; MSA 28.268. If the arsonist had gone so far in preparing to burn the building as to distribute inflammable material, the arsonist would be punishable by up to 4 years imprisonment. MCL 750.77; MSA 28.272. MCL 750.503; MSA 28.771. If the arsonist were stopped short of that stage, he could be imprisoned for not more than 5 years. MCL 750.92(2); MSA 28.287(2).
See Ala Code § 13A-4-1; Alaska Stat § 11.31.110; Ariz Rev Stat Ann §§ 13-1002, 13-1005; Ark Stat Ann §§ 41-705, 41-706; Colo Rev Stat §§ 18-2-101, 18-2-301; Fla Stat § 777.04; Hawaii Rev Stat §§ 705-510, 705-512, 705-530; 111 Ann Stat ch 38, §§ 8-1, 8-4 (however, Model Penal Code defense of withdrawal not permitted; cf. People v Brown, 90 Ill App 3d 742; 414 NE2d 475 [1980] [abandonment not a defense to attempt]); Ky Rev Stat §§ 506.030, 506.060; NH Rev Stat Ann § 629:2; NM Stat Ann §30-28-3; NY Penal Law §§ 40.10, 100.00-100.20; ND Cent Code § 12.1-06-03; Or Rev Stat §§ 161.435, 161.440; Pa Stat Ann tit 18, §§ 902, 905; Tex Penal Code Ann tit 4, §§ 15.03, 15.04.
The Model Penal Code, promulgated in 1962 (first drafted in 1953), reduced the penalty for solicitation from the penalty for the felony solicited only for solicitation of felonies of the first degree. See Model Penal Code § 5.05. However, 14 of the 16 states which follow the code in other respects have since mitigated the harshness of this rule and reduced the penalties for all solicitation offenses from those of the offenses solicited. See Ala Code § 13A-4-1 (all penalties reduced by one step); Alaska Stat § 11.31.110 (all penalties reduced by one step); Ariz Rev Stat Ann §13-1002 (all reduced by two steps); Ark Stat Ann §§ 41-705, 41-706 (all reduced by one step); Colo Rev Stat §§ 18-2-101, 18-2-301 (virtually all reduced by one step); Fla Stat § 777.04 (all reduced by one step); Hawaii Rev Stat § 705-512 & Commentary (all reduced by one step); Ill Ann Stat ch 38, § 8-4 (all reduced by one step); Ky Rev Stat § 506.030 (all reduced by one step); NM Stat Ann § 30-28-3 (all reduced by one step); NY Penal Law §§ 100.00-100.20 (all reduced by one, two, or three steps); ND Cent Code § 12.1-06-03 (all reduced by one step); Or Rev Stat § 161.435 (all reduced by one step); Tex Penal Code Ann tit 4, § 15.03 (all reduced by one step).
Two states retain the code approach of reducing only the penalties for solicitation of murder and of felonies of the first degree. See NH Rev Stat Ann §629:2 (reducing only the penalty for solicitation of murder); Pa Stat Ann tit 18, §902 (reducing only the penalties for solicitation of murder and of first-degree felonies).
"§ 5.02. Criminal Solicitation
"(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.
"(2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section that the actor fails to communicate with the person- he solicits to commit a crime if his conduct was designed to effect such communication.
"(3) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
Model Penal Code § 5.05.
Model Penal Code § 6.06.
We could find no statute on solicitation in the criminal codes of the following 23 states: District of Columbia, Georgia, Idaho, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Utah, Washington, West Virginia, and Wyoming.
Cal Penal Code § 653f (6-year maximum for solicitation of a felony); Conn Gen Stat § 53a-179a (10-year maximum); Del Code Ann tit 11, §§ 501-503, 541 (10-year maximum); Iowa Code §§ 705.1-705.2 (5-year maximum); La Rev Stat Ann § 14:28 (2-year maximum); Nev Rev Stat § 199.500 ("gross misdemeanor” if solicitation of murder, kidnapping, or arson); Tenn Code Ann §§ 39-1-401 to 39-1-404 (punished as an attempt to commit the felony solicited); Vt Stat Ann tit 13, § 7 (5-year maximum); Va Code § 18.2-29 (5-year maximum); Wis Stat § 939.30 (10-year maximum).
Mont Code Ann § 45-4-101.
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Ryan, J.
This is a slip and fall case which raises issues under the law of premises liability.
We are required to decide whether the plaintiff was entitled to the requested instruction on com parative negligence; whether the Funk doctrine should be expanded to cover the facts of this case; and whether the Court of Appeals erred in finding that the trial court should have granted the defendant’s motion for a directed verdict. We answer the first and third questions in the affirmative, but answer the second question in the negative. Accordingly, the decision of the Court of Appeals is reversed and the case is remanded for a new trial under the principles of comparative negligence.
On January 18, 1974, plaintiff Renold L. Beals, Jr., fell from a roof of the Kingston Farm Service building in Kingston, Michigan, onto the railroad grade below and then forward onto the tracks, striking his left elbow and face against the railroad tracks. He suffered a cut lip, a broken tooth, and an injury to his right foot which was later diagnosed as a multiple fracture of the right heel bone. The plaintiff and his spouse, Joyce E. Beals, filed suit on February 19, 1975, against the defendant, Richard Walker, the owner and operator of Kingston Farm Service. Amended complaints were later filed, alleging medical malpractice by defendant Dr. John Williamson in the treatment of the plaintiffs injured foot.
The trial began on June 6, 1978. At the close of the plaintiffs proofs, defendant Walker filed a motion for a directed verdict of dismissal. The trial judge took the motion under advisement. At the close of the case, the court refused to give the plaintiffs requested charge on comparative negligence and instructed the jury that plaintiffs con tributory negligence would bar recovery. Plaintiff objected to that instruction on the basis of Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). A jury verdict of no cause of action was returned in favor of both defendants on June 17, 1978. The plaintiff’s motion for a new trial was denied on October 6, 1978.
A timely claim of appeal as of right was filed in the Court of Appeals on October 26, 1978. Defendant Walker filed a cross-appeal, arguing that his motion for a directed verdict should have been granted. A majority of the Court of Appeals panel affirmed the judgment for defendant Walker on the basis of the issues raised in the cross-appeal, namely that certain safety regulations issued by the Michigan Department of Labor were not violated and therefore the motion for a directed verdict should have been granted. The judgment in favor of defendant Williamson was also affirmed. Beals v Walker, 98 Mich App 214; 296 NW2d 828 (1980). Judge M. J. Kelly dissented only as to defendant Walker, finding sufficient evidence to allow the premises liability claim to go to a jury.
The plaintiff applied for leave to appeal against only defendant Walker. We granted leave to appeal. 411 Mich 900 (1981).
The evidence adduced during the plaintiffs case in chief tended to show the following facts:
The plaintiff had been employed as a millwright for ten years prior to the accident.
The morning of January 18, 1974, was cold and misty, the type of day that required the use of windshield wipers when driving an automobile. Sometimes the sun would come out and then disappear again. The plaintiff and a fellow employee, John Wilson, arrived at the defendant’s grain elevator in response to Walker’s call for repair service. An elevator leg would not operate, and Walker suspected that the problem was a broken "reducer”, a large gear located in the "headhouse” at the very top of the elevator.
The "man-lift” used to reach the top of the elevator was capable of carrying only one person; the lift could not be sent down in order to carry up a second person because it was counterbalanced for the weight of one person. Since the repair required the attention of both of the men, it was necessary that another means be found to enable both Beals and Wilson to reach the headhouse.
The plaintiff initially looked for an inside ladder adjacent to the lift. The plaintiff and John Wilson testified that every other grain elevator they had ever worked on had an inside ladder. The plaintiff’s safety expert also testified that this was the only grain elevator he had ever seen without an inside ladder. The plaintiff’s employer provided a list of grain elevators he had worked on, all having inside ladders. Finding no inside ladder, the plaintiff asked one of the defendant’s employees how a second man could get to the headhouse. The employee said that a stationary outside ladder, which was permanently affixed to the outside of the elevator and extended from the roof of a lower building to the top of the elevator, could be used. The employee informed the plaintiff that a portable ladder which was in the warehouse could be used to gain access to the roof of the lower building in order to reach the base of the outside ladder.
The plaintiff obtained the portable ladder from the warehouse and placed it against the side of the building in order to obtain access to the roof of the lower building. Mr. Beals climbed the ladder, and when he reached the top looked at the roof for snow and ice and felt it for ice and wetness. The roof was dry, so he climbed up on the east side of the sloped roof and walked toward the stationary ladder, which was located on the other side of the roof a few feet past the peak. Before stepping over the peak, the plaintiff looked at the surface of the roof on the west side of the peak and determined that it looked just like the east side. As Beals stepped over the peak, he slipped, fell, and started sliding down the roof. The west side of the roof was coated with a sheet of clear ice. He slid off the roof, sustaining serious injuries when he struck the ground. A second worker traveled the same route later that same day and successfully reached the headhouse without incident.
The plaintiff’s safety expert testified that the route from the ground to the headhouse via the outside ladder was unsafe in several ways. Although the slope of the roof was not severe, about 18 degrees, it was hazardous for a person walking upon it when compared to a maximum recommended pitch of less than 12 degrees. The expert testified that, in his opinion, the safe access ramp and platform required by the applicable safety regulations could have been constructed at total materials and labor cost of less than $500.
I
The plaintiff’s initial assignment of error concerns the trial court’s instructions on contributory negligence as a total bar to recovery and the court’s concomitant refusal to instruct under the doctrine of comparative negligence. This Court adopted the doctrine of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).
The defendant does not contest the fact that the issue was properly preserved and that this case falls within the limited rule of retroactivity announced in Placek, p 667, namely,
"any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal.”
We are constrained to apply the rule of retroactivity adopted by a majority in Placek, despite the view of some of the justices that prospective application of comparative negligence would have been preferable. Placek, p 683 (opinion by Coleman, C.J., concurring in part and dissenting in part). If the plaintiff submitted evidence at trial sufficient to avoid the defendant’s motion for a directed verdict, see part III, then the plaintiff is entitled to a new trial under the principles of comparative negligence.
II
The plaintiff also objected to the trial court’s contributory negligence instructions on the ground that the defense of contributory negligence was unavailable under our decision in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). Despite the fact that this case does not involve a construction worker alleging negligence against the general contractor in the failure to provide adequate safety devices on the job, the plaintiff argued that the Funk decision could be extended to cover the facts of this case. While the Funk rationale could have been extended to completely abolish the defense of contributory negligence, it is clear that the Funk doctrine was based in large part upon the special safety considerations in the construction trades and the unique role of the general contractor as a supervisor of common work areas. In Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979), the Court assumed, without deciding, that Funk applied to the workplace in general. In addition, it is clear that the Tulkku decision is supportable without reference to Funk.
In any event, we deem it unnecessary to ascertain the precise contours of the Funk doctrine, since the Funk doctrine has been overruled in light of the adoption of comparative negligence. Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). The plaintiffs assertions on appeal that Funk survived the adoption of comparative negligence in Placek were decided adversely to the plaintiff in Hardy and need not be reconsidered. Even if we extended the Funk doctrine to the facts of this case, the defense of comparative negligence would be available upon retrial. Thus, the trial court’s refusal to apply Funk to this case was not erroneous and does not justify a new trial.
Ill
The majority of the Court of Appeals held that the trial court erred in denying the defendant’s motion for a directed verdict. If the plaintiff failed to present evidence sufficient to establish a prima facie case of negligence, then the defendant was entitled to judgment as a matter of law, and the refusal to give the requested comparative negligence instructions would be merely harmless error. In evaluating a motion for a directed verdict, the evidence must be viewed in a light most favorable to the non-moving party. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Viewed in this light, the trial court correctly refused to grant the motion for a directed verdict, and the Court of Appeals majority was in error in concluding that there was insufficient evidence to take the plaintiff’s case to the jury.
The defendant, as a business invitor, owed the plaintiff, as a business invitee, the duty
"of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury.” Torma v Montgomery Ward & Co, 336 Mich 468, 476; 58 NW2d 149 (1953).
The Court of Appeals majority reasoned that "to the extent that the icy condition was obvious, due to the temperature, climate, and time of year, defendant cannot be held to have a duty to warn plaintiff of such a condition”. Beals, p 226. This conclusion is directly contrary to this Court’s decision in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975). Of course, a roof is not a parking lot, but the reasonableness of the defendant’s conduct under these circumstances is a matter for the jury, not the Court of Appeals.
Further support for the plaintiffs case was provided by evidence tending to show the violation of two safety regulations issued by the Michigan Department of Labor. Violations of administrative rules and regulations are evidence of negligence. Douglas v Edgewater Park Co, 369 Mich 320, 328; 119 NW2d 567 (1963); see also Zeni v Anderson, 397 Mich 117, 142; 243 NW2d 270 (1976). The defendant argues that safety regulations in the workplace do not apply to employees of independent contractors; we reject that argument on the authority of Hardaway v Consolidated Paper Co, 366 Mich 190, 197; 114 NW2d 236 (1962).
The Court of Appeals majority found that the alleged violation of safety regulations was irrelevant and should not have been admitted. We disagree. As to the regulations requiring the use of guardrails and barriers on "runways”, there was evidence sufficient to support the inference that the roof was used as a "passageway for persons elevated above the surrounding floor or ground level”. Of course, should the jury conclude that the roof was so rarely used that it was not a. "passage way”, or "runway”, then it will properly conclude that the regulation was not violated. A similar factual dispute exists regarding the regulation requiring a platform at the base of a ladder ascending over 20 feet. Whether or not the platform would have prevented the plaintiffs fall or provided a means by which the plaintiff could have stopped his fall is a question of fact for the jury, since it appears that while the plaintiff never actually reached the ladder, he may have slipped down the angled roof over the area on which a horizontal platform should have been constructed. However, before the regulation is admitted upon retrial, the trial judge must carefully consider whether the harm suffered was what the regulation was designed to prevent. Zeni, supra, p 138.
Finally, the plaintiff introduced evidence sufficient to create a factual question whether the defendant violated the industry custom of providing an interior rather than an exterior ladder. Our review of the record convinces us that the trial judge correctly submitted this issue to the jury as well.
The trial judge correctly denied the defendant’s motion for a directed verdict. The Court of Appeals majority erroneously concluded that a directed verdict should have been granted. The decision of the Court of Appeals is reversed, and the case is remanded for a new trial.
Fitzgerald, C.J., and Coleman, J., concurred with Ryan, J.
Williams, J., concurred in the result.
Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974).
The plaintiff claims that he was denied a fair trial by the admission of a complete written statement by defendant Walker and by a jury instruction that injected a false issue into the case. These issues were not reached by the Court of Appeals, are not necessary to our decision today, and need not arise upon retrial. Accordingly, we decline to address them.
Plaintiffs exhibit No. 13 (next page) illustrates the situation.
Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 38, fn 3; 323 NW2d 270 (1982).
Hardy, fn 4 supra, p 71, fn 45 (opinion by Moody, J., dissenting in part).
Hardy, fn 4 supra, pp 63-65, 69, fn 41.
Hardy, fn 4 supra, pp 42-43.
"For reasons adequately stated by the Alaska Court, we reject the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability. While the invitor is not an absolute insurer of the safety of the invitee, the invitor has a duty to exercise reasonable care to diminish the hazards of ice and snow accumulation. * * * The conduct of the invitee will often be relevant in the context of contributory negligence.” Quinlivan, pp 260-261.
" 'The mere fact that snow and ice conditions prevail for many months throughout various locations in Alaska is not in and of itself sufficient rationale for the insulation of the possessor of land from liability to his business invitee. Nor do such climatic conditions negate the possibility that the possessor should have anticipated harm to the business invitee despite the latter’s personal knowledge of the dangerous snow and ice conditions or the general obviousness of such conditions.
" 'What acts will constitute reasonable care on the part of the possessor of land will depend on the particular variables of each case.’ ” Quinlivan, p 260, quoting Kremer v Carr’s Food Center, Inc, 462 P2d 747 (Alas, 1969). | [
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Ryan, J.
This is the second time this litigation has been before the Court.
In 1976, an opinion and supporting orders were issued remanding the case to the circuit court for the development of a record sufficient to permit consideration of the plaintiffs’ original challenge to the constitutionality of the Agricultural Marketing and Bargaining Act, MCL 290.701 et seq.; MSA 12.94(101) et seq. (hereinafter the AMABA or the Michigan act), and determination of the applicability of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. The somewhat unique procedural history detailed' in the 1976 opinion brought the case before the Court without the development of a factual record necessary for resolution of some of the substantive challenges then presented. We retained jurisdiction, and the parties, having complied with our prior orders, are before the Court once again.
Plaintiffs include Michigan Canners and Freezers Association, an organization of "handlers” of "agricultural commodities”, individual handlers, an incorporated "producer”, and an individual "producer”. They have challenged AMABA on three constitutional grounds:
1) The Michigan act conflicts with and is, therefore, pre-empted by the Federal Agricultural Fair Practices Act of 1967, 7 USC 2301 et seq. (hereinafter FAFPA or the federal act);
2) The Michigan act is facially unconstitutional because it exceeds the state’s police power; and
3) The Michigan act’s provisions exceed the scope of its title in violation of the Michigan Constitution.
In addition, plaintiffs contend that the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq. (hereinafter the APA), is applicable to AMABA and that the defendant Agricultural Marketing and Bargaining Board failed to comply with the requirements of the APA in accepting and accrediting the Michigan Asparagus Growers Division of defendant Michigan Agricultural Cooperative Marketing Association (MACMA) as the bargaining representative of the Processing Asparagus Bargaining Unit. We address the issues in the order raised.
I
The United States Congress and the Michigan Legislature have each passed legislation to protect a farmer’s right to join a cooperative association and to bargain collectively through that association. It is not disputed that FAFPA and AMABA share at least this one common goal. Nevertheless, plaintiffs argue that the scheme chosen by the Michigan Legislature to carry out that purpose conflicts totally with that chosen by Congress and thus, pursuant to the supremacy clause contained in art VI of the United States Constitution, the Michigan legislation is "pre-empted”.
In interpreting and applying the supremacy clause in the context of competing state and federal legislation, the United States Supreme Court has developed two lines of analysis to describe situations in which federal legislation has preempted state lawmaking on the subject in question.
The first is so-called "field pre-emption” in which any state legislation, harmonious or otherwise, is invalid if it seeks to regulate in any area in which Congress has intended to completely occupy the field. See Rice v Santa Fe Elevator Corp, 331 US 218; 67 S Ct 1146; 91 L Ed 1447 (1947).
The second type of pre-emption is called "conflict pre-emption” and exists in circumstances in which a state regulation is invalid under the supremacy clause, even though Congress has not fully foreclosed state legislation in a particular area, because the state regulation is held to be in conflict with the federal regulation. The two-prong test to determine if a conflict pre-emption exists was most clearly articulated in Ray v Atlantic Richfield Co, 435 US 151, 158; 98 S Ct 988; 55 L Ed 2d 179 (1978):
"A conflict will be found 'where compliance with both federal and state regulations is a physical impossibility’ * * * or where the state 'law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ”
The parties agree that this is not a case of field pre-emption since the federal act itself, § 2305(d), states that "existing State law” shall not be changed or modified by the federal act. Thus, it is clear that Congress did not intend to foreclose state regulation of agricultural marketing. We note, however, that § 2305(d) is not enough in itself to resolve the dispute in defendants’ favor, since the Michigan act was not passed by the Legislature until 1972, four years after the federal act.
Instead, plaintiffs have framed their challenge to the AMABA in conflict pre-emption terms, asserting both that AMABA stands as "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” and that "compliance with both federal and state regulations is a physical impossibility”. We disagree.
A
Concededly, the FAFPA and the AMABA seek to accomplish the same general purpose: to permit producers (farmers) to associate together in a marketing cooperative to enable them to improve their marketing and bargaining position when dealing with food handlers (processors). The primary dis--tinction between the two regulatory schemes is AMABA’s requirement that once an association of producers is accredited by the Agricultural Marketing and Bargaining Board, that association becomes the exclusive sales representative for all producers in the bargaining unit, regardless of membership in the association. Those producers in the bargaining unit who do not join the association are, nevertheless, bound, when dealing separately and individually with a handler, by all terms and conditions of the contract negotiated with handlers and must assist in supporting the association by paying a service fee. Even an association member who chooses to deal with a handler individually, as indeed he may, is likewise bound by the terms of the association’s bargain with a handler of the same commodity.
Once an association is accredited, AMABA makes it unlawful for handlers "[t]o refuse to bargain with an accredited association with whom the handler has had prior dealings or with an accredited association whose producers in the bargaining units have had substantial dealing with the handler prior to the accreditation of the association”, or "[t]o negotiate with a producer included in the bargaining unit after an association is accredited.”
A prerequisite to accreditation is that the association seeking accreditation must have “marketing and bargaining contracts for the current or next marketing period with more than 50% of the producers of an agricultural commodity who are in the bargaining unit and these contracts cover more than 50% of the quantity of that commodity produced by producers in the bargaining unit”. Put differently, before an association becomes the exclusive sales representative of all producers, there must not only be a majority of such producers in favor of, and voting for, such representation, but those producers must also produce a majority of the quantity of the commodity involved.
In contrast to AMABA, FAFPA lacks any such exclusive representation provisions. Instead, FAFPA specifically disavows any attempt to regulate in such a manner:
"Disclaimer of intention to prohibit normal dealing
"Nothing in this chapter [7 USC 2301 et seq.] shall prevent handlers and producers from selecting their customers and suppliers for any reason other than a producer’s membership in or contract with an association of producers, nor require a handler to deal with an association of producers.” 7 USC 2304.
Plaintiffs claim that this provision should be read either as the affirmative creation of a processor’s right to deal with the individual farmer of his choice, or the affirmative protection of such a right. It is, in plaintiffs’ view, a provision representing a careful balance struck by Congress only after consideration of the conflicting interests of individual producers, processors, and associations. Citing Jones v Rath Packing Co, 430 US 519; 97 S Ct 1305; 51 L Ed 2d 604 (1977), plaintiffs argue that despite the fact that the Michigan and federal acts share a common general purpose, the method of regulation chosen by Michigan upsets "the balance struck by Congress” and AMABA must, therefore, fall.
Were we to agree that §2304, or any provision in FAFPA, was meant to affirmatively create or protect rights of private dealing between individual producers and processors, we would agree that AMABA must fall because, plainly, AMABA conflicts with that result. However, we do not find such meaning in the provisions of the federal act.
The language of § 2304 does not justify the meaning plaintiffs assign to it. The disclaimer provision, rather than having an operative effect, is essentially explanatory, beginning as it does with the phrase "[n]othing in this chapter”, referring to the substantive and affirmative provisions of FAFPA. It neither requires nor prevents bargaining between handlers and individual producers or associations of producers. We do not discern from a provision termed a "disclaimer of intention” a positive congressional intent to prohibit the conduct said not to be regulated. There is no logical nexus between a provision declaring "this is what we did not do” and the conclusion that "what we did not do, cannot therefore be done”. Section 2304 is nothing more than an explanation of what FAFPA was not intended to do. It did not, in disclaiming any "intention to prohibit normal dealing”, thereby create or affirmatively protect an individual handler’s right to bargain with any producer, or an individual producer’s right to bargain for himself. It is simply, aside from the disclaimer, neutral on that point. Section 2304 cannot fairly be read as a statement of congressional intent to prohibit exclusive bargaining by producer associations. It is simply a statement indicating that FAFPA did not promulgate an exclusive bargaining system for marketing a producer’s agricultural commodity.
This interpretation of § 2304 is bolstered as well by the announced congressional finding and declaration of policy contained in § 2301:
"Agricultural products are produced in the United States by many individual farmers and ranchers scattered throughout the various States of the Nation. Such products in fresh or processed form move in large part in the channels of interstate and foreign commerce, and such products which do not move in these channels directly burden or affect interstate commerce. The efficient production and marketing of agricultural products by farmers and ranchers is of vital concern to their welfare and to the general economy of the Nation. Because agricultural products are produced by numerous individual farmers, the marketing and bargaining position of individual farmers will be adversely affected unless they are free to join together voluntarily in cooperative organizations as authorized by law. Interference with this right is contrary to the public interest and adversely affects the free and orderly flow of goods in interstate and foreign commerce.
"It is, therefore, declared to be the policy of Congress and the purpose of this chapter to establish standards of fair practices required of handlers in their dealings in agricultural products.”
Nothing in this broadly drawn provision suggests a congressional intent to affirmatively protect producers from exclusive representation or to affirmatively grant new or protect pre-existing rights to deal freely. Instead, the above-quoted language simply demonstrates a congressional intent to protect producers from handler coercion.
Section 2303, which specifically details the practices prohibited, begins:
"It shall be unlawful for any handler knowingly to engage or permit [engagement] * * * in the following practices:
"(a) To coerce any producer in the exercise of his right to join and belong to or to refrain from joining or belonging to an association of producers, or to refuse to deal with any producer because of the exercise of his right to join and belong to such an association; or
"(b) To discriminate against any producer with respect to price, quantity, quality, or other terms of purchase, acquisition, or other handling of agricultural products because of his membership in or contract with an association of producers”. (Emphasis added.)
FAFPA’s prohibitions are specifically directed toward regulating handler misconduct. Subsection (a) does not afford an absolute right to a producer to deal directly with a handler. It merely protects a producer from being unduly influenced by a handler in deciding whether or not to join a cooperative marketing association. While § 2303 makes it unlawful for a handler to coerce a producer to "join and belong to” an association, it does not forbid a state from requiring exclusive representation of individual producers where a producer majority sees fit.
All FAFPA meant to accomplish was to restrain certain types of coercive handler conduct. While § 2303 details the prohibitions, § 2304 makes clear, by way of explanation, the limited scope of those prohibitions. Nowhere in FAFPA is there an attempt to protect or create a positive right to deal with whomever a handler or producer wishes.
Our interpretation of FAFPA in general, and § 2304 in particular, is amply supported by the legislative history of the act. The report of the Secretary of Agriculture to the Senate Committee on Agriculture and Forestry in recommending passage of FAFPA states:
"Cooperative action in agricultural production and marketing is increasing. It is growing in response to the need, (1) to achieve more orderliness and efficiency in production and marketing, and (2) to protect and improve bargaining relationships between producers and marketing firms in the face of major changes taking place in the marketing system.
"These changes include the growing integration of production and marketing of agricultural products, the increased control of these functions by large, diversified corporations, and the expanded use of contracting by such corporations to meet their needs. Developments such as these weaken the marketing and bargaining position of individual producers.
"It is essential to protect the rights of producers to join together in cooperatives to perform necessary marketing operations, including bargaining with processors and other buyers over the terms of sale of the producers’ farm products. Cooperative bargaining has come into prominence as the old market system is being displaced by contractual arrangements in the production and marketing of agricultural products. We believe these trends will continue.
"The proposed bill would materially strengthen farmers’ ability to bargain and market effectively. It will reaffirm the right of producers to join together and operate cooperatives without interference. It will remove some of the impediments confronting producers in organizing and operating their cooperative associations.
"Producers have suffered harassment and reprisal by some processors because of activity in organizing and joining a cooperative. Grower contracts have been canceled or reduced in volume. Processors have offered inducements to growers not to join a cooperative. Attempts have been made to buy off the cooperative’s leaders to create dissention in the organization.
"Processors operating in several production areas have coerced growers desiring to form a bargaining cooperative by threatening to leave the cooperative’s territory and expand operations elsewhere. Growers have failed to get redress after such questionable processor actions.
"If this bill were enacted, many producers who fear harassment or discrimination would feel free to join a cooperative association. It would help producers use cooperatives as a more effective tool in marketing their products.” 1968 US Code Cong & Ad News, p 1875.
Clearly, in the secretary’s view, the FAFPA was aimed at enhancing producer bargaining power, not at creating or protecting rights to deal individually.
That intent is reflected as well in the committee report on § 2304:
"Section 5 [§ 2304] disclaims any intent to prevent handlers and producers from selecting their customers and suppliers for any reason other than a producer’s membership in an association of producers, or to prevent handlers and producers from dealing with one another individually on a direct basis, or to require a handler to deal with an association of producers. The bill does not prevent or require these actions and is not intended to do so. While the proponents of the bill stated in their testimony that this was not the purpose, there was some concern, especially on the part of processors and other purchasers of agricultural products, that the bill in fact went further than intended. The committee felt that a clear statement in the bill itself would be helpful to courts, handlers, associations, producers, and others in their construction of this legislation; and has recommended inclusion of this section in the bill.
"There are many good, sound economic reasons for handlers and producers to select customers and suppliers. The bill does not attempt to prevent these sound reasons from operating.
"While the bill does not prevent handlers and producers from dealing with one another individually on a direct basis, it does prevent handlers from exerting any improper pressure in an effort to weaken associations or discourage membership. While the bill does not require a handler to deal with an association of producers, it certainly makes clear that farmers have a right to form such associations and should be protected in the exercise of this right. The fact is clear that an association of producers which has obtained the voluntary membership of a large number of farmers deserves respect and recognition by the handler of agricultural products.” HR Rep No 824, S Rep No 474, 90th Cong 2d Sess, reprinted in 1968 US Code Cong & Ad News, pp 1867, 1873.
Section 2304’s disclaimer of any congressional intent to affect pre-existing freedom to deal individually cannot be read as a creation of new rights or an express new statutory protection of old rights; nor can it be read as precluding a state from choosing to adjust pre-existing freedom to deal.
Given our interpretation of FAFPA, we cannot see how AMABA "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”. As we have indicated, congressional intent was directed at improving the bargaining position of individual producers by protecting them from handler coercion in their choice to join a cooperative marketing association. We discern no intent on the part of Congress, as plaintiffs assert, to affirmatively "strike a balance” among competing interests, including protecting a handler’s right to deal directly with a producer or vice versa. In our view, the provisions of AMABA affording exclusive representation to a producers’ cooperative created by a majority of the producers of a particular commodity, and the requirement of service fees, was a step by the Michigan Legislature into a previously unregulated area; a step which furthers both the goals of FAFPA and others not prevented by FAFPA by taking an active role in enhancing the bargaining position of producers, protecting not only individuals, but also their associations from internal and external pressures.
FAFPA’s producer protections only indirectly affect cooperative associations as associations. Its principal purpose is to insulate individual producer choice from handler coercion. AMABA duplicates these individual protections, but goes further to recognize and insure the association’s continued right to exist as a separate entity. AMA-BA’s exclusive representation provisions insulate the association from handler attacks on its membership by eliminating the possibility of "sweetheart” offers made to non-association producers, but not to the association’s membership. Without doubt, if the purpose of a "sweetheart” offer made to one producer is to coerce another in his choice of association membership, then the handler would be in violation of § 2303(a) of FAFPA. The obvious difficulty in proving such indirect coercion, especially since the justification for a superior offer may rest upon an array of ostensibly sound but often subjective economic factors such as a handler’s assessment of quality, is eliminated under an exclusive representation system.
Similarly, AMABA’s service fee provisions pro tect the association’s integrity by eliminating the incentive for a producer to be a "free rider”, accepting the benefits of association representation without assisting in its cost.
Though Congress disavowed the creation of a mini-Wagner Act to accomplish its purpose, nothing in FAFPA can be construed as preventing Michigan from adopting such an approach to accomplish a broader purpose though one inclusive of the federal purpose and one which, in fact, furthers the desire of Congress "to establish standards of fair practices required of handlers in their dealings in agricultural products”. 7 USC 2301.
B
Plaintiffs also assert that compliance with both FAFPA and AMABA is physically impossible and thus, under the second prong of conflict pre-emption analysis, the Michigan act must fall. The basis of plaintiffs’ claim is its view that Butz v Lawson Milk Co, 386 F Supp 227 (ND Ohio, 1974) and Garrison v Dairymen, Civil Action No. 80-1080-3 (D SC, 1980) (slip op) interpreted FAFPA to require what AMABA forbids, viz.: that a handler deal with a producer if the producer so desires. That position is simply incorrect. Such an interpretation of FAFPA would, on its face, conflict with what § 2304 says about the act. Though both courts found handlers in violation, or probably in violation, of FAFPA, it was because the handler’s refusal to deal with the producers involved had a coercive effect on the producers’ choice of whether to join an association.
In Butz, a handler refused to deal with a producer who had assigned to a producer association the exclusive right to sell his milk. In Garrison, producers of milk sought an injunction against a handler who refused to accept their milk unless they joined an association of milk producers. In both cases the courts’ decisions were directed toward preventing handler coercion. Nothing in either case can be fairly read to suggest that the state requirement of exclusive association representation of all unit members makes it physically impossible to comply with both acts.
Association representation, or non-representation, under the Michigan act may not be coerced by a handler just as it may not under FAFPA. Simply because the State of Michigan has required under AMABA what a handler cannot require under either AMABA or FAFPA does not render compliance with the two acts physically impossible. The producer protection afforded under FAFPA was a protection against handler abuse. Those same protections, and the resulting conduct required of handlers, are afforded by AMABA. Indeed, the protections afforded by § 2303 of FAFPA are virtually identical with those of § 4 of AMABA. Though AMABA regulates more extensively than FAFPA, it substantially duplicates FAFPA’s prohibitions on handler conduct. Since the identical prohibitions are placed on handler conduct, and since AMABA’s additional provisions pertain only to producers, an area left unregulated by FAFPA, we perceive no physical impossibility of compliance with both acts.
For the foregoing reasons, we find no pre-emption of AMABA by FAFPA.
II
Plaintiffs’ second constitutional attack focuses on a claimed violation of their due process rights on the theory that AMABA is an illegitimate exercise of the state’s police power.
A
The applicable test for determining whether a legislative enactment is a legitimate exercise of the state’s police power consistent with due process requirements is twofold: a) does it address a proper public purpose, and b) is the remedy adopted reasonably related to the stated public purpose? Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976). A successful constitutional challenge to a legislative enactment on police power grounds requires
"the party challenging the act [to carry] the burden of overcoming the presumption of constitutionality which accrues to the statute. Irishman’s Lot, Inc v Secretary of State, 338 Mich 662, 667; 62 NW2d 668 (1954); Thayer v Dep’t of Agriculture, 323 Mich 403, 410; 35 NW2d 360 (1949). To overcome this presumption, plaintiff must show either that there is no public purpose to be served by the statute, or that there is no reasonable relationship between the remedy adopted by the Legislature and the public purpose. Grocers Dairy Co v Dep’t of Agriculture, 377 Mich 71, 75; 138 NW2d 767 (1966); Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).”
In Shavers v Attorney General, 402 Mich 554, 613, 614; 267 NW2d 72 (1978), we announced that what
"this 'presumption of constitutionality’ means, in terms of challenged police power legislation, is that in the face of a due process or equal protection challenge, 'where the legislative judgment is drawn in question’, a court’s inquiry 'must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it’. United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). A corollary to this rule is that where the legislative judgment is supported by 'any state of facts either known or which could reasonably be assumed’, although such facts may be 'debatable’, the legislative judgment must be accepted. Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).”
We went on in Shavers, p 617, relying on our preliminary disposition in this case, to demonstrate that when challenged police power legislation is "important, complicated, novel or experimental legislation”, there may be a need to conduct a trial to establish facts necessary to evaluate the challenge. Because of the remand of this case to the circuit court and the proceeding conducted there, such fact development has now occurred. Our task is now the same as it was in Shavers, p 618.
"First, we must determine from the record before us whether plaintiffs have overcome the presumption of constitutionality by showing facts which reveal that the legislative judgment is without rational basis, or, to the same effect, we must determine from the record whether the challenged legislative judgment is supported by any reasonable state of facts justifying its enactment. Second, we must then determine whether the legislative response bears a reasonable relation to this identified objective.”
Plaintiffs claim that AMABA is designed simply to promote higher prices and upgrade the economic position of producers vis-a-vis handlers, a purpose they characterize as establishing "price security”, and one not subsumed within the purposes of legitimate legislative regulation. Having so defined and limited the purposes of AMABA, plaintiffs argue by analogy to Shakespeare Co v Lippman’s Tool Shop Sporting Goods Co, 334 Mich 109; 54 NW2d 268 (1952), that AMABA must be struck down as an unconstitutional attempt to establish price security, an endeavor directed at disruption of the operation of a free market and thus inconsistent with the public interest. The error in attempting to analogize to Shakespeare is inevitable in light of plaintiffs’ initial premise that AMABA is aimed at price security and as such is an unnecessary and, because it disrupts the operation of a free healthy market, an unconstitutional intrusion into private enterprise.
Our reading of the act, examination of the circuit judge’s opinion and review of the record lead us to conclude that AMABA was not directed toward achieving price security for producers at the expense of the operation of a free market, but was, instead, only intended to overcome an artificial obstacle to the operation of supply and demand forces, viz., the fortuitous position of handlers of perishable agricultural products in the chain of marketing such commodities which permitted handlers to distort free market forces by demanding prices not wholly reflective of supply and demand. AMABA is not a price-fixing act, nor is it intended to allow association control of the output of individual farmers. It is, rather, an enabling act which seeks solely to promote the equalization of bargaining power between producers and processors of perishable products.
The circuit court found as facts that the following conditions existed prior to AMABA’s enactment:
a) Growers faced the problem of disposing of extremely perishable fruits and vegetables with a corresponding lack of freezing and/or storage facilities.
b) There existed large numbers of unorganized growers who, when aligned against a concentration of processors, could not individually affect the price paid for their product by processors.
c) The market lacked an extensive number of processors and the growers lacked ability to transport perishable goods any distance.
d) Processors were reluctant to recognize voluntary grower cooperative bargaining associations.
e) Processors were known by growers to discriminate against persons who belonged to cooperative bargaining associations.
f) It was difficult to develop and maintain voluntary bargaining associations because some persons obtained a "free ride” (i.e:, accepted the benefits of cooperative bargaining without assisting in its cost).
g) There existed a "take it or leave it” pricing policy with no authority in the fieldmen of the processors to negotiate price.
h) The processor possessed the resources to obtain superior marketing knowledge, while the grower lacked time to obtain or digest information.
i) Any effective producer association would require statewide organization with emphasis on particular products.
j) Growers sometimes engaged in picketing of processors and withholding perishable goods because of unsatisfactory prices.
k) It was difficult to coordinate production and marketing decisions so as to reduce spoilage. Processor failure to announce a price early in the marketing season sometimes led to the withholding of harvested commodities until some spoilage had occurred.
l) Prices received by farmers fluctuated greatly.
m) Supply and demand did play a role in affecting pricing decisions.
All of these findings are amply supported by the record. Taken as a whole, they establish a dispar ity in bargaining power resulting in disruption of the orderly marketing of perishable agricultural commodities and the imposition of inequitable economic pressure upon independent producers.
Whatever economic advantage plaintiff processors enjoyed prior to AMABA, and lost because of it, was not so much the result of astute investment of labor or capital as it was the sheer nature of agricultural marketing and the processors’ superior position of power in the chain necessary to bring a commodity to the consumer. To the extent bargaining power is equalized, the assumptions of economic theory are validated and the operation of a free market is enhanced. Nothing in AMABA inhibits more producers or processors from entering the market. Nothing in AMABA dictates the price at which agricultural products must be sold or how producers or processors should conduct their business except when it comes time to deal with each other. Thus, the act operates to free the market forces of supply and demand to overcome the artificial price-setting power otherwise vested in processors.
We are confident that legislation designed to enable the producers of agricultural commodities representing more than 27% of the value of this state’s annual agricultural yield to better protect themselves from the unfair imposition of prices by processors and thereby to improve and insure the production and marketing of perishable fruits and vegetables is within the historically viewed ambit of a legitimate legislative purpose. See Cady v Detroit, 289 Mich 499; 286 NW 805 (1939).
B
Having concluded that the legislative purpose behind AMABA was to equalize bargaining power between a relatively small number of processors and a large number of producers, thereby eliminating both the potential for economically rational, but unfairly abusive, price-setting by processors and the potential for disrupting the marketing of perishable agricultural products, and having found these purposes to be in the interests of the public welfare, we also find AMABA’s provisions reasonably related to those purposes. We find a sufficient and rational relationship between those provisions in AMABA enabling producers to bargain collectively, those protecting producer associations from being weakened through sweetheart deals and free-riders by providing for exclusive representation and service fees, and those providing for compulsory arbitration for resolving impasses with respect to terms subject to bargaining on the one hand, and the Legislature’s intent to equalize bargaining power and thereby ensure orderly marketing of perishable, agricultural commodities on the other. We agree with the circuit court that this ”act solves some problems [and] creates others” but, on the whole, as demonstrated by competent evidence, it is "reasonably related to the problems perceived by the Legislature and is a reasonable attempt to solve at least some of the problems”. We add that the difficulty in assessing whether these goals have yet been achieved does not diminish their legitimacy; "it is precisely because regulation in the economic field often deals with long-term developments that the Court treats such legislation with great deference.” Shavers, p 629. We find AMABA constitutional on its face.
Ill
Plaintiffs also argue that the subject matter of. AMABA exceeds the scope of its title in violation of Const 1963, art 4, § 24, mandating that "[n]o law shall embrace more than one object, which shall be expressed in its title”. The title of AMABA states:
"An act to permit producers of agriculture commodities to be represented by associations; to create an agricultural marketing and bargaining board; to provide for the accreditation of associations; to establish obligations on the part of handlers and associations; to provide for arbitration; to define unfair practices; and to prescribe penalties.”
Plaintiffs assert that since the substance of AMABA compels association representation of producers once a majority wants such representation and since the title speaks only to permitting such representation, the act exceeds its title in this respect and must be invalidated accordingly.
Plaintiffs’ argument is not well taken. "The title need not serve as an index; it is sufficient if it fairly expresses the subject of the legislation and conveys comprehension of its germane provisions”. Krench v Michigan, 277 Mich 168, 175; 269 NW 131 (1936). The title accomplishes that task in this case. AMABA does not, in the first instance, require producer representation by association. Instead, it provides for a mechanism permitting producers to organize themselves and then, only when a majority agrees, the system operates to sweep even the reluctant producer into the association’s sphere of authority. The act enables self-motivated producers who want to be represented by an association to undertake to accomplish that task without fear of reprisal by handlers. It is in this sense that AMABA permits producers to be represented by associations. The compulsory aspect of AMABA is secondary but very much germane to its primary permissive-enabling function in that exclusive representation is an additional safeguard to the majority wanting representation by association. In a very real sense requiring representation of the minority permits representation of the majority.
While the Legislature may have more accurately reflected the scope of the act by substituting the phrase "provide for” for "permit” in the title and thereby steer a more neutral course between the elements of permissiveness and compulsion, both part of the act, we do not believe the title, as it stands, promotes deceit or subterfuge or fails adequately to assess the contents of AMABA. In adhering to Justice Cooley’s admonition that our constitutional title-object provision "be construed reasonably, and not in so narrow and technical a sense as unnecessarily to embarrass legislation”, Ryerson v Utley, 16 Mich 269, 277 (1868), we do not find that the substantive provisions of AMABA exceed the scope of its title.
IV
Plaintiffs’ final contention is that the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., is applicable to the accreditation proceedings of the AMABA. In our 1976 remand of this case to the trial court, we indicated that the circuit judge could render an opinion as to the APA’s applicability to board accreditation procedures, but was foreclosed from issuing a dis-positive order on the question since original jurisdiction over substantive challenges to such board determinations (orders) is vested in the Court of Appeals, pursuant to MCL 290.705(2); MSA 12.94(105)(2). As a practical matter, what we ordered the circuit judge to do was to assist us in issuing a declaratory judgment. He has done so, concluding that accreditation proceedings under AMABA are "contested cases” within the meaning of §3(3) of the APA, MCL 24.203(3); MSA 3.560(103)(3), and therefore subject to the procedural safeguards of the APA. We agree with that assessment and so hold.
Section 3(3) of the APA provides:
" 'Contested case’ means a proceeding * * * in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hear-
Association accreditation requirements and procedures are set forth in §§ 7, 8, 9, and 10 of AMABA. Section 7 establishes the minimum standards an association must meet to qualify for accreditation. Sections 8, 9, and 10 discuss the mechanics of the process. Section 8(1) provides:
"An association desiring accreditation shall file with the board a written request for accreditation in the form as required by the board. The request shall contain properly certified evidence that the association meets the standards for accreditation and shall be accompanied by a report of the names and addresses of members, the name of each handler to whom the member delivered or contracted to deliver the agricultural commodity during the previous 2 marketing periods and the quantity delivered. A fee to cover the costs of the board in processing the request shall be established by rule and paid by the association when the request is filed.”
Section 9 states:
"(1) Within 60 days following the date of filing with the board a request for accreditation by an association, the board shall determine whether the association shall be accredited. If the board determines that insufficient evidence was filed by the association, the board may permit the association to file an amended request for accreditation within 30 days following the determination and notification of the association.
"(2) Within 30 days following the board’s preliminary finding that the association is to be accredited, the board shall hold a public hearing to obtain further evidence relevant to confirmation that the association is to be accredited. Producers of record involved in the bargaining unit shall be notified of the hearing by mail and publication in a newspaper of general circulation in the bargaining unit area at least 10 days prior to the date of the hearing.” _
Finally, § 10(1), (2) provides:
"(1) The board shall issue and publish its determination within 30 days after the close of the hearing. If the determination of the board is to accredit the association, the board shall include a preliminary declaration of accreditation in its determination. The preliminary declaration of accreditation shall clearly state that the association shall represent all producers, members and nonmembers alike, who are in the bargaining unit and act as exclusive sales agents for the bargaining unit in negotiations with handlers. A producer covered in a declaration of accreditation may join the association and have full membership rights therein. Handlers shall deduct marketing service fees from the proceeds to be paid to producers for the agricultural commodity in the amount as determined by the association and forward the service fees promptly to the association. The fees shall be within guidelines determined by the board and shall be subject to review by the board upon petition by 15% of the affected producers.
"(2) The accreditation of the association by the board shall be effective 30 days after the publication of the preliminary declaration of accreditation. The board shall delay the accreditation of the association whenever it receives during the 30-day period a petition signed by at least 1/3 of the producers in the bargaining unit who produce at least 1/3 of the production of the agricultural commodity produced by the bargaining unit, exclusive of quantities contracted with processing cooperatives and produced by handlers, and requesting that the association should not be accredited. The board shall determine by a mail referendum of bargaining unit producers within 30 days following receipt of the petition if producers assent to the accreditation of the association. Producers in the bargaining unit shall be deemed to have assented to accreditation if more than 50% of the producers in the bargaining unit who produce more than 50% of the volume of the affected commodity assent to representation by the association.”
These provisions establish that when an associa tion files with the board a request for accreditation and supporting documentation of compliance with § 7 requirements, the board has 60 days to evaluate the request and determine whether the supporting evidence sufficiently discloses compliance with § 7 requirements. Within 30 days following the board’s finding of sufficient evidence to support the request, "the board shall hold a public hearing to obtain further evidence relevant to confirmation that the association is to be accredited”. This plain language demonstrates that prior to a hearing, the board cannot make a final accreditation determination. The language of § 10 reinforces this conclusion, as it provides, "The board shall issue and publish its determination within 30 days after the close of the hearing”. We therefore reject defendants’ claim that the accreditation determination is actually made before the hearing and thus is not within the definition of a contested case.
To the contrary, we find, in the AMABA accreditation provisions, all the definitional elements of a contested case. The board is an "agency” since it is created by statute. The proceedings before the board involve the determination of the duties, rights, and privileges of a named party, the association, to wit, the Michigan Asparagus Growers Division of MACMA. The rights, duties, or privileges involved are this association’s authority to act and be recognized as the exclusive bargaining agent for all producers in the unit. Finally, the board’s accreditation determination could be made only after an opportunity for an evidentiary hear ing where presumably any producer who did not want to be represented by the association could challenge the evidence supporting the association’s request for accreditation or make any other lawful challenge to the association’s accreditation.
We cannot find, as defendants have, a legislative intent inherent in AMABA to foreclose application of the APA to AMABA’s accreditation proceedings. The failure of AMABA to make specific reference to the APA in the accreditation provisions, while making specific reference to it in three other AMABA provisions, does not, as defendants contend, require application of the maxim expressio unius est exclusio alterius and the conclusion that the Legislature did not intend the APA to apply to board accreditation. This is so because the APA defines its own applicability and is not dependent upon express legislative invocation. The applicability of the APA, absent an express exclusion, is governed by a determination whether the statutory agency action falls within the APA’s purview. We have concluded, in the present context, that board accreditation proceedings are contested cases within the meaning of the APA. There being no express legislative statement in the AMABA excluding the APA’s application, our inquiry is at an end. The APA is applicable.
We note that the parties have stipulated in this case that should this Court find the APA applicable to board accreditation proceedings, all parties will be adequately protected by a "prospective only” ruling. That is, they are in agreement that noncompliance with the APA need not void the accreditation of the Michigan Asparagus Growers Division of MACMA. We therefore do not consider whether, as a policy matter, it would have been prudent or proper for this Court to determine if, in fact, the procedures followed by the board in its accreditation process were in compliance with the APA, apart from pointing out that the Court of Appeals is vested with original jurisdiction over challenges to final board orders.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Ryan, J.
Riley, J., took no part in the decision of this case.
See Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337; 245 NW2d 1 (1976).
MCL 290.702(g); MSA 12.94(102)(g).
"(g) 'Handler’ means a person other than an association engaged in the business or practice of acquiring agricultural commodities from producers or associations for processing or sale; grading, packaging, handling, storing or processing agricultural commodities received from producers or associations; contracting or negotiating contracts or other arrangements, written or oral, with producers or associations with respect to the production of any agricultural commodity; or acting as an agent or broker for a handler in the performance' of any function or act specified above. It does not include a producer who sells at a retail establishment which he owns and operates or who sells directly to consumers at a produce market, agricultural commodities produced by him and agricultural commodities produced by another producer subject to value limitation established by the board.”
MCL 290.702(0; MSA 12.94(102)(f).
"(0 'Agricultural commodity’ means all perishable fruits and vegetables as defined by the board. The kinds, types and subtypes of products to be classed together as an agricultural commodity for the purposes of this act shall be determined by the board on the basis of common usage and practice.”
MCL 290.702(e); MSA 12.94(102)(e).
"(e) 'Producer’ means any person who produces or causes to be produced in any 1 marketing period within the previous 2 marketing periods, any agricultural commodity in quantity beyond his own family use and having a minimum value at first point of sale as determined by the board for that agricultural commodity, and who is able to, during the marketing period transfer to a handler or an association a merchantable title to the agricultural commodity or provide management, labor, machinery, facilities or any other production input, with the assumption of risk, for the production of the agricultural commodity under a written or oral contract.”
"No law shall embrace more than one object, which shall be expressed in its title.” Const 1963, art 4, § 24.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” US Const, art VI.
For ease of reference, we use the terms handler and processor interchangeably in this opinion although, in a way not germane to our disposition of the issues, there is a technical difference between the two.
The board is created by the act. See MCL 290.703; MSA 12.94(103).
MCL 290.710, 290.713; MSA 12.94(110), 12.94(113).
MCL 290.710(1); MSA 12.94(110)(1).
MCL 290.704(1), subds (g), (h); MSA 12.94(104)(1), subds (g), (h).
MCL 290.707(c); MSA 12.94(107)(c).
The parties have argued at length over whether there is any meaningful distinction between being required to- join an association and merely being required to support and be represented by an association as required by AMABA. Analogies are drawn from the field of labor law and the development of the legal consequences of "agency” versus "union” shop contract clauses.
Though we believe there is such a distinction, see Abood v Detroit Board of Education, 431 US 209; 97 S Ct 1782; 52 L Ed 2d 261 (1977), its relevance in the pre-emption contest is lacking. The aim of FAFPA is to prevent handler coercion. It does not speak to producer protection from all sources of coercion. Even if AMABA were read to require a producer to join an association, the coercion would be the product of state action not handler action. Though there undoubtedly would be First Amendment implications, under such circumstances there would still be no conflict between FAFPA and AMABA.
In his opinion, Circuit Judge Thomas Brown specifically found:
"The problems of the 'free rider’ (a non-member who enjoys the coop price without belonging or paying) and the 'sweetheart contract’ (a device engaged in by processors to erode the power of the voluntary co-operative) will both be made obsolete by the provisions of the act.”
His finding that these problems existed prior to AMABA’s enactment is amply supported in the record by the testimony of witnesses John Handy, producer and organizer of the Great Lakes Cherry Producers Marketing Cooperative, a voluntary marketing association in existence from 1957 to 1967; Dr. James Schaffer, professor of agricultural economics at Michigan State University and a participant in the drafting of AMABA; George Stover, owner and operator of a 700-acre farm; and Noel Stuckman, who was the General Manager of MACMA and an MACMA employee since November, 1971.
Article 1, § 17, of the Michigan Constitution provides that: "[n]o person shall * * * be deprived of life, liberty, or property, without due process of law”. Similarly, the 14th Amendment to the United States Constitution provides that "* * * [n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
In plaintiffs-appellants’ brief in this Court, they argue:
"[T]he act is absolutely barren of any ostensible relationship to a valid police power objective. It lacks any indication that it is necessary for the preservation of public health, safety, morals or general welfare, or to prevent fraud. It is not designed as a sanitary measure, or as a method by which impure foods are kept from the tables of the consuming public. Instead, the act attempts to promote price and upgrade the economic position of producers vis-á-vis handlers. This avowed public purpose is constitutionally infirm, since the courts have consistently rejected the concept of price security as a proper basis for the use of the state’s police power. Baldwin v Seelig, 294 US 511; 55 S Ct 497; 79 L Ed 1032 (1935); Van Winkle v Fred Meyer, Inc, 151 Or 455, 471; 49 P2d 1140, 1146 (1935); People v Kuc, 272 NY 72; 4 NE2d 939 (1936); Good Humor Corp v City of New York, 33 NYS2d 905 (S Ct, 1942), aff'd 264 AD 620; 36 NYS2d 85 (1942), aff'd 290 NY 312; 49 NE2d 153 (1943).”
According to plaintiff, Shakespeare stands for the proposition that legislation authorizing the vicarious binding of independent businessmen by transactions to which they have not consented exceeds the state’s police power. This is an excessively broad reading of Shakespeare and does not withstand scrutiny. The fair trade laws struck down in Shakespeare were invalidated because they had nothing to do with a public purpose.
Presumably cooperative associations will not find it in their best interests to bargain for excessive prices since processors are free to abandon Michigan producers altogether and fill their needs outside the state. Furthermore, in the event that both parties are unable to agree on a price, yet wish to deal, the dispute will be settled by arbitration. MCL 290.716; MSA 12.94(116).
At least in theory the parties will be engaged in negotiations that will result in a price reflective of the supply available and the demand among consumers for that product. Furthermore, because the relationship between agricultural producers and processors tends to extend over the long run, it will be in the producers’ interests to moderate demands when supply is short in exchange for a reasonable price when supply is abundant. Such a moderation should lead to price stability beyond that afforded by exclusive representation and thus to even more efficient planning.
This figure is drawn from the testimony and exhibits of Dr. Lawrence Van Mier who was, at the time of his testimony, Director of the Division of Economics and Statistics of the National Canners Association. It is based on volume and value averages for the years 1968 through 1972.
In our earlier opinion, we decided that an accreditation determination is an order within the meaning of § 5(2) of AMABA. Michigan Canners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337; 245 NW2d 1 (1976).
MCL 290.707 through 290.710; MSA 12.94(107) through 12.94(110).
The "board”, as defined in MCL 290.702(d); MSA 12.94(102)(d), is the agricultural, marketing, and bargaining board created in MCL 290.703; MSA 12.94(103).
" 'Agency’ means a * * * board * * * created by * * * statute”. MCL 24.203(2); MSA 3.560(103)(2).
See MCL 290.703(8); MSA 12.94(103)(8), MCL 290.704(3); MSA 12.94(104)(3), MCL 290.716(1); MSA 12.94(116)(1).
MCL 290.705(2); MSA 12.94(105)(2). | [
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] |
Levin, J.
The question is whether Rochowiak, who was tried for second-degree murder, was entitled to a jury instruction on the lesser offense of careless, reckless, or negligent use of a firearm resulting in injury or death (reckless use), and, if the instruction was erroneously refused, whether that error was harmless because the jurors chose to convict him of second-degree murder although they were given the option of acquitting on that charge and convicting of involuntary manslaughter.
We hold i) the evidence would have supported a verdict of guilty of reckless use, and it was therefore error under People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), to refuse the requested instruction, and ii) the error was not rendered harmless by the jury’s rejecting the option of convicting Rochowiak of involuntary manslaughter.
I
The body of Timothy Palmer was discovered by police officers at 8:15 a.m, on July 31, 1976, in a parking lot in Rouge Park in Detroit. An autopsy revealed that the cause of death was one shotgun wound in the right arm and right chest. Palmer was found in a yellow Pinto parked in the parking lot. He was in the driver’s seat, slouched to the right with his head turned to the right. His left hand was lying over the lower portion of the steering wheel, and his right hand was on his right leg. The passenger side window was shattered, and the door was locked.
Rochowiak was charged with first-degree murder. The charge was reduced to second-degree murder at the preliminary examination. He was tried before a jury in March of 1977.
At trial, John Palarcho testified that he had lived across the street from 19-year-old Rochowiak for approximately 14 years. On July 31, at about 7 or 7:30 a.m., the Palarchos received a phone call; Rochowiak arrived a minute later. He was wearing cutoff jeans and was without shoes, socks, or a shirt. He was "bleeding from the nose, his nose was split open, lacerations and puffed up lip and black and blue around the mouth area”. He asked John Palarcho to take him to the hospital.
On the way to the hospital, Rochowiak insisted on telling Palarcho how he was injured. He slurred out nervously that he had "killed a queer”. He said he had gone over to the park to rob. He explained that he might have been holding the gun too close to his mouth and the gun discharged. He also stated: "Maybe that will keep the rest of them from coming in there.” He said. he had thrown the gun in some bushes or trees away from the scene. He asked Palarcho, "Didn’t you ever kill anybody?” During the ride to the hospital, Ro-chowiak spoke clearly, did not stutter or stammer, had no difficulty controlling his movements, and did not have a glazed look in his eyes.
Palarcho left Rochowiak at the hospital and, curious about his story, drove through Rouge Park where he saw several police cars and an EMS unit. He returned home and approximately 20 minutes later received a phone call from Rochowiak asking to be picked up at the hospital. Palarcho drove back to the hospital and met Rochowiak on the way, walking in the street. Palarcho told Rochow-iak what he had observed in the park, and Ro-chowiak insisted on Palarcho taking him there. When they drove through, Rochowiak said, "Everything’s all right. They’re not even looking in the right area.”
During the afternoon of July 31, Rochowiak called again. He stated that he had admitted himself to Hutzel Hospital and asked Palarcho to call him if there were any new developments. Palarcho asked Rochowiak to turn himself in, but Rochowiak refused and stated that he might leave town or turn the gun on himself. At 9 o’clock that night, Rochowiak called again and explained that Palarcho should not worry because someone at the hospital had told him that if the police did not find the gun, they could not connect Rochowiak with the killing.
Officer Robert Lazur testified that he first saw Rochowiak at Hutzel Hospital on August 2. When Lazur advised him of his Miranda rights, Rochow-iak responded, "How did you find me?” Rochowiak inquired several times how long a sentence he would be likely to receive. Lazur responded, "That all depends on the final charge”. Rochowiak commented, "Well, don’t you think some of them have it coming?”
While standing at the foot of Rochowiak’s hospital bed, Lazur looked toward an open cabinet near the bed and noticed a newspaper clipping. The clipping concerned the homicides over the previous weekend. There was also a pad near the newspaper clipping. On the pad was the following, written by Rochowiak:
" 'When you’re young, you can go to jail for murdering someone; but there’s all these young people out there that’s just waiting to go to hell, and they if not there for sure a cell. And when they get in a jam they will wish they were Uncle Sam; and if they’re weird, they’re going to end up a queer. But even if they ain’t, they’re going to be a little faint.
" 'A little while ago I killed a man, and boy, I never ran; a scared chicken waiting for a licking. But there’s a lot of people out there killing, and when they get a big thrilling, and in a while they’re going to get a chilling from the enbalming fluid.
" 'In this song there’s an end, but there’s just one thing.. It’s where there, they gonna be in the end. But if you ask me, they’re going to be judged by God, and He’s, He’s the one with the power to send them to that big tower in the sky. And that is where they can fly.’ ”
Rochowiak’s defense was that at the time of the killing, and for some time after, he was under the influence of drugs and his capacity to understand, and therefore his responsibility for, his actions was diminished to the point that the jurors should have a reasonable doubt about the true meaning of the statements made by him and of the actions allegedly taken by him. Rochowiak’s mother, sister, and brother all testified to his use of drugs beginning at the age of 14. His mother also testified that he seemed to feel that there were people watching him who could hear everything that was said in their house.
At the close of trial, defense counsel requested that the judge instruct on reckless use, citing People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The judge ruled that the evidence did not support a conviction of this charge and instructed on second-degree murder and involuntary manslaughter. The Court of Appeals affirmed without discussion.
II
Careless, reckless, or negligent use of a firearm causing death is a cognate lesser offense of second-degree murder. As stated in People v Ora Jones, supra, pp 389-390:
"While it is true that reckless discharge of a firearm causing death is not always a lesser included offense of second-degree murder, e.g., if the killing were done by stabbing, it may be such a lesser included offense, as it was in the case at bar.
"Analysis of the offense charged (second-degree murder), and the lesser offense on which instruction was requested (careless, reckless, or negligent discharge of a firearm causing death), demonstrates the overlapping of certain elements and common statutory purpose. The common purpose is the protection against killing or injury to the person. The overlapping elements relate first to a 'reckless’ state of mind concerning damage to human life and secondly to an activity or intended activity to kill or injure a person. Both of these overlapping elements relate to the common purpose of the statutes, i.e., to protect against killing or injury to the person. The offenses are cognate; the elements shared by the two offenses coincide in the harm to the societal interest to be protected.” (Emphasis in original.)
A defendant’s right to an instruction on reckless use depends upon the evidence at trial. If the proofs could support a verdict of guilty of this charge, the defendant is entitled to the instruction, no matter how compelling the inferences supporting a contrary verdict.
The people argue that the evidence at trial would not support a conviction of reckless use because the only fair inference from the testimony is that the shooting was an intentional or, at least, a wilful and wanton act. Ora Jones is distinguished as a case where the defense theory was accident. Here, in contrast, Rochowiak claimed that he was influenced by drugs to the extent that he could not act with a criminal purpose aimed against life. But there was no evidence that Ro-chowiak was so influenced on the morning of the offense.
While the evidence might more strongly suggest inferences which would support a finding of guilty of the greater offense, the jury is free to view the evidence otherwise and return a verdict of guilty of a lesser offense which is also supported by the evidence.
In this case, while the evidence might strongly suggest to some that Rochowiak possessed an intent to kill or was at least wilful and wanton in his actions, a verdict of guilty of reckless use would also be supported by the evidence. The jury was free to conclude that Rochowiak did not intend to kill, and that the shooting was not wilful and wanton, but only reckless.
Ill
The people, relying on People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977), argue that the trial court’s failure to instruct on reckless use, although error, was harmless and not cause for reversal.
Ross holds that the failure to give a requested instruction on a lesser offense is not cause for reversal if the jury was instructed on another lesser offense and nevertheless returned a verdict of guilty of the greater offense. The rationale of Ross is that a jury which has been given and has rejected the option of compromising on an intermediate verdict (between guilty of the greater offense and not guilty) would, in all probability, also have rejected the option of finding the defendant guilty of an even lesser charge.
In People v Richardson, 409 Mich 126; 293 NW2d 332 (1980), this Court reversed a conviction of first-degree murder where the judge instructed on the lesser offenses of second-degree murder and voluntary manslaughter but refused to instruct on involuntary manslaughter and reckless use. The people, relying on Ross, argued that the error was . harmless. Without deciding whether the failure to give a required instruction on a lesser offense could ever be harmless error, this Court concluded that it was not harmless in Richardson. Richardson’s defense was based on accident, self-defense, and provocation. Because each of the offenses upon which instructions were given concerned intentional homicide and no instruction relating to involuntary manslaughter or reckless use was presented to the jury, the jury was prevented from considering Richardson’s claims of mitigation ex cept insofar as those claims supported a finding of not guilty of any offense. This Court therefore concluded that Richardson was denied a fair opportunity to have the jury assess his theory of the case. The people argue that Richardson is not controlling since Rochowiak was granted an instruction consistent with his theory of the case— involuntary manslaughter. We agree.
The Court is thus again called upon to address the question of the validity of the rationale of Ross and its proper scope.
IV
Rochowiak argues that the doctrine of harmless error should not apply to the trial court’s failure to give a requested instruction on a lesser included offense because such a failure will always dilute the jury’s authority. In Chamblis, the Court recognized that the jury serves as the conscience of the community and has ultimate authority to evaluate the evidence and convict or acquit of any charge which is supported by some, even the most lenient, view of the evidence. All recognize that juries often compromise and convict of lesser included offenses in the face of evidence strongly favoring conviction of a greater offense. In order for the jury to be accorded an opportunity to operate within the full range of its authority as factfinder, it must be fully apprised of the possible verdicts. Indeed, this was the rationale of the Ora Jones and Chamblis cases.
The people assert that the rationale of the lesser included offense cases does not mandate a rule that no error in applying those cases will be judged harmless. One can agree that the jury must in all cases be instructed on the full spectrum of offenses that might be supported by the evidence in order to assure the right and authority of the jury to assess the evidence, find the facts, and determine whether each and every element of an offense has been proven, without concluding that error in failing to so instruct is prejudicial in each and every case. Wheré the jury has been instructed on, and rejects, the defendant’s argument in favor of a lesser offense closely allied to the offense upon which the instruction has been refused, and chooses to find the defendant guilty of a greater offense, finding the people’s evidence to be credible and its suggested inferences to be correct, it can safely be presumed that the failure to give the instruction in no way affected the verdict. The jury has clearly expressed both its rejection of the defendant’s theory of the case and its decision not to be merciful.
The people argue that the failure to instruct on the lesser included offense of reckless use was harmless in this case because Rochowiak suffered no prejudice from the error. The jury had an opportunity to consider his theory of the case when it was instructed on involuntary manslaughter. In rejecting the option of convicting of involuntary manslaughter in favor of returning a verdict of guilty of second-degree murder, the jury expressed its rejection of Rochowiak’s defense. It strains credulity to argue that a jury which refused to find his acts grossly negligent, wilful, and wanton, because it believed them to be intentional, would have opted to find the same acts careless and reckless, but not wilful and wanton, if given the opportunity.
The people further contend that it cannot be argued that the jury’s ability to compromise was restricted or impaired to Rochowiak’s prejudice. Had the jury returned a verdict of guilty of involuntary manslaughter, there would indeed be a question whether the jurors would have exercised even greater mercy and found Rochowiak guilty of reckless use had they been given the opportunity. As it turned out, however, the jury was not disposed to leniency or compromise. It rejected involuntary manslaughter as an intermediate offense lying between the charge of murder and the verdict of not guilty and chose to convict of murder.
V
While the arguments that it is highly unlikely that the jury would have convicted of reckless use and that Rochowiak’s theory of the case was presented to and rejected by the jury are most compelling, we are persuaded that had the jury been instructed on reckless use, in addition to involuntary manslaughter, it might have better understood Rochowiak’s theory and have returned a verdict of guilty of involuntary manslaughter.
In Rochowiak’s case, the jury was presented with three options — guilty of second-degree murder, guilty of involuntary manslaughter, or not guilty. Under the circumstance that the evidence that Rochowiak shot Palmer was overwhelming, the third option was unrealistic. The real question for jury consideration was Rochowiak’s state of mind. When he discharged the gun, did he do so intentionally, with an object to kill or with indifference to the result knowing that death was likely, or, as was argued at trial, was he under the influence of drugs so that his perception of reality was so warped that he could not appreciate the quality of his actions or form the intent requisite for murder? Was the discharge itself intentional or was it the result of Rochowiak’s handling the gun, without intent to kill, in a grossly negligent and wilful and wanton manner; or, finally, was Rochowiak’s handling of the gun at the window of his victim’s car a careless, reckless, and negligent act, not wilful and wanton because of his drugged state?
Rochowiak argues, and we are persuaded, that had the jurors been apprised of the third possibility on the spectrum of criminal responsibility, they might have assessed his argument in a different light and with a better understanding of the gradations of responsibility in the law of homicide. Rather than viewing a verdict of guilty of involuntary manslaughter as one which would minimize the heinous nature of his act, they may have ascribed greater importance to the language "wilful and wanton” as a grave and guilty state of mind distinguishing Rochowiak’s actions from that of a careless and reckless person, and have settled upon the intermediate level of criminal responsibility.
As in Richardson, we do not hold that failure to give lesser offense instructions can never be harmless. The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use; assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault).
The recognition that not all instructional error of this kind is cause for reversal should not cause concern that this Court’s failure to impose stricter standards will result in a disregard of this Court’s decisions in the lesser offense cases. A trial judge cannot know whether error in instructing may be harmless until the verdict is returned. A verdict of guilty may be returned on one of the lesser offenses, and the failure to instruct would be reversible error.
Reversed and remanded for a new trial.
Kavanagh, J., concurred with Levin, J.
Williams, J., concurred in the result.
MCL 750.317; MSA 28.549.
"Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years, or by a fine of not more than $2,000.00, or by imprisonment in the county jail for not more than 1 year in the discretion of the court.” MCL 752.861; MSA 28.436(21).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
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Brickley, J.
Plaintiff motorcyclist was seriously injured and his motorcycle extensively damaged as a result of a collision on July 3, 1979, with an automobile insured by defendant Dairyland Insurance Company. Plaintiff filed an action against Dairyland and others seeking personal protection insurance benefits and property protection insurance benefits pursuant to the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Subsequently, plaintiff moved for partial summary judgment against Dairyland in respect to his claim for the cost of repairing his motorcycle. Plaintiff’s motion was granted. The Court of Appeals reversed in an unpublished opinion per curiam, finding no liability on the part of Dairyland for physical damage to plaintiffs motorcycle. We granted leave to appeal. 414 Mich 863 (1982).
The issue we are asked to decide is whether damages sustained by a motorcycle involved in a collision with a motor vehicle are excluded from property protection insurance coverage under § 3123 of the no-fault act. We conclude that the analysis used in Pioneer State Mutual Ins Co v Allstate Ins Co, 417 Mich 590; 339 NW2d 470 (1983), decided today, controls the resolution of this issue.
Plaintiffs argument may be synopsized as follows:
1. The definition of motor vehicle in the no-fault act expressly excludes motorcycles. MCL 500.3101(2); MSA 24.1310K2).
2. "Motor vehicle” and "vehicle” are used interchangeably and synonymously throughout the act.
3. "Vehicle” as that term is used in MCL 500.3123(l)(a); MSA 24.13123(l)(a) must mean "motor vehicle”.
4. Therefore, property damage to a motorcycle is recoverable as property insurance benefits under MCL 500.3121(1); MSA 24.13121(1).
In Pioneer, ante, p 594, where plaintiffs advance the identical argument, we state:
"We disagree with the plaintiffs contention that the Legislature intended the term 'vehicle* as used in § 3123(l)(a) to be synonymous with the term 'motor vehicle’ as defined in § 3101(2)(c). If the Legislature had intended these two terms to be synonymous, there would have been no need to provide a separate definition of the term 'vehicle’, as found in § 3123(l)(a). Although the term 'vehicle’ is also used in other provisions of the act, it is not separately defined in those provisions as it is in § 3123(l)(a). Consequently, although the Legislature may have used the term 'motor vehicle’ and 'vehicle’ interchangeably in other provisions of the act, the fact that the term 'vehicles’ in § 3123(l)(a) is accorded a separate definition in order to preclude the application in that section of the more limited term 'motor vehicle’, as defined in § 3101(2)(c), indicates that the Legislature obviously chose to include a broader class of vehicles within the scope of § 3123(l)(a).
"We believe that the language of § 3123(l)(a) is clear and unambiguous. The exclusion in that section applies to vehicles operated or designed for operation on a public highway by power other than muscular power.”
Consistent with our analysis in Pioneer, we conclude that the exclusion in § 3123(l)(a) applies to motorcycles. A motorcycle is a vehicle operated by power other than muscular power. At the time of the collision in this case, the motorcycle was being driven on a public highway. As a result, we hold that property protection insurance benefits are not available for damages sustained by a motorcycle involved in a motor vehicle accident which occurs while the motorcycle is being operated on a public highway.
Affirmed.
Williams, C.J., and Kavanagh, Levin, Ryan, Cavanagh, and Boyle, JJ., concurred with Brickley, J.
Plaintiff was awarded $1,907.63 plus interest and costs.
Our review of the motion filed by plaintiff, of the argument before the trial court, and of the order entered by the trial judge has not revealed the subsection of GCR 1963, 117, relied on as authority for the granting of plaintiff’s motion. In view of our disposition of this matter, further action is not required. We note, however, that the practice of "hedging one’s bets” by failing to specifically cite to the appropriate authority prompted proposed rules MCR 2.116(C) and 2.119(A)(1)(b).
Plaintiff settled his claim for personal protection insurance benefits. An order for discontinuance with prejudice as to that claim was entered on November 17, 1980.
At the time of plaintiff’s collision, MCL 500.3101(2); MSA 24.13101(2) read, in pertinent part:
" 'Motor vehicle’ as used in this chapter * * * means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels, but does not include a moped”.
After plaintiff’s collision, that section of the no-fault act was amended to read, in pertinent part:
" 'Motor vehicle’ means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped”. 1980 PA 445, MCL 500.3101(2)(c); MSA 24.13101(2)(c).
MCL 500.3123(l)(a); MSA 24.13123(l)(a) reads, in pertinent part:
"Damage to the following kinds of property is excluded from property protection insurance benefits:
"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power”.
MCL 500.3121(1); MSA 24.13121(1) reads, in pertinent part:
"Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3123 * * | [
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Rehearing denied. Reported at 415 Mich 558. | [
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] |
Rehearing denied. Reported at 416 Mich 316. | [
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] |
Rehearing denied. Reported at 415 Mich 702. | [
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Kavanagh, J.
The dissent in this case, as the decision of the Court of Appeals, is based on the premise that a charge of statutory rape or criminal sexual conduct is made out by evidence of penetration of a female under the statutory age without regard to her consent. This is not disputed. The law traditionally has held that the consent of a person of such tender years to such acts will not be recognized and accordingly that consent is no defense to such a charge.
Likewise, consent is no defense to a charge of attempt to effect such sexual penetration.
However, proof of penetration or attempt to penetrate will support conviction of the crime of assault with intent to effect such connection only if the assault be made out.
The cases cited by the Court of Appeals and the dissent, by and large, posit assault and hence do not address the question presented here. People v McDonald, 9 Mich 150 (1861), is the only case brought to our attention which involves consensual sexual activity and a charge Of assault with intent to commit statutory rape. The Court said that since consent is no defense to the crime of statutory rape, neither is it a defense to a charge of assault with intent to commit the crime. While it is true that the consent of the minor is irrelevant to a charge of statutory rape or attempt to commit statutory rape, it is relevant to a charge of assault with intent to commit statutory rape._
" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ 3 Cyc, p 1020.
" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.’ 2 Bishop, Criminal Law (7th ed), § 23.” People v Carlson, 160 Mich 426; 125 NW 361 (1910).
If the other person is a willing partner to the physical act, there can be no assault because there is no reasonable apprehension of immediate injury. The McDonald Court apparently viewed the offense there charged as an attempted statutory rape. Yet no reason is given for ignoring the ordinary meaning of the word assault. We are not persuaded by the reasoning of McDonald. Instead, we feel constrained to accord the word assault in our present statute, MCL 750.520g; MSA 28.788(7), its commonly understood meaning, for to define assault as does the dissent makes the offense identical to attempted criminal sexual conduct in the third degree. This would make MCL 750.520g(l); MSA 28.788(7)(1) and MCL 750.92; MSA 28.287 redundant, and their provisions for penalties of ten years and five years, respectively, equally applicable with no principled basis for distinction. We will not ascribe such an intention to the Legislature.
Assault and consent are mutually exclusive. There can be no assault without proof of force or threat thereof. Accordingly, while consent will not amount to a defense to the charge of criminal sexual conduct or attempt to commit it, it is a defense to every charge of assault.
The suggestion that to require proof of force or offer of force in every charge of assault somehow reduces the protection of children of tender years intended by this legislation is chimerical. Persons of all ages are equally protected under our assault laws. The consent of persons under 16 years to sexual intercourse is legally ineffective. The consent of persons under 13 years to any sexual contact is equally ineffective legally.
This is the protection the Legislature ordained. We are not free to enforce our own values in the name of construction even to provide some perceived greater protection.
Because the sexual activity here is not claimed to be other than consensual, there is no evidence to support a verdict of assault, and hence it was error to instruct on it.
This conviction is set aside, and the defendant discharged because the refusal of the jury to find the defendant guilty of criminal sexual conduct or attempted criminal sexual conduct precludes his retrial on those charges.
Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Kavanagh, J.
People v Courier, 79 Mich 366, 368; 44 NW 571 (1890). "Sexual intercourse is sufficient, and if an assault is made, with the design of sexual intercourse with a child under the statutory age, the crime of an assault with intent to carnally know and abuse the child is committed.” (Emphasis supplied.) People v Carlson, 160 Mich 426; 125 NW 361 (1910). | [
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Rehearing denied. Reported at 415 Mich 303. | [
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] |
Leave to appeal denied. | [
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Rehearing denied. Reported at 415 Mich 708. | [
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Williams, J.
(for reversal). Defendants in this case have called into question the constitutionality of Michigan’s "rape shield” law, which is set forth in the margin below. MCL 750.520j; MSA 28.788(10) (also referred to hereinafter as § 520J'). All four defendants herein were prosecuted on charges of first-degree criminal sexual conduct; all four defendants asserted at trial that the complainant had consented to the various acts of sexual intercourse with them as a group. In support of this defense the defendants sought to present evidence that the complainant had had prior sexual relations with one of them and that she had practiced prostitution in the past. The trial judge, however, precluded the admission of such evidence based on the defendants’ failure to timely comply with the "rape shield” law’s notice provision. Thus it is the defendants’ contention to us on appeal that the "rape shield” law, at least as applied to the facts of this case, violates the defendants’ right of effective cross-examination protected by the confrontation clause of the Sixth Amendment.
Under the facts of this case we believe the trial judge reached the proper result in foreclosing inquiry, either through cross-examination of the complainant or the presentation of direct testimony, into any alleged past sexual relations of one of the defendants with the complainant or into alleged specific instances of, or reputation for, prostitution on the part of the complainant. Without deciding whether § 520j embodies a mandatory preclusion sanction if its notice requirement is not met, or whether such a requirement can withstand constitutional scrutiny, we find that the evidence sought to be admitted was irrelevant in the context of this particular case to the asserted defense of consent. As such, it was properly excluded. MRE 402.
I. Facts
Complainant testified at trial that she met defendant Williams shortly after midnight on October 19, 1977, in the Moon Glow Lounge in the City of Detroit. According to complainant, she had a casual acquaintanceship with defendant Williams, both having lived in the same neighborhood and the complainant having had Williams’ sister babysit for her daughter. After a short period of small talk in the bar during which complainant declined defendant Williams’ offer to "go out and have some fun”, defendant Williams grabbed one of complainant’s arms, telling her to come with him, defendant Anderson grabbed the other arm, and then in the company of the other two defendants, one of whom she had observed with a knife in the bar, she was ushered from the bar. Once outside the bar, according to the complainant, she was ordered into a car and then, accompanied by all four defendants, driven to defendant Respress’ house. It was here, pursuant to defendant Williams’ instruction that complainant do as she was told if she didn’t want to get hurt, that the defendants engaged in the various sexual acts of which they were convicted.
Defendant Williams was the only one of the four accused to take the stand. He testified that while in the Moon Glow bar he asked complainant if she wanted to have sexual intercourse with him. After giving an affirmative response the complainant voluntarily accompanied all four defendants to defendant Respress’ house. Once inside, defendant Williams, at the request of defendants Respress and Anderson, asked complainant if she would have intercourse with all four defendants. According to defendant Williams, complainant "said it was okay, that she’d done it before”. Thereafter complainant willingly engaged in sexual intercourse with all four defendants.
The procedural course of defendants’ attempt to introduce the contested evidence is certainly not neat. It appears that it was the prosecutor who initiated inquiry into this matter on the first day of trial. In discussing preliminary matters prior to jury selection, the prosecutor informed the court that defense counsel had informed him of its intention to offer evidence of prior sexual relations between the complainant and one defendant. Counsel for defendant Williams acknowledged his intent to cross-examine the complainant about prior sexual activity with defendant Williams and to offer evidence on complainant’s alleged past prostitution. Defense counsel attributed his lack of compliance with the notice provisions of § 520j to the prosecutor’s failure to comply with a prior discovery order of the court. This rather informal motion to permit inquiry into these matters was joined in by counsel for the other defendants. At that time, however, the court chose to take the motion under advisement until defense counsel was to begin his cross-examination.
The court’s initial ruling on this matter nonetheless came before cross-examination. In the opening statement of counsel for defendant Williams — and apparently contrary to specific trial court instructions on the matter — reference was made to prior sexual intercourse between defendant Williams and the complainant. After objection by the prosecutor and an in camera hearing between the court and counsel, the court ruled that "[n]o discussion regarding the sexual conduct of the defendant with the actor [sic] or in terms of prostitution will be admitted in this case”. The primary basis of the trial court’s ruling was the defendants’ lack of compliance with the notice requirements of the "rape shield” law, although as to the alleged reputation of the complainant as a prostitute the trial court may also have read the statute as absolutely proscribing the admission of such evidence.
Prior to cross-examination of the complainant, counsel for defendant Williams and the prosecutor again argued to the trial court about the scope of cross-examination of the complainant. This argument was fueled by the fact that defense counsel had obtained a temporary "rap sheet” on the complainant indicating that she had been charged with accosting and soliciting within six days of the crimes for which the defendants were on trial. Defense counsel argued that the accosting and soliciting charge constituted newly discovered evidence under § 520j(2), thus permitting defendants to offer evidence relative to a pattern of prostitution by complainant. However, the trial court ruled that no new evidence or information had been discovered and that his prior ruling excluding inquiry into the contested matters would not be changed.
Following their jury trial, defendants Williams, Anderson, and Johnson were each convicted, under separate counts, of first-degree criminal sexual conduct. MCL 750.520b; MSA 28.788(2). Defendant Respress was convicted of two counts of first-degree criminal sexual conduct.
A divided Court of Appeals reversed and remanded for a new trial. 95 Mich App 1; 289 NW2d 863 (1980). The majority held the notice provision of § 520j unconstitutional when applied to preclude evidence of specific instances of sexual conduct between the complainant and one defendant. Id., 11. The majority also ruled that the remaining defendants should have been allowed to benefit from the admission of this evidence. Id., 11-12.
We granted leave to appeal and directed the parties to include among the issues to be briefed whether application of § 520j violated defendants’ Sixth Amendment rights to confrontation and cross-examination. 408 Mich 959 (1980).
II. Discussion
Defendants assert on appeal to us that their Sixth Amendment rights to confrontation and cross-examination were violated by the trial court’s preclusion of any inquiry into alleged prior sexual relations between defendant Williams and the complainant and the alleged reputation of the complainant as a prostitute. This evidence, defendants argue, is relevant to their defense of consent and the closely related issue of complainant’s credibility.
The trial court excluded the evidence primarily due to defendants’ failure to comply with § 520j(2) which requires a defendant intending to offer evidence permitted under § 520j(l), subds (a) or (b) to file a written motion and offer of proof within ten days after the arraignment on the information. For the text see fn 1.
Were we confronted with a denial of defendants’ rights to cross-examine the complainant on relevant probative matters, as well as a denial of their right to present relevant evidence on their own behalf, due solely to their failure to comply with a statutory notice provision, constitutional questions involving the Sixth Amendment might indeed be raised. Cf. Williams v Florida, 399 US 78, 83, fn 14; 90 S Ct 1893; 26 L Ed 2d 446 (1970) (issue of constitutionality of preclusion sanction of a notice-of-alibi rule not reached). However, we do not reach such questions in this case since we do not find defendants’ proffered evidence, under the facts of this case, to be relevant evidence.
We proceed then to a consideration of the relevance of the excluded evidence with respect to the issues of consent and credibility.
A. Prior Sexual Relations Between One of Four Defendants and the Complainant
1. Consent
Defendants assert that the trial court denied their rights of confrontation and cross-examination by excluding evidence of prior sexual relations between defendant Williams and the complainant. Such an assertion must rest on the premise that such evidence is probative of their claim that the complainant consented to have group sexual relations with all four of them, one after the other, with defendant Williams constantly present and the other defendants intermittently so.
We are unable to agree with defendants’ premise. There seems to be little, if any, logic to the proposition that because the complainant might have voluntarily consented to sexual intercourse with defendant Williams in the past, in what we must assume in the absence of evidence to the contrary to have been an encounter between just the two of them, she would more probably have consented in this case to intercourse with not only defendant Williams again, but also group intercourse with three other men in. his company. An analogous claim was made and rejected in In the Interest of Lawrence D Nichols, 2 Kan App 2d 431; 580 P2d 1370 (1978). There a juvenile defendant was found guilty of having assisted another person in the commission of rape. Specifically, the facts were that defendant, in the company of two other young men, went to the home of the complainant. There the defendant had sexual intercourse with the complainant and then, by force, he assisted his two companions in having intercourse with the complainant. The defendant sought to admit into evidence the fact that he and the complainant had been having sexual intercourse on a regular basis for several months and that they often had "rough” intercourse. However, the trial court, in applying the Kansas "rape shield” law, which is much broader than Michigan’s and which specifically makes relevance the touchstone of admissibility, excluded such evidence. In addressing the defendant’s contention that the trial court’s ruling had violated defendant’s right to confrontation, the Kansas appellate court said:
"While it may be conceded that often the victim’s prior conduct with the defendant would be relevant to the consent issue and therefore should be admitted under [Kan Stat Ann § ] 60-447a ["rape shield” law], it does not appear that the trial court abused its discretion in excluding the evidence under the special circumstances of this case. It must be remembered that the defendant arrived at the victim’s trailer in the company of two friends. It does not appear that the trial court acted capriciously in determining that the defendant should not have presumed that her prior consensual activity with him alone would imply her consent to having intercourse with his friends, or even to having intercourse only with him, but in the presence of his friends.
"We can find no abuse of discretion in the trial court’s ruling excluding the proffered evidence for purposes of defending against charges of rape ([Kan Stat Ann § ] 21-3502) and aiding and abetting another in the commission of a crime ([Kan Stat Ann § ] 21-3205). The judgment of guilty for the violation of [Kan Stat Ann § ] 21-3502 and [Kan Stat Ann § ] 21-3205 is therefore affirmed.” In re Nichols, supra, 436.
We feel the fact of sexual intercourse between a complainant and a defendant alone should not, without more, serve as substantive evidence that the complainant would consent to any type of group sexual encounter. In short, the facts of this record present us with little or no logical relevance between the excluded prior sexual acts evidence and the issue of consent respecting either defendant Williams alone or the other three defendants collectively.
2. Credibility
In their briefs some of the defendants also seem to be arguing to us that the excluded prior sexual act evidence should have been admitted on the issue of the complainant’s credibility. It is unclear, however, whether or not the defendants mean simply that the prior sexual act evidence is relevant insofar as it tends to prove consent, thus tending to impugn the complainant’s account of forced sexual intercourse. In such an event it is the complainant’s veracity as to the particular instance in issue which is more properly being challenged than her overall credibility as a witness, although the distinction is admittedly fine. If this is the substance of the defendants’ assertion that the prior sexual relations of defendant Williams with the complainant are relevant to complainant’s credibility, we have held to the contrary in our immediately preceding discussion.
On the other hand, if the defendants are asserting that the prior sexual activity of the complainant with defendant Williams is admissible to impeach the complainant’s general credibility as a witness, we likewise find no merit in such an argument. While it is true that prior sexual act conduct was used in the past by some courts to attack the credibility of a complaining witness in forcible sexual assault cases, Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544, 549 (1980), the notion that unchaste women are especially prone to lying has become as antiquated and as fatuous as the belief that simply because a woman has consented to intercourse with a third party on another occasion, she probably consented to intercourse with the defendant. As the North Carolina Supreme Court has observed in discussing the subject of impeachment of credibility through sexual history evidence:
"Common sense dictates the unreasonableness of this attitude. If sexual experiences outside marriage render one woman less truthful than her virgin sister, then sexual experience outside marriage would be an issue at any trial where a woman was a witness. This is plainly not the case. A woman, just as a man, 'may be intemperate, incontinent, profane and addicted to many other vices that ruin the reputation, and yet retain a scrupulous regard for the truth. * * *’ Gilchrist v McKee, 4 Watts 380, 386 (Pa, 1835), quoted in Commonwealth v Crider, 240 Pa Super 403, 406; 361 A2d 352, 354 (1976).” State v Fortney, 301 NC 31, 40; 269 SE2d 110, 115 (1980).
It is enough therefore to dispose of this matter that we point to MRE 608 and its limitation on evidence seeking to impeach a witness’s credibility to character and conduct evidence bearing solely on the witness’s truthfulness. See also People v Bouchee, 400 Mich 253, 268; 253 NW2d 626 (1977), a case preceding the adoption of present MRE 608. In People v Bouchee, we held that evidence of the illegitimacy of defendant Bouchee’s four children was inadmissible impeachment evidence in a trial for assault with intent to commit rape because we found such evidence unrelated to the truthfulness or untruthfulness of the defendant or his wife as witnesses. Consistent reasoning dictates the conclusion that the proffered evidence that the present complainant had sexual relations with defendant Williams in the past is likewise unrelated to the particular character trait of truthfulness or untruthfulness.
B. Evidence of Prostitution
1. Consent
Defendants also maintain that the trial court denied their Sixth Amendment rights by foreclosing inquiry into evidence of the complainant’s prostitution. Defendants’ argument in this regard is basically that evidence of complainant’s prostitution is supportive of defendants’ account of their group sexual encounters as consensual, although there is little or no evidence they were undertaken for pay.
Again, defendants do not clearly state exactly why they consider such evidence probative of consent. It seems that part of the claimed relevance is based on the defendants’ belief that the complainant, to quote defendant Williams’ brief, "in furtherance of this pattern of prostitution, willingly engaged in sexual relations with him [defendant Williams] in the past, and on the night in question”. However, the record is virtually devoid of any suggestion that the complainant was engaging in sexual intercourse with the four defendants on the night in question for money. Defendant Williams, the only defendant to testify, stated on direct examination that while in the Moon Glow bar he simply asked the complainant to have sex with him.
”Q. [By Mr. Brown, counsel for defendant Williams]: Okay, and what did you say indicating that something was going to take place at your cousin’s house?
"A. Well, I asked her [the complainant] did she, you know, want to engage in sex.
”Q. What was her response?
"A. She said, 'yes.’ ”
There is not the slightest hint here in defendant Williams’ version of the events that the complainant expected financial recompense for any sexual services. Nor is any such expectation present in defendant Williams’ account on direct examination of his solicitation of the complainant to have intercourse with the other defendants.
”Q. Okay. You had this conversation with the individuals you spoke of [defendants Respress and Anderson asked defendant Williams to ask the complainant if she would have intercourse with all four of them] in the kitchen and did you do anything as a result of that conversation?
"A. Yes, I went and sat down with Peaches [the complainant] and I asked her how she felt about having sex with all four of us.
”Q. You asked Peaches whether or not she would be willing to have sex with all four of you?
"A. Right.
"Q. What was her response?
"A. She said it was okay, that she’d done it before.”
In fact, according to defendant Williams, the only talk of money between the complainant and any of the defendants occurred after the acts of sexual intercourse which form the subject matter of this case, as defendants Anderson and Williams were letting her out of the car after having taken her back to the City of Detroit. According to defendant Williams, as the complainant was leaving the car she asked for $15 or $20. However, defendant Williams admitted, on cross-examination, that that was the first time complainant had asked for any money.
"Q- [By Mr. Hutting, Assistant Prosecutor]: When you dropped her off at Selden and Second, when she got out of the car, that is the first time she asked for money, is that correct?
"A. Yes, sir.
”Q. And she asked for $15 or $20, is that correct?
"A. Yes, sir.”
It is evident that defendants did not seek to establish at trial that the complainant consented to sexual intercourse with all four defendants as an act of prostitution. Thus we need not decide whether upon a proper record supporting the defense of financially induced consent, a trial court could constitutionally exclude evidence of prior or past prostitution based on § 520j(2).
Defendants’ argument that evidence of prostitution has probative value on the issue of consent depends on whether the bare fact that a complainant has engaged in intercourse for money has any tendency to make it more probable that such a complainant would consent to intercourse without financial arrangements. We believe that any proffered evidence of complainant’s reputation for, or specific acts of, prostitution, on the record made below, was not sufficiently probative to have been admitted. Other courts have been faced with this same type of issue and have held as we do now. The reasoning for this ruling is coherently expressed in the following excerpt from an opinion of the Ohio Supreme Court.
"The key to assessing the probative value of the excluded evidence is its relevancy to the matters as proof of which it is offered. Appellants contend that evidence of complainant’s reputation as a prostitute is relevant to the issue of consent, which was Ogletree’s defense to the rape charge. The supposed relevancy here rests on an assumption that prior unchastity with other individuals indicates a likelihood of consent to the act in question with the defendant. While this premise may have had some validity in an earlier time, it seems quite unpersuasive in today’s era of more fluid morals.
"Assuming. that instances might exist where prior sexual activity by the complainant with third parties is relevant, we are not presented with such a situation in the present application of [Ohio Rev Code Ann § ] 2907.02(D) [Ohio’s "rape shield” law]. Evidence that complainant had a reputation as a prostitute is not sufficiently probative of consent to outweigh the state’s legitimate interests in excluding the testimony, at least where there is no suggestion in the record that ñnan-cial arrangements were entered into for sexual activities in this instance.” State v Gardner, 59 Ohio St 2d 14, 18; 391 NE2d 337, 340-341 (1979) (emphasis supplied).
Accord, Commonwealth v Joyce, — Mass —, —; 415 NE2d 181, 187 (1981); State v Quinn, 121 Ariz 582, 585; 592 P2d 778, 781 (Ariz App, 1978) (ruling that evidence of victim’s prior acts of prostitution is not admissible where defendant does not claim the defense of consent to an act of prostitution).
In fact, if anything, evidence that a complainant was a prostitute would seem more probative of the fact that she would be reluctant to provide sexual services to four men gratis. Accordingly, we find no denial of defendants’ right of confrontation and cross-examination in foreclosing this proposed inquiry into irrelevant evidence.
2. Credibility
Finally, defendants assert that the trial court denied their constitutional right to confront the complainant by not permitting them to impeach her credibility through evidence of her prostitution. This claim is of minimal merit and need not detain us long.
Initially, we note that even had the complainant been convicted of the charge of accosting and soliciting at the time this case went to trial — of which there is no record support — defendants could not have impeached her credibility due to this fact alone under MRE 609 since accosting and soliciting is a misdemeanor, MCL 750.448; MSA 28.703, and it cannot seriously be contended that accosting and soliciting involves "theft, dishonesty or false statement”. See Committee Note on MRE 609.
As to defendants’ endeavor to impeach the complainant’s credibility through her alleged reputation as a prostitute, we stress again this Court’s requirement that the impeaching evidence be related to the character trait of truthfulness or untruthfulness. As with prior sexual conduct evidence, we see no logical relation between a complainant’s reputation for prostitution and the character trait of truthfulness or untruthfulness. The law should not recognize any necessary connection between a witness’s veracity and her sexual immorality. State ex rel Pope v Mohave Superior Court, 113 Ariz 22, 26; 545 P2d 946, 950 (1976). We agree fully with the following observation from Joyce, supra, 415 NE2d 185.
"Nor is the fact that a woman engages in sex for hire relevant to the issue of her credibility. 'The rule is well established that the fact that a female witness is a prostitute or keeps a house of ill fame is not admissible to impeach her.’ Commonwealth v Vandenhecke, 248 Mass 403, 404; 143 NE 337 (1924).”
The defendants were not denied any right of confrontation in being foreclosed from attempting to impeach the credibility of the complainant due to her specific acts of, or reputation for, prostitution.
III. Conclusion
In our opinion it would have been error under the facts of this case for the trial court to have admitted evidence that one of four defendants had past sexual relations with the complainant, and that the complainant was a prostitute. This is not to say, however, that evidence of a complainant’s prior sexual behavior with a sole defendant or even one of several defendants, or her reputation as a prostitute can never be relevant to an issue presented at trial. Our decision today rests solely on the irrelevance in this particular case of the proffered evidence to the asserted defense of consent and to impeachment of the complainant’s credibility. It is, therefore, unnecessary to address ourselves to constitutional questions which may arise in the future by the application of this state’s "rape shield” law to different circumstances of enhanced probative value. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendants’ convictions.
Fitzgerald, C.J., and Coleman and Ryan, JJ. I concur in the result reached by Justice Williams because I am persuaded that the trial judge did not abuse his discretion in excluding the proffered evidence of prior sexual acts with the defendant Williams and the complainant’s reputation as a prostitute. See MRE 401 and 403.
Kavanagh, J.
We granted leave to consider whether "the application of MCL 750.520j; MSA 28.788(10) violate[d] defendants’ Sixth Amendment rights to confrontation and cross-examination”.
"The application of’ the statute in this case was the trial judge’s enforcement of the notice requirement thereof rather than the statute’s absolute ban on such evidence which we considered in People v Arenda, 416 Mich 1; 330 NW2d 814 (1982), decided today.
We are satisfied the notice requirement does not violate defendants’ constitutional rights, and therefore reverse the judgment of the Court of Appeals and reinstate defendants’ convictions.
Defendants sought to enter reputation evidence of the victim as a prostitute and evidence of specific instances of prior sexual conduct between the victim and defendant Williams to establish consent. The trial court refused to admit the proffered evidence because defendants had failed to comply with the notice requirement of MCL 750.520j(2); MSA 28.788(10X2). The Court of Appeals reversed, finding the notice provision unconstitutional.
"[T]he very nature of the evidence sought to be presented, i.e., prior instances of sexual conduct between a complainant and a codefendant, is personal between the parties. As such, it does not involve a subject matter that requires further witnesses to develop. An in camera hearing will necessarily focus on a complainant’s word against the word of a codefendant. Requiring notice in this situation, then, would serve no useful purpose.” People v Williams, 95 Mich App 1, 10; 289 NW2d 863 (1980).
We disagree.
The notice requirement serves the purpose of ensuring that a victim’s sexual past will not be exposed to public scrutiny without an in camera determination that such evidence is more probative than prejudicial.
The state has a legitimate interest in encouraging victims to report criminal sexual conduct and to assist in prosecutions therefor. So long as efforts such as this statute to further this purpose do not infringe on a defendant’s constitutional right to confront his accusers and produce evidence in his own behalf, they are permissible.
The procedural requirement of notice so that an in camera hearing may determine the appropriate action to serve both ends appears to us as proper and adequate.
We find no error in the trial court’s ruling that the evidence proffered here was inadmissible because of the failure to observe the notice requirement.
The convictions should be reinstated.
Levin, J.
I
I agree with the plurality opinion that the issue should be decided in accordance with MRE 401 and 403, but would remand for a new trial. A judge cannot exercise the discretion confided to him by Rule 403 to exclude relevant evidence on the grounds of prejudice, confusion, or waste of time, without conducting an evidentiary hearing focused on that question. No such hearing was held in this case.
II
Defendants’ failure to give notice in accordance with the rape shield statute does not justify affir-mance of their convictions:
The notice requirements of the rape shield statute are inapplicable to defendant Williams’ testimony of past sexual contact with complainant because a defendant’s testimony regarding past sexual contact with the complainant is not "evidence” which a defendant "proposes to offer” within the meaning of the statute. See People v Merritt, 396 Mich 67, 88; 238 NW2d 31 (1976).
The statute does not contemplate the admission of evidence tending to show that a complainant is or was a prostitute. The notice requirements of the statute are by its terms applicable only to evidence admissible under the statute; the statute thus does not provide for notice that evidence that a complainant is or was a prostitute will be offered. The Rules of Evidence do not require notice where it is proposed to offer such evidence.
The evidence of Williams’ past sexual contact with the complainant and tending to show that she was a prostitute is relevant for reasons set forth below. If the probative value of such evidence outweighs the potential for prejudice, the evidence was admissible under the Rules of Evidence without regard to the rape shield statute.
Ill
The evidence of prior sexual contact between complainant and defendant Williams and evidence concerning her reputation as a prostitute is here relevant.
MRE 401 defines "relevant evidence” as:
"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”_
Some jurors would find it difficult to believe that a woman would agree to sexual intercourse with a man who approached her in a bar. Most jurors would find it incredible that a woman would agree to intercourse with four men in succession. Such behavior is likely to be considered most unusual and unlikely to occur voluntarily.
Jurors might thus find Williams’ story more probable if it is shown that complainant previously had intercourse with him. Likewise jurors might regard it more believable that a woman would consent to sexual acts with four men in succession, if they heard evidence that complainant has had sexual intercourse with a number of men in succession on a professional basis.
To be sure, a woman’s willingness to have sexual intercourse with one man on one or more occasions does not prove or even make it probable that she will consent to intercourse with that man and three others on some later occasion. Nor, I agree, does evidence that a woman is a prostitute establish or make it probable that she would be willing to have sexual intercourse without compensation with four men. But evidence need not make a conclusion probable in order to be relevant; it must only make the conclusion more probable than it would have been without the evidence.
IV
Because the trial judge did not hold an in camera hearing or allow defense counsel to make an offer of proof, the judge had no opportunity to determine whether the danger of prejudice substantially outweighed the probative value of the proposed evidence. MRE 403. Accordingly, I would affirm the decision of the Court of Appeals and remand for a new trial.
Riley, J., took no part in the decision of this case.
The "rape shield” law was enacted as part of this state’s modernization of its sexual assault laws. See 1974 PA 266, effective November 1, 1974, MCL 750.520a et seq.; MSA 28.788(1) et seq.
MCL 750.520j; MSA 28.788(10), in particular, provides:
"Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”
The Sixth Amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The right of cross-examination is derived from the Sixth Amendment’s language guaranteeing the right of the accused to confront the witnesses against him. Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973). The Sixth Amendment has been held applicable to the states. Pointer v Texas, 380 US 400, 405; 85 S Ct 1065; 13 L Ed 2d 923 (1965).
Although § 520j(1)(a) speaks in terms of past sexual conduct between only the victim and actor, defendants Anderson, Johnson, and Respress insist that they are entitled to benefit from the introduction of evidence of past sexual relations between defendant Williams and the complainant. They point out that all four defendants have asserted the defense of consent and that the prosecutor opposed, and the trial court denied, their motions for separate trial.
To the extent that People v McLean, 71 Mich 309, 312; 38 NW 917 (1888), is contra, we expressly overrule it.
402 Mich cv. MRE 609, in relevant part, provides:
"Rule 609. Impeachment by Evidence of Conviction of Crime.
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.”
MRE 403 provides:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In Merritt, this Court construed the prior statute which permitted a trial court to exclude "evidence offered by [a] defendant” to establish an alibi or insanity, if the defendant did not comply with the statute’s notice provision. MCL 768.21; MSA 28.1044. This Court held that the words "evidence offered” applied only to witnesses other than the defendant, and thus that the notice provision did not apply to defendant’s own testimony.
"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).” MCL 750.520j; MSA 28.788(10).
Reasonable rules of evidence, see fn 5, would include provisions requiring notice so that an in camera hearing can be held before non-probative innuendo is introduced by a defendant’s counsel.
Rape shield laws are a legislative response, and hence a response of the political process, to the failure of courts throughout the land to correct an imbalance in the rules of evidence which made it difficult to prosecute the crime of rape. In now responding to this imbalance, this Court need not accept the legislative judgment. This Court is obliged to formulate reasonable rules of evidence that promote the truth-seeking process, are fair to both the defendant and the prosecution, and safeguard against abuse of complainants and other witnesses.
See People v Jenness, 5 Mich 305, 323-324 (1858); People v Der-Martzex, 390 Mich 410, 412-415; 213 NW2d 97 (1973).
Clearly, a defendant should not be permitted to impeach a complainant’s credibility by showing she was a prostitute. That a woman is a prostitute has nothing to do with her credibility. Witnesses lie because they axe under pressure and not because of their past histories.
The question is not whether it is probable that a woman who consented in the past would consent again, but whether defendant’s story is more probable if complainant has consented in the past than it would be if she has not consented in the past. Similarly, the question is not whether it is probable that a prostitute would consent to sexual intercourse with four men in succession, but whether it is more probable that a prostitute would do this than a woman who is not a prostitute. | [
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Ryan, J.
We granted leave to appeal in these three cases and consolidated them for oral argument and disposition, primarily to consider the appropriateness of the language of "malice” and "malice aforethought” in the trial courts’ murder instructions. Appellants in each of the cases contend that the instructions given were erroneous and misleading, resulting in a denial of due process.
7. Homicide — Intent — Presumptions — Jury Instructions — Prejudice.
An instruction that, with regard to wilful and intentional actions, people are normally presumed to intend the consequences of their own acts in the absence of circumstances demonstrating something to the contrary is erroneous because a reasonable juror might have interpreted the presumption as conclusive or as shifting the burden of proof to the defendant, and was not harmless beyond a reasonable doubt where the defendant directly disputed an intent to kill and raised the defense of accident, and the evidence offered by the prosecution was not overwhelming.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Michael F. Bak-aian, Assistant Prosecuting Attorney, in Woods; Janice M. Joyce Bartee, Assistant Prosecuting Attorney, in Tucker; Timothy A. Baughman, Assistant Prosecuting Attorney, in Alexander, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for defendant Woods.
Carl Ziemba for defendant Tucker.
Mogill, Bush, Posner, Cohen & Weiss (by Kenneth M. Mogill) for defendant Alexander.
Ryan, J.
We granted leave to appeal in these three cases and consolidated them for oral argument and disposition, primarily to consider the appropriateness of the language of "malice” and "malice aforethought” in the trial courts’ murder instructions. Appellants in each of the cases contend that the instructions given were erroneous and misleading, resulting in a denial of due process.
In our review of the record, we have found error in all three cases; however, reversal and a new trial is ordered only as to defendant Alexander.
First, in Tucker and Woods, the trial court erred in instructing the jury that the law will imply malice from an unprovoked, inexcusable, unjustifiable killing. People v Richardson, 409 Mich 126; 293 NW2d 332 (1980). However, the error was harmless since all the evidence indicated the existence of express malice; there was no evidence from which malice could have been implied by applying the erroneous instruction. We also note that, although the prosecutor in Woods and Tucker informed the jury of a plea agreement made with the informant-witness, in the future under circumstances such as those extant in this case disclosure of such an agreement must be introduced into evidence.
Second, the trial court in Alexander erred in instructing that one is presumed to intend the natural consequences of his acts in the absence of circumstances that demonstrate something different. People v Wright, 408 Mich 1; 289 NW2d 1 (1980); see Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979). Because the error involved the material element of intent which was directly disputed and for which the evidence was not overwhelming, the error was not harmless. Reversal is required, for Sandstrom must be accorded limited retroactivity, i.e., retroactive to those who raised the issue on direct appeal and whose appeal was pending when Sandstrom was decided.
Finally, we find no other reversible error in the trial courts’ jury instructions on malice; however, we do take this opportunity to disapprove the potentially misleading and arcane language of the instructions given in these cases and direct that, henceforth, the elements of murder must be described without the use of the terms "malice” or "malice aforethought”.
I. Facts
Defendants Ronald Woods and James Tucker, along with their codefendant, Jerome McFadden, who is not a party to this appeal, were charged with and convicted after a jury trial of first-degree murder. MCL 750.316; MSA 28.548. The three were tried jointly on July 20-29, 1976, in the Recorder’s Court of Detroit, and each was sentenced to the mandatory non-parolable life imprisonment.
Annette Gail Alexander was charged with second-degree . murder and possession of a firearm during the commission of a felony. MCL 750.317; MSA 28.549, MCL 750.227b; MSA 28.424(2). She was found guilty on both counts by a jury on June 17, 1977, in the Recorder’s Court, and was sentenced to 2-1/2 to 10 years on the first charge and to the mandatory 2-year consecutive sentence on the other.
A
Woods, Tucker, and McFadden were convicted of the murder of John B. Jenkins, an alleged drug pusher, whose body was found in the stairwell of his apartment building in the City of Detroit on January 6, 1976, at about 2:30 a.m. The prosecution relied primarily upon the testimony of Willie Lee Lewis, a drug user, who testified that he was employed by the defendants in a "dope house”. He testified that he had overheard two conversations between the three defendants. During the first discussion, four days before the murder, Woods said that Jenkins was a snitch and "something had to be done”. The second occurred on the night of the murder, and, at this time, Woods asked McFadden if he would "take out” Jenkins. McFadden replied that he would.
According to Lewis, Tucker then produced a pistol, wiped it, and handed it to Woods, who also wiped it and gave it to McFadden. The scheme was to intoxicate Jenkins with drugs and then kill him. The next morning McFadden told Lewis that he had "done it”, that he had killed Jenkins on the first floor stairway of his apartment building. J. B. Jenkins was found dead with three bullet wounds in his body, and there was morphine in his blood as well as needle marks on his arm. Medical testimony established that he died from the bullet wounds.
Several others also gave testimony. Virginia Boddy testified that at about 2 a.m. on the day of the murder McFadden came to a foster care home at which she was employed and at which the deceased resided to see Jenkins, and that he and Jenkins left together. Tommie Lee Jones, a tenant of the apartment building where Jenkins was found, said that at about 2 a.m. he heard an argument, some shots, and then running. He looked out a window into the alley and saw a man and a woman, both elderly looking, get into a car. Clarine Williams, another tenant, said she heard three shots and someone holler and then, about a minute later, saw a girl come out the front of the apartment building. The girl put a shiny object, which Williams told police might have been a gun, into her purse and then got into a car 15 minutes later.
All three defendants filed motions to suppress their prior felony convictions for impeachment purposes, should they choose to testify. The trial judge took Tucker’s and McFadden’s motions under advisement. Woods’ motion to suppress his prior conviction of carrying a dangerous weapon was denied after the judge learned that the deceased died from gunshot wounds. None of the defendants took the stand.
At the trial, in his opening statement, the prosecutor told the jury that an agreement had been reached with. Lewis to allow him to plead guilty to unarmed robbery, a lesser offense of the charged crime of armed robbery, in return for his truthful testimony against the defendants. He also told the jury that his own statements were not evidence. Yet, during both direct and cross-examination, Lewis denied that any deal had been made. When defense counsel tried to show the inconsistency of Lewis’ testimony with the prosecutor’s earlier statement to the jury, the prosecutor objected on the basis that his opening statement was not evidence. Apparently the court sustained the objection. A similar objection to defense counsel’s closing argument statements on the substance of the agreement was sustained. However, in his closing and rebuttal arguments, the prosecutor again stated that a deal had been made with Lewis, describing Lewis’ denials as "evasive” because he was being a "snitch”. In his instructions to the jury, the judge once again reminded the jury that his own statements and those of the attorneys were not testimony and that only the witness’s testimony and the exhibits were to be considered in determining the facts.
The trial judge also instructed the jury on the charged offense of first-degree murder and on the included offense of second-degree murder. In his instruction on the malice element for murder, he said:
"However, malice aforethought is the necessary element of murder both in the first and second degree. Malice includes, not only anger, hatred, and revenge, but every other unlawful, unjustifiable motive. It is not confined to a particular ill will to the deceased, but is intended to denote an act evolving from a wicked and corrupt motive that came down under such circumstances as carry in them the plain indication of a heart fatally bent on mischief.
"Malice means that condition of mind which prompts one to do a wrongful, felonious act intentionally without legal justification; therefore, malice is implied from any deliberate or cruel act against another, however sudden. The time within which the wicked purpose is formed is immaterial. Malice may be either implied or expressed, either one of which is sufficient to satisfy the requirements of the law.
"Expressed malice is where one with a sedate and deliberate mind and a formed design kills another, which formed design may be evidenced by certainly several circumstances disclosing an inward intention. For instance, threats, former grudges, lying in wait, those things would be evidence of .expressed malice.
"Implied malice is where the law draws inferences and conclusions from the act itself. For instance, A meets B on the street. A is armed with a revolver. A takes the gun out of his pocket and shoots and kills B without any provocation, without any explanation or justification. This is a showing that this is done with malice. And it’s said to be implied malice because the law will imply the existence of malice from the very act itself, from the circumstances under which it was committed.
"The proof of either expressed or implied malice is all the law requires in order to have malice.”
Defendant Tucker’s timely appeal as of right, and Woods’ granted delayed appeal, were consolidated by the Court of Appeals. That Court issued an unpublished per curiam opinion affirming on several issues raised, but remanded the case for supplementation of the record. This Court granted leave to appeal and ordered the cases of Woods, Tucker, and Alexander to be argued and submitted together. 411 Mich 899, 901 (1981).
B
On March 11, 1977, Annette Gail Alexander killed Lasloran Morris "Rip” Whitlow with a shotgun during a domestic argument in his home. Whitlow, who was separated from his wife and living with the defendant, was a drug dealer whom Alexander occasionally assisted in his deals.
Alexander’s testimony described her activities during the day and the events leading up to the shooting. She testified that she had attended an afternoon funeral and visited with friends and relatives until about 9:30 p.m. She returned home, changed clothes, did some cleaning, and then fell asleep while watching television. She was awakened by Whitlow who "was very mad” and who asked where she had been. He ordered her to leave the house and struck her, knocking her to the floor.
When the deceased stopped striking her, Alexander got up and tried to get away from him, but he chased her around the house, slapping and kicking her and tearing her blouse. She then ran upstairs and procured a shotgun. By the time she obtained the gun, he had turned around and was going downstairs. She went to the top of the stairs and informed the deceased that she wished to leave. Some words were exchanged with Whitlow who was off to the side of the stairs, out of sight, and on the first floor. She testified:
"I stood up there and I screamed and, uh, the gun was, like, slipping out of my hand, and I grabbed and the gun fired, and I was looking at the gun and not down the stairs, and after it went off he called me and I
"He said, 'Annette’, and, uh, in a distressed way, and I ran down the stairs and he was laying on the floor, and he told me to go get help.”
The defendant ran through the house several times because she was frightened. She then went across the street to her neighbor, Mrs. Nash, for help and asked her to call the Emergency Medical Service. Both Mrs. Nash and the police testified that they saw no cuts, bruises, or scratches on the defendant, but that her clothes were somewhat disarranged. She also was crying a great deal and extremely upset while waiting for the police, and later when they questioned and arrested her.
At trial, while instructing the jury on the elements of second-degree murder, the trial judge stated:
"The third element has to do with malice. I told you at the outset, members of the jury, that malice was a technical word. It has to do with the doing of an act against another human being, a cruel act against another human being without excuse or justification. So in order to determine whether or not Annette Alexander, if you find that she did kill the decedent, uh, if you find that she did it intentionally, in order to determine whether she did it maliciously, which is the third element involved in second-degree murder, you must determine whether she acted maliciously. You must determine whether she did an act against Mr. Whitlow, the decedent, without legal excuse or justification. Whether she did a cruel act against another without legal excuse or justification.
"Now there are several ways to show malice, uh, sometimes malice is shown because it’s expressed, what one person says doing the act — cruel act against another, an act designed to hurt another without excuse or justification. Sometimes the intention, the maliciousness involved in the act is expressed at the time. At other times malice must be inferred from the facts and the circumstances. The same is true when you try to determine whether or not an act was done maliciously —strike that — when you try to determine whether or not an act was done wilfully, intentionally; you may presume, with regard to wilful and intentional actions, the [sic] people normally are presumed to intend the consequences of their own act. People normally may not be heard to say that they did not intend the natural consequences of their act or their acts in the absences [sic] of circumstances that demonstrate something to the contrary.” (Emphasis added.)
Later, at the jury’s request, the trial judge redefined malice as signifying a
"wrongful act done intentionally without legal justification or excuse, including] all those evil conditions of mind, attending or impelling a homicide without extenuation, excuse, or legal justification.
"What the law writers have said consistently about the element of malice, members of the jury, is that — is that what we’re talking about is a technical word which includes not only anger, hatred, or revenge, but any other unlawful or unjustifiable motive.
“If I’m walking next to you down the street, and I suddenly take a large stick and hit you upside the head without legal excuse or justification then that act is malicious and so, in the final analysis, what we’re really talking, not about the character of the act done, but the lack of excuse or justification for the act.
"In this case, if you find malice at all, you will find that malice by determining that there was no legal excuse or justification for the killing. If there was excuse or justification then, by definition, there could be no malice.”
The court also instructed on the presumption of innocence, the prosecutor’s burden of proving the elements of the charges beyond a reasonable doubt, the elements of manslaughter and statutory manslaughter, and the elements of self-defense. He indicated several times that should the jury find that the shooting was accidental, the defendant could not be guilty of unlawful homicide unless she had intentionally aimed the shotgun at the decedent, in which case the statutory manslaughter law would control. The jury returned verdicts of guilty of murder in the second degree and of felony-firearm.
II
Defendants Woods and Tucker have each briefed several issues — two of which are common to both defendants. Our review of the record indicates that error occurred in the trial judge’s instructions on implied malice; however, it was harmless error. The other issues present no reversible error.
A
After indicating to the jury that malice, either express or implied, was a necessary element for the crime of murder, the trial judge stated:
’’Implied malice is where the law draws inferences and conclusions from the act itself. For instance A meets B on the street. A is armed with a revolver. A takes the gun out of his pocket and shoots and kills B without any provocation, without any explanation or justiñcation. This is a showing that this is done with malice. And it’s said to be implied malice because the law will imply the existence of malice from the very act itself, from the circumstances under which it was committed.
"The proof of either expressed or implied malice is all the law requires in order to have malice.” (Emphasis supplied.)
In People v Richardson, 409 Mich 126, 142, 143-144; 293 NW2d 332 (1980), we found a similar instruction to be reversible error. The instruction in that case was:
"Possibly I can make that clearer by an illustration, if one without any cause inflicts a wrong upon another, we call him malicious; so when one, without any legal provocation, justification or excuse intentionally kills another, we call him a murderer. The law implies from the unprovoked, unjustiñable or inexcusable killing, the existance [sic] of that wicked disposition which the law terms malice aforethought.
"If a man kills another suddenly and without provocation, the law implies malice and the crime is murder. If the provocation is sufficient as must have greatly provoked him so that he acted from sudden passion, caused by some grave provocation, the killing would be manslaughter.
"The instrument with which the killing was done will be taken into consideration by you because the intention to kill in the absence of evidence showing a contrary intent may be inferred by [sic] the use of a deadly weapon in such a manner that death of the person assaulted by the weapon would be an inevitable consequence.” (Emphasis in original.)
We reasoned:
"The portion of the instruction which stated that the law implies malice 'from the unprovoked, unjustifiable, or inexcusable killing’ or when 'a man kills another suddenly and without provocation’ had the effect of withdrawing from the jury the essential factual issue of the existence of malice. The law, of course, does not imply malice from a sudden and unprovoked killing, and it was error to so instruct. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts.”
In the immediate case, the instruction given was the functional equivalent of that given in Richardson. Both indicated that the law will imply malice from the unprovoked, inexcusable, unjustifiable killing of another, thus potentially resulting in an impermissible interference with the function of the jury in determining issues of fact.
Given that the instruction was erroneous, the issue becomes whether this error was harmless. The standard applied on appellate review is whether the error was prejudicial. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).
Under the facts of the immediate case, the de fendants were not prejudiced by the erroneous instruction, for the testimony of Willie Lee Lewis, which must have been believed by the jury to find the defendants guilty as accomplices of Jerome McFadden, indicated acts of express malice. No acts supported or allowed the implication of malice; thus the instruction on implied malice was completely superfluous.
The trial judge, immediately before his instruction on implied malice, stated:
"Expressed malice is where one with a sedate and deliberate mind and a formed design kills another, which formed design may be evidenced by certainly several circumstances disclosing an inward intention. For instance, threats, former grudges, lying in wait, those things would be evidence of expressed malice.”
Lewis’ testimony indicated a plan to kill, or a "formed design” which he heard formulated. The evidence in the prosecutor’s case indicated that McFadden actually did the killing while the defendants aided and abetted him. Their acts consisted of planning the murder and giving McFadden the gun, neither of which indicate a sudden, unprovoked killing without any explanation or justification. By the same token, all of McFadden’s acts were shown to be done pursuant to a plan to intoxicate the deceased with drugs and then kill him. Not one shred of evidence indicated that the killing by him was done pursuant to anything other than a formed design. No one saw McFadden kill Jenkins, so there was no evidence of a sudden, unprovoked act. Consequently, malice could not have been implied by the jury along the lines suggested by the erroneous instruction. This is also borne out by the fact that the jury must have believed Lewis’ testimony concerning the plan in order to find the defendants guilty as accomplices. The court instructed the jury that either express or implied malice was sufficient to find malice, and since malice could not have been implied under the evidence presented and evidence clearly establishing express malice was believed, the instruction on implied malice was not prejudicial.
This may be contrasted with the situation in Richardson where we did find the error to be prejudicial. In that case, it was not contested that the defendant had killed the victim. The main trial issue was the defendant’s intent, which was vigorously contested, since the defendant claimed the killing was an accident. In Woods and Tucker, the issue was not intent but whether the defendants planned the killing. The instructions here had no bearing on the focal point of the trial. As stated in Richardson, 409 Mich 144:
"[T]he defendant’s evidence and theory included notions of accident, i.e., that the sudden and unprovoked killing of Paul Cook was also unintended and accidental. It is apparent that even if the jury had chosen to accept much of the defendant’s version of the fatal episode, they might have convicted the defendant of murder because the evidence established a sudden and unprovoked killing which, according to the court’s instructions, was murder.”
The defendant Woods cites People v Townes, 391 Mich 578; 218 NW2d 136 (1974), and People v Liggett, 378 Mich 706; 148 NW2d 784 (1967), for the proposition that erroneous instructions on the essential elements of an offense mandate reversal. However, a per se rule was not applied in either case. The circumstances of both cases were examined to determine if the erroneous instructions were on elements essential to those cases, i.e., was the instruction prejudicial to that defendant? Thus, the traditional harmless error analysis was applied.
A per se harmless error rule cannot be justified by quoting the general rule from cases such as People v Visel, 275 Mich 77, 81; 265 NW 781 (1936), that a "[defendant has a right to have a [properly instructed] jury pass upon the evidence”. Whether an instruction is reversible depends on whether it was prejudicial, and no reasoning or case law suggests that we should now discard that sound approach.
B
Another issue of first impression common to the defendants is whether the prosecutor failed in his duty to inform the jury of false testimony by telling them in his opening and closing statements of the existence of a plea agreement with witness Willie Lee Lewis rather than introducing evidence to that effect.
Both defendants have cited cases for the proposition that the prosecutor has an affirmative duty to correct a witness’s false testimony against a defendant that he was not promised consideration for his testimony. Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959); People v Atkins, 397 Mich 163; 243 NW2d 292 (1976). The question is in what manner that duty must be fulfilled. Defendants contend that evidence must be introduced to rebut Lewis’ testimony that his plea arrangement was not conditioned on anything, for only by the presentation of contrary evidence can the triers of fact be able to resolve the controversy consistent with their legal obligations. In other words, they contend that since the jury cannot consider statements of the lawyers or the judge as evidence, the jury is prevented from considering these statements for the purpose of determining the witness’s credibility.
Clearly, the better practice is to introduce evidence on the record. The prosecutor would then manifestly fulfill his duty to correct false evidence. Prior to the time of this trial, our opinions and those of the lower courts did not specify a particular means of disclosure, only requiring that false testimony had to be corrected and that an agreement with a witness must be disclosed to the jury. In cases tried after the release of this opinion, we shall require corrective disclosures to be introduced into evidence; however, we cannot say that the prosecutor failed to discharge his duty upon the facts of this case.
The direct and cross-examination of Lewis revealed that he had been charged with armed robbery, that he contacted the homicide bureau first, that he pled guilty to unarmed robbery, and that he received probation. In Atkins, supra, p 173, a case in which the defendant claimed that a deal, actual or incipient, must have existed with the informer witness against him, we said:
"Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel.” (Citation omitted.)
We concluded in Atkins that the focus of required disclosure is on "facts which may motivate the witness in giving certain testimony” and that the jury was made well aware of this by the defense counsel’s probing cross-examination. Atkins, p 174. Given the facts brought out during the trial as well as the statement made to the jury by the prosecutor, we believe that the jury was aware of the deal made with Lewis.
It is unclear why defense counsel did not have the prosecutor stipulate to the existence of the agreement, or have someone involved with it testify as to its existence, or request an Atkins instruction. Perhaps, as the prosecutor contends, this was part of defense counsel’s strategy. Counsel for defendant McFadden strongly emphasized the agreement’s existence in his closing argument.
We are fully cognizant of the trial judge’s instructions that nothing said by the attorneys or himself was evidence for the purpose of determining facts and that the jury was to determine the credibility of a witness looking at the "evidence and other facts and circumstances apparent in the trial”. We are also aware that Willie Lee Lewis’ testimony was essential to this trial, and, thus, his credibility was of paramount importance. How ever, in light of the prosecutor’s repeated admissions that an agreement had been made, the testimony of Lewis’ arrest, guilty plea, and probation, and the emphasis on the agreement made by McFadden’s defense counsel, we cannot subscribe to the belief that the jury ignored the prosecutor’s statements.
Jurors are well aware that informers are often, if not usually, given consideration for their testimony, and we believe that the trial judge’s instruction could not have prevented the jury from believing that Lewis was given consideration for his testimony. We find no reversible error.
C
Defendant Woods alleges that the trial court abused its discretion in denying his motion to suppress his prior felony conviction for impeachment purposes, claiming that the court relied solely on the similarity between the instant charge and his prior conviction of unlawfully carrying a dangerous weapon on his person.
The defendant does not contest the fact that the judge realized that he had the discretion to preclude the use of the defendant’s prior conviction for impeachment purposes. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Nor does he claim that this Court’s order amending MRE 609 and requiring an articulation on the record of the factors considered by the court in its decision on a motion to suppress, see 408 Mich cxv (1980), require reversal. Rather, he claims that the factors set forth in Luck v United States, 121 US App DC 151; 348 F2d 763 (1965), and Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), cert den 390 US 1029; 88 S Ct 1421; 20 L Ed 2d 287 (1968), as adopted by Jackson, supra, were improperly applied.
Under the law as it existed at the time of trial, similarity was only a factor weighing against the admissibility of a prior conviction. Convictions for acts similar to those one was being tried for would be admitted sparingly. Gordon, supra, p 347; 383 F2d 940. The point is that they could be admitted. No per se exclusionary rule for similar offenses existed, and People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), created none. Rather, in that case, we reversed because the lower court considered the similarity of the offense to be a factor in favor of admissibility. Subsequent summary reversals of lower court opinions on the basis of Baldwin were also predicated on the fact that the trial courts on the record improperly weighed similarity as a factor favoring admissibility. See, e.g., People v Oliver, 407 Mich 857; 283 NW2d 502 (1979), rev’g 90 Mich App 144; 282 NW2d 262 (1979); People v Cash, 406 Mich 930; 277 NW2d 334 (1979), rev’g 80 Mich App 623; 264 NW2d 78 (1978).
The record of defendant’s motion in limine is as follows:
"Mr. Hudson: I’m Mr. Hudson, your Honor, and I have a similar motion in regards to Mr. Woods. He has a conviction stemming from 1970 for unlawfully carrying a dangerous weapon on his person.
"The Court: That’s a two-and-a-half year max; that’s a felony.
"Mr. Hudson: That’s correct, your Honor, and I request this honorable court in the event that he subsequently makes the decision to take the stand that the court take under consideration my motion to suppress.
"The Court: What is the cause of death here?
"Mr. Hogg: Three gunshot wounds.
"The Court: I deny your motion.
"Mr. Hudson: Your Honor, his conviction is unlawful attempt [to] carry a dangerous weapon on a person. I don’t know if that would be considered to be attempt CCW or not.
"The Court: The statute is carrying a weapon with unlawful intent, and unless you carry a long gun and try to shoot somebody with it, that’s carrying a concealed weapon. It doesn’t matter whether it’s a gun or a knife, all are considered to be dangerous weapons which are concealed.
"I will continue with this matter after lunch.
"Mr. Hudson: I’d like to bring to the court’s attention that he was convicted of attempt carrying a dangerous weapon on his person. There was nothing about—
"The Court: If you have a number so you can check it, it might have been a blackjack or a knife. All of those are classified as dangerous weapons category, as well as a pistol.”
The defendant admits that the prior conviction of carrying a dangerous weapon is not the same as a first-degree murder charge, but contends that there is a similarity in that a dangerous weapon was involved. We agree that there is some similarity, but the relationship is tenuous at best. The record indicates that the judge was not informed and did not know that the weapon which the defendant had carried or attempted to carry was a gun. For all he knew, it could have been a. knife or a blackjack. The two crimes are not similar enough to give rise to an automatic inference of prejudice.
Furthermore, even assuming the crimes are similar, the record does not indicate that the judge considered similarity of the crimes to weigh in favor of admissibility. There is no indication how he weighed any factors at all. Prior to our 1980 modification of MRE 609, no record was required, and appellate case law indicated that a trial judge need not make a finding on all the factors affecting admissibility on the record. People v Schram, 98 Mich App 292; 296 NW2d 840 (1980); People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979). These cases also required some affirmative showing of a misapplication of the admission criteria. We agree that that standard is appropriate to lower court decisions prior to our 1980 modification of MRE 609. No affirmative misapplication is apparent here.
We find no error here, for the crimes were not sufficiently similar to require application of the extreme caution required by Gordon. Even assuming the crimes were similar, the record indicates no affirmative misapplication of the Luck-Gordon standards.
D
Defendant Woods also claims that the trial court erred in conveying to the jury the impression that it had to acquit the defendant of the first-degree murder charge before any deliberation could take place on the included offense of second-degree murder. The trial judge instructed the jury:
"If you reject the theory of the prosecution that this was first-degree murder, you may consider the included offense of second-degree murder.”
No objection was raised by the defendants to this instruction; however, the prosecutor did object, fearing that the language used by the court suggested a sequence of deliberations to the jury and implied that they must unanimously find the defendant not guilty of first-degree murder before second-degree murder could be considered.
Instead of joining the objection and asking the judge to give the jury a clarifying instruction, defense counsel once again indicated his satisfaction with that particular instruction.
In People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), decided six months prior to the trial in this case, this Court disapproved of the instruction:
"If you find either of the défendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of the crime of manslaughter is guilty of the crime of assault and battery.”
We reasoned that this instruction "improperly interfered with the jury’s deliberations by requiring agreement of all twelve jurors to acquit the accused of the charged offense before considering a lesser offense.” Hurst, p 10.
Subsequent decisions by this Court indicated that it is not error to establish an order for consideration of possible verdicts so long as the jury is not left with the impression it must acquit on one charge before considering another. People v West, 408 Mich 332; 291 NW2d 48 (1980); People v Mays, 407 Mich 619, 623; 288 NW2d 207 (1980):
"It is not error to suggest an order of consideration of offenses. The jury probably should be reminded to consider the charged offense first and it probably would be helpful to suggest that consideration be given to offenses with a 'greater’ number of elements before considering those with a 'lesser’ number.”
We note initially that the failure to object will serve to preclude appellate review, absent manifest injustice. This rule applies with particular force here, where defense counsel failed to join the prosecutor’s laudable attempt to make it crystal clear that the jury need not acquit before considering lesser offenses. In addition, the term "reject” in the instruction is not necessarily the functional equivalent of "acquit”. While such an instruction might be error under our later decisions, see People v Handley, 415 Mich 356; 329 NW2d 710 (1982), it was not clearly erroneous at the time it was given. Finding no evidence of actual prejudice on the record, we cannot agree with the defendant that this instruction created manifest injustice.
We find no reversible error on the facts of this particular case.
Ill
Defendant Annette Gail Alexander assigns six errors to the trial court’s disposition below. We find that error occurred in the trial judge’s instructions regarding a presumption of intent from one’s acts and that reversal is required. Thus, we need not examine the other issues.
In his instructions to the jury, the trial judge stated:
"Now there are several ways to show malice, uh, sometimes malice is shown because it’s expressed, what one person says doing the act — cruel act against another, an act designed to hurt another without excuse or justification. Sometimes the intention, the maliciousness involved in the act is expressed at the time. At other times malice must be inferred from the facts and the circumstances. The same is true when you try to determine whether or not an act was done maliciously —strike that — when you try to determine whether or not an act was done wilfully, intentionally; you may presume, with regard to wilful and intentional actions, the [sic] people normally are presumed to intend the consequences of their own act. People normally may not be heard to say that they did not intend the natural consequences of their act or their acts in the absences [sic] of circumstances that demonstrate something to the contrary.” (Emphasis supplied.)
The above instruction was given in the course of the trial judge’s description of the third element of second-degree murder — malice—directly after he had stated that the second element of second-degree murder "is a wilful and intentioned act”. Thus, it operated as an instruction on intent, a necessary element of the charged crime of second-degree murder.
In People v Wright, 408 Mich 1, 18-19; 289 NW2d 1 (1980), we found the following instruction to be constitutionally defective under the authority of Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979):
"But in connection with all this, unless the testimony satisñes you of something else, you are warranted in holding a party responsible for the natural, the probable, and the legitimate consequences of his or her acts. The intent may be presumed from the doing of a wrongful or a fraudulent or an illegal act. But this inference or this presumption is not necessarily conclusive.
"The law presumes that every man or woman intends the natural, the probable, and the legitimate consequences of his or her own willful and voluntary acts. And wrongful acts knowingly or intentionally committed can neither be justiñed nor excused on the ground of innocent intent.” (Emphasis in original.)
The instruction in Sandstrom was that "the law presumes that a person intends the ordinary consequences of his voluntary acts”. The United States Supreme Court found this to be improper under the Due Process Clause of the Fourteenth Amendment because a reasonable juror could have interpreted the presumption as conclusive or as shifting the burden of persuasion, making it rebut-table upon the presentation by the defendant of some quantum of proof, possibly more than "some” evidence. At no time was the jury told that the presumption could be rebutted by the defendant’s presentation of "some” evidence, or that it was only a permissible inference. Consequently, a reasonable jury could have concluded that upon proof of the slaying (he was charged with "deliberate homicide”) "and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state”, Sandstrom, supra, p 524, which is contrary to Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975). Or, the jury could have found it to be a conclusive presumption, i.e., the state’s burden would have been found to be fulfilled by law.
The reasonable doubt standard gained constitutional stature in the case of In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970), when the Court explicitly held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”. (Emphasis supplied.) (As quoted in Sandstrom, supra, p 520.) The Sand-strom Court was concerned that the prosecutor’s burden of proof beyond a reasonable doubt might have been shifted by the instructions given on an essential element of the crime charged.
The instruction in the immediate case was similarly defective, particularly the last sentence of the paragraph:
"People normally may not be heard to say that they did not intend the natural consequences of their act or their acts in the absences [sic] of circumstances that demonstrate something to the contrary.”
"Normally” appears to refer to the "in the absence” clause at the end, and the double negative construction of the sentence gives one the impression that people intend the natural consequences of their acts. As in Wright, we are unsure whether the jury would interpret this as a conclusive presumption or as a burden-shifting device. The jury instructions that the state had the burden of proof beyond a reasonable doubt on all the elements and that the accused was presumed innocent until proved guilty did not correct the possibility that a reasonable juror might have interpreted the presumption as conclusive or as shifting the burden. Wright, supra, pp 22-23. The holdings in Wright and Sandstrom are controlling in the immediate case.
We must next determine whether the error was harmless beyond a reasonable doubt. "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”, by a showing that "the error complained of did not contribute to the verdict obtained”. Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967). When the improper evidence is merely cumulative and the admissible evidence overwhelming, a constitutional error may be deemed harmless. Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969).
In the immediate case, the defendant was charged with and convicted of second-degree murder. Intent was an element of the offense. However, this essential element was directly disputed by the defendant, for one of her theories of defense was that the killing was accidental. Because the erroneous instruction allowed the shifting of the prosecutor’s burden on a critical element of the case, we cannot say that it did not contribute to the verdict obtained.
This conclusion is further supported by the lack of overwhelming evidence on the element of intent. It is true that the evidence shows that the victim was not shot at close range, that he was not coming up the stairs at the time of the shooting, and that the deceased had just slapped, kicked, and otherwise physically mistreated the defendant.
Nevertheless, the evidence also indicates that the defendant and the victim were lovers who had lived together for quite a length of time. The defendant stated that she had retrieved the gun in order to protect herself, that the gun slipped from her hands, and that it discharged when she tried to grab it. She also testified that he called for her and asked her to get help. After her initial fright dissipated, she did seek help. Also, she was extremely upset and cried much of the time after the shooting. This evidence tends to corroborate a theory of accident. It is quite possible that in finding an intent to kill the jury inferred intent from the acts of the accused. There is no direct or circumstantial evidence which overwhelmingly proves the requisite intent. Thus, the constitutional error was not harmless.
Our next inquiry must be the retroactive effect of Sandstrom v Montana, supra. Federal law gov erns, although we have followed the federal rule in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), where we adopted Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965).
United States v Johnson, 457 US 537; 102 S Ct 2579; 73 L Ed 2d 202 (1982), is the Supreme Court’s most recent opinion on retroactivity. There the Court established a three-fold threshold test to the Linkletter test which it derived by examining past cases. First, when a decision of the Court only applied settled precedents to new factual situations, the decision was retroactive. Second, where a new rule was expressly declared to be a "clean break” with the past, then almost always it was nonretroactive, and usually prospective only. Finally, where the decision found that the trial court lacked authority to convict or punish, it was given full retroactive effect. The Johnson Court found that Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980), prohibiting a warrant-less, nonconsensual entry into a suspect’s home in order to make a routine felony arrest, did not fit any of the above categories. It then established a general rule requiring the application of its decisions construing the Fourth Amendment to all convictions not yet final at the time the decision was rendered.
Sandstrom also does not neatly fit any of the categories above. Clearly, it was not a new, unprecedented rule or one involving the authority of the trial court. Nor was it the mere application of settled precedents. The latter is an extremely vague category, for at least some authority is almost always cited as support for any decision.
In Sandstrom, the Court relied on four major cases for its decision — Mullaney, supra, Winship, supra, United States v United States Gypsum Co, 438 US 422; 98 S Ct 2864; 57 L Ed 2d 854 (1978), and Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952). Mullaney dealt with a rebuttable presumption where the burden of proof was explicitly shifted to the defendant on an element of the crime charged. The latter two dealt with conclusive or irrebuttable presumptions of intent, for the jury was specifically instructed that upon a finding of certain facts, the defendants were presumed, as a matter of law, to have intended the result.
Sandstrom differs from the cases it relied on, for the Court found that a reasonable juror could have found that the erroneous instruction established a conclusive presumption, a burden-shifting inference, a permissive inference, or a mandatory inference requiring the defendant to come forward with only "some” evidence in rebuttal. Since a reasonable juror could have found that it established a conclusive or a rebuttable presumption, and since the verdict was a general one where an unconstitutional theory might have been used to convict, the Court reversed. Sandstrom, supra, p 526. Unlike the cases it relied on, Sandstrom did not involve an explicit conclusive or rebuttable presumption; rather, it dealt with one that could reasonably have been determined to be permissible as well as mandatory. Because of the absence of an explicit affront to the truth-finding function, we do not believe that the cases relied upon in Sand-strom were the same rules in different factual clothing. Thus, we must apply the Linkletter-Sto-vall approach.
Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), established that retroactivity or nonretroactivity is a function of three considerations: (1) the purpose to be served by the new standards, (2) the reliance on the old standards, and (3) the effect on the administration of justice. The most important factor is the first one. Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969). In fact, the Court has said:
"Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Williams v United States, 401 US 646, 653; 91 S Ct 1148; 28 L Ed 2d 388 (1971).
Mullaney and Winship were given full retroactive effect on the basis that the purpose in both cases was to "diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that 'substantially impairs the truth-finding function’.” Hankerson v North Carolina, 432 US 233, 242; 97 S Ct 2339; 53 L Ed 2d 306 (1977) (making Mulla-ney retroactive). See Ivan V v City of New York, 407 US 203; 92 S Ct 1951; 32 L Ed 2d 659 (1972) (making Winship retroactive). No decision on the retroactivity of Morissette and United States Gypsum Co has been issued; however, since they involved conclusive presumptions on material elements, we believe, and will assume for purposes of this discussion, that they would be given full retro-activity.
In Winship a judge had entered an order placing a juvenile in a training school potentially subjecting him to confinement for six years. His determination was based on a preponderance of the evidence, so the Supreme Court reversed, requiring proof beyond a reasonable doubt even in juvenile proceedings. This lower standard of proof clearly impaired the truth-finding function in criminal cases.
In Mullaney, the jury was instructed that "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation”. Mullaney, supra, 421 US 686. This allowed a defendant to be convicted of murder when it was as likely as not that he was actually guilty of manslaughter. The Court held that the burden was on the prosecutor to show the absence of the heat of passion on sudden provocation if the issue was properly presented. Thus, the instruction explicitly shifted the burden of proof on the element of intent required for murder — clearly affecting the truth-finding function.
Sandstrom, on the other hand, dealt with the situation where jurors might think a conclusive or a burden-shifting presumption was established. It was a possibility. However, the probability of this occurring is far less in the Sandstrom situation than in the Mullaney situation. Consequently, the truth-finding function is not as substantially impaired in a Sandstrom situation. Unlike the situation in Mullaney, there is no "clear danger of convicting the innocent”. Tehan v United States, 382 US 406, 416; 86 S Ct 459; 15 L Ed 2d 453 (1966).
Even "the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree” or a "question of probabilities”. Johnson v New Jersey, 384 US 719, 728-729; 86 S Ct 1772; 16 L Ed 2d 882 (1966). The probability of convicting an innocent person is minimal in the case where an instruction could as easily be construed by a reasonable juror in a permissible manner. Thus, the purpose of Sandstrom does not obviate the need to examine the other factors affecting retroactivity.
The last two factors in the Linkletter-Stovall approach are the reliance on the old standards and the effect on the administration of justice. In Michigan, instructions similar to those used in the immediate case have been approved by the Michigan Supreme Court, People v Medley, 339 Mich 486; 64 NW2d 708 (1954); People v Hodges, 196 Mich 546; 162 NW 966 (1917); and by the Court of Appeals, People v Nelson, 35 Mich App 368; 192 NW2d 682 (1971); People v McBride, 30 Mich App 201; 186 NW2d 70 (1971). Conceivably other cases may be construed as having disapproved of such instructions; however, the existence of unreversed cases approving of such instructions shows that lower courts probably relied on them.
Given this reliance, the effect full retroactivity would have on Michigan’s system of justice is unacceptable. Since this Court long approved of such instructions, the number of cases where this instruction was used is surely enormous. Taking this into consideration with the purpose of the Sandstrom rule, we feel full retroactivity is unwarranted.
However, we decide that retroactive application to those defendants whose cases were pending on direct appeal when Sandstrom was decided is required if the issue was properly raised and preserved. United States v Johnson, supra, which allowed retroactive application of Payton, supra, to cases pending on direct appeal, was specifically limited to decisions involving the Fourth Amendment. Johnson, supra, 457 US 562. However, it clearly manifested a preference for limited retroactivity since it is consonant with the Court’s original understanding of retroactivity in Linkletter, does justice to " 'each litigant on the merits of his own case’ ”, 457 US 555, quoting Desist, supra, p 259, and furthers the goal of giving similar treatment to defendants similarly situated. 457 US 555. We find these reasons equally applicable to this case.
We believe a totally prospective application of Sandstrom is unwarranted not only because it was not a clear break from past precedent, but also because its purpose of reducing the probability of an innocent person being convicted, although not as high a probability as existed in Mullaney, is important enough to warrant limited retroactivity. The truth-finding function was not substantially impaired in the Sandstrom case, but it was affected enough to require that Annette Alexander’s conviction be reversed since she did raise this issue on her appeal to the Court of Appeals.
In summation, the jury instruction in this case was substantially similar to those disapproved of in People v Wright and Sandstrom v Montana. Since the instruction dealt with the defendant’s intent, an element of the crime which was directly disputed, the erroneous instruction cannot be said to have been harmless beyond a reasonable doubt. Finally, Sandstrom is sufficiently distinguishable from the cases it relied upon not to require full retroactivity. Rather, retroactivity-to all cases raising the issue and pending on direct appeal at the time Sandstrom was decided is required. This mandates the reversal of Annette Alexander’s conviction.
IV
The final issue of importance raised by all three defendants and the primary reason why we granted leave to appeal is the appropriateness of the instructions on malice. We have already found error in part of the malice instructions for each defendant, although reversal was required only in the Alexander case.
Examining the rest of the instructions in Woods and Tucker, which are similar to those in Alexander, we again find no reversible error. However, we do take this opportunity henceforth to prohibit the arcane "malice” language used by the trial courts.
In Woods and Tucker the allegedly offensive instruction was:
"However, malice aforethought is the necessary element of murder both in the first and second degree. Malice includes not only anger, hatred, and revenge, but every other unlawful, unjustifiable motive. It is not confined to a particular ill will to the deceased, but is intended to denote an act evolving from a wicked and corrupt motive that came down under such circumstances as carry in them the plain indication of a heart fatally bent on mischief.
"Malice means that condition of mind which prompts one to do a wrongful, felonious act intentionally without legal justification; therefore, malice is implied from any deliberate or cruel act against another, however sudden. The time within which the wicked purpose is formed is immaterial. Malice may be either implied or expressed, either one of which is sufficient to satisfy the requirements of the law.”
In Alexander, the trial judge said:
"We said that the difference between manslaughter and second-degree murder was the absence of the element of malice and the law writers say, they [sic] term malice as used in the definition of murder, signifys [sic] a wrongful act done intentionally without legal justifi cation or excuse, includes all those evil conditions of mind, attending or impelling a homicide without extenuation, excuse, or legal justification.
"What the law writers have said consistently about the element of malice, members of the jury, is that — is that what we’re talking about is a technical word which includes not only anger, hatred, or revenge, but any other unlawful or unjustifiable motive.”
An instruction defining malice as including "anger, hatred, revenge, and every other unlawful and unjustifiable motive” was held to be erroneous in Nye v People, 35 Mich 16, 17 (1876). The Court reasoned that such an instruction would "remove manslaughter from the catalogue of homicides”. Id., p 18. In other words, since malice was a required element of murder and it comprised every unlawful motive including anger, hatred, and revenge, anyone who acted in the heat of passion upon sudden provocation or in a criminally negligent manner would have an unlawful motive and thus be guilty of murder rather than some manslaughter offense. However, People v Borgetto, 99 Mich 336; 58 NW 328 (1894), upheld the virtually identical instruction because the trial judge followed it with an accurate discussion of the distinction between murder and manslaughter.
In the Alexander case, the defendant was not prejudiced because the trial judge, in his instructions, clearly defined manslaughter and distinguished it from murder. In the Woods and Tucker cases, murder and manslaughter were not distinguished, but the error is still not reversible. In Tucker and Woods, the defendants were charged with and convicted of first-degree murder; however, they were convicted on the basis that they aided and abetted a third party who did the actual killing. All the evidence presented reflected a premeditated and deliberate killing; none indicated a possible manslaughter.
This must be distinguished from the situation in Nye, p 16, where the "homicide occurred in a sudden affray”. In that case, the victim was killed in a fight when he accused the defendant of imposing on an elderly man with whom he was playing cards. It was disputed whether Nye struck the victim first. Thus, the Court found under those facts that a verdict of manslaughter was a real possibility.
Despite the fact that the instructions on malice in these three cases do not require reversal, we accept the appellants’ invitation to announce a fundamental change in Michigan murder instructions. Our decision here was foreshadowed by our opinion in People v Aaron, 409 Mich 672, 714; 299 NW2d 304 (1980), where we stated:
"Thus, malice aforethought is the 'grand criterion’ which elevates a homicide, which may be innocent or criminal, to murder. However, '[t]he nature of malice aforethought is the source of much of the confusion that attends the law of homicide’. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). See, also, Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), pp 205-206. Overbroad and ill-considered instructions on malice have plagued appellate courts for decades. See, e.g., People v Morrin, supra; People v Borgetto, 99 Mich 336; 58 NW 328 (1894); Nye v People, 35 Mich 16 (1876).
"We agree with the following analysis of murder and malice aforethought presented by LaFave & Scott [Criminal Law, p 528]:
" 'Though murder is frequently defined as the unlawful killing of another "living human being” with "malice aforethought”, in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expres sion for an understanding of murder’
The appellate opinions of People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), and People v Goodard (On Rehearing), 86 Mich App 537; 272 NW2d 716 (1978), have also manifested disapproval of the arcane and potentially misleading language in many jury instructions such as the "heart fatally bent on mischief’ found in the Woods and Tucker instructions.
It is our belief that, although the instructions in these cases do not require reversal and are understandable to the average juror, trial courts should strive to make instructions accurate, fair, and comprehensible to the average person. Time should certainly be taken to ensure that the jury understands what law it must apply to the facts, yet, when instructions must be given on instructions, on "technical terms” such as malice, then the process becomes somewhat self-defeating. It also lengthens the time a jury must listen to instructions, thereby increasing the chance that instructions will be confused or forgotten.
It is with this model in mind, that of avoiding obscure language which has taken on different meanings through the years, that we now require the word "malice” and its progeny to be deleted from trial instructions. Rather than describing malice aforethought as a requisite element of murder, the trial courts should indicate the states of mind required for murder — the intent to kill, to cause great bodily harm, or to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Of course, where relevant, instructions regarding excuse, justification, or mitigation must be given along with the intent instructions in order to reduce the offense of murder to manslaughter, to show that the killing was accidental, or to show some justification such as self-defense.
Defendant Woods suggests that the proposed criminal jury instructions could serve as a model for the trial courts by deleting the bracketed material containing language on "malice”. We agree and recommend the use of those instructions without the bracketed "malice” language. We do not mandate the use of those particular instructions, but we do strongly approve of their use. Instructions which are equally understandable, accurate, and fair may also be used.
In Woods and Tucker, the decision of the Court of Appeals is affirmed. In Alexander, the judgment of conviction of second-degree murder is reversed, and that case is remanded to the trial court for a new trial.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Ryan, J.
Riley, J., took no part in the decision of this case.
Other formulations of the appropriate standard may be found in both court rule and statute.
GCR 1963, 529.1 provides:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall construe these rules to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceeding which does not affect the substantial rights of the parties.”
MCL 769.26; MSA 28.1096 provides:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
It may be argued that since the defendant in Richardson was found guilty of first-degree murder, the jury must have found an intent to kill or express malice in that case as well. People v Potter, 5 Mich 1 (1858), seems to indicate this. Justice Levin, in People v Morrin, 31 Mich App 301, 327, fn 39; 187 NW2d 434 (1971), has interpreted that case as saying that "in cases of first-degree murder there is generally actual intent to kill (express malice).”
In Richardson, the jurors were instructed that the law implied malice from a sudden and unprovoked killing. Despite the defendant’s claim of accident, the evidence indicated a sudden and unprovoked killing of the brother of the man who beat the defendant on the head with a brick. There was a strong possibility that the jury might have concluded that the element of malice necessary for murder had been established, so the defendant would have been .guilty of at least second-degree murder.
To find one guilty of first-degree murder, there must also be established that the defendant premeditated and deliberated the killing. "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem”. Morrin, p 329. See People v Tilley, 405 Mich 38; 273 NW2d 471 (1979). Once the jury was, in effect, instructed to find second-degree murder, it could easily have inferred the elements of premeditation and deliberation from the fact that the defendant placed a rifle under the front seat of his car immediately after receiving treatment for his injuries.
Thus, we disagree with the proposition that a verdict of guilty of first-degree murder necessarily included an implicit finding by the jury that the defendant had an intent to kill or express malice as that term was understood at the time of Richardson’s trial. Our conclusion is further supported by the fact that we did not determine that first-degree murder was a specific-intent crime requiring an intention to take life until People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), well over a year after Richardson’s trial. Note also that Garcia settled a conflict in precedent.
See People v Atkins, 397 Mich 163; 243 NW2d 292 (1976).
See People v Cassell, 63 Mich App 226; 234 NW2d 460 (1975); People v Love, 43 Mich App 608; 204 NW2d 714 (1972); People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972); People v Evans, 30 Mich App 361; 186 NW2d 365 (1971).
"Now, as you remember, the prosecutor in this case, did make an opening statement, and I presume now that maybe he wishes he could have taken it back. He said, well, in the opening statement 'isn’t evidence’ but of course, as you know, the prosecutor, Mr. Hogg, in his opening statement indicated and stated that they made a deal — they made a deal with Mr. Lewis. Mr. Lewis was originally charged with the offense of robbery armed. That’s a capital offense, just like murder. Now, they made a deal with him, and they gave him robbery unarmed, and as a result of giving him robbery unarmed, they further interceded and they got him what they call probation, so they gave him a pretty good deal—
"Mr. Hogg: Your Honor, that is not the evidence. I have to object to that.
"The Court: You’re assuming a fact not in evidence. We don’t know that happened — sustained.
"Mr. Tropp: Well, all right, well, let me just say this to you then.
"They got him a deal, and they gave him robbery unarmed. Now, I did say — I did say to Mr. Lewis, I said, 'Did they help you in any way?’ And he said, 'No, they didn’t help me’.
"And ladies and gentlemen, I would say this to you that there is a major inconsistency there. Of course, they helped Mr. Lewis. They got the testimony from him by giving him the deal, but Mr. Lewis, of course, wouldn’t admit that. And were the mind of man consistent, or consistencies thou art truly ado, and here is a major inconsistency on the part of the prosecutor, what he said in his opening statement and what Mr. Lewis said when he took the stand. 'No, they didn’t give him any deals’. We know they gave him a deal. Mr. Hogg said they gave him a deal in the very opening statement that he made when he stood before the jury.”
Defendant Tucker cites United States v Bigeleisen, 625 F2d 203 (CA 8, 1980), for the proposition that the prosecutor’s revelation of an agreement in his opening statement was not sufficient to overcome the false testimony of an informer. The court there did not reverse solely on that ground, however. It also based reversal on the government’s argument, without evidentiary support, that another witness was under investigation by the Internal Revenue Service.
In Bigeleisen, the prosecutor did reveal the existence of an agreement with a witness in his opening statement, but he did not try to set the record straight during closing argument after the witness had testified that no consideration had been given to him for his testimony. Rather, he capitalized on the witness’s statement. The Court noted that the prosecutor’s opening statement was not sufficient in itself to notify the jury of the agreement because the whole agreement was not revealed and it was not evidence. At no time did it say that the nonevidentiary value of the opening statement was in itself justification for a finding that the prosecutor did not fulfill his duty. It held that
"the combined effect of the government’s failure to correct Moore’s false testimony, the implication by the government during closing argument that Moore made no agreement, and the government’s unsupported statements during closing argument about the I.R.S., was to deny Bigeleisen a fair trial.” Bigeleisen, p 209, fn 2.
Clearly, Woods and Tucker differ greatly from Bigeleisen since the prosecutor did attempt to correct the false testimony in both the opening and closing statements. At no time did the prosecutor imply that an agreement had not been made, and no unsupported statements were made.
The following colloquy, in relevant part, took place when the prosecutor objected to the judge’s instruction:
"The Court: Well, they don’t necessarily have to find him not guilty of first-degree murder. I think that they can go in there and find that they can’t come to a meeting of the minds on first-degree murder and then find him guilty of second-degree murder. I think I had that in the case that ran through it twice and finally was decided just recently after six years; the Supreme Court finally came down with a decision on it. People v Bumpkin & Carter [sic; People v Bufkin (On Rehearing), 48 Mich App 290 (1973)]. This was a felony and I told them the same thing I told this jury. If they rejected the theory of the prosecution as to first-degree murder, then they could consider second-degree murder. It was a 2 to 1 decision in favor of affirming and the third judge, Ruchinski [sic; Lesinski] said that Carter could not be guilty of second-degree murder because there was nothing to show that he aided and abetted in second-degree murder. He merely drove the car and the Supreme Court completely reversed his stand on it. [People v Carter, 395 Mich 434 (1975)].
"Mr. 'Hogg: I understand the Carter case, your Honor, and I’m not quarreling with the fact that the jury can either find the defendants guilty of second-degree murder, first-degree murder, or not guilty. However, what I’m saying is that your charge then suggests to them that they must first consider the higher offense of first-degree murder before they can consider second-degree murder to get the sequence of deliberations which the Court of Appeals has recently found to be erroneous.
"The Court: Well, they’re charged with first-degree murder; they’re not charged with second-degree, so how can they discuss second-degree murder first? They’re charged with first-degree murder. They have to get that out of the way, first.
"Mr. Hogg: I can’t logically argue on it.
"The Court: I don’t know the cases that you are talking about; I know the cases that I have sat on. I know how they’ve ruled on them in the past. I don’t know of any change from that which would change my mind. Whatever they tell us to do we’ll do.
"Mr. Hogg: Could I ask the court to inquire of defense counsel whether they are satisfied with that aspect of the charge that I’ve brought out?
"The Court: Well, they apparently are. They came up there and said they were.
"Mr. Hogg: Could I please make a record?
"The Court: Is there any objection to the charge?
"Mr. Hill: No objection.
"Mr. Tropp: No objection.
"Mr. Hudson [attorney for defendant Woods]: None.”
Most of the courts which have examined this issue have found a Sandstrom error to be not harmless when intent was an essential element. See Dietz v Solem, 640 F2d 126 (CA 8, 1981); Burton v Bergman, 649 F2d 428 (CA 6, 1981), vacated on other grounds 456 US 953; 102 S Ct 2026; 72 L Ed 2d 478 (1982); State v Mincey, 130 Ariz 389; 636 P2d 637 (1981); People v Getch, 50 NY2d 456; 429 NYS2d 579; 407 NE2d 425 (1980). Courts which have found the error to be harmless have done it on the basis that, despite the materiality of intent, it was never disputed, see, e.g., Holloway v McElroy, 632 F2d 605 (CA 5, 1980), cert den 451 US 1028; 101 S Ct 3019; 69 L Ed 2d 398 (1981); Drinkwater v Gagnon, 521 F Supp 1309 (ED Wis, 1981), or that there were indications that the jury did not follow the erroneous presumption, see Pigee v Israel, 503 F Supp 1170 (ED Wis, 1980), aff'd on other grounds 670 F2d 690 (1982).
Many courts have examined this issue, the majority of which have determined that Sandstrom must be given retroactive effect. See Dietz v Solem, 640 F2d 126 (CA 8, 1981); Burton v Bergman, 649 F2d 428 (CA 6,1981), vacated on other grounds 456 US 953; 102 S Ct 2026; 72 L Ed 2d 478 (1982); Guthrie v Warden, Maryland Penitentiary, 683 F2d 820 (CA 4, 1982); Austin v Israel, 516 F Supp 461 (ED Wis, 1981); State v Mincey, Í30 Ariz 389; 636 P2d 637 (1981). Usually the cases finding retroactivity used little or no analysis in making their finding. Rather, they would note that the cases of In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970), and Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), which were relied upon in Sandstrom, have been given retroactive effect. Hankerson v North Carolina, 432 US 233; 97 S Ct 2339; 53 L Ed 2d 306 (1977); Ivan V v City of New York, 407 US 203; 92 S Ct 1951; 32 L Ed 2d 659 (1972). Because of Sandstrom’s similarity to Mullaney, Sandstrom would be declared to be retroactive.
Other courts have taken the approach that Sandstrom should be given "limited retroactivity”, i.e., retroactivity of the decision limited to the immediate litigants and those who have raised the issue on direct appeal and whose appeal is still pending. See People v Getch, 50 NY2d 456; 429 NYS2d 579 (1980); Bowman v Leverette, 289 SE2d 435 (W Va, 1982).
In United States v Chiantese, 560 F2d 1244 (CA 5, 1977), cert den 441 US 922; 99 S Ct 2030; 60 L Ed 2d 395 (1979), the Fifth Circuit adopted an automatic reversal rule for burden-shifting jury instruc tions, but held the rule to be prospective only. It later strongly implied that Sandstrom would not be given retroactive effect, United States v Spiegel, 604 F2d 961 (CA 5, 1979), cert den 446 US 935; 100 S Ct 2151; 64 L Ed 2d 787 (1980), although it has avoided the issue, Holloway, supra.
The Court did not then apply the factors enumerated in Stovall, infra, p 618, under the Linkletter line of cases. Instead, having determined that the retroactivity questions were not clearly controlled by precedents, it asked whether the question could be fairly resolved by applying the rule in Payton to all cases still pending on direct review when Payton was decided. 457 US 554. It clearly indicated, however, that the Linkletter line of cases was still applicable to non-Fourth Amendment cases, particularly those involving the truth-finding function. 457 US 548, 549, fn 11.
In 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1655, p 1999, the following instruction appears:
"Form No. 777. Murder — Use of Deadly Weapon.
"The law presumes that every person, unless relieved by some disability as hereinafter mentioned, contemplates and intends the natural, ordinary, and usual consequences of his own voluntary acts, unless the contrary appears from the evidence, and if a man is shown by the evidence, beyond a reasonable doubt, to have killed another by an act, the natural and ordinary consequences of which would be to produce death, then it will be presumed that death of the deceased was designed by the slayer, unless the facts and circumstances of the killing, or the evidence, create a reasonable doubt whether the killing was done purposely. When a man assaults another with, or, uses upon another a deadly weapon, in such a manner that the natural, ordinary, probable use of such deadly weapon in such manner would be to take life, the law presumes that such person so assaulting intended to take life. A deadly weapon has been defined as an instrument reasonably calculated and likely to produce death, or serious bodily injury from the manner in which it is used.” (Emphasis supplied.)
This instruction was the one recommended by Gillespie at the time the trial in the Alexander case took place. The 1978 revised volume of Gillespie deletes it. Given that Gillespie was the virtual "bible” of trial court judges, we believe it reasonable to conclude that the erroneous instruction was heavily relied upon by Michigan courts.
See, e.g., People v Martin, 392 Mich 553; 221 NW2d 336 (1974) (although that case could be limited to its facts); Maher v People, 10 Mich 212 (1862); but see People v Potter, 5 Mich 1 (1858).
People v Morrin, 31 Mich App 301, 320; 187 NW2d 434 (1971).
As 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1637, p 645 states:
"Neither murder nor manslaughter is defined by our statutes, and the definition of murder remains the same as at common law. Murder, under the statute, embraces every offense which would have been murder at common law” (citations omitted), and later, § 1647, p 660:
"The rule of common law in respect to malice is in no degree changed by the statute which relates only to its application by the jury in determining the degree of guilt.” (Citation omitted.)
Because "murder” and "malice” retain their common-law meanings and have not been given statutory meanings, we may exercise our. supervisory power to mandate that the lower courts no longer use the term "malice” or its progeny.
In People v Morrin, supra, p 323, Justice (then Judge) Levin suggested:
"Courts might well emphasize that juries can convict of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist. A judge could, for example, charge that the defendant is guilty of the crime of murder if the jurors find, beyond a reasonable doubt, that he killed the victim and that he actually intended to kill the victim or (where relevant), although he did not actually intend to kill, he actually intended to inflict great bodily harm or engaged in behavior the natural tendency of which is to cause death or great bodily harm, unless (where relevant) the jurors have a reasonable doubt whether (i) circumstances of mitigation are present, in which event the offense is reduced from murder to manslaughter, or (ii) the killing was accidental, or (iii) the defendant justifiably acted in self-defense.”
We think this suggestion is appropriate in guiding the trial courts henceforth.
After these cases were argued, a revised CJI 16:2:01 was published, and language about malice no longer appears. It now reads:
"(1) The defendant is charged with the crime of murder of the first degree. The law, as it applies to this case, states that all wilful, deliberate and premeditated murder shall be murder of the first degree. The defendant pleads not guilty.
"(2) There are two kinds of murder, first degree and second degree, and you will be instructed as to both. Murder is the killing of one person by another, with a certain mental element. For murder, the defendant must have intended to kill, have intended to do great bodily harm, or have wilfully and wantonly disregarded the strong and plain likelihood that death would result, and he must have done so under circumstances which did not justify, excuse or lessen the crime.
"(3) You will first be instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder.
"(4) To establish second-degree murder, the prosecution must prove each of these following elements beyond a reasonable doubt:
"(5) First, that the deceased died on or about [date], within the [County of_/City of Detroit],
"(6) Second, that his death was caused by an act of the defendant; that is, that [name deceased] died as the result of [state the alleged act causing death]
"(7) Third, if you find that the death was caused by the defendant, you must determine whether the defendant is guilty of any crime. The killing of a human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.
"(8) A killing is not murder if it is justified or excused. [Neither is it murder if it occurs under circumstances which make the killing the lesser crime of manslaughter [or (some other lesser included offense)].]
"(9) Fourth, for murder you must find that the defendant intended to kill, that he intended to do great bodily harm, or that he committed a wanton and wilful act the natural tendency of which was to cause death or great bodily harm. There must be a strong and plain likelihood that death or serious bodily harm will result, and the defendant must have wilfully and wantonly disregarded the knowledge of the possible consequences of death or serious injury.
"(10) In this case the prosecution is charging first-degree murder. To establish first-degree murder the prosecution must prove each of the following additional elements beyond a reasonable doubt:
"(11) That the defendant intended to kill [name deceased];
"(12) That the intent to kill was premeditated. Premeditated means thought out beforehand or designed or planned;
"(13) That the killing was deliberate. Deliberate means that the defendant must have considered the pros and cons of that design and have measured and chosen his actions. The intent must be formed by a mind that is free from undue excitement. This excludes acts done on a sudden impulse without reflection [or as a result of a sudden fight].
"(14) For first-degree murder, the killing must be the result of real and substantial reflection. There must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing. The law does not specify the length of that period, and it will vary with individuals and circumstances. The test is not the duration of time but the extent of the reflection. There must be sufficient time to afford a reasonable man time to subject his actions to a second look.
"(15) If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder of the first degree or guilty of the lesser offense of murder of the second degree.” | [
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Fitzgerald, C.J.
The common ground of these cases is that, at their trials, both defendants attempted to utilize voluntary intoxication as a defense to charges of crimes which Michigan appellate courts previously have held to be general-intent crimes. Both defendants request this Court to expand the category of specific-intent crimes to include the offenses they were convicted of, i.e., first-degree criminal sexual conduct and second-degree murder, in order to make available to them the defense of voluntary intoxication.
Facts
Defendant Lundy was found guilty but mentally ill of three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and sentenced to three concurrent life terms. The convictions arose from the October 30, 1978, rape of his adult sister. The crime, carried out with the use of a knife as a threatening weapon, involved three penetrations.
At Lundy’s bench trial, the major issue centered on defendant’s mental state at the time of the commission of the crime. His defense was predicated upon expert testimony regarding his mental state as well as evidence that he had been sniffing glue and drinking alcohol immediately prior to the crime. The trial court rejected Lundy’s insanity defense as well as his intoxication defense, ruling as to the latter that first-degree criminal sexual conduct is a general-intent crime.
The Court of Appeals affirmed in a memorandum opinion.
Defendant Langworthy was convicted of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to 60 to 90 years in prison.
After a bench trial, the trial judge found that on the night of November 5, 1976, defendant, Roy Schipani, and Alan Parker were together indulging in alcohol and drugs in a house in Ypsilanti. Parker left sometime during the early morning hours to purchase cigarettes at a gas station. There he met the decedent, William Wedge, who returned to the house with Parker.
The trial judge further found that Wedge was intoxicated and offensive and that Wedge made certain comments which irritated defendant. Wedge then passed out and the three others dis cussed robbing Wedge. Defendant suggested that they "blow him away” and then he turned up the stereo, went to a closet where he got a rifle and shot Wedge in the mouth and in the chest.
The trial judge determined that the defendant was not mentally ill or legally insane at the time of the commission of the crime. He found that defendant had taken at least 400 milligrams of Valium and some codeine and Nembutal and had been drinking Southern Comfort and Coke at the time of the crime. The trial judge concluded:
"However, the court finds that as a result of the drugs and alcohol his judgment and his appreciation of the consequence of his actions was grossly impaired.
"That he committed the act knowingly with malice but 'without a real concept of the consequence of the act.’ That he had a conscious intent to commit the crime but that his judgment and appreciation of the consequence of his act was grossly impaired as the result of the drugs and alcohol.”
The Court of Appeals affirmed in an unpublished opinion per curiam, ruling, inter alia, that second-degree murder is not a specific-intent crime and that, therefore, voluntary intoxication was not a defense.
A. The Voluntary Intoxication Defense
Every jurisdiction in this country recognizes the general principle that voluntary intoxication is not any excuse for crime. This is in accord with the common-law rule dating back to the sixteenth century which allowed no concession to a defendant because of his intoxication. However, by the early nineteenth century, the English courts began to fashion a doctrine to mitigate the harshness and rigidity of the traditional rule. The doctrine, which has come to be known as the exculpatory rule, was stated by Judge Stephen as follows:
"[Although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime.”
It is said that the theory behind this exculpatory doctrine is that it does not hold that drunkenness will excuse crime; rather, it inquires whether the very crime which the law defines has in fact been committed. Almost every state, by statute or by common law, has adopted the exculpatory rule, and Michigan is no exception. _
"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.” People v Walker, 38 Mich 156, 158 (1878). See, also, People v Crittle, 390 Mich 367; 212 NW2d 196 (1973).
The applicability of the exculpatory rule rests entirely on the determination whether the offense involved is categorized as a general- or specific-intent crime.
"It is important in this decision to emphasize that intoxication may only negative the existence of specific intent. Examination of the cases reveals that where the rule was applied, it was done so in cases where the crime charged also involved a specific intent.” People v Guillett, 342 Mich 1, 6; 69 NW2d 140 (1955). See, also, Roberts v People, 19 Mich 401 (1870).
Thus, if a crime is determined to require only a general intent, the defendant’s voluntary intoxication during the commission of an offense may not be asserted as a defense to the existence of the mental element of that crime.
The general intent-specific intent dichotomy arose as a compromise between the perceived need to afford some relief to the intoxicated offender whose moral culpability was considered less than that of a sober person who committed the same offense and the view that a person who voluntarily becomes drunk and commits a crime should not escape the consequences. Although the rule seems logical on the surface, it has proven to be far from logical in application. While specific intent can easily be defined as "a particular criminal intent beyond the act done”* ** (whereas general intent is the intent simply to do the physical act), the ease of stating the definition belies the difficulty of applying it in practice. In order to appreciate the problem, one need only note the divergence of opinion among the jurisdictions as to which crimes require a specific intent and, therefore, to which crimes the exculpatory rule applies.
It has been noted that the law with respect to voluntary intoxication and criminal responsibility has shown little tendency to change or develop despite advances socially and medically in this area; and, we might add, despite strong criticism from treatise writers, law review commentators, case law, and the drafters of the Model Penal Code. My Brother Levin summarized the major criticisms of the exculpatory rule while on the Court of Appeals:
"It has also been maintained that the availability of the intoxication defense should not depend on whether a court chooses to characterize an element of the crime charged as separate from the element of general intent. It has been observed that neither common experience nor psychology knows of any such phenomenon as 'general intent’ distinguishable from 'specific intent.’ It does seem incongruous to make the admissibility of mitigating evidence depend on whether the statutory definition of a crime includes a separately stated intent, and other methods of defining specific intent are highly manipulable.
"The clumsiness of the exculpatory device has been criticized. A defendant who is charged with a specific intent crime may go free if he can prove he was intoxicated; this result contrasts sharply with the absolute denial of relief to the intoxicated offender charged with a crime of general intent.
"If the function of the general/specific intent distinction is to eliminate the defense as to lesser included offenses, e.g., assault and battery, but to retain it for the more serious offenses, e.g., armed robbery, and in that manner mitigate the general rule that intoxication is not a defense, then manifestly this should be done on a consistent basis. The right to interpose this defense should depend on something more substantial than a technical distinction that was seized upon by a judge 130 years ago and adopted by other judges to reach results thought sound in the cases then before them. People v Kelley, 21 Mich App 612, 628-630; 176 NW2d 435 (1970).
While we recognize the illogic and incongruity of the general intent-specific intent dichotomy, the remedy is not clear-cut. One solution, of course, would be to join the ranks of those few states which do not allow the voluntary intoxication defense even where a specific intent is required. We agree, however, with Professors LaFave and Scott that this view is clearly wrong. It would require us to ignore basic concepts of criminal culpability as well as modern scientific views on alcoholism.
The alternative would be to allow the intoxication defense to be asserted against any charge of crime which traditionally has required general or specific intent. Although this Court has the power to so modify the common-law rule, we believe that it would be imprudent to take that step at this time. While abolishing the general intent-specific intent distinction may rid the courts of an illogical rule, it would do nothing to help solve the problem of the intoxicated offender, both from the standpoint of the offender and from the standpoint of society which suffers from the acts of the intoxicated offender. Moreover, because the parties before us did not specifically address the issue of abolishing the exculpatory rule, we do not have the benefit of an adversarial presentation of the pros and cons of such an action. This Court should be hesitant to abolish an established common-law rule without a fully developed presentation of both sides of the question._
The problem of alcoholism and crime is complex, requiring studies and policy considerations beyond the ability of any judicial body. Various solutions which have been proposed would require legislative action. We urge the Legislature to consider the intoxicated-offender problem and to modernize Michigan law on this subject. Until the Legislature takes action or until we are persuaded to modify the common-law rule in an appropriate case in the future, we shall continue to struggle with applying the rule case by case.
B. Is First-Degree Criminal Sexual Conduct a Specific-Intent Crime?
Defendant Lundy asks this Court to find that first-degree criminal sexual conduct includes the element of specific intent. His only argument is that felonious assault is a specific-intent crime and, therefore, in those criminal sexual conduct situations where felonious assault is a lesser included offense logic dictates that specific intent is also an element of the criminal sexual conduct. Because Lundy possessed a weapon while committing the criminal sexual conduct herein, he argues that specific intent was an element of proof which the intoxication defense should have been allowed to negative._
This case requires us to decide whether first-degree criminal sexual conduct is a general- or specific-intent crime. We have previously held, under the predecessor to the criminal sexual conduct statute, that rape is not a specific-intent crime. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). This comports with the overwhelming weight of authority which holds that rape is a general-intent crime.
An examination of the statute convinces us that the Legislature did not intend to include specific intent as an element of first-degree criminal sexual conduct. Neither the first-degree criminal sexual conduct statute nor the corresponding statutory definition of "sexual penetration” contains any language whatsoever regarding intent. The fact that the Legislature must have been cognizant, in enacting the first-degree criminal sexual conduct provision, of the established rule that rape does not require specific intent, combined with the absence of any provision regarding intent, considerably weakens defendant’s argument that his crime is a specific-intent offense. If the Legislature wanted to add specific intent as an element, knowing that the predecessor statute had been consistently construed as a general-intent crime, it would have specifically done so. The fact that it did not leads us to conclude that the Legislature intended to maintain the general rule that "no intent is requisite other than that evidenced by the doing of the acts constituting the offense”, i.e., general intent.
Moreover, one of the purposes of the new act was to strengthen the laws against sexual violence by removing certain evidentiary obstacles to the prosecution of sexual assault. This further strengthens our conclusion that it is unlikely that a new element of proof would be added without specific mention.
Finally, we reject defendant’s argument that if an applicable lesser included offense of a criminal sexual conduct offense requires specific intent, it necessarily follows that the greater offense also requires proof of specific intent. Other courts presented with this argument have rejected it, and we reject it also. We concur with the United States Court of Appeals, writing in United States v Thornton, 162 US App DC 207, 210-211; 498 F2d 749 (1974):
"Actually, as has been stated, '[A]ll attempts require specific intent’; so if it were to follow appellant’s logic of superimposing the specific intent of an included crime upon the greater offense, a specific intent would be required for practically every crime. This could not be the law. The differing requirements for lesser offenses result principally from the differing nature of the crimes and from their historical and legislative definitions. The requirement of a specific intent for lesser crimes exists because of a desire to protect the individual against conviction on slight evidence. The same protection is unnecessary where substantial overt acts are committed and fully consummated offenses are provable. There is no rule of law that crimes which carry greater punishment require the proof of greater, or even the same, criminal intent as included or related crimes which carry lesser punishment. Each crime has its own elements and peculiarities and as we said in McGuinn v United States, 89 US App DC 197, 199; 191 F2d 477, 479 (1951), 'Rape is not a crime which requires a specific intent.’ This is in accord with the great weight of authority which holds the crime of rape requires no intent other than that indicated by the commission of the acts constituting the offense.”
Accordingly, we conclude that first-degree criminal sexual conduct is a general-intent crime for which the defense of voluntary intoxication is not available.
C. Is Second-Degree Murder a General- or Specific-Intent Crime?
Defendant Langworthy petitions this Court to extend to second-degree murder cases the rule in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976) , that non-felony first-degree murder is a specific-intent crime. Defendant urges this Court to adopt the California rule of diminished capacity.
In support of his position, defendant has cited for our consideration cases from other jurisdictions which allow murder to be reduced to manslaughter through the successful assertion of the voluntary intoxication defense. We. have reviewed these cases and others, and we have concluded that they are not applicable to the situation existing in Michigan. An examination of the jurisdictions which defendant relies upon demonstrates why the cases are clearly distinguishable.
Unlike that of Michigan, the statutory schemes of some states do not divide murder into degrees. To further complicate comparison, these states may require, as an element of their single crime of murder, premeditation or some other specific mental element (such as intent to kill) not required for second-degree murder in Michigan. These states do no more than Michigan already does with respect to first-degree murder, i.e., allow intoxication to negate the element of premeditation (or intent to kill) and reduce the degree of the offense. The difference is that in these states negation of premeditation, for example, means that murder has not been proven at all, whereas in Michigan it only means that first-degree murder has not been proven. This difference is due to the legislative classification of homicide, which we have no control over and, consequently, which makes these cases distinguishable.
Other states allow charges of second-degree murder to be reduced to manslaughter, but this result is mandated by the particular statutory definition of the required mens rea. In Colorado, for instance, under a prior statute, second-degree murder was not a specific-intent crime, and voluntary intoxication was not a defense. Under the revised statute, the inclusion of the term "intentionally” caused the Colorado Supreme Court to redefine second-degree murder as a specific-intent crime. Michigan has no statutory mens rea requirement for second-degree murder which would mandate similar treatment.
Some of the other states which defendant refers us to have case-law definitions of malice which require premeditation or intent to kill as necessary requirements. Michigan does not have either of these elements as a prerequisite to second-degree murder. _
The remaining jurisdiction which defendant cites is California. We are referred to People v Conley, 64 Cal 2d 310; 49 Cal Rptr 815; 411 P2d 911 (1966), and we are asked to adopt the diminished-capacity rule of that case. Under the diminished-capacity doctrine, inter alia, voluntary intoxication may negate the malice requirement for second-degree murder and reduce a homicide to manslaughter. However, recent legislation has seriously undermined the controversial diminished-capacity doctrine in California. California Penal Code § 28(a) abolished the independent defense of diminished capacity established by cases such as Conley, and amendments to California Penal Code §§ 188 and 189 have overruled expansive definitions of malice used in Conley and other California cases.
Thus, we find that all of the jurisdictions which defendant relies upon as persuasive authority for his position are not applicable to our circumstances in Michigan. In any event, despite the existence of cases which allow a proper voluntary intoxication defense to reduce murder or second-degree murder to manslaughter, the majority rule remains as follows:
” Tt is now generally held that intoxication may be considered where murder is divided into degrees, and in many states, may have the effect of reducing homicide from murder in the first degree to murder in the second degree. In fact, in most states the only consideration given to the fact of drunkenness or intoxication at the time of the commission of the homicide is to enable the court and jury to determine whether the prisoner may be guilty of murder in the second degree, rather than of murder in the first degree. The rule followed by most courts is that intoxication will not reduce a homicide from murder to manslaughter. 40 Am Jur 2d, Homicide, § 129, pp 420-421. See also 40 CJS, Homicide, § 5, p 831. ("Voluntary intoxication does not of itself negative the malice required to constitute murder in the second degree and thereby reduce murder in the second degree to voluntary manslaughter.”); Anno: 12 ALR 861, 888 ("the great weight of authority is that intoxication will not reduce a homicide from murder to manslaughter”), 79 ALR 897, 904’.”
Defendant also contends that the distinction between first- and second-degree murder is not so great as to require the difference in treatment vis-á-vis the intoxication defense. He argues that because "the line drawn is a fine one”, the emphasis should not be placed on the difference between first- and second-degree murder; rather, the emphasis should be placed on the difference between murder and manslaughter, the former distinction only being necessary for punishment purposes. At oral argument, defense counsel stressed that willfulness is the common thread of first- and second-degree murder and that the Criminal Jury Instructions use the term willfulness in conjunction with both crimes. Thus, defense counsel argued, voluntary intoxication should be allowed to negate the willfulness element of both degrees of murder.
Contrary to defense counsel’s argument, our reading of the relevant jury instructions indicates no requirement of willfulness for second-degree murder. The requirement of a "wilful” killing is contained only in the language of the first-degree murder statute. Furthermore, while the distinction between first- and second-degree murder, on the facts of a particular case, may at times appear to be a "fine line”, it nevertheless represents a policy decision of our Legislature to punish more severely certain types of murder which it considered to be more serious. We do not question the wisdom of that policy decision.
We find that there is more than a sufficient basis to distinguish between the degrees of murder to require that specific intent be demonstrated for first-degree murder only. In People v Garcia, supra, we held that "wilful” killing means the "intent to accomplish the result of death”. Moreover, specific intent to kill is a necessary constituent of the elements of premeditation and deliberation. It would be difficult, if not impossible, to premeditate and deliberate a killing without at the same time possessing the specific intent to kill. This logic, however, does not apply to second-degree murder.
The mens rea requirement for second-degree murder is supplied by the element of malice. While the intent to kill satisfies the malice requirement, it is not a necessary element of second-degree murder. An intent to inflict great bodily harm or a wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm may also satisfy the malice requirement. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).
With respect to the element of malice encompassing wanton and willful disregard, we concur with the majority rule that voluntary intoxication is not a defense. We agree with the analysis of Professors LaFave and Scott:
"The person who unconsciously creates risk because he is voluntarily drunk is perhaps morally worse than one who does so because he is sober but mentally deficient. At all events, the cases generally hold that drunkenness does not negative a depraved heart by blotting out consciousness of risk, and the Model Penal Code, which generally requires awareness of the risk for depraved-heart murder (and for recklessness manslaughter), so provides.”
Because second-degree murder does not require intent to kill, but rather, only wanton and willful disregard malice need be shown; and, because we have concluded that voluntary intoxication may not negate this latter category of malice, we believe that voluntary intoxication should not be a defense to a charge of second-degree murder. We are aware that there may be second-degree murder cases which involve only the intent to kill or the intent to do great bodily harm types of malice. We are further aware that these two categories of malice sound suspiciously akin to the traditional language of specific intent. However, we decline to extend the defense of voluntary intoxication to these cases on the grounds of public policy._
In People v Bourne, 385 Mich 170, 172; 188 NW2d 573 (1971), this Court held that a killing may be only manslaughter even though there is an intent to kill. Quoting from Justice Campbell in People v Scott, 6 Mich 287, 295 (1859), we noted that:
"Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason.”
Hence, because of policy considerations, the law allows provocation to negate the element of malice and reduce the offense from murder to manslaughter. We are not aware of any statutory or common-law rule in Michigan which holds similarly when voluntary intoxication is a factor. Nor do we believe it wise to extend the policy exception to include voluntary intoxication as a factor which may reduce to manslaughter what would otherwise be a murder.
In short, we agree with the majority of jurisdictions which hold:
"As between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry, but as between murder in the second degree and manslaughter it is never material and cannot be considered.”
We hold that second-degree murder is not a specific-intent crime for which the defense of voluntary intoxication may be asserted.
D. Other Issues
We have carefully reviewed the remaining allegations of error of both defendants and have been unable to find any error which merits reversal.
E. Conclusion
Although we consider the general intent-specific intent dichotomy an unsatisfactory concept in the law, we believe it is more appropriate for the Legislature to fashion reform in this area, and we strongly recommend such reform. For the present, we hold that the defense of voluntary intoxication is not available to charges of the crimes of first-degree criminal sexual conduct and second-degree murder. Or, to use the traditional rubric, we hold that the above offenses are crimes of general intent. The Court of Appeals is affirmed in both cases.
Williams, Coleman, and Ryan, JJ., concurred with Fitzgerald, C.J.
Coleman, J.
I have signed my colleague’s opinion believing that his reasoning and conclusions are correct regarding the applicability of the voluntary intoxication defense in these cases. I write separately to note that I do not join in his recommendations to the Legislature to address the general- specific-intent analysis employed in these cases. I am not persuaded that the distinction is either illogical or unworkable.
Anno: Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 ALR3d 1236; 21 Am Jur 2d, Criminal Law, § 155, p 295; 22 CJS, Criminal Law, § 66, p 214; Perkins, Criminal Law (2d ed), p 898; 2 Torcia, Wharton’s Criminal Law (14th ed), § 108, p 49; People v Walker, 38 Mich 156, 158 (1878); People v Guillett, 342 Mich 1, 5; 69 NW2d 140 (1955); Bishop v United States, 71 US App DC 132, 136; 107 F2d 297 (1939).
Hall, Criminal Law (2d ed), p 529; Clark & Marshall, Crimes (7th ed), § 6.09, p 433; Singh, History of the Defense of Drunkenness in English Criminal Law, 49 L Qtr Rev 528 (1933).
In fact, Blackstone and Coke attempted to make drunkenness an aggravation of the offense. Hall, supra, p 530; Singh, supra, p 531; Miller, Criminal Law, § 42, p 137.
The doctrine was first suggested by Justice Holroyd in 1819 when he stated that voluntary drunkenness should be considered in determining the existence of premeditation. Rex v Grindley, quoted in Rex v Carroll, 7 C & P 145; 173 Eng Rep 64 (1835). In Regina v Cruse, 8 C & P 541; 173 Eng Rep 610 (1838), in a case of assault with intent to murder, the jury was instructed that gross intoxication could disprove the intent element for the aggravated offense. Hall, fn 2 supra, pp 531-532; People v Hood, 1 Cal 3d 444, 456, fn 5; 82 Cal Rptr 618; 462 P2d 370 (1969); Singh, fn 2 supra, pp 537-539.
Regina v Doherty, 16 Cox Crim C 306, 308 (N P 1887).
State v Rumble, 81 Kan 16; 105 P 1 (1909); Commonwealth v Graves, 461 Pa 118; 334 A2d 661 (1975); 21 Am Jur 2d, Criminal Law, § 155, p 299.
See, e.g., 8 ALR3d 1236, fn 1 supra. Vermont and Missouri are the exceptions.
For a history of the development of the exculpatory rule in Michigan, see People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970); 1 Mich Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), State of Mind Commentary, pp 6-18 — 6-20.
Hall, fn 2 supra, pp 537, 544; People v Hood, fn 3 supra, p 455.
It is reported that Justice Coleridge first used the term "specific intention” in Regina v Monkhouse, 4 Cox Crim C 55 (1849). Yet, "[h]e did not mean to weave any particular magic with these words.” Beck & Parker, The Intoxicated Offender — A Problem of Responsibility, 44 Can B Rev 563, 578 (1966). See, also, Singh, fn 2 supra, pp 539-540.
People v Depew, 215 Mich 317, 320; 183 NW 750 (1921). See, also, Roberts v People, 19 Mich 401, 414 (1870); LaFave & Scott, Criminal Law, § 28, p 202:
"[T]he most common usage of 'specific intent’ is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.”
5 Am Jur Proof of Facts 2d, pp 194-196. See, e.g., 8 ALR3d, fn 1 supra, pp 1246-1257.
21 Am Jur 2d, fn 1 supra, p 295; 8 ALR3d, fn 1 supra, p 1239.
See, e.g., Hall, fn 2 supra; LaFave & Scott, fn 9 supra, p 344:
"[I]t is better * * * to stay away from those misleading concepts of general intent and specific intent.”
See, e.g., Deddens, Volitional Fault and the Intoxicated Criminal Offender, 36 U Cinn L Rev 258 (1967); Hall, Intoxication and Criminal Responsibility, 57 Harv L Rev 1045 (1944); Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210 (1955); Comment, Criminal Law — Intoxication as a Defense, 55 Can B Rev 691 (1977); Beck & Parker, fn 8 supra.
People v Hood, fn 3 supra; People v Kelley, fn 7 supra. Australia’s High Court recently rejected the general intent — specific intent rule and held that the prosecutor must prove the mental element for each. The High Court said that the distinction between general and specific intent was unsatisfactory in that it is difficult to define, it is not based on any factual difference between various states of mind, and it does not always work rationally in that it is not always the more serious offense which requires proof of specific intent. Queen v O’Connor, 29 Austl L Rpts 449 (1980), as reported in Orchard, Criminal Responsibility and Intoxication — The Australian Rejection of Majewski, New Zealand L J 532 (1980).
The Model Penal Code would abolish the use of the general intent-specific intent distinction. "[W]e can see no virtue in preserving the concept of 'general intent,’ which has been an abiding source of ambiguity and of confusion in the penal law.” Model Penal Code (Tentative Draft No 4, 1956), §2.02, Comment 5, p 128. See, also, Model Penal Code (Tentative Draft No 9, 1958), § 2.08.
LaFave & Scott, fn 9 supra, p 344.
People v Aaron, 409 Mich 672, 723, fn 112; 299 NW2d 304 (1980).
Professor Hall has proposed that a distinction be made between inexperienced inebriates, "those who had no previous experience with intoxication that rendered them dangerous”, and experienced inebriates. Hall, fn 2 supra, p 554.
Another commentator suggests for consideration the 1960 German Draft Penal Code which adopts the middle ground of holding the intoxicated offender to a diminished responsibility. Deddens, fn 13 supra, p 287.
Justice Levin, in People v Kelley, supra, 21 Mich App 628, fn 23, recommends legislation defining a new crime of committing crimes under the influence of drugs or liquor. This new crime could be graded, "depending on the extent and the gravity of antisocial act(s) previously committed in a comatose condition, and on the antisocial conduct immediately involved”.
MCL 750.520; MSA 28.788 (since repealed, 1974 PA 266).
See, also, People v Maglich, 234 Mich 88; 207 NW 865 (1926), where this Court approved the trial court’s instruction denying intoxication as a defense to a charge of rape.
United States v Thornton, 162 US App DC 207; 498 F2d 749 (1974); People v Brumfield, 72 Ill App 3d 107; 390 NE2d 589 (1979); State v Geer, 13 Wash App 71; 533 P2d 389 (1975); Frank v State, 6 Md App 332; 251 A2d 249 (1969); Henry v United States, 432 F2d 114 (CA 9, 1970); United States v Lavallie, 666 F2d 1217 (CA 8, 1981); Isaacs v Commonwealth, 553 SW2d 843 (Ky, 1977); Askew v State, 118 So 2d 219 (Fla, 1960); State v Ramirez, 84 NM 166; 500 F2d 451 (1972); State v Pilcher, 158 NW2d 631 (Iowa, 1968).
We have been unable to find any case which has specifically held that intoxication is a defense to a charge of rape. It appears that we are not alone. Frank v State, 6 Md App 332, 335; 251 A2d 249 (1969).
When a statute sets forth a crime and its punishment without designating its elements, courts must look to the common law for guidance. See, e.g., People v Aaron, fn 17 supra. However, for the reasons outlined above, the common-law definition does not aid defendant’s position.
75 CJS, Rape, § 9, p 471. See, also, Walden v State, 178 Tenn 71, 77; 156 SW2d 385 (1941); United States v Lavallie, fn 21 supra; Coots v Commonwealth, 418 SW2d 752 (Ky App, 1967); State v Smith, 3 Wash 2d 543; 101 P2d 298 (1940); Isaacs v Commonwealth, fn 21 supra; Askew v State, fn 21 supra.
See People v Willie Johnson, 406 Mich 320, 330; 279 NW2d 534 (1979).
Askew v State, fn 21 supra, pp 221-222; United States v Thornton, fn 21 supra.
We note that the Court of Appeals has likewise concluded that first-degree criminal sexual conduct and also second-degree criminal sexual conduct are general intent crimes. People v Bell, 101 Mich App 779; 300 NW2d 691 (1980); People v Brewer, 101 Mich App 194; 300 NW2d 491 (1980); People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).
The difficulty with reliance on case law from other jurisdictions in this area of law is that we are dealing with three concepts, each of which is necessary to the decision of the question involved here, and each of which is unique to the jurisdiction under consideration. Those three concepts are the definition of second-degree murder, the definition of malice, and the particular voluntary intoxication rule involved, whether statutory or common-law. The lack of identity of the three concepts makes comparison difficult. The divergence of result depending on the rule followed by a particular jurisdiction is noted in 40 Am Jur 2d, Homicide, § 129, p 421.
Choate v State, 19 Okla Cr 169; 197 P 1060 (1921); Oxendine v State, 335 P2d 940 (Okla, 1958); People v Jacobs, 44 Ill App 3d 290; 357 NE2d 821 (1976).
Defendant Langworthy cites Cagle v State, 211 Ala 346; 100 So 318 (1924), as an example of a state which allows voluntary intoxication to reduce murder to manslaughter. However, Alabama has changed its murder statute since Cagle and now divides murder into degrees. As a result, Alabama now holds that second-degree murder is not a specific intent crime and voluntary intoxication is not a defense. Rogers v State, 49 Ala App 78; 268 So 2d 859 (1972). This provides a good example of why it is difficult to compare cases involving murder statutes with degrees with cases involving murder statutes without degrees.
People v Romero, 192 Colo 106; 559 P2d 1101 (1976). See, also, Lorig v State, 58 AD2d 734; 396 NYS2d 122 (1977); People v Davis, 18 AD2d 644; 235 NYS2d 282 (1962). The statutory requirement of "purposeful” is another example of these types of cases. See, e.g., State v Rumble, 81 Kan 16; 105 P 1 (1909) (former statute); State v Fox, 68 Ohio St 2d 53; 428 NE2d 410 (1981).
See, e.g., King v State, 90 Ala 612; 8 So 856 (1891).
As discussed below, in Michigan the intent to kill will satisfy the malice requirement, but it is not required.
"The state Legislature previously had defined malice aforethought as including only the specific states of mind required to render an unlawful killing a murder — e.g., intent (in the absence of the heat of passion upon legally adequate provocation) or the conscious creation and disregard of a substantial and unjustifiable risk of death (i.e., 'abandoned and malignant-heart’ killings). If these specific mental states were proven, malice also was proven. As a technical matter, malice had no independent meaning. In [People v Conley, 64 Cal 2d 310; 49 Cal Rptr 815; 411 P2d 911 (1966)] * * * however, the Supreme Court announced that malice aforethought also required proof that the defendant possessed the ability to comprehend and be aware of his duty to act within the law. This was a novel addition to the elements of murder that previously was unknown in California.” Morse & Cohen, Diminishing Diminished Capacity in California, 2 Cal Lawyer 24, 25 (1982).
State v Hall, 214 NW2d 205, 208-209 (Iowa, 1974). See, also, LaFave & Scott, fn 9 supra, pp 345, 586; Model Penal Code (Tentative Draft No 9, 1958), § 2.08, p 5, Comment 2; 8 ALR3d, fn 1 supra; Hall, fn 2 supra, p 534; State v Bunn, 283 NC 444; 196 SE2d 777 (1973).
State v Bunn, p 458.
LaFave & Scott, fn 9 supra, p 545. See, also, Perkins, fn 1 supra, p 900; Torcia, fn 1 supra, p 63; Rogers v State, 196 Tenn 263; 265 SW2d 559 (1954); Jones v State, 70 Wis 2d 41; 233 NW2d 430 (1975); Commonwealth v Cambric, 475 Pa 454; 380 A2d 1224 (1977); People v LeGrand, 61 AD2d 815; 402 NYS2d 209 (1978); NY Penal Law § 15.05; ND Cent Code § 12.1-04-02.
Johnson v Commonwealth, 135 Va 524, 529; 115 SE 673 (1923). | [
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] |
Ryan, J.
Robert K. Smiley and Alexander McKee are teachers who have in the past worked as administrators. Upon reassignment to the classroom, each sought relief under the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. These teachers have asserted that their reassignments are demotions and violate the substantive protections afforded by the tenure act. Those substantive protections are inapplicable, though, because these teachers did not acquire tenure as administrators.
I
Before Robert K. Smiley went to work for the Grand Blanc Board of Education, he had worked for other school districts as a teacher and an administrator. In September of 1970, he executed a written contract that provided that he would serve as supervisor of personnel and instruction for the defendant from August 1, 1970, until June 30, 1971. Tenure was not mentioned in this contract. In January of 1972, a second contract was executed, covering the period from July 1, 1971, until June 30, 1972. We have not been provided with a copy of this contract, but there is no dispute that it contained a clause that recited that administrative tenure was not granted to Smiley. Similar contracts were signed for the 1972-1973 and 1973-1974 school years. Smiley continued to serve as supervisor of personnel and instruction until he was relieved of those duties in October of 1974 and "assigned to special projects” under the supervision of another administrator. To assist Smiley in finding other employment, he was permitted to keep his title of supervisor of personnel and instruction. Indeed, the parties executed in December of 1974 a contract employing Smiley as supervisor of personnel and instruction from July 1, 1974, until June 30, 1975. This contract included a final paragraph excluding tenure as an administrator,
"It is expressly understood by both parties that tenure in the position designated on this contract has not been granted but that no rights of either party have been waived as to the provisions of the Michigan teacher tenure act.”
At some point between October of 1974 and March of 1975 — the record is far from clear — Smiley accepted a reassignment as an administrative assistant. He was tendered, but declined to sign, a contract calling for him to serve as an administrative assistant during the 1975-1976 school year. This contract would have excluded tenure.
In November of 1975, Smiley’s former position of supervisor of personnel and instruction was abolished. In December of 1975, the board of education reassigned Smiley to the classroom beginning in February of 1976. No written charges or hearing accompanied this reassignment.
Smiley sought to persuade the State Tenure Commission that he should be reinstated as an administrator, but the commission found proper the reassignment to the classroom. The tenure commission did agree that Smiley had "gained tenure as supervisor of personnel and instruction after completing one year of satisfactory service in the school district”, but explained that that position had been eliminated in the course of an altogether proper reorganization of the board’s administrative structure. The tenure commission did not come to a conclusion about whether Smiley had tenure as an administrative assistant, explaining instead that he would lose on the merits even if he did have such tenure.
The Macomb Circuit Court affirmed the decision of the tenure commission. An application for delayed appeal was denied by the Court of Appeals "for lack of merit in the grounds presented”. We granted leave to appeal. Smiley v Grand Blanc Bd of Ed, 411 Mich 900 (1981).
II
Alexander McKee was a tenured teacher from another district when he was hired by the Wood-haven School District in 1972. His first contract, which ran from July 1, 1972, through June 30, 1973, provided that he would serve as an assistant principal. The contract provided that the assistant principal "shall not have tenure as an administra tor”. This was the only written contract that McKee ever signed; he declined in 1975 to sign a tendered contract that excluded tenure. McKee remained as an assistant principal until December of 1975, when he was reassigned as a principal at another school in the district. In early 1977, the board of the Woodhaven Public Schools notified McKee that, beginning with the 1977-1978 school year, he would no longer be an administrator, but would instead be reassigned as a classroom teacher. Again, no written charges or hearing accompanied this reassignment.
The State Tenure Commission denied relief to McKee. It concluded that the continuing relationship between McKee and the Woodhaven Public Schools was governed by the original written contract, which included a denial of administrative tenure. The tenure commission also spoke of the rule that contracts should be interpreted to effectuate the intent of the parties. The tenure commission said that the board of education would be placed "in an untenable position” if administrative tenure were granted to McKee as a result of McKee’s refusal to sign a contract that excluded administrative tenure.
The Ingham Circuit Court reversed the decision of the tenure commission. The circuit court held that the 1972 contract that excluded tenure was only renewed for a one-year period. Beyond the year during which this contract extension was in effect, the Ingham Circuit Court believed administrative tenure to have been granted as a result of the board of education’s failure affirmatively to exclude administrative tenure. The circuit court offered the view that "the law is settled that the mere intention on the part of the school board to deny tenure is not sufficient to prevent Mr. McKee from acquiring it”.
The judgment of the circuit court was affirmed by the Court of Appeals. McKee v Woodhaven Public Schools, 100 Mich App 195; 298 NW2d 881 (1980). The Court of Appeals agreed that the board’s intention to deny tenure is irrelevant and that tenure can only be excluded through an express contract provision.
We granted leave to appeal. McKee v Wood-haven Public Schools, 411 Mich 901 (1981).
Ill
A pair of statutory provisions are involved in this case. One is in the School Code and presently reads:
"The board may employ assistant superintendents, principals, assistant principals, guidance directors, and other administrators who do not assume tenure in position, for terms, not to exceed 3 years, fixed by the board and shall define their duties. The employment shall be under written contract. Notification of nonre-newal of contract shall be given in writing at least 60 days before the contract termination date or the contract is renewed for an additional 1-year period.” 1979 PA 183; MCL 380.132(2); MSA 15.4132(2).
The other important statutory provision is § 1 of art III of the teacher tenure act:
"After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act. If the controlling board shall provide in a contract of employment of any teacher employed other than as a classroom teacher, including but not limited to, a superintendent, assistant superintendent, principal, department head or director of curriculum, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such capacity by virture of such contract of employment, then such teacher shall not be granted tenure in such capacity, but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district. Upon the termination of any such contract of employment, if such controlling board shall not re-employ such teacher under contract in any such capacity, such teacher shall be continuously employed by such controlling board as an active classroom teacher. Failure of any controlling board to reemploy any such teacher in any such capacity upon the termination of any such contract of employment shall not be deemed to be a demotion within the provisions of this act. The salary in the position to which such teacher is assigned shall be the same as if he had beeh continuously employed in the newly assigned position. Failure of any such controlling board to so provide in any such contract of employment of any teacher in a capacity other than a classroom teacher shall be deemed to constitute the employment of such teacher on continuing contract in such capacity and subject to the provisions of this act. Continuing tenure shall not apply to an annual assignment of extra duty for extra pay.” (Emphasis added.) MCL 38.91; MSA 15.1991.
The appellate courts of this state have several times examined the language of MCL 38.91; MSA 15.1991. In Street v Ferndale Bd of Ed, 361 Mich 82; 104 NW2d 748 (1960), a teacher was employed under a contract that permitted assignments and transfers at the discretion of the superintendent of schools. The contract also stated "that the teacher with whom this contract is made shall not be deemed to be granted tenure in the capacity of principal under or by virtue of this contract”. After serving as a principal for several months, Street was relieved of those duties and reassigned to teaching duties. He then sought in the tenure commission and in the courts to be reinstated as a principal. This Court noted Street’s argument that the spirit of the teacher tenure act is to protect teachers against the whim and caprice of changing officeholders. In light of the clear language of MCL 38.91; MSA 15.1991, though, this Court found the teacher to be without administrative tenure:
"No authority is cited to support the claim that express, unambiguous statutory language may be disregarded by the interpreter in deference to what he determines to be and invokes as the spirit of the statute. The language of the statute is explicit that tenure is not acquired in administrative capacities when expressly excluded, as here, by the contract. That is controlling.” Street, pp 86-87.
In Dodge v Saginaw Bd of Ed, 384 Mich 346; 183 NW2d 793 (1971), a principal received, for three consecutive school years, one-year contracts that expressly provided that no tenure as a principal was to be acquired thereunder. Then, for the next two school years, she received a contract in which the language about nonacquisition of tenure did not appear. These latter two contracts were on a form which throughout the contract used the word "teacher” instead of the word "principal”; further, the printed title of the contract, which had read "Tenure-Teacher Contract of Employment” was edited by striking out "Tenure-Teacher” with a typewriter and typing above these crossed-out words the phrase "Elem. Prins.” [sic]. We found that this typewritten correction on the title of the contract did not constitute an explicit exclusion of tenure within the language of MCL 38.91; MSA 15.1991:
"The only question we are called upon to determine is whether the employment contract provided that the plaintiff would not have tenure as principal.
"The defendants argue that the striking of the word 'tenure’ from the printed form is the equivalent of the statutorily required provision that the teacher would not have tenure. We do not agree.
"Were it not for the requirement of the statute that the contract make provision for no tenure, in order to avoid it, the absence of provision for tenure might be so construed, but the statute’s requirement was intended to obviate the need for construction. .
"We are satisfied that the members of the board did not intend to grant the plaintiff tenure in the capacity of principal in the instant contract. We are satisfied from the record that they did not avail themselves of the only means available under the statute to avoid it.” (Emphasis in original.) Dodge, pp 347-348.
In Goodwin v Kalamazoo Bd of Ed, 82 Mich App 559, 568-569; 267 NW2d 142 (1978), the Court of Appeals discussed the underlying philosophy of MCL 38.91; MSA 15.1991:
"In view of the wide range in size of school districts, the statute enables local school boards to tailor their administrative tenure policies accordingly. The statute does not attempt to dictate uniform tenure policies for administrators in all school districts. One school board may not wish to allow school principals to gain tenure while another board may wish to allow the supervisor of the stockroom to gain tenure. These are decisions to be made by each school board and are to be given effect through contract provisions between the board and administrators.”
The Court of Appeals went on to explain that a district that seeks to deny tenure need only place such a clause in the administrator’s contract:
"If the contract of a tenured teacher acting as an administrator does not specify the individual is to be denied tenure, the statute stipulates that the individual is to be granted tenure in the administrative position. If the board does not want to grant tenure, it simply inserts a contractual provision denying tenure.”
Finally, in Bode v Roseville School Dist, 405 Mich 517; 275 NW2d 472 (1979), Bode had worked for the Roseville School District as a superintendent, but never as a classroom teacher. His contract provided that "[t]he Superintendent of Schools shall not be deemed to be granted continuing tenure by virtue of this agreement”. Though this Court divided on the principal question in Bode, all accepted that this exclusion clause prevented Bode from acquiring tenure as an administrator.
IV
It is clear from a review of MCL 38.91; MSA 15.1991 and these cases that a written contract that excludes administrative tenure is enforceable and that a written contract that fails to exclude administrative tenure results in the acquisition of tenure by the administrator. Before us today is the question whether administrative tenure is acquired when an administrator begins serving under a written contract with an exclusion clause and thereafter continues to serve in the absence of any written contract.
This is a question which ought not to arise, since the School Code provides in the clearest language that administrators are to be employed under written contracts. MCL 380.132(2); MSA 15.4132(2). The fact that we today determine the rights of parties who have not complied with that statutory provision does not alter its mandatory nature.
In its McKee opinion, the Court of Appeals discussed the question whether the final sentence of MCL 380.132(2); MSA 15.4132(2) provides for continuous one-year renewals. The Court of Appeals held that it did not and that the statutory provision permitted only one such renewal. The Court of Appeals reasoned that MCL 380.132(2); MSA 15.4132(2) places upon a school district an affirmative duty to provide a written contract and that "[t]o allow a board to circumvent this clear language by construing the next sentence of the statute to allow continuing implied contracts is to render the requirement of a written contract meaningless”. The Court of Appeals further explained:
"The provision which follows in the statute providing for automatic renewal for a one-year period is a protection for employees from arbitrary action by the board. At the expiration date of a written contract it provides to the employee a right to a contract renewal for an additional one-year period if written notification of nonrenewal is not given as provided by statute. The statutory provision relating to renewal of the written contract 'for an additional 1-year period’ is phrased in the singular rather than plural. If the contract is renewed between the parties, whether by the automatic renewal provision of the statute or through an express new written contract, the employee has such status as an administrator as is provided by the governing written contract.
"In the instant case it should be noted that the construction of the statute to apply successive one-year renewals of the original contract is inconsistent with the facts as found by the Tenure Commission. The terms of McKee’s employment, including his position in the administrative structure, responsibilities and compensation, had been altered drastically over the years. Under such circumstances it is illogical to assert that the original contract remained in effect.” McKee, 100 Mich App 201-202.
We believe that the final sentence of MCL 380.132(2); MSA 15.4132(2) is susceptible of either interpretation. It can fairly be read to provide that only a single extension can result from a failure to give notification of nonrenewal. It can fairly be read to provide that continuous renewals can result from a failure to give notification of nonre-newal.
Where such ambiguity exists, we must provide a reasonable interpretation that is consistent with the purposes of the act and that does not routinely do violence to the intent of parties who enter into contracts under the statutory provision. In this way, we can fulfill our obligation to interpret the statute in accordance with the will of the Legislature.
These principles lead us to the conclusion that the final sentence of MCL 380.132(2); MSA 15.4132(2) should be interpreted to give continuing effect to an original written contract that is neither renewed nor abrogated over the course of several years. Where a school district once fails to sign an administrator to a new written contract, the extension clause of MCL 380.132(2); MSA 15.4132(2) serves to protect the administrator from the vagaries that attend employment under an oral contract of uncertain terms. There is no reason that a district that repeatedly fails to sign the administrator to a new written contract should be rewarded with different treatment under the statute.
The Ingham Circuit Court concluded in McKee that the statute "should be construed so as to grant rather than withhold teacher tenure”. By limiting to one year the extension clause, the circuit court accomplished that goal in the case at bar, but we think its interpretation would in the long run afford less, not more, protection for teachers.
McKee and the Woodhaven School District came to an agreement that McKee would work for the district under certain terms and conditions. McKee and the district continued that relationship for a number of years. During that time, the parties agreed to a number of modifications in their relationship, some of which were significant. As to those aspects of their relationship which they never reached an agreement to modify, we think it altogether reasonable to assume that both intended the relationship to be governed by the original contract. There is no other source that can identify the intent of the parties and it is hornbook law that an employee who continues in the service of another after the expiration of a contract of employment does so on the terms of the original contract, except as modified by agreement of the parties. We believe that the tenure commission offered a sound analysis of McKee:
"We do not believe that the act intended to gratuitously provide the teacher with administrative tenure in this situation. The teachers’ authority to perform and be compensated in an administrative position comes from the board of education. The board indicated the terms upon which it offered such position, which included a denial of tenure. By embarking in the performance of such administrative position, the appellant cannot be said to have unilaterally changed the terms of that offer to work. The contract, then, continued to deny administrative tenure. MCL 380.132; MSA 15.4132 (formerly MCL 340.66; MSA 15.3066) specifically provides that the written contract of an administrator shall be extended by operation of law for one year if 90 days notice of nonrenewal is not given, or unless the parties enter into a new contract. Since a new written contract was not executed, nor notice of nonrenewal provided, the existing contract (including the denial of tenure) must be considered to have been extended. The terms of that extended contract could not be changed, except as to changes for which there was mutual agreement. Mutual agreement as to terms of salary and promotion are evidenced by the fact that the appellant willingly accepted the new compensation and position. No evidence demonstrating a mutual agreement to remove the tenure denial provisions has been shown. The contract between the parties, therefore, continued to contain an administrative tenure exclusion.
"This is especially true in light of the basic rules of contract interpretation. The general rule in interpreting contracts is to effectuate the intent of the parties. See Burland, Reiss, Murphy & Mosher, Inc v Schmidt, 78 Mich App 670; 261 NW2d 540 (1977), Henry v J B Publishing Co, 54 Mich App 409; 221 NW2d 174 (1974). What did the parties intend here? The appellee had a policy of not affording tenure to administrators. The appellant’s initial contract of employment excluded tenure successfully. A second contract offered to the appellant in 1975, but not executed, excluded tenure. The appellant, with knowledge of the appellee’s position on the question of tenure, continued to work in the administrative posts assigned, though claiming tenure as an administrator. Is this claim supported by the facts? We must answer no.
"In the instant matter, salary and other terms of employment were agreed to and accepted by the appellant. The appellee, the promisor, held out the position to the appellant, the promisee, with the condition that tenure was excluded. The appellant knew of this condition, and still accepted the offer, as evidenced by his performance. His claim, that tenure was not expressly excluded by written contract, and, therefore, he has achieved tenure in the administrative position he held, must fail.
"To rule any other way would place the board of education in an untenable position, which we do not think the Legislature intended. As previously indicated, it is the board of education which is specifically identified as the sole body to either deny or permit administrative tenure to occur. To provide the administrator with the power and leverage to force tenure by refusing to sign a proffered contract effectively wrests from the board of education its exclusive statutory authority to determine whether administrative tenure will occur.
"Admittedly, the board of education could have placed the appellant in the classroom upon his refusal to sign the contract. But the board does not have such an opportunity if a large number of administrators were to likewise refuse to sign contracts. To require the board to take such drastic action as placing a large number of administrators in the classroom would require the layoff of an equally large number of teachers, which could be disastrous to the educational system. Or, if the administrators have no seniority under a teacher collective-bargaining agreement, a large number of administrators would be displaced. Nothing in the act indicates that ordinary contract principles cannot be applied to this case, extending by implication the previous written contract provisions, except for change mutually agreed upon. Such was precisely what transpired herein, and thus the denial of administrative tenure shall be considered to have been continued.”
Smiley’s former position of supervisor of person nel and instruction has been abolished. The sole issue framed in Smiley’s brief to this Court is whether he attained tenure as an administrative assistant. The only written contract that was ever in effect while he was so employed contained a clause excluding tenure. As with McKee, Smiley’s relationship to his employer continued to be governed by his last written contract except insofar as the parties mutually agreed to alter its terms. Smiley and his employer never agreed that he would have tenure as an administrative assistant, and we can locate in neither his contract nor the statutes any reason that the failure of the parties to execute a 1975-1976 contract should result in Smiley’s receiving tenure.
V
For these reasons, we affirm in Smiley the judgment of the Macomb Circuit Court and reverse in McKee the judgments of the Ingham Circuit Court and the Court of Appeals. The decision of the tenure commission in McKee is affirmed. No costs, a public question being involved.
Fitzgerald, C.J., and Kavanagh, Levin, and Coleman, JJ., concurred with Ryan, J.
"The word 'demote’ shall mean to reduce compensation or to transfer to a position carrying a lower salary.” MCL 38.74; MSA 15.1974.
Smiley was negotiating for a higher salary.
There were several versions of this language during the years when these events transpired:
"The board may employ assistant superintendents, principals, assistant principals, guidance directors, and other administrators who do not assume tenure in position, for terms, not to exceed 3 years, fixed by the board and shall define their duties. The employment shall be under written contract. Notification of nonrenewal of contract shall be given in writing at least 90 days prior to the contract termination date or the contract is renewed for an additional 1-year period.” 1976 PA 451; MCL 380.132(2); MSA 15.4132(2).
"The board may employ a superintendent of schools who shall meet the qualifications prescribed in section 573, and shall employ a superintendent if 12 or more teachers are employed. The contract with the superintendent shall be for a term fixed by the board not to exceed 3 years. The board may employ assistant superintendents, principals, assistant principals, guidance directors and other classified administrators who do not assume tenure in position, for a term fixed by the board not to exceed 3 years, and shall define their duties. The employment shall be under written contract. Notification of nonre-newal of contract shall be given in writing at least 90 days prior to the contract termination date or the contract is renewed for an additional 1-year period. * * *” 1970 PA 247; MCL 340.66; MSA 15.3066.
"The board may employ a superintendent of schools who shall meet the qualifications prescribed in section 573, and shall employ a superintendent if 12 or more teachers are employed. The contract with the superintendent shall be for a term fixed by the board not to exceed 3 years. The board may employ assistant superintendents, principals, assistant principals, guidance directors, and other classified administrators who do not assume tenure in position, for a term fixed by the board not to exceed 3 years. * * *” 1966 PA 254; MCL 340.66; MSA 15.3066.
Cf. MCL 380.247(3), 380.346(4), 380.471(1); MSA 15.4247(3), 15.4346(4), 15.4471(1).
At the time McKee was reassigned, this sentence read:
"Notification of nonrenewal of contract shall be given in writing at least 90 days prior to the contract termination date or the contract is renewed for an additional 1-year period.”
People v Gilbert, 414 Mich 191, 205; 324 NW2d 834 (1982), Wikman v City of Novi, 413 Mich 617, 631-632; 322 NW2d 103 (1982), White v City of Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). In White we explained:
"The primary and fundamental rule of constitutional or statutory construction is that the Court’s duty is to ascertain the purpose and intent as expressed in the constitutional or legislative provision in question. Also, while intent must be inferred from the language used, it is not the meaning of the particular words only in the abstract or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute. See General Motors Corp v Erves (On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976) (opinion by Coleman, J.).”
Cf. Foster v Springfield Clinic, 88 Ill App 3d 459, 463; 410 NE2d 604, 607 (1980), Vogel v Washington Metropolitan Area Transit Authority, 174 US App DC 345, 347; 533 F2d 13, 15-16 (1976), 56 CJS, Master and Servant, § 10, pp 82-83.
Like the tenure commission and the Macomb Circuit Court, we have located in the record before us no reason to believe that the elimination of this position was improper or done in had faith. | [
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Per Curiam.
Richard L. Reetz commenced this action against Kinsman Marine Transit Company to recover for injuries he sustained in September, 1974, while employed as a deckhand aboard Kinsman’s vessel the Merle McCurdy. At that time, while engaged in a procedure to open the hatches on the vessel, Reetz fell backwards into an open hatch and plummeted approximately 40 feet to the steel deck below.
Reetz alleged under the Jones Act, 46 USC 688, that his injuries were caused by Kinsman’s negligence in failing to properly train Reetz or, alternatively, that Kinsman was liable because of the vessel’s unseaworthiness. Kinsman countered that the accident occurred because of Reetz’s own negligence in failing to follow direct orders from his first mate not to walk backwards on the hatches while opening them. At the trial, testimony by Reetz and the first mate directly conflicted as to whether such orders were ever given. No other testimony relating to the alleged orders was presented.
In closing argument, Reetz’s attorney argued that Reetz’s loss of earnings and earning capacity amounted to $400,000, while all his other damages would justify a total award of double that amount. Kinsman, however, argued that because Reetz was still employable the most he should recover was $40,000.
The jury returned a verdict of $800,000.
Kinsman’s motion for new trial was denied, and it appealed, claiming that the conduct and argument of Reetz’s counsel was so inflammatory that it denied Kinsman a fair trial. The attention of the Court of Appeals was directed to four areas of alleged misconduct: references to Reetz’s ineligibility for workers’ compensation or any other benefits; repeated references to multi-million dollar awards in other cases; unfounded allegations of cover-up and perjury; and undue emphasis on Kinsman’s corporate nature and its wealth as well as the wealth of George Steinbrenner, III, chairman of the board of its parent corporation._
In an unpublished opinion, the Court of Appeals held that even though any one of the improper arguments alleged may not have been inflammatory or overly prejudicial, "taken as a whole they demonstrate a deliberate and calculated attempt to prejudice the jury” and as such require a new trial.
Reetz claims that the Court of Appeals erred because these issues were not properly preserved for appellate review, and even if they were properly considered none of the arguments amounted to error requiring reversal.
We find that, although the issue of the propriety of the arguments was not preserved by a request for a specific instruction or a motion for mistrial so as to guarantee Kinsman a right to review, some of the arguments were so improper that it was within the discretion of the Court of Appeals to review the record to assure that Kinsman obtained a fair trial. We further find that the arguments relating to multi-million dollar verdicts and the wealth and callousness of Kinsman were so improper and inflammatory that Kinsman was denied a fair trial. A new trial is required. Accordingly, we aifirm the Court of Appeals, although on somewhat different grounds.
I
Reetz contends that the Court of Appeals should not have considered any of the claimed errors because they were not properly preserved for appellate review. The cases cited by Reetz in support of this argument stand for the proposition that a litigant has no right to appellate review unless he has requested a curative instruction or made a motion for mistrial. Nevertheless, the rule is not an absolute bar to review, for it does not preclude an appellate court from correcting substantial errors which were not preserved in the trial court.
Our prior cases have clearly stated that incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction. The “no objec tion — no ruling — no error presented” rule requires counsel to seek to have error cured before the case is submitted to the jury. When a cure is not feasible, that rule need not be invoked.* *** Where improper conduct by one or both parties influences the outcome of a trial, an appellate court may reverse although the appellant’s attorney did not seek to cure the error.
Some of our earlier cases have indicated that if an error is incurable, the party claiming prejudice should move for a mistrial. Although such a motion is appropriate, it is not mandatory. A party may have such an investment in time and money in a trial at the point when incurable error arises that he would rather see the case go to the jury, hoping that the jurors will be able to ignore the improper argument. Such a decision is eminently reasonable, both for the individual litigant and the judicial system as a whole. A trial which has consumed valuable private and public resources need not be aborted because the jury may have been improperly influenced or distracted by closing argument.
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.
In the instant case some of the alleged errors were incurable, others curable, and still others not even error. We will discuss each category of error raised by the appeal in order to give some guidance to both bench and bar for future cases.
II
A. Improper Reference to Workers' Compensation Beneñts
In his opening argument, Reetz’s attorney made the following statement:
"Now all of us are familiar with the concept of workman’s compensation, because this is the remedy for a person who is working as an employee in a landlocked or shore-site employment situation * * *. [A] seaman is excluded from the general category of employees, * * * he has no right to any kind of compensation.”
This statement was improper for two reasons. First, our prior cases have made it clear that it is not relevant whether or not a plaintiff seeking recovery for personal injury has other remedies available and, therefore, the topic should not be raised before the jury. Second, the last sentence of the statement is simply untrue; Reetz was entitled to receive maintenance and cure benefits.
If these were the sole errors committed, we would not remand for a new trial. The prejudice caused by reference to workers’ compensation could have been cured by an instruction from the bench to the effect that sympathy or prejudice must not influence the jury’s decision. Such a readily cured error will not generally be reviewed unless properly preserved for appeal. In this instance there was no objection to the statement.
The incorrect portion of the statement is also not a basis for reversal in this case because during examination of one of Kinsman’s witnesses, the facts that Reetz had a right to maintenance and cure and that Reetz did receive such payments were clearly brought out. Any prejudice caused by the statement was thereby cured and the error rendered harmless.
B. References to Large Awards in Other Cases
During his closing statement, Reetz’s attorney referred to multi-million dollar verdicts in other cases.
The arguments complained of include the following references:
"Now I know, for example, circumstances when we talk about in terms of 'six million dollar man’. * * * All we can do is go by history and what they have. In other words, what is it when you take away a man, all of his senses, all of his ability to move, a quadriplegic, loss of both arms and legs and this kind of thing, we have a circumstance where this could be up to a $7,000,000 award.
"So what are you dealing with? Well, you’re dealing with a man that we know. We read the papers; we know what happens; a person commits — tries to commit suicide and they don’t get enough oxygen and they come back with over a $3,000,000 award.”
Although these arguments were objected to and the objection sustained, in his rebuttal, Reetz’s attorney continued the references. In one form or another, Reetz’s attorney managed to mention million-dollar awards seven times, even though objections to these arguments were made and sustained on four occasions.
Such references are improper and should not be permitted. A one-time casual or vague reference to a large verdict in another case may not be sufficiently prejudicial to require a new trial. Also, immediate instruction by the court may cure any error. In this case, however, the judge failed to instruct the jury to ignore these references and the references were so numerous that it is doubtful any instruction would have been effective._
Under these circumstances, a new trial is required. We cannot with confidence conclude that Kinsman’s interests were not prejudiced.
C. Claims of Cover-up and Perjury by Kinsman and Its Witness
Kinsman claims that Reetz’s attorney caused error requiring reversal during closing argument by alleging that Kinsman was engaged in a coverup to protect itself, and that its chief witness, first mate Ewers, had committed perjury. These statements were made in two installments; the first came during initial closing argument, the second during rebuttal.
The first set of statements includes:
"And one thing about that first mate, he didn’t look you in the eye. He didn’t look you in the eye, but there is a reason for it.
"I can see where this man, this first mate could become a little irritated like he obviously was and like he admitted that he was. But, you see, he wasn’t just a witness; he was an advocate * * *. And they bring this man in. They pay him, pay his relief, and put him up in a hotel, and pay the air fare. There’s no question about that. But he comes here * * * as ¿n advocate.
"And obviously there was dereliction on the part of that man [Ewers] out there. And that dereliction didn’t come out until I put the cross examination to him when he got so excited.”
The rebuttal set is made up primarily of the following:
"If there is one thing we know in our nation today, it is that word 'credibility’, and we know that word from Watergate * * *. And it’s one thing for them — for a shipowner defendant to try to cover up its tracks like a polar bear out there in the snowstorm at the North Pole, this kind of thing. They can cover them; they’re there, but you can find them and they have the upper hand.
"And this fellow, Ewers, up there that he wants you to consider his credibility and so do I, and there is a man who starts walking around and making a determination, trying to cover up his tracks, coming all the way down here. And it isn’t a matter of 'Will you come?’ * * * But Steinbrenner is the one who has the ship company, and he says in essence, 'All right’, he says, 'come on, get down there and testify again.’
"And you know what; [Ewers’ testimony is] not true. You know why this is not true?
"You see, because [it] was not substantiated by either one of those other two men.”
We find that these arguments are proper under the circumstances of this case and will not serve as grounds for reversal.
The first group of statements merely comment on the demeanor of the witness and point out the possibility that he may be biased since, as demonstrated during the trial, his wages and the expenses he incurred for testifying were all paid by his employer. Such comments are well within the bounds of propriety and supported by the evidence presented in court.
The second group is no more harmful; when read as a whole, it is simply argued that Ewers and Kinsman were not presenting the truth, because, if they were, Kinsman would have produced the other witnesses to the incident. If, as in this case, the testimony of a witness for the plaintiff directly contradicts the testimony of a witness for the defendant, and there is no reason to believe that an honest mistake has been made, so that one witness must be fabricating, each counsel has the right to argue that his witness speaks the truth while the other presents a fabrication.
Also, it is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties. _
D. Comments on Kinsman’s Corporate Nature and Wealth
Kinsman further claims that Reetz’s lawyer inflamed the passions of the jury against Kinsman by constantly stressing the corporate nature, wealth, power, and insensitivity of Kinsman.
Comments made during closing argument which fall into this category include a claim that Reetz’s attorney is dedicated to representing only individuals and not corporations, that Kinsman cared nothing about Reetz’s welfare, that Kinsman can afford the best of everything, and repeated references to George Steinbrenner, III, owner of the New York Yankees and chairman of the board of Kinsman’s parent corporation, although he was not personally a party in the case. _
The effect of these comments was to create in the minds of the jurors an image of Kinsman as an unfeeling, powerful corporation controlled by a ruthless millionaire. Even a juror who harbored no prejudice against corporations or millionaires might have been swayed by these inflammatory remarks to alter his view of the evidence.
Our prior cases should have made clear that even isolated comments like these are always improper, even if not always incurable or error requiring reversal. However, when, as in this case, the theme is constantly repeated so that the error becomes indelibly impressed on the juror’s consciousness, the error becomes incurable and requires reversal. We find the following statement from Steudle v Yellow & Checker Cab & Transfer Co, 287 Mich 1, 11-12; 282 NW 879 (1938), to be applicable in this case:
"We believe the record in the instant case shows a deliberate course of conduct on the part of counsel for plaintiff aimed at preventing defendant from having a fair and impartial trial. We think the course of misconduct was so persistently followed that a charge of the court in an effort .to obviate the prejudice would have been useless.”
Thus, although no objection was made to these comments, a new trial should be ordered.
Affirmed.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, Coleman, and Riley, JJ., concurred.
The issue of seaworthiness is separate from negligence alleged under the Jones Act. A seaworthy ship is one where no defective condition exists in the "equipment, appurtenances, crew, cargo or gear of the ship”. Shemman v American Steamship Co, 89 Mich App 656, 665; 280 NW2d 852 (1979); Earles v Union Barge Line Corp, 486 F2d 1097, 1103 (CA 3, 1973).
The only other evidence relating to the practice of sailors on the vessel was introduced by deposition of James Dale Mitchell, a seaman on the Merle McCurdy and an admitted close friend of Reetz. The contents of the deposition were not recorded, but apparently Mr. Mitchell testified that it was common practice for sailors on the Merle McCurdy to walk forward and backward on the hatches while opening them.
Reetz has cited the following cases in support of his argument: Koepel v St Joseph Hospital, 381 Mich 440, 442-443; 163 NW2d 222 (1968); Kujawski v Boyne Mountain Lodge, Inc, 379 Mich 381, 385; 151 NW2d 794 (1967); Smith v Musgrove, 372 Mich 329, 338; 125 NW2d 869 (1964); Thelan v Mutual Benefit Health & Accident Ass’n, 304 Mich 17, 28; 7 NW2d 128 (1942); Herbert v Durgis, 276 Mich 158, 166; 267 NW 809 (1936); Curth v New York Life Ins Co, 274 Mich 513, 524-525; 265 NW 749 (1936); Moraine Products, Inc v Parke, Davis & Co, 43 Mich App 210; 203 NW2d 917 (1972).
A review of these cases demonstrates that the errors raised were either harmless or curable. Indeed, the Court in Koepel noted the distinction:
"Definitely, there is not here before us that kind of jury argument which is so prejudicial as to be beyond repair — by curative instruction. Such an argument was held to warrant reversal, though no curative request was made, in Steudle v Yellow & Checker Cab & Transfer Co, 287 Mich 1; 282 NW 879 (1938).”
Other civil cases allowing review although the issue had not properly been preserved at the trial level include Sauve v Carling Brewing Co, Inc, 374 Mich 487, 491; 132 NW2d 655 (1965); Clark v Grand Trunk W R Co, 367 Mich 396, 400; 116 NW2d 914 (1962); Sakorraphos v Eastman Kodak Stores, Inc, 367 Mich 96, 98; 116 NW2d 227 (1962); Bahr v Miller Bros Creamery, 365 Mich 415, 428; 112 NW2d 463 (1961); Martiniano v Booth, 359 Mich 680, 688; 103 NW2d 502 (1960); Hicks v B & B Distributors, Inc, 353 Mich 488, 492; 91 NW2d 882 (1958); Weller v Mancha, 353 Mich 189, 195; 91 NW2d 352 (1958); St John v Nichols, 331 Mich 148,158; 49 NW2d 113 (1951); Steudle, fn 3 supra, pp 11-13; Taliaferro v Pere Marquette R Co, 249 Mich 281, 287; 228 NW 778 (1930); Hatten v Bane, 16 Mich App 10, 13; 167 NW2d 466 (1969); Morrison v Skeels, 16 Mich App 727, 735; 168 NW2d 644 (1969). Similarly, see the criminal cases of People v Ignofo, 315 Mich 626, 636; 24 NW2d 514 (1946); People v Kelsey, 303 Mich 715, 718; 7 NW2d 120 (1942); People v Holmes, 292 Mich 212, 215; 290 NW 384 (1940); People v Bigge, 288 Mich 417, 420-421; 285 NW 5 (1939); People v Treat, 77 Mich 348, 350; 43 NW 983 (1889); People v Montevecchio, 32 Mich App 163, 166; 188 NW2d 186 (1971); People v Humphreys, 24 Mich App 411, 415; 180 NW2d 328 (1970); People v Slater, 21 Mich App 561, 566; 175 NW2d 786 (1970).
Cf. Solomon v Stewart, 184 Mich 506, 511; 151 NW 716 (1915) (incurable error; in spite of effort by trial court to cure, new trial ordered); People v Fowler, 104 Mich 449, 453; 62 NW 572 (1895) (same); Kakligian v Henry Ford Hospital, 48 Mich App 325, 329; 210 NW2d 463 (1973) (same); Lapasinskas v Quick, 17 Mich App 733, 739; 170 NW2d 318 (1969) (same). See, generally, People v Shirk, 383 Mich 180, 194; 174 NW2d 772 (1970); People v Frontera, 186 Mich 343, 346; 152 NW 1019 (1915); Saginaw Twp v Stanulis, 68 Mich App 314, 316; 242 NW2d 769 (1976); People v Degraffenreid, 19 Mich App 702, 715; 173 NW2d 317 (1969).
For non-Michigan authorities, see the cases cited in 4 CJS, Appeal and Error, § 245, fns 93-98, pp 763-764; § 297, fns 32-32.5, p 918, and 5 Am Jur 2d, Appeal and Error, § 549, fns 12-14, p 34.
Because incurable error occurred in the instant case, we need not reach the questions whether and under what circumstances an appellate court may review curable, but not properly preserved, error.
Koepel, fn 3 supra, p 443; Thelan, fn 3 supra, p 28; Herbert, fn 3 supra, p 166.
This Court has noted that in determining whether error is harmless two questions are pertinent. "First is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?” People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).
An appellate court should not require that an appellant "demonstrate affirmatively prejudice” to his cause. If on the record an appellate court is "not able to say that the jury was not diverted from the merits * * ”, nor could [they] say that the 'mischief done’ was cured by the judge’s efforts”, then a new trial should be ordered. Wayne County Road Comm’rs v GLS LeasCo, Inc, 394 Mich 126, 139; 229 NW2d 797 (1975).
It should be noted here that the trial court has a duty to assure that all parties who come before it receive a fair trial. Consequently, if counsel exceeds the proper bounds of argument, a judge should interrupt to correct counsel and take any curative measures which are necessary. See cases cited in 75 Am Jur 2d, Trial, § 211, p 294, fn 59.
See below, sections IIB and HD.
See below, section HA.
See below, section IIC.
Hill v Harbor Steel & Supply Corp, 374 Mich 194, 214; 132 NW2d 54 (1965); Leitelt Iron Works v DeVries, 369 Mich 47, 57-58; 119 NW2d 101 (1963); Vanden Bosch v Consumers Power Co, 56 Mich App 543, 555-556; 224 NW2d 900 (1974); Vanden Berg v Grand Rapids Gravel Co, 42 Mich App 722, 736; 202 NW2d 694 (1972).
See, also, Kemp v Mutual of Omaha Ins Co, 375 Mich 359, 366; 134 NW2d 696 (1965); Lebel v Swincicki, 354 Mich 427, 433; 93 NW2d 281 (1958).
According to undisputed testimony presented at trial, the maintenance and cure benefits amounted to $8.00 a day and were paid under a labor agreement entered into by Kinsman and its employees.
See Vanden Bosch, fn 13 supra.
Reetz’s attorney also mentioned in his closing argument that plaintiff "doesn’t have workman’s compensation”, but this additional reference was not enough to make the error incurable.
The improper references in the rebuttal included the following:
"I’ll say this: We know about millions of dollars being awarded for certain kinds of injuries; we know of that kind of thing; we know of millions of dollars being awarded for injuries.
"You know, for example, that in order to compensate someone for losses, you have to speak in terms of large denominations. And those large denominations don’t, within the purview of our knowledge, reach into the areas of millions of dollars.”
Both of these references were objected to and the court advised Reetz’s attorney not to refer to verdicts in other cases, yet in his subsequent efforts to "withdraw” these references, Reetz’s attorney only compounded the error by mentioning million-dollar verdicts three more times.
Finn v City of Adrian, 93 Mich 504, 508; 53 NW 614 (1892). Finn is the only Michigan case to deal with this specific issue, but other state courts have come to the same conclusion. See, generally, Anno: Propriety and prejudicial effect of reference by counsel in civil case to amount of verdict in similar cases, 15 ALR3d 1144, 1146-1149.
Richardson v Nelson, 221 Ill 254; 77 NE 583 (1906).
See, e.g., Louisville & N R Co v Pointer’s Adm’r, 113 Ky 952; 69 SW 1108 (1902); Cosar v Bemo, 282 P2d 222 (Okla, 1955).
As stated by this Court in GLS LeasCo, fn 8 supra, p 139:
"A substantial doubt regarding fairness of the trial has been raised by the egregious and repetitive nature of the misconduct of the [appellee’s] lawyer. On this record, we are not able to say that the jury was not diverted from the merits by the repetitious aspersions, nor could we say that the 'mischief done’ was cured by the judge’s efforts. To say * * * that [appellant] must 'demonstrate affirmatively prejudice’ is to misstate the test if not misplace the burden.
"It cannot be demonstrated what effect any particular statement has on a jury. Neither [appellant] nor any other litigant similarly situated can properly be expected to 'demonstrate affirmatively’ a prejudicial effect on the jury resulting from improper remarks of opposing counsel.”
As this Court stated in Smith v Jennings, 121 Mich 393, 397; 80 NW 236 (1899):
"Counsel may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the probability of the truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony.”
Accord, Commonwealth Electric Co v Rose, 214 Ill 545; 73 NE 780 (1905); Illinois C R Co v Beebe, 174 Ill 13; 50 NE 1019 (1898); In re Bean’s Will, 85 Vt 452; 82 A 734 (1912).
Ewers testified that just prior to the accident he had instructed Reetz with two other seamen present that one should never walk backwards on the hatches while attaching a cable to them in order to open them. Reetz testified that no such instructions were ever given. Reetz’s attorney commented on the fact that neither of these other seamen were called as witnesses although at the time of trial one of them worked on the same vessel as Ewers.
Fishleigh v Detroit United Ry, 205 Mich 145, 155-157; 171 NW 549 (1919).
Since there was no proof that either of these other alleged witnesses was not available to Reetz, Kinsman’s attorney could have commented on Reetz’s failure to produce them. Barringer v Arnold, 358 Mich 594, 601-605; 101 NW2d 365 (1960); Grubaugh v City of St Johns, 82 Mich App 282, 289-290; 266 NW2d 791 (1978).
"You see, I’ve dedicated my life to protecting the valuable lives of people; individuals, not corporations; but individuals and small businessmen.”
"[T]he shipowner has no concern; they still have no concern. * * * I want to tell you one thing. [In] this case * * * they’re trying to stamp him out.”
"That shipowner has two batteries of lawyers * * *. And the shipowner is able to get the very best of anything it wants, and at this juncture it has the very best of attorneys. It didn’t want to do the very best it could have done for the plaintiff seaman. But now it’s doing the very best it can do.”
At different points in his closing argument, Reetz’s attorney made the following comments:
"Steinbrenner — I don’t care what they say — Steinbrenner is the man behind all this, both the shipping companies * * [Reference to defendant corporation and present corporate owner of the ship on which plaintiff was injured. No evidence of this connection was presented at trial.]
"And it isn’t a question of 'Will [Ewers] come [to testify]?’ I mean, no matter how he puts it, Steinbrenner, I imagine Steinbrenner feels pretty good. His Yankees won last night. But Steinbrenner is the one who has the ship company, and he says, in essence, 'All right,’ he says, 'Come on, get down there and testify again.’
"And there is a conglomerate of circumstances with Kinsman Marine Transit Company. Steinbrenner is over there owning a baseball team, and Rick can’t even play kitten ball.”
Herbert v Durgis, 276 Mich 158, 165; 267 NW 809 (1936) (wealth of defendant); Kasprzak v Chapman, 197 Mich 552, 555; 164 NW 258 (1917) (same, cured by instruction); Davis v City of Adrian, 147 Mich 300, 307; 110 NW 1084 (1907) (contrasting the financial situation of parties); Merrill v Tinkler, 160 Mich 575, 579-580; 125 NW 717 (1910) (reference to $500,000 corporation); Louden v Vinton, 108 Mich 313, 320; 66 NW 222 (1896) (defendant’s wealth, defendant trying to crush plaintiff). See, generally, Anno: Counsel’s appeal to racial, religious, social, or political prejudices or prejudice against corporations as ground for a new trial or reversal, 78 ALR 1438, 1452-1455, 1474-1478, 1488; Anno: Counsel’s appeal in civil case to wealth or poverty of litigants as ground for mistrial, new trial or reversal, 32 ALR2d 9, 18-48.
Sauve v Carling Brewing Co, Inc, 374 Mich 487, 489; 132 NW2d 655 (1965) (corporate power of defendant); Sherwood v Evening News Ass’n, 256 Mich 318, 325-327; 239 NW 305 (1931) (corporate defendant with capable attorneys versus individual); Johnson v Michigan Mutual Savings Ass’n, 242 Mich 558, 564; 219 NW 736 (1928) (poverty of plaintiff); Holmes v Loud, 149 Mich 410, 415; 112 NW 1109 (1907) (wealth, character, and influence of defendants commented upon); Smith v Jennings, fn 22 supra (contrast wealth of parties).
See fn 4 supra. | [
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Ryan, J.
In this dispute between defendants and their automobile insurance company over the liability limits for uninsured motorist coverage, we are called upon to determine the extent to which the decision of private automobile insurance contract arbitrators is judicially reviewable.
Plaintiff has challenged the validity of two separate and unrelated arbitration awards, each in excess of $20,000, the policy limits of the contracts of insurance in each of the cases.
By our orders of October 10, 1980, we consolidated these cases and granted leave to appeal, directing the parties to brief the question:
"[Whether] the Court of Appeals clearly err[ed] in concluding that the arbitrators were authorized by the insurance contracts] to ignore the language of [the] contractas] precluding the insured from 'stacking’ insurance policies.”
We have concluded that the Court of Appeals erred in both cases.
I
On October 27, 1975, while driving her automobile, Nancy Gavin was involved in an accident with an uninsured motorist. She was severely injured. Ms. Gavin was the named insured under a policy of insurance covering her vehicle and writ ten by the Detroit Automobile Inter-Insurance Exchange. The liability limit for uninsured motorist coverage under the policy was the standard $20,000 per individual.
At the time of the accident, Ms. Gavin’s father was the named insured in three other policies issued by DAIIE covering three vehicles which he owned, each containing the standard $20,000 limit of liability for uninsured motorist protection. Ms. Gavin was a member of her father’s household.
On June 15, 1976, defendant Gavin filed for arbitration with the American Arbitration Association under the terms of the four insurance policies, seeking recovery for her injuries under all four of the policies.
Thereafter, DAIIE, maintaining that the insurance policy benefits could not be "stacked” after October 1, 1973, filed an action for declaratory judgment in the Wayne Circuit Court, seeking resolution of the question whether defendant Gavin was entitled to "stack” the four policies. The circuit court granted summary judgment in defendant’s favor on the ground that the stacking issue was an arbitrable question under the policies and remanded the matter to arbitration.
On May 23, 1977, the dispute was heard before a panel of arbitrators. The issues of damages and the stacking of uninsured motorist coverage were considered. Ms. Gavin took the position that she was entitled to a maximum of $80,000 in uninsured motorist benefits, the sum total of the limits of the four policies. DAIIE claimed that coverages could not be stacked and that the maximum amount available to Ms. Gavin was $20,000 under the terms of the insurance policy applicable to the car she was driving at the time of the accident.
On July 29, 1977, the arbitrators rendered an award of $39,000. Notice of the award was sent to the parties on August 2, 1977, and received on or about August 3, 1977. On August 24, 1977, the attorney for Ms. Gavin advised DAIIE that 20 days had passed subsequent to the receipt of the notice of award. Two days later, on August 26, 1977, DAIIE filed a delayed motion to vacate the award on the basis that the arbitrators had "exceeded their powers”. GCR 1963, 769.9(l)(c). Defendant Gavin responded by filing an answer and brief in opposition as well as her own motion to confirm the award.
On October 14, 1977, the circuit court entered an order denying DAIIE’s delayed motion to vacate the award and entered a judgment confirming the $39,000 award with interest and costs. DAIIE satisfied the judgment to the extent of $20,000 and appealed to the Court of Appeals. On August 24, 1978, the Court of Appeals affirmed the circuit court on the ground that once substantive arbitra-bility is determined judicial review of arbitration effectively ceases, and on the ground that DAIIE’s motion to vacate the arbitration award was not timely filed. It is from that determination that DAIIE appeals to this Court.
On March 28, 1977, while driving a 1975 Ford pickup truck, defendant Kathleen Standfest was involved in an accident caused by an uninsured motorist. The truck being driven by defendant was insured by plaintiff DAIIE and defendant was a named insured under the policy. At the time of the accident, she also owned a 1975 Toyota automobile insured by plaintiff.
Defendant filed for arbitration with the American Arbitration Association. She sought recovery under both policies of insurance issued by plaintiff. It was her position that the policies, containing uninsured motorist coverage, could be stacked. It was the position of the Detroit Automobile Inter-Insurance Exchange that coverages could not be stacked or pyramided after October 1, 1973, and that the maximum amount available to her was $20,000.
On April 6, 1978, the arbitrators rendered an award of $35,000. Notice of the award was received by DAIIE on April 10, 1978, and on April 21, 1978, it filed a motion to vacate the arbitration award in the Wayne Circuit Court. On August 16, 1978, an order was issued denying plaintiff’s motion to vacate the award, confirming the award, and entering judgment in the amount of $35,000. Plaintiff partially satisfied the judgment by paying to defendant the sum of $20,000, the policy limits of the uninsured motorist provision of the insurance contract on the 1975 Ford pickup truck.
Plaintiff filed a timely claim of appeal to the Court of Appeals. On March 5, 1980, the Court of Appeals issued a published per curiam opinion affirming the trial court reasoning that because it was "unclear” at the time of the award whether the arbitrators had the power to stack the insurance policies, their decision to exercise such power was unreviewable. From that decision DAIIE sought and was granted leave to appeal to this Court.
II
All of the policies involved in both the cases before us contain what have popularly come to be known as anti-stacking clauses. DAIIE claims that the plain language of these provisions prohibits insureds from recovering in excess of the policy limits of one applicable policy.
The first of the provisions upon which the plaintiff relies is the so-called "owned vehicle exclusion” which appears in each of the policies and provides:
"The insurance afforded by this coverage does not apply:
"(1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, except a non-owned automobile to which there is applicable and available to such insured no insurance similar to that afforded by this coverage.”
The "definitions” section of the policy define owned and non-owned automobiles as
"(d) 'owned automobile’ means the vehicle described in the declaration certificate and, as defined herein, a temporary substitute automobile, a replacement automobile, and a trailer owned by the insured;
"(i) 'non-owned automobile’ means any automobile or trailer, other than a temporary substitute automobile, not owned by, furnished or available for the frequent or regular use of the named insured, relative or other resident of the same household of such named insured, however, an automobile or trailer rented or leased by the named insured or relative for a continuous period of 30 days or less shall not be deemed to be furnished or available for frequent or regular use.”
The second provision upon which DAIIE relies as limiting its liability to $20,000 in each case is the "other insurance” provision:
"6. Other Insurance
"With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
"Subject to the foregoing paragraph, if the insured has other similar insurance available to him against a loss covered by this coverage, the exchange shall not be liable under this coverage for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss.”
In addition to these provisions the policies each contain an agreement for arbitration of any dispute related to the uninsured motorist coverage:
"In the event of disagreement and upon the written demand of either, the matter or matters upon which the insured and exchange do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The insured and the exchange each agrees to consider itself bound and to be bound by any award made by the arbitrators pursuant to this coverage. Such an award shall be a condition precedent to any action against the exchange by reason of the insurance afforded by this coverage.”
Because the foregoing arbitration clause of the insurance contracts include the provision that "judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof’, the arbitration is governed by MCL 600.5001 et seq.; MSA 27A.5001 et seq., and is said to be statutory. Section 5021 of the statute specifies that statutory arbitration is to be governed by the rules of the Supreme Court.
GCR 1963, 769.9(1) addresses the bases on which a court shall vacate an award:
"(1) Upon application of a party, the court shall vacate an award where:
"(a) The award was procured by corruption, fraud or other undue means;
"(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
"(c) The arbitrators exceeded their powers; or
"(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing as to prejudice substantially the rights of a party.
"But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”
GCR 1963, 769.10(1) declares the grounds upon which the court will modify or correct an award:
"(1) Upon application by motion made 20 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
"(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
"(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
"(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.”
Finally, the statute makes clear that the court retains all its equitable powers over arbitration proceedings. MCL 600.5035; MSA 27A.5035.
Ill
DAIIE has advanced a two-pronged argument:
First, that under this Court’s holdings the "owned vehicle exclusion” and "other insurance” clauses pertaining to uninsured motorist coverage were valid and enforceable as against these defendants at the time of the accidents and subsequent arbitration awards, and
Second, that the arbitration awards must be vacated on the basis of GCR 769.9(l)(c) because the arbitrators "exceeded their powers” by refusing to enforce the anti-stacking language of the contract from which they derived their authority.
In order to understand the DAIIE’s first argument concerning the enforceability of the "owned vehicle exclusion” and "other insurance” anti-stacking clauses, and the defendant’s response which is summarized below, it is necessary to appreciate the implications of this Court’s decisions in Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464; 201 NW2d 786 (1972), and Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972), and the automobile no-fault insurance act of 1973.
In 1972, in Blakeslee and Boettner, this Court declared that the industry-wide automobile insurance policy "other insurance” and "owned vehicle exclusion” standard clauses, if enforced, would preclude the insured from stacking coverages in violation of the policy inherent in MCL 500.3010; MSA 24.13010, effective January 1, 1966. That statute required that uninsured motorist coverage be affirmatively offered to any and all insureds covered for liability. The Court’s reasoning was that it was a violation of the policy of the uninsured motorist statute to permit insurers to take away with anti-stacking clauses what had to be offered by § 3010; viz., full uninsured motorist coverage upon every policy issued.
In 1973, however, with the enactment of the áutomobile no-fault act, § 3010 was repealed. With that repeal, the policy justification for invalidating "other insurance” and "owned vehicle exclusion” clauses announced in Boettner and Blakeslee dis appeared. Nevertheless, it was not until Bradley v Mid-Century Ins Co, 409 Mich 1, 48; 294 NW2d 141 (1980), that this Court announced "that in [automobile insurance] policies effective on or after October 1, 1973, the date of repeal of the uninsured motorist amendment, other insurance clauses which provide that damages shall be deemed not to exceed the policy limits * * * are enforceable and benefits under such policies may not be stacked”.
DAIIE argues that not only should the arbitration panels have recognized in 1977 and 1978, when the awards were made in these cases, that Blakeslee and Boettner’s underpinnings had disappeared with the repeal of § 3010, but also that absent that statutory provision providing justification for invalidating the anti-stacking clauses, they had always been enforced. DAIIE points to Rowland v DAIIE, 388 Mich 476; 201 NW2d 792 (1972), a case handed down the same day as Boettner and Blakeslee, which upheld the validity of the "owned automobile exclusion” to prevent stacking because the insurance policy construed was issued prior to the effective date of § 3010. DAIIE also relies on Horr v DAIIE, 379 Mich 562; 153 NW2d 655 (1967), in which the plaintiff sought to stack cover age in the face of an "other insurance” clause with respect to an accident which predated § 3010. Finding no reason to limit the application of the clause, the Court ordered it enforced as written.
The second and more important of DAIIE’s positions is that the arbitration awards must be vacated on the basis of GCR 1963, 769.9(l)(c) because the arbitrators "exceeded their powers” by refusing to enforce the plain language of the insurance contract from which they derived their authority.
Ms. Gavin defends on a number of grounds. She argues initially that the circuit court did not have jurisdiction over DAIIE’s delayed motion to vacate the arbitration award since it was filed more than 20 days after DAIIE received notice of the arbitration award, contrary to GCR 1963, 769.9(2). She next asserts that even if the plaintiff is properly before the court, it cannot be said with certainty that at the time of the award the arbitration panel committed legal error since the law was unsettled as to the validity of anti-stacking clauses after 1973 and before 1980. Furthermore, she argues, the anti-stacking clauses involved in this case can be distinguished from those clauses in effect prior to 1965 and declared valid by this Court. She claims that the arbitrators did not exceed their powers by ignoring the anti-stacking clauses where the law was in flux as to the validity of those clauses and the circuit court had ordered the issue remanded to arbitration. Finally, she argues that even if the arbitrators committed legal error, that does not justify vacating an award where the parties have agreed to be bound by the arbitrator’s decision.
Defendant Standfest advances a similar policy argument: that arbitration awards should not be overturned by the courts for anything less than "manifest disregard of the law” — defined by her as a refusal by the arbitrators to apply "controlling precedents” with which they have been presented.
Neither defendant directly challenges Bradley’s announced validation of "other insurance” clauses to preclude stacking. Both argue that until Bradley was handed down there was no clear legal precedent upon which the arbitration panels could have relied to determine whether or not the "other insurance” and "owned automobile exclusion” clauses should be enforced. Thus, they argue, the arbitrators were free to decide either way and that their determination should not be disturbed by this Court.
IV
We first address defendant Gavin’s claim that the circuit court lacked jurisdiction to hear DAIIE’s delayed motion to vacate the arbitration award.
GCR 1963, 769.9(2) provides that an application to vacate an award "shall be made within 20 days after delivery of a copy of the award to the applicant”. It is not disputed that defendant’s motion to vacate in Gavin was filed beyond the 20-day period. Even so, we do not read the 20-day period as defining the jurisdictional authority of the circuit court.
The 20-day rule must be examined not only for its intended purpose within the process for arbitration as established in rule 769 specifically, but also for its function as a judicially promulgated proce dural court rule generally. We are not inclined to construe time limitations found in our court rules as absolute jurisdictional barriers. The vagaries and equities in diverse judicial proceedings are far too complex to be circumscribed by all-encompassing, absolute procedural deadlines of jurisdictional finality. On occasion there may be compelling reasons for so reading the rules, but this is not one of them. We read the rule as delineating a litigant’s right to challenge an arbitration award. There is nothing in either the explicit language of the rule or the policy it is intended to effect— moving disputes in a timely fashion through the judicial process — that mandates that a circuit judge’s discretionary power to permit a party to plead beyond established time limits upon a showing of excusable neglect, GCR 1963, 108.7(2), is, or should be, curtailed.
It is apparent from an examination of the arguments made to the circuit judge that he was fully aware of defendant Gavin’s jurisdictional claim. Nevertheless, his order, drafted by defendant, gives no indication of the grounds used to "deny” DAIIE’s delayed motion to vacate. We are unwilling to assign DAIIE’s failure to timely file its motion to vacate as a reason. We are satisfied that the trial judge accepted the delayed motion, considered the merits and denied on those grounds. While the trial court’s dispositive order cited provisions of the general court rules in confirming the award but did not cite GCR 1963, 769.9(2) in denying the motion to vacate, the order states that the motion was "heard” and "denied” rather than dismissed as would be appropriate if the merits were not considered.
Having concluded that the trial judge exercised his discretion in accepting the delayed motion to vacate the award, we find no abuse in these circumstances. By entertaining the delayed motion, the circuit court gave effect to the spirit of GCR 1963, 529.1 in avoiding "the consequences of any error or defect in the proceeding which does not affect the substantial rights of the parties”. The delay here was only three days. There was no prejudice to defendant Gavin in permitting the delayed filing. Though DAIIE’s excuse for the late filing is not compelling, in light of the minimal delay and absence of prejudice, we cannot say that the trial judge abused his discretion.
V
We turn now to the central issue presented in these cases: when should the judiciary invade an arbitration award to which, by contract, the parties agreed to be "bound”?
Though we begin our analysis within the seemingly obvious guidelines established by statute and court rule, we note at the outset how faint those guidelines become in the shadows cast by the uncertain source and scope of arbitrator authority and the court’s announced retention of its full equitable powers in statutory arbitration cases.
In light of the unambiguous contractual "other insurance” provision which precludes stacking in the cases before us, the arbitration awards in excess of $20,000 which clearly were the result of stacking, and our Bradley opinion, it cannot be doubted that the arbitration panels in both cases erred as a matter of law. We do not, by that observation, suggest any bad faith or impropriety on the part of the arbitrators. What is at issue is whether the error committed is one the courts should correct.
DAIIE rests its claim that the awards should be vacated upon the provision of GCR 1963, 769.9(l)(c), and concludes that the "arbitrators exceeded their powers” in awarding more than $20,000 in each of these cases. Defendants argue that the insurance policy contracts provided for submission to arbitration of "any dispute” and that such an expression is broad enough to give the arbitrators the power to decide whether the anti-stacking clauses were valid, and that absent clearly binding precedent, wilfully ignored by the arbitrators, their award should be confirmed.
A
Citing Farr v Michigan Mutual Liability Co, 100 Mich App 190, 193; 298 NW2d 708 (1980), the defendants in both cases argue that "[t]he purpose of arbitration is to avoid protracted litigation” (emphasis added) and claim that to preserve that purpose the judiciary should not vacate a statutory arbitration award for a "mere error of law”.
If the sole or even primary goal of private arbitration were the expeditious, inexpensive, and unreviewable resolution of private disputes, we might be persuaded of the justice of the no-review rule urged by Ms. Gavin, or the Farr rule urged by Ms. Standfest, of virtual non-reviewability. But those are not the goals or purposes of statutory arbitration.
When parties enter into an agreement and spell out in a written contract the terms of their agreement, and they are so concerned with the enforcement of those terms that further provision is made within the same contract for resolution of potential disputes by arbitration, it is clear that the primary concern of the parties is the enforcement of the terms of the agreement which they have made, securing to each of them the benefits to which they are entitled under the applicable law, including their own agreement. Their secondary concern is the manner, expense, promptness, and finality with which an unintended and unexpected dispute between them will be resolved, should one develop. The defendants in the cases before us did not buy their insurance policies in order to give émployment to arbitrators or to enjoy the relative advantages of the procedural and substantive aspects of arbitration dispute resolution instead of traditional litigation. They were concerned with buying insurance coverage and, in the event of an accident, receiving the policy proceeds. The insurance company and the defendants contracted for the purpose of guaranteeing to themselves the benefits to which they are entitled under the law governing their contractual relationship: the constitution, the common law, any relevant codes and statutes, and, perhaps pre-eminent among all, the provisions of their own contracts. We are not ready to assume that the parties in these cases agreed to forego observance of a plainly applicable provision of their written contract, one which is dispositive of the only matter genuinely in dispute between them, in exchange for a speedy, thrifty, and final resolution of their differences in a way which disregards the law substantially determinative of their rights and duties. The process of dispute resolution and the procedural advantages of arbitration are the servants of the law governing the issues in dispute, not the reverse.
We think the defendant’s argument inappropriately assigns to the procedural advantages of arbitration the pre-eminence to which substantive legal correctness is entitled.
B
It is next argued by defendants, and with considerable support from several decisions of our Court of Appeals, that a rule permitting judicial review of arbitrators’ "mere errors of law” will see the trial and appellate courts inundated with a flood-tide of "appeals” of arbitration awards.
While we are respectfully appreciative of the expression of concern for docket overload, we think the anticipated crush of such "appeals” is vastly overstated.
We observe parenthetically that there is a certain irony in the notion that the judiciary should stand ready to validate statutory arbitration awards, whether lawful or unlawful, but should not insist upon legal substantive correctness because to do so would overload the courts. What, one is left to wonder, is the purpose of the courts in the first place? And if correcting controlling legal errors which have substantially affected statutory arbitration awards will inundate the courts, what does that say about the quality of such awards?
The scope of judicial review of an arbitration award is necessarily dictated in large measure by the procedural form the arbitration proceedings take. Reviewing courts can only act upon a written record. There is no requirement that a verbatim record be made of private arbitration proceedings, there are no formal requirements of procedure and practice beyond those assuring impartiality, and no findings of fact or conclusions of law are required. Thus, from the perspective of the record alone, a reviewing court’s ability to review an award is restricted to cases in which an error of law appears from the face of the award, or the terms of the contract of submission, or such documentation as the parties agree will constitute the record.
Arbitration, by its very nature, restricts meaningful legal review in the traditional sense. As a general observation, courts will be reluctant to modify or vacate an award because of the difficulty or impossibility, without speculation, of determining what caused an arbitrator to rule as he did. The informal and sometimes unorthodox procedures of the arbitration hearings, combined with the absence of a verbatim record and formal findings of fact and conclusions of law, make it virtually impossible to discern the mental path leading to an award. Reviewing courts are usually left without a plainly recognizable basis for finding substantial legal error. It is only the kind of legal error that is evident without scrutiny of intermediate mental indicia which remains reviewable, such as that involved in these cases. In many cases the arbitrator’s alleged error will be as equally attributable to alleged "unwarranted” factfinding as to asserted "error of law”. In such cases the award should be upheld since the alleged error of law cannot be shown with the requisite certainty to have been the essential basis for the challenged award and the arbitrator’s findings of fact are unreviewable.
Finally, the narrowly drawn rule we announce today for identifying errors of law of a magnitude sufficient to vitiate the validity of an award will, we think, discourage any thought that the judiciary will welcome wholesale "appeal” of arbitration awards.
The question, even more finely tuned, then is: of what dimension must an arbitrator’s error of law be to warrant sacrifice of the procedural advantages of finality in favor of judicial intervention to vacate an award on the grounds that the arbitrators "exceeded their powers”?
It must be plain to even the most casual student of this subject that some errors of law in an arbitration award may be so egregious, may so materially affect the outcome of the arbitration, may so plainly demonstrate a disregard of principles fundamental to a fair resolution of the dispute, or may so unequivocally generate a legally unsustainable result, that they cannot be said to be within the parties’ agreement to arbitrate or the arbitrator’s authority.
At the same time, it is equally plain that there are cases in which error committed by the arbitrators, either in the procedure governing the conduct of the dispute resolution or even in the application or non-application of a legal principle, is so minimal and inconsequential to the outcome of the arbitration as to be immaterial. Justice and common sense demand that we draw a line between the two and that it be drawn sufficiently close to the center of the spectrum that it cannot in fairness be said that the line is a fiction and that errors of substantive law, no matter how egregious, are never reviewable because they are the price paid for the procedural advantages of the dispute resolution.
A beginning effort was made to draw that line with the adoption of GCR 1963, 769.9. This Court wrote broadly there as to the circumstances in which courts would review an arbitration award and declared inter alia that such review would be undertaken when:
"The arbitrators exceeded their powers”.
It is time now to finish the task by announcing a standard by which all interested parties may measure whether a given misstep by arbitrators means that the "arbitrators exceeded their powers”.
Another way to state the proposition is to observe that in GCR 1963, 769.9 we declared that reviewing courts will undertake to examine the validity of an arbitration award when it is shown that in making the award the arbitrators "exceeded their powers”. In so saying, the Court was announcing the scope of review of arbitration awards. What we must decide today are the criteria to be used hereinafter to determine whether the arbitrators have exceeded their powers, and in so saying announce the standard of review.
At one theoretical pole is the argument that "mere errors of law” in an arbitration award are never judicially reviewable and that only ancillary defects in the process, or corruption, or fraud on the part of the arbitrators or the disputants, or serious misconduct by either of them, or the refusal to grant an adjournment, or the refusal to hear material evidence will justify judicial intervention. Somewhat closer to an intermediate position is the rule announced in Farr, supra, and proposed by defendant Standfest in this case, that errors by arbitrators which amount to a "manifest disregard of the law” should warrant judicial nullification of the award.
At the opposite pole is the argument that an arbitration award stands in no different place than the determination of a trial court following traditional litigation and should be reviewable according to the same standards.
We think none of those proposals are sufficiently consistent with the legislative purpose of statutory arbitration, the meaning of GCR 1963, 769.9(l)(c), the policies underlying private arbitration, or the constitutional duty of the judiciary. Before identifying a standard of review which we think is consistent with those criteria, it is appropriate to address the proper function of the judiciary in cases of statutory arbitration.
C
It is not open to debate that arbitrators do not function in a legal vacuum. All would agree that they are not free to decide the disputes submitted to them by recourse to a coin toss, or other capricious means, entirely without regard to the controlling principles of law which govern the rights and duties of the parties. Statutory arbitration is a legislatively ordained process by which the arbitration results, and the means employed to reach them, are presented for judicial validation or rejection. We have no question that in such cases the arbitrator’s decisional process is circumscribed by a requirement of adherence to the principles of law which govern the issues in dispute. Chief among them is the contract which most immediately defines the rights and duties of the parties and confers upon the arbitrator the authority to act. Plainly, arbitrators who derive their authority from the contract calling for their services are bound to act within the terms of the submission.
It is argued that in submitting a dispute to private arbitration, parties are presumed to have assumed the risk of, and waived objection to, the arbitrator’s "mere errors of law”. If that is ever true, it is certainly not true of statutory arbitra-tions.
Parties to a contract calling for statutory arbitration are not free to agree, implicitly or explicitly, that their dispute will be resolved in disregard of controlling principles of constitutional, statutory, or judge-made law, and expect the courts to approve and enforce the result.
The Michigan judiciary is not a procedural pass-through bureaucracy which may, by agreement of private disputants, be used to validate patently erroneous arbitration awards as a trade-off for docket relief and speedy, inexpensive, and unre-viewable dispute resolution. We cannot give parties the use, and benefit, and authority of the state’s judicial process which exists solely to interpret and apply the law by giving effect to an agreement to ignore the law.
If the appellate judiciary has any proper function at all, it is to correct material error. In determining whether to reduce to judgment the awards of statutory arbitrators, one of the court’s functions, perhaps its most important, is to determine whether the award rests upon an error of law of such materiality that it can be said that the arbitrators "exceeded their powers”. Thus, in statutory arbitration, the arbitrators are not free to ignore controlling principles of law, either intentionally or unintentionally, even with the consent of the parties, and expect an ultimate judicial imprimatur as well.
Thus, in discharging their duty, arbitrators can fairly be said to exceed their power whenever they act beyond the material terms of the contract from which they primarily draw their authority, or in contravention of controlling principles of law.
We note briefly that by ignoring express and unambiguous contract terms, arbitrators run an especially high risk of being found to have "exceeded their powers”. When faced on the one hand with express terms of the contract governing the dispute, and on the other with uncertainty as to the judicial enforceability of those terms, the more prudent course for the arbitrator would be to give effect to the express terms of the contract. Such an approach will obviously not insulate all awards from judicial review, but since most commercial contracts are not written to contain legislatively or judicially condemned provisions, a majority will be so insulated from an "excess of power” attack.
Having placed in what we think is proper perspective the primary purpose of statutory arbitration and the role of the judiciary in acting upon an award, we turn now to identify the magnitude of legal error which will warrant rejection of an award under GCR 1963, 769.9(l)(c).
VI
The justification for statutory arbitration as a means of dispute settlement lies both in the statute and in freedom of contract. The outer limits of that freedom, within the context of the statute which calls for the determination of a private tribunal to be confirmed and enforced by a court of law, are circumscribed by the fundamental duty of the judiciary to assure that its equitable power is exercised in keeping with the rule of law. We acknowledge without hesitation the important role commercial arbitration plays in this state and reaffirm the legitimate goals of speed, informality, and finality to which that system of dispute resolution aspires. Still, we cannot ignore the sacrifice in legal precision implicit in arbitration.
Our examination of the Michigan Supreme Court case law addressing the question of judicial review of arbitrator error discloses no well-established, widely applied standard justifying judicial invasion of an arbitration award. That is understandable, at least in those reported cases involving common-law arbitration, since equity with its vagaries and fact-dependent results is the basis for judicial intervention. What is evident from this Court’s opinions addressing the issue is that both equitable principles and the express terms of the contract which provide for arbitration play a central role in determining the finality of an arbitration award. For example, we find such statements as the following in a case where a contract committed to an arbitration panel the task of valuing property and the panel patently failed to take into account the value of water power generated by a mill on the property:
"But there is another view of this case which suggests itself to our consideration. It may be urged with some degree of plausibility, at least, that the defendant, by the terms of his submission to the arbitrators, virtually waived the objection which he now insists upon; that he thereby placed himself upon new grounds and upon new equities with the complainant upon the whole subject matter of the controversy. ,
"And it would seem that he did, so far as the submission was concerned, for that objection was not to be taken into consideration, or at least no reference was made to it in the contract of submission, and inasmuch as their determination was to be made upon personal inspection without any testimony, we cannot well see how it could have been otherwise.
"If this position could be successfully urged by the complainant, and the court be limited to the terms of the submission in their inquiry, then the complainant might be entitled to a decree upon the award, unless it should be made to appear that there was something inequitable or unjust in the award; that is to say, unless there was something in the conduct of the complainant, or some error or mistake made by the arbitrators in the execution of their power, having strict reference to the terms of the submission, the effects of which would prejudice the rights of the defendant.
"No one can read the record in this case without being strongly impressed with the idea that the defendant would suffer great injustice by being compelled to abide by this award — forty acres of land, or thereabouts, and his saw mill and water power were valued by the arbitrators at the small sum of $442 * * *. None of the witnesses on the trial valued the property at less than $1,000, and some of them as high as $1,500.
* * *
"It is manifestly clear then, that they valued the two pieces of property independently of the water power, thereby enabling the complainant, by means of his right of election, to buy or sell at the appraised value; to acquire a valuable water power without paying any consideration therefor.
"This was an error on the part of the arbitrators; one going to the merits, and one for which a court of equity would set aside the award (Van Cortlandt v Underhill, 17 Johns 405 [1819]), and one which is conclusive against the rights of this complainant for the relief he asks.” Buys v Eberhardt, 3 Mich 524, 529-531 (1855):
In a somewhat broader statement concerning the role of judicial review, it was stated in Port Huron & N R Co v Callanan, 61 Mich 22, 26; 34 NW 678 (1887), a case involving a dispute over compensation for condemned property in which the Court refused to vacate an arbitration award:
"The grounds set up are, in brief, that [the landowner] got representations before the [panel] which were false * * *.
"There is power in a court of equity to relieve against awards in some cases where there has been fraud and misconduct in the arbitrators, or they have acted under manifest mistake, and perhaps in some defined and undefined cases. But it is evident that there are great objections to any general interference by courts with awards. They are made by a tribunal of the parties’ own selection, who are, usually at least, expected to act on their own view of law and testimony more freely and less technically than courts and regular juries. They are also generally expected to frame their decisions on broad views of justice, which may sometimes deviate from the strict rules of law. It is not expected that after resorting to such private tribunals either party may repudiate their action and fall back on the courts. And equity, on whatever pretext it may intervene in such cases, does so upon the reason that the tribunal has not really acted within the lines of the duty laid upon it, and has not in fact carried out the agreement under which it has obtainéd authority to proceed. ” (Emphasis added.)
Similarly in Brush v Fisher, 70 Mich 469, 473, 478; 38 NW 446 (1888), in a dispute over an arbitration award setting the rental value of property, it was stated:
"Courts, however, favor awards made by tribunals of the parties’ own choosing, and are reluctant to set them aside, and every presumption will be made in favor of their fairness, and the burden of proof is upon the party seeking to set them aside, and the proof must be clear and strong. (Citations omitted.)
" 'It is a well-settled rule in equity,’ says Senator Allen in Van Cortlandt v Underhill, 17 Johns 420, 421 (1819) 'that an award of arbitrators of the parties’ own choosing, unless outrageously excessive on the face of it, and such as would induce every honest man, at first blush, to cry out against it, cannot be set aside, unless there be corruption, partiality, misconduct, or the use of an excess of power in the arbitrators, or fraud upon the opposite party’.” (Emphasis added.)
In M’Curdy v Daniell, 135 Midi 55, 56; 97 NW 52 (1903), this Court confronted a procedural challenge to the arbitration award — whether unanimity was necessary under the terms of submission— and concluded that the award should be set aside because "[t]he contract under which the arbitrators acted was not the contract agreed upon”. The validity of the panel’s award rested on its conformance with the parties’ agreement. Inasmuch as a less than unanimous award was not what the parties agreed to, it could not be enforced.
In Howe v Patrons’ Mutual Fire Ins Co of Michigan, 216 Mich 560, 562; 185 NW 864 (1921), the plaintiff, a member of a beneficial association called the Order Patrons of Husbandry, or the grange, purchased fire insurance from the defendant, a company whose articles of association provided:
"This company is formed for the mutual protection of its members, who are members in good standing in the Order Patrons of Husbandry, for the purpose of mutual insurance of.their property against loss by fire.”
The defendant, through its board of directors, had promulgated a bylaw proclaiming:
"Every policy-holder shall keep his dues in the subordinate grange of which he is a member fully paid up and any policy-holder who shall permit or allow his dues to remain unpaid for the space of nine months voids his policy and the company shall not be liable for loss or damage thereafter.”
The plaintiffs property was destroyed by fire at a time when his grange dues were overdue. The matter was submitted to arbitration pursuant to another article of association and the panel determined that at the time of the fire the plaintiff was not insured. The plaintiff appealed.
After consulting a number of treatises and foreign jurisdictions, the Supreme Court determined that a grange member’s "good standing” could not be destroyed merely because he was in arrears in his dues. The grange would have to take affirmative action to terminate a member’s good standing. Thus, the defendant’s bylaw was invalid because it was in conflict with the articles of association.
In examining whether the arbitration award could be vacated, Justice Clark wrote:
"But what of the error in law? The arbitrators thought the bylaw valid and for that reason alone, as stated above, reached their conclusion. It is clearly apparent on this record that but for such thought plaintiffs claim must have been allowed. May an award be set aside for such error in law?
"Our attention is called to no decision of this court precisely in point. To the rule in this state [to the effect that an arbitration award is final], this exception * * * should be added, that where it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside. This is such a case.” (Emphasis added.) Howe, pp 569, 570.
In Stowe v Mutual Home Builders Corp, 252 Mich 492, 497; 233 NW 391 (1930), this Court vacated an arbitration award resulting from resolution of a dispute over the amount owed on a building contract. The parties agreed to arbitration provided the arbitrators based their award on a determination of material and labor costs as of the construction dates. Instead, the arbitrators multiplied the cubic feet of the building by an arbitrary cost factor and ultimately found the builder indebted to the buyer.
In vacating the award, this Court stated:
"Arbitrators derive all their power and authority from the law. The agreement of arbitration entered into between the parties is the law of the case. An award based upon the agreement of arbitration must stand, in the absence of fraud or mistake, but an arbitrary award outside of the scope of the agreement of arbitration is not binding upon anyone, because it has no legal sanction. It is clear in this case the thing submitted to arbitration was the amount due on a written contract. This has not been determined.”
The foregoing cases, in addition to others not specifically set out here, while not having to do with automobile insurance policy arbitration or even the court rule and statute here involved, demonstrate the historic tension between the rightful and appropriate roles to be played by arbitrators and courts of equity in resolving disputes.
We think it is safe to conclude from this look at the past, as did the dissenters in Frazier v Ford Motor Co, 364 Mich 648, 655, 657; 112 NW2d 80 (1961), that at common law the grounds upon which the courts may vacate an arbitration award at least include: (1) fraud on the part of the arbitrator or the parties; (2) gross unfairness in the conduct of the proceedings; (3) lack of jurisdiction in the arbitrator; (4) violation of public policy. It is hardly surprising that these common-law grounds correspond very closely to the grounds now contained in GCR 1963, 769.9(1). What has not emerged from this Court’s prior statements, however, is a clearly articulated standard for gauging when arbitrators, in the language of GCR 1963, 769.9(l)(c), have "exceeded their powers”, a formulation subsuming both categories (3) and (4) above.
A number of Court of Appeals decisions have discussed various standards, and a split of authority has resulted. Visiting Court of Appeals Judge Quinnell accurately summarized the division of Court of Appeals opinion in Farr, supra, 100 Mich App 192-193:
"Defendant contends that the arbitration panel misapplied existing law and, as such, exceeded its powers within the meaning of GCR 1963, 769.9(1)(c). This Court is split on the issue of when legal errors committed by arbitrators in rendering their awards are reviewable pursuant to this court rule. Some of this Court’s decisions state that where the arbitrators have made a 'clear error of law’, the award is outside their scope of power. See Detroit Automobile Inter-Ins Exchange v Spafford, 76 Mich App 85, 87; 255 NW2d 780 (1977), lv den 402 Mich 825 (1977), and the cases cited therein! Other decisions from this Court indicate that errors of law are not reviewable unless the arbitrators acted with 'manifest disregard of the law’. Detroit Automobile Inter-Ins Exchange v Ayvazian, 62 Mich App 94, 98, fn 1; 233 NW2d 200 (1975), Lotoszinski v State Farm Mutual Automobile Ins Co, 94 Mich App 164, 166-167; 288 NW2d 369 (1979). Manifest disregard of the law permits no review for mere errors of interpretation, no matter how clear the error may be. For there to be 'manifest disregard of the law’ the arbitrators must have been presented with controlling precedents which they refused to apply. In our opinion, the manifest disregard of the law standard is the one which must be applied in reviewing arbitration decisions. The purpose of arbitration is to avoid protracted litigation. However, a rule of review based on 'clear error’ would not promote this purpose in too many cases. Whether 'clear legal error’ has been committed is far more open' to debate in a given case than whether the arbitrators acted in 'manifest disregard of the law’. An advocate would have a much easier time convincing himself of an arbitrator’s 'clear legal error’ as opposed to a 'manifest disregard of the law’. Thus, the 'clear legal error’ standard does not serve the rationale underlying arbitration as well as the 'manifest disregard of the law’ standard.”
In Farr, the Court of Appeals faced the identical issue we now address and concluded that because the validity of anti-stacking clauses was unclear at the time the arbitrators made their award, the courts could not upset the award. In making that judgment, the Court of Appeals made a superior commitment to what it perceived to be "the purpose” of arbitration and did so as a policy choice in the absence of compelling precedent from the Supremo Court.
We think that Justice Clark’s formulation in this Court’s opinion in Howe, describing the common-law duty of courts of equity in acting upon private arbitration awards, more nearly reflects the correct standard for judicial review of a statutory arbitration award as well, than anything written by Michigan’s appellate judiciary before or since. It is restated here for ease of reference:
"[W]here it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside.” Howe, p 570.
We accept and adopt for application to automobile insurance policy statutory arbitration this formulation as reflecting the proper role of the courts in acting upon a motion to confirm or vacate arbitration awards.
We do not wish to be understood as subscribing to a "clear error” standard as that phrase has been used in some Court of Appeals decisions, notably DAIIE v Spafford, 76 Mich App 85; 255 NW2d 780 (1977), and DAIIE v McMillan, 97 Mich App 687; 296 NW2d 147 (1980). It is an imprecise and particularly confusing concept when used to attempt to describe the kind of legal error which warrants judicial intervention in arbitration results.
The character or seriousness of an error of law which will invite judicial action to vacate an arbitration award under the formula we announce today must be error so material or so substantial as to have governed the award, and but for which the award would have been substantially otherwise.
Reviewing courts should focus upon the materiality of the legal error to test whether judicial disapproval is warranted, and not upon the question whether the rule of law was so well settled, widely known, or easily understood that the arbitrators should have known of it. Arbitrators are not necessarily trained in the law and are men and women of varying ability and expertise.
In the cases before us, the validity of the express contract terms was essentially a legal question. Questions of law are not primarily or even ordinarily within the province of arbitration. For the most part, arbitrators are concerned with factfind-ing. Because a degree of efficiency can be attained by permitting arbitrators to decide legal questions, we do not expect them to refrain from making the attempt when required to do so by the case. Nevertheless, just as a judge exceeds his power when he decides a case contrary to controlling principle of law, so does an arbitrator.
Thus, whether or not the Gavin and Standfast arbitration panels should have had the prescience to anticipate our decision in Bradley, supra, that unambiguous "other insurance” clauses were valid to preclude stacking is entirely beside the point. We will modify the awards hot because the rule ultimately announced in Bradley was obvious, inevitable, or "clear”, but because it is evident from the face of the awards that the arbitrators in those cases erred in not enforcing the anti-stacking provisions of the insurance contract, the terms of which primarily governed the controversy, and that but for such error the awards would have been substantially different.
While we announce today a broader role for the judiciary in statutory arbitration cases than is generally assumed in other jurisdictions, we are confident that in doing so we not only properly define the function of courts of equity in such cases, but we secure to litigants who come to the courts for judicial confirmation and enforcement of arbitration results, that which we believe they agreed to: an arbitration award rendered according to the law which governs their dispute.
We hold that in disregarding the anti-stacking provisions of the "other insurance” clause of the contract from which, in part, they derived their powers, the arbitrators in both cases committed errors of law so substantial that, but for such errors, the awards must have been substantially different. In so doing, the arbitrators "exceeded their powers”. GCR 1963, 769.9(l)(c).
Therefore, we reverse the decision of the Court of Appeals in each case, set aside the judgments entered in the Wayne Circuit Court, reduce the award to each defendant to $20,000, confirm that award, and remand to the circuit court to enter judgment accordingly.I **********
Fitzgerald, C.J., and Williams and Coleman, JJ., concurred with Ryan, J.
DAIIE v Gavin, 409 Mich 921 (1980); DAIIE v Standfest, 409 Mich 922 (1980).
DAIIE v Gavin, Court of Appeals unpublished opinion per curiam, Docket No. 77-4254, released August 24, 1978. DAIIE v Standfest, 96 Mich App 71; 292 NW2d 164 (1980).
MCL 600.5001, subds (1) and (2); MSA 27A.5001, subds (1) and (2) states:
"(1) All persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of 1 or more arbitrators, any controversy existing between them, which might be the subject of a civil action, except as herein otherwise provided, and may, in such submission, agree that a judgment of any circuit court shall be rendered upon the award made pursuant to such submission.
"(2) A provision in a written contract to settle by arbitration under this chapter, a controversy thereafter arising between the parties to the contract, with relation thereto, and in which it is agreed that a judgment of any circuit court may be rendered upon the award pursuant to such agreement, shall be valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the rescission or revocation of any contract. Such an agreement shall stand as a submission to arbitration of any controversy arising under said contract not expressly exempt from arbitration by the terms of the contract. Any arbitration had in pursuance of such agreement shall proceed and the award reached thereby shall be enforced under this chapter.”
We expressly refrained from deciding whether the "owned vehicle exclusion” could be used to preclude stacking. See Bradley, pp 48-49, fn 55.
Although we have since ruled that the "owned vehicle exclusion” is a valid exclusionary clause limiting insurer liability for medical and disability expenses in accidents occurring before the no-fault insurance act took effect, Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355; 314 NW2d 440 (1982), there is no clear majority for the validity of such exclusionary clauses to residual liability coverage in post-no-fault cases, State Farm Mutual Automobile Ins Co v Ruuska, 412 Mich 321; 314 NW2d 184 (1982). However, because the "other insurance” clause is clearly enforceable, the validity of the arbitration awards in the cases before us can be evaluated in its light alone.
Defendant Gavin asserts that Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), implied that the 20-day rule was jurisdictional. That implication is not fairly drawn. What was said in Nickerson, p 328, is repeated today; the party challenging an arbitration award in circuit court loses only the right to proceed where his motion is untimely filed. The court’s jurisdiction over the challenge is not lost because the motion to vacate was untimely filed. The court may, in its discretion, permit the untimely motion.
The substantive portion of the judgment order in full provided:
"At a session of said court, held in the City-County Building, Detroit, Michigan, on October 14,1977.
"Present: Honorable Judge Robert L. Shipper, Circuit Court Judge.
"The Detroit Automobile Inter-Insurance Exchange’s delayed motion to vacate arbitration award and Nancy M. Gavin’s motion for confirmation of arbitrator’s award having come on to be heard, and the court being otherwise fully advised in the premises;
"It is hereby ordered that the Detroit Automobile Inter-Insurance Exchange’s delayed motion vacating arbitration award is denied.
"It is further ordered and adjudged that the arbitrators’ award is confirmed pursuant to GCR 769.8 and 769.9(4) and judgment in the amount of thirty-nine thousand ($39,000.00) dollars is entered in favor of Nancy M. Gavin and against the Detroit Automobile Inter-Insurance Exchange, together with interest from July 29, 1977, and costs to be taxed.
"Judge Robert L. Shipper
"Circuit Judge for Judge Boewe”
DAIIE’s excuse was that at the time of its receipt of notice of the award, the attorney handling the matter for DAIIE was in the process of severing his employment relationship with the exchange in order to move to California.
In the course of that disruption, the file was misplaced between August 3, 1977, and August 24, 1977, when defendant notified DAIIE that the 20-day period had run.
We reject outright defendant Gavin’s assertion that the language of the "other insurance” clause contained in these policies can be read to render DAIIE liable for the "total applicable limits of liability of all valid and collectible insurance against such loss”. The plain language of the two-paragraph clause does not bear such a reading. It clearly precludes stacking.
See also Acme Cut Stone Co v New Center Development Corp, 281 Mich 32; 274 NW 700 (1937) (award upheld — arbitrator adhered to the bounds of the submission).
See, additionally, Corder v Michigan Mutual Hail Ins Co, 279 Mich 697; 273 NW 320 (1937); Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958); Frazier v Ford Motor Co, 364 Mich 648; 112 NW2d 80 (1961).
"1 The writer of this opinion acknowledges that he signed the opinion in Spafford, which used the 'clear legal error of law’ standard of review of an arbitrator’s decision. The 'manifest disregard of the law’ standard was not briefed, argued or discussed in Spafford."
There is a large body of case law from other jurisdictions, including the federal courts, construing the federal arbitration act — a statute substantially the same as our statute and court rule — which professes a very limited judicial review of arbitration awards. See, e.g., Wilko v Swan, 346 US 427, 436-437; 74 S Ct 182; 98 L Ed 168 (1953); Burchell v Marsh, 58 US (17 How) 344, 349-350; 15 L Ed 96 (1855); Office of Supply, Government of the Republic of South Korea v New York Navigation Co, 469 F2d 377, 379-380 (CA 2, 1972); Lewis v Greyhound Lines-East, 181 US App DC 116; 555 F2d 1053 (1977) (award not vacated in absence of procedural flaws), cert den 434 US 997; 98 S Ct 635; 54 L Ed 2d 491 (1977); Sobel v Hertz, Warner & Co, 469 F2d 1211 (CA 2, 1972) (mere error of law not grounds for vacation); Raytheon Co v Rheem Mfg Co, 322 F2d 173 (CA 9, 1963) (arbitration award cannot be set aside for misinterpretation of law); DeMello v Souza, 36 Cal App 3d 79; 111 Cal Rptr 274 (1973) (arbitrator’s error of fact not matter for judicial review); Durand v Wilshire Ins Co, 270 Cal App 2d 58; 75 Cal Rptr 415 (1969) (erroneous conclusion based upon error of fact or law reached within scope of arbitration agreement held not grounds for vacation); Del Bianco & Associates, Inc v Adam, 6 Ill App 3d 286; 285 NE2d 480 (1972) (error of law or mistake of fact not grounds for vacation of award), cert den 410 US 955; 93 S Ct 1421; 35 L Ed 2d 688 (1973); SCM Corp v Fisher Park Lane Co, 40 NY2d 788; 390 NYS2d 398; 358 NE2d 1024 (1976) (awards not subject to review for error of law or fact); Associated Teachers of Huntington, Inc v Huntington Bd of Ed, 33 NY2d 229; 351 NYS2d 670; 306 NE2d 791 (1973) (even where arbitrators state intention to apply correct law and then misapply it, award will not be set aside).
Though no formal motion was denominated a motion to correct or modify pursuant to GCR 1963, 769.10, it is clear that the relief sought by DAIIE in its motions to vacate is a partial vacation of both awards, the amounts in excess of $20,000. There existing no logical distinction between a partial vacation and a modification, we treat the motions as falling within the scope of both GCR 1963, 769.9 and GCR 1963, 769.10. | [
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Williams, J.
Introduction
The issue presented in this case is whether the probate court erred in invalidating an antenuptial agreement which totally eliminated the widow’s marital interest in her husband’s property, by recognizing a presumption of non-disclosure of assets against the decedent husband under the following facts.
The specific facts which gave rise to the presumption of non-disclosure are 1) the lack of any provision for the widow in the agreement, 2) the deceased husband’s very ample estate compared to the widow’s, 3) the modest lifestyle of the decedent husband and the lack of any outward appearance of wealth, 4) no indication, in general or specific terms, that either party was informed as to the property interests of the other, 5) the lack of independent counsel representing the widow, 6) the attorney who drafted the agreement could only testify as to his normal procedure which included a discussion of assets, but did not include the disclosure of undisclosed assets, and 7) the scrivener testified that he was not concerned with what the widow would get.
Antenuptial agreements are, in general, favored by public policy. In order to be valid, however, there must be fair disclosure of assets by both parties. We agree with the Court of Appeals and hold that, generally, the burden of proof is on the party asserting the invalidity. However, we agree with the probate court and hold that the facts in this case gave rise to a rebuttable presumption of non-disclosure by the husband and, thus, that it was incumbent upon his administratrix to offer evidence to rebut this presumption. She, however, failed to do so. We therefore reverse the judgment of the Court of Appeals for failing to recognize the rebuttable presumption issue and reinstate the judgment of the probate court.
I. Facts
On December 15, 1976, Charles Benker died intestate leaving as his sole heirs at law his widow, Elizabeth Benker, and Ruth Counts, a daughter from a previous marriage, who was appointed administratrix of his estate. Three days prior to the marriage, Mrs. Benker, defendant in this case, and the decedent entered into an ante-nuptial agreement, the subject of this litigation.
The decedent and his widow each had been married once before, and each had one child from the previous marriage. The couple was married in 1963 after knowing each other for over 20 years through employment at Ex-Cell-0 Corporation. Decedent was in charge of maintenance prior to retiring in 1959, and defendant worked in maintenance and later in the inspection department. Decedent was 71 years old when the marriage took place, and defendant was 60 years old.
Decedent left a very substantial estate when he died, $640,500, of which $221,500 was in a trust account at First Federal Savings and Loan Association for the benefit of his daughter. Despite the worth of his estate, decedent had a modest lifestyle. He did not display his wealth at all and was somewhat secretive about it. He lived in a most modest neighborhood in Highland Park, his house was valued at $3,000, and he drove a car worth approximately $500. His daughter testified that she did not realize the extent of her father’s estate.
She first became involved in assessing her father’s wealth when she was appointed guardian on April 14, 1976, when decedent was adjudicated legally incompetent by the Wayne County Probate Court. At that time, she estimated his estate at $9,500.
The surviving widow has also been adjudicated legally incompetent and therefore was unavailable to testify at the trial. On September 28, 1976, her son was appointed guardian with assets of the guardianship estate being estimated at $110,000. The guardianship continues in effect.
The antenuptial agreement at issue here was signed by Elizabeth Stewart and Charles Benker on May 29, 1963. The agreement contains no reference to the assets of either party, generally or specifically, nor does it make any statement at all regarding disclosure of assets by the parties to the agreement. The agreement provides for a complete waiver of rights by the widow to take by the laws of descent and distribution, provided by the following language of the contract:
"(8) The party of the second part likewise waives all right of inheritance, under the laws of descent and distribution of property of any jurisdiction in or to any estate or property of the party of the first part dying intestate, and does also waive all rights as a widow, in the event of death of the party of the first part, to elect to take against or contrary to any last will and testament or codicil executed by the party of the first part and admitted to probate.”
But the agreement failed to state whether there was an understanding on her part that the husband’s rights in her estate were far less substantial than the wife’s rights in his estate and that therefore she was waiving far more than he was.
The attorney who prepared the agreement, Mr. William Dye, testified in a deposition on September 12, 1977. He could not recall specifically the steps taken for this particular agreement, but testified as to his "normal procedure” in such a situation which would include a discussion of assets. Mr. Dye later testified as follows in response to a question asking how he insured that there was full disclosure of assets by each party:
"Well, I didn’t press the full disclosure matter, for the simple reason that once you outline to your clients the purpose of a prenuptial agreement, then they disclose their assets to you. You don’t press them for undisclosed assets, or at least I didn’t.”
Mr. Dye also stated that the main objective of an antenuptial agreement, in general, was to retain the status quo of each party, and that he was not concerned with what Mrs. Benker would receive upon Mr. Benker’s death. He represented both parties in executing this agreement and felt that he had an obligation to make sure that this was "an arm’s length transaction” between the two of them. He was acquainted with Mr. Benker through his father’s associátion with Ex-Cell-0 Corporation as general counsel. Mr. Dye could not recall much of the events leading up to the execution of the subject agreement.
The antenuptial agreement became the subject of controversy when plaintiff, as administratrix of her father’s estate, petitioned the probate court to determine the validity of the antenuptial agreement and to instruct as to the assignment of the residue of the estate. After hearing testimony on the issue, the probate court allowed the parties to submit briefs as to which party had the burden of proof and whether there was a presumption of non-disclosure on the part of the deceased husband in light of the facts presented. On January 9, 1978, the probate court, without deciding which party had the burden of proof in attacking the validity of antenuptial agreements for failure of disclosure, held that there was a presumption of non-disclosure and that the evidence presented was not sufficient to rebut the presumption. Therefore, the agreement was held to be invalid. This decision was appealed to the circuit court which summarily affirmed. The Court of Appeals reversed and remanded, holding that the trial court erred by not allocating the burden of proof to defendant widow, the party seeking to invalidate the antenuptial contract. 97 Mich App 754; 296 NW2d 167 (1980). We granted leave to appeal on December 19, 1980. 410 Mich 868.
II. Antenuptial Agreement and the Duty of Disclosure
It is now generally recognized that antenuptial agreements which relate to the parties’ rights upon the death of one of the parties are favored by public policy. MCL 557.28; MSA 26.165(8) recognizes such contracts and provides that:
"A contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place.”
Such agreements, while recognized as valid instruments, are of a special nature because of the fact that they originate between parties contemplating marriage. This relationship is one of extreme mutual confidence and, thus, presents a unique situation unlike the ordinary commercial contract situation where the parties deal at arm’s length.
In order for an antenuptial agreement to be valid, it must be fair, equitable, and reasonable in view of the surrounding facts and circumstances. It must be entered into voluntarily by both parties, with each understanding his or her rights and the extent of the waiver of such rights. Hocken-berry v Donovan, 170 Mich 370, 380; 136 NW 389 (1912). Antenuptial agreements give rise to a special duty of disclosure not required in ordinary contract relationships so that the parties will be fully informed before entering into such agreements. The Legislature has recognized the validity of agreements that provide for the waiver of rights by a surviving spouse in the decedent’s estate, but specifically requires fair disclosure:
"The rights of the surviving spouse to an estate or to dower under sections 1 to 29 of chapter 66 of the Revised Statutes of 1846, as amended, homestead allowance, election, exempt property, and family allowance or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.” MCL 700.291; MSA 27.5291. (Emphasis added.)
The duty of disclosure is recognized by numerous jurisdictions and is succinctly described in Anno: Setting Aside Antenuptial Agreement Based on Non-Disclosure, 27 ALR2d 883, 886, as follows:
"Where, as is usually the case, the parties to an antenuptial property settlement occupy a confidential relationship toward one another, and the agreement substantially affects the property interests which one or the other would otherwise acquire by the marriage, each is under an affirmative duty to disclose to the other the nature of his property interests so that the effect of the agreement can be understandingly assessed, and in the absence of such a full and frank disclosure, the courts will refuse to give effect to such an agreement attacked by the spouse to whom disclosure should have been made.” (Footnotes omitted.)
III. Burden of Proof in Charging NonDisclosure
It is clear that there is a duty to disclose one’s assets to the other party entering into an antenup-tial agreement. MCL 700.291; MSA 27.5291. 41 Am Jur 2d, Husband and Wife, § 297, pp 244-245. The Court of Appeals here properly interpreted the law of this state as placing the burden of proof on the party seeking to invalidate the agreement on the basis of fraud.
The Court of Appeals relied on Richard v Detroit Trust Co, 269 Mich 411; 257 NW 725 (1934). In Richard, p 416, there was an analysis of the prior case law raising similar questions with this conclusion:
"A consideration of these authorities shows that the law of this State recognizes the existence of a confidential relationship requiring good faith, fair dealings, and open disclosure, but places upon the party charging fraud and a breach of conñdence the burden of proof.” (Emphasis added.)
In this case, the probate court distinguished Richard by stating that fraud had not been raised as an issue in these proceedings. It is difficult to support such a fine distinction given the language in Richard and the fact that non-disclosure when there is a duty to disclose is a form of fraud. See United States Fidelity & Guaranty Co v Black, 412 Mich 99; 313 NW2d 77 (1981). Clearly, in an antenuptial agreement there is a duty to disclose, MCL 700.291; MSA 27.5291, and, thus, while not labeled as a "fraud” claim, the burden of proof should be placed on the party alleging the invalidity.
We reaffirm, therefore, that the burden of proof rests on the party seeking to invalidate the ante-nuptial agreement because of non-disclosure by the other party. However, this does not end our analysis. We must, as the Court of Appeals failed to do, address the question whether there is a presumption of non-disclosure in certain cases, specifically the case at hand.
IV. Presumption op Non-Disclosure
A
Even if the burden of proof is on the party seeking to invalidate the antenuptial agreement on the basis of non-disclosure, there will be instances where there is sufficient evidence to raise a rebuttable presumption of non-disclosure. Many jurisdictions apply such a presumption when the antenuptial agreement provides a disproportionately small allowance for the wife.
"Where a confidential relationship exists between the parties to an antenuptial contract requiring the exercise of the utmost good faith in dealings between them, if no provision is made for the wife therein, or if the provision secured for her is inequitable, unjust, and unreasonably disproportionate to the means of the intended husband, taking into consideration the rights given her by law in the property of her husband in the event of his death prior to her death, then a presumption arises that the intended wife was not fully informed as to the value and extent of her prospective husband’s property, and the courts will refuse to give elfect to the contract, in the absence of proof affirmatively disclosing that proper disclosure was in fact made.” 27 ALR2d 891-892. See 27 ALR2d 873 and cases cited therein.
We do not here adopt a presumption of nondisclosure based merely on a disproportionately small allowance for the wife, but hold that the presumption is properly invoked when the facts are, in general, as follows. One, the antenuptial agreement provides for a complete waiver of all rights of inheritance and rights of election by the widow and does not make any provision for her upon her husband’s death. Two, the husband’s estate is very ample in comparison to the wife’s. Three, the decedent was shown to be rather secretive about his financial affairs, lived very modestly, and gave no outward appearance of his wealth. Four, the agreement makes no reference whatsoever, in general or specific terms, to whether the parties had been fully informed of the property interests held by each other. Five, the widow was not represented by independent counsel. Six, the attorney who drafted the subject agreement testified in a deposition as to his normal procedure in such a matter and stated that he normally would discuss the assets of the parties, but that he did not press the full disclosure matter. Seven, the scrivener testified that he was not concerned with what the widow would get. These factors support the trial judge’s decision to invoke the presumption of non-disclosure. A discussion of each of these factors is helpful._
1) and 2). The antenuptial agreement provides for a complete waiver by the widow of her rights in her husband’s estate and her right of election. There was no provision whatsoever to compensate her for the waiver of her rights given by law in the husband’s estate. The lack of any provision whatsoever, especially considering the size of the decedent’s estate and the extent. of the widow’s rights in the property absent the antenuptial agreement, along with the other facts in this case, gives rise to a presumption of non-disclosure. See Juhasz v Juhasz, 134 Ohio St 257, 263-265; 16 NE2d 328 (1938).
It should also be considered that the parties’ estates were not of equal value. Mr. Benker’s estate turned out to be worth $640,500, while Mrs. Benker’s estate was estimated at $110,000. Thus, the parties were not in equal positions when executing the antenuptial agreement. Clearly, Mrs. Benker waived rights in her spouse’s estate which turned out to be of a much greater value than the rights waived by the decedent. An antenuptial agreement that so substantially alters a person’s rights must be entered into with full knowledge and understanding. If the contract is so entered into, the lack of provision for the party waiving rights will not invalidate the agreement. See 41 Am Jur 2d, Husband & Wife, § 298, p 245. But when there are allegations of non-disclosure along with no provision at alb for the widow, the agreement and surrounding circumstances must be carefully scrutinized. See Rosenberg v Lipnick, 377 Mass 666; 389 NE2d 385 (1979).
3) The decedent in this case was shown to be rather secretive about his financial affairs, lived very modestly, and gave no outward appearance of his wealth. These facts, along with the others discussed, support the application of the presumption of non-disclosure. The property status of the decedent was not such that Mrs. Benker should have been aware of his wealth at the time of executing the agreement. See 27 ALR2d 898-901 and cases cited therein. It was not as if he had a general reputation for wealth and therefore that she should have been fully aware of the value of his assets regardless of disclosure on his part. See Hockenberry, 170 Mich 370, 378. It was quite the contrary. He lived in a $3,000 home in a lower-middle-class neighborhood in Highland Park, drove a car valued at $500, and had a modest lifestyle. His daughter testified that they had always lived modestly and that she was not aware of the trust left in her name nor of the total value of her father’s estate. When the guardianship papers were filed in 1976 for Mr. Benker, his assets were valued at $9,500; yet he left an estate valued at $640,500 upon his death. We agree with the probate court that it was not sufficient that the decedent and defendant were both employed by Ex-Cell-0 Corporation to support an argument that she should have been aware of his wealth. The argument that Mrs. Benker was or should have been aware of the decedent’s wealth from other sources making the duty to disclose a mere ritual is not supported by the evidence.
4) The antenuptial agreement made no reference whatsoever, in general or specific terms, to whether the parties had been fully informed of the property interests held by each other. Such a statement is usually included in an antenuptial agreement to avoid a challenge at a later date. See Snyder Estate, 375 Pa 185; 100 A2d 67 (1953). Some contracts specifically itemize the property of the parties so that there is no manner in which to challenge the agreement on the basis of non-disclosure. Neither approach was taken here. The ante-nuptial agreement makes absolutely no mention of disclosure of assets by the parties. That is not to say that the inclusion or absence of such a statement or inventory is necessarily conclusive, but it is a factor to be weighed. See 27 ALR2d 895-898 and cases cited therein.
5) The widow was not represented by independent counsel. Mr. Dye represented both parties in drafting and executing the antenuptial agreement. Representation of both parties by one attorney is allowed by the Code of Professional Responsibility
"if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” DR 5-105(C).
There is no indication whether such disclosure was made, or whether the wife was fully informed as to the extent of the rights she was waiving, which were far greater than those waived by her husband. The fact that she did not have independent counsel before signing an antenuptial agreement that totally eliminated any right in her husband’s estate, along with the other factors in this case, supports the application of the presumption of non-disclosure. See Allison v Stevens, 269 Ala 288; 112 So 2d 451 (1959).
6) The attorney who drafted the subject agreement testified in a deposition as to his normal procedure in such a matter and stated that he usually would discuss the assets of the parties, but that he did not press the full disclosure matter. Mr. Dye did not recall the specifics of the circumstances surrounding the execution of the antenup-tial agreement and, therefore, he testified as to his normal procedure in handling such a transaction. He stated that he normally would discuss the assets and review the document with the parties. He later stated, however, that, he did not press for undisclosed assets. This statement, coupled with the fact that Mrs. Benker did not have independent counsel and with the fact that Mr. Dye felt this was an arm’s length transaction between the two of them, raises some doubt as to whether there was an adequate disclosure of assets. Mr. Dye was the only person involved in the transaction who was available to testify as to the events surrounding the execution of the antenuptial contract because Mrs. Benker has been declared legally incompetent and Mr. Benker is deceased. The evidence regarding disclosure is weak, especially considering that Mr. Dye could not recall the specifics but could only testify as to his normal procedure.
7) The attorney who was the only one involved in the drafting of the antenuptial agreement testified that his interest was to see that the parties retained the status quo and that he was not concerned with what the widow would get. This attitude along with the scrivener’s lack of interest in the disclosure ^of possible undisclosed assets and the fact that the wife-to-be was not represented by independent counsel combine to create a climate where full and fair disclosure might not have been obtained, thereby warranting a rebuttable presumption of non-disclosure.
B
The presumption of non-disclosure was properly invoked in this case on the basis of all the facts discussed earlier. We must now address the nature of this presumption and its effect. The presumption of non-disclosure is a rebuttable one. Once the presumption is proper, it is incumbent upon the opposite party to introduce evidence to rebut the presumption. For a discussion of presumptions, see In re Wood Estate, 374 Mich 278; 132 NW2d 35 (1965). We agree with the trial court that the rebuttal evidence presented was not sufficient to overcome the presumption.
The evidence presented in this case consisted of the testimony of Mrs. Counts, the daughter of the deceased, the deposition testimony of Mr. Dye, the attorney who drafted the agreement, and the testimony of Mr. Stewart, the son of Mrs. Benker. The evidence presented did not contain facts sufficient to rebut the presumption of non-disclosure applicable in this case. Mrs. Counts testified that she was not aware of any of her father’s financial matters and only became aware of the safe in his home (where most of his assets were kept) when she was informed about it when Mr. Benker went on a trip to Germany. Mr. Stewart testified that he was aware of the antenuptial agreement, but had never seen it. He was also not aware of his mother’s financial affairs. The testimony of the daughter and son shed little light on whether there was or was not a disclosure of assets when the ante-nuptial agreement was executed.
The only other testimony was that given by Mr. Dye, the attorney who drafted the agreement. His testimony did not establish what the circumstances surrounding this particular transaction were, and even as to his normal procedure the testimony was ambiguous. He did testify that he would normally discuss the parties’ assets and go over the agreement with them point by point. But as to the possibility of undisclosed assets, he testified that he did not press the matter. Thus, the evidence presented is not enough to rebut the presumption of non-disclosure. We therefore hold that the antenuptial agreement entered into between the decedent and the defendant is invalid on the basis of the fact that there was not sufficient evidence to rebut the presumption of nondisclosure.
Conclusion
We hold: (1) that the burden of proof of breach of fair disclosure falls upon the party charging it, and (2) that under the facts of this case the required proof by the party charging breach of fair disclosure was supported by a rebuttable presumption of non-disclosure. We further find that there were not sufficient facts to rebut this presumption of non-disclosure of assets. Therefore, we hold that the probate court properly held the antenuptial agreement to be invalid.
The judgment of the Court of Appeals is reversed.
Fitzgerald, C.J., and Kavanagh, Levin, Coleman, and Ryan, JJ., concurred with Williams, J.
Riley, J., took no part in the decision of this case.
Appendix
"Antenuptial Contract
"(Dated May 29, 1963)
"This antenuptial contract, made and entered into by and between Charles Benker, of 155 Geneva, Highland Park, Michigan, party of the first part, and Elizabeth Stewart, of 10 Ferris Avenue (Apt. 218), Highland Park, Michigan, party of the second part,
"Witnesseth:
"(1) Party of the first part and the party of the second part contemplate legal marriage, and it is agreed between them that all the properties of every name or nature, including expectancies, future interests and remainders, whether such properties are real or personal and wheresoever situated, belonging to the party of the first part before marriage, shall be and remain his own individual estate, and that this shall include all interest, rents and profits which may in time derive or accrue or result in any manner therefrom, either by way of income or from increase in or addition to capital.
"(2) All properties of every name or nature, real or personal, likewise including expectancies, future interests and remainders, wheresoever situated which belong to the party of the second part before marriage, shall be and remain her own individual estate, and this shall include all interest, rents and profits which may in time derive or accrue or result in any manner therefrom, either by way of income or from increase in or additions to capital.
"(3) It is agreed between the party of the first part and the party of the second part that each will sign with the other, all title papers, deeds, mortgages, consents, leases, assignments or other documents necessary to transfer, convery [sic] or encumber property of either, or any interest therein, when transferred or conveyed, or when encumbered or sold, and each agrees promptly to execute upon request any and all such documents, and acknowledge the same when necessary.
"(4) It is further agreed by the party of the first part and he does and will, from his own personal estate and his own subsequent earnings and accumulations, assume all necessary expense of the support and maintenance of the party of the second part.
"(5) It is further agreed that nothing herein contained shall be construed to be a bar to either party to this agreement giving any property of which such party may be the owner, to the other party by inter vivos gift, gift in trust, testamentary disposition or otherwise; it being understood that each party to this agreement shall control his or her own separate estate as described herein, and do with the properties thereof whatever they desire, including disposition by gift, gift in trust, or by testament, the same as either could or would do if no marriage relation existed between them.
"(6) All estate and property which hereafter may come to or accrue to either of the parties hereto to the exclusion of the other by reason of inheritance, gift, vesting, bequest or devise, shall be held and construed to be held as such party’s own separate estate and property to the same extent as property owned prior to the contemplated marriage.
"(7) The party of the first part hereby waives all right of inheritance under the laws of descent and distribution of property of any jurisdiction, in or to any estate or property of the party of the second part dying intéstate.
"(8) The party of the second part likewise waives all right of inheritance, under the laws of descent and distribution of property of any jurisdiction in or to any estate or property of the party of the first part dying intestate, and does also waive all rights as a widow, in the event of death of the party of the first part, to elect to take against or contrary to any last will and testament or codicil executed by the party of the first part and admitted to probate.
"(9) Nothing herein contained shall affect the rights of the parties with respect to (a) property acquired after marriage to which title is taken as joint owners, joint tenants or as tenants by the entirety; or property presently owned by either which, after marriage, may be placed in joint ownership, joint tenancy, or tenancy by the entirety by voluntary act of the parties; or (b) either of them; or (c) proceeds of life insurance upon the life of either party where disposal of such proceeds is provided by the terms of the insurance policy, or (d) social security benefits; or (e) the right of each of the parties to be free to make such testamentary disposition with respect to such party’s separate property as such party elects, whether or not to the exclusion of the other.
"(10) Each of the parties shall be obligated to pay all property taxes properly chargeable to the property of such party. In the event of parties filing joint return for federal income tax purposes, the party of the first part shall be chargeable with the payment of any tax imposed upon such filing.
"(11) In the event of divorce or legal separation, each of the parties waives all right to any award or share of the property of the other, and all alimony.
"(12) Each party agrees to pay his (or her) own debts, except while the marriage continues the party of the first part shall be liable for all debts or obligations with respect to which the laws of the jurisdiction where the parties reside impose upon a husband with respect to the support and maintenance of a wife.
"(13) This agreement and the rights of the parties thereunder shall be construed as a Michigan contract and the laws of that state shall govern in the interpretation thereof, regardless of the place of execution thereof, or of the subsequent residence of the parties.
"In witness whereof the parties have hereunto set their hands and seals this 29th day of May, 1963.
”(s) Charles Benker, L. S. Party of the first part
”(s) Elizabeth Stewart, L.S.
Party of the second part
"State of Michigan
County of Wayne SS:
"On this 29th day of May, 1963, before me, the subscriber, personally appeared Charles Benker, party of the first part in the foregoing agreement signed by him, and acknowledged the execution thereof to be his free act and deed.
”(s) Francis W. O’Neill Notary Public Wayne County, Michigan
"My commission expires: 4/3/66
"State of Michigan
County of Wayne SS:
"On this 29th day of May, 1963, before me, the subscriber, personally appeared Elizabeth Stewart, party of the second part in the foregoing agreement signed by her, and acknowledged the execution thereof to be her free act and deed.
"(s) Francis W. O’Neill Notary Public Wayne County, Michigan
"My commission expires: 4/3/66”
The antenuptial agreement executed by Charles Benker and Elizabeth Stewart on May 29, 1963, is set forth in the Appendix.
In paragraph 11 of the subject agreement, the parties agreed that: "[i]n the event of divorce or legal separation, each of the parties waives all right to any award or share of the property of the other, and all alimony.”
The probate court held that such a clause that provides for, facilitates, or tends to induce a separation or divorce of the parties after marriage, contravenes public policy and is therefore void. In re Muxlow Estate, 367 Mich 133; 116 NW2d 43 (1962). However, the court concluded that such a clause did not affect the provisions concerning rights on death. This issue has not been raised on appeal to this Court, and, therefore, we need not consider the issue.
Marriage alone is sufficient consideration for the antenuptial agreement, and it need not be recited in the agreement. Richard v Detroit Trust Co, 269 Mich 411, 413-414; 257 NW 725 (1934).
The decisions in In re Pulling Estate, 93 Mich 274; 52 NW 1116 (1892), Koch v Koch, 126 Mich 187; 85 NW 455 (1901), Hockenberry v Donovan, 170 Mich 370; 136 NW 389 (1912), and Detroit Trust Co v Baker, 230 Mich 551; 203 NW 154; 204 NW 773 (1925), were cited and discussed.
In Koch, the Court held that the defendant failed to prove that the antenuptial contract was obtained by fraud. She alleged that she was misinformed as to the extent of her husband’s property. The attorney who executed the agreement fully explained the matter to the defendant and told her that she would obtain more property upon her husband’s death if there was no antenuptial agreement. Therefore, she failed to sustain her burden. Furthermore, the widow’s property was not shown to be disproportionate to the husband’s, and a settlement of value was made in her favor.
In Detroit Trust Co v Baker, defendant alleged that the antenuptial agreement was obtained by a fraudulent representation that it was a power of attorney. The Court held that this allegation was not supported by the evidence. It also concluded that the sum given in consideration for the release of dower rights did not itself warrant a finding of fraud or an abuse of the confidential relationship. Furthermore, the widow was left a valuable life estate by the decedent’s will.
In Detroit Trust Co v Baker, 230 Mich 551, 556-557, the Court discussed whether the sum granted in lieu of dower rights was such that fraud should be presumed. The Court stated:
"We find no indicia of fraud, by way of misrepresentation or concealment or inadequacy in the amount agreed upon in lieu of dower. But it is said the sum given warrants the assumption that the confidential relation arising out of the promise to marry was abused. Conceding betrothal begets a confidential relation, it does not follow, ipso facto, that it engenders fraudulent desires in the swain, even though he be less bucolic than the widow about to be engrafted or that fraud is presumed to have been practiced to induce a widow of 31 to marry a man of 71, and agree to accept in lieu of prospective dower a substantial sum. In the absence of any testimony showing false representations, deceit or the withholding of information, we cannot predicate a finding of fraud or an abuse of the confidential relation, merely upon the sum here agreed. Neither does such sum under the disclosed circumstances, require plaintiffs to rebut a presumption of fraud. Until some existence of fraud more substantial than a possible wrong guess is presented there is nothing for plaintiffs to rebut.”
Detroit Trust Co is distinguishable from the case at hand in that it only dealt with the waiver of dower rights, not the waiver of all rights in the decedent’s estate. Nor were there the other factors of non-disclosure present in the instant case. In any event, we here agree with the analysis in Detroit Trust Co that the sum given for the waiver of rights, absent more, is not enough to give rise to the presumption of fraud.
See discussion of Detroit Trust Co v Baker, fn 5 supra.
DR 5-105(0 applies to situations covered by DR 5-105, subds (A) and (B), which provide:
"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing different interests, except to the extent permitted under DR 5-105(0.
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing different interests, except to the extent permitted under DR 5-105(0.”
Plaintiff contends that GCR 1963, 517.1, which states that "[fjindings of fact shall not be set aside unless clearly erroneous” is not applicable when the findings of fact are based on deposition testimony as opposed to live testimony by the witness. GCR 1963, 517.1 makes no such distinction. It only states that
"[i]n the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”
We will thus apply the rule accordingly.
A few excerpts from Mr. Dye’s testimony regarding disclosure of assets are provided below:
"A. Well, with the reservation that I would have handled all antenuptial agreements in the same fashion, I would normally bring the people in, discuss their assets with them, discuss the purpose of an antenuptial agreement with them, prepare the document based upon that, then bring them in again, have them review the document, that is both parties, and then if all things being equal, that they were then satisfied with that agreement, and again being a prenuptial agreement, then I would conduct the ceremony, so to speak, of executing the agreement before a notary.
"Q. Do you recall, Mr. Dye, specifically the steps you took with respect to this particular antenuptial agreement?
"A. Not really.
"Q. This would be what you just outlined previously would be your normal—
"A. Yes, the basic purpose, as both you gentlemen know as attorneys, of a prenuptial agreement is to protect the — more or less to retain the status quo, so to speak.”
”Q. Do you recall, Mr. Dye, whether or not in this particular case you discussed the assets of the parties with both parties?
"A. Well, again I can only say in response to that, that the purpose of a prenuptial agreement, it follows from that purpose that you would. I always discuss their assets, because that’s the only reason for it. If people go into a second marriage, so to speak, with very little or no assets, there would be no reason for this. So obviously I did discuss their assets.”
”Q. What steps if any did you employ in your typical practice, and in particular to this instance, if you can recall, to insure that there was a full disclosure by each to the other as far as assets?
"A. Well, I didn’t press the full disclosure matter, for the simple reason that once you outline to your clients the purpose of a prenuptial agreement, then they disclose their assets to you. You don’t press them for undisclosed assets, or at least I didn’t.” | [
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Boyle, J.
In these consolidated cases, we granted leave to determine whether the phrase "for life or for any term of years” in the armed robbery statute refers to the mandatory minimum sentence to be imposed.
Defendant Luke pled guilty to a charge of armed robbery and was sentenced to imprisonment for a term of six months to four years. Under MCL 750.529; MSA 28.797, armed robbery is punishable by imprisonment "for life or for any term of years”. The people argued in the Court of Appeals that the language "any term of years” requires a minimum sentence of at least a year and a day. On April 8, 1982, the Court of Appeals affirmed the sentence imposed by the trial court. 115 Mich App 223; 320 NW2d 350 (1982). The people then filed the instant request for review.
Defendant Blythe pled guilty to a charge of armed robbery and was sentenced to imprisonment for a term of 7-1/2 to 30 years. Blythe argued in the Court of Appeals that the language "any term of years” refers to the mandatory minimum sentence for armed robbery and that the failure of the trial court to advise him of the minimum sentence at the plea proceeding constitutes a violation of GCR 1963, 785.7(l)(d), warranting a reversal of his conviction. Alternatively Blythe claimed that his guilty plea should be set aside on the basis of ineffective assistance of counsel. Blythe’s plea-based conviction and sentence were affirmed by the Court of Appeals on November 17, 1981. 111 Mich App 366; 314 NW2d 624 (1981). Blythe now requests review.
We conclude that the phrase "for life or for any term of years” in the armed robbery statute refers to the maximum sentence to be imposed and that this provision does not include a mandatory minimum sentence. Thus, the sentence of six months to four years given to Luke was within appropriate sentencing limits. The failure to advise Blythe of a mandatory minimum for the offense of armed robbery was not error.
In People v Burridge, 99 Mich 343; 58 NW 319 (1894), we held that, where a statute provides imprisonment for life or for any term of years, the minimum sentence imposed shall not be less than two years. In Burridge, we rejected a sentence of nine months where that sentence represented both the maximum and the minimum. We conclude, however, that Burridge is inapposite to resolution of the question before us since it was decided prior to enactment by the Legislature in 1903 of the indeterminate sentencing law. 1903 PA 136, now MCL 769.9; MSA 28.1081.
In fact, the language of the first valid indeterminate sentence statute, 1903 PA 136, indicates that the Legislature impliedly rejected the Burridge two-year interpretation. The Legislature stated in the course of outlining the procedure to be followed by the trial court in fixing an indeterminate sentence that "in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix the maximum sentence”. Thus, in its treatment of sentencing requirements in connection with a crime punishable by life or any term of years, the Legislature viewed that phrase as related only to the maximum sentence. This particular proviso contained no requirement that the court set a minimum sentence of two years or a year and a day. This strongly suggests that the Legislature itself viewed "life or any term of years” as a description of the maximum sentence only.
The inapplicability of the Burridge two-year minimum required for "any term of years” is further demonstrated by the Legislature’s amendment of the armed robbery statute to provide for a specific minimum sentence of two years if an aggravated assault or serious injury is inflicted in the course of the robbery. MCL 750.529; MSA 28.797. Application of the Burridge interpretation would lead to the anomalous result of identical minimum sentences for armed robbery and for the aggravated offense. This reading makes the armed robbery statute both illogical and redundant. See People v Harper, 83 Mich App 390, 396, fn 1; 269 NW2d 470 (1978), lv den 406 Mich 1021 (1979).
Application of the Burridge interpretation results in another anomaly when its interaction with the probation statute, MCL 771.1; MSA 28.1131, is considered. The Legislature has designated numerous criminal acts as "punishable by life * * * or for any term of years”. Of these crimes, murder, armed robbery, and first-degree criminal sexual conduct are the only ones which the probation statute designates as offenses for which probation is not available. MCL 771.1(1); MSA 28.1131(1). Yet if the Burridge rule is applied, all of the crimes listed in the margin carry a mandatory minimum sentence of two years. Thus, any defendant convicted of one of these crimes must receive a sentence of at least two years. Such an interpretation renders meaningless the specific exclusion of murder and robbery in the probation statute.
The majority of courts considering the instant question have concluded that there is no mandatory minimum sentence for statutes stating that the offense is punishable for life or "any term of years”. See, e.g., People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976), lv den 399 Mich 848 (1977). The contrary view posits that the language "any term of years” refers to a mandatory minimum sentence which must be communicated to a defendant pursuant to GCR 1963, 785.7(l)(d), and that the mandatory minimum is a year and a day. People v Harper, supra; People v West, 113 Mich App 1; 317 NW2d 261 (1982).
We reject this latter view, which is predicated on the following three propositions. First, the term "years” may be applied and limited to the term "year”. MCL 8.3b; MSA 2.212(2); Harper, supra, p 397. While we accept this premise as eminently reasonable, we find that it does nothing to clarify whether the entire phrase in question relates to the mandatory minimum or to the maximum.
Second, proponents of the "year and a day” analysis postulate that GCR 1963, 785.7(l)(d) refers to the duty to advise of a "prison” sentence and that pursuant to MCL 769.28; MSA 28.1097(1) there can be no prison term for a defendant serv ing one year or less. Harper, p 397. A review of MCL 769.28; MSA 28.1097(1) reveals that housing in the state penal institution, as opposed to the county jail or Detroit House of Correction, is dependent upon the maximum sentence imposed, and thus, so long as the defendant is sentenced to a maximum of at least a year and a day, incarceration will be in prison, regardless of the sentence minimum.
Third, proponents of this view conclude that any " 'felony’ means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year”. (Emphasis in original.) Harper, pp 397-398; MCL 761.1(g); MSA 28.843(g). This provision does not answer the question whether there is a mandatory minimum sentence for armed robbery; it merely defines a felony with reference to the potential punishment. An offense is a felony so long as the statutory maximum is for more than one year, regardless of the mandatory minimum.
In addition, the "year and a day” analysis, when considered in connection with the probation statute, results in the same anomaly discussed above in connection with the Burridge "two-year” interpretation.
In sum, we reject the "year and a day” analysis, and we find instead that the language "for life or for any term of years” refers to the maximum sentence which may be imposed for armed robbery and that this statute does not include a mandatory minimum for the non-aggravated offense.
Accordingly, there being no mandatory minimum sentence for armed robbery, the sentence imposed against defendant Luke was proper and is hereby affirmed.
Blythe was advised, pursuant to GCR 1963, 785.7(l)(d), of the maximum possible prison sentence and that he could not be placed on probation for the offense of armed robbery, and, accordingly, his sentence is affirmed.
Blythe further submits that his guilty plea should be set aside because his confession was coerced and because his trial counsel was ineffective in failing to move to suppress his confession.
Where the record made in connection with a defendant’s plea proceeding does not factually support his claim of ineffective assistance of counsel, it is incumbent upon the defendant to move to set aside the plea and to make a separate record factually supporting this claim. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Blythe having failed to provide record evidence for this claim, we have no basis for considering it.
The judgments of the Court of Appeals and the trial courts are affirmed in both cases. The motion to strike filed by the prosecution in People v Blythe is considered and is denied.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
The only minimum sentence limit to be imposed with respect to the crime of armed robbery is that it is a non-probationable offense. MCL 771.1(1); MSA 28.1131(1).
Assault with intent to commit murder, MCL 750.83; MSA 28.278, assault with intent to rob while armed, MCL 750.89; MSA 28.284, setting fire to mines and mining material, MCL 750.80; MSA 28.275, attempted murder, MCL 750.91; MSA 28.286, second-degree murder, MCL 750.317; -MSA 28.549, death due to explosives, MCL 750.327; MSA 28.559, death due to explosives with the intent to destroy a building or object, MCL 750.328; MSA 28.560, perjury committed in court in a trial for a capital crime, MCL 750.422; MSA 28.664, poisoning food, drink, etc., with the intent to kill or injure, MCL 750.436; MSA 28.691, attempt to wreck railroad trains or endanger the safety of passengers, MCL 750.511; MSA 28.779, detention by force of a railroad train by means of intimidation for the purpose of robbing, MCL 750.517; MSA 28.785, first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), armed robbery, MCL 750.529; MSA 28.797, and bank robbery, MCL 750.531; MSA 28.799.
Moreover, an offense can be a felony regardless of the mandatory minimum or maximum if the offense is "expressly designated by law to be a felony”. MCL 761.1(g); MSA 28.843(g).
The mandatory minimum sentence for an armed robbery accompanied by aggravated assault or serious injury is, as specified in MCL 750.529; MSA 28.797, two years imprisonment. | [
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Rehearing denied. Reported at 415 Mich 134. | [
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Cavanagh, J.
The trial court granted a directed verdict in favor of defendant, and the Court of Appeals affirmed. We granted leave to appeal in order to determine whether plaintiff made out a prima facie case of dental malpractice necessary to withstand defendant’s motion for a directed verdict.
I
On March 10, 1976, plaintiff filed a complaint against defendant, alleging dental malpractice in that he filed away too much of her teeth Nos. 10 and 11. Trial was to a jury, and, at the close of plaintiffs proofs, defendant moved for a directed verdict, claiming that there had been no expert testimony concerning whether defendant had breached the applicable standard of care. The trial court granted defendant’s motion, holding in pertinent part that
"based upon these facts taken more favorably to the plaintiff, * * * the excessive grinding is a matter which is subject to the necessity of an expert, or the necessity of expert testimony in a medical malpractice case._
"This court finds that even taking all of the evidence most favorably to the plaintiff that there is no [expert] testimony on this record to indicate that this defendant has breached the standard of care in the community for the procedure as prescribed, and, therefore, for all of those reasons, the court grants the motion for directed verdict.”
Plaintiff appealed by right, and the Court of Appeals affirmed, holding that
"[t]he trial court properly granted the defendant’s motion for a directed verdict. In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or dentist did was contrary to the practice in that or similar communities. The plaintiff failed to come under the exception to the general rule that the jury could reasonably conclude from its own knowledge and experience that the outcome must necessarily be the result of negligence and that no expert testimony was needed.”
We granted plaintiffs delayed application for leave to appeal.
II
Since we must determine the propriety of the directed verdict in defendant’s favor, it is necessary to set forth a detailed summary of the evidence presented at trial which related to the standard of care and its alleged breach.
Plaintiff testified that, prior to her visit to defendant on March 11, 1974, her upper left teeth looked just like their counterparts on the upper right, specifically, Nos. 10 through 12 were longer. She scheduled the March 11 appointment in order to have defendant remove two small marks from her two upper central incisors. However, according to plaintiff, more occurred:
"Well, so I was in a prone position on the chair. And, he proceeded to remove those two little worn marks on those two front teeth, which was fine. And then, he was looking out the window. He just kind of had a far-away look, you know. He said, 'These teeth look so much better rounded.’ And, with that he filed off the side of my lateral tooth. And, I — I had this mirror because I keep it in my cosmetic purse, if I want to put lipstick on, or if I’m out. I looked down, and I said, 'What are you doing?’ And, he — then he proceeded to start yelling at me. And, he went over to the — to this little box over by the door where he had instruments, and he changed something, made some kind of a change. And, he was yelling. I don’t know exactly what he was yelling about. But, apparently, he was displeased. And, he came back, and he proceeded to round off this tooth that was down on a point. And, he tried to round it off to make it look right, I guess. And then, he went on to the other teeth so they would all kind of shape up.
"Well, I was stunned. I was — I was stunned. And, he got up, and I went to the door to the other office. As he got to the door, his two office nurses ran to him. Both came running. And, he went off. And, I laid there in the chair thinking he’d come back. I think a long time — a long time he did not come back. Perhaps I should have made a big fuss. I didn’t know. I was just stunned.
"[T]he lateral tooth [No. 10], it came down, and it had a slight point. And, it went up. And then, the other teeth [Nos. 11 and 12] were just shortened — shorter.”
Subsequently, plaintiff felt miserable and thought she looked terrible. Her upper left lateral incisor (No. 10) began to hurt, especially when exposed to temperature extremes. Although she was reluctant to accompany her husband on his business trip to Florida the next day, she did so. However, while in Alabama, she paid a professional visit to Dr. William Crandall, a dentist, who placed a temporary resin crown on plaintiff’s upper left lateral incisor (No. 10). He could not restore teeth Nos. 11 and 12.
Plaintiff’s husband testified that he had been married to plaintiff since 1943. After her visit to defendant on March 11, 1974, his wife was distraught, and he noticed a change in one of her teeth. However, even after subsequent dental repair work, there was still a noticeable "line” on plaintiff’s upper left lateral incisor (No. 10) which had not been there before plaintiff’s visit to defendant on March 11, 1974. He never noticed plaintiff, either consciously or subconsciously, grinding her teeth.
Plaintiff offered the deposition testimony of Dr. William Crandall, a Birmingham, Alabama, dentist. He first saw plaintiff on March 14, 1974, when she came to his office complaining that too much of her upper left lateral incisor (No. 10) had been ground down by her hometown dentist and asking that a crown be placed on that tooth. However, although he recommended that a permanent crown be installed, he could not do so because of her short stay in Alabama. Instead, he installed a temporary resin crown and advised her to have a permanent one placed upon her return home. Upon examining tooth No. 10, he saw that "the contact points, the corners of the tooth were fractured off’, i.e., the enamel around the dentin was fractured and the tooth shortened. Although he could not say whether that condition was caused by dental grinding or natural wear, it would be very unusual for that one tooth to wear down as he found it, i.e., the opposing lower tooth would exhibit similar wear, but it did not. Indeed, plaintiffs other teeth exhibited only normal wear. A dentist would not grind that much off unless treating a malocclusion, i.e., an improper bite, and then would inform the patient of the need for a return visit. He also saw plaintiff on March 15, 1974, in order to check her bite and to polish the resin so that it would look as much as possible like her other teeth. Plaintiff did not complain to him about any other teeth.
Plaintiff also offered the deposition of Dr. David Jackson, a periodontist who had examined her on December 20, 1976. Since Dr. Jackson had been hired and his deposition taken by defendant, the trial court admitted the testimony pursuant to the adverse party statute. Dr. Jackson considered himself "beyond anybody else” when it came to familiarity with the standard of dental practice in Muskegon and similar communities. Plaintiff complained to him that defendant had ground off an excessive amount of her upper left lateral incisor (No. 10). His examination revealed that most of plaintiffs teeth exhibited excessive wear. Such wear is usually the result of bruxism, i.e., the unconscious grinding or clenching of the teeth, usually done while sleeping. He attributed plaintiffs wear and fractured enamel to bruxism. Also, plaintiff stated to him that she bit her fingernails; that can result in wear on the teeth. Normal chewing results in a force on the teeth of between 2 and 12 pounds per square inch. On the other hand, bruxism can result in a force of over 300 pounds per square inch. The use of a fine sandpaper disk to adjust the bite or round off rough edges is an acceptable dental practice. His examination of plaintiff revealed no evidence that defendant had violated the standard of care or that defendant had "slipped” when using the sandpaper disk on plaintiff. However, he could not tell how much of tooth No. 10 defendant removed nor whether defendant was responsible for that tooth’s fracture, although he did not believe that it was possible to fracture tooth enamel with a grinding instrument and thought that Dr. Crandall misspoke himself, i.e., Dr. Crandall did not really mean that plaintiffs tooth was fractured, but merely that it was ground or worn down. The following exchange also occurred upon examination by plaintiffs counsel:
"Q. Doctor, assuming that the patient, at the time she saw Dr. Russell, had a certain amount of bruxism, certain amount of wear by virtue of her clenching, whether it’s at night when she didn’t know it—
"A. Yes.
”Q. —or during the daytime, and assuming that Dr. Russell or any other doctor in this community set out to shape the teeth and, in the process, was concentrating in his mind on something else and did an excessive amount of grinding so as to fracture that tooth, hypothetically, if that happened, would that violate the standard of care in this community?
"A. Hypothetically, I guess so.”
Similarly, bruxism or excessive dental grinding could expose the dentin in a tooth.
Plaintiff also called defendant to testify pursuant to the adverse party statute. MCL 600.2161; MSA 27A.2161. Defendant saw plaintiff in his office on March 11, 1974, and "smoothed off some rough edges” on her upper central and lateral incisors (Nos. 7 through 10). He also polished those four teeth. When plaintiff left his office none of those teeth was fractured, although he could not remember whether any dentin was exposed. However, when examining some trial exhibits, defendant found plaintiffs teeth to be worn, some to the dentin, and attributed it to bruxism. Similarly, any fracture occurred after she left his office on March 11, 1974. He also claimed that plaintiff was not concerned with dental hygiene and that she made no complaints of pain while at the office on March 11, 1974. Defendant also denied that he touched plaintiffs teeth Nos. 11 and 12 on March 11, 1974.
Ill
Generally, expert testimony is required in a malpractice case in order to establish the applicable standard of care and to demonstrate that the professional breached that standard. Rice v Jaskolski, 412 Mich 206, 211; 313 NW2d 893 (1981); Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961). However, an exception to the general rule exists when "the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community.” Lince, supra, p 141. Also Wilson v Stilwill, 411 Mich 587, 611-612; 309 NW2d 898 (1981); Orozco v Henry Ford Hospital, 408 Mich 248, 253-254; 290 NW2d 363 (1980); Higdon v Carlebach, 348 Mich 363, 377-381; 83 NW2d 296 (1957) (opinion of Carr, J.).
The following statements and findings were made by the trial judge when ruling on defendant’s motion for a directed verdict:
"The court in concluding the evidence most favorable to the plaintiff assumes that there is no bruxism, assumes that Dr. Russell ground off too much of the tooth involved, assumes as a result of that that Lillian [Sullivan] was in some way or another affected by this, and that she has suffered pain in the past, somewhat little in the future; there is no testimony as to what she might receive in the future, that she has suffered mental anguish, that she has made expenditures for psychiatric treatment, that she has — at least I believe Dr. Crandall is the only one — expended money for past dental care in the form of Dr. Crandall, that this is some form of disfigurement, that being different than the — her other teeth.
"Those are the facts that I would conclude most favorable to the plaintiff on ruling on this motion.”
To the above we add that the evidence, viewed in the light most favorable to plaintiff, showed that: (1) defendant, asked to remove two small marks from plaintiff’s upper central incisors (Nos. 8 and 9), ground off portions of other teeth (Nos. 10 through 12) for which treatment had not been requested, and (2) subsequently, plaintiff’s upper left lateral incisor (No. 10) was noticeably shorter and pointed, had fractured enamel, and required dental repair work.
When the evidence in this case is properly viewed, we hold that it would be within the common knowledge and experience of the ordinary layperson that the unsolicited treatment of teeth Nos. 10 through 12, which resulted in pain and a change in appearance and which necessitated subsequent dental repair work, exhibited a manifest lack of professional care, i.e., it was careless conduct which violated the applicable standard of care. Consequently, the trial court erred in requiring plaintiff to present expert testimony regarding the alleged breach of the applicable standard of care in order to withstand defendant’s motion for a directed verdict. Similarly, the affirmance by the Court of Appeals was erroneous.
Reversed and remanded to the circuit court for a new trial. Plaintiff may tax costs.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cavanagh, J.
Unpublished opinion per curiam of the Court of Appeals, decided on November 7,1980 (Docket No. 46533).
More specifically, the issue presented is whether plaintiff, in order to withstand defendant’s motion for a directed verdict, was required to present expert testimony regarding the alleged breach of the applicable standard of care. Although not directly involved in this case, MCL 600.2912a; MSA 27A.2912(1) generally states the plaintiff’s burden of proof in establishing the applicable standard of care in a malpractice action.
Each permanent tooth in an adult’s mouth is identified by both descriptive terminology and a numerical designation. Since this case involves some of plaintiff’s upper teeth, it is necessary to explain the pertinent terminology and designations. The numerical designations begin on the far upper right (No. 1) and continue in numerical order to the far upper left (No. 16). Numbers 1 and 16 denote what are known as the third molars, commonly called the wisdom teeth. Numbers 8 and 9, i.e., the two upper middle front teeth, are known descriptively as the upper right central incisor and the upper left central incisor, respectively. The tooth immediately left of the latter is known as the upper left lateral incisor and is designated as No. 10. Continuing leftward, the next tooth is known as the upper left canine or cuspid and is designated as No. 11. The final tooth important for our purposes is designated as No. 12 and is known as the upper left first bicuspid or premolar. See, generally, 21 Encyclopaedia Britannica (1970), Teeth, pp 755-759.
A fair reading of plaintiff’s complaint reveals allegations pertaining only to the excessive filing away of the upper left lateral incisor (No. 10) and the upper left cuspid (No. 11). However, the parties tried the case and have argued on appeal as if the allegations of malpractice also included the excessive filing away of the upper left first bicuspid (No. 12) and the fracturing of the upper left lateral incisor (No. 10). Accordingly, pursuant to GCR 1963, 118.3 and 865.1(1), (7), we order that plaintiff’s complaint be amended to include the latter two theories regarding teeth Nos. 10 and 12 in the allegations of dental malpractice. See, e.g., Davis v Koppers Co, Inc, 335 Mich 9, 13-18; 55 NW2d 152 (1952); Toledo Pipe Organ Co v Paradise Theatre Co, 318 Mich 342, 347-348; 28 NW2d 224 (1947); Smith v Baumgarten, 313 Mich 683, 685; 21 NW2d 921 (1946).
Like defense counsel, the Court of Appeals opinion exhibits a misunderstanding of exactly which teeth plaintiff claims were the subject of dental malpractice. Defendant’s statement of the facts is totally confusing, while the Court of Appeals thought plaintiffs central complaint concerned her upper left central incisor (No. 9). For a proper characterization, see fn 3 and accompanying text supra. Also, the Court of Appeals appears to have conducted its review by construing the evidence presented at trial in the light most favorable to defendant. That ignored the .trial judge’s findings of fact which were not clearly erroneous, GCR 1963, 517.1 and 810, and was wholly improper, i.e., the evidence presented at trial must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences therefrom in favor of that party must be drawn. Dodd v Secretary of State, 390 Mich 606, 611-612; 213 NW2d 109 (1973); Schedlbauer v Chris-Craft Corp, 381 Mich 217, 229-230; 160 NW2d 889 (1968); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 529-530. Finally, when conducting its review, the Court of Appeals gave great weight to deposition testimony from plaintiffs current dentist. Significantly, however, that deposition was never admitted into evidence at trial. Obviously, its consideration when determining the merits of the directed verdict motion was improper.
414 Mich 955 (1982).
Enamel is the hardest body tissue. It covers the dentin on the crown of each tooth. Dentin is calcified tissue which composes the majority of each tooth. It is highly sensitive and extends almost the entire length of each tooth. Encyclopaedia Britannica, supra.
According to Dr. Jackson, a periodontist is a dentist who specializes in treating diseases of the teeth and disorders of the bite and jaw.
The statute provides as follows:
"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 proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.” MCL 600.2161; MSA 27A.2161.
Although admission of Dr. Jackson’s deposition was proper, pursuant to GCR 1963, 302.4, we do not wish to imply that it was also properly admitted for the reason advanced by the trial court.
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Ryan, J.
In 1979, the defendant, then a 16-year-old juvenile, was charged in the Kalamazoo County Probate Court with the offenses of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), and armed robbery, MCL 750.529; MSA 28.797. The prosecuting attorney petitioned the probate court for a waiver of jurisdiction to the circuit court in order to have the defendant prosecuted as an adult. In November of 1979 and January of 1980, the two-phase waiver hearing, as required by JCR 1969, 11.1, was conducted and on February 15, 1980, the probate court entered its order waiving jurisdiction of the defendant to the Ninth Judicial Circuit Court (Kalamazoo County).
On May 2, 1980, the defendant, who had been represented by the same appointed counsel from the outset of the juvenile proceedings, moved for an order remanding the case to the district court for the purpose of holding a preliminary examination on the offenses charged. The circuit court denied the motion. The defendant then proceeded to trial and was found guilty of the offenses charged and was sentenced to life imprisonment on each charge.
On September 12, 1980, the defendant moved for a new trial on the ground inter alia that he had been denied the right to a preliminary examination. It was not until May 11, 1981, that a hearing was held on this motion, at which time the circuit judge granted the motion, declaring that he based his decision upon this Court’s decision in People v Dunigan, 409 Mich 765; 298 NW2d 430 (1980).
In Dunigan, we held that when jurisdiction of a juvenile offender is waived to the circuit court, the defendant is entitled to a preliminary examination before he may be charged in a criminal information unless examination is waived by the defendant or he is a fugitive from justice. We recounted in Dunigan the statutory basis for entitlement to a preliminary examination in this state and observed that both the statute, MCL 767.42; MSA 28.982, and our opinion in People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), provide that no information charging a felony may be filed against any person unless he is first afforded the opportunity for a preliminary examination, and that such examination must be held unless the "examination is waived by the defendant or unless defendant is a fugitive from justice”. _
While acknowledging our decision in Dunigan, supra, the prosecuting attorney argues that Duni-gan announced a new rule of law and, since it was promulgated after the denial of the defendant’s request for a preliminary examination in this case, it is not controlling of this case unless it is to be given retroactive effect.
Proceeding on that assumption, the prosecuting attorney’s brief and oral argument were directed principally to an analysis of the familiar test for retroactivity of a new rule of law as first announced in Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and applied in Michigan in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971).
We think the prosecuting attorney’s assumption that Dunigan announced a "new rule of law” has led him to misapprehend the real issue in this case.
Dunigan neither announced a departure from clear precedent nor decided an issue of first im pression whose resolution was not clearly foreshadowed. Thus, it is not a "new rule of law” and, as a result, no question of retroactive application arises. We find, therefore, that the circuit court correctly ordered a new trial because this juvenile defendant was not given the examination he timely demanded.
Before any question of the retroactive application of an appellate decision arises, it must be clear that the decision announces a new principle of law. A rule of law is new for purposes of resolving the question of its retroactive application in the sense addressed in Linkletter and Hampton and asserted by the plaintiff, either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision. In Chevron Oil Co v Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971), the United States Supreme Court stated:
"[T]he decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed.”
There are two apparent bases for the prosecuting attorney’s claim that Dunigan announced a new rule of law: 1) that this Court’s holding in Dunigan effectively "overruled” the alleged widespread practice of not holding preliminary examinations in juvenile waiver cases, and 2) that our decision in Dunigan reversing the Court of Appeals determination that "it was not mandatory that defendant be provided a preliminary examination in district court prior to arraignment” amounted to an overruling of the "old rule” upon which the trial court relied in denying the defendant’s request for a preliminary examination.
The prosecutor argues, both expressly and by implication, that until our Dunigan decision there existed a widespread practice of denying a preliminary examination to juveniles whose cases were waived to the circuit court. That claim appears in the prosecutor’s application for leave to appeal:
"This issue involves legal principles of major significance to the jurisprudence of this state because the practice of not holding a preliminary examination after a juvenile waiver hearing was widely followed prior to the decision of Dunigan in December of 1980. This issue should immediately be decided to avoid widespread confusion in the Michigan circuit courts and in the Michigan Court of Appeals.”
And, in the prosecutor’s brief:
"If the new rule requiring a preliminary examination after a juvenile waiver hearing is given retroactive application, this will mean that many convicted juveniles will have to be retried or released. As in [People v Auer, 393 Mich 667; 227 NW2d 528 (1975)] this will require many new trials. Prosecutors will have the burden of putting together old evidence. Needless expenditures of labor, time and money will be used to retry already convicted felons. This will have an adverse impact on the criminal justice.” (Emphasis added.)
We had not thought that any such widespread practice existed. Because the record before us contains no statistics on the matter, we are unable to verify the plaintiffs claim that denial of preliminary examination to juveniles, jurisdiction of whom has been waived to the circuit court, was a practice "widely followed” prior to Dunigan. In point of fact, the "practice” may have been con fined to Kalamazoo County. Both Dunigan and this case are appeals from the refusal of the Kalamazoo Circuit Court to grant requested preliminary examinations in juvenile waiver cases.
Upon close questioning of the assistant prosecuting attorney by this Court during oral argument, it was made to appear that the prosecutor’s claim of an established "widespread” practice of denying preliminary examinations in cases such as this is unsupportable:
"Justice Levin: Okay. Now had it been the practice before Dunigan to hold preliminary examination in waiver cases?
"Mr. Christopherson [Assistant Prosecuting Attorney]: I believe Dunigan was the first case which really dealt with this issue.
"Justice Levin: I know, but had it been the practice in Kalamazoo County to hold preliminary examinations in waiver cases; did you stop doing it when you heard that Dunigan came down?
"Mr. Christopherson: Well first of all, there are very few waiver cases that come through, and I don’t believe it was a practice, no, preliminary examinations were given. Dunigan was perhaps a test case. And between— (emphasis added).
"Justice Levin: There were preliminary examinations in waiver cases?
"Mr. Christopherson: I can’t cite you to specific cases and say there were or weren’t, were or were not.
"Justice Levin: You don’t know?
"Mr. Christopherson: No. And as far as I know, between the time that Dunigan came down, between the Court of Appeals and the Supreme Court decisions, Vincent Phillips is the only waiver case we had.
"Justice Levin: So there wasn’t — before Dunigan was decided by the Court of Appeals, the practice in Kalamazoo County was that the circuit judge had ruled that it wasn’t necessary to hold preliminary examinations?
"Mr. Christopherson: That’s right, in Phillips we were going to follow that circuit judge’s decision.
"Justice Levin: What was that?
"Mr. Christopherson: In Phillips we were going to follow that circuit judge’s decision.
"Justice Levin: And Dunigan was also a Kalamazoo case?
"Mr. Christopherson: That’s correct.
"Justice Levin: Another circuit judge in Kalamazoo County?
"Mr. Christopherson: That’s correct.
"Justice Levin: And you don’t know what the practice is in other counties as far as preliminary examinations?
"Mr. Chiistopherson: I can’t testify to that, no, your Honor.
"Justice Levin: You just don’t know.
"Mr. Christopherson: I don’t know, that’s correct.”
While there are no properly cognizable facts before us indicating whether a preliminary examination is generally accorded juvenile defendants after waiver in this state, it is clear that there is no evidence to the contrary and that the assistant prosecuting attorney in this case apparently knows of none.
Even if it were the practice to deny the opportunity for a preliminary examination in cases such as this, the practice would be wholly without legal justification and directly contrary to the command of the Legislature and the 1972 pronouncement of this Court in Duncan, supra._
MCL 767.42; MSA 28.982, as amended by 1974 PA 63, provides:
"(1) An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination. If any person waives his statutory right to a preliminary examination without having had the benefit of counsel at the time and place of the waiver, upon proper and timely application by the person or his counsel, before trial or plea of guilty, the court having jurisdiction of the cause, in its discretion, may remand the case to a magistrate for a preliminary examination.” (Emphasis added.)
This broad statutory mandate has existed since 1859, and to our knowledge, before the Dunigan "test case”, no expression from any member of this Court has ever suggested that there existed an exception for juvenile waiver cases.
In People v Duncan, 388 Mich 489, 502; 201 NW2d 629 (1972), a case involving a question whether a defendant charged under a grand jury indictment was entitled to a preliminary examination, this Court declared:
"We hold that in each case, and in all pending cases in which the right to a preliminary examination was asserted prior to trial and is presently being asserted, such right shall be accorded to the defendant. In all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist.” (Footnote omitted.)
While Duncan was not concerned with providing a preliminary examination to a juvenile, it emphasized the historic statutory entitlement of every person to a preliminary examination prior to the filing of a felony information and, in recognition of the importance of such a hearing, extended it to persons charged by a grand jury indictment, a class never before thought to be entitled to such a right.
Given the history since 1859 of statutory entitlement to a preliminary examination for "any person” with respect to whom an information is to be filed, followed by this Court’s extension of the right in Duncan, no matter how widespread the practice of denying an examination to juvenile defendants may have been, it is an illegal practice and is not the sort of "clear precedent” which should trigger a "new rule” retrospectivity analysis. Nor can the alleged practice be termed contrary to the resolution of "an issue of first impression * * * not clearly foreshadowed”. Chevron, supra. In light of the longstanding statutory right to a preliminary examination for all felony defendants prior to the filing of an information, and in light of the plain language of Duncan, supra, our holding in Dunigan can hardly be considered the resolution of an issue of first impression. Rather, in Dunigan, this Court simply applied the statute to the facts. But, even assuming Dunigan did decide an issue of first impression, when we said in Dunigan, at p 771, that
"[t]here is no express statutory exception to the requirement that an examination be held in cases where a defendant is subject to trial following a juvenile court waiver order. We discern no compelling reason to create such an exception by judicial fiat”,
we clearly did not decide a matter "not clearly foreshadowed” by Duncan and longstanding legislation.
The second basis upon which the prosecutor rests his claim that we announced a "new rule” in Dunigan is the assertion that our decision in that case reversed the Court of Appeals "precedent” that there was no requirement for a preliminary examination in the case of a juvenile waived to the circuit court.
The "old rule”, the prosecutor argues, was the "no examination” pronouncement of the Court of Appeals in Dunigan on April 2, 1980. This Court’s reversal of that decision on November 24, 1980, is said to announce a "new rule”. During that seven-month interval, according to the prosecutor, the Court of Appeals decision in Dunigan was binding precedent.
Once again it appears that the prosecutor is in error.
The prosecutor apparently misconceives the pre-cedential status of a Court of Appeals decision in which leave to appeal has been granted by this Court. A timely application for leave to appeal to this Court from a decision of the Court of Appeals effectively stays the Court of Appeals decision as a final adjudication, see People v George, 399 Mich 638; 250 NW2d 491 (1977), and denies it preceden-tial force until denial of the application for leave to appeal in this Court or some other disposition of the case is announced. An opinion of the Court of Appeals is not its judgment. Its decision and judgment are made when the clerk of the Court of Appeals issues the Court’s judgment order and sends notice thereof to counsel for each party under GCR 1963, 821.2.
It is only after application for leave to appeal to this Court is denied, or dispositive action is taken effectively approving the Court of Appeals deci sion, that it becomes a "final adjudication” of that Court.
In Dunigan, our order granting the defendant’s timely application for leave to appeal, followed by our judgment reversing the Court of Appeals decision, precluded the Court of Appeals opinion from ever having precedential effect.
Our holding in Dunigan did not adopt a "new” rule in the Chevron, supra, sense. The right enforced in Dunigan has existed since 1859 and was reaffirmed and broadened by our announcement in Duncan, supra, in 1972, that all defendants accused of felonies are entitled to a preliminary examination. In Dunigan we simply refused to carve out an exception to the broad class of criminal defendants afforded a right to a preliminary examination under MCL 767.42; MSA 28.982. Just as juvenile defendant Dunigan was entitled, upon demand, to such an examination, so too is juvenile defendant Phillips.
The circuit court is affirmed in its judgment that the defendant is entitled to a new trial.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Coleman, JJ., concurred with Ryan, J.
Riley, J., took no part in the decision of this case.
Juvenile Court Rule 1969,11.1(a) provides in part:
".1 Hearing; Quantum of Proof; Criteria for Waiver. When a petition is filed requesting a waiver of jurisdiction under MCLA 712A.4; MSA 27.3178(598.4), the hearing consists of 2 phases. The interval between them, if any, is within the court’s discretion.
"(a) Phase 1: Showing of Probable Cause. The court shall first determine if a crime has been committed which, if committed by an adult, would be a felony and if there is probable cause to believe that the child committed the crime. The determination must be based on legally admissible evidence.
"(b) Phase 2: Criteria for Waiver. On a showing of probable cause, the court shall conduct a full investigation to determine whether the interests of the child and the public would best be served by granting a waiver of jurisdiction to a court of criminal jurisdiction.”
In Dunigan, both the circuit court and the Court of Appeals based their rulings on the rationale that in view of the nature and purpose of the two-phase hearing mandated by JCR 1969, 11.1(a), a preliminary examination was redundant.
The Court of Appeals, for example, said:
"[I]t was not mandatory that defendant be provided a preliminary examination in district court prior to arraignment.
"Phase 1 of the waiver hearing [JCR 1969, 11.1(a)] accomplishes the same purpose as the preliminary hearing.” People v Dunigan, 96 Mich App 577; 293 NW2d 637 (1980).
It was the perceived duplication of process which apparently prompted the circuit judge in this case to deny the defendant’s request for a preliminary examination.
We acknowledged, in reversing the Court of Appeals decision in Dunigan, that "[t]he primary purpose of a preliminary examination is to ascertain whether a crime has been committed and whether probable cause exists to believe that the accused is guilty of having committed the crime”, and that the juvenile waiver hearing served that same purpose. We observed further, however, that the preliminary examination served other purposes as well.
It is interesting to note that when, upon remand, defendant Duni-gan was finally afforded a preliminary examination, he was bound over for trial to the circuit court to stand trial for second-degree murder rather than first-degree murder, the offense with which he was originally charged and "waived” to circuit court.
Earlier, during oral argument, the defendant’s counsel stated:
"And I have found from talking to other individuals, especially in Wayne County, that they have been giving preliminary examinations for a long time, and that when Dunigan, the Court of Appeals decision, came down, it rattled the chains all around Wayne County. It was a whole different phenomenon, and a different ballgame than they have been used to dealing in. They couldn’t believe it. That was the new decision. That was the new rule — the Court of Appeals decision in Dunigan.’’
See 1859 PA 138.
GCR 1963, 853.2(2) provides:
"A copy of the order granting or denying leave to appeal shall be forwarded by the clerk of the Supreme Court to the clerk of the Court of Appeals and to the parties. If the application for leave to appeal is denied, the decision of the Court of Appeals shall become the final adjudication and shall be enforced in accordance with its terms. If the application for leave to appeal is granted, all jurisdiction over the cause shall thereafter be vested in the Supreme Court and the rules applicable to appeals to the Supreme Court shall apply. After granting of the application for leave to appeal, all relevant papers and documents on file with the clerk of the Court of Appeals shall thereupon be transmitted to the clerk of the Supreme Court.” | [
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] |
Coleman, J.
Defendant was convicted by a jury of three counts of criminal sexual conduct in the first degree. The Court of Appeals reversed the convictions based on the erroneous admission of similar-acts evidence. Justice Kavanagh’s opinion would hold that the similar-acts evidence was properly admitted but that reversal is required because of the erroneous exclusion of certain evidence offered by defendant.
Our conclusions are that MCL 750.520j; MSA 28.788(10), the rape-shield law, is not unconstitutional and that reversal is not required on the facts before us in this case._
I
The charges against defendant arose out of incidents involving an eight-year-old boy. The prosecutor filed a motion in limine, based on the rape-shield law, to prohibit the admission of any evidence of sexual conduct between the victim and any person other than defendant. The prosecutor stated that he had no knowledge or evidence of such conduct, but that defense counsel indicated that he might bring out such evidence at trial.
Defendant claimed that evidence of sexual conduct was relevant and admissible to explain the witness’s ability to describe vividly and accurately the sexual acts that allegedly occurred. Because of the complainant’s age and his detailed description of events, defendant wanted to establish the right to introduce evidence, if any, of the complainant’s sexual conduct with others.
The trial judge granted the motion to exclude this evidence.
Despite the earlier ruling, defendant was not completely foreclosed from inquiring into the complainant’s sources of knowledge about sexual conduct. During cross-examination, the complainant was asked if he had witnessed his friends or others engage in sexual activity. He answered "No”. He was asked if he had engaged in this activity with someone other than defendant. Again, he answered in the negative. After a similar question was asked and the same answer received, the trial judge cautioned defendant not to pursue this questioning in light of the prior order prohibiting it.
The trial judge’s ruling prohibiting the admis sion of evidence of sexual conduct between the victim and persons other than defendant was based upon the rape-shield statute. MCL 750.520j; MSA 28.788(10) provides:
"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine, whether the proposed evidence is admissible under subsection (1).”
II
Defendant contends that these statutory prohibitions infringe upon his Sixth Amendment right of confrontation, see Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
In Chambers, supra, 295, the Supreme Court stated:
"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the truth-determining process.’ Dutton v Evans, 400 US 74, 89 [91 S Ct 210; 27 L Ed 2d 213] (1970), Bruton v United States, 391 US 123, 135-137 [88 S Ct 1620; 20 L Ed 2d 476] (1968). It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ Pointer v Texas, 380 US 400, 405 [85 S Ct 1065; 13 L Ed 2d 923] (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v Stubbs, 408 US 204 [92 S Ct 2308; 33 L Ed 2d 293] (1972). But its denial or significant diminution calls into question the ultimate 'integrity of the fact-finding process’ and requires that the competing interest be closely examined. Berger v California, 393 US 314, 315 [89 S Ct 540; 21 L Ed 2d 508] (1969).”
The right to confront and cross-examine is not without limits. It does not include a right to cross-examine on irrelevant issues. It may bow to accommodate other legitimate interests in the criminal trial process, see Mancusi, supra, and other social interests, see United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974).
The rape-shield law is one part of a relatively recent revision of our penal laws relating to sexual conduct, 1974 PA 266. This revision was a reflection of a nationwide concern about the prosecution of sexual conduct cases. The law is similar to provisions recently enacted by many other states and by the federal government. In People v Khan, 80 Mich App 605, 613-614; 264 NW2d 360 (1978), the Court of Appeals discussed the public policies underlying the law, stating:
"Returning to MCL 750.520j(1); MSA 28.788(10)(1), we observe that this provision — an integral part of Michigan’s criminal sexual conduct act — represents an explicit legislative decision to eliminate trial practices under former law which had effectually frustrated society’s vital interests in the prosecution of sexual crimes. In the past, countless victims, already scarred by the emotional (and often physical) trauma of rape, refused to report the crime or testify for fear that the trial proceedings would veer from an impartial examination of the accused’s conduct on the date in question and instead take on aspects of an inquisition in which complainant would be required to acknowledge and justify her sexual past.
" 'Primarily, * * * [rape shield statutes] serve the substantial interests of the state in guarding the complainant’s sexual privacy and protecting her from undue harassment. In line with these goals, they encourage the victim to report the assault and assist in bringing the offender to justice by testifying against him in court. Insofar as the laws in fact increase the number of prosecutions, they support the government’s aim of deterring would-be rapists as well as its interest in going after actual suspects. These statutes are also intended, however, to bar evidence that may distract and inflame jurors and is of only arguable probative worth. To. the degree that they aid in achieving just convictions and preventing acquittals based on prejudice, they naturally further the truth-determining func tion of trials in addition to more collateral ends.’ ” (Emphasis added.)
The rape-shield law, with certain specific exceptions, was designed to exclude evidence of the victim’s sexual conduct with persons other than defendant. Although such evidence was admissible at common law in relation to certain issues, this practice has repeatedly been drawn into question. The courts, with increasing frequency, have recognized the minimal relevance of this evidence, see Anno: Modern status of admissibility, in statutory rape prosecution, of complainant’s prior sexual acts or general reputation for unchastity, 90 ALR3d 1300, and Anno: Modern status of admissibility in forcible rape prosecution, of complainant’s prior sexual acts, 94 ALR3d 257.
The prohibitions contained in the rape-shield law represent a legislative determination that, in most cases, such evidence is irrelevant. This determination does not lack a rational basis and is not unreasonable. In fact, it is consistent with the results reached by the judiciary in resolving this issue, see State ex rel Pope v Mohave Superior Court, 113 Ariz 22; 545 P2d 946 (1976).
The prohibitions in the law are also a reflection of the legislative determination that inquiries into sex histories, even when minimally relevant, carry a danger of unfairly prejudicing and misleading the jury. Avoidance of these dangers is a legitimate interest in the criminal trial process, see MRE 403. The prohibition indirectly furthers the same interests by removing unnecessary deterrents to the reporting and prosecution of crimes.
At the same time, the prohibitions protect legitimate expectations of privacy. Although this inter est may not be as compelling as those mentioned above, it is entitled to consideration, see Branz-burg v Hayes, 408 US 665; 92 S Ct 2646; 33 L Ed 2d 626 (1972).
The interests protected and furthered by the rape-shield law are significant ones. Given the minimal relevance of such evidence in most cases, the prohibitions do not deny or significantly diminish defendant’s right of confrontation. Defendant has not demonstrated that the statute is unconstitutional. This conclusion is consistent with the result reached in many other jurisdictions.
Ill
In the instant case, defendant raises an ingenious argument supporting the admission of this evidence. He sought to admit evidence of the victim’s possible sexual conduct with others to explain the victim’s ability to describe the sexual acts that allegedly occurred and to dispel any inference that this ability resulted from experiences with defendant. He argues that this victim’s ability to describe the sexual acts corroborates and supports the claim that the acts occurred. He continues, saying that this evidence is similar to evidence of pregnancy, semen or disease in that it is verifiable and some indication of sexual activity. Therefore, defendant urges that because evidence of sexual conduct is admissible to show the origin of pregnancy, semen and disease, so should it be admissible in this case to show the origin of the victim’s knowledge. (It is notable that defendant offered no proofs while arguing on this theoretical level.)
Research into the growing body of case law discussing rape-shield laws failed to reveal any case in which this specific argument was raised.
In most cases, the relevancy, if any, of such evidence will be minimal. A jury is unlikely to consider a witness’s ability to describe sexual conduct as an independent factor supporting a conviction. This ability, unlike pregnancy, semen or disease, need not be acquired solely through sexual conduct.
In contrast, the potential prejudice from the admission of this evidence is great. First, in order for it to have minuscule probative value, it would have to refer not only to the existence of sexual conduct but also to the details of such conduct. To demonstrate a source of knowledge the details of such conduct would have to be compared to the details as presented at trial. There would be a real danger of misleading the jury. There would be an obvious invasion of the victim’s privacy.
Second, striking down the prohibitions as they relate to the issue of this case would permit the admission of evidence of a like nature in every case. In almost every instance, the victim testifies to the conduct that occurred and so could be exposed to cross-examination on these points. A blanket exception for this issue would swallow the rule.
Furthermore, the only cases in which such evidence can arguably have more than a de minimis probative value are ones involving young or apparently inexperienced victims. These children and others are the ones who are most likely to be adversely affected by unwarranted and unreasonable cross-examination into these areas. They are among the persons whom the statute was designed to protect.
Finally, in most of the cases in which the source of the victim’s ability to describe a sexual act may be relevant, there are other means by which one can inquire into that source of knowledge without necessarily producing evidence of sexual conduct with others. Counsel could inquire whether the victim had any experiences (e.g., reading a book, seeing a movie, conversing with others, schoolwork or witnessing others engaged in such activity) which aided him or her in describing the conduct that is alleged.
Therefore, we are persuaded that the prohibitions in the rape-shield law will not deny a defendant’s right of confrontation in the overwhelming majority of cases and, in particular, not in this case. If such a set of facts arises as to place in question the constitutional application of the rape-shield law, it can be addressed.
IV
Applying these standards to the record before us, we conclude that reversal is not required. Although the trial judge granted the motion in limine, no offer of proof was made showing the existence of relevant evidence on this point, see MRE 103(a)(2), and Grondziak v Grondziak, 383 Mich 543; 177 NW2d 157 (1970). A review of the record fails to show that the prosecutor introduced evidence intended to prove that the victim’s knowledge came from defendant’s conduct. The defendant was permitted to cross-examine the victim as to possible sources of knowledge other than the alleged conduct. Only when defendant repeatedly asked the victim about possible sexual conduct with others, and received negative responses, did the trial judge prohibit further inquiries. Absent an offer of proof, one can only speculate whether defendant had other witnesses who would testify to acts of sexual conduct between the victim and persons other than defendant.
Thus, there is no basis on this record for the conclusion that defendant was denied the right of confrontation. Unlike Davis, supra, and Chambers, supra, there is no showing in this case that the excluded evidence even existed. Further, the issue in dispute in this case is more collateral than the issue involved in Davis. Although the "bias” of a witness or complainant is almost always material, the source of one’s ability to describe a sexual act is seldom material.
Nor does the prosecutor’s closing argument necessitate a different conclusion. In this case, defendant asked the victim about prior activities with others and received a negative response. Thus, the prosecutor’s comment was supported by the evidence.
In conclusion, we find the statute to be facially constitutional, and constitutional as applied to these facts. There was no error in the trial which requires reversal.
Therefore, we reverse the decision of the Court of Appeals and reinstate defendant’s conviction.
Fitzgerald, C.J., and Williams and Ryan, JJ., concurred with Coleman, J.
Kavanagh, J.
This case involves the admissibility of similar-acts evidence in a criminal trial. Defendant was convicted of three counts of first-degree criminal sexual conduct arising out of alleged sexual assaults upon his eight-year-old son during which the boy was made to perform acts of fellatio. The trial court admitted testimony offered by the prosecutor of prior acts of fellatio between defendant and the victim, relying on People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), but refused to admit testimony offered by the defendant of prior acts of fellatio between the victim and other persons, relying on MCL 750.520j; MSA 28.788(10). The Court of Appeals reversed defendant’s conviction, holding that it was error to admit the similar-acts evidence offered by the prosecutor. People v Arenda, 97 Mich App 678; 296 NW2d 143 (1980). We recognize the need for admissibility in both instances and, accordingly, reverse the decisions of the Court of Appeals and the trial court and remand for a new trial.
As a general rule, evidence of prior bad acts is not admissible to prove that the defendant acted similarly on the occasion in question because the risk is too great that the factfinder will be diverted from an objective appraisal of defendant’s conduct at the time in question and convict him as a "bad man”. There are two major exceptions to this general rule. The first exception is set forth in MCL 768.27; MSA 28.1050, and provides that "where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material” evidence of similar acts may be admitted if probative of such material matters.
The second exception had its genesis in the common law and is peculiar to sexual offenses. First articulated in People v Jenness, 5 Mich 305 (1858), and most recently upheld in People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), this exception is a recognition that the probative value of similar-acts evidence outweighs the risk of unfair prejudice "where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense”. 390 Mich 413. As stated in Jenness:
"[WJhere a witness has testified to a fact or transac tion which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable; such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction — a link in the chain of testimony, without which it would be impossible for the jury properly to appreciate the testimony in reference to such principal transaction.” 5 Mich 323-324 (emphasis supplied).
In the instant action, the prosecutor elicited testimony from the victim that defendant had forced him to perform acts of fellatio on numerous occasions prior to those in question. The prosecutor offered this evidence in an attempt to show that the youthful victim was able to describe in detail an act of fellatio only because he had in fact been forced by defendant to commit it. The prosecutor also intended to show that the charged offenses were not isolated occurrences but rather were the culmination of a series of similar occurrences and thus were not as incredible as might appear in isolation. This is precisely the situation in which similar-acts evidence may be admitted under the common-law exception. The trial court properly admitted the evidence offered by the prosecutor.
The evidence offered by defendant presents a more difficult issue. At trial, the prosecutor introduced evidence of prior sexual conduct between the victim and defendant to show that the ability of the youthful victim to explicitly describe fellatio was a result of having been forced by defendant to perform it. Defendant attempted to rebut this evidence by showing that the victim’s explicit knowledge of fellatio was indeed a result of actual performance, but with someone other than the defendant. Defendant’s attorney was precluded from pursuing this line of questioning by the court’s pretrial ruling on the prosecutor’s motion in limine to prohibit any reference during trial to prior sexual conduct between the victim and anyone other than the defendant. The court’s ruling was based on MCL 750.520j; MSA 28.788(10) which expressly prohibits the introduction of evidence of the victim’s prior sexual conduct with anyone other than the defendant except to show the source or origin of semen, pregnancy, or disease. During the hearing on the pretrial motion, defendant’s attorney argued that this statutory prohibition violated defendant’s constitutional right to confrontation, but the court refused to "fly in the face” of the statute. When defendant’s attorney attempted to pursue this line of questioning at trial, notwithstanding the pretrial ruling, the bench objected sua sponte and prohibited him from doing so.
On cross-appeal, defendant avers that MCL 750.520j; MSA 28.788(10) is unconstitutional because it infringes his Sixth Amendment rights to confront witnesses and to present a defense.
The Sixth Amendment confrontation clause guarantees all criminal defendants the right to cross-examine witnesses against them, Mattox v United States, 156 US 237; 15 S Ct 337; 39 L Ed 409 (1895), and the compulsory process clause guarantees all criminal defendants the right to present witnesses in their defense. Washington v Texas; 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). Collectively, these clauses guarantee all criminal defendants the right to present a defense. Washington v Texas; Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
MCL 750.520j; MSA 28.788(10) singles out criminal sexual conduct defendants and absolutely prohibits them from introducing evidence of sexual conduct between the victim and anyone other than the defendant except to show the source or origin of semen, pregnancy, or disease. The defendant claims that the Sixth Amendment guarantees all criminal defendants the same right to present evidence regardless of the crime charged.
The Sixth Amendment right to present evidence in one’s defense is limited to evidence which is relevant and not unduly prejudicial. Washington v Texas, supra; Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). Because MCL 750.520j; MSA 28.788(10) restricts a defendant’s right to present evidence in his defense by exclud ing a whole category of evidence, it can pass constitutional muster only if the evidence precluded is irrelevant or more prejudicial than probative.
The prosecutor argues that this statute is constitutional because it is a legitimate legislative determination that evidence of the prior sexual conduct of a victim of criminal sexual conduct is more prejudicial than probative. This argument begs the question. The relevancy and prejudicial effect of evidence are determined by the issues raised at trial, not by the crime charged. Thus, this categorical legislative determination of prejudice is not controlling.
On three occasions, the United States Supreme Court has reviewed state evidentiary rules and found them to be violative of Sixth Amendment rights. In Washington v Texas, supra, the Court struck down the application of two Texas statutes which prohibited criminal defendants from using the testimony of co-participants in the charged crime in their own behalf. In holding that the Sixth Amendment right to have compulsory process for obtaining witnesses is so fundamental to a fair trial that it applies to all state criminal trials through the Fourteenth Amendment, the Court found the Texas statutes to be violative of that right, reasoning:
”[I]t could hardly be argued that a State would not violate the [compulsory process] clause if it made all defense testimony inadmissible as a matter of procedural law. It is difficult to see how the Constitution is any less violated by arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.” 388 US 22. (Emphasis added.)
In Chambers v Mississippi, supra, the Court struck down the application of a state’s witness voucher rule and the hearsay rule which prevented a defendant from introducing evidence that someone else committed the crime with which he was charged. In Chambers, one McDonald had confessed prior to trial to having committed the homicide with which defendant was charged but recanted when questioned at defendant’s preliminary examination. At trial, defendant called McDonald as a witness and entered his prior sworn confession into evidence. On cross-examination, the state elicited from McDonald the fact that he had repudiated his prior confession and additional testimony that he did not commit the homicide in question. Because of the witness voucher rule defendant was required to take the testimony given by his own witness at trial. Defendant was further prevented by the state’s hearsay rule from introducing the testimony of other witnesses to whom McDonald had made his prior confession. The United States Supreme Court recognized the inhibiting effect of these state rules on the defendant’s Sixth Amendment rights and stated:
"Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process * * * But its denial or significant diminution calls into question the ultimate ' "integrity of the fact-finding process” ’ and requires that the competing interest be closely examined.” 410 US 295. (Citations omitted.)
In examining the competing governmental interests in the voucher rule, the Court concluded that "it bears little present relationship to the realities of the criminal process.” 410 US 296. With respect to the hearsay rule, the Court held that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” 410 US 302. (Emphasis added.)
In Davis v Alaska, supra, the Court held that two state statutes prohibiting reference during trial to a witness’s juvenile criminal record violated the defendant’s Sixth Amendment right to confrontation. The defendant was charged with burglary and grand larceny. At trial, the defendant was precluded from introducing evidence showing that the prosecutor’s chief witness, who had previously identified defendant at a photo and corporeal lineup, was on probation from juvenile criminal proceedings and therefore was testifying in favor of the prosecution to avoid probation revocation. In reversing the defendant’s conviction, the Court stated:
"The claim is made that the State has an important interest in protecting the anonymity of juvenile offenders and that this interest outweighs any competing interest the petitioners might have in cross examining [the prosecution’s witness] about his being on probation.
"* * * Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry.
"The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. * * * [T]he State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.” 415 US 319-320.
These decisions reveal that the fundamental right to present evidence in one’s own defense may not be inhibited by the mechanistic application of arbitrary rules which prevent whole categories of defense witnesses from testifying.
We recognize the purpose of MCL 750.520j; MSA 28.788(10) to be the encouragement of prosecution for criminal sexual conduct by assuring victims that their sexual past will not be held to public scrutiny. We have no objection to the purpose of the statute; however, that purpose does not justify the exclusion of a whole category of evidence in all cases. There can be no such absolute exclusion to the detriment of a fundamental right.
If the statute is, as the prosecutor argues, a legislative determination that evidence of a victim’s sexual conduct with persons other than the defendant is always more prejudicial than probative, the prejudice with which the Legislature is concerned is prejudice to the criminal justice system resulting from the refusal of criminal sexual conduct victims to report criminal acts and assist in their prosecution. This prejudice is altogether different from the prejudice required to exclude relevant evidence — the damage of arousing the jury’s emotions, distracting the jury from the main issues, consumption of undue time, or unfair surprise. This prejudice can be effectively recognized and weighed only in relation to the issues which arise during a given trial. When viewed in light of a criminal defendant’s fundamental right to present evidence, prejudice does not admit of categorical definition and absolute exclusion.
While not warranting a categorical exclusion, the interest of the state in promoting efficient prosecution of criminal sexual conduct is sufficient to require a consideration of that interest in each trial and a balancing of it against defendant’s Sixth Amendment rights. We would therefore hold that in each criminal sexual conduct trial wherein the defendant intends to introduce evidence of the victim’s prior sexual conduct with anyone other than the defendant, an offer of proof must be made in an in camera hearing wherein the trial judge can properly weigh the probative value of such evidence against any prejudicial effect.
We would hold MCL 750.520j; MSA 28.788(10) unconstitutional. We would reverse the decision of the Court of Appeals, and remand to the trial court for retrial.
Levin, J., concurred with Kavanagh, J.
Riley, J., took no part in the decision of this case.
MCL 750.520b; MSA 28.788(2).
People v Arenda, 97 Mich App 678; 296 NW2d 143 (1980).
See Jenkins v Moore, 395 F Supp 1336 (ED Tenn, 1975), aff'd 513 F2d 631 (CA 6, 1975); Westen, Compulsory Process II, 74 Mich L Rev 191, 205 (1975).
For a compilation of state statutes, see Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U of Pa L Rev 544 (1980).
FRE 412.
Colo Rev Stat § 18-3-407 (1978).
See, e.g., Pratt v Parratt, 615 F2d 486 (CA 8, 1980), Turley v State, 356 So 2d 1238 (Ala Crim App, 1978), Marion v State, 267 Ark 345; 590 SW2d 288 (1979), People v Blackburn, 56 Cal App 3d 685; 128 Cal Rptr 864 (1976), People v McKenna, 196 Colo 367; 585 P2d 275 (1978), Roberts v State, 268 Ind 127; 373 NE2d 1103 (1978), People v Comes, 80 Ill App 3d 166; 399 NE2d 1346 (1980), State v Ball, 262 NW2d 278 (Iowa, 1978), State v Blue, 225 Kan 576; 592 P2d 897 (1979), Smith v Commonwealth, 566 SW2d 181 (Ky App, 1978), State v Dawson, 392 So 2d 445 (La, 1980), Cantrell v State, 50 Md App 331; 437 A2d 696 (1981), State v Hamilton, 289 NW2d 470 (Minn, 1979), State v How ard, 121 NH 53; 426 A2d 457 (1981), State v Ryan, 157 NJ Super 121; 384 A2d 570 (1978), State v Herrera, 92 NM 7; 582 P2d 384 (Ct App, 1978), People v Mandel, 61 AD2d 563; 403 NYS2d 63 (1978), rev’d on other grounds 48 NY2d 952; 425 NYS2d 63; 401 NE2d 185 (1979), State v Fortney, 301 NC 31; 269 SE2d 110 (1980), State v Piper, 261 NW2d 650 (ND, 1977), State v Gardner, 59 Ohio St 2d 14; 391 NE2d 337 (1979), Cameron v State, 561 P2d 118 (Okla Crim App, 1977), State v Blake, 53 Or App 906; 633 P2d 831 (1981), State v McCoy, 274 SC 70; 261 SE2d 159 (1979), Washington v Cosden, 18 Wash App 213; 568 P2d 802 (1977), State v Green, 260 SE2d 257 (W Va, 1979).
Defendant cites one other case in which this issue was raised, State v Howard, 121 NH 53; 426 A2d 457 (1981).
MCL 750.520b; MSA 28.788(2).
MCL 768.27; MSA 28.1050 reads in its entirety:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
A similar rule is presently embodied in MRE 404(b). The Michigan Rules of Evidence did not become effective until March 1, 1978, and thus were not applicable during the trial of the instant case in January, 1978.
See, also, People v Clark, 33 Mich 112 (1876); Hall v People, 47 Mich 636; 11 NW 414 (1882); People v Skutt, 96 Mich 449; 56 NW 11 (1893); People v Swift, 172 Mich 473; 138 NW 662 (1912); People v Hammer, 98 Mich App 471; 296 NW2d 283 (1980); People v Bailey, 103 Mich App 619; 302 NW2d 924 (1981).
MCL 750.520j; MSA 28.788(10) reads in its entirety:
"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”
US Const, Am VI; applicable to the states through the Fourteenth Amendment. US Const, Am XIV. Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965).
"Persons charged as principals, accomplices or accessories whether in the same or by different indictments, can not be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in behalf of the others.” Tex Penal Code, art 82.
"Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.” Tex Code Crim Proc, art 711 (1925).
The trial court refused to declare McDonald an adverse witness. 410 US 291.
Alaska Rule of Children’s Procedure 23 provides:
"No adjudication, order, or disposition of a juvenile case shall be admissible in a court not acting in the exercise of juvenile jurisdiction except for use in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate.”
Alaska Stat § 47.10.080(g) (1979) provides in pertinent part:
"The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceedings in any other court * * *.”
See MRE 403; McCormick, Evidence (2d ed), § 185, p 434. | [
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Levin, J.
Retirement Homes of the Detroit Annual Conference of the United Methodist Church, Inc., claimed a real and personal property tax exemption for the Chelsea Village Apartments.
The Tax Tribunal, relying on Michigan Baptist Homes & Development Co v City of Ann Arbor, 396 Mich 660; 242 NW2d 749 (1976), denied exemption. The Court of Appeals reversed, saying that Michigan Baptist Homes was distinguishable.
We are of the opinion that Michigan Baptist Homes is controlling and reverse.
I
Retirement Homes is a nonprofit, non-stock corporation. The board of trustees is elected by the Detroit Annual Conference of the United Methodist Church.
The Chelsea facility is comprised of a licensed nursing home, a licensed home for the aged, and the Chelsea Village Apartments. Thirty-six persons reside in the apartments.
The nursing home and the home for the aged have been tax-exempt since 1905. Retirement Homes acquired land adjacent to these facilities in 1967 and 1968 and completed construction of the apartments in 1972. There are 24 apartments; 18 single-bedroom, 4 double-bedroom, and 2 efficiencies.
There was evidence that the apartments were constructed to "improve the age mix” by attracting a younger group of retirees, those over the age of 65 but younger than those normally requiring institutional care, and to establish a more orderly progression of elderly persons through the various facilities in Chelsea.
The apartments are designed for independent living. Residents are responsible for their own medical and dental care as well as obtaining their own meals, although meals can be purchased at cost from the Home for the Aged. Residents have available 24-hour emergency medical service, counseling, full access to and involvement in the social and therapeutic activities and programs conducted at the Chelsea facility, 24-hour maintenance service, utilities, trash removal, lawn care, snow removal, painting and repairs, and free transportation.
Residents are charged a monthly fee which is designed to cover utility and other direct costs and to amortize the cost of construction over a 20-year period. The monthly fee does not include the income which Retirement Homes could have earned by investing the funds that were used in the construction. _
Retirement Homes produced evidence which tended to show that the annual expense of operating the apartments exceeded the fee charged to the residents, but the Tax Tribunal concluded that "[i]t is not clear whether [the apartments] lost money, made money or broke even”.
Applicants are required to supply medical and financial information to assist Retirement Homes in properly placing them within the facilities. Retirement Homes considers that Supplemental Security Income payments are only available to residents of licensed facilities. The apartments are not a licensed facility.
Retirement Homes claimed that no one was ever refused care or evicted because of inability to pay fees. Yet it was acknowledged that residents of the apartments who became unable to pay the monthly fee were asked to transfer to one of the other facilities at Chelsea because they could not obtain government assistance unless they were residents of a licensed facility.* ******
II
. The Court of Appeals, in reversing the Tax Tribunal, distinguished Michigan Baptist Homes. The construction of the apartments was financed entirely by gifts, donations, and bequests, rather than, as in Michigan Baptist Homes, a mortgage and sale of debentures. Because Retirement Homes incurred no debt in financing construction, the monthly charge was set to recover only direct expenses and fund replacement, not payment of interest. A life-care contract with forfeiture was not required, only a monthly fee. In Michigan Baptist Homes each resident was provided ten days of free care in the nursing center each year, which could be accumulated to a maximum of 30 days. Residents of the apartments were provided with 24-hour emergency medical service without additional charge and could transfer to the nursing care facility if necessary.
The Court regarded Gull Lake Bible Conference Ass’n v Ross Twp, 351 Mich 269; 88 NW2d 264 (1958), to be more analogous. In Gull Lake, this Court held that the picnic, recreation, and housing facilities operated by the Gull Lake Bible Conference Association qualified for a charitable property tax exemption, although fees for use of the facilities were charged, because the charitable purpose of the association was to promote Bible study gatherings and the availability of the facilities was necessary to obtain satisfactory attendance. _
III
Retirement Homes claims real and personal property tax exemptions under provisions of the general property tax law exempting the personal property of charitable institutions and real property owned and occupied by charitable institutions while occupied solely for the purposes for which the institution is incorporated.
A property tax exemption is in derogation of the principle that all property shall bear a proportionate share of the tax burden and, consequently, a tax exemption will be strictly construed.
In Michigan Baptist Homes, this Court declared that, to qualify for a charitable or benevolent tax exemption, property must be used in such a way that it "benefit the general public without restriction”. Courts in other jurisdictions have expressed this concept in the following language:
"[CJharity * * * [is] a gift, to be applied consistently with existing laws, for the beneñt of an indeGnite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. ” (Emphasis supplied.)
The question presented can thus be rephrased: Does Retirement Homes operate the apartments in such a way that there is a "gift” for the benefit of "the general public without restriction” or "for the benefit of an indefinite number of persons”?
We conclude that there is no "gift” for the benefit of an indefinite number of persons or for the benefit of the general public without restriction in the operation of the apartments. The monthly fee is designed to cover all operating costs as well as to recover the construction costs of the apartments. While it does not appear that the apartments are operated for a profit, neither does it appear that the residents receive any significant benefit that they do not pay for. There is no "gift” to the residents.
The operation of the apartments does not appear to benefit the general public. Its residents are chosen on the basis of their good health, their ability to pay the monthly charge, and, generally, their ability to live independently. _
The asserted distinctions between the apartments in Michigan Baptist Homes and the apartments in the instant case do not justify treating these apartments differently under the general property tax law. In both cases residents of the apartments were charged fees designed to cover all costs, including the cost of construction. In the instant case, the monthly fees did not, because no funds were borrowed, include an assessment to cover interest on construction funds. However, it was not shown (see fn 6) that the monthly fee was substantially less or indeed less at all than the market rent.
Retirement Homes stresses that it did not require life leases. The monthly fees were, however, set to arrive at the same result in both cases, an economically self-sustaining residence. The volunteer services provided by residents of the apartments cannot justify tax exemption any more than volunteer services supplied by the active elderly who live in their own homes or apartments. The security, recreational, social, and religious services appear to be incidental to providing a comfortable apartment to those who can afford to pay for it and have not been shown to be of a nature differ ent than those provided by many commercial senior citizen residences.
In Michigan Baptist Homes, supra, pp 671-672, this Court concluded that the apartments for which a tax exemption was there sought did "not serve the elderly generally, but rather provide[d] an attractive retirement environment for those among the elderly who [had] the health to enjoy it and who [could] afford to pay for it”. The Court reasoned that the Legislature did not intend "to grant the claimed exemptions to these relatively favored individuals while at the same time granting only limited tax relief to the less affluent elderly who rent or own modest homes”. The Court continued, "[w]e are convinced that the Legislature has given no clear mandate to exempt elderly housing per se”.
In Gull Lake, the auxiliary recreational facilities were used occasionally, and were incidental and not the primary facility. Here the facilities are not auxiliary or incidental. The apartments are the primary facility insofar as the residents are concerned; what is here sought is an exemption for housing devoted to the full-time use of residents. If a nonprofit corporation can build housing for the elderly and obtain a tax exemption for the housing because of incidental auxiliary facilities which it subsidizes, other nonprofit corporations should be able to build or, indeed, purchase housing for rent to other groupings of society and obtain tax exemptions by subsidizing auxiliary facilities which serve their charitable purposes, e.g., day care centers in connection with residences rented to young married people and recreational facilities adjoining residences rented to the unmarried. The auxiliary facilities might include an educational component advancing the charitable purpose to attract and benefit those using day care or recreational facilities.
This Court’s decision in Michigan Baptist Homes was not limited to the facts of that case. The Court understood and said that what was there involved was whether a tax exemption was to be conferred on housing for the elderly although persons residing in the facility paid the cost of the housing provided. The Court concluded that the Legislature did not intend that housing for the elderly should be tax exempt where only those persons who can afford the cost of the housing benefit.
Reversed and the decision of the Tax Tribunal is reinstated.
Fitzgerald, C.J., and Kavanagh and Ryan, JJ., concurred with Levin, J.
Williams and Coleman, JJ. For reasons set forth in Justice Coleman’s opinion in Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660; 242 NW2d 749 (1976), we dissent.
Riley, J., took no part in the decision of this case.
The tax years are 1973 through 1976.
92 Mich App 560; 285 NW2d 375 (1979).
The trustees serve without pay. Retirement Homes operates facilities in two locations: the Boulevard Temple Home in Detroit, and the Chelsea Home in Sylvan Township, Washtenaw County. A total of 435 persons reside at the facilities. It is not clear how many reside in the nursing home and the home for the aged at Chelsea.
The Crippen Memorial Building, a community center, was not included in the assessment.
Retirement Homes has an open admissions policy, and all persons regardless of race, creed, color, sex, or religion may be admitted to any of the facilities as long as they are 65 years of age or older and mentally capable of living in a congregate setting.
Residents may participate in the resident council, an advisory board elected by the residents of the Chelsea facility, which renders advice and assistance to the administrator regarding all aspects of life at the Chelsea facility; participate in the Chelsea Home Reporter, a newsletter; attend and participate in Sunday chapel services; and participate in recreational groups, in ceramic and other craft activities, in bible study and similar religious activities, and in excursion groups. All residents of the Chelsea facility have access to the Crip-pen Memorial Building.
Residents participate in the daily operation of the Chelsea facility and provide a substantial amount of voluntary assistance to residents of the nursing facility and home for the aged.
The fee schedules were as follows:
1973 1977 1978
(Monthly) (Monthly) (Monthly)
$190.00 $243.00 $265.00 + Two Bedrooms
Real Estate Tax $50.00 per month
One Bedroom $175.00 $208.00 to $225.00 to
$220.00 $240.00 +
Real Estate Tax $41.00 per month
Efficiency $140.00 $180.00 $200.00 +
Real Estate Tax $35.00 per month
The township introduced evidence of the rent charged by privately owned apartments in the same area for the same years. Two-bedroom apartments, roughly comparable in size, rented for $160 to $175 in 1973 and $187 to $240 in 1977 and 1978.
While Retirement Homes keeps a separate accounting of the income from the apartments, it does not of the expenses; the expenses were only estimates. Three-sevenths to one-half of the total expenses claimed by Retirement Homes was for depreciation calculated on a 20-year useful life for the facilities. Other evidence presented tended to show that the actual useful life as calculated by the Retirement Homes auditors was 40 years. If 40 years was used, it would have shown a small profit during the tax years.
When asked if any resident was or had become indigent while residing at the apartments, the executive director and administrator of the Chelsea facility replied that there was currently one resident who was moving from the apartments into one of the other facilities and that three other residents had already moved from the apartments to one of the other facilities when those residents could no longer meet the monthly payments.
The Tax Tribunal declared that Retirement Homes could obtain a property tax exemption for the apartments in either of two ways. Retirement Homes could prove beyond a reasonable doubt that the apartments "as a separate facility [are] entitled to the exemption”.
The Tax Tribunal found that the apartments were not an inextricable facet of the other Retirement Homes facilities. The tribunal noted that residents of the apartments made up a minor portion of Retirement Homes’ total residential population, 36 out of 435, and that the residents may leave the apartments at any time because they have no formal lease. The tribunal also found that the involvement of the residents of the apartments with the residents of the nursing center and home for the aged facilities was strictly voluntary. It could not be depended upon as a permanent feature of the apartments, and, in any case, Retirement Homes had failed to demonstrate that the 36 residents "contribute significantly” to the lives of the other residents. Further, the failure to license the apartments as an old age home and the emphasis on an independent lifestyle for the residents of the apartments also sets the apartments apart from the other facilities.
With respect to the apartments’ own qualification for a charitable exemption, the tribunal said that decisions of this Court require that the building and property be occupied by the claimant solely for the purposes for which it was incorporated. The tribunal found that the operation of the apartments, which admitted residents on the basis of their health and ability to pay the monthly fee, was inconsistent with the Retirement Homes’ articles of incorporation which indicated that its purpose was to provide homes for the aged without reference to the financial resources of the residents. Additionally, Retirement Homes claimed to be incorporated for purely benevolent, charitable, educational, and religious purposes, but the economic and health restrictions on admission to the apartments prevented the operation of the apartments from benefiting the general public without restriction as is required of a charity. The tribunal also found that the apartments were merely "a method whereby [the apartment] residents assure themselves a bed in a nursing home upon becoming disabled” and "a convenient method of keeping a ready supply of prospective nursing home and old age home residents on hand”. The tribunal concluded that the apartments’ operation was essentially the same as the retirement home denied an exemption by this Court in Michigan Baptist Homes & Development Co v City of Ann Arbor, 396 Mich 660; 242 NW2d 749 (1976).
The Court of Appeals reasoned that since the township conceded that the purpose of the apartments was to "allow residents to mix and to provide a steady supply of clients to the Chelsea home” and the facilities in the cited case had been deemed to be used for charitable purposes because they were used to attract participants for the Bible Association’s charitable activities, therefore the use of the apartments was within Retirement Homes’ charitable purpose and eligible for tax exemption.
"The following property shall be exempt from taxation:
"Fourth, such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions and memorial homes of world war veterans incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated * * MCL 211.7; MSA 7.7.
"The following personal property shall be exempt from taxation:
"First, the personal property of charitable, educational and scientific institutions, incorporated under the laws of this state * * MCL 211.9; MSA 7.9.
Michigan Baptist Homes v Ann Arbor, supra; Evanston YMCA Camp v State Tax Comm, 369 Mich 1, 7; 118 NW2d 818 (1962); Detroit v Detroit Commercial College, 322 Mich 142, 149; 33 NW2d 737 (1948); St Joseph’s Church v Detroit, 189 Mich 408, 414; 155 NW 588 (1915).
Michigan Baptist Homes, supra, p 671. See Auditor General v R B Smith Memorial Hospital Ass’n, 293 Mich 36, 38; 291 NW 213 (1940).
It appears that this description was first employed by the Massachusetts Supreme Court in Jackson v Phillips, 96 Mass (14 Allen) 539 (1867), and that it was subsequently adopted in the following cases: United Presbyterian Ass’n v Bd of County Comm’rs, 167 Colo 485, 494-495; 448 P2d 967, 971 (1968); Coyne Electrical School v Paschen, 12 Ill 2d 387, 398; 146 NE2d 73, 79 (1957); Boston Chamber of Commerce v Assessors of Boston, 315 Mass 712, 716; 54 NE2d 199, 201; 152 ALR 174 (1944); In re Jr Achievement of Greater Minneapolis, Inc v State, 271 Minn 385, 390; 135 NW2d 881 (1965); Salvation Army v Hoehn, 354 Mo 107; 188 SW2d 826 (1945); Franciscan Tertiary Province of Missouri, Inc v State Tax Comm, 566 SW2d 213 (Mo, 1978); Presbyterian Homes v Div of Tax Appeals, 55 NJ 275; 261 A2d 143 (1970).
The following cases require that a charity relieve the burden of government or benefit the general welfare. American Society of Agricultural Engineers v St Joseph Twp, 53 Mich App 45; 218 NW2d 685 (1974); David Walcott Kendall Memorial School v Grand Rapids, 11 Mich App 231; 160 NW2d 778 (1968); Friendship Manor Corp v Tax Comm, 26 Utah 2d 227, 239; 487 P2d 1272, 1277 (1971); Willows v Munson, 43 Ill 2d 203, 208; 251 NE2d 249, 252 (1969); Haines v St Petersburg Methodist Home, 173 So 2d 176 (Fla App, 1965); Fifield Manor v Los Angeles County, 188 Cal App 2d 1; 10 Cal Rptr 242 (1961).
A corporation does not qualify for a tax exemption merely because it is structured to be nonprofit and in fact makes no profit. By the same token, a nonprofit corporation will not be disqualified for a charitable exemption because it charges those who can afford to pay for its services as long as the charges approximate the cost of the services. Michigan Sanitarium & Benevolent Ass’n v Battle Creek, 138 Mich 676, 683; 101 NW 855 (1904); Auditor General vRB Smith Memorial Hospital Ass’n, supra, p 39; Gull Lake Conference v Ross Twp, supra.
Retirement Homes contends that it has not evicted anyone from the apartments who became unable to pay the monthly fee and has admitted persons whose total assets would qualify them as indigent. Evidence was presented to the Tax Tribunal which tended to show that of the original residents admitted to the apartments, three had disclosed assets which respectively totalled zero dollars, $5,000, and $5,073. Although no one has been evicted, all who have become incapable of paying a monthly fee have been transferred to one of the licensed facilities where they may receive government aid. Merely because a few individuals with minimal disclosed assets were admitted to the apartments it does not follow that any charity was involved in their admissions since Retirement Homes never claimed that monthly payments for these residents were waived or even reduced. While 55% of the residents in the various Retirement Homes facilities are unable to pay the costs of their care, no evidence was presented regarding what percentage, if any, of the apartments’ residents were subsidized by Retirement Homes.
In Michigan Sanitarium & Benevolent Ass’n v Battle Creek, supra, and Auditor General v RB Smith Memorial Hospital Ass’n, supra, the nonprofit corporations admitted and treated all charity cases which came to their doors. Medical care was provided by those corporations without regard to ability to pay the cost of the service. Admission to the apartments, if not to the other facilities, is dependent on ability to pay.
The cost of emergency medical care provided to residents of the apartments does not appear to be significant.
Retirement Homes quoted extensively from In re Tax Appeals of United Presbyterian Homes, 428 Pa 145; 236 A2d 776 (1968); Fiñeld Manor v Los Angeles County, supra, and Franciscan Tertiary Province of Missouri, Inc v State Tax Comm, supra, to support its argu ment that charity is not limited to providing for the indigent and that the problems of the elderly are more than economic. We find these cases unpersuasive because it appears that a tax exemption was granted, at least in part, because many of the residents were subsidized either by the home, by the government, or by both. In Fiñeld Manor, each of the three homes involved were losing from $39 to $47 per month per resident, but nevertheless persons unable to pay the entrance fee were admitted and their fees were covered by donations or waived. Almost half the residents of the home in United Presbyterian Homes were receiving government assistance, and the operations were found to operate at a loss. Similarly, in Franciscan Tertiary Province the rents were less than one-half actual cost and one-sixth of the residents received a government rent supplement to help make the reduced payment. In the instant case, Retirement Homes failed to show that the rent of any resident of the apartments was subsidized on a regular basis. | [
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Rehearing denied. Reported at 415 Mich 512.
Cavanagh, J., would grant rehearing. | [
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Rehearing denied. Reported at 415 Mich 372. | [
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Ryan, J.
The ultimate question in this case is whether the appellee Bloomfield Township is required to provide school crossing guards at an intersection located near one of the appellant’s schools in Bloomfield Township, Oakland County. The school district claims that the duty is imposed upon the township by statute, and the township claims that the duty belongs to the Oakland County Sheriff.
For about 20 years prior to 1978, the Pontiac School District provided crossing guards for selected school crossings in the district. It selected, trained, supervised, and paid the guards. In June of 1978, the Legislature enacted 1978 PA 227, amending the Michigan Vehicle Code. The new law authorized the establishment of school crossings, mandated the appointment of crossing guards, prescribed the guards’ uniform and equipment, authorized the guards to stop traffic, and made disobedience of a guard’s proper stop signal a misdemeanor. In addition, subsection (1) of § 613c of the amendment provided that the local law enforcement agency having jurisdiction of the crossing is responsible for providing the crossing guards.
Section 613c(l) provides:
"School crossing guards shall be the responsibility of the local law enforcement agency having immediate jurisdiction of the crossing.”
Appellant school district’s position is that Bloomfield Township, and specifically its police department, is the "local law enforcement agency having immediate jurisdiction of the crossing” in question. The district has requested the township officials to provide a crossing guard, and the township has refused, claiming that posting crossing guards is the responsibility of Oakland County, since the crossing in question is at the intersection of two county roads and the crossing was "established” by the county road commission under the provisions of § 613a(l).
In November of 1978, upon the township’s refusal to provide the requested crossing guards, the school district filed an action in the Sixth Judicial Circuit Court (Oakland Circuit) seeking a declaratory judgment that it is the township’s duty to provide the crossing guard and praying for a writ of mandamus to compel compliance. The township answered, denying that its police department was "the local law enforcement agency having immediate jurisdiction of the crossing”. Appellant countered with a motion for summary judgment. The circuit court granted the appellant’s motion on the ground that the township failed to state a valid defense to the appellant’s claim. GCR 1963, 117.2(2). The trial court held that Bloomfield Township is the local law enforcement agency having immediate jurisdiction of the crossing and, after later considering additional proofs that the crossing had been established according to the terms of the statute, issued a writ of mandamus to compel the township to provide the crossing guards.
On appeal, the Court of Appeals, in an unpublished opinion, reversed the circuit court’s order granting summary judgment, declaring that:
"[The] defendant’s answer alleged that the township was not the local law enforcement agency with immediate jurisdiction over the crossing as that term is used in the statute”,
and that
"[w]here a review of the record reveals that material issues of fact exist, summary judgment should not be granted.”
Instead of remanding the case to the trial court for trial, however, the appellate court, having found that there existed a "material issue of fact” which precluded determining as a matter of law whether the defendant was obligated to provide the crossing guards, inexplicably decided, as a matter of law, that the Oakland County Sheriff was obligated to do so.
The court stated:
"The trial court and the plaintiff have seemingly assumed that, under the school crossing statute, the entity which establishes the crossing, and the entity financially responsible for manning it with crossing guards, need not be one and the same. Thus, as in this case, the county may establish the crossing while the township is obligated to provide crossing guards therefor.”
Such an interpretation, the court said, "would render the statute nonsensical”. The correct interpretation of the statute, the court held, is that the entity which establishes the crossing, in this case the county, is responsible to provide the guards, and since Bloomfield Township did not establish the crossing it cannot be required to provide guards. Acknowledging that it was raising and deciding a question which was "not explicitly raised as a question on appeal”, the court declared:
"Because the question is crucial to this case, in the interests of justice we raise and resolve it before remand.”
Having thereby effectively granted the appellee a judgment as a matter of law, the appellate court ordered the cause remanded to the trial court for entry of an order of dismissal.
We think the Court of Appeals was correct in reversing the trial court’s entry of summary judgment for appellant, and erred in failing to remand the case for trial.
The case has never been tried. Within three weeks after the appellee filed its answer to the complaint, the appellant filed a motion for summary judgment on the specific ground that:
"The defendant has failed to state a valid defense to the claim asserted against it and plaintiff is entitled to a summary judgment in its favor under GCR 117.2(2).”
GCR 1963,117.2(2) states:
"Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
"(2) the opposing party has failed to state a valid defense to the claim asserted against him”.
The essence of the appellant’s claim is alleged in paragraph 4 of its complaint:
"Bloomfield Township through its police department is the local law enforcement agency having immediate jurisdiction of school crossings in Bloomfield Township”.
to which appellee answered,
"(4) Answering paragraph 4, defendant denies that its police department is the local law enforcement agency having immediate jurisdiction of school crossings in Bloomfield Township for the reason that the said allegations are untrue.”
A motion for summary judgment based upon GCR 117.2(2) is tested solely by reference to the pleadings, Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965), and, when, as here, a material allegation of the complaint is categorically denied, summary judgment under 117.2(2) is improper. Here the appellant alleged, and the appellee denied, that the Bloomfield Township Police Department is the local law enforcement agency with immediate jurisdiction over the school crossing in question. While the meaning of the concepts "immediate jurisdiction” and "law enforcement agency”, as employed in § 613c of the statute, may be issues of law in the abstract, they are but aspects of a factual dispute in the context of the pleadings of the parties in this case. Whether the Bloomfield Township Police Department, or some other agency such as the Michigan State Police or the Oakland County Sheriff, is the law enforcement agency which has "immediate jurisdiction” over the school crossings in question is a factual issue squarely framed by the appellee’s general denial in paragraph 4 of its answers. It is not a matter concerning which this Court may take judicial notice. MCL 41.181; MSA 5.45(1), for example, provides that a township is free to contract with the county sheriff to provide enforcement of local ordinances and state laws. We do not know whether it has done so. We also do not know whether, as a matter of fact, the Bloomfield Township Police Department, if it has not contracted out its traffic enforcement duties, has the requisite manpower to enforce state laws under MCL 41.181; MSA 5.45(1). While it is highly probable that those matters are not genuinely in dispute and could be resolved upon the filing of affidavits, we cannot know that from the record before us. From the pleadings alone, and from the facts alleged in paragraph 4 of the appellant’s complaint and denied in corresponding paragraph 4 of the appellee’s answer, it is impossible to determine, as a matter of law, what "law enforcement agency [has] immediate jurisdiction of the crossing” in question, and it is legally impermissible to do so. Durant, supra.
While, like the trial court and the Court of Appeals, we would prefer to reach the substantive question of public importance which divides the parties, the case is not in a posture to permit us to do so. The cause is therefore ordered remanded to the trial court for further proceedings.
Williams, C.J., and Kavanagh, Brickley, and Cavanagh, JJ., concurred with Ryan, J.
MCL 257.6I3a-257.613d; MSA 9.2313(1)-9.2313(4).
While the appellant’s complaint does not allege the specific location of the crossing in question, it appears to be undisputed that the crossing is over Orchard Lake Road at the intersection of Ward Road and that Orchard Lake Road is a county road in Bloomfield Township, Oakland County.
"(1) The township board of a township may, at a regular or special meeting by a majority of the members elect of the township board, adopt ordinances regulating the public health, safety, and general welfare of persons and property, fire protection, the licensing or use of bicycles, traffic and parking of vehicles, sidewalk maintenance and repairs, the licensing of business establishments, the licensing and regulating of hawkers, vendors, peddlers, solicitors, pawnbrokers, circuses, carnivals, and public amusements, and provide penalties for the violation of the regulations, and shall enforce the same and may for that purpose employ and establish a police department with full power to enforce local township ordinances and state laws, and in the event state laws are to be enforced, a township shall have a law enforcement unit composed of not less than 1 full-time person, the members of which shall have not less than 2 weeks prior police work experience or its equivalent as approved by the township board or may by resolution appropriate funds and call upon the sheriff of the county in which the township is located to provide special police protection for the township. The sheriff shall, when called upon, provide special police protection for the township and enforce all local township ordinances, to the extent that township funds are appropriated for the enforcement. Special township deputies appointed by the sheriff shall be under the jurisdiction of and solely responsible to the sheriff. Ordinances regulating traffic and parking of vehicles and bicycles shall not be in contravention of Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Michigan Compiled Laws.” (Emphasis added.)
Had the appellant brought its motion under GCR 1963, 117.3, supported by the necessary affidavit, it may well have foreclosed any "genuine issue as to any material fact” and left only a legal issue for trial court resolution. It did not choose that course, however.
We specifically decline to express an opinion concerning the correctness of the Court of Appeals resolution of the substantive issue it addressed because, having correctly determined that there were factual issues for trial in the case as framed by the parties’ pleadings, the issue decided by the Court of Appeals was not properly before it for decision. | [
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Ryan, J.
The plaintiff, George Leskinen, appeals the affirmance by the Court of Appeals of a Workmen’s Compensation Appeal Board decision denying him benefits under the Worker’s Disability Compensation Act.
We hold that the board’s opinion is lacking in sufficient clarity to enable this Court to properly discharge its review function and we remand the case to the board for clarification of its findings.
I
George Leskinen was employed by the State of Michigan in various capacities beginning in 1956. He worked first as a weighmaster but after a reorganization of the executive department of state government, accepted a job as a bridge operator in Ontonagon in order to remain in the Upper Peninsula. The change of jobs entailed a reduction in pay. Despite that fact he continued to work as a bridge operator for about two years. Then in July, 1970 he became an employment and claims interviewer for the Michigan Employment Security Commission (MESC) in Calumet.
In his new job as a claims interviewer Leskinen was required to perform clerical activities, and to interview prospective workers to determine whether these people were eligible for unemploy ment compensation. He was also required to do "counter work” which his appellate counsel described as "assuring that people entitled to unemployment compensation received it, and answering their questions”.
He claimed that his work with the MESC proved to be frustrating to him and placed him under significant strain and pressure. He alleged that he began to suffer from nervousness and an inability to concentrate, finding difficulty in adding and subtracting simple numbers.
Leskinen’s problems apparently persisted and he quit his job on January 11, 1971. Subsequently, he sought medical advice from his family physician, Dr. Repola, and later consulted two psychiatrists who examined and treated him. One of the psychiatrists diagnosed Leskinen’s condition as an "anxiety tension state” and the other described him as suffering from "depressive reaction”.
Dr. Repola testified that Leskinen’s emotional condition was related, inter alia, "to the trauma of the change of jobs”, that "this change of job * * * precipitate[d] the problem” and that Leskinen’s "job at the time might have contributed to [his] condition”. Dr. Garaza, one of the psychiatrists who treated Leskinen, testified on the basis of a hypothetical question put to him by claimant’s attorney, that Leskinen’s "job at the time might have contributed to [his] condition”. Dr. Garaza also testified that he believed Leskinen could probably perform well on a job he liked.
The hearing referee denied claimant benefits stating:
"A hearing having been held on February 24, 1972 at Hancock, Michigan on petition of (plaintiff), I find as follows:
"That the above named employee (did not) receive a personal injury arising out of and in the course of (his) employment by the above named employer on January 11, 1971 * * * ”.
The Workmen’s Compensation Appeal Board affirmed the decision of the hearing referee. The Court of Appeals granted leave to appeal and affirmed in an unpublished per curiam opinion on January 13, 1975.
II
Plaintiff contends that the board erroneously interpreted the applicable law in reaching its decision. Defendants argue that the board correctly applied the law and denied benefits because it found as a matter of fact that plaintiff suffered no compensable injury and that such a determination is beyond the review powers of this Court. Const 1963, art 6, § 28; MCLA 418.861; MSA 17.237(861).
In its opinion, the board quoted from the testimony of Dr. Repola, summarized above, and concluded:
"It is very much evident in this record that plaintiff simply could not handle the job of employment and claims interviewer and just as evident that he is not disabled.”
The statement that "he is not disabled”, however, is not explained or otherwise related to any testimony quoted in the opinion.
The board then quoted from the testimony of Dr. Garaza, buttressing his conclusion that the claimant "would probably be able to perform well” on a job that he liked by quoting the claimant’s own description of certain home remodeling activities he had engaged in since the alleged injury. The board’s concluding paragraph then states:
"Plaintiffs inability to perform satisfactorily on the employment and claims interviewer job even though it may have caused some emotional distress in no way provides a proper basis for a claim of disability causally connected with his employment. The referee was correct in finding that plaintiffs 'alleged disability is not related to employment with the defendant’.”
That seemingly unequivocal "finding” is immediately followed, however, by the following:
"Further, the plaintiff’s ability to perform the various tasks he described such as installing a bathroom, remodeling a kitchen, putting sinks, cupboards and a furnace in his house, insulating an attic, installing wood paneling and building a garage effectively negate his claim of disability. We are mindful, too, that Doctor Repola, his psychiatrist, was of the opinion that plaintiff could probably 'perform well’ on 'a job that he liked.’
"The decision of the referee will be affirmed.”
Plaintiff argues that the board improperly relied on the limiting language of MCLA 418.371; MSA 17.237(371) in determining whether' he suffered a work-related injury. MCLA 418.371(1); MSA 17.237(371X1) provides:
"The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury. ” (Emphasis added.)
He contends that the concluding language of the board’s opinion suggests that the board’s "finding” that the claimant’s "alleged disability is not related to employment with the defendant” rests upon its conclusion that Leskinen was capable of doing other kinds of work including a number of plumbing, carpentry and home repair tasks and that, as observed by Dr. Garaza, the "plaintiff could probably perform well on a job that he liked”. Thus, Leskinen argues, the board appears to have relied upon the foregoing statutory language in determining that, although Leskinen may have suffered a disabling injury, his earning capacity in other employments such as carpentry, plumbing and home repairs was not impaired and concluded therefrom that he did not suffer a personal injury entitling him to benefits under the act.
If that was the board’s reasoning, it was indeed erroneous.
Eligibility for benefits under the act is established when an employee proves that he has suffered a personal injury which arose "out of and in the course of his employment”. MCLA 418.301(1); MSA 17.237(301X1). Van Atta v Henry, 286 Mich 379; 282 NW 185 (1938). It is only after this threshold determination that the amount of benefits is then computed. The statutes and the prior decisions of this Court make apparent the fact that "earning capacity” is a factor in calculating the amount of beneñts, not whether a claimant has suffered a work-related personal injury.
However, because of the language of the board’s opinion, we are unable to say with reasonable certainty whether the board improperly utilized MCLA 418.371; MSA 17.237(371) in passing on the existence of an injury, or made a proper factual determination which would be beyond our scope of review. It is impossible, therefore, for this Court to properly discharge its review function.
Ill
We were confronted with a similar problem in DeGeer v DeGeer Farming Equipment Co, 391 Mich 96; 214 NW2d 794 (1974), where Justice Swainson stated for the Court:
"Our first step in reviewing a decision of the Workmen’s Compensation Appeal Board is to separate its findings of fact from its understanding of the law controlling the case. If the Appeal Board correctly understood the law and determined as a matter of fact that appellant did not suffer permanent and total disability, we are bound by law to accept its decision in this case. Const 1963, art 6, § 28; MCLA 418.861; MSA 17.237(861). If, however, the Appeal Board erroneously interpretated [sic] the Workmen’s Compensation Act in reaching its decision, we have the duty and authority to correct any such erroneous legal conclusions. Id.
"In the present case we are unable to perform that necessary first step of review. Unfortunately, the opinion of the Appeal Board has combined its findings of fact and legal conclusions in such a manner that the opinion may be fairly read to support either appellant’s position that the Appeal Board denied benefits because it interpreted the law to limit recovery to factual situations in which the disability results from a direct injury to the legs, or appellees’ position that no permanent and total loss of industrial use was factually established. Consequently, we must remand this case for further proceedings consonant with the remainder of today’s opinion.
"In order to allow the appellate courts to properly perform the review function we remind the appeal board that:
" 'We cannot * * * review the findings of the board as a question of law if * * * it has done nothing more than to present us with a conclusory finding in the form of the statutory language. We need to know the path the board has taken through the conflicting evidence. The appeal board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion.’ McClary v Wagoner, 16 Mich App 326, 327-328; 167 NW2d 800 (1969).” 391 Mich at 100-101.
Accordingly, we remand this case to the Workmen’s Compensation Appeal Board with direction that it make specific findings of fact and conclusions of law determining whether the plaintiff suffered a personal injury and assigning a factual and legal basis for its conclusion.
Kavanagh, C. J., and Williams and Levin, JJ., concurred with Ryan, J.
Lindemer, J.
(to affirm). I would affirm the denial of worker’s compensation benefits in this case.
In its opinion, the appeal board said:
"It is very much evident in this record that plaintiff simply could not handle the job of employment and claims interviewer and just as evident that he is not disabled.”
There was expert psychiatric testimony to support this conclusion. Plaintiff was described as a "shy” and "introverted” man who was unable to cope with the complex environment.
Apparently when plaintiff changed jobs, he suffered emotional disturbance. Doctor Repola believed that the emotional instability resulted from "the trauma of the change of jobs”. Doctor Garaza opined that plaintiff’s unhappiness with his transfer of jobs precipitated his emotional reaction. In short, the duties of the new job did not match with plaintiff’s established personality. This conflict caused an "anxiety tension state” which left the plaintiff "empty within him[self] and helpless and really discouraged about the fact that he couldn’t handle what he was called upon to handle”.
To accept plaintiff’s argument that he is entitled to benefits would be to hold that the emotional disturbance suffered by any employee who takes a job for which he is not emotionally suited is a compensable injury. I would not stretch the statutory language "a personal injury arising out of and in the course of his employment” to that extreme. The decision to award compensation to those with an emotional instability is a policy decision which should be left to the Legislature.
On the record before us, I must conclude, as did the referee, the Workmen’s Compensation Appeal Board, and the Court of Appeals that plaintiff’s disability was not due to his employment, but arose solely because of his personal albeit subconscious dissatisfaction with his job.
In any event I don’t believe the record supports a claim for continuing disability. In Carter v General Motors Corp, 361 Mich 577, 594; 106 NW2d 105 (1960), the Court said:
"If there were testimony that claimant’s inability to work on a production line was caused by the paranoid schizophrenic condition for which we have held he is entitled to compensation benefits, he would be entitled to continuing payment of such benefits. However, Dr. Tourkow testified that as of September 11, 1957, Mr. Carter no longer showed any symptoms of paranoid schizophrenia or other psychosis. He testified that Mr. Carter should not be employed again in production work, not because of his paranoid schizophrenia, but for the same reason he should not have been employed in such work in the first place: Mr. Carter has a personality configuration that makes him more susceptible than others to psychotic breakdowns when subjected to pressures such as are encountered in production line employment. Under the circumstances, we find no evidence to support the appeal board’s award continuing compensation benefits beyond September 11, 1957.”
In this case, Dr. Garaza testified:
"Q. Do you think he’s lost his ability to function in any other regard outside of his job?
'A. No. Now, are you referring to him now or then?
”Q. Well, then and now if there’s any difference.
'A. Well, then I couldn’t tell you for sure; but now, no. I think he could function well in some other setting.
"Q. Is there any activity you could think of that you would consider this man disabled from by reason of his present condition, other than this type of work that he was doing?
"A. No.
' ■Q. Could you give us any estimate as to time?
"A. He can go to work right now as far as I am concerned.”
On these facts, I believe any award of continuing benefits would be improper.
Coleman and Fitzgerald, JJ., concurred with Lindemer, J.
Docket No. 19180 (T. M. Burns, P. J., Quinn and O’Hara, JJ.).
The board apparently misstated itself. Although the quoted remarks are properly attributed to "his [plaintiff’s] psychiatrist”, the psychiatrist was Dr. Garaza. Dr. Repola was claimant’s family physician.
The rate of compensation is determined according to MCLA 418.321; MSA 17.237(321), MCLA 418.351; MSA 17.237(351), or MCLA 418.361; MSA 17.237(36Í), depending on whether the employee’s work-related injury results in death, total disability or partial disability. The "rate” of compensation is a percentage of the employee’s "average weekly wage”. The term "average weekly wage” is defined by MCLA 418.371; MSA 17.237(371) to be the measure of the employee’s "earning capacity in the employment in which he was working at the time of the injury”.
E.g., Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966); Kaarto v Calumet & Hecla, Inc, 367 Mich 128; 116 NW2d 225 (1962); Geis v Packard Motor Car Co, 214 Mich 646; 183 NW 916 (1921). | [
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Coleman, J.
Plaintiff directed 14 interrogatories to defendant Henry Ford Hospital in the course of this malpractice suit against defendants. The ques tions relate to the feeding technique, "hyperalimentation”. The hospital objected to interrogatories 5 through 14. The trial judge, on October 26, 1973, upheld the objections to all excepting number 5, which he ordered to be answered. He disclosed no factual or legal basis for the order. Plaintiff appealed the order and on March 18, 1974 the Court of Appeals ordered defendant hospital to answer interrogatories 8 through 14, finding that "[t]he information sought to be gained by the interrogatories allowed is not protected from disclosure by § 12(2) of the act regulating licenses of hospitals, 1968 PA 17, MCLA 331.411, et seq.; MSA 14.1179(1) et seq.”.
Plaintiff next appealed the Court of Appeals order as it related to questions 6 and 7, the only interrogatories which the hospital is not now required to answer. These read:
"6. Upon how many patients was it [hyperalimentation] used before it was used on Duane C. Marchand?
"7. Of the patients upon whom it was used before Duane Marchand, how many died?”
On May 7, 1975, we remanded Marchand pursuant to the following order at 394 Mich 906 (1975):
"On order of the Court, leave to appeal having been granted, briefs presented and arguments heard, this cause is remanded to the Circuit Court for the County of Wayne for further hearing(s) to permit the parties an opportunity to disclose more fully on the record why the information sought by interrogatories 6 and 7 does or does not deserve the protection provided by MCLA 331.422; MSA 14.1179(12).
"The Court anticipates that subsequent to the hearing(s) the record will disclose whether data had been collected relative to the challenged treatment and, if collected, whether it was for the purpose of review as protected by the Hospital Licensing Act. Further, if no data were collected, the record is expected to disclose the extent of the burden which would be imposed upon the hospital if required to gather such.
"The Court also anticipates that the record will reflect what, if any, relevancy the requested data may have to the death of Duane C. Marchand.
"This remand also will afford the circuit judge an opportunity to detail more fully the basis of his order regarding interrogatories 6 and 7.
"It is further ordered that this Court retain jurisdiction and that final disposition be held in abeyance pending the completion of the hearing(s) on remand and the filing of the supplemental record and findings of the trial judge with this Court.
"The parties will be informed if the Court requires further briefing.” (Emphasis added.)
Pursuant to our order, hearings were held on November 13, 1975 and December 19, 1975. Fol lowing the hearings, the trial judge issued the following order on January 13, 1976:
"It is hereby ordered that the investigation and research entered into by Dr. Thomas A. Fox was not data or knowledge which was obtained through an assignment for the review function as contemplated by MCLA 331.422 Section 12(1), (2) and (3) and;
"It is hereby ordered that the Defendant answer Interrogatories No. 6 and 7 of Plaintiffs Interrogatories dated September 27, 1973.”
Our examination of the transcripts of the hearings indicates that the order of the trial court should be affirmed.
Subsection 2 of MCLA 331.422; MSA 14.1179(12) creates an evidentiary privilege regarding certain information gathered pursuant to the review function mandated in subsection 1 of the statute.
However, in order for the evidentiary privilege to become operable, the "records, data and knowledge” must have been "collected for or by individuals or committees assigned this review function”.
At the November 13, 1975 hearing, the following colloquy took place between Dr. Thomas A. Fox and the plaintiffs attorney:
”Q. Can you tell us a little bit about under what circumstances it was requested that you, on the patients that you worked on, should keep records in regard to hyperalimentation feeding?
'A. There was no request for me to keep records. I did this on my own initiative to see how this procedure worked.
”Q. In other words, just for your own, shall we say, education and for your own enlightenment you decided to keep records on the patients that were subjected to your care as to whether or not this procedure was effective or not?
”A. That’s right.
”Q. This would be your own records and not the hospital records that you decided to keep?
'A. Well, any record that I keep is the hospital’s record, at least to my way of thinking of it.
"Q. But you were never requested by anybody on the staff of Ford Hospital that you should keep a specific record in regard to hyperalimentation and its effectiveness in regard to the treatment of patients?
'A. No.”
The testimony indicates that the information sought by interrogatories 6 and 7 was not collected pursuant to a directive from a "[committee] assigned this review function”. While the November 13, 1975 transcript indicates that the information assembled by Dr. Fox was subsequently presented at a general staff meeting, the ex post facto submission does not satisfy the "collection” criteria bringing the data within the ambit of the evidentiary privilege.
At the December 19, 1975 hearing the following exchange occurred between defendants’ counsel and the trial court:
7Defense Counsel]: So the data that was assembled by Dr. Fox and presented to the committee was data that was at the request of a committee that had the power to—
’’The Court: Not true. That isn’t his story. His story was he made these notes and his investigation on his own volition. He put them in the files because that was the logical place to keep them. Nobody asked him to do that. The only thing that ever happened was that the doctor in charged [sic] asked him to prepare a summary of what he had done voluntarily.”
We find that the statements of the trial court are supported by the transcripts.
In our May 7, 1975 order, we stated that:
"The Court also anticipates that the record will reflect what, if any, relevancy the requested data may have to the death of Duane C. Marchand.”
There was little discussion of relevancy at the November 13 hearing. However, Dr. Fox did make the statement that "[H]ow many lived because of it would be more like the question you should ask”.
At the December hearing, counsel for the plaintiff and the trial judge discussed the issue of relevancy in relation to the disputed questions 6 and 7. Plaintiffs counsel summarized his arguments stating:
"I think it is some of each, your Honor. There’s more than one theory in this case. Number one, if he had knowledge that this isn’t the type of individual that should be given hyperalimentation, it is very pertinent to this case. Number two, if he didn’t give the procedure correctly as compared to the people that he’d given it to before and if he changed since, it is very important to the outcome.”
While the trial judge made no specific finding as to relevancy, his finding of relevancy is implied in his decision to order the questions to be answered. While we may wish that the trial court had guided us with more elucidation on the question of relevancy, we will not disturb his implied finding.
Determining matters of the relevancy of interrogatories is within the trial judge’s discretion and we will not interfere absent an abuse of that discretion. We make no comment upon the relevancy of the disputed question at the trial of the instant case. Michigan allows liberal discovery and the criteria utilized as to the relevancy of material differs at the trial and pretrial levels.
Affirmed.
Kavanagh, C. J., and Williams, Levin, and Fitzgerald, JJ., concurred with Coleman, J.
Lindemer and Ryan, JJ., took no part in the decision of this case.
The instant case involves intravenous hyperalimentation. This is a method of providing nutrition in the form of hydramine or amino acids as a source of calories in excess of the body’s needs. Hyperalimentation provides enough nutrition to keep a patient alive for prolonged periods.
MCLA 331.422; MSA 14.1179(12) provides in pertinent part:
"Sec. 12. (1) The governing body of each hospital shall be responsible for the operation of the hospital, the selection of the medical staff, and for the quality of care rendered in the hospital. The governing body shall cooperate with the director of public health in the enforcement of this act; insure that all physicians and other personnel for whom a state license or registration is required are currently licensed or registered; insure that physicians admitted to practice in the hospital are granted hospital privileges consistent with the individual training, experience and other qualifications; and insure that physicians admitted to practice in the hospital are organized into a medical staff in such a manner as to effectively review the professional practices of the hospital for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution. This review shall include but is not limited to the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.
"(2) All records, data and knowledge collected for or by individuals or committees assigned this review function are confidential and shall be used only for the purposes provided in this act, shall not be public ■ records and shall not be available for court subpoena.” (Emphasis added.)
Walker Metallurgical Corp v Ledoux & Co, 16 Mich App 588; 168 NW2d 474 (1969). This line of reasoning is in keeping with the general rule that the determination of the relevancy and materiality of evidence is a matter of discretion with the trial judge. Carreras v Honeggers & Co, 68 Mich App 716, 724; 244 NW2d 10 (1976); People v Howard, 391 Mich 597, 603; 218 NW2d 20 (1974).
See also MCLA 769.26; MSA 28.1096 and GCR 1963, 529.1.
GCR 1963, 309.4 states that "Interrogatories may relate to any matters which can be inquired into under sub-rule 302.2” which deals with depositions and their scope of examination.
In the authors’ comments to GCR 1963, 302.2 found at 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 42, they state:
"The third limitation, relevancy, should be liberally construed. Sub-rule 302.2(1) specifically provides that relevancy to the subject matter includes relevancy to the claim or defense of the examining party or any other party. Since an important role of discovery is to obtain information which will lead to further investigation, an inquiry should be permitted even though it is not strictly relevant to the precise issues formulated by the pleadings. In this regard, the rule makes it clear that information concerning the existence of books and other objects, and the identity and location of persons having knowledge of relevant facts may be sought upon a deposition.” | [
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McDonald, J.
Defendants Dennis and Sherrie Harr appeal as of right from an October 24, and December 8, 1988, circuit court opinion and order finding plaintiffs, as private property owners, proper parties to institute an action to abate a public nuisance stemming from the Harrs’ erection of a . pole building in violation of local zoning ordinances and ordering abatement of the same. We reverse.
Although the Harrs raise several issues on appeal, we find one issue dispositive. The Harrs claim private citizens, such as the instant plaintiffs, have no standing to secure an abatement of a nuisance per se under the Township Rural Zoning Act where the citizens cannot prove special damages. We agree.
The use of land in violation of local ordinances constitutes a nuisance per se, MCL 125.294; MSA 5.2963(24). This statute further provides that the township board enacting the ordinances shall administer and enforce the same and that the court shall order such nuisance abated. Thus, pursuant to the statute, any violation of a local township zoning ordinance constitutes a nuisance per se and is to be ordered abated by the court upon an action being brought by the officials designated to administer and enforce the ordinance.
Given the purpose for which zoning ordinances are enacted and enforced, we believe a nuisance arising from the violation of the same must by its very nature constitute a "public” nuisance. Generally, a public nuisance gives no right of action to an individual and must be abated by the appropriate public officer. However, our Supreme Court has long recognized the propriety of private citizens bringing actions to abate public nuisances, arising from the violation of zoning ordinances or otherwise, when the individuals can show damages of a special character distinct and different from the injury suffered by the public generally. Morse v Liquor Control Comm, 319 Mich 52; 29 NW2d 316 (1947); Plassey v S Lowenstein & Son, 330 Mich 525; 48 NW2d 126 (1951). Enactment of MCL 125.294; MSA 5.2963[24], rendering buildings erected in violation of local zoning ordinances nuisances per se, does not vitiate a private individual’s longstanding right to bring an action to abate a public nuisance. Indian Village Ass’n v Shreve, 52 Mich App 35; 216 NW2d 447 (1974). Instead, the statute’s designation of all buildings erected in violation of local ordinances as nuisances per se reduces the quantity of proofs required of an individual to prove a public nuisance, as the existence of the nuisance may be established merely by showing a violation of the ordinance. Thus, individuals need not prove a nuisance in fact, as the zoning violation renders the building a nuisance per se. Bruggeman v Minster, 42 Mich App 177; 201 NW2d 344 (1972); Indian Village, supra. However, contrary to plaintiffs’ assertions on appeal, neither Bruggeman nor Indian Village relieves an individual bringing suit to abate a public nuisance from the burden of proving special damages. Any such attempt by this Court to do so would necessarily fail, as an individual’s proof of special damages has been a longstanding requirement under Michigan’s common law, dating back at least as far as 1872. See Clark v Lake St Clair & New Up-River Ice Co, 24 Mich 508 (1872), see also Morse, supra, and Plassey, supra.
In the instant case the trial court’s findings indicate plaintiffs failed to prove special damages resulting from the Harrs’ violation of the zoning ordinance. Plaintiffs therefore had no standing to bring the instant suit to abate the nuisance, and the trial court’s order granting plaintiffs said relief must be vacated.
Although it is seemingly unjust to deny the plaintiffs standing to seek abatement of the instant nuisance, we note that plaintiffs are not without recourse. However, plaintiffs’ recourse must be achieved through their township officials who under the statute are given no discretion but to enforce the local zoning ordinances.
Reversed.
Uses of land ... in violation of local ordinances or regulations adopted under the authority of this' act are a nuisance per se. The court shall order the nuisance abated and the owner or agent in charge of the dwelling, building, structure, tent, trailer coach, or land is guilty of maintaining a nuisance per se. The township board shall in the ordinance enacted under this act designate the proper official or officials who shall administer and enforce that ordinance and provide penalties for the violation of the ordinance. | [
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Per Curiam.
Plaintiffs appeal from an order denying their motion for rehearing or reconsideration of a prior order in which the court ruled that intervening defendant State Farm Mutual Automobile Insurance Company had no obligation to pay interest on the settlement it made. We affirm.
This suit arises out of the death of plaintiffs’ son, Paul Edward Liimatta. Ronald William Lukkari, who is insured by State Farm, was sued under the wrongful death act. Plaintiffs entered into an agreement with State Farm in which they acknowledged that State Farm had tendered its policy limits of $50,000 to settle the claim against Lukkari.
Plaintiffs demanded the policy limits plus interest from the date of filing the complaint. State Farm filed a motion asking the court for a declaration that it had no obligation to pay interest on the settlement, and the court so ruled. Plaintiffs filed an untimely motion for rehearing or reconsideration, which the court denied._
On appeal plaintiffs argue the trial court erred in ruling that a defendant’s insurance carrier has no obligation to pay interest to plaintiffs on the principal sum offered in settlement where the value of the claim exceeds the insurance policy liability limits.
Plaintiffs claim that State Farm was obligated to offer prejudgment interest in addition to its policy limits to settle plaintiffs’ claim against State Farm’s insured. Plaintiffs base their claim on the insurer’s duty to negotiate settlements in good faith, which arises out of the language of the insurance contract. City of Wakefield v Globe Indemnity Co, 246 Mich 645; 225 NW 643 (1929).
Although neither party has raised the question, we note that it is doubtful plaintiffs have the right to assert any claim arising out of that duty. The duty to use good faith in attempting to settle a claim runs only to the insured, not to the injured party. Lisiewski v Countrywide Ins Co, 75 Mich App 631; 255 NW2d 714 (1977), lv den 401 Mich 840 (1977).
Even if the duty to act in good faith were to convey some rights to plaintiffs, the language of the insurance contract on which they rely denies them such recovery.
The pertinent policy provision réads as follows:
In addition to the limits of liability, we will pay for an insured any costs listed below resulting from such accident.
2. Interest on all damages owed by an insured as the result of a judgment until we pay, offer or deposit in court the amount due under this coverage.
This policy language is unambiguous. State Farm agreed to pay any interest which the insured would have been required to pay incident to a judgment. There was no judgment in this case and thus no obligation to pay interest.
Nor is there a statutory right to prejudgment interest on settlements. Quarters v Michigan Physicians Mutual Liability Co, 154 Mich App 593; 399 NW2d 46 (1986). By accepting a settlement before judgment, a party trades off the loss of interest during the waiting period in exchange for the certainty of settlement. Darnell v Auto-Owners Ins Co, 142 Mich App 1; 369 NW2d 243 (1985).
Plaintiffs have shown no error requiring reversal and, accordingly, we affirm.
Although the appeal was not timely, we consider it as on leave granted. MCR 7.203(B)(5). | [
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] |
Cavanagh, P.J.
Defendant City of Detroit appeals and various plaintiffs cross appeal from the decision of the trial court granting in part and denying in part plaintiffs’ motion for summary disposition. We affirm.
Under the provisions of the City Utility Users Tax Act, MCL 141.801 et seq.; MSA 5.3194(301) et seq., cities with a population of one million or more, after adopting an ordinance incorporating by reference the uniform city utility users tax ordinance as set forth in the act, have the power to levy, assess, and collect a utility users tax. In 1970, the City of Detroit took advantage of the state statute and adopted the uniform city utility users tax ordinance. Detroit Ordinances, § 18-11-1.
As originally enacted, the act provided for an effective date of August 15, 1970, and an expiration date of December 31, 1972. 1970 PA 198; MCL 141.807; MSA 5.3194(307). In five successive enactments, the Legislature amended the act to extend the expiration date. At the time this appeal was filed, the act had a June 30, 1988, expiration date. 1972 PA 309, 1975 PA 118, 1979 PA 34, 1981 PA 108, and 1984 PA 349; MCL 141.807; MSA 5.3194(307).
Another provision of the act stipulated that revenue raised was to be used exclusively to retain or hire police officers and, if the revenue collected exceeded a certain amount, the rate of tax imposed could be lowered or the excess amount could be used to hire and retain additional police officers. 1970 PA 198, as amended by 1979 PA 34, 1981 PA 108, and 1984 PA 349; MCL 141.802; MSA 5.3194(302).
On March 30, 1988, plaintiffs brought an action against the defendant City of Detroit seeking declaratory and injunctive relief. In their amended complaint, plaintiffs alleged that, because the act violated the Michigan Constitution, Const 1963, art 4, § 24 and § 29, it was completely unenforceable. In the alternative, if the act did not violate the constitution, plaintiffs urged the circuit court to declare that the act was not enforceable after June 30, 1988, the sunset or termination date contained in the statute.
On December 15, 1989, plaintiffs moved for summary disposition repeating their allegations that the act was unconstitutional because it contained more than one object contrary to §24, the title-object clause of the state constitution, and because it was local or special legislation contrary to § 29. If the act was declared constitutional, plaintiffs argued, they were still entitled to prevail in part because the city’s authority to collect the utility tax expired on June 30, 1988.
In response, the city maintained that the termination date or sunset provision contained in MCL 141.807; MSA 5.3194(307) was an object of the legislation not expressed in the act’s title; therefore the sunset provision was constitutionally infirm and should be severed from the rest of the act. The city based its argument in part on opinions issued by the Attorney General’s office which concluded that the sunset provisions contained in a number of statutes violated Const 1963, art 4, § 24. More specifically, because the title of the City Utility Users Tax Act did not reflect the fact that it contained a termination date, the termination provision was unconstitutional and the act could not be repealed, expire, or terminate as provided. OAG, 1987-1988, No 6438, pp 80, 90 (May 21, 1987).
The city also used these same opinions from the Attorney General to argue that the doctrine of legislative acquiescence applied. Evidence of legislative inactivity after an administrative interpretation of a statute can be construed as legislative consent to that interpretation. In the present case, the city claimed that the actions of the Legislature subsequent to the act’s expiration date evidenced the legislative intent that the act continue in effect after June 30, 1988.
On January 3, 1990, the circuit court issued its opinion granting in part and denying in part plaintiffs’ motion on the basis of the court’s conclusion that the act was not unconstitutional in any respect. Consequently, the circuit court ruled that the taxing authority of the city expired on June 30, 1988.
On appeal, the city renews its challenge to the constitutionality of the sunset provision on the basis of the title-object clause and reiterates its argument on legislative acquiescence. The city’s appeal is joined by an intervening appellant, the Attorney General, who claims that, in order to satisfy Const 1963, art 4, § 24, an act that repeals another act must give notice of the repeal in its title. The intervenor maintains that this same notice requirement should be extended to self-repealers. Furthermore, the intervenor insists that the circuit court erred in concluding that because an act’s effective date does not have to be in the title, the same can be said as to an act’s expiration date.
On cross appeal, plaintiffs contend that the entire legislation is unconstitutional because the act contains more than one object and these objects are not all expressed in the act’s title. Certain provisions of the act designate how the revenue is to be spent and this designation is a distinct object of the legislation not stated in the act’s title. Furthermore, they argue, the act is local or special legislation because the population requirement limits the act’s application to cities with a population of one million or more.
The initial inquiries for this Court are whether the legislation embraces an object not expressed in the title of the act and whether the legislation embraces more than one object. The law is well settled that legislation challenged on a constitutional basis is clothed in a presumption of constitutionality. Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982). Every reasonable presumption must be indulged in favor of an act’s constitutionality. Rohan v Detroit Racing Ass’n, 314 Mich 326, 341; 22 NW2d 433 (1946).
Const 1963, art 4, § 24 provides:
No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.
In Builders Square v Dep’t of Agriculture, 176 Mich App 494, 497-498; 440 NW2d 639 (1989), lv den 433 Mich 912 (1989), this Court summarized the law regarding this issue:
The purpose of the title-object clause is to prevent the Legislature from passing laws not fully understood and to avoid bringing into one bill subjects diverse in their nature and having no necessary connection. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 467; 208 NW2d 469 (1973), citing People v Carey, 382 Mich 285; 170 NW2d 145 (1969). The goal of the title-object clause is notice, not restriction of legislation, and the title-object clause is only violated where the subjects are so diverse in nature that they have no necessary connection. Constitutionality of 1972 PA 294, supra, p 467. The object of a law is its general purpose or aim. Local No 1644, AFSCME v Oakwood Hospital Corp, 367 Mich 79; 116 NW2d 314 (1962); City of Livonia v Dep’t of Social Services, 423 Mich 466; 378 NW2d 402 (1985). A statute may authorize the doing of all things which further its general purpose. Constitutionality of 1972 PA 294, supra, p 466, quoting Kuhn [v Dep’t of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971).]
Where the issue is the sufficiency of notice provided by the title, the title need not serve as an index of all the act’s provisions. People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
The standard for determining the question of constitutionality has been stated as follows:
[I]f the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met. [Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917).]
Only the general object and not all the details and incidents of a statute need be indicated in the title. People v Sowall, 279 Mich 261, 266; 271 NW 751 (1937). Whether a provision is germane to its purpose depends upon its relationship to the object of the act. Builders Square, supra, p 498.
The title to the City Utility Users Tax Act reads:
An act to permit the imposition and collection by cities of a population of 1,000,000 or more, of a utility users tax; to provide the procedure for, and to require the adoption of a prescribed uniform city utility users tax ordinance by cities desiring to impose and collect such a tax; to limit the rate of such tax; to prescribe the powers and duties of the state commissioner of revenue; and to provide for appeals.
The trial court concluded that the main purpose of the act was to impose a tax and raise revenues for cities with populations of 1,000,000 or more. The trial court also concluded that the termination date or sunset provision, closely akin to a beginning effective date, does not insert into the act something distinct or foreign to its purpose. The sunset provision pertains to the main object of the legislation. We agree with the well-reasoned and thoughtful approach of the trial judge.
In our opinion, the sunset provision does not introduce into the legislation a subject diverse in nature from the main object of the act. The termination date relates directly to the duration of the taxing authority granted by the statute. Standing alone, the sunset provision has no significance. Its importance depends completely on its relationship to the main purpose of the act. The same cannot be said of provisions from one act which attempt to repeal a different act.
In Attorney General v Hill-Davis Co, 261 Mich 89; 245 NW 579 (1932), a provision of 1931 PA 327 attempted to repeal statutes that regulated partnerships after it was indicated in the act’s title that acts and parts of acts relating to corporations would be repealed. The repealing provision introduced a subject matter into the legislation which was very different from the regulation of corporations. The repeal in that context did not directly relate to the main object of the legislation—the regulation of corporations. The significance of the repealing provision depended completely on its relationship to a different act.
Although we would agree that a repeal in one act which affects another act could jeopardize the requirement of notice guaranteed by our constitution if the repeal was not declared in the first act’s title, we have not been persuaded that a self-repealer presents the same problem. By declaring its purpose to provide the procedure for imposing and collecting such a tax, we believe the act’s title challenges the reader’s attention to provisions in the act which might affect its duration.
We also disagree with the city’s argument that the Legislature has acquiesced in the Attorney General’s opinion that the sunset provision is unconstitutional and that this evidence of legislative intent should persuade the courts to rule in the city’s favor. If the state’s lawmakers are silent in the face of a judicial or an administrative interpretation of a statute, we could construe this silence as a vote of confidence. See Craig v Larson, 432 Mich 346, 353; 439 NW2d 899 (1989). However, in this case, disposition does not entail our reviewing a decision interpreting legislative intent. Plaintiffs have raised a constitutional challenge and legislative intent is not an issue.
Plaintiffs also relied on the title-object clause to argue in their cross appeal that, by designating how the revenues were to be spent, the act has more than one purpose and this purpose was not expressed in the act’s title. The trial court relied on Kuhn v Dep’t of Treasury, 384 Mich 378; 183 NW2d 796 (1971), when it held that the purpose for which the revenues may be spent is another provision which is germane, auxiliary or incidental to the object of the act and again we must agree. Provisions regarding the uses to which the revenue may be put are but incidental to the main purpose of the act. The manner in which the funds are used is both germane and related to the taxation itself.
In the final argument raised on cross appeal, plaintiffs contend that the act is special or local legislation because it is only available to cities with a population of one million or more.
Const 1963, art 4, § 29 provides:
The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question.
An act that contains a population requirement can be sustained as a general act if the statute is applicable whenever the population requirement is met and the population classification bears a reasonable relationship to the purpose of the statute. Dearborn v Wayne Co Bd of Supervisors, 275 Mich 151, 155; 266 NW 304 (1936). The probability or improbability of other cities reaching the statutory population requirement is not the test of a general law. Id., p 157.
In the present case, the terms of the act do not limit its application to the City of Detroit. The act automatically applies to any city which attains the required population. The population classification is open-ended and it is possible for other cities to qualify for the benefits of the act if and when their populations meet the statutory standard.
As to whether the population classification bears a reasonable relationship to the purpose of the statute, the trial court noted that a purpose of the legislation was to provide large cities with a new source of revenue for public safety. This Court has already acknowledged that metropolitan population centers have a far greater problem preserving the public peace than their rural neighbors. Lucas v Wayne Co Bd of Road Comm’rs, 131 Mich App 642, 652; 348 NW2d 660 (1984), lv den 418 Mich 945 (1984). In the present case, we find that the population classification is reasonably related to the need for an additional source of revenue to hire and retain police officers.
Affirmed. | [
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Cavanagh, J.
The prosecution appeals by leave granted the trial court’s denial of the prosecution’s motion to permit testimony regarding the results of serological electrophoresis of dried bloodstains. The prosecution argues in this appeal that, because the Wraxall multisystem method of electrophoretic testing has achieved general scientific acceptance for reliability among impartial and disinterested experts, the test results should be admissible. In the alternative, the prosecution maintains that the results from the modified method of testing conducted in this case should be admissible because these tests avoided the problems associated with the multisystem method.
i
Electrophoresis has been defined as
a physical method for the separation of biologically important proteins through the use of electric current. Proteins are very complex molecules which assume positive, negative, or neutral charges depending on the solution in which they are placed. When these charged molecules are placed on an appropriate medium and subjected to an electrical field, they will migrate toward the pole of the opposite charge. Blood proteins vary in size, shape, density, and charge; consequently they vary in electrophoretic mobility. Therefore, after electrophoresis, they are separated into distinct bands on the supporting medium.[ ]
The distinct bands form characteristic patterns that reveal protein subtypes and each banding pattern is distinctive for a particular protein or enzyme. Information about the blood can be ascertained from the patterns that form. The blood sample can then be classified into a particular population grouping based on the particular factors found, and compared with samples from known donors. A specific individual cannot be identified using electrophoresis but he can be excluded as the source of an evidentiary sample.
The blood sample is generally tested for the following different proteins: phosphoglucomutase (pgm), esterase d (esd), glyoxylase 1 (glo), erythrocyte acid phosphatase (eap), haptoglobin (hp), adenylate kinase (ak), and adenosine deaminase (ada). By using a combination method, it is possible to test for more than one genetic marker per sample per run. In the Wraxall Group i multisystem test, pgm, esd, and glo are developed on the same gel. In Group n, eap, ak and ada are developed on the same gel. In contrast, the conventional single system method develops only one marker on a gel at a time.
ii
On December 2, 1987, the bodies of Betty Long and Christopher Feltner were found in their home in Taylor, Michigan. Each body had multiple stab wounds and, as a result, there was. a large amount of bloodstained evidence available. Three days later, on December 5, 1987, the defendant was charged with three counts of first-degree murder. MCL 750.316; MSA 28.548. On February 25, 1988, the circuit court judge heard arguments on the prosecution’s motion to permit testimony regarding the results of serological electrophoresis of dried bloodstains and ordered a Davis-Frye hearing to determine (1) whether the electrophoretic method employed in testing the dried bloodstains from the crime scene had gained general scientific acceptance for reliability in the scientific community, (2) whether any crime scene contaminants had distorted the test results, and (3) whether Dr. Benjamin Grunbaum, a principal critic of the use of the Wraxall multisystem variation of electro phoresis, had changed his opinion since testifying in People v Young (After Remand), 425 Mich 470; 391 NW2d 270 (1986) (Young II).
At the Davis-Frye hearing, the prosecution presented the testimony of four expert witnesses to show the scientific community’s acceptance of the reliability of electrophoresis in general and the Wraxall thin-gel multisystem method specifically. In rebuttal, the defense presented the testimony of one expert witness, Dr. Benjamin Grunbaum, to contest whether the scientific community had accepted the Wraxall method.
Dr. Grunbaum repeated his concern that the "filter used in the test of the esd molecules has the unintended effect of compromising the [later] analysis of the pgm and glo molecules.” Young II, supra, p 491. The pgm and glo bands can overlap with the esd band and Dr. Grunbaum’s criticism centers on the filter paper used to develop the esd, the first marker to be developed. The defense witness believes that the filter paper used to develop the esd marker absorbs some of the pgm and glo molecules and that this absorption can lead to errors when the pgm and glo molecules are subsequently analyzed. The intensity of the pgm bands are not the same after application of the filter paper.
As to the specific tests conducted in this case, the prosecution witnesses testified that the esd and glo markers were done on a multisystem and that the pgm and the eap markers were tested individually on a separate gel. More precisely, the Wraxall Group i multisystem was used to develop pgm, esd, and glo, but the pgm data was not reported from this test. The pgm subtyping was done separately, using a modified single system approach, and these results were reported. The Wraxall Group ii multisystem was used to develop eap and ak, but the ak results were not reported and the ada marker was not developed.
In rebuttal, the defendant’s expert offered his opinion that the modifications to the single system method used to develop the pgm marker made the results unreliable because these modified techniques have never been standardized or validated.
The reliability of blood samples degraded by possible crime scene contaminants was also in dispute. The prosecution witnesses believed that contaminants did not present a problem because if contamination did occur the markers could not be read. One of the expert witnesses, Dr. Bruce Budowle, and his coauthor, Robert Allen, a professor from the University of South Carolina, apparently confirmed this theory when they studied the possible effects of crime scene contaminants and presented the results to the scientific community.
The defendant’s expert disagreed and felt that the Budowle/Allen paper on the contaminant issue had no scientific validity because the authors did not release the underlying data from their research for others to review.
iii
On October 17, 1988, the trial court issued its opinion and order denying the prosecution’s motion. The trial court held that
the prosecution ha[d] not sustained its burden of establishing by independently conducted validation studies the reliability of the thin-gel multisystem analysis of dried blood stains [sic], or the modified single system conventional typing of the pgm subgroup used in this case. Further, the prosecution ha[d] not provided an independent, validated study of the effects of contaminants on crime scene stains as required by the majority in Young. Finally, Dr. Grunbaum’s position remained] basically unchanged from that stated in Young.
Under findings of fact and conclusions of law, the trial court determined that the dried bloodstains had been preserved and tested within acceptable time limits for the accurate reading of genetic markers. Secondly, the trial court found that the electrophoretic methods employed in this case had not been independently validated as reliable. The Wraxall Group i multisystem had been used to simultaneously test for three different proteins, pgm, esd and glo. However, the court decided that, since the filter used to test the esd marker had not come into contact with the region where the glo band was developed, there was no compromise of the glo analysis. And, although the multisystem test results of the pgm marker would only be used to confirm the results obtained from the modified conventional pgm subgroup method used here, an overlap with the underlying pgm molecules had occurred.
The trial court also found that the second test used in this case was a modified version of the conventional pgm subgroup method using a zero eeo agarose gel. The modification was in the use of the zero agarose gel and the trial court concluded that there were no published validation studies of this specific methodology. Finally, the Wraxall Group ii was used to test for eap and ak, although the ak results were not reported.
The trial court recognized in its opinion that the Young II Court was concerned with the reliability of the Wraxall thin-gel multisystem because of the unintended effect of compromising the later analysis of pgm and glo. The trial court also acknowledged that since the decision in Young II no independent study verifying the reliability of the thin-gel multisystem or the modified single system method had ever been published. The trial court went on to find that
even without such a formal validation process, the evidence clearly shows that the relevant scientific community has adopted the single system electrophoresis technique (where there is no overlapping of filters to detect genetic markers on the gel), as a valid, reliable method for determining genetic markers in dried blood, provided competent analysts perform the tests with adequate samples in compliance with approved laboratory protocols for the methods used.
The opinion stated however that "this consensus of reliability of the single system method, assuming compliance with agreed-upon guidelines, does not meet the validation requirements of Young.” The trial court concluded that the prosecution did not carry its burden of proving "that the methods used in this case, i.e., Group i and Group n multisystem testing and pgm subgroup testing using zero eeo agarose have been validated by independently conducted studies . . . .” Furthermore, the prosecution’s argument that widespread use and acceptance of the multisystem validated the methodology did not meet the requirements of Young II.
As to the issue of contamination, the trial court concluded that the Budowle/Allen study presented by the prosecution also failed to meet the validation standard articulated in Young II. The trial court believed that the published findings from the Budowle/Allen study on crime scene contaminants had to be validated by an independent, published study.
IV
Findings of fact made by a trial court will not be reversed on appeal unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
As to the findings of fact made in the present case, after our very careful review of the record, we are not convinced that mistakes of fact have been made. There is ample support for the factual conclusions reached below.
We also agree with the trial court’s conclusion that the prosecution has failed to show the scientific community’s agreement on the reliability of the Wraxall thin-gel multisystem as prescribed in Young II. There is no evidence that "independently conducted validation studies on the thin-gel multisystem analysis [have been] undertaken . . . and the results subjected to the scrutiny of the scientific community.” Young II, supra, p 476
Furthermore, the proseuction’s argument that use of this system in laboratories throughout the world demonstrates its acceptance in the scientific community is without merit. Justice Boyle in her dissent acknowledged that the "multisystem . . . has been used by the fbi since 1979 [and] is in use in more than one hundred crime laboratories in the country . . . .” Young II, supra, p 523. In addition, the dissenting opinion discussed the significance of the testimony of an fbi employee who works "in a laboratory that does 8,500 electrophoretic examinations a month, ninety percent of which are done by the multisys tem.” Young II, supra, p 514. We must assume from this that evidence of widespread use was before the Supreme Court the first time this issue was addressed and was not persuasive.
We would also agree that the prosecution has failed to show that things have changed since the decision in Young II. Apparently, the scientific community still disputes the reliability of the Wraxall multisystem when a possible compromise in the analysis of blood proteins is present. Consequently, we must affirm that part of the trial court’s decision denying the admission of the Wraxall multisystem results where the reliability of the technique is "a specific question left unresolved.” Young II, supra, p 495. We can only conclude that the Young II decision bars any testimony based on test results from the Wraxall multisystem.
As to the admissibility of testimony based on the modified single system method, we again agree with the trial court’s finding that the "evidence clearly shows that the relevant scientific community has adopted the single system electrophoresis technique ... as a valid, reliable method for determining genetic markers in dried blood, provided competent analysts perform the tests with adequate samples in compliance with approved laboratory protocols for the methods used.” Where we disagree is in the trial court’s conclusion that the single system is also subject to the "independent validation” standard articulated in Young II.
In our opinion, Young II imposed the require ment of independent validation because the scientific community could not reach a consensus on the reliability of the Wraxall multisystem. Apparently, when members of the relevant scientific community disagree, Young II makes it incumbent on those members to resolve the conflict, possibly through the publication of independently conducted validation studies.
However, we believe that, when the evidence clearly shows that the single system technique enjoys general scientific acceptance, satisfaction of the independent validation standard from Young II is not required. Because the single system method of electrophoresis has been accepted by the relevant scientific community and is not subject to the independent validation requirement of Young II, the trial court erred in ruling that testimony based on the test results from the modified single system is inadmissible.
As to the crime scene contamination issue, we disagree with the trial court’s determination that the Budowle/Allen paper itself had to be validated by an independent study. We are convinced that the Budowle/Allen study satisfied Young IPs demand for "comprehensive control tests evaluating the effects of different contaminants,” and find that through the paper’s publication in a scientific journal "the results have been subjected to the scrutiny of the scientific community.” Young II, supra, p 476.
Affirmed in part; reversed in part.
People v Young (After Remand), 425 Mich 470, 477-478; 391 NW2d 270 (1986), citing Grunbaum, "Potential and Limitations of Forensic Blood Analysis,” in Handbook for Forensic Individualization of Human Blood and Bloodstains, quoted in Jonakait, Will blood tell? Genetic markers in criminal cases, 31 Emory L J 833, 840 (1982).
Frye v United States, 54 US App DC 46; 293 P 1013 (1923), and People v Davis, 343 Mich 348; 72 NW2d 269 (1955).
In People v Young (After Remand), supra, the Supreme Court held that the Wraxall multisystem method of electrophoresis had not at that time achieved general scientific acceptance for reliability. Dr. Benjamin Grunbaum was the only witness to dispute the reliability of the Wraxall methodology.
As to reliability of the electrophoretic method used in a particular case, we again agree with the trial court that unanimity within the scientific community on laboratory guidelines should not preclude the admissibility of the test results "as long as the defense is offered the opportunity to fairly examine the evidence and cross-examine the analyst.” Facts affecting the weight and credibility of an expert’s opinion should be placed before the factfinder. | [
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] |
Per Curiam.
Defendant Karen J. Steckley appeals the judgment of divorce from plaintiff Rick T. Steckley entered by the Grand Traverse Circuit Court. Specifically, defendant claims that in order to make the couple’s property settlement more equitable she should have been awarded alimony in gross of $1,283,866 in addition to the court’s order of permanent periodic alimony of $4,000 per month payable until her death. We reverse and remand for further proceedings.
Plaintiff and defendant were married on January 7, 1967. The couple had two children who were still minors at the time of trial. In August, 1983, plaintiff permanently left the marital home, and he filed for divorce on June 1, 1984. The judgment of divorce was entered on March 8, 1988.
The main area of controversy surrounds the valuation and distribution of the primary marital asset: plaintiff’s interest in ten McDonald’s restau rants. Plaintiff and his father had been pioneers in establishing McDonald’s restaurants in northern Michigan. They had worked together as partners in that business since 1972. Their business began with the installation of the first McDonald’s restaurant in Traverse City and subsequently expanded to include stores in Gaylord, Ludington, Big Rapids, Grayling, Petoskey and Cadillac. Plaintiff and his father eventually merged seven stores into their business known as Marks Management Corporation. Eventually the pair opened three more stores which were not merged into Marks Management. Plaintiff owns 40.7 percent of the stock and acts as president of Marks Management. He is part owner in each of the three other stores. During the six-day trial, both parties presented extensive expert testimony as to the valuation of plaintiffs interest in the franchises. Plaintiff’s expert set plaintiff’s interest at $664,592. Defendant’s expert set plaintiffs interest at $2,276,141.
The trial judge’s lengthy discussion of this asset revealed his inability to reach an exact valuation for it. The judge stated:
The Court concludes that the proofs do not establish a basis upon which an accurate valuation of Plaintiffs McDonald interests can be made. . . . The Court must conclude that the value of this substantial asset lies somewhere between the opinions expressed by the highly competent and credible experts produced by the respective parties.
The court awarded plaintiff the above asset and awarded defendant permanent periodic alimony of $4,000 per month. In determining the alimony award, the court considered the relevant factors, see Krause v Krause, 177 Mich App 184, 190-191; 441 NW2d 66 (1989), including plaintiffs annual income of approximately $175,000 per year, present circumstances, needs of the parties and, as particularly relevant to this discussion, the disparity in the property settlement. The judge stated:
The Court deems it necessary that under all of the circumstances," Plaintiff will receive a highly disproportionate amount of the marital estate.
The trial judge explained his decision to leave plaintiff his entire McDonald’s interest:
The McDonald franchise interests are, obviously, the largest asset of the estate. There are several reasons why the ownership interest will remain with Plaintiff. The witness, Rich Superfine, testified without contradiction that Defendant could not become a franchisee approved by McDonald’s Corporation unless she were qualified as of the time of the judgment, which might award her that interest. That procedure requires two to two and one-half years and has not been commenced by the Defendant. Even if there were an agreement of third parties to separate one franchise to go to Defendant, she would not presently qualify. The franchisor would not, as a matter of policy, approve a franchise transfer which would put Defendant in a partial ownership position associated with a former spouse or his family.
Plaintiff and his father have been highly successful in developing an income from a well operated business which integrates ten separate stores. They have worked closely together in a bond of mutual cooperation and mutual respect. It would be inappropriate for the Court to order a sale and division of the proceeds to affect [sic] a property settlement when the business represents the primary means by which Plaintiff, through his business skill, has been able to develop an excellent income. Simmons v Simmons, 58 Mich App 480 [228 NW2d 432] (1975).
The inadequacy of property award will necessi tate a consideration of substantial alimony to provide for Defendant’s continued support. It is appropriate that the alimony award be such that Defendant need not liquidate her share of the property received for her education and job training or such expense. Zecchin v Zecchin, 149 Mich App 723 [386 NW2d 652] (1986).
The final property division awarded defendant essentially all the marital assets which were not tied up with various third-party interests. Defendant received assets with a total net value of over $600,000. Plaintiff received assets with a total net value of over $400,000, in addition to his entire interest in the McDonald’s franchises. Plaintiff was also obligated to pay a Hall Tyler Ltd. liability of $15,000, defendant’s attorney fees of $55,000, and child support of $850 per month until the children reach the age of majority or graduate from high school.
On appeal, defendant argues that her award of permanent periodic alimony of $4,000 per month for life was inadequate to counterbalance the admittedly inequitable property division because that alimony represented only what was needed for defendant’s support and was also subject to later modification. Further, defendant argues that the court should have determined the exact value of plaintiffs business interest in order for defendant to share equally in it.
We agree with defendant that the court should have determined the value of plaintiffs interest in the McDonald’s franchises. McNamara v McNamara, 178 Mich App 382, 391-393; 443 NW2d 511 (1989). If the court does not have ample information from the expert testimony presented to determine a fair value, it may appoint its own disinterested appraiser to assist the court. Defendant should be awarded an equitable share of the value of plaintiffs interest in the franchises. We remand for the trial court to effect an equitable division. Perrin v Perrin, 169 Mich App 18, 22; 425 NW2d 494 (1988).
On remand the trial court may adjust defendant’s share to effect an equitable property division, recognizing that defendant received the greater proportion of the assets divided in the trial court’s judgment of March 8, 1988. We do not preclude redivision and redistribution, which is left to the court’s discretion. Id. The trial judge may award to plaintiff all of his ownership shares in the franchises as we do not wish to be understood as ordering division of ownership or title. We are ordering valuation of the assets and equitable distribution. Once the trial court determines the amount which defendant should receive for her share of the McDonald’s franchise assets, it can set reasonable terms and method of payment. Such property distribution will most probably render alimony unnecessary. However, alimony is continued until the further order of the trial court on remand.
The judgment is bifurcated. The judgment of divorce is affirmed; the property settlement and distribution is reversed; alimony is continued until the further order of the trial court.
Reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiff appeals as of right from an order granting defendant summary disposition pursuant to MCE 2.116(0(10), dismissing plaintiff’s age discrimination suit brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We affirm.
Plaintiff argues the trial court erred in utilizing the shifting burden analysis first set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and later reiterated in Texas Dep’t of Community Affairs v Burdine, 450 US 248; 101 S Ct 1089; 67 L Ed 2d 207 (1981). The proper test, plaintiff argues, is the determinative factor test enunciated in Matras v Amoco Oil Co, 424 Mich 675; 385 NW2d 586 (1986).
The McDonnell Douglas shifting burden analysis addresses the proper order and allocation of proofs and burdens in discrimination cases. Initially, plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. Once the defendant has articulated a legitimate reason for the action, the plaintiff then has the burden of showing by a preponderance of the evidence that the legitimate reason offered by defendant was merely a pretext for discrimination. Burdine, 252-253.
In Matras, supra, the Michigan Supreme Court addressed the substantive elements and method of proving an age discrimination claim. Though dealing with age discrimination in the context of a discharge from employment, the holdings in Matras are equally applicable to this case involving a claim of failure or refusal to hire due to age discrimination.
In an age discrimination case, the trier of fact may find that the discharge was because of age even if age was not the sole factor. According to the Court in Matras, age need not be the sole reason or even the main reason for discharge; it does, however, have to be one of the reasons that made a difference in determining whether the plaintiff was discharged or not hired. Matras, 682-683. Plaintiff in the instant case is therefore correct in arguing that the bottom-line requirement of what a plaintiff must establish in any age discrimination case is that age discrimination was a determining factor in the failure or refusal to hire.
Rather than representing two separate and distinct legal theories of how to prove age discrimination claims, the Matras determining factor test is really a part of establishing a prima facie age discrimination case as required by the McDonnell Douglas shifting burden analysis. The difference between the two approaches lies in the fact that the McDonnell Douglas approach is a more comprehensive means of ordering and allocating proofs in a discrimination case.
We hold that, by employing the more comprehensive and orderly approach of McDonnell Douglas, the trial court clearly considered whether genuine issues of material fact existed to show that plaintiff’s age was a determining factor in defendant’s decision not to hire plaintiff.
Plaintiff next argues that the trial court erred in summarily resolving the question of age discrimination in light of genuine issues of material fact. According to plaintiff, reasonable minds could easily differ as to whether plaintiff or James Sheehy, the successful applicant for the position, was the better qualified applicant.
In an age discrimination claim, the plaintiff must present evidence not only of possession of qualifications comparable to the person ultimately selected, but must also demonstrate that age was a determining factor in the defendant’s refusal to hire plaintiff. Meeka v D & F Corp, 158 Mich App 688, 692; 405 NW2d 125 (1987). Plaintiff in the case before us must therefore present evidence not only that he had skills, experience, background or qualifications comparable to the person defendant selected for the position, but, also, that his age was a determining factor in defendant’s ultimate decision.
Plaintiff presented extensive evidence of his skills, experience, background and qualifications and defendant presented extensive evidence regarding the successful applicant’s skills, experience, background and qualifications. It is clear that plaintiff has presented evidence sufficient to establish as a genuine material fact that he was as qualified as Mr. Sheehy. Plaintiff fails, however, to present any evidence showing defendant’s tendency to discriminate or to allege direct statements by defendant which would tend to show that youthful age was a job requirement or at least desirable. Plaintiff has failed to produce any type of direct or indirect evidence which would lead to an inference that defendant was harboring any type of age animus. We find there is no genuine material issue of fact regarding whether age was a determining factor in defendant’s decision.
Plaintiff’s final argument is that the trial court erred in concluding that plaintiff had not demonstrated that defendant’s legitimate, nondiscriminatory reasons for not hiring plaintiff were pretexts under the shifting burden or determinative factor test. We disagree.
There are three ways a plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts: (1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. The soundness of an employer’s business judgment, however, may not be questioned as a means of showing pretext. Chappell v GTE Products Corp, 803 F2d 261, 266 (CA 6, 1986), cert den 480 US 919; 107 S Ct 1375; 94 L Ed 2d 690 (1987).
From our review of the record, we find that, at most, plaintiff raises questions about the soundness of defendant’s business judgment and that is insufficient to show a genuine issue of fact regarding pretext.
To grant a motion for summary disposition pursuant to MCR 2.116(0(10), the lower court must be satisfied that the claim asserted cannot be supported by the evidence at trial because of some deficiency which cannot be overcome. Adell v Sommers, Schwartz, Silver & Schwartz, PC, 170 Mich App 196, 204; 428 NW2d 26 (1988). In the instant case, plaintiff has failed to establish a prima facie case of age discrimination and has failed to create a genuine issue of material fact concerning pretext. Summary disposition was properly granted.
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Ryan, J.
The defendant appeals from the judgment of the Court of Appeals which reversed a decision of the Workmen’s Compensation Appeal Board. The dispute relates solely to the computation of benefits allotted to the plaintiff, Richard Lahay.
At the time he was injured, plaintiff was employed by defendant, Hastings Lodge, as a part-time bartender. He was concurrently employed on a full-time basis as a claims adjuster by an insurance company.
While tending bar on February 12, 1971 Lahay stepped on an ice cube, slipped, and injured his back when he attempted to break his fall.
Prior to injury, plaintiff was paid $213.46 per week at his full-time job and $32.50 per week, based on 13 hours at $2.50 per hour, plus two meals, at his part-time job. Following his injury, plaintiff was compensated by defendant at $32.50 per week for his inability to work as a bartender. A dispute arose as to whether $32.50 was the correct rate of compensation and a rule 35 hearing was held before the referee
The referee determined that plaintiff was totally disabled from his part-time job from February to June, 1971, and partially disabled thereafter; and, determined that the proper compensation was to be $70 per week. That figure represented a percentage of $105, which the referee found to be plaintiff’s "average weekly wage” according to his construction of that phrase in § 371 of the Workmen’s Compensation Act.
Defendant appealed to the Workmen’s Compensation Appeal Board, which, by a 3-to-2 vote, reversed the referee’s determination on compensation and limited the award to $32.50 per week.
The Court of Appeals in turn reversed the Workmen’s Compensation Appeal Board and reinstated the hearing referee’s order. In doing so, the court began by determining plaintiff’s average weekly wage according to MCLA 418.371; MSA 17.237(371). The statute reads:
"(1) The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
"(2) Average weekly wage means the weekly wage earned by the employee at the time of his injury, inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe or other benefits which continue during disability, but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee’s classification of employment in the establishment of the employer where employee suffered a personal injury is less than 40 hours, then the average weekly wage shall be established by multiplying the employee’s hourly rate or earning by the number of hours customarily worked in the employee’s classiñcation or employment in that place of employment or his actual earned wages, whichever is greater.
"(3) When a hearing referee finds that the employee was employed specifically and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment. When it is found that the employee has worked an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee.
"(4) If the hourly earning of the employee cannot be ascertained, or if no pay has been designated for the work required, the wage, for the purpose of calculating compensation, shall be taken to be the usual wage for similar services where such services are rendered by paid employees.
"(5) Where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provisions, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of working days customary in the employment, but not less than 5.” (Emphasis added.)
According to subsection 3 of the statute, an employee who works less than 25 hours per week is considered a part-time employee. His average weekly wage is then established using the formula outlined in the last sentence of subsection 2 of the statute, that is, by multiplying the employee’s hourly rate or earning by the number of hours customarily worked.
Accordingly, the computation in this case would be 13 hours at the hourly rate of $2.50 to equal $32.50 as plaintiffs average weekly earnings. However, the Court of Appeals observed that because the total hours that plaintiff worked "in all of his current employments”, including, of course, his full-time job, resulted in an average work week of more than 25 hours per week, subsection 3 of the statute requires that plaintiff be considered a full-time employee. Thus, reasoned the Court of Appeals, the hearing referee was correct in computing plaintiffs average weekly wage according to the first sentence of subsection 2 of the statute, at 40 hours multiplied by $2.50 per hour, plus meals, or $105 per week. Compensation was then correctly computed based on the extent of plaintiffs disability.
The result was that plaintiff earned more after his injury than he received prior to his injury. Diagramatically, the scheme can be observed as follows:
Wages at Time of Injury
Claims adjuster wages: $213.46
Bartending wages: 32.50
Total: $245.96
Wages and Compensation During Period of Partial Disability
Claims adjuster wages: $213.46
Compensation for injury as bartender: 70.00
Total: $283.46
A majority of the Workmen’s Compensation Appeal Board utilized the final sentence of subsection 1 of this statute to limit plaintiff's compensation award to $32.50 so that his total earnings would not be more than his average weekly earnings at the time of his injury.
The Court of Appeals rejected this application of the limitation clause in subsection 1, following the rule in Bowles v James Lumber Co, 345 Mich 292; 75 NW2d 822 (1956), where this Court said that the statutory language "wage earning capacity after the injury in the same or another employment” refers only to other employment which claimant undertook to take the place of the employment wherein he suffered his injury. Put another way, "If [a] defendant’s liability for compensation may not be increased by taking into consideration what plaintiff was earning at another job at time of injury, it follows, as a matter of logic and justice, that it may not be decreased by taking into account what he continued to earn on that other job after injury”. 345 Mich at 294.
While the Court of Appeals was uneasy about this Court’s interpretation of the statutory language in Bowles, it felt obligated to follow precedent, and further observed that the Legislature’s silence in the face of Bowles must be construed as consent to the accuracy of the interpretation of the phrase in question, citing Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968).
Defendant urges this Court to overrule Bowles, arguing that its application defeats the goals of the Workmen’s Compensation Act. Defendant argues that the purpose of the act is to link the amount of benefits payable to an injured employee to the amount of wages he actually lost. The doctrine in Bowles, defendant contends, makes it a virtual certainty that an employee who holds a full-time job and becomes disabled from performing a concurrent part-time job will receive more in benefits than he lost in wages.
Defendant further argues that if Bowles is overruled, then subsection 3 of the statute, which creates an artificial 40 hour work week for employees whose actual hours worked exceeds 25 hours, and subsection 1 which limits post-injury wages-plus-benefits to the amount of pre-injury actual wages, would be able to operate together to accomplish the objectives of the act.
Upon review, we believe that Bowles should be reaffirmed because it currently stands as a valid prohibition against using an employee’s full-time job earnings to limit the benefits received from a disability affecting only a part-time job. However, we conclude that the Court of Appeals’ analysis of our holding in Bowles was incomplete and its application to the case at bar erroneous. We therefore remand this case for reconsideration and recomputation of benefits according to principles outlined in this opinion.
I
In Bowles, plaintiff was working part-time for defendant as a common laborer and also had a full-time job as a timekeeper. He was injured on the part-time job two weeks after he started. Although he was completely disabled as a common laborer, his injury did not affect his earning capacity in his full-time job. Plaintiff worked 24 hours the first week and 22 hours the next for defendant, at $1.25 per hour, for average weekly earnings of $28.75. Applying the statutory formula, however, plaintiffs weekly wage was calculated to be $50 for Workmen’s Compensation purposes, and he was awarded $30 per week in benefits. His average weekly earnings from the timekeeper’s job at the time of injury was $64.22, so that his actual weekly wages were $92.97. Subsequently, plaintiff timekeeper’s wages rose to $93.20 weekly. Defendant then argued that the statutory limitation of benefits should operate to bar plaintiff from further compensation under the act.
This Court rejected defendant’s argument, construing the term "wage earning capacity in the same or another employment” according to Brandfon v Beacon Theatre Corp, 300 NY 111; 89 NE2d 617 (1949), to mean those wages earned from the "same” employment in which the employee was injured, or from "another” job which he took in its place. The New York court, construing an identical statute, stated:
"While superficially it might appear that the employee’s earnings from any and all sources must be taken into account, more careful study, as well as a regard for the context and design of the statute, makes it evident that it does not apply or relate to a case in which an employee was engaged, prior to the accident, in dual and dissimilar employments. Rather, it was the legislative purpose that there be measurement in terms of 'another employment’ only where a worker takes another position because his injury disabled him from continuing in the original one. In other words, the wages to be considered after the accident are those earned from the 'same’ employment in which he was hurt or from 'another’ employment which he undertook in its place. * * *
"'However, in the present case, where the claimant held 2 concurrent jobs, he is entitled to be compensated for the earnings lost to him by virtue of his disability as an electrician, without regard to his salary as a projectionist. His wages in such other unrelated employment, it is true, were not affected by his injury, but he possessed a certain earning ability as an electrician, and that ability the accident impaired. To the extent of that impairment he is entitled to compensation, and consideration of his wages as projectionist — which would partially or entirely deprive him of such compensation — would contravene the spirit and purpose of the statute.” 300 NY at 114-115 (emphasis added).
In Bowles, we subscribed to this language and, accordingly, refused to consider plaintiff’s wages as a timekeeper in computing compensation-plus-wages for the purposes of the statutory limitation. We reasoned that such a result was just because we believed that an employer should not be able to use an employee’s wages earned at a separate job to limit its liability if those wages could not be considered to increase its liability.
II
Bowles achieved a just result as far as it went: an increase in wages in a separate, unrelated job which is unaffected by the employee’s disability should not be considered in calculating the benefits received as a result of a disabling injury in different employment. The apparent inequity— that Lahay would receive more in compensation benefits than he earned in wages — results from the Court of Appeals’ incomplete application of Bowles to subsections 2 and 3 of MCLA 418.371; MSA 17.237(371), because subsection 3 allows indulgence in the fiction of the 40 hour work week for employees who do not actually work that amount of time.
The objective of the Workmen’s Compensation Act is to compensate employees for loss of earning capacity which results from a work-related injury, MCLA 418.371(1); MSA 17.237(371X1). The fictional 40-hour work week is the result of a legislative decision to place the burden of compensating an employee, who works at multiple part-time jobs and whose injury at one of the jobs diminishes his earning capacity in the remainder of his jobs upon the employer in whose employ he was injured. Thus, the first sentence of subsection 2 and the last sentence of subsection 3 of the statute ensure that an employee whose disability extends to "all of his current employments” will be adequately and justly compensated.
The last sentence of subsection 1 of the statute illustrates the legislature’s intention that an employee should not receive a windfall from his injury. Thus, an injured employee who obtains substitute employment, albeit at reduced earning capacity, shall have his compensation reduced pro tanto. The dimension added by our decision in Bowles is that unrelated and unaffected concurrent employment shall not be considered in calculating benefits or limitation of benefits.
To give full effect to the intent of the Legislature, however, the Bowles rationale must apply to the entire statute. Unrelated and unaffected concurrent employment should not be considered under the statute for any purpose.
The last sentence of subsection 3 of the statute, therefore, should be read to apply only to all of the employee’s current employments affected by his disabling injury. If the employee’s earning capacity in a concurrent job is unaffected by a work-related injury in another employment, then the concurrent job should not be considered in deciding whether the worker is a part-time or full-time worker. The unaffected concurrent job, therefore, will not be considered in determining whether subsection 2 or subsection 3 should be utilized in calculating the average weekly wage. Nor will it be used for purposes of the limitation of benefits clause in subsection 1.
The result, then, is that an employee working at one full-time job and one part-time job will be considered a part-time employee under the act if his disabling injury affects only the part-time job, and in such case his average weekly wage would be calculated according to the first sentence of subsection 3 of the statute. Because the rule in Bowles limits the scope of the limitation in subsection 1 to the part-time job, the amount of benefits awarded the employee, when added to his earnings from the job in which he sustained the injury or another job taken in lieu thereof, will not exceed his wages at the part-time job.
Thus, in the instant case, Lahay’s actual average weekly wage was $32.50. His actual hours worked at the part-time job (the only one of "all his current employments” affected by the disability) were 13. Therefore, his average weekly earnings under the statute are calculated according to the first sentence of subsection 3 to be $2.50 per hour multiplied by an average of 13 hours worked each week, or $32.50. Compensation was paid at a rate of 2/3 the statutory wage by the hearing referee. Thus, plaintiff will receive $21.67 in weekly benefits as long as his wages from the bartending job, or other part-time employment taken in lieu thereof, do not exceed $10.83 per week. If such earnings exceeded that amount, his benefits will be reduced according to the formula in subsection 1.
If an employee’s disability affected both his full-time job and his part-time job, then the last sentence of subsection 3 would apply and the average weekly wage would be calculated according to subsection 2 on a 40-hour work week basis. If both jobs are affected, Bowles would not apply and the limitation in subsection 1 would be determined according to his total actual wages.
Applying Bowles in this manner gives full effect both to the legislative intent that part-time employees be fairly compensated according to their loss of earning capacity, and to the legislative concern that an employee not receive a windfall from his injury.
Accordingly, the Court of Appeals is reversed and the cause is remanded for recomputation of benefits in conformance with this opinion.
Kavanagh, C. J., and Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred with Ryan, J.
59 Mich App 145; 229 NW2d 348 (1975).
Administrative Code, 1959 AACS, R 408.35 states:
"If the department shall have reason to believe that there has not been compliance with the provisions of the compensation act, it may on its own motion give notice to the parties and hold a hearing for the purpose of determining the facts and the rights of the parties. Such notice shall contain a statement of the matter to be considered.”
1969 PA 317, § 371; MCLA 418.371; MSA 17.237(371).
In other instances, the Court of Appeals has relied on subsection 5 of the statute to compute the wages of part-time employees. See e.g. Davis v Merrill School System, 67 Mich App 20; 239 NW2d 745 (1976); Mora v Fowlerville Public School System, 37 Mich App 371; 194 NW2d 481 (1971). Under our treatment of the issue, the existence of concurrent employment does not itself constitute "special circumstances” which would require resort to subsection 5.
Defendant is not quite correct in this statement. MCLA 418.371(1);. MSA 17.237(371X1) states that compensation is to fairly represent the impairment of the employee’s working capacity. However, the formulae for calculating working capacity, in all but unusual cases, use wages multiplied by hours per week worked in arriving at the employee’s average weekly earnings. Thus, for practical purposes, wages and working capacity are closely aligned.
1948 CL 412.11; MSA 17.161 reads in part:
"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.”
Buehler v University of Michigan, 277 Mich 648; 270 NW 171 (1936), was cited for the proposition that defendant could not be held liable for loss of working capacity on plaintiffs full-time job if the injury sustained while working for defendant part-time so disabled him. Defendant herein argues that such reliance was ill-founded because 1943 PA 245 amended the statute to provide part-time employees with an artificial 40-hour work week. Thus, defendant argues, the court overlooked the fact that what plaintiff Bowles would have lost in earning capacity at his full-time job he would have made up in compensation benefits from his part-time job based on a 40-hour week. Although it is true that part-time employees who qualify under the last sentence of subsection 3 of the present statute will receive a windfall if not limited by subsection 1, it does not mean that Bowles was incorrectly decided.
This result is achieved in other jurisdictions by statutory provisions which allow the inclusion of both part-time and full-time wages in the initial calculation of "average weekly wage” if the two employments are "similar” or "related”. See 2 Larson, Workmen’s Compensation Law, § 60.31 and fn 58. Application of this rule, however, has been difficult, see, e.g., Black v American & Foreign Ins Co, 123 Ga App 133, 138; 179 SE2d 679, 683 (1970) (Jordan, P.J., dissenting), causing Professor Larson to level this criticism:
"The rule refusing to combine earnings from concurrent employments unless they are 'similar’ or 'related’ is unnecessary from the point of view of statutory construction, unsound as a matter of accomplishing the purposes of the legislation, inhumane from the point of view of the claimant, and logically absurd as to the distinctions on which it is based.” Larson, supra.
The Michigan statute, together with the application of our decision in Bowles as outlined herein avoids this problem by eschewing the "similarity” test, and by focusing on whether the disability also affects earning capacity in the concurrent employment. | [
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Williams, J.
This complex unemployment compensation case involves the interpretation of interrelated provisions of § 28 ("eligibility for benefits”) and § 29 ("disqualification from benefits”) of the Michigan Employment Security Act. There are two issues: (1) whether claimant, disqualified under the act for voluntarily terminating his employment, can requalify for benefits under the act outside the State of Michigan; (2) whether claimant, after he moved home to Kentucky, was disqualified from receiving benefits for refusing the employer’s offer of his former job or whether claimant’s rejection of this reemployment offer was with "good cause” because the offer was not an offer of "suitable work” due to the unreasonable distance between his Kentucky residence and the Michigan job offer.
At the outset, it is essential we bear in mind that our unemployment compensation act is part of a Federal-state unemployment compensation system. This Federal-state system is grounded in the Federal Social Security Act, the WagnerPeyser Act, and the Federal Unemployment Tax Act, together with state laws enacted in conform ity with the standards set forth by these Federal laws. The Federal-state system is implemented by a Federal tax offset to the employers of a state provided that the state’s unemployment compensation law conforms to minimum Federal standards. Furthermore, every state legislature has included in its state unemployment compensation law provisions authorizing the responsible executive (in Michigan, the Michigan Employment Security Commission — MESC) to enter into interstate agreements. These agreements are essentially designed to deal with claimants who earned qualifying wages in one state but who upon being separated from employment moved their residence to another state and claimants who at the time of their separation from employment had accumulated wage credits sufficient to make them eligible for benefits in more than one state. Inherent in these agreements is the recognition of every state legislature of the Federal dimension of the unemployment laws and the mobility of labor essential to the operation of our private enterprise system. Both the spirit and letter of our act support these Federal and interstate aspects of unemployment compensation.
Accordingly, because of the plain language of our act as well as the aforesaid state-Federal implications, we hold that claimant Bingham, a Kentucky worker who left a Michigan job because he could not find adequate housing for his family at a price he could afford, returned to Kentucky, registered for work with the appropriate employment office there, diligently sought and made himself available for suitable work, but turned down a job offer from his former Michigan employer due to the distance from his Kentucky residence, (1) requalified for benefits after serving the period of disqualification under the act, and (2) was not disqualified for refusing his former employer’s job offer because the offer was not an offer of "suitable work” and was therefore rejected by claimant with "good cause” due to the fact that the job was too far distant from his residence.
We reinstate the administrative determination of the Michigan Employment Security Commission, and reverse the trial court and the Court of Appeals.
I — Facts
Claimant Arlie K. Bingham was employed by American Screw Products Company from February 17, 1969 to November 17, 1969. He worked as a machine operator; his last wage-rate was $3.10. per hour.
Bingham testified that he left his Michigan employment because he had been unable to find adequate housing for his wife and four children in Michigan at a price which he could afford. Bingham explained that while he was employed in Michigan he had searched continuously for a home in which his wife and four children could live. His family came to Michigan and lived with him for approximately one month; but the living quarters were inadequate. Because he was unable to find adequate living quarters within his means, his family was forced to return to Pineville, Kentucky, his original home. After his family returned to Kentucky, Bingham made further efforts to find adequate living quarters, but his efforts proved futile. He thereupon severed his Michigan employment, returning to Pineville, Kentucky, to join his family.
On December 2, 1969, Bingham filed an inter state claim for unemployment benefits with the Commonwealth of Kentucky Division of Employment Service in Middlesboro, Kentucky. On February 20, 1970 the Michigan Employment Security Commission issued a determination holding (1) claimant’s separation from employment was "a voluntary leaving without good cause attributable to the employer” under § 29(l)(a) of the Michigan Employment Security Act; (2) claimant was thereby disqualified under § 29(1)(a) of the act for the week ending November 22, 1969 and was subject to a 6-week requalification period under § 29(3), the requalification period having been completed as of January 10, 1970; (3) claimant’s benefit entitlement was reduced by 6 weeks as provided in § 29(4) of the act (from 2'6 to 20 weeks).
On March 9, 1970, the employer protested the MESC determination. The employer took no exception to the MESC’s finding that Bingham’s separation was "voluntary * * * without good cause attributable to the employer” under § 29(1)(a) of the act. However, the employer stated that on March 9, 1970 notice had been sent to Bingham to report to work on his regular job not later than March 16, 1970. Bingham, at that time living in Kentucky, refused the offer of work because of its distance from his home.
On April 3, 1970, the MESC issued a redetermination affirming its determination of February 20, 1970. The MESC held:
"[C]laimant established good cause for not reporting when recalled to report on 3/12/70 and is not subject to disqualification under the provisions of subsection 29(l)(a) of the act.
"Claimant has a car for transportation and is seeking work within a radius of 50 miles of Middlesboro, Ky., where work is generally similar to work he performed in Michigan is available. He is not placing any restrictions on his availability for work as to hours or wages. He is actively seeking work and the Kentucky agency stated that his chances of securing employment are fair.
"Claimant completed the requalification requirements of the Michigan act based on his separation. He fully meets the eligibility requirements of the Michigan act and is held eligible for benefits.”
This redetermination was affirmed by a Michigan Employment Security Commission Referee on October 14, 1970. On March 24, 1971, the Michigan Employment Security Commission Appeal Board also affirmed the redetermination.
On August 20, 1973, the circuit court reversed the appeal board decision. The court held that (1) the act prohibited Bingham from requalifying for unemployment benefits while residing outside the State of Michigan; (2) Bingham was required to have been available for work within the community where he lived when his employment relationship was severed (in this case Michigan) in order to have met the eligibility requirements of § 28(1)(c) of the act, MCLA 421.28; MSA 17.530; thus claimant was ineligible to receive benefits because he refused to accept the employer’s Michigan job offer although he was living in Kentucky at the time the offer was made.
On November 27, 1974, the Court of Appeals affirmed part (2) of the circuit court’s opinion, which held "suitable” the Michigan offer of work made to Bingham while he was living in Kentucky. 57 Mich App 21; 225 NW2d 199 (1974). The court held that as a matter of law the act required Bingham be available for work both at the locality in which he resided at the time the offer of work was made (Kentucky) and at the locality at which he resided during the period he earned his base period credit weeks (Michigan). The Court did not rule on part (1) of the circuit court’s opinion, i.e. whether Bingham could requalify for benefits while residing outside the State of Michigan. The Court held that this issue was not properly before it because the employer had not timely protested the February 20, 1970 MESC determination of this issue.
The MESC applied for leave to appeal the Court of Appeals decision. This Court granted leave on February 6, 1975.
II — Claimant Requalified for Benefits While Outside the State of Michigan
The first issue, properly raised by the trial court, is whether Bingham satisfied the requalification requirements of § 29(3) while outside the State of Michigan.
Section 29(3) stated:
"(3) An individual who is disqualified under subsection 29(1) shall * * * complete 6 requalifying weeks * * * for each of which he * * *
"(b) would otherwise meet all the requirements of this act to receive a waiting period credit or a benefit payment if he were not disqualified under subsection 29(1) * * * ” MCLA 421.29(3); MSA 17.531(3).
In other words, a claimant can requalify for benefits by being eligible for benefits under the act during the 6-week requalification period. This being the case, the relevant question in determining the above stated issue is: was Bingham eligible for benefits under the act during the 6-week period beginning the week ending November 22, 1969, and terminating January 10, 1970, while in Pine- ville, Kentucky? The answer to this question is clearly yes. The act provided (§ 28[1]):
"An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that:
"(a) He has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the commission may prescribe and is seeking work * * *
"(c) He is able and available to perform full-time work of a character which he is qualified to perform by past experience or training, and of a character generally similar to work for which he has previously received wages, and he is available for such work, full time, either at a locality at which he earned wages for insured work during his base period or at a locality where it is found by the commission that such work is available.” MCLA 421.28(1); MSA 17.530(1).
Bingham registered for work, pursuant to § 28(1)(a), with the Kentucky Division of Employment Service in Middlesboro, Kentucky.
Section 43 of the act defines "employment office” as "a free public employment office or branch thereof operated by this state or any other state as a part of a state-controlled system of public employment offices” MCLA 421.43; MSA 17.547 (emphasis added). Thus Bingham’s registration was wholly satisfactory and in accord with the "registration for work” requirement of § 29(1)(a).
In addition, Bingham was "seeking work” (§ 28[1] [a]) and "able and available” for work as required by the act. This Court, in Bolles v Employment Security Commission, 361 Mich 378, 385; 105 NW2d 192 (1960), declared:
"Such is the purpose of the requirement (for eligibility to benefits) that a claimant be 'able and available’ to work, that he register for work, and seek work. These * * * are indicia of genuine attachment to the labor market.”
In Dwyer v Unemployment Compensation Commission, 321 Mich 178, 188-189; 32 NW2d 434 (1948), we defined "availability” as follows:
"The basic purpose of the requirement that a claimant must be available for work to be eligible for benefits is to provide a test by which it can be determined whether or not the claimant is actually and currently attached to the labor market. To be available for work within the meaning of the act, the claimant must be genuinely attached to the labor market, i.e., he must be desirous to obtain employment, and must be willing and ready to work.”
It is clear that Bingham was "seeking work” and "able and available” for work in the above sense, i.e. Bingham genuinely attached himself to the labor market within the environs of his home. It is also clear that Bingham was properly "seek ing work” and "able and available” for work although he was not doing so in the locality where he earned his base credit weeks (i.e., Michigan).
Section 28(1)(c) requires that a claimant must be available for work, full time, etc., "either at a locality at which he earned wages for insured work during his base period or at a locality where it is found by the commission that such work is available”. On its face the statute provides two alternative localities in which a claimant may be available for work: (1) where he earned his base credit weeks (in this case, Michigan); (2) where the commission finds suitable work available for the claimant.
The second alternative is obviously written into the statute to provide for the situation where a claimant registers for benefits in a locality other than that in which he earned his base credit weeks and seeks available work (i.e. genuinely attaches himself to the labor market), as is a claimant’s statutory right under § 28(l)(a) read in conjunction with § 43 supra. Of course, the "new locality” in which a claimant registers for work, seeks work, and is "able and available” for work where the commission finds work available can be either in any part of Michigan or in another state. See discussion of § 28(l)(a) and § 43 supra. This conclusion is in full accord with other state courts who have adopted the "availability” test we adopted in Dwyer. As the Superior Court of Pennsylvania declared in Sturdevant Unemployment Compensation Case, 158 Pa Super 548, 560-561; 45 A2d 898, 905 (1946):
"There is no requirement in the quoted section, nor elsewhere in the act, that a claimant shall be available for work in any particular place, such as the locality in which he earned his wage credits or where he last worked or resided. The mere fact that a claimant has moved from one locality to another does not create a basis for holding him unavailable for work. If he registers for work in the new locality, and labor-market conditions there afford reasonable opportunities for work, he is available for work.”
See, in accord, Employment Security Commission v Kosic, 12 Ariz App 455; 471 P2d 757 (1970); Hunter v Miller, supra; Ashmore v Unemployment Compensation Commission, supra. See, also, Anno, Unemployment Compensation as Affected by Employee’s or Employer’s Removal from Place of Employment, 13 ALR2d p 874, pp 880-883.
Bingham therefore clearly satisfied the requalification requirement of § 29(3)(b) of the act by meeting all the requirements of the act "to receive a benefit payment if he were not disqualified under subsection (1)”, while in Pineville, Kentucky. The trial court’s holding that Bingham could not re-qualify for benefits outside the state of Michigan is in error and is reversed.
III — Claimant Was Not Disqualified Prom Receiving Benefits Under the Act
The second, central issue in this case is whether Bingham (having requalified for benefits under § 29[3] [b]) was disqualified under the act because he refused an offer by American Screw Works of his former job.
Section 29(1) of the act states that "[a]n individual shall be disqualified for benefits in all cases in which he * * * (e) Has failed without good cause to accept suitable work when offered him * * * ”. Section 29(6) of the act defines "suitable work” as follows:
"In determining whether or not any work is suitable for an individual, the commission shall consider * * * the distance of the available work from his residence.” MCLA 421.29(6); MSA 17.531(6).
Was American Screw Works’ offer of reemployment to Bingham an offer of "suitable work” within the meaning of § 29(6)? The legal answer turns on the statutory meaning of the word "residence” in § 29(6), i.e. did Bingham have "good cause” to refuse the offer because of the unreasonable distance between the locality of the reemployment offer and his "residence”?
The word "residence” is not defined in the act. In the absence of a statutory definition of a term,
"it is an accepted rule of construction, that words of a statute are to be given their plain and ordinary meaning, for it is to be presumed that the legislature, not having indicated otherwise, so intended.” 22 Callaghan’s Michigan Civil Jurisprudence, § 121, p 479.
See Grand Rapids Gravel Co v Department of Treasury, 14 Mich App 677, 681-682; 166 NW2d 53 (1968).
The common sense, "plain and ordinary” meaning of the word "residence” is clear: a person’s "residence” is where that person actually lives. Bingham lived in Pineville, Kentucky. A job offer in Farmington, Michigan is an unreasonable distance from Pineville, Kentucky and therefore not "suitable work” under § 29(6). Accordingly, Bingham should not be disqualified for refusing such a job offer.
The legal answer to the meaning of "residence” substantiates the common sense answer. In Wright v Genesee Circuit Judge, 117 Mich 244, 245; 75 NW 465 (1898), this Court defined the ordinary meaning of "residence” as follows:
"Residence means the place where one resides; an abode; a dwelling or habitation; especially,- a settled or permanent home or domicile. Residence is made up of fact and intention. There must be the fact of abode, and the intention of remaining. Estate of Heron, 6 Phila 87, 90 (Register’s Ct, 1865).”
In In re Scheyer’s Estate, 336 Mich 645, 651-652; 59 NW2d 33 (1953), in discussing the ordinary meaning of "residence”, we affirmed the definition articulated in the Wright case. In addition, we declared:
"Throughout the definitions of 'home’ and 'residence,’ as herein quoted above, runs the thought of permanence, of a place to which one returns, a place where one intends to remain, a haven or domicile. Suggested, too, is the thought of 1 unit or 1 place as contrasted with several. One cannot be permanently located in more than 1 place; one cannot be domiciled in more than 1 place; one cannot intend to remain for an extended period of time in more than 1 place. ” (Emphasis added.)
Applying this definition to the facts of this case, it is clear that Bingham’s "residence”, his "settled or permanent home,” where he "intends to remain”, is Pineville, Kentucky. Therefore, under § 29(l)(e) read in conjunction with § 29(6), Bingham was not disqualified for refusing American Screw Works’ reemployment offer because his refusal was with "good cause”; the offer was not an offer of "suitable work” because the locality of the reemployment offer (Farmington, Michigan) was clearly an unreasonable distance from his Pineville, Kentucky residence. We hold that the claimant was not disqualified.
The Court of Appeals, in a 2-to-l decision, however, held that Bingham was disqualified under § 29(l)(d) for having refused an offer of "suitable work” without "good cause”. The Court reached its holding by ruling, as a matter of law, that "residence” in § 29(6) "means both the locality in which the claimant resides at the time the offer of the job was made and the localities in which claimant resided during the period he earned the base period credit weeks”. (Emphasis added.) 57 Mich App 21, 29.
We find the Court of Appeals holding is clearly erroneous.
First, the Court’s unorthodox interpretation of the word "residence” to mean that a claimant may reside in two (or more) places rather than one place must be rejected in light of the definition of the word "residence” pronounced by this Court in Wright v Genesee Circuit Judge and In re Schemer’s Estate, the definition we must apply in this case because of the lack of a statutory definition of the term. Furthermore, to interpret "residence” as the Court of Appeals does would be essentially amending § 29(6) to reach a result contrary to that mandated by the plain language fixed by the Legislature. This we cannot do.
"It is not the proper function of the court to amend the statute to broaden or extend the disqualifications fixed, in plain language, by the legislature.” Thomas v Employment Security Commission, 356 Mich 665, 669; 97 NW2d 784 (1959).
Second, the result of the Court of Appeals holding is that where an offer of reemployment is made to an employee who has moved and established residence in a locality outside the radius of what constitutes a reasonable distance from the locality where he earned his base credit weeks, he must accept such an offer or be disqualified by the commission. This result, which would effectively discourage (if not altogether impede) an involuntarily as well as voluntarily unemployed person who desires to exercise his fundamental right of freedom of movement to seek a job where it is best for him within our private enterprise system, is clearly contrary to those statutory provisions which enable the MESC to enter into reciprocal interstate agreements in recognition of the mobility of labor and must, therefore, be rejected.
Third, this result of the Court of Appeals hold ing is inconsonant with the underlying law and spirit of the Federal-state unemployment compensation system. The Employment Security Amendments of 1970, Internal Revenue Code of 1954, speak directly to this point. Section 3304(a)(9)(A) states:
"[C]ompensation shall not be denied or reduced to an individual solely because he files a claim in another State * * * or because he resides in another State * * * at the time he files a claim for unemployment compensation.” 26 USC 3304(a)(9)(A). (Emphasis added.)
The need for conformity to basic Federal law in this area is illustrated by California Department of Human Resources Development v Java, 402 US 121; 91 S Ct 1347; 28 L Ed 2d 666 (1971), where the Supreme Court enjoined the withholding of employee benefits pending employee appeal as violative of § 303(a)(1) of the Social Security Act, 42 USCA 503(a)(1), which requires administration of state unemployment compensation laws in a manner "reasonably calculated to insure full payment of unemployment benefits when due”. 402 US 121, 125.
However, under the Court of Appeals holding, an unemployed person who moves to another state (outside the radius of what constitutes a "reasonable distance” from the Michigan locality where he earned base credit weeks) and becomes eligible for benefits there, would have to accept a reemployment offer or be disqualified by the MESC. In effect, such a person faces the prospect of being denied compensation, "because he resides in another state”. This kind of ruling would, therefore, frustrate the Federal policy expressed in 26 USC 3304(a)(9)(A) as effectively as the construction enjoined in Java. If challenged, it is likely that it would be enjoined to secure Federal conformity. But we need not fear this prospect because our holding that the common, ordinary meaning of "residence” applies to § 29(6) vindicates, rather than frustrates, the Federal scheme.
Finally, the Court of Appeals reached its holding that "residence” in § 29(6) means either a claimant’s residence when the job offer is made or a claimant’s residence at the time he earned his base credit weeks on the basis of erroneous statutory construction. First, the court argued that it would be anomalous to say the eligibility requirement in § 28(1)(c) conjunctively required seeking work "either at a locality in which he earned his credit weeks or at a locality where the commission finds available work” and not to rule the same way with respect to the disqualification in § 29(1)(d). However, the fact of the matter is that in part II we have already held that § 28(1)(c) is clearly disjunctive and not conjunctive. Consequently, there is no anomaly.
Second, the Court of Appeals feared an anomaly between § 29(6) and § 28(1)(a)(2). Section 28(1)(a)(2) provides:
"Except for period of disqualification, the requirement that the individual shall seek work may be waived by the commission where it finds that suitable work is unavailable both in the locality where the individual resides and in those localities in which the individual has earned base period credit weeks.” MCLA 421.28(1)(a)(2); MSA 17.530(1)(a)(2).
The Court of Appeals argued:
"This language clearly indicates that suitable work may exist not only in the locality where the claimant resides but also at the localities at which claimant earned credit weeks. We are thereby compelled to conclude that the term 'residence’ as used in § 29(6) means both the locality in which the claimant resides at the time the offer of the job was made and the localities in which claimant resided during the period he earned the base period credit weeks.” 57 Mich App 21, 29.
The Court of Appeals argument, although superficially plausible, is fundamentally erroneous. First, § 28(1)(a)(2), instead of suggesting that § 29(6) refers to two (or more) residences, clearly recognizes that the locality of residence and where the individual earned base period credit weeks may be two separate localities. Section 29(6), of course, considers only the former, or locality of residence. Second, the locality of residence and the locality where base credit weeks are earned may be two separate places but not so distant from each other that work at the latter would not be within reasonable distance from the claimant’s residence. Thus, § 28(1)(a)(2) and § 29(6) can be logically interpreted together.
Because of the clear language in the Michigan Employment Security Act, the interstate agreements accompanying it, and the Federal-state dimension integral to it, we hold that claimant Bingham, a Kentucky worker who left a Michigan job because he could not find adequate housing for his family at a price he could afford, returned to Kentucky, registered for work with the appropriate employment office there, diligently sought and made himself available for suitable work, but turned down a job offer from his former Michigan employer due to the distance from his Kentucky residence, (1) requalified for benefits after serving the period of disqualification under the act, and (2) was not disqualified for refusing his former employer’s job offer because the offer was not an offer of "suitable work” and was therefore rejected with "good cause” due to the fact that the job was too far distant from his residence.
We reinstate the administrative determination of the Michigan Employment Security Commission, and reverse the trial court and the Court of Appeals.
No costs, a public question.
Kavanagh, C. J., and Levin, J., concurred with Williams, J.
Ryan, J., took no part in the decision of this case.
The circuit court held that claimant was required to reside in the State of Michigan in order to requalify for benefits under the act. On appeal, the Court of Appeals held that it was unnecessary to rule on this issue "Since defendant company neither appealed nor sought a redetermination on that question within the 15-day period specified by MCLA 421.32a; MSA 17.534(1), the question was not properly before the circuit court.” 57 Mich App 21, 25. The basis of the court’s decision was that the employer did not file its protest of the February 20, 1970 determination within the 15-day period prescribed by § 32a of the act. Section 32a provided in pertinent part:
"The commission shall upon application by an interested party filed with the commission within 15 days after the mailing or personal service of a notice of determination, or may upon its own motion within said period, review any determination and thereafter issue a redetermination affirming, modifying or reversing the prior determination and stating the reasons therefor. * * * ” MCLA 421.32a; MSA 17.534(1).
Both the MESC and the employer contend the court’s decision not to rule on this issue was in error. We agree. A review of the record reveals that the employer protested the February 20, 1970 determination on March 9, 1970. The fifteenth day after February 20, 1970 was Saturday, March 7, 1970.- Because the last day of the 15-day period was a Saturday, the time for filing the appeal was automatically extended to Monday, March 9, 1970, pursuant to § 49 of the act, which provided in pertinent part:
"Whenever the last day of the 15-day period, provided for in sections 14, 32a, 33, 34 and 38, falls on a Saturday, Sunday, or legal holiday, such 15-day period shall run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday. * * * ” MCLA 421.49; MSA 17.553(1).
When § 49 of the act is applied, it is clear that the employer’s protest of the February 20, 1970 determination was timely filed on March 9, 1970. Therefore we find that the Court of Appeals erred in not ruling upon the requalification issue and that this issue is properly before us.
Bingham was disqualified under § 29(1)(a) of the act for having left his work "voluntarily without good cause attributable to the employer”. In addition to the 6-week requalification requirement of § 29(3), as a result of his disqualification Bingham’s benefits were reduced 6 weeks from 26 to 20 weeks. See § 29(4), MCLA 421.29(4); MSA 17.531(4).
The period of disqualification prescribed in § 29(3), a legislative determination, was extended from 6 to 13 weeks with respect to persons disqualified under § 29(1)(a) of the act in 1975 PA 110, § 1, eff June 6, 1975.
A claimant may also requalify for benefits by earning or receiving remuneration in excess of $25 (§ 29[3] [a]) or receiving waiting week credit or a benefit payment based on credit weeks subsequent to the disqualifying act or discharge (§ 29[3] [c]). These alternatives are not pertinent to the facts of this case.
As we stated in Dwyer, "Such is the rule in other jurisdictions. See Reger v Administrator, Unemployment Compensation Act, 132 Conn 647, 46 A2d 844 (1946); Hunter v Miller, 148 Neb 402, 27 NW2d 638 (1947).” See also Ashmore v Unemployment Compensation Commission, 46 Del 565; 86 A2d 751 (Superior Ct 1952). As these cases indicate, the source of this rule is Freeman, Able to Work and Available for Work, 55 Yale L J 123, 124 (1945):
"The availability requirement is said to be satisfied when an individual is willing, able, and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market. Since, under unemployment compensation laws, it is the availability of an individual that is required to be tested, the labor market must be described in terms of the individual. A labor market for an individual exists when there is a market for the type of services which he offers in the geographical area in which he offers them. 'Market’ in this sense does not mean that job vacancies must exist; the purpose of unemployment compensation is to compensate for the lack of appropriate job vacancies. It means only that the type of services which an individual is offering is generally performed in the geographical area in which he is offering them.”
For contrary decisions in states which have not adopted the "availability” test we have, see 13 ALR2d, pp 874, 883-885.
However, the validity of these decisions is questionable in light of the subsequently passed Employment Security Amendments of 1970, Internal Revenue Code of 1954, § 3304(a)(9)(A) (effective January 1, 1972), which states:
"[C]ompensation shall not be denied or reduced to an individual solely because he files a claim in another State * * * or because he resides in another State * * * at the time he files a claim for unemployment compensation.” 26 USC 3304(a)(9)(A) (emphasis added).
See fn 9 and accompanying text infra.
The question of whether a claimant can requalify for benefits while living in a state other than Michigan has never been decided by our Court. The Court of Appeals, in Roman Cleanser Co v Murphy, 29 Mich App 155; 185 NW2d 87 (1970), did, however, have occasion to decide this question, holding that a claimant could not requalify under § 29(3) of the act while residing outside the State of Michigan. We overruled Roman Cleanser, but did so on the grounds that it was unnecessary to reach the requalification issue because no timely appeal was taken from the MESC determination in that case, thereby rendering the MESC determination res judicata. 386 Mich 698; 194 NW2d 704 (1972).
In reaching its conclusion in Roman Cleanser that a claimant could not requalify for benefits under § 29(3) while residing outside the state, the Court of Appeals relied on Merren v Employment Security Commission, 380 Mich 240; 156 NW2d 524 (1968):
"In Merren v Employment Security Commission, 3 Mich App 383 [142 NW2d 493] (1966), affirmed by an equally divided court, 380 Mich 240, this Court held that an employee who voluntarily left his employment with a Michigan employer and took work with an out-of-state employer, and who was then laid off by the out-of-state employer, was not entitled to reinstatement or use of any part of the credit weeks he had acquired while working for the Michigan employer. Those credit weeks were cancelled by virtue of the employee’s voluntary quitting. Our rationale in Merren was that:
" ' "To grant Merren’s claim [would be] to penalize Lear Siegler [the Michigan employer], who would then pay Merren from its own account without any contribution from another 'employer’.” ’ "Likewise, were we to hold in the present case that Murphy’s work in Kentucky requalified him for benefits under the act we would penalize Roman by requiring it to pay Murphy from its own account without any contribution from another employer. This we refuse to do.
“We adhere to our decision in Merren. It controls this case. The commission erred as a matter of law in determining that Murphy’s work with an out-of-state employer requalified him for benefits chargeable to the account of his former Michigan employer. We conclude that Murphy stands disqualified under the act.” 29 Mich App 155, 165.
We disagree with this reasoning and conclusion reached by the Court of Appeals in Roman Cleanser. The court fails to mention that in Merren this Court was presented with a statute altogether different in substance from § 29(3). Section 29(1)(a)(1) of the act, which was the statute at issue in Merren, (1955 PA 281) provided:
"(1) An individual shall be disqualified for benefits:
"(a) For the duration of his unemployment in all cases where the individual has: (1) Left his work voluntarily without good cause attributable to the employer or employing unit * * * .
"Provided further, however, That if an individual leaves his work voluntarily without good cause attributable to the employer for the purpose of accepting permanent full-time work with another employer, and if, during the 39 weeks following his separation he is laid off for lack of work by his new employer, enough of his credit weeks with his separating employer whom he left voluntarily shall be reinstated so that the total number of weeks of benefits available to him from all employers at the time of such lay off will not be less than if he had been laid off by the said separating employer * * * .”
In Merren, the claimant voluntarily left his Michigan employer and went to work in Florida for a Florida employer. He was then laid off by his Florida employer and filed a claim for benefits under the MESA, asking for reinstatement or use of a part of his Michigan credit weeks which were previously cancelled by his voluntary termination of employment in Michigan. The Court of Appeals accurately perceived the issue in Merren as being whether claimant, having been disqualified under the act for voluntarily terminating his Michigan employment was entitled to reinstatement or use of any part of the "credit weeks” he had acquired while working for his Michigan employer, which were cancelled as an incident of his disqualification. See 3 Mich App 383, 385, 386. Claimant contended that he should not have been disqualified under the proviso of then § 29(1)(aX1) supra. Both the Court of Appeals and this Court recognized that the merit of claimant’s contention turned on the meaning of the word "employer” as used in the portion of the proviso which states: "for the purpose of accepting permanent full-time work with another employer”. This, Court then looked to the interaction of § 40 and § 41 of the act. Section 40 of the act defined "employing unit” as follows:
" 'Employing unit’ means any * * * corporation, whether domestic or foreign, * * * which has or subsequent to this amendatory act, had in its employ 1 or more individuals performing services for it within this state. * * * ” (Emphasis added.)
Section 41 of the act definéd "employer” as follows:
" 'Employer’ means (1) * * *
"(b) Any employing unit which in each of 20 different weeks within the calendar year 1956 or within any succeeding calendar year * * * has or had in employment 4 or more individuals * * * .”
We held that the reinstatement provision of § 29(1)(a)(1) of the act, read in conjunction with § 40 and § 41, mandated the conclusion that the reinstatement provision applied only when a claimant voluntarily left a Michigan employer to accept work with another Michigan employer and was subsequently laid off from the last Michigan employer. But this conclusion was necessitated by the particular statutory language of the proviso found in §29(1)(a)(1). Section 29(1)(a)(1) required that both the separating employer and the new employer be Michigan employers because the MESC could not add credit weeks earned in Michigan (under the Michigan employer) to credit weeks earned in Florida (under the Florida employer). In Merren, the MESC had no legislative jurisdiction over the Florida employer; therefore, the MESC could not pay benefits to a claimant chargeable to the Florida employer. Clearly, under § 29(1)(a)(1), "[T]o grant Merren’s claim [would be] to penalize Lear Siegler [the Michigan employer], who would then pay Merren from its own account without any contribution from another 'employer.’ ”
But in the instant case, no such restrictive provisions exist in § 29(3). The "requalification” requirement under § 29(3) has no adverse effect upon non-Michigan employers. Because Merren deals with altogether different substantive issues, its holding does not affect the question of whether a claimant can requalify outside the State of Michigan.
This would be true not only with respect to an eligible claimant who has been disqualified, and then requalified, under the act, but also to an eligible claimant who has never been disqualified under the act (i.e. one who is laid off). The act itself makes no distinction as to the eligibility or disqualification of those unemployed persons who are disqualified and then requalify and those unemployed persons who are never disqualified.
The Legislature, in the preamble to the act, declared, in part, that our unemployment compensation law was "An act * * * to enter into reciprocal agreements and to cooperate with agencies * * * of other states charged with the administration of any unemployment insurance law”. In addition to the preamble, the provisions of § 11 of the act, MCLA 421.11; MCLA 17.511, enable the MESC to enter into reciprocal agreements with other states to pay interstate claims. See, in particular, § 11(c), § 11(d), § 11(f), § 11(g). Accordingly, the commission has entered into two basic types of agreements: (1) the Interstate Benefit Payment Plan (formally accepted by the then Michigan Unemployment Compensation Commission at the Interstate Conference of Unemployment Compensation Agencies, November 28, 1937); (2) the Interstate Agreement for Combining Wages (both the Basic Interstate Plan for Combining Wages and the Extended Interstate Plan for Combining Wages); see MESC Manual, Appendices 1 and 2 to Chapter 8600-8699, Part V, Unemployment Compensation Interstate Wage Combining Plans.
The Interstate Benefit Payment Plan is accurately described as follows:
"This plan makes it possible for individuals to collect unemployment insurance beneñts from a state in which they have qualifying wages, although they are not present in that state. The procedures developed under the plan provide that each state may act as an agent in taking claims for all other states. Thus, each state will pay benefits computed on the basis of wages earned under its law and determined under its benefit formula on claims taken in the local offices of any other state acting as an agent for the liable state. The plan is based on the principle that benefit payments to a multi-state worker are to be subject to the same requirements that would apply if he were actually in the state from which he claims benefits. In taking a claim from an unemployed worker, the 'agent’ state does not and has no authority under the plan to make decisions regarding the worker’s rights under the law of the 'liable’ state. The 'agent’ state merely obtains the necessary information from the worker and forwards it to the 'liable’ state in order that the látter may make its own determination as to eligibility, and amount and duration of benefits in accordance with its own law. Before claiming benefits from any other state, the worker is required to exhaust whatever benefit credits he may have in the state in which he becomes unemployed. He may then file claim for benefits against any other state or states in which he may have acquired credits. In the event a multi-state worker has benefit rights under the laws of two or more 'liable’ states, benefits are paid by those states in the same chronological order as the worker earned his benefit credits in the respective states.” (Emphasis added.) IB Commerce Clearing House, Unemployment Insurance Reports, ¶ 2050, p 4586 (1976). These agreements exist between all states. See IB Commerce Clearing House, Unemployment Insurance Reports, ¶ 2050, pp 4585, 4586 (1976).
The Court of Appeals, in its conclusory remarks, stated:
"We are not unaware of the provisions of § 11 of the act with respect to cooperative agreements which the commission may enter into with similar agencies in other states. Clearly, our holding herein will in no way affect any reciprocal agreement to pay a pro rata share of benefits based upon the respective credit weeks earned in the various states where the claim is made under the law of the other state.” 57 Mich App 21, 29-30.
This conclusion may be technically accurate as to the Basic Interstate Agreement for Combining Wages in which the MESC has agreed to pay a pro rata share of benefits for the claimant who has worked in two or more states (including Michigan) but who is not eligible for beneñts in any state because of lack of qualifying wages. See MESC Manual, Appendix 1 to Chapter 8600-8699, Part V. The kind of claimant protected by these agreements, is not affected by the Court of Appeals holding because such a claimant, never having been eligible, does not face the prospect of being disqualified after he moves and refuses the reemployment offer. However, the Court of Appeals fails to mention the Interstate Benefit Payment Plan which is designed to benefit the unemployed person who has earned qualifying base credit wages in Michigan and thereafter exercises his right to freedom of movement in the labor market by moving from the locality where he earned base credit weeks to another state where he registers for work, seeks work, and is "able and available for work,” or the Extended Interstate Plan for Continuing Wages, which is designed to benefit the unemployed person who moves to another state, finds employment, and then becomes unemployed again. See, MESC Manual, Appendix 2 to Chapter 8600-8699, Part V. The obvious purpose of these agreements is to provide benefits for the eligible claimant who has earned qualifying base credit weeks in Michigan, moved to another state, and become eligible for benefits in the other state. The Court of Appeals holding, which discourages an otherwise eligible claimant from exercising his right to freedom of movement within the labor market, clearly undermines these agreements.
As we noted in fn 5, this Federal legislation became effective January 1, 1972. See Annotations, 26 USCA 3304(a)(9)(A) (Pocket Part 1976), p 171. | [
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] |
Kavanagh, C. J.
I agree with my brothers that there is no defense of governmental immunity available to the State of Michigan and its departments in this case. I do not believe the day-to-day operation of a hospital is a governmental function. See Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976) (opinion of Fitzgerald, J. and Kavanagh, C. J.)
However, the conclusion that defendants were not engaged in "the exercise or discharge of a governmental function”, per the governmental immunity act, 1964 PA 170; MCLA 691.1401 et seq.; MSA 3.996(101) et seq., is not determinative of the state’s liability under the doctrine of respondeat superior.
Under the doctrine of respondeat superior there is no liability on the part of an employer for torts committed by an employee beyond the scope of the employer’s business. Bradley v Stevens, 329 Mich 556, 552; 46 NW2d 382 (1951). The employer is liable, however, for the acts of his employee when the employee is acting within the scope of his authority, even though acting contrary to instructions. Poledna v Bendix Aviation Corp, 360 Mich 129; 103 NW2d 789 (1960). The employer is also liable for the torts of his employee if "the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation”. 1 Restatement Agency, 2d, §219(2)(d), p 481. Of course, the employer is not able to instruct his employee only to act within the confines of the law, thereby insulating him from vicarious liability if the employee acts otherwise. Anschutz v Liquor Control Comm, 343 Mich 630; 73 NW2d 533 (1955). See also, Barnes v Mitchell, 341 Mich 7; 67 NW2d 208 (1954).
The issue in this case thus becomes whether these employees of the State of Michigan were acting within the apparent scope of their employment. Justice Fitzgerald’s opinion states:
"Whether specific conduct occurred in the scope of one’s employment is a subjective judgment largely dependent upon the facts and circumstances of the particular case. Our determination that the hospital officials acted outside of their scope of authority does not automatically absolve the state from vicarious liability. The general proposition that vicarious liability may be imputed to the master for intentional torts committed by his servant when the servant’s purpose, however misguided, is wholly or partly to further the master’s business remains viable.”
I read, this to say that this question is one of fact, dependent on the particular circumstances of the case, but then to hold as a matter of law that these employees were not acting within the scope of their employment. Such a determination is not within our proper function; it is for the trier of fact.
The complaint in this case alleges that the tortious conduct of the individual defendants was "made possible by their positions with the State Hospital, which parties purportedly acted on behalf of said hospital, vested with apparent authority to do so * * * ”. The torts complained of include interference with existing and future economic relations, libel, slander and defamation.
I am satisfied that as a matter of law the complaint in this case contains allegations which, if proven, would properly allow the fact finder to determine that the torts were committed by employees of the State of Michigan who were acting within the apparent scope of their authority. See 1 Restatement Agency, 2d, §§ 219, 247, 248, 254, 265.
The Court of Claims did not address the merits of the vicarious liability issue. The Court of Appeals also grounded its decision on governmental immunity. The plaintiff in this case is entitled to his day in court to present his factual case at a trial on the merits, not merely a remand for more procedural determinations in a case already five years old in which not a single witness has yet been heard. I would reverse and remand for a trial to afford him that right.
Levin, J. concurred with Kavanagh, C. J.
Williams, J.
The essential issue in this case is whether the Court of Claims properly granted summary judgment on the grounds that plaintiff had not averred facts which could avoid defendant state agency’s claim of governmental immunity. See, Penix v City of St Johns, 354 Mich 259; 92 NW2d 332 (1958). See also McNair v State Highway Department, 305 Mich 181, 187; 9 NW2d 52 (1943).
We hold that the Court of Claims was in error.
In determining the validity of a motion for summary judgment, a court is to look at the facts pled in a light most favorable to the party opposing summary judgment. See Durant v Stahlin, 374 Mich 82; 130 NW2d 910 (1964).
In the instant case we agree with Justice Fitzgerald’s conclusion that summary judgment is inappropriate although we define "governmental function” vertically, as in the common law, not horizontally, as Justice Fitzgerald does. See Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976).
In looking at the facts pled in a light most favorable to plaintiff, we find that defendant state agency’s employees were clearly engaged in ultra vires activity and were not, therefore, involved "in the exercise or discharge of a governmental function”. Thus, the granting of summary judgment was in error.
However, we do not decide whether the pleadings support the conclusion that the state is liable under the doctrine of respondeat superior because that matter was not considered by the Court of Appeals or the Court of Claims.
Accordingly, we reverse the summary judgment and remand to the Court of Claims to determine whether or not a case of respondeat superior is well pled and for any other action not inconsistent with this opinion.
Costs of appeals to plaintiff.
Ryan, J.
Plaintiff, John F. McCann, challenges the pretrial dismissal of his complaint against the State of Michigan and certain state agencies by the Court of Claims and affirmance by the Court of Appeals.
McCann was the owner of a weekly newspaper called The Weekender. In September 1970, the newspaper began publishing a series of articles and editorials questioning alleged unusual circumstances surrounding the death of a mental patient at Traverse City State Hospital. The articles, the complaint alleges, purported to raise the question of whether the patient expired through some sort of criminal activity, from gross negligence or negligent conduct by certain parties, or from natural causes.
Plaintiff alleges that, in response to these articles, certain hospital officials and employees engaged in a course of action in which they persuaded various business concerns to withdraw ad vertisement revenues from The Weekender, causing it’s financial ruin. The complaint alleges that the hospital officials and numerous lesser employees joined together and "wilfully, wantonly, and maliciously, by persuasion, economic and social pressure, threats and innuendos directed at claimant’s customers, advertisers, and claimant himself, did attempt to cause the demise and destruction of The Weekender, and did request that said customers and advertisers refuse to do business with plaintiff’s publication”. Plaintiff charges specifically that these hospital officials and employees did "openly and covertly, by conversation, letter, telephone, and by any means available, attempt to cause almost every existing advertiser and customer to withdraw from The Weekender”. According to plaintiff, the campaign was successful, plaintiff’s publishing concern was ultimately destroyed, and he experienced extreme anxiety, mental suffering and strain.
Plaintiff’s complaint asserted claims based on interference with contractual relations, interference with prospective economic advantage, libel and slander, and prayed for compensatory and exemplary damages. The Attorney General filed a pleading entitled "motion to dismiss” on behalf of all the defendants based on GCR 1963, 117.2(1), asserting that the plaintiff failed to state a claim on which relief could be granted, because the state and its agencies are immune from liability under the doctrine of governmental immunity. The Court of Claims granted the motion, stating in part:
"The Michigan Court of Claims is a court of limited jurisdiction and the State of Michigan having clearly retained its defense of sovereign immunity in this particular action asserted against it by the plaintiff this Court is simply without any power to afford plaintiff any relief by way of damages on the claim or claims asserted.”
The Court of Appeals affirmed the summary-judgment stating:
"By its terms, 1970 PA 155 immunizes the state and lesser political subdivisions from tort liability, subject to certain statutory exceptions, i.e., defective maintenance of roads and public buildings, negligent operation of motor vehicles, and actions which arise out of the government’s engagement in a proprietary function. We would add to this list of legislative exceptions, two judicial exceptions which have continuing vitality: actions grounded in nuisance, Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630 [178 NW2d 476] (1970), and actions which allege an uncompensated taking of property, Geftos v Lincoln Park, 39 Mich App 644, 656 [198 NW2d 169] (1972).
"Plaintiff, however, has failed to fit himself within any of the exceptions to the doctrine of governmental immunity enumerated above.”
The Court of Appeals apparently concluded that, because plaintiff had failed to plead facts which would constitute one of the exceptions it enumerated, he failed to state the elements of a cause of action in tort against the state or its agencies.
We reverse the summary judgment of dismissal and remand the matter to the Court of Claims for further proceedings.
I
It is axiomatic that the purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to see if the plaintiff has pled facts which support the elements of a cause of action. The scope of the examination is confined to the pleadings. See Pompey v General Motors Corp, 385 Mich 537, 563; 189 NW2d 243 (1971); Professional Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964).
To state an actionable claim against the state, a pleader must plead facts in the complaint, in avoidance of immunity. This can be accomplished by stating a claim which fits within one of the legislatively or judicially created exceptions to governmental immunity, as enumerated in the Court of Appeals opinion in this case, quoted above, or simply by pleading facts which otherwise demonstrate that the activity alleged is not activity "in the exercise or discharge of a governmental function” under MCLA 691.1407; MSA 3.996(107). Simply put, it must be demonstrated that the activity attributed to the state or its agencies does not fall within the ambit of immunity established by the Legislature in 1970 PA 155.
In the case at bar, in order for the courts below to grant the state’s motion based on GCR 1963, 117.2(1), they would have had to find that the complaint, taken in the light most favorable to the plaintiff, failed to state facts in avoidance of immunity. We agree with the Court of Appeals that plaintiff "has failed to fit himself within any of the exceptions to the doctrine of governmental immunity”. However, we find that the complaint alleges facts which, if proved, would justify a fact finder in concluding that the activity attributed to the defendants is not "in the exercise or discharge of a governmental function” under the statute and for which the state and its agencies are not immune from liability.
II
The Legislature enacted the governmental immunity statute in response to the partial abrogation of the judicial version of that doctrine by the decision in Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). See Thomas v Department of State Highways, 398 Mich 1, 10 fn 4; 247 NW2d 530 (1976). The statute, MCLA 691.1407; MSA 3.996(107), reads:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
We held today in Thomas v Department of State Highways, supra, that this statute requires us to resort to the common law for a definition of the phrase "engaged in the exercise or discharge of a governmental function”.
Historically, the cases have tended to separate state activity into two categories: governmental functions and proprietary functions. E.g., Richards v Birmingham School District, 348 Mich 490; 83 NW2d 643 (1957); Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950). These decisions, however, do not control the scope of our inquiry in every case because there are certain activities which do not fit into either category.
The Legislature has defined "proprietary function”, MCLA 691.1413; MSA 3.996(113):
" * * * Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees. * * * ”
The definition of "governmental function” most frequently cited by Michigan courts is found in Gunther v Cheboygan County Road Comm’rs, 225 Mich 619; 196 NW 386 (1923). Therein, this Court approved the following formulation of the test from Bolster v City of Lawrence, 225 Mass 387; 114 NE 722 (1912):
"The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.”
See also Martinson v Alpena, supra; Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942); Johnson v Ontonagon County Road Comm’rs, 253 Mich 465; 235 NW 221 (1931).
The defendants in this case assert that because the operation of Traverse City State Hospital constitutes the exercise or discharge of a governmen tal function, plaintiff has failed to state a cause of action against the state. Although it is true that we have held generally that hospitals operated by the state or its political subdivisions are engaged in a governmental function, see, e.g., Martinson v Alpena, supra, this does not decide the question at bar. It is not true, of course, that a lawsuit against the state will not lie simply because the defendant is a state agency. We look to the facts pleaded in the complaint to determine whether the specific tortious activity alleged against the state or its agencies is within the protection of the immunity doctrine.
We turn now to the specifics of the complaint here in question.
In passing on a motion for summary judgment, we are obliged to examine the pleadings in the light most favorable to the party opposing the motion. In this case, plaintiff has alleged in his complaint that Traverse City State Hospital employees engaged in "willful, wanton and malicious” activity in their capacity as state employees, which was designed to cause or attempt to cause "almost every existing advertiser and customer to withdraw [his advertising business] from The Weekender”. Such activity cannot fairly be said to be "conducted primarily for the purpose of producing a pecuniary profit for the state”. Nor can these allegations, if proved, demonstrate an "act * * * for the common good of all”. Consequently, the alleged activity cannot be readily characterized as either a governmental or a proprietary function.
To the contrary, we find that the plaintiff has pleaded facts which, if proved, would justify a fact finder in concluding that the state or its agencies were not engaged "in the exercise or discharge of a governmental function”, as that phrase has been defined by the courts of this state. Because plaintiff has pled facts in avoidance of immunity, it must be held that his complaint survives an attack under GCR 1963, 117.2(1), and that the trial court erred in dismissing this action.
In reaching this conclusion, it is important to note that we do not decide whether the State of Michigan and its agencies may be held vicariously liable for the activities attributed to its employees in this case. The lower courts did not address that issue; their orders of dismissal were based solely on the conclusion that the state is immune from liability in this case. We are not disposed to conclude that the respondeat superior issue, which has been addressed by my Brother Fitzgerald and which necessarily depends upon a detailed factual predicate, can be decided by this Court as a matter of law. Moreover, the question has not been adequately briefed or argued to this Court. We do not decide, therefore, whether the state’s employees were acting in their official capacity, as alleged, or within the scope of their employment.
The Court of Appeals is reversed and the cause is remanded to the Court of Claims for further proceedings.
Fitzgerald, J.
Our inquiry examines whether liability may be imputed to the State of Michigan as a result of conduct by Traverse City State Hospital officials and employees who, by successfully implementing a course of action which persuaded various business concerns to withdraw advertisement revenues from plaintiff John F. Mc-Cann’s weekly publication, The Weekender, caused the financial destruction of his newspaper enterprise along with personal anxiety, mental suffering, and strain. We conclude that such intentional, tortious activity was personally motivated, was not within the scope of their employment, and was not performed in furtherance of any legitimate business of the State of Michigan, the Department of Mental Health, or Traverse City State Hospital. Accordingly, we would absolve defendants from liability and remand this case to the Court of Claims for entry of an order of dismissal.
The death of John B. Cronk, a mental patient at Traverse City State Hospital, prompted a series of articles to appear in the weekly newspaper, The Weekender. Plaintiff, owner and publisher of the weekly, questioned the circumstances of Mr. Cronk’s death and inquired as to whether death was attributable to natural causes or resulted from criminal activity, negligence, or gross negligence on the part of hospital personnel. These articles were responded to by hospital officials and numerous lesser employees who, claims plaintiff, joined together and "willfully, wantonly, and maliciously, by persuasion, economic and social pressure, threats and innuendos directed at claimant’s customers, advertisers, and claimant himself, did attempt to cause the demise and destruction of The Weekender, and did request that said customers and advertisers refuse to do business with plaintiff’s publication”. Plaintiff charges specifically that these hospital officials and employees did "openly and covertly, by conversation, letter, telephone, and by any means available, attempt to cause almost every existing advertiser and customer to withdraw from The Weekender”. The campaign was successful, plaintiff’s publishing concern was ultimately destroyed, and he experienced extreme anxiety, mental suffering and strain.
Plaintiff sought compensatory and exemplary damages from the state in the Court of Claims for deliberate interference with existing economic relations, interference with prospective economic advantage, and damages for libel, slander, and disparagement of his personal and business reputation. The identical action was instituted in the United States District Court against the state employees in their individual capacities. Defendant’s motion for summary judgment was granted by the Court of Claims because plaintiff failed to state a valid claim upon which relief could be granted based upon the defense of sovereign immunity. The Court of Appeals affirmed on the same grounds and we granted leave to appeal.
Plaintiff would disallow the defense of sovereign immunity because such malicious conduct is completely unrelated to the care and treatment of the mentally ill, yet simultaneously impute liability to the defendants because they placed the officials in a position to commit the acts charged which were, he maintains, within their scope of employment. We agree that the question of governmental immunity should not be considered because the complained-of activity does not fall within "the exercise or discharge of a governmental function”. We turn, then, to plaintiffs alternate theory of liability, the doctrine of respondeat superior.
It is argued that respondeat superior considers the act of an employee during the course of em ployment as the legal act of the employer. Gifford v Evans, 35 Mich App 559; 192 NW2d 525 (1971). Plaintiff argues that this doctrine is applicable to intentional as well as negligent conduct, citing Guipe v Jones, 320 Mich 1; 30 NW2d 408 (1948) (employer held liable for assault committed by employee-bartender); Poledna v Bendix Aviation Corp, 360 Mich 129; 103 NW2d 789 (1960) (corporation held liable for libel and slander committed by its employment manager); and Grist v The Upjohn Co, 368 Mich 578; 118 NW2d 985 (1962) (corporate employer was a proper party to a suit against its employees for defamation and interference with future economic advantage).
Defendant disagrees, contending that the State of Michigan is not liable for intentional torts of its employees where the employees were acting beyond the scope of their employment and not in furtherance of any legitimate state interest. Defendant cites Martin v Jones, 302 Mich 355; 4 NW2d 686 (1942) (shooting by a gas station attendant of a customer following an argument); Bradley v Stevens, 329 Mich 556; 46 NW2d 382 (1951) (rape of a customer by a gas station attendant); and Hersh v Kentfield Builders, Inc, 385 Mich 410; 189 NW2d 286 (1971) (unprovoked assault of salesman by employee of defendant). In the instant case, defendant believes the officers and employees of the hospital exceeded their statutory authority, in no way furthered any legitimate end of government, and acted with a personal desire to injure the plaintiff.
In each of the three cases cited by plaintiff, the employees acted within the scope of their employment. The point emphasized is the intentional nature of the tortious conduct involved. Plaintiff’s argument provides no discussion of what consti tutes the officials’ authorized scope of employment in the instant case, indicating that this question should be determined by the triers of fact. Defendant does consider the official scope of employment and concludes that their malicious campaign which caused the financial destruction of plaintiffs enterprise, together with personal anxiety and mental suffering, was in no way related to their sole function which is the care and treatment of the mentally ill. Defendant also contends that state officials are without the power to increase their statutory authority.
We examine further the statutory function of the Traverse City State Hospital by reviewing the duties of its chief executive officer, the medical superintendent. His ultimate responsibility is to insure that the hospital provides "humane, curative, scientific, and economical treatment of mentally ill persons”. His statutory powers and duties generally include the direction of care and treatment, authority to hire and discipline personnel, prescribe their duties, and to provide instructions which insure good conduct, fidelity, and economy in every department. The additional named hospital officials include the community relations executive, the administrative officer, and the director of nursing. No record sets forth the specific nature of their assigned duties, and neither the Court of Claims nor the Court of Appeals discussed whether the campaign which eventually destroyed plaintiffs newspaper enterprise fell within their scope of employment.
Authorized employment activity cannot be expediently circumscribed and expanded to insure state liability simultaneously under both the governmental tort immunity act and the doctrine of respondeat superior. Whatever the duties assigned by the medical superintendent to the other officials might have been, none would include activitiés so patently abusive of their legitimate responsibilities. Misuse of the influence which accompanies positions of public responsibility does not automatically impute the resulting liability to the state and we decline to do so today. The authority of public agents extends only to those duties prescribed by statute and does not include activity which requires that authority be assumed. Lake Twp v Millar, 257 Mich 135; 241 NW 237 (1932). Were the duties of the medical superintendent not provided by statute, we would still absolve the state from liability since the intentional wrongs committed against plaintiff went beyond any conceivable scope of the care and treatment of the mentally ill.
Whether specific conduct occurred in the scope of one’s employment is a subjective judgment largely dependent upon the facts and circumstances of the particular case. Our determination that the hospital officials acted outside of their scope of authority does not automatically absolve the state from vicarious liability. The general proposition that vicarious liability may be imputed to the master for intentional torts committed by his servant when the servant’s purpose, however misguided, is wholly or partly to further the master’s business remains viable. However, we perceive a distinction between furthering the legitimate goal of providing care and treatment to the mentally ill and insulating the hospital from public disclosure of alleged acts of mismanagement in the conduct of their business. The financial destruction of plaintiff’s business enterprise goes well beyond the limits of imputed liability for an employee’s misplaced zeal, tortured allegiance, and poor judgment, all in the interest of furthering the business of his employer. It is not the business of the hospital to exert its economic influence upon the business community to coerce the withdrawal of advertising revenues from a newspaper enterprise reporting on alleged mismanagement in the conduct of the hospital’s business. Removing the threat of disclosure and investigation of alleged mismanagement by hospital officials in order to permit continued operation without disruption and inconvenience or to protect themselves from personal criticism or liability is not the business of a state mental institution.
Plaintiff contends that if we focus "on the operant facts and immediate setting that occasioned the complained of wrongs”, we would conclude that this "wanton, willful, and malicious” conduct is in no way related to the governmental function of the hospital. Rather than conclude also that the complained-of conduct is outside the officers’ scope of employment, plaintiff would have this resolved by the finder of fact. We would agree that the conduct of the hospital personnel cannot be considered a governmental function. This determination is of course separate and distinct from analysis of the doctrine of respondeat superior which, as plaintiff correctly observes, "neither guarantees nor precludes” state liability.
However, the foregoing discussion of this doctrine as applied to the unique facts of this case convinces us that this Court should not lend its imprimatur upon any determination that conduct so totally unrelated to the legitimate functioning and management of a state institution could be within the apparent authority of state officials and employees.
The remaining issues raised are without merit and require no further discussion.
This case is remanded to the Court of Claims for entry of an order of dismissal. No costs, a public question.
Coleman and Lindemer, JJ., concurred with Fitzgerald, J.
At first impression, it may appear appropriate to characterize governmental immunity as an affirmative defense. However, a careful analysis of the doctrine as construed by this Court indicates that, to plead a cause of action against the state or its agencies, the plaintiff must plead and prove facts in avoidance of immunity. In McNair v State Highway Dept, 305 Mich 181, 187; 9 NW2d 52 (1943), for instance, we held that the state’s failure to plead sovereign immunity will not constitute a waiver because "failure to plead the defense of sovereign immunity cannot create a cause of action where none existed before”. In Penix v City of St Johns, 354 Mich 259; 92 NW2d 332 (1958), we held that a complaint which contained no averment that the defendant was engaging in a proprietary function, and which in fact alleged activity to which governmental immunity applied, stated no cause of action against the municipality. Thus, although we have on occasion referred to governmental immunity as a defense, see McNair v State Highway Dept; Martinson v Alpena, 328 Mich 595, 599; 44 NW2d 148 (1950), our past treatment of the doctrine indicates that its inapplicability is an element of a plaintiffs case against the state.
MCLA 691.1401-691.1415; MSA 3.996(101)-3.996(115).
MCLA 691.1407; MSA 3.996(107) provides:
“Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The posture of this case renders inappropriate any. re-examination of the meaning accorded the term "governmental function”. Presently before this Court are other cases which permit a thorough analysis of the continued viability of governmental immunity.
MCLA 330.11; MSA 14.801 provides:
"There shall be maintained within the state the following state institutions, all of which are placed under the jurisdiction and control of the department of mental health; namely, at * * * Traverse City, a hospital for the humane, curative, scientific and economical treatment of mentally ill persons to be known as the Traverse City state hospital; * * * .”
It is not alleged that the State Hospital Commission knew or should have known of any unusual propensities attributable to the medical superintendent or any other hospital officials which would prevent them from discharging their duties in an appropriate manner.
Fn 2, supra.
MCLA 330.15; MSA 14.805, repealed by 1974 PA 258, provided in part: "The medical superintendent of each institution shall be its chief executive officer, and in his absence or sickness, the assistant medical superintendent shall perform the duties and be subject to the responsibilities of the medical superintendent. Subject to the bylaws and regulations established by the commission the medical superintendent shall have the general superintendence of the buildings, grounds and farm, together with the furniture, fixtures and stock, and the direction and control of all persons therein, and shall:
"First, Personally maintain an effective supervision and inspection of all parts of the institution and generally direct the care and treatment of the patients. To this end the superintendent shall personally examine or delegate someone to examine the condition of each patient after his admission to the institution, and shall regularly visit all the wards or apartments for patients, at such times as the rules and regulations of the institution shall prescribe and at such other times as he shall deem necessary.
"Second, Nominate his coresident officers, with power to assign to them their respective duties subject to the bylaws. He shall have power whenever he shall deem it for the best interests of the institution to suspend until the next meeting of the commission any officer.
"Third, Appoint, with the approval of the commission, such and so many other assistants, attendants and employees as he may deem necessary and proper for the economical and efficient performance of the business of the institution; prescribe their several duties; and fix with the approval of the commission, their compensation.
"Fourth, Give such orders and instructions as he may deem best calculated to insure good conduct, fidelity, and economy in every department.
"Fifth, Maintain salutary discipline among all who are employed in the institution, and enforce strict compliance with his instructions and uniform obedience to all rules and regulations of the institution.”
Prosser, Torts (4th ed), § 70, p 464; Harper & James, Law of Torts, § 26.9, p 1390. | [
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Lindemer, J.
This case involves an action for damages. Plaintiffs allege that they were fraudulently induced into entering a franchise agreement with defendant by the representations of defendant’s agents that plaintiff Hi-Way Motor Company would be the exclusive heavy-duty truck dealership in the Alpena area.
Hi-Way Motor Company is incorporated in this state for the express purposes of selling automobiles and trucks and maintaining a service department. William J. Pinkerton, Sr., was president of that company and prior to holding such office was an attorney and a corporation executive for many years. Plaintiffs’ bill of particulars describes Pinkerton as having "extensive knowledge as a businessman and a lawyer” in the field of management.
Defendant International Harvester Company markets a variety of automotive products, machinery, and equipment through a nationwide system of dealerships. These products include a complete line of trucks. This truck line embraces so-called "light trucks” and "heavy-duty” trucks. The "Fleetstar A” is one type of "heavy-duty” truck. It is the granting of a franchise for this "Fleetstar A” series to another dealership that provoked the instant controversy.
Prior to May, 1967, and for a period of approximately two months, Pinkerton negotiated with Alden Peterson, Harold Wahl, and James Coey, employees of defendant, concerning the acquisition by plaintiff of an International Harvester truck franchise in the Alpena area. A franchise in Alpena was formerly held by Everett Smith, but Mr. Smith had terminated his franchise in April of 1967. Plaintiffs claim that during these negotiations Peterson, Wahl, and Coey assured Pinkerton that no other heavy-duty truck line franchise would be granted in that area.
In the general geographic area around Alpena County there are three other dealers who were, prior to the time that plaintiff entered into its franchise agreement, authorized to sell certain International Harvester products. However, none of these dealers had franchises for "heavy-duty” trucks. These dealers are located in Spruce, Hill-man, and Rogers City, Michigan.
On May 15, 1967, the franchise agreement was signed and Hi-Way Motor Company became an authorized International Harvester dealer. This agreement was supplemented by a series of additional written agreements authorizing the sale of different products, all incorporating the basic contract. As a result, plaintiff company was authorized to sell defendant’s complete line of light-duty and heavy-duty trucks, including the aforementioned "Fleetstar A” line.
Clause 32 of the agreement provides as follows:
"All understandings and agreements between the parties are contained in the agreement, which supersedes and terminates all previous agreements between the parties pertaining to the sale of the goods covered by this agreement. The rights of either party pertaining to goods sold by the Company to the Dealer under the previous sales and service agreements will be determined by the provisions of this agreement. There are no oral or collateral agreements or understandings affecting the agreement. When authorized by the Company’s General Office, the Company’s District Manager or Assistant District Manager may enter into written agreements with this Dealer, which are not inconsistent with any provision of the agreement, supplementing the agreement, but no representative of the Company, other than one of its corporate officers, is authorized in its behalf to modify, change or waive any of the provisions of the agreement or to change, add to (except by the filling in of blank lines and spaces) or erase any of the printed portion of the form upon which the agreement is prepared.” (Emphasis supplied.)
Plaintiff opened for business in May of 1967. In December of that same year, plaintiff was granted a franchise by Oldsmobile and operated both dealerships on the same property. In November of 1968, defendant replaced its district manager and Mr. Wahl, its assistant district manager. In light of these changes, plaintiff again sought assurances concerning the exclusivity of his heavy-duty truck franchise.
In January of 1970, defendant informed Pinkerton through Mr. Peterson that a "Fleetstar A” franchise was to be awarded to a Mr. Thompson, a dealer in Spruce, Michigan. Pinkerton protested this decision, and a series of meetings resulted at which Pinkerton attempted to have defendant reconsider its decision. When Pinkerton did not get the satisfaction he sought, he notified the defendant that he was unilaterally terminating the franchise agreement. The parties agreed that October 31, 1970, was the termination date.
Plaintiff then instituted this action for damages claiming fraud and misrepresentation. The trial court, sitting without a jury, found for the plaintiffs in the amount of $71,211.68 and rendered judgment accordingly. The Court of Appeals reversed, reasoning that the evidence did not support a finding that all the elements of a cause of action for fraudulent misrepresentation existed. 59 Mich App 366; 229 NW2d 456 (1975). Plaintiffs’ application for leave to appeal was granted July 23, 1975. We affirm the Court of Appeals.
The elements constituting actionable fraud or misrepresentation are well-settled in this jurisdiction. In Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919), we set forth those elements:
"The general rule is that to constitute actionable fraud it must appear: (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.”
See also, A&A Asphalt Paving Co v Pontiac Speedway, Inc, 363 Mich 634, 639; 110 NW2d 601 (1961); Marshall v Ullmann, 335 Mich 66, 73-74; 55 NW2d 731 (1952); Waldbauer v Hoosier Casualty Co, 285 Mich 405, 408-409; 280 NW 807 (1938). The burden of proof rests with plaintiffs. Fraud will not be presumed but must be proven by clear, satisfactory and convincing evidence. Youngs v Tuttle Hill Corp, 373 Mich 145, 147; 128 NW2d 472 (1964).
The initial consideration, then, is whether defendant’s agents made a material representation to plaintiff. In Boston Piano & Music Co v Pontiac Clothing Co, 199 Mich 141; 165 NW 856 (1917), we affirmed the rule that an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises are contractual and do not constitute fraud.
A reading of the testimony fairly suggests the conclusion that defendant’s agents gave Pinkerton the impression that he would have an exclusive heavy-duty truck franchise "as long as he did a reasonable job” in the area.
Plaintiffs contend that the above promise amounted to the oral granting of an exclusive franchise agency. They urge that the assurances were representations as to existing fact, despite the "mere fact” that they were stated in promissory terms. The record, however, cannot reasonably bear such a construction.
Pinkerton, who conducted the negotiations, testified not that he was actually granted an exclusive franchise but rather that he was promised that "if we did * * * a reasonable job, there would be no reason or no excuse to give any part of the heavy-duty franchise to anyone else in [the] area”. Pinkerton also testified that he read and understood the contract before he signed it.
Pinkerton’s behavior after the contract was executed is inconsistent with the argument that he thought he had been awarded an exclusive franchise. The record shows that after the franchise was awarded, Pinkerton frequently asked Peterson for assurances that no one else would be awarded a heavy-duty contract in the Alpena area. Later, Pinkerton traveled to Detroit to get such assurances from defendant’s district manager.
Plaintiffs further contend that even if the representations are found to be promises of future action, they nevertheless fall within the "bad faith” exception to the general rule that such promises are not actionable torts. Plaintiffs’ contention is based on our holding in Crowley v Langdon, 127 Mich 51, 58-59; 86 NW 391 (1901), that a fraudulent misrepresentation may be based upon a promise made in bad faith without intention of performance.
Plaintiffs point to the fact that it was against defendant’s company policy to grant exclusive dealerships in arguing that defendant’s agents never intended to perform when the promises were made. However, the record shows that each witness, in response to Pinkerton’s concern regarding an exclusive franchise, indicated that it was his intention at the time that only one heavy-duty franchise would be awarded in the area. Both Peterson and Wahl testified that it was their opinion in 1967 that the market area would support only one full line dealer. This opinion is consistent with Pinkerton’s testimony that defendant’s agents assured him there would be no need to grant other franchises for heavy-duty trucks if he did a good job.
Plaintiff maintains that a letter from an attorney employed by defendant to plaintiffs’ attorney is evidence of defendant’s agents’ bad faith. The letter, together with others, was admitted over defense counsel’s objection for the limited purpose of establishing a chronology of events. The admission into evidence was on a separate record. Although it was never reoffered or readmitted, the trial court relied solely on this letter in finding that defendant’s agents acted with no intention of fulfilling their promises.
The letter, dated some three years after the promises were made, denies any commitment to an exclusive franchise and states that even if such a commitment were made it could not be honored due to company policy. Yet as we stated in Danto v Charles C Robbins, Inc, 250 Mich 419, 425; 230 NW 188 (1930), evidence of fraudulent intent, to come within the exception, must relate to conduct of the actor "at the very time of making the representations, or almost immediately thereafter”. The letter is evidence too remote in time to indicate that when the agents made the promise they had no intention of fulfilling it.
Reliance is also placed on a related doctrine, the so-called "false token” exception to the general rule that broken promises of future action are not actionable torts. This exception pertains where, although no proof of the promisor’s intent exists, the facts of the case compel the inference that the promise was but a device to perpetrate a fraud. As we have indicated, the record is bereft of any such facts. Moreover, the case relied on for this point, Rutan v Straehly, 289 Mich 341; 286 NW 639 (1939), involved a fiduciary relationship. Here, the record shows no such relationship, but rather the negotiations of two knowledgeable commercial parties.
Like the Court of Appeals, we are unable to find evidence from which it could reasonably be inferred either that defendant’s agents gave their promises without intention of performance or that they misrepresented a past or present fact. Although we are hesitant to disturb the trial judge’s findings, we find that they are within the "clearly erroneous” language of GCR 1963, 517.1. The "judicial sieve” employed here is appropriately "of finer mesh than the one correspondingly employed here on review” of a jury’s verdict. Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405 (1957). We conclude, therefore, that plaintiffs have failed to establish the alleged fraud on the part of defendant by clear and convincing evidence.
The Court of Appeals is affirmed. Costs to defendant.
Kavanagh, C. J., and Levin, Coleman, Fitzgerald, and Ryan, JJ., concurred with Lindemer, J. | [
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Long, J.
The bill is filed in this cause to restrain the sale of complainants’ land for a tax assessed to pay the expense of the construction of a sewer in the alley between Ooit avenue and Clancy street in the city of G-rand Eapids. The bill was dismissed on the hearing in the court below. Complainants appeal. The pleadings and proofs are before us for review, and are set out in full in the record.
It appears that on May 21, 1888, the common council adopted a resolution by a vote of a majority of all the aldermen elect declaring the construction of the sewer in question a necessary public improvement, and that on the 26th of that month, at a regular meeting of the board of public works, the clerk presented a copy of this resolution to it, and by resolution of that board the city surveyor was directed to prepare the necessary plans and specifications. It is shown by the record that the city surveyor, prior to these directions from the board of public works, having been advised of the resolution passed by the common council, had made the necessary surveys, examinations, estimates, etc., and had prepared a full and complete plan and profile of the sewer, showing in detail scale, size, length, etc., of the same; and upon the adoption of the resolution by the board of public works, and on the same evening, he presented the same to the board, which at once approved and adopted the same, and by resolution directed the president of the board to advertise for sealed proposals for the construction of the sewer. This notice was duly published in the official city paper from May ,39 to June 3. There being but ■ one bid, it was rejected by the board, which instructed the president to advertise again, and such readvertising was done; and on June 9 the bids were opened, and the contract let to the lowest bidders, 'Wa'gemaker & Meyer, for $3,300. This action was duly reported to the council on June 11, and a contract also at the same time presented, which the mayor of the city, by resolution of the council, was directed to execute, which was done. Aside from the estimate for the work of construction, the city surveyor, also had placed in the estimates the following: Assessment and printing, $60; engineering and incidentals, $90; making the total estimate, of cost the sum of $3,450. The sewer was duly constructed according to the terms of the contract.
The council, after the making of the contract, took steps to ascertain what property in the city was benefited by the improvement, and on August 6, 1888, appointed a committee of three to locate and fix the district. This committee reported on August 30, and defined the district, theip report being accepted and adopted; and on October 1 the council, by resolution, declared that the whole amount of $3,450 be assessed thereon, and the commissioners directed to make the assessment, which they did, and reported the roll to the council on October 8. The time for hearing appeals was then fixed for October 15, the notice, as required by the charter, being duly given for that purpose. Three appeals were heard at that meeting, and' the time then extended for one week to hear other appeals. The time was again extended, appeals heard, and the subject referred to a committee, who reported to the council that the assessment roll did not include the entire frontage, and there was an error in the resolution and order of assessment; they therefore recommended that tme assessment be set aside, which report was accepted and adopted. A new committee to locate a district was duly appointed, and such proceedings had that a new roll was reported to the council, which was adopted, notice published of hearing appeals, and the roll on January lé, 1889, duly approved and confirmed. There is no complaint of any proceeding subsequent to the confirmation of the roll. It is insisted on the part of the city that these proceedings have all been regular, and in full compliance with the provisions of the charter. So far as any complaint is made of the assessment, that question is settled by Brown v. City of Grand Rapids, 83 Mich. 101.
The only question which we need discuss arises under complainants’ contention that the board of public works failed to determine the kind and quantity of materials, and to estimate in detail the cost and expense of the work and material. In other words, it is claimed that the board failed in the performance of its duty in its action upon the resolution reported to it from the common council, in that it made no examination of the premises through which the proposed sewer was to be constructed, but, on the same evening the resolution of the council for the construction of the sewer was received, the board, without examination of the land or the proposed improvement, accepted the report of the city surveyor, which he had previously prepared; that this was not such action on the part of the board as is required by section 8 of the board of public works act. That section provides as follows:
“When the common council of said city decide that the construction of any public work in said city is a necessary improvement, the board of public works, with all convenient dispatch, shall determine as to the particular kind and quantity of materials to be used therefor, and estimate the probable cost and' expense of such work and of the 'material to be used in detail, and cause to be prepared, so far as necessary, plans and specifications for such work, and report their estimate to the common council as a basis for assessing or otherwise raising, according to law, the funds necessary to enable the board to go forward and complete such work.” Revised Charter 1883, p. 129 (3 Laws of 1873, p. 57).
The record' contains a profile of the proposed sewer, showing the depth of cut, and the fall, together with stand-pipes for connections of lateral sewers. There are also the plans and specifications, covering nearly seven pages of the printed record, setting out in great detail the manner of construction and the size and shape of the sewer, and the kind, quality, and quantity of materials to be used, not only for the sewer, but also for the standpipes, lateral sewers, and connections, catch-basins, manholes, and the mode and. manner of construction, and quantity and quality of materials, and the manner in which the work, and all parts of it, is to be done. These plans and specifications and the profile were submitted to the board on the evening of their receiving the resolution from the common council, and, after an examination of them by the board, they were approved by an indorsement written thereon as follows;
“Approved and adopted by the board of public works, May 26, 1888.
“G-eosge G. Briggs, President.”
We think this was a substantial compliance with section 8 of the board of public works act above quoted. It is claimed by counsel for the complainants that this was not an estimate of the cost and expense and material to be used in detail. The cost of the material and of construction is not carried out in detail, but from the profile and plans and specifications it was susceptible of computation by any member of the board or common council. All the necessary ¿ato-were there, and it was sufficient to enable the bidders to make intelligent bids. It is true that it was the estimate of the city surveyor; but, when submitted to and approved by the board of public works, it was the estimate of the board, and it was in such form as to give the board all the necessary data to take intelligent action.
Some other questions are raised, but we do not deem them of sufficient importance to notice. From a review of all the proceedings we are satisfied that the requirements of the charter have been substantially complied with.
The decree of the court below dismissing complainants’ bill must be affirmed, with costs.
Ohamplin, O. J., Morse and McGrath, JJ., concurred. Grant, J., did not sit. | [
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Long, J.
This is a petition for mandamus to compel the board of supervisors of Midland county to apportion among the several townships of that county an amount of indebtedness claimed to be due the State from the county.
The controversy arises over the amount found by the Auditor General to be due the State from the county on October 1, 1888. In the statement of account forwarded by the Auditor General to the clerk of the board of supervisors of that county, it appears that the total State tax to be apportioned for that year, under the various acts of the Legislature, was $3,856.54. In addition to this, the Auditor General notified the county clerk that there was also to be levied, as a portion of the county taxes as required by section 22, Act No. 153, Laws of 1885 (3 How. Stat. § 1169^1), the indebtedness of the county to the State, amounting on July 1, 1888, to the sum of $18,799.95. The controversy here grows out of this old account. This notice was laid before the board of supervisors at their October session of 1888, and a committee of three was appointed by them to investigate the account, it being claimed by the board that the old account was much less than stated by the Auditor General.
The petition for the writ of mandamus sets out that annual settlements were had between the State and county for several years, up to and including the year 1883, and that the Auditor General, in making up the amount of this old indebtedness, took the settlement made in 1883 as a basis of the account. Taking that as a basis, the Auditor General makes the account as above stated. The Auditor General claims that he is justified in taking this as a basis, as in all the years prior thereto there had been annual settlements, and that the county is estopped by such settlements from opening up the old account, and asking an adjustment of such prior accounts.
The contention of the respondent is that no such ■ennual settlements were made; that the county treasurers of that county had no power to bind the county in making settlements with the Auditor General; and that, if the account is properly recast, the amount due the State from the county would be less by several thousand dollars than claimed by the Auditor General. The respondent takes as a basis for the accounting the state of the account between the county and State on October 1, 1868.
The petition states that there was a balance due from the State to the county of Midland, on October 1, 1883, of £10,880.18, and, on November 19, 1883, this amount was paid over, and the receipt of the treasurer taken therefor, and that the payment of this amount adjusted all there was due the county at that date, and that due notice was given to the county clerk to be laid before the board (of supervisors of such statement; that, in each year since that date, the Auditor General has rendered a correct statement of the account with that county, and transmitted the same to the clerk of that county. It is also alleged that every dollar sought to be enforced against the county in this proceeding arose from taxes legally apportioned to Midland county by the State since the year 1883, and items charged up under the law since that time. The Auditor General also sets out in his petition what he terms the state of the account from year to year since 1875, for the purpose, as it is claimed, of showing that settlements were had from year to year during that time. It is also alleged in the petition that the form of account kept with Midland county, the charges made, and settlements had from year to year were of the same class and character as with all other counties in the State.
The answer denies that any settlement was had between the county and State in 1883, and alleges that, when said sum of £10,880.18 was paid to the county treasurer, he was informed that it was paid on account of the delinquent tax of 1881, and the treasurer understood he was receipting for such delinquent tax and nothing else. It is denied that said sum represented the true amount due from the State to the county at that time. It is claimed that, at the time those moneys were paid over to the county in 1883, the sum of $16,880.25, principal and interest, arising under section 124 of Act No. 169, Laws of 1869, was wrongfully used by the Auditor General to swell the debit side of the account in favor of the State, and that no settlement has been had between the county and State since the year 1868. The answer also denies that the claim presented by the State arises from taxes apportioned to the county since the year 1883, but avers that a large part of said indebtedness arises from taxes apportioned to the county prior to the alleged settlement of that year. It is denied by the answer that the county treasurer had power to bind the county on any of such alleged settlements, and alleged that the board of supervisors have never regarded such settlements as final and conclusive against the county. The answer and the exhibits attached set out therein what is claimed to be the true state of the account as it should appear from year to year, from 1868 to 1888. It is also alleged in the answer that the Auditor General has charged the county with the amount for which lands were bid off to the State at the October sales in each year, and charged interest thereon to the county; that, one year from the time such bids were so charged, they were credited back to the county without interest being added, thus charging the county interest for one year on such bids; that redemptions were made during the year, and no credit given for the interest on such redemptions. These are the only items specifically set out in the answer that have arisen since 1883, and enter into the amount' sought to be enforced, unless the amount claimed includes the deficiencies arising under the five-year list. It is alleged by the answer that this amount now claimed by the State does include such charges, — that is, that the account has been so kept by the Auditor General that these charges have been carried in the account from year to year, when they are new sought to be collected from the county.
“ That the Auditor General • charged to said county, under said section 124, in the year 1870, for principal and interest, the sum of $1,374.89, and in the year 1871 the sum of $917.07, for principal and interest, and in the year 1872 the sum of $1,346.75, for principal and interest, and in the year 1873 the sum of $742.06, for principal and interest, and in the year 1874 the sum of $1,420.01, for principal and' interest, and in the year 1875 the sum of $2,516.83, for principal and interest, for losses on lands sold under said section, which said lands had been bid in by the State prior to the year 1869, and that said sum, with the interest thereon to July 1, 1875, amounts to $9,666.39; that no sum whatever was credited to Midland county under said section 124; that these charges are still in said account, and have been illegally used to swell the account against the county, and that on the 1st day of October, 1883, said amounts, with the interest thereon, were the sum of $16,880.25, and that on that day the State owed the county said sum of $16,-880.25, in addition to the other sums due said county from the State, and that on July 1, 1888, said illegal charges with interest thereon amount to the sum of $23,-294.22, which should be credited back to said county in the said account of which it is a part; that respondent always supposed that the indebtedness claimed arose from the said illegal charges.”
The facts stated in the answer must be taken as true. Hosier v. Board, 45 Mich. 340; Pack v. Presque Isle Co., 36 Id. 380. Taking the answer as true, it appears that there entered into this account, in the year 1883, the sum of over $16,000, made up of charges arising under section 124 of Act No. 169, Laws of 1869, which were losses sustained by the State upon sales of tax lands held by 'the State for five years. It has been decided many times by this Court that these were improper charges against the counties, and the collection could not be enforced. Auditor General v. Monroe Co., 36 Mich. 76; Auditor General v. Saginaw Co., 62 Id. 579; Auditor General v. Ottawa Co., 76 Id. 295; Auditor General v. Shiawassee Co., 74 Id. 536.
To avoid this claim, however, it is insisted by counsel for the Auditor General that settlements have been had from year to year, for many years, up to and including the year 1883, by which the county is now estopped from setting up the claim that these illegal items enter into the account. Claim is also made by counsel in their brief that these items are no part of the account presented, but that respondent seeks to set them up by way of set-off or counter-claim. The answer negatives this position. The only question for consideration then presented is the validity of these claimed settlements, or whether the county is estopped by the dealings had between it and the State from making claim that these items enter into the account. It has been held in the cases above cited that this'is an amount which the State had no right to charge up to the county. The account has been carried along by the State for years, with these items included in it. No question has been raised, -until this proceeding was commenced, but that the account was properly made up, and of legal items. It does now for the first time appear just what the account is made up from, and, when the board of supervisors ascertained that it included these losses on the five-year list, they refused to apportion or assess the taxes for those amounts, and we think very properly. The figures taken from the books of the Auditor General's office and from the county treasurer's office are presented in this record, running through a period of nearly 20 years. We do not feel called upon to go over them in detail or to state them here. The claimed settlement does not show such an accounting, in our view of the case, as should estop the county from asking that illegal items should be stricken from the account. ' -
With the losses charged to the county arising from the sale of the five-year list of lands stricken from the account, and the county given credit, if it has not been given it, for interest on redemptions made at the Auditor .General's office where the county has been charged interest on such taxes for the year, the balance of the account should be recognized by the county of Midland, and apportioned as provided by the act of 1885.
The writ of mandamus must be denied.
Ohamplin, C. J., Morse and Grant, JJ., concurred with Long, J. | [
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Morse, J.
The real controversy in this case is the conflicting claims of two persons to the office of county auditor of Wayne county.
The admitted facts are as follows: Charles P. Collins was a duly-elected county auditor, and the regular term of his office would have expired on December 31, 1890. His successor was by the statute to be elected on November 4, 1890, at the general election. Candidates were nominated by the different political parties, and Joseph Nagel was duly elected as such successor. Before the expiration of Collins5 term, and before Nagel had taken any steps to qualify, Nagel died, on December 9, 1890. On January 6, 1891, the Governor appointed Henry J. A. Leteker to fill the supposed vacancy caused by the death of Nagel. Collins, under legal advice, and claiming that there was no vacancy in the office that could be filled by appointment of the Governor, and that he held the office under the laws of this State until his successor was duly elected and qualified, refused to vacate his office.
There are three county auditors of Wayne county, who compose the board of county auditors. Each is chosen for the full term of three years. At each biennial general fall election one is chosen, and, in the years when no such election is held, one is elected by the board of supervisors of Wayne county. How. Stat. § 511. The auditor having the shortest time to serve is chairman of the board of auditors. How. Stat. § 512. The auditors elected as above provided shall hold their offices for the term of three years, and until their successors shall be elected and qualified. How. Stat. § 511.
At the time of Leteker’s appointment, the board of auditors was unquestionably composed of George O. Lawrence, the relator, chairman, and James Holihan, whose term would expire on December 31, 1892, and Charles P. Collins, holding over until his successor was elected and qualified. Upon the appointment of Leteker this controversy commenced. Leteker demanded the office of Collins, who refused to surrender it. Holihan recognized Leteker, and Lawrence sided with Collins, and at once there were two boards of auditors in session; Holihan and Leteker on one side, and Lawrence and Collins on the other. The sheriff of Wayne county, the respondent, recognized Holihan and Leteker, and the police department recognized Lawrence and Collins.
It is claimed by the relator that the respondent took the books of the board by force away from Lawrence, the chairman of the board, and his.petition prays for an order directing the respondent to return the books to the relator, and to no one else, and that he be restrained from interfering with the contest for said office of auditor between said Collins and Leteker, and do recognize the relator, Lawrence, and Holihan and Collins as the board of county auditors, to the exclusion of Leteker.
The sheriff answers, in substance, denying that Collins is a member of such board, and that the relator, as chairman of said board, is entitled to the books in question, but avers that the same belong to the custody of the board. He claims that on the day he took possession of the books he was summoned to the auditors* office by Holihan and Leteker, a majority of said board, to furnish them assistance in maintaining order in said office. He found Collins, Lawrence, Holihan, and Leteker sitting at the desk in said office. He directed two of his deputies to remain in the office, with instructions that they were there to preserve order, and for no other purpose, and thereupon left the room. Shortly afterwards, as he is informed and believes, Collins departed from the office, leaving Leteker in peaceable possession of the same. About 2 o’clock in the afternoon of the same day he was again summoned to the office to .“maintain order and preserve the peace,” and, going there, found Collins, Leteker, Holihan, and Lawrence present, together with the attorney of said Collins, who sent for policemen, who also soon appeared to the number of half a dozen. His answer as to what took place there is not material to this issue, except in so far as it shows how the respondent became possessed of the books. He says that the relator, Lawrence, had changed the. combination of the safe for the purpose of excluding Holihan and Leteker therefrom, and undertook to place the books therein beyond the reach of said Holihan and Leteker. Holihan attempted to resist such disposition of the books, and he and Lawrence became engaged in a scuffle for the possession of them. Fearing a row and danger to the persons of said Holihan and Lawrence, the respondent took the books away from said Lawrence, and carried them to his own office, in the same building, and placed them in his safe for safe-keeping. He says he returned them the next morning “to the said board,” but he does not say which board; but it appears further along in his answer that he returned them to Holihan and Leteker, and that every night since he has locked them up in his safe, at the request of Holihan and Leteker, and returned such books to them each morning.
It further appears in the case that ever since there have been two boards attempting to exercise the duties of county auditors; that the treasurer of the county recognizes Holihan and Leteker as such board, and that they are drawing orders upon the county treasury as such board, but that the depository of the funds, provided and designated by law, refuses to -honor the orders or warrants of said Holihan and Leteker, unless the same are countersigned by Lawrence as chairman, and Lawrence refuses so to countersign them, so that no money can ’ be drawn from the funds of the county to pay the daily expenses of said county.
It is always an unseemly spectacle when one undertakes to obtain an office by force, and another resists such attempted taking. It is not only demoralizing to the public service, but it creates disorder, riot, and often bloodshed. It can never be countenanced by the courts. And it is not for the sheriff or the police force to take sides in such a contest as they did here. It is evident that the sheriff went beyond' his duties as a peace-officer, and used the authority of his high office to install Leteker into the office of county auditor by giving him possession of the books, which, when taken by the sheriff, were lawfully in the possession of Lawrence, as against the sheriff, and all other persons except the legally qualified members of the board of county auditors. The claim that Collins was ever legally or peaceably dispossessed of the office is untenable. He never abandoned his office, and the mere fact that he left the room for a little while could give Mr. Leteker no new or added rights in the premises.
. This would dispose of the matter'at present before us, but it does not settle the question really in issue. We deem it for the public good, the case being to us so clear, to decide here and now the question of the right to the office as between Collins and Leteker. This is not .usual in mandamus proceedings, quo ivarranto being in most cases the‘most appropriate proceeding to test the right to hold an office; but the exigencies of the case, as we view it, and the public interest, demand that the question shall be speedily determined',which cannot be done by quo warranto. And when a person in office de jiore et de facto is interfered with, by one whose lack of title is plain and governed by adjudicated cases in our own courts, it is not only proper, but best, to settle the question by mandamus. See State v. Mayor, etc., of Atlantic City, 19 Atl. Rep. 780.
We think the title to this office is clearly ruled by People v. Lord, 9 Mich. 227. There was no vacancy occasioned by the death of Nagel that the Governor could fill by appointment. The statute in relation to the board of auditors clearly provides that each member elected shall hold his office’three years, and until his successor shall he elected and qualified. It is not denied that Collins was a county auditor de jure as well as de facto until January 6, 1891, when Leteker received his commission from the Governor, and he was county auditor de jure because his successor had not been elected and qualified. In such a case as this, How. Stat. § 138, clearly provides for the choice of a successor to Collins by a special election to-be called by the board of supervisors of Wayne county.
“When the right of office of a person elected to any of the aforesaid district or county officers shall cease before the commencement of the term of service for Which he shall have been elected,” — which is Nagel’s case, — the term is to be filled by a special election. See paragraph 3, § 138, How. Stat.; section 141, How. Stat. The Legislature in 1873 passed an act authorizing the Governor—
“To appoint a suitable person, being á resident of Wayne county, to fill any vacancy now existing, or which may hereafter occur, in the office of auditor of said Wayne county.” 3 Laws of 1873, p. 1.
But this is not such a vacancy as is contemplated by this statute. This is a case where the full term, is to be supplied, because the person elected to fill such. term has died before his term commenced. It is the plain intention of all the statutes, taken together, that this office shall be an elective one, and the Governor is not authorized to fill it for a full term. This must be done in such a case as this by a special election.
In the case of People v. Lord, 9 Mich. 227, the Constitution provided that “ when a vacancy occurs in the office of judge of the Supreme, circuit, or probate court it shall be filled by appointment of the Governor.” In that case at the general election held in November, 1860, Oscar F. North, then judge of probate of Oakland county, whose term would expire December 31, 1860, was elected his own successor. November 22, 1860, North died, and the Governor, four days later, appointed Jacob Yan Valkenburgh to fill the vacancy. January 1, 1861, the Governor,, acting upon the supposition that the appointment of Van'Valkenburgh. ceased on the termination of North’s term, December 31, 1860, appointed Henry W. Lord to fill the same, who entered upon the duties of his office, claiming to hold the same for the full term for which North was re-elected. The b'oard of supervisors ■called a special election to fill the office, and at such special election Henry C. Andrews was elected judge of probate to fill out the said term. The Constitution provides that the judge of probate shall be elected and hold his office for four years, and “until á successor is elected and qualified.” In case of vacancy, the Governor is to appoint a person to continue “until a successor is elected and qualified. When elected, such successor shall hold his office the residue of the unexpired term.” Article 6, § 14. It was held that Van Valkenburgh, who stood in the place of North, the deceased judge, would hold the office until his successor was elected and qualified, and that his term did not expire on the 31st day of December, 1860, and that Lord^s appointment was therefore void. And it was also held that it was not a technical vacancy, but a case where a new election was expressly provided for by paragraph 3, § 138, How. Stat., heretofore quoted; that the election in the fall had fallen through by the death of the person elected before the time arrived when he could qualify and take his office; and that the appointment of Lord was made when Van Valkenburgh had an existing title to the office, and therefore void. We can see no distinction between that case and this that at all changes, or militates against, the principle there enunciated. Oollins had an existing title to the office of auditor at the time of LetekeFs appointment, — a title that could only be extinguished by the election and qualification of a successor. LetekeFs appointment was therefore void.
It is claimed that the principle laid down in the Lord case is not to be followed in this case, because it is obiter dictum, for the reason that a special election had been held, and therefore Andrews was cleaidy entitled to the office, whether Lord had been legally appointed or not; and an argument is made for the purpose of showing that the construction of the Constitution and statutes in that case by Mr. Justice Campbell was not the proper and legal one'. But we think that the construction was correct, and in harmony not only with the Constitution and laws, but with the policy of our State, which from the beginning has inclined most strongly in favor of elections bv the people of local officers, as against the appointment of the same by the Governor or the Legislature.
It is also said that we ought not to pass upon the title of Mr. Leteker, because he is not here before us. But the respondent admits that he has been acting under the direction of Holihan and Leteker, upon the assumption that Leteker is the lawful incumbent of the office, and Leteker is really the respondent here, the sheriff being only a nominal party. _
It is also argued that the relator could not be the chairman, because he was appointed by the Governor in July, 1889, to fill a vacancy occasioned by the death of William G. Mahoney, and he is therefore merely a pi'ovisional auditor, without a regular term, and Mr. Holihan, as the next auditor, is legally the chairman. The question whether the Governor could appoint Lawrence to fill the vacancy beyond the next general election after such appointment is not before us in this case, because under his appointment he is auditor at least until his successor is elected and qualified, and he is also by law the chairman of the board, because his term of' office soonest expires, such term being considered as the statutory term of the person elected whose place he is filling by appointment.
It follows that Mr. Leteker has no standing as a county auditor, and that Mr. Collins continues in such office until his successor is duly elected and qualified as the law directs. The writ will therefore issue as prayed, with costs against the i'espondent. x
The other Justices concurred | [
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] |
Champlin, C. J.
This is an action upon the common counts in assumpsit, commenced by declaration, to recover from the defendant the value of certain ties sold and delivered to it by the plaintiff. The plea was the general issue.
In 1886 the plaintiff sold and delivered to the defendant a quantity of railroad ties, under a written contract entered into on June 1, 1886, in which the plaintiff agreed to deliver to the defendant on or before July 1, 1886, 800 ties, according to the following specifications, namely:
“Ties to be made from white oak, burr oak, and hem-look;' to be cut from sound, live timber, eight feet long, six inches thick, to an even and parallel thickness, neatly and carefully hewn with the broad-axe, and ends sawed square; to be delivered upon the right of way of the ■company at or above grade, at a distance of not less than eight feet from the nearest rail, in cross-piles, with ties six inches apart, and owner’s name plainly marked on each pile. Each pile must be entirely separate, so as to ■allow inspection on all sides; all piles to have at least two feet interval from other piles or fences.”
“The following specifications, with the above, will govern inspection: No. 1, hewed or slabbed oak ties, cut two from a log, commonly known as ‘string ties,’ nine inches or upwards face on both sides, with bark all removed, — a first-class tie in every respect; No. 2, hewed or slabbed oak ties, similar to the above in every respect, seven to nine inches face; No. 3, sawed "oak ties, seven inches face, squared up; No. 4, hewed or slabbed hemlock ties, one from a log, nine inches or upwards face on both sides,” — for which the railroad company agreed to pay Robinson as follows: “No. 1 oak tics, 40 cents each; Noi 2 oak ties, 40 cents each; No. 3 oak ties, 35 cents each; No. 4 hemlock ties, - cents each; ties to be inspected and paid for monthly, less 10 per cent., which will be retained on all payments until the completion of the contract, which 10 per cent, will be forfeited in case of failure to complete the contract.”
This contract was filled by Robinson, and the ties paid for by the company.
In the year 1887, the plaintiff claims that he entered into another contract with the defendant, through its timber agent, a Mr. Wiley, for putting in 5,000 ties, under the same specifications as of those which were furnished in 1886, and, in addition to those, the plaintiff claims that he made a verbal contract with Mr. Wiley to take all the ties he could put in until November 1, 1887. The plaintiff claims that under his contract made "with the defendant through Mr. Wiley in 1886 he delivered red-oak ties, which were accepted by Mr. Wiley as No. 1 ties, and paid for accordingly, and that he had the same understanding with him with reference to the contract which he entered into in 1887. It appears from the undisputed testimony that Mr. Wiley had no authority from the defendant company to vary these specifications for- ties, and had no authority to accept red-oak ties for the company. A large number of ties were delivered along the'line of the defendant’s road during the year 1887, under the contract made with Mr. Wiley, the timber agent, but, before they were inspected and accepted by the defendant, Mr. Wiley resigned his position, and Mr. Petheram was appointed in his stead.
The plaintiff testified, and the testimony is undisputed, that the ties which he put in during the year 1887 were subject to inspection by the defendant company. Some dispute arose between the plaintiff and the defendant company with reference to the quality of the ties which he had delivered along the road under his claimed contract with Mr. Wiley. The company refused to accept or to inspect the red-oak and split ties as No. 1 ties, but insisted that they were of the grade of culls. Thereafter the following correspondence was had between Mr. Robinson and Mr. Mulliken, and between Mr. Robinson and Mr. Petheram: A letter of January 20, 1888, from Mr. Robinson to Mr. Mulliken, is a request for the inspection of the ties. The letter from Mulliken to Robinson, of January 24, in reply, states that—
“All written contracts for ties or other material made by Mr. Jefferson Wiley will be carried out to the letter, but he had no authority to make verbal arrangements, and we shall not recognize such. We will, however, take all ties that are made in conformity with our specifications for this year at such prices as may be agreed upon between the parties furnishing them and our present lumber agent, Mr. J. W. Petheram.”
A letter of January 26, from Robinson .to Mulliken, in reply to his of the 24th, states that—
“My contract with Mr. Wiley is written, not verbal. The prices specified are forty-five cents for No. 1 oak ties, forty cents for Nos. 2 and 3. In addition to these he contracted to give me a margin above this for all I could get out up to November 1. As I have had considerable money wrapped up in these ties for the last three months, I should be glad to meet Mr. Petheram very soon.”
A letter from Mr. Robinson to Mr. Petheram, of February 9, relates to the ties which were gotten out after November 1, 1887, and also containing the following:
“I wish to ask you to allow us a' fair price for red ■oak. Those ties are worth more than hemlock ties, and no fault of ours that they are out, as I, in common with others, thought the company wanted them. There are some who put in such ties on my contract. These parties paid five cents per tie for the timber, eight cents for sawing, two cents for hauling to the track, besides the labor of hauling them from the woods. I am not paying more than I get for them, yet the company is a gainer by having them for ten cents. It is a hardship to many of these poor men who have been misled.”
A letter of February 13, fiom Robinson to Petheram, expresses a wish to contract for 5,000 oak ties, and a request that he send copies of specifications, so that there will be no excuse for mistakes. A letter of FeN ruary 16, written by Petheram to Robinson, acknowledges the receipt of Robinsom’s letters of February 9 and 13, relative to ties, stating that his instructions were from the general manager to take ties that were on the track previous to November 1, and saying:
“The only arrangement I will make about ties with you is this: I will inspect ties that I am assured were delivered previous to November 1, and apply on old contract, but I will not inspect and apply on old contract ties that I have positive proof were not so delivered. Ties that have been delivered since that time I will inspect, subject to our present specifications, at a rate to be agreed upon between you and myself, namely, thirty- eight for No. 1, twenty-eight for No. 3, and thirty-three for No. 3; but these prices or agreements will not be carried out unless accepted by Tuesday, the 31st inst. I may be at Vestaburg on that day. Regarding the R. R. ties, they are culls. It has been the custom to pay ten cents for culls. Ten cents may be paid for these culls,, or I may decide not to take them at all. Oftentimes, men put on ties reserving the culls. As to tie-makers, having been misled, they are generally the parties who try to do the misleading, and red-oak ties are what they use for the purpose of so doing.”
A letter of February 30, from Robinson to Petheram, reads as follows:
“ Dear Sir: In reply to yours of recent date, I appeal to you in behalf of some men who put in the red-oak ties for Avhat it seems to me to be justice, when Ave consider the D. L. & N. has taken those red-oak ties for years at white-oak prices. At the same time I expected your decision would be final, so I accepted it.”
After referring to some other matters, he concluded his letter as folloAvs:
“I hope you Avill come Tuesday, as I want my ties inspected, and need the avails.”
The ties Avere inspected, and a statement thereof and a check dated March 14, 1888, for $3,689.74, payable to-Mr. Robinson, were delivered to and accepted by him. The statement referred to, attached to the check, reads. as folloAvs:
“ D. L. & N. R. R. Co.,
“ To J. W.. Robinson, Dr. March, 1888.
“ Business address, Vestaburg, Mich.
March 7.
For ties, No. 1 Avhite oak, 1,180 ties, at forty-five cents.............................-............. $ 531 00
No. 3 white oak, 2,143 ties, at forty cents________ 857 20
Culls, 6,990, at ten cents_________________________ 699 00
Total-......-.......-..................§2,087 20
“For G. R. L. &D., material account. Paid February, 1888.
“H. B. Seagrayes, S. K.
“ Approved, J. B. Mxjlliken, General Manager.
“Yestaburg, March 15, 1888.
“Received, D. L. & N. R. R. Co., §2,087.30, in full of above account,”—
To which Mr. Robinson added the words “ on account,” and signed the voucher. On the same day, and after receiving the check, Mr. Robinson sent the following written protest to the defendant:
“Vestaburg. Mich., March 15, 1888.
“To The D. L. & N. R. R. Co.:
“ I protest against Mr. J. W. Petheram’s inspection, or Parmelee’s, of the oak ties gotten out as per agreement with Mr. Wiley as unjust and unfair to me, inasmuch as I claim a margin on said ties that was promised me by said Wiley. J. W. Robinson.”
This suit is brought to recover the value of the red-oak and split ties, which Petheram rejected as culls. Two special questions were submitted to the jury:
“1. Were the ties described in Wiley’s letter of August 16, 1887 [‘Dear Sir: Answering yours of August 15, I would say the prices I will allow you in the future will be: For No. 1, forty-five; for No. 2, forty; No. 3, forty cents’], as No. l’s, 2’s, and 3’s, intended by the parties to be same grades as were described by like numbers in the written contract under which plaintiff had previously-furnished ties?
“A. No.
“2. Q. Was the inspection of the ties in question made by Petheram and Parmelee in pursuance to the following correspondence: Letter from Robinson to Mulliken, January 20, 1888; letter from Mulliken to Robinson, January 24, 1888; letter from Robinson to Mulliken, January 26, 1888; letter from Robinson to Petheram, February 9,. 1888; letter from Robinson to Petheram, February 13, 1888; letter from Petheram to Robinson, February 16, 1888; letter from Robinson to Petheram, February 20,. 1888?
“A. Yes.”
The plaintiff made no requests of the court to instruct the jury, and the court, in his charge to the jury, presented the claims of the parties as developed by the testi mony in a very plain and impartial manner, fully as favorable to the plaintiff as the testimony would warrant, and the jury found a verdict of no cause of action.
The case is brought here upon writ of error, and 21 ■errors are assigned. Nine of them relate to the rulings of the court upon the admission or rejection of testimony. We discover no error in the rulings upon these points. The balance of the errors assigned relate to the ■charge of the court. It will be a needless waste of time to embrace the charge of the court and the exceptions to 1t in our opinion, as it laid down the rules of law correctly under the testimony in the case. The court instructed the jury that — •
“ There are some letters in evidence by both Petheram ■■and Robinson, by Robinson to Petheram and by Petheram back to Robinson, in regard to that inspection. You have those letters before you, the situation of the parties, :and what was done, and from all that evidence I leave fhat as a question for you to settle: Did Robinson consent to be governed by Petheram’s inspection? If he did, that ends this case. He cannot recover.”
T-he jury found specially, as before stated, in answer to the second question, that the inspection of the ties in question was made in pursuance oí that correspondence.
The fifteenth assignment of error is as follows:
“The court erred in instructing the jury in said cause, as follows:
“cNow, gentlemen, had that bill of the — as to these ties, the different quantities, been forwarded to the general office at Detroit, or wherever it may be, to the general manager, and he had sent back the bill to Mr. Robinson, and sent a check for the payment of the bill based upon that inspection, and the bill had been forwarded to him for that amoupt, and Mr. Robinson had received it without any protest or objection, and receipted in full for the ties, I think that he would be bound by it; that should be treated as a receipt in full; that he could not recover more, as the evidence is in this case, without showing that there was any duress, or anything to show that he was obliged to act as he did.’”
Regarding the fifteenth assignment of error, the counsel for the plaintiff states that the court in effect charges—
“That the acceptance of a check in full settlement of account to date, based upon that inspection, would be a bar to the plaintiff’s action, unless plaintiff had saved his rights by proper objection and protest, or had been under duress, etc.,” and he insists that “this is in direct conflict with the decision of this Court in the case of Mortlock v. Williams, 76 Mich. 568, in which case the question was squarely raised, and in a very clear opinion by Justice Lons it is held that the acceptance of such a check would be no Bar.”
The case of Mortlock v. Williams is very -different from this. In that case the court passed upon the effect of the receipt, and took the case from the jury; but in this case, following the instruction quoted.in the assignment of error, the court continued his charge as follows:
“But, under the circumstances of the case, I submit that to you. You have what Mr. Robinson did at the time, as shown by the evidence in this case; you have the way he says he received the check, what he wrote upon the receipt; the paper, so-called protest, that he gave to the agent at Vestaburg, and all the other evidence in the case that bears upon that question. Was it received by Robinson as a settlement of his claim against the railroad company? It is perfectly competent for persons having disputed rights to go and settle, and, if they do, it is binding. If these propositions are found in favor of the plaintiff’s claim, then comes the question as to the value of the ties accepted.”
Thus it is seen that the whole question as to whether it was a conclusive and binding settlement was left to -the jury to determine, under the circumstances of the case.
We find no error in the record, and the judgment is affirmed.
Morse, McGrath, and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Cahill, J.
The bill in this cause was filed to restrain the defendants from erecting a building in what is described in the bill as c‘ South Street,” in the village of G-randville, and to require the defendants to tear down and remove a building partially completed by them there. The defense is that the place where the building was being erected is not a public street, but property which the defendants had purchased and have a right to erect their building on.
The facts relied on by complainant to establish the existence of a street are that in 1837 the owners of the land where the village of Grandville is situated made a plat thereof into lots and blocks, and showing streets and alleys intended for public use, in accordance with which the village has since been built, and property conveyed from time to time. This map was neither acknowledged nor recorded as required by the statute of 1827, then in force. 2 Terr. Laws, 577. The original plat was of the E. £ of the N. E. £ of section 18, in the township of Wyoming. The eastern addition to this plat was of the N. W. i of the N. W. ¶ of section 17. It does not appear whether these plats were made at- the same time, nor is it important, as the land -in question is on the eastern addition, and it is conceded that that plat was made in 1837. South street, as indicated on these plats, commenced at the south-west corner of the N. E. of the N. E. ¿ of section 18, and ran from thence east on the eighth line to the south-east corner of the N. W. i of the N. W. i of section 17. At the time these plats were made, there were very few actual settlers at Grand-ville. The expectations of the proprietors of the plat, in regard to the growth of the village, were not realized. The village was not incorporated as a village until 1885, and has now a population of only about 600. Prior to 1871, no steps had ever been taken towards opening or improving South street.
In 1857 one Nicholas Osterhouse bought, and had conveyed to him, a piece of land described as block 12, eastern addition to the village of G-randville. Block 12, according to the plat before referred to, was bounded on the north by Ferry street, on the west by East street, on the south by South street, and on the east-by Church street. At the time of Osterhouse’s settlement there, none of these streets except East street were open or in use. He built his house fronting on East street near the south-west corner of the block, and south of that, and upon what on the plat was shown as South street, he built his barn. In this way he continued to occupy the premises until August, 1871, when he conveyed a strip of land 66 feet wide, through block 12, for the use of the Grand Rapids & Holland Railroad Company for a right of way. In October following he conveyed to the same railroad company—
“All that part of block 12 that lies south of the portion of said block heretofore deeded to said railroad company, * * * and bounded on the east by Church street, on the south by South street, and on the west by East street.”
The land so deeded by him to the railroad company was ■that upon which his house was situated. Soon after, his 'house was removed, and the depot of the railroad com pany built not far from but slightly east of the same site. The barn was also removed from South street. During that same season a stave-mill was erected something over a block east of East street, and a little south of South street. There was no convenient means of access to this mill. On October 3, 1871, a petition was made to the highway commissioners of the township of Wyoming, by Mr. Knowles, at that time station agent of the railroad company, and seven others, who described' themselves as freeholders of that township, requesting them—
“To open State street, in the village of Grandville, from East street east to Church street, and also to lay out and establish a public highway commencing at some point on Church . street, south of the Grand Rapids & Holland Railroad land, running easterly, parallel to and adjoining the land of said railroad company, to Ottawa street.”
It will be noticed by reference to the plat, a copy of which is appended, that State street is a diagonal street, running north-east, and crossing East street a short distance south-west of the point at which it would form a junction with South street.
It appears that a Mr. Keil, the owner of the land through which State street would run if opened, objected to the opening of that diagonal street, but offered, in case the commissioners would act upon it, to give sufficient land along his north line, east of East street, and lying immediately south of the eighth line, between East street and Church street, to make, as shown on the plat, a street of four rods in width from East street to Church street. Mr. Freeman, who was at that time one of the commissioners of highways, was examined as a witness for the complainant, and ■ testified that the commissioners acted upon this offer, and proceeded to lay out a street four rods wide, commencing at East street and running due east to the stave-mill, then in operation. He testified that the street so laid out was immediately adjoining the land deeded by Osterhouse to the railroad company, as the south part of block 12. Through the center of this newly-laid street was a fence running east and west, supposed to be built on the eighth line. There was also a fence running from the south-west corner of the railroad ground, south. .These fences were ordered to be, and were in fact, removed, by Mr. Kell two .rods south, so as to form the southerly line of the street, and that along East street was taken down. It appears that Mr. Knowles, representing the railroad company, and the owners of the stave-mill were the principal movers in this proceeding to open up a street, and that the street so opened corresponded with that shown upon the plat as South street. Mr. Freeman testified that he thought a record of the opening of this street was made, but no record appears in the town-clerk’s office, and, as the petition under which he acted did not ask for the opening of the street which was in fact opened, it is not important that no further record was made of the action taken. It must be conceded that the commissioners were acting without jurisdiction in attempting to open South street upon a petition which asked for the opening of State street.
However irregular this action of the commissioners may have been, the parties immediately interested acquiesced in it; the street was opened and improved, and, during the following four or five years, was in constant use for travel by those who had business at the stave-mill or with the depot. There was also a family named Fleming, living near the sta-ve-mill, who used this road in going to and from the business part of the village. During the year 1872 the overseer of highways expended some labor upon the street so laid out, but in 1873 declined to do so upon the ground that the labor was more needed in other localities. The proprietors of the stave-mill expended considerable labor in turnpiking and improving the street. In 1876 the stave-mill discontinued business, and the buildings formerly used as a stave and planing mill were only used in a small way as a cooper-shop. But public travel was not discontinued entirely over this street. The testimony shows that people continued to live in the Fleming house, and that the cooper-shop continued to be operated more or less, and that persons having occasion to visit either of these places were compelled to travel over this street, unless they trespassed upon the railroad or other private grounds. This situation continued until the last of August, 1889, when the defendants entered into possession of the north half of South street, fronting upon East street, and commenced the erection of a two-story frame building. They claimed the right to do so under a deed from Nicholas Miller, dated August 23, 1889, conveying to them—
“The north half of South street, so called, on the. south side of block 12, in the village of Grandville, Kent county, Michigan, being two rods front on East street according to the recorded plat thereof.”
Miller claimed title from Nicholas Osterhouse under a deed dated July 16, 1889, conveying the same discription of land. On September 10, after the defendants commenced the erection of their building, action was taken by the village council to prevent the same. The village marshal was instructed to notify parties obstructing South street to remove obstructions immediately. On September 16 the following preamble and resolution were adopted:
“Whereas, the council of the village of Grandville have, by resolution, instructed the marshal of said village to remove obstructions from South street: and whereas, one Luman and Lucius Jenison have caused an obstruction to be placed in said street, and have refused and neglected to remove the same in accordance with the resolution of said council, after notice and request by said marshal: Therefore resolved, that J. W. Cooper, J. S. Graham, and Tzar Caldwell be, and they are hereby, appointed a committee to institute the necessary suit in the name of the corporation of the village of Grandville, to enforce the rights of the said village in said street, to establish its title thereto, and cause to be removed all obstructions therefrom. Motion to adopt made and carried.”
In pursuance of that resolution this bill was filed. It appears that, in addition to the obstructions which the defendants had placed in this supposed street, a Mrs. Hovingh has erected a house and barn on the south side of and partially in the street, and that other persons occupying adjoining lands have erected chicken parks within the line of the street, and have occupied them for several years; also that people have piled wood and lumber, at various times, within the line of the street; but it does not appear that any of these encroachments have excluded the public from the use of the traveled part of the street.
One objection raised to this bill by the defendants is that it is defective for want of parties; that Mrs. Hovingh and the other parties obstructing the street should have been made parties. There is no force in this objection, as the rights of the various persons making encroachments upon the street are in no way connected with, or dependent on, each other, nor does it appear that any persons, excepting the defendants, have refused to remove their encroachments when requested.
Upon this state of facts we have to determine whether the land upon which defendants have erected their building is a public street. It is claimed that it is a street, first, by dedication. It is not claimed that there has been a dedication under the statute. Since 1827 the forms of law required to be followed in this State to effectuate a statutory dedication of land to public use have remained substantially the same. • Changes have been made in matters of detail, but from the first the statute has required a plat or map showing the land intended to be dedicated to be made and acknowledged by the proprietor, and recorded in the office of the register of deeds. The effect of such statutory dedication, unlike a dedication at common law, has been to vest the fee of such parcels of land as are therein expressed, named, and intended to be for public use in the county in which the same" shall be, for the uses and purposes intended. 2 Terr. Laws, 577 (How. Stat. chap. 32). The effect of a dedication under the statute has been to vest the fee in the county, in trust for the municipality intended to be benefited, whereas, at common law, the act of dedication created only an easement in the public. Warner v. Blanchard, 3 Mich. 16. It has therefore been held that nothing short of a strict compliance with the terms of the statute, as to the acknowledgment and recording of the plat, would constitute a present grant to the public. People v. Beaubien, 2 Doug. 270; Burton v. Martz, 38 Mich. 761; 2 Dill. Mun. Corp. § 491, and cases cited.
The right to make common-law dedications is not abridged by the statutory regulations providing for statutory regulations in certain specific ways. People v. Beaubien, supra; Lee v. Lake, 14 Mich. 12; Baker v. Johnston, 21 Id. 319; 2 Dill. Mun. Corp. § 493. The making of a plat of lands by the proprietor, showing lots, blocks, and streets, evidently for the use of • those who shall come to occupy the property, and the subsequent sale of the property in lots or blocks, according to such plat, as was done in this case, is one of the clearest ways of declaring an intention to dedicate. Such an act has been held to conclude the owners, so far as the rights ,of subsequent purchasers are concerned. 5 Amer. & Eng. Enc. Law, tit. “Dedication*,” 405, and cases cited. But the owner is not concluded, as to the public, unless the dedication be accepted by the public. People v. Jones, 6 Mich. 176; Lee v. Lake, supra; Tillman v. People, 12 Mich. 401; Detroit v. Railroad Co., 23 Id. 173. It was said in Tillman v. People, 12 Mich. 405, which was the case of a supposed street, that—
“It was essential, before such dedication could become effectual, that it should be accepted by the proper authorities on behalf of the public; that such acceptance should be manifested by some act of the public authorities, either formally confirming or accepting the dedication, and ordering the opening of such street, or by exercising authority over it in some of the ordinary ways . of improvement or regulation.”
The acceptance must be within a reasonable time. County of Wayne v. Miller, 31 Mich. 447; Field v. Village of Manchester, 32 Id. 281; Cass Co. Sup’rs v. Banks, 44 Id. 468.
In this case the offer of dedication was made in 1837. Nothing was done by the public to indicate an acceptance of the offer for 20 years, when Nicholas Osterhouse, who had become the owner of the adjoining property, and to which this easement was appurtenant, took possession of the land, built a barn upon that portion that had been ■offered to the public for a street, and continued to occupy the same for 14 years, in such a way as to indi-cate a clear intention not to recognize the right of the public in it. The rule declared in Field v. Village of Manchester, 32 Mich. 281, applies here, and it must be held that the public have no rights in this property by right of the dedication.
It remains to be considered whether any rights have been obtained by user since 1871. It is clear, as has been said, that the action of the commissioners in 1871 was not a lawful laying out of a road under the statute. It is equally clear that the commissioners laid out a road in fact, which the public adopted, and have used to the full extent that they had occasion to use it from that time until prevented by the defendants’ encroachments. The evidence shows that, up to the time when travel was interrupted by the defendants, that portion of the street where their bhjlding stands was well worn with travel from teams going to and from the depot. The street further east was not so much used, but it was used when needed. The statute in force in 1871 (Comp. Laws 1871, § 1268), and in force substantially at the present time (How. Stat. § 1315), provides that—
“All public, highways now in use and duly recorded, and all roads not. recorded which have been used ten years or more, or which may hereafter be laid out and not recorded, and which shall have been used ten years or more, shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act.”
This statute applies to this case. Ellsworth v. Grand Rapids, 27 Mich. 249; Potter v. Safford, 50 Id. 46; Nye v. Clark, 55 Id. 600.
Evidence of the general understanding in the community that South street was a highway was properly admitted. It was competent also to show that the supervisor had refused to assess the land, although requested to do so, on the ground that it was a highway. Wicks v. Ross, 37 Mich. 464.
The encroachments upon this highway made at various times by the building of chicken parks, piling of lumber, wood, etc., which did not obstruct travel, did not necessarily show a non-user. The statute recognizes the fact that such things will occur, and provides a remedy. But the rights of the public will not be lost by anything short of an actual abandonment of the use by which they secured it.
The extent to which a road is traveled does not govern. The law does not fix the number who must travel upon a road in order to determine whether it exists by user. It must be used by the public, and the public are all who have occasion to use it. In the case of Baldwin v. Herbst, 54 Iowa, 168, it was held that it would be sufficient to constitute a highway «by user if it was traveled over as much, or about as much, as it would have been .if it was laid out by the statute, and traveled as much as the circumstances of the surrounding population, and their business, required.
The decree of the circuit court was in accordance with these views, and is affirmed, with costs.
Champlin, C. J., Morse and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
MgG-rath, J.
Defendant company owns and operates a street railway at Muskegon. On October 20, 1889, it was engaged in extending and laying its tracks, and had excavated and dug up the ground on Lake street, and had thrown up quantities of dirt and rubbish into the street adjoining its tracks. Plaintiff’s buggy was being-driven upon the street in the night-time, and, coming upon one of these heaps of dirt, was capsized and injured, and plaintiff brought suit in justice’s court, recovered in that court, and defendant appealed to the circuit court, where plaintiff again recovered. .
Plaintiff’s declaration is in writing, and is as follows:
“Muskegon County — rss:
“Thomas Cowan, plaintiff herein, by DeLong & O’Hara, his attorneys, complains of the Muskegon Railway Company, a corporation duly organized and existing under the laws of the State of Michigan, defendant, duly summoned in the plea of trespass on the case, for that, whereas, the defendant heretofore, to wit, on the 20th day of October, 1889, was the owner and in possession of a line of the street-railway track in certain streets of the city of Muskegon, to wit, on Lake street, in said city; and, being the owner and in possession thereof, said defendant, on the day and year last aforesaid, for the purpose of laying track and making other improvements in and upon the said line of railway and track, graded and excavated and dug up the ground on said • Lake street, and carelessly and negligently piled and threw up a large amount of dirt, rubbish, and ground, so that the same became and was dangerous for the driving of teams and vehicles.
“Plaintiff further avers that on the day and year last aforesaid he was the owner of a certain top carriage, which he on said day let or hired to one Richard Call; that he, the said Richard Call, took said carriage, to which was hitched a certain horse of the said plaintiff; and he, the said Call, drove said horse and rode in said carriage past and upon said Lake street, which said Lake street was a public street and a public highway in said city; and while the said Call was driving said horse and riding in said carriage, and driving the same in a careful and prudent manner, and without any knowledge that the said dirt and rubbish was so piled and thrown up in said street, and without any fault upon the part of said Call, he, the said Call, drove said top carriage upon and against said piles of rubbish and dirt, by means of which said carriage was overturned, broken, and injured, so that the same ■ was damaged in a large sum, to wit, in the sum of thirty dollars, to the damage of the said plaintiff, thirty dollars. Therefore he brings suit.”
Defendant pleaded the general issue. The accident occurred.in the night-time. Two ladies were with Call in the buggy at the time. Call and one of the ladies occupied the buggy-seat, and the other lady, who was about 17 years of age, sat between the other two, and was driving at the time of the accident. They had driven along the street twice before on the same evening, without accident; and Call, who was driving on these occasions, had noticed these obstructions. Call testified that there was no light of any kind at the obstruction, and defendant had given testimony tending to show that lights had been placed upon it. At the close of plaintiff's proofs defendant asked the court to direct a verdict for defendant, but the court refused so to do. At the close of the proofs defendant asked the court to instruct the jury:
“1. The plaintiff, in his declaration, does not complain of or allege any neglect of duty on the part of defendant for failing to erect and maintain barriers or danger signals or lights, and there can be no recovery by the plaintiff for any injury sustained' in consequence of the omission of such duty.
“ 2. The testimony on the part of the plaintiff does not establish the case set out in the declaration, and your verdict should be for the defendant."
The court refused these requests, and error is assigned 'upon the refusal of the court to direct a verdict, and also upon the refusal of the court to instruct the jury as requested.
We think the court should have directed a verdict for the defendant. In the ordinary course of operating its street railway the defendant was engaged in repairing and laying its track, which it had the undoubted right to do; and it was not negligence for it to excavate and throw up earth while thus engaged. The proofs do not show that the earth was allowed to remain there for an unreasonable time, nor does the declaration allege that it was allowed to remain there in the night-time, or without lights or barriers. Again, the declaration avers that Call was driving at the time of the accident, while the proofs showed that the young lady was driving, and the declaration contains no averment that she was exercising due care. Not only is there a material variance between the declaration and the proofs, but the declaration fails to set forth a cause of action.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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Long, J.
This cause was tried before a jury in the Wayne circuit court, where the defendant had verdict in its favor under direction of the court. Judgment' being entered upon the verdict, plaintiff brings the case to this Court by writ of error.
The declaration alleges, substantially, that the .defendant is a corporation organized and existing under the laws of this State; that on the - day of August, 1889, it was engaged in the carrying of passengers, for hire, in cars drawn by horses, through and along Brush street, in the city of Detroit; that Brush street was and is densely populated, whereby it became the duty of the defendant, by its servants and employés, to use due care and precaution in managing and driving said cars and horses attached thereto, and in such manner as not to endanger the safety of persons crossing Brush street, within the space mentioned in the declaration; but that the defendant, disregarding its duty in that behalf, on the - day of August, 1889, a certain car, to wit, car No. 100, then and there in the charge and custody of the servants and employés of said defendant, and then and there engaged in the service and business of said defendant, did so recklessly, negligently, and unlawfully operate, while passing the space aforesaid on Brush street, that plaintiffs intestate, the said Lorenzo Hurst, who was then and there an infant of the age of 1 year and 11 months, and who was then and there in the exercise of such due and reasonable care as was compatible with his age, in the act of crossing said roadway of said Brush street, by the said car and horses attached thereto was knocked down, trampled upon, and by the wheels and other portions of said car crushed and mortally injured, from which said injuries, as aforesaid negligently, recklessly, and unlawfully by the said servants and employés of said defendant inflicted upon said Lorenzo Hurst, he, the said Lorenzo Hurst, did die; by reason of which negligence of said defendant and injury to and death of said Lorenzo Hurst an action hath accrued to the said plaintiff as the representative of the next of kin of said Lorenzo Hurst,' and in which he claims damages from the said defendant in the sum of $10,000.
After the trial of the cause had commenced, the plaint iff asked leave of, and was permitted by, the court to amend his declaration by inserting the following:
“From which said injuries, as aforesaid negligently, recklessly, and unlawfully by the said servants and employés of the said defendant inflicted upon the said Lorenzo Hurst, he, the said Lorenzo Hurst, did languish in great pain and agony and suffering for the space of two hours thereafter, and, so languishing, did live, until afterwards, to wit, on the day and year aforesaid, he, the said Lorenzo Hurst, by reason of the said injuries so as aforesaid by the negligence of the said defendant received, did die.”
Counsel for the plaintiff, in asking leave to file the amendment to the declaration, stated that the only cause of action sued for was the negligent killing of intestate, and he did not intend by the proposed amendment to change the cause of action from the one set up in the declaration, and in opening the case to the jury stated that he sought to recover in the suit under How. Stat. § 8314.
The plaintiff gave evidence on the trial tending to show that—
“About mid-day of the 21st of August, 1889, plaintiff’s intestate, a male child of 23 months of age, and just beginning to walk, was engaged with 15 or 20 other children in some childish amusement upon Brush street, in Detroit. The neighborhood is a populous one, in which many children reside. The width of the street between curbs at this point is 28 feet. Through the center of this space runs the track of the defendant corporation, upon which it operates a line of cars, drawn by horses, for the carriage of passengers for hire. One of the cars of defendant came along at a rapid speed. The car thus progressed a distance of 125 feet before reaching the intestate, while the driver kept his face turned aside from in front of the car. Plaintiff’s intestate was knocked down and driven over while he was in the act of crossing the track. Both the front and rear wheels passed over his body, crushing and wounding him so that he died in less than an hour afterwards. The driver did not attempt to check the speed of the car until after the injury had occurred. The father and mother of the intestate are both living. The father is 54 years of age; an invalid, poor, and unable to render any assistance in supporting the family. The mother worked at washing and ironing, at which she supported herself and family, including the husband (plaintiff in error). The family consisted of the parents and 7 children, the oldest of whom was 16 years, and the youngest 23 months (the intestate). The mother, on the day in question, had gone from home at half past 6 o’clock, in the morning, to work, leaving the infant intestate under the care of a child 10 years of age. The father (the plaintiff) at this time had been away from home, and at the Soldiers’ Home, Grand Eapids, for about 10 days. No evidence of specific pecuniary damages was given.”
No testimony was offered on the part of the defendant, and the parties rested their case. Defendant’s counsel thereupon requested the court to charge the jury that, under the pleadings and proofs, the plaintiff could not recover. After the argument upon such request to charge, the plaintiff asked to be permitted to amend his declaration so as to include a claim for damages under the provisions of Act No. 113, Laws of 1885. The court refused to allow this amendment, and directed verdict for defendant.
Two questions only are raised:
1. That the court erred in refusing to allow the amendment.
2. That the court erred 'in directing the verdict, as requested by defendant’s counsel.
The court very properly refused the plaintiff’s amendment to his declaration. The act referred to, which is an amendment to How. Stat. § 7397, provides that—
“ In addition to the actions which survive by the common law, the following shall also survive, that is to say: Actions of replevin and trover; actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent iiijtories to the person, and actions for damage done to real or personal estate.”
■ By the amendment the plaintiff sought to introduce into the cause a right of recovery for the injuries inflicted upon plaintiff's intestate, and for the recovery of which the plaintiff's intestate might have had an action if living, and which action, it was claimed, survived to the plaintiff by virtue of this statute. This amendment would have introduced into the case a new and different cause of action than that stated in the declaration. Under the declaration as framed, if any damages were recoverable at all, it was only such damages as resulted from the loss of service by reason of the death of the child; while the claim of recovery under the proposed amendment was for the injuries inflicted and suffered up to the time of its death, — that is, such damages as the child might have recovered for the injuries if living, and which it was claimed survived, by this statute, to the father and mother. Satisfaction of the claim made by the declaration would be no bar to the other if such an action could be maintained. The claim made is one given by statute, and which did not exist at the common law; the proposed amendment is for the recovery for injuries, and the right to which is given by the common law, and which died with the party, unless made to survive by this statute of 1885; thus showing two separate and distinct causes of action. The proof of one would not sustain the other, and the right to damages, and the measure thereof, depended upon a different class and kind of proof, — one measured by the pecuniary value of the service of the child, less the cost of maintenance; and the other, the actual damage sustained by the child by reason of the injury, such as the inability to perform his usual labor, physical pain and suffering, depending upon the degree of the injury and pain and suffering endured.
The court was not in error in directing the verdict in favor of the defendant. The action was brought under How. Stat. § 8314, which provides that—
“ Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered.”
No proof was made by the plaintiff of any pecuniary loss, and there is no - such allegation in the declaration. It is argued, however, by the counsel that this statute declares the liability of the person or corporation whose negligence caused the death, and that, therefore, no evidence of pecuniary damages was requisite to entitle the next of kin to maintain the action and to recover such damages; that the statute itself refers it. to the jury, to give such damages as they shall deem fair and just.
The action is by the administrator of the intestate’s estate, and, if any recovery is had, it is, under the statute, for the benefit of the parents, the father and mother, who are both living. It is for the pecuniary loss sustained by them; and the measure of such damages, if any are recoverable in such cases, is limited to the prospective earnings of the child until his arrival at the age of 21 years, taken in connection with his prospect of life, less the expenses of his care and support. Rajnowski v. Railroad Co., 74 Mich. 20; 2 Thomp. Neg. 1292. There would also be a limit upon this, dependent upon the probable duration of the lives of the parents, as no estimate of such prospective earnings could extend beyond the expectancy of the lives of the parents and the survivor of them. Clinton v. Leming, 61 Mich. 361. It is well stated by counsel for the defendant that it has the same element and the same measure of damage which the parent sustains and can recover in case of permanent injury resulting in partial or total disability of the child to render services to the parent; that it is also equivalent to the element of actual damages recoverable by an injured party who is disabled, and thus rendered unable to perform his usual work, or apply himself to his trade, and thereby he loses his prospective earnings; and that this may be termed the pecuniary damage or loss sustained by the injured party. The question is therefore presented whether damages of this character are special jn their nature, and not such as necessarily flow from the injury, or, as in this case, necessarily follow from the fact that death results from the injury.
It is contended on the part of the plaintiff that the statute does not contemplate that such damages are special, but refers every such action to the jury, to estimate and give such damages as they shall deem fair 'and just. The statute provides that when a person is killed by negligence, and pecuniary injury results, the right of action for such injury survives to the personal representatives. It clearly contemplates that pecuniary injury must result from the negligent act; and therefore, to entitle a party to recover in such action, the negligence must not only be established, but also some pecuniary injury or loss must be shown by evidence. Such damages for the loss of prospective earnings are special in their character, and must be specially pleaded, and a recovery can only be had based- upon evidence establishing the fact. Pennsylvania Co. v. Lilly, 73 Ind. 254; Gilligan v. Railroad Co., 1 E. D. Smith, 453, 459; Baldwin v. Railroad Corp., 4 Gray, 333; Tomlinson v. Derby, 43 Conn. 562; Taylor v. Monroe, Id. 42; Dunn v. Railway Co., 21 Mo. App. 205; Matthews v. Railway Co., 26 Id. 84; Perry v. Banking Co., 85 Ga. 193 (11 S. E. Rep. 605); Railroad Co. v. Orr (Ala.), 8 South. Rep. 363. There is no allegation of special damages in the declaration, and it does not count upon the pecuniary loss of the prospective earnings of the intestate; the theory of the plaintiff being that no such allegation was necessary, and no proofs required, but that the action was brought for the negligent killing, and nothing else. It is necessary to a recovery in such cases that the pecuniary loss be alleged in the declaration, and that some proof be introduced to establish the facts so alleged.
It was said by Mr. Justice Champlin in Cooper v. Railway Co., 66 Mich. at page 271:
“The statute authorizes the jury, in every case of this kind, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted.”
Attention is directed to the reasons given in that case why such testimony is necessary in support of such claim of damages. In Rajnowski v. Railroad Co., 74 Mich. 27, this class of testimony was offered, and rejected by the trial court, and we there held this testimony admissible. In Van Brunt v. Railroad Co., '78 Mich. 530, the action was brought under sections 3391 and 3392, How. Stat., which provide that in an action by an administrator against a railroad company for the alleged negligent killing of his intestate the jury shall give such damages as are fair and just, which shall be distributed to the persons entitled thereto under the statute of distributions. It was held that the administrator must show that some person has suffered some pecuniary injury by the death.
But it is contended by the learned counsel for the plaintiff that the plaintiff was entitled to recover at least nominal damages. As before stated, however, the statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. It is a matter to be made to appear by proper allegation in the declaration, and proof of the fact. Nominal damages cannot be recovered, unless supported by evidence. Franklin v. Railway Co., 3 Hurl. & N. 213; Duckworth v. Johnson, 4 Id. 653.
Counsel for defendant contend that the administrator-must show that the injurious act of .which he complains was caused by the negligence of the defendant, and that he-is not relieved from the charge of contributory negligence on the part of the deceased, or on the part of those having the care of the deceased; that it is a case where the parents seek to benefit themselves; and, if their negligence in any way contributed to the accident from which they seek a benefit, they should be barred from any recovery. 1 Shear. & R. Neg. § 71, and cases there cited; Glassey v. Railway Co., 57 Penn. St. 172; Railway Co. v. Snyder, 24 Ohio St. 670; Wright v. Railroad Co., 4 Allen, 289; Weil v. Railroad Co., 5 N. Y. Supp. 833, —are all cited in support of this proposition. I should be of this opinion if the question were one necessary to the disposition of the case, but, from the view we take, the court was justified in directing a verdict upon the other branch of the case. No special damages were alleged or proved, and for this reason the court very properly directed the verdict in favor of the -defendant.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Long, J.
John Schehr departed this life in Wayne county on September 12, 1869, leaving surviving him his widow,' Margaret Schehr, g,nd six children, his heirs at law. By his last will and testament he nominated and appointed Frank Nohe, Adam Betzing, and William Darmstaetter, of the city of Detroit, to be the executors of his last willj giving them full power and authority to sell, convey, and dispose of any and all personal and real estate of which he died seised and possessed, at such times, to 'such purchasers, and upon such terms as to the said executors should seem meet, whenever they should find the sale advantageous to the estate; the executors to invest tlie proceeds of such sales in good and approved bonds and mortgages upon real estate in Wayne county, and upon no other kind of security. The second, third, and fourth clauses of the will read as follows:
“Second. I give, bequeath, and devise unto my wife, Margaret Schehr, of the city of Detroit, county of Wayne, and State of Michigan, during the term of her natural life, the use, income, and profit of all my property, real, personal, and mixed, of every nature whatever, and the interest arising from the aforesaid investments, under the following conditions: She shall out of the income prop erly support and educate my children until they become sixteen years of age, or until they are able to support themselves.
“ Third. The foregoing provision is to be received and accepted by my wife, the said Margaret Schehr, in lieu of any and every claim of dower.
“Fourth. From and after the decease of my wife, the said Margaret Schehr, I give, bequeath, grant, and devise all the remainder and residue of all my estate, real, personal, and mixed, of every nature whatever, unto my six children, namely, Caroline Gries, Catharine Schehr, John Schehr, Marie Schehr, Barbara Schehr, and Edward Schehr, to be equally divided among them, and to have and to hold the same unto them, my said children, their heirs and assigns, forever."
Two of the executors named entered upon the discharge of their duties, but subsequently resigned, when Daniel Fleper was appointed administrator cle bonis non, with with the will annexed. Upon his resignation the present administrator was appointed.
It appears that the estate consists of about $4,000 of personal property. The estate has been closed as far as ■the payment of debts and administration expenses are concerned, but the administrator has possession of the estate, and refuses to turn it over to the complainant in this cause, who claims that she is entitled to the possession of the property’and estate of the deceased, upon the grounds—
1, That she takes the estate absolutely, according to the terms of the will.
2. That, though she does not take absolutely under the terms of .the will, yet she is entitled to the possession of the funds in the hands of the administrator, and to have the care and control of such funds during the term of her natural life. .
The bill is filed to obtain a construction of the will, and for an accounting with the administrator, and con tains a prayer that the moneys, mortgages, bonds, stocks, and-other securities may be turned over to her. In the court below the bill was dismissed. The questions at. issue are to be determined upon a construction to be given to the clauses of the will above set out.
Counsel for complainant cites Sutphen v. Ellis, 35 Mich. 446; Jones v. Jones, 25 Id. 401; Proctor v. Robinson, 35 Id. 291,- — -in support of his contention that the widow took the property absolutely under the terms'of the will. These cases are, however, plainly distinguishable from the present case. In Sutphen v. Ellis, supra, the language-of the bequest to the wife was:
“I give and bequeath unto my beloved wife, Ann, all of my estate, both real and personal, during her natural life, for her use; but after the death of my said wife, I hereby bequeath unto the children of my brothers and sisters each an equal share of what may be left of my said estate after the death of my’ wife.”
It was held that the terms employed in the limitation to the nephews and nieces tended strongly to show an intent on the testator’s part that they should take only what should be left of his estate at the death of his' wife, and not the whole body of the estate, of which the wife-was to have the use merely. And so in the other cases cited, it appears very plainly that the testators did not intend to limit the estate of ^he wife to the use merely, and this was gathered from the terms of the will.
In the present case, however, it is evident from the language employed that the estate bequeathed to the wife is intended to be limited to the use, and after her death the whole body of the estate is to become vested in the. children. Whether or not the testator intended to vest any estate in the executors, or only to give them power of disposition, does not become important. The execution. of the trust failed by the resignation of the executors before any portion of the estate had been disposed of or any distribution made. The estate is now in ¿he hands of the administrator, and upon proper application undoubtedly a court of chancery would have power to appoint the necessary trustee for the control and management of the estate, and to pay the income over to the widow. But the fair interpretation of the will is that the testator intended to give the widow only the use, and that the whole body of the estate, after her decease, should go to the children. It is also quite apparent that the testator did not intend that the widow should have full possession and control of the estate, with the power absolutely to sell and dispose of it, or to use the estate, aside from the income to be derived from its use; and that the estate might be preserved to the children after the death of his wife, he named these parties as executors of his will, and gave them the power to control and invest it. From the intimation given here there will be no difficulty in settling the questions as to the care and management of the estate, to the end that it may be preserved to the children. The court below very properly dismissed complainant’s bill.
The decree will be affirmed. The costs will be allowed out of the estate.
The other Justices concurred. | [
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] |
Morse, J.
This controversy involves the title to a parcel of land near Sault S'te. Marie, in this State, a part of what was once termed the “ Indian Reserve.”
The complainant claims title under a pre-emption entry of one Byron B. Adsit. The proofs show that Adsit moved upon the land in 1856 or 1857, and built a house upon it, and raised some garden vegetables. He proved up his claim before the register and receiver of the land-office at Marquette, and December 5, 1859, received from these officers a certificate describing the land covered by his entry as follows:
“Lot designated on the map of the United States survey in the land-office at Marquette, Mich., as 'Indian Reserve/ subject to all the provisions, requirements, and conditions of an act of Congress entitled ' An act granting to the State of Michigan the right of way, and a donation of public lands, for the construction of a ship-canal around the falls of the Ste. Marie, in said State/ approved August 26, 1852, of section No. six, in township No. 47 north, of range No. 1 east, containing 36 50-100 acres, at the rate of $1.25 per acre.”
This certificate stated that, in pursuance of law, Adsit had, on that day, purchased the above described premises, and would be entitled to a patent for the same upon his presentation of such certificate to the General Land-office at Washington. He was also given a receipt for the money paid therefor. On the same day, the local land-officers at Marquette wrote the Commissioner of the General Land-office, stating that they had examined Adsit’s proofs of his pre-emption claim—
“To what is designated ‘Indian Reserve’ in section six, township 47 north, of range one east, containing 3G 50-100 acres, and find that the same was originally reserved for Indian purposes; that it was surveyed in 1845, and the contents ascertained, as appears by our maps; that the Indian claim and title was extinguished by the treaty of August 2, 1855, for reference to which, see ‘Statutes at Large and Treaties of the United States of America, commencing with the first, session of the 34th Congress, 1855 and 1856,’ page 37 of treaties, and which has since been complied with by the United States by payment to the Indians.”
They recommended the allowance, of Adsit’s claim, considering the land subject to pre-emption and his proofs sufficient. To this letter, the acting Commissioner, John S. Wilson, replied of date February 8, 1860, referring the Marquette officers to his instructions of Juné 9, 1853, in which they were informed that section 6, among other lands, was within the military reservation of Ft. Brady. They answered, and called the attention of the Commissioner to the act of Congress of September 26, 1850, stating that, under such act, the military reserve had been reduced to about 40-acres, and did not include the lands in question, and referring him also to the map of private claims to be found in his office; and further stating that they knew of no reason why the land was not subject to pre-emption. April 9, 1860, Wilson again wrote them that, the land claimed by Adsit not being subject to pre-emption, his entry was canceled, and directing them to note such cancellation on their books and plats, and to notify Adsit to make the usual application for the repayment to him of his purchase money. No further effort was made by Adsit, or any one in his behalf, to obtain a patent upon his certificate, and. no appeal was taken from the action of the Commissioner. August 7, 1860, Adsit conveyed the land by quitclaim deed to the complainant.
The defendant claims title- under a patent from the United States, dated December 15, 1883, issued to him, describing about 9.10f acres, which land is admitted to be within the limits of Adsit’s pre-emption entry.
The complainant filed this bill November 22, 1888, asking that the title to the land described in said patent be decreed to be his by the prior and paramount right of his pre-emption, and that Chandler be directed to make a proper conveyance of the fee to him. It is admitted that the fee remained in the United States up to the issuing of the patent to Chandler, subject to the the pre-emption right of complainant. The circuit judge, Hon. C. B. Grant, sitting in the circuit court for the county of Chippewa, dismissed the complainant’s bill upon the proofs, from which decree the complainant appeals.
The only right the complainant has is based upon the •pre-emption of Adsit, and neither he nor the Court is concerned with the title of Chandler, as complainant had no possession of the premises when Chandler entered under his patent and occupied the land.
Several reasons are urged in this Court why the land in question was not subject to pre-emption at the time Adsit made his entry, and proved his claim before the local land-officers.
First, It is claimed that it was an Indian reserve, and, under the pre-emption law of 1841, by virtue of which Adsit made his entry, could not be pre-empted. Section 10 of said law of 1841, providing for the pre-emption of lands, contains the following provision:
“No lands reserved for the support of schools; nor the lands acquired by either of the two last treaties with the Miami tribe of Indians, in the state of Indiana, or which may be acquired of the Wyandotte tribe of Indians, in the state of Ohio, or other Indian reservation to which the title has leen or may le extinguished ly the United States at any time during the operation of this act; no sections of land reserved to the United States alternate to other sections granted to any of the states for the construction of any canal, railroad, or other public improvement; no sections, or fractions of sections, included within the limits of any incorporated town; no portions of the public lands which have been selected as the site for a city or town; no parcel or lot of land actually settled and occupied for the purposes of trade, and not agriculture; and no lands on which are situated any known salines or mines, — shall be liable to entry under and by virtue of the provisions of this act.” 5 U. S. Stat. 456.
The undisputed history of this so-called' “Indian Beserve,” at Sault Ste. Marie, of which this land was unquestionably a part, is as follows: June 16 1820, the Chippewa Indians ceded to the United States 16 square miles of land, designated by metes and bounds, reserving, however, rights of fishing and encampment, which were guaranteed to them as follows:
“The United States will secure to the Indians a perpetual right of fishing at the fall of St. Mary’s, and also a place of encampment upon the tract hereby ceded, convenient to the fishing ground, which place shall not interfere with the defenses of any military -work which may be erected, nor with any private rights.” 7 U. S. Stat. 206.
March 28, 1836, the Ottawa and Chippewa Nations ceded to the United States a large tract of country, including within its limits the 16 square miles above mentioned. By article 3 of this treaty, the rights of the Indians were preserved in the following words:
“It is understood that the reservation for a place of fishing and encampment, made under the treaty of St. Mary’s, of the 16th of June, 1820, remains unaffected by this treaty.” 7 U. S. Stat. 492.
July 31, 1855, the said tribes released and discharged the United States from all its obligations and liabilities under former treaties, and, in lieu thereof, accepted other grants and payments, exempting, however, from such relinquishments, the right of fishing and camping secured to them by the treaty of 1820. 11 U. S. Stat. 624.
August 2, 1855, the said Chippewa Indians of Sault Ste. Marie relinquished to the United States, for a valuable consideration, all their interests in this land, as follows:
“The said Chippewa Indians surrender to the United States the right of fishing at the falls of St. Mary’s, and of encampment convenient to the fishing ground, secured to them by the treaty of June 16, 1820.” 11 U. S. Stat. 631.
The land claimed by Adsit under his pre-emption was surveyed by the United States as a reservation for the Indians, and for a long time was treated as such, and Indians resided thereon in wigwams and log-houses until removed by the government. There is no doubt that this tract was set apart for the use of the Indians, and was used and occupied by the Chippewa Indians for encampment, under the reservation of 1820.
But it is claimed by the counsel for the complainant that, under the act of Congress of August 26, 1852, granting the right of way to the State of Michigan for the canal at Sault Ste. Marie, this land is termed and treated as a “Military Beserve” (see 1 Land Laws U. S. 1882, p. 218), and that under the act for settling claims at the Sault Ste. Marie, passed in September, 1850, the military reserve was reduced to its present limits; that it is apparent from the act of August 26, 1852, that, while this tract of 36 50-100 acres was devoted to the use of the Indians for fishing and camping, the appropriation of the land for such purposes was but a temporary one, and the land was not regarded by the government as an Indian reserve, as contemplated by the pre-emption law of 1841, but as a military reserve in connection with the uses of Ft. Brady; that, therefore, the land was subject to Adsit’s entry.
But the right given to these Indians by the treaty of 1820 was a “perpetual” one. There could be no stronger reservation. While the fee may have been vested in the United States of the whole of the 16 miles square, when this so-called “ Indian Beserve” was set apart and appropriated to the use of these Indians for a place of encampment, the land certainly could not be used and occupied by any one else while they accepted and used it, and all the beneficial attributes and belongings of the fee were theirs, as far as any use of the same was concerned. And. after it was so set apart by the government, and accepted and occupied by the Indians, it is very doubtful if the United States could have changed the location of this reservation to some other point, without their consent. To have done so would have been a great moral wrong which only the doctrine that might makes right could have justified. But this was not attempted, and it remained such Indian reservation until it was relinquished by the apparently voluntary act of the Indians themselves. It cannot readily be seen that it differed in any material respect from other Indian reservations, except in this: that it was not in any sense lands' that might be made available for agricultural purposes.
It is undoubtedly true that this reservation was included in the lands through which a right of way was granted by the act of August 26, 1852, but the only reference in the act to it is as to the whole grant, which speaks of “the public lands known as the £ Military Beservation of the Falls at St. Mary’s Biver.’” This particular piece was at one time within the so-called-“Military Reservation/’ or at least surrounded by it, but this did not alter its character, or take away or destroy the Indian reservation, or the rights of the Indians to its. use for the purposes for which it was set apart and reserved in the first place. And Congress by naming these lands as a “military reservation” in the act of August 26, 1852, or by any other legislation, directly or indirectly, could not destroy this Indian reservation, after it had been set apart to the Indians, and used by them, under the treaty of 1820. This piece of land could only be taken away from them, and deprived of its character as an Indian reservation, by its voluntary cession to the United States by the Indians themselves. Railroad Co. v. U. S., 92 U. S. 733, 742, and cases cited.
The reason for the exemption of these lands, after the Indian title is extinguished, from pre-emption, - is a good and substantial one, and in accord with the best public policy. The pre-emption law was a beneficent one, but it was not enacted for purposes of speculation, but to encourage actual and bona fide settlements upon the public lands. The reason is well stated by Mr. Justice Miller of the Supreme Court of the United States in Root v. Shields, 1 Woolw. at page 362, in speaking of the exemption from pre-emption of sections and fractions of sections included within the limits of any incorporated town:
“Whenever a town springs up upon the public lands, adjoining lands appreciate in value. The reasons are obvious, and the fact is well known. * * * g0, too, in respect of lands which have been reserved for the use of an Indian tribe when the Indian title is extinguished, the same may be said. While such lands are held as a reserve, population flows up to their boundaries, and is there stayed. It, of course, constantly grows more and more dense, so that, when the reserve is vacated, the lands have increased in value, and are always eagerly sought after.”
It would, no doubt, under such circumstances, not be in the interest of the government, or of the whole people, to permit the pre-emption of these lands; nor yet the location of .them by scrip, as was done by Chandler in this case. But, as before said, there need be no inquiry into Chandler’s title here', if complainant’s is not good. The government saw fit, in the pre-emption act of 1841, to exempt Indian reservations, even after the Indian title was extinguished, from the provisions of the act. If this land was not appropriated as an Indian reserve, under the treaty of 1820, at the time of the passage of the preemption law of 1841, it was certainly surveyed out and set apart as such as early as 1845, and it was, no doubt, used and treated as such before that time. But the act of 1841 covers all Indian reserves, whether set apart and designated as such before or after the passage of the act. It follows that Adsit could not pre-empt the land, and the complainant has no title to the premises.
The decree of the court below is affirmed, Avith costs.
Champlin, C. J., Cahill and Long, JJ., concurred. Grant, J., did not sit. | [
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Morse, J.
The plaintiff, a locomotive engineer upon a passenger train of the defendant at the time of his injury, brought suit in the Monroe circuit court to recover damages for such injury occasioned by the derailment and wrecking of his train. The court below directed a verdict for the defendant.
The accident .was caused by a misplaced switch, and happened on the evening of Sunday, April 29, 1883, in the township of La Salle, in Monroe county, at about 8:30 o’clock. At this place the line of the Lake Shore & Michigan Southern Eailway Company runs parallel with, and a few rods west of, the line of the Michigan Central Eailroad Company. Some years prior to this time there had been built a track to connect the tracks of the two railroads. The switch which caused the accident was formerly used in connection with this cross-over track, for transferring and passing trains from one road to the other. About a year before the accident, this connecting track went out of use, and the rails of the switch were securely spiked, and the switch abandoned, and the target and lights removed. Some three weeks prior to the injury to plaintiff, these spikes were removed, and the switch put into use again. This was done by trainmen who were running local freight trains in at this place, loaded with material for the construction of side tracks on each side of the main track near this switch. It would appear from the testimony of Mr. Sutherland, division superintendent of this part of the road, that this reopening of the switch for the use of these local trains in storing cars upon this cross-over track was authorized by and known to him, but no notice was given to Mr. Town or any of the engineers or conductors on the passenger trains that the switch was in use again. The target and lights were not restored, nor was there any switch-tender, as there had been when the switch was in use before it was spiked.
In the morning before the accident, plaintiff had run his engine and train, consisting of two cars and a smoker, from Toledo to Detroit, as he was accustomed to do, and was returning to Toledo in the evening. His train was behind time, and ha was running at the rate of 45 to 50 miles an hour. This was no faster than he was permitted to run, and there seems to be no claim that he was running faster than he ought, if there had been no switch in use there. The switch had been partly opened from some cause, and the rails so moved that the flange of the locomotive wheel struck the end of the easterly movable rail about in the middle. The engine was thrown into the ditch and wrecked, and the plaintiff injured. The switch was found to be unlocked. There were two locks upon it, — one, a Michigan Central Railroad lock, which was hanging to a chain and not used, and the other, a Canada Southern Railway lock, was found upon the ground unlocked. Some of the witnesses testified that they examined this Canada Southern lock, and found no marks or bruises upon it; others swear that they examined it the next morning, and found it bruised as if it had been pounded open, and near by they found a fish plate which" had brass upon it, appearing thereby to be the instrument with which the lock had been pounded open, the lock being made of brass. Michael Phelan, who was foreman of the gang of men who were grading for the side tracks, testified that the Canada Southern lock was used because he could not open the Michigan Central lock, and the roadmaster had the section men at his request put on the Canada Southern lock, as he (Phelan) had a key to that. It was customary, when they went in or off of this cross-over track, to lock the switch. He is positive that he locked it between 4 and 6 o’clock p. m. when they quit work on the Saturday before this Sunday of the accident, and he did not unlock it afterwards.
The plaintiff testified, as did also the conductor of his train, that after the switch was abandoned they received notice that the lights from that switch would be taken down, that the agent was removed, and the station shut up. There had been before this "a station there, called “ Otter Creek,” where there was an operator and switch-tender. The conductor testified that he had notice from Sutherland, as he supposed, through one J. B. Morford, of the condition of this station, and that it was to be thereafter nothing more than any other piece of track between stations; that he received this information from an officer of the company. The conductor notified the plaintiff. Both of them swear that they did not know, until after the accident, that the switch was being used, or that it was not spiked and closed, and they therefore treated the track as if there were no switch there.
There can be no dispute from the record that at first there was a switch at this point, with target and lights and switch-tender as long as it was used. When the transferring of cars ceased, this switch was practically abandoned, and the section master securely spiked and closed it about a year before the accident. The target, lights, and tender were removed. The section master knew of its second use, but the target and lights were not restored until after the accident, and the plaintiff was not notified of its use again. It is disputed that he ever received any notice from any officer of • the defendant of the abandonment and closing of the switch, or that he was authorized to treat the track there as if in fact no switch were in existence. It is also claimed that cars were standing on this cross-over track every day for two weeks, and the switch was being used daily for three weeks, before the accident, and he must have known of it. No other notice, however, was shown to him. These disputed questions of fact were matters for a jury.
I think the plaintiff was entitled to go to the jury upon his theory of the case, and the testimony that he produced to support it. It is shown by the rules of the company that an existing switch which is in daily use is recognized as a place of danger, and engineers on passenger trains are required to slow up, and not run faster than 15 miles an hour, in passing one. It is also shown that the lights upon the switch stand are so arranged that, if the switch is out of place and therefore dangerous, the color of the light will at once, and certainly, show the danger. Therefore the closing of this switch, and removing these lights, with notice to plaintiff that the switch was abandoned, and the track thereafter to be treated as if no switch were there, and the subsequent opening of the switch without any notice to plaintiff, and without his knowledge, and its use without such lights, if such lights would' have prevented the accident, make a ease of negligence against the defendant without any fault upon the part of the plaintiff.
There was testimony tending to show that, if there had been lights upon the switch, such lights could have been seen in time, and the train stopped, so as to have prevented any accident. There was also testimony tending to show that the lights could not have been seen in time to prevent the derailment of the train. This dispute was for the jury.
It is contended that the plaintiff cannot recover because the absence of the lights was not the proximate cause of the accident; that, if the switch had been locked, the train would have passed safely by as it was, without any lights; and that the opening or unlocking of the switch was caused either by the intermeddling of some stranger or trespasser, or by the negligence of fellow-servants of the plaintiff; that he could not recover in either event. But I do not so understand it. If the plaintiff’s theory be true, the lights would have prevented any accident in the condition in which the switch was, as they would have warned the plaintiff in time to avoid the danger; so the negligence of the defendant in opening this closed switch for use, without any lights to warn plaintiff of the presence of the switch or its danger, was just as much the proximate cause of the injury as was the turning of the switch rails. And it certainly was a concurrent cause, and the injury in any event, under the plaintiff’s theory and evidence, was occasioned partly through the negligence of' the defendant as to the switch lights, and partly by the condition of the switch rails, in which case the defendant would be liable. 7 Amer; & Eng. Ene. Law, 828. It was the duty of the defendant to have notified the plaintiff of the opening of this switch, or, in the absence of such notice, to have placed over it the customary warning signals, when it had before that time notified him of the practical removal of the switch, and authorized him to treat that portion of the road as if no switch were there, and which he could 'have done in safety if the defendant had not removed the spikes and reopened it for use.
It is also contended by defendant’s counsel that the negligence, if any, in not restoring the switch lights was the negligence of the section master, who was a fellow-servant of the plaintiff, and therefore the plaintiff cannot recover for his injury. But this negligence in using the switch again without notice to the plaintiff, and in not restoring the lights, was not the negligence of the section master. The defendant company abandoned the switch, and shut up the station, and removed the lights in the first place. It was the division superintendent, and not the section master, who directed or authorized the removal of the spikes and the second use of the switch; and in doing this he was the agent of the company. It then became the duty of the defendant, not of the section master, except as he acted under the direction of the company, either to notify the plaintiff that there was a switch in use there, or to restore the lights, if .not to do both, and the negligence in not doing so would be the negligence of the defendant rather than of the section master.
The judgment of the court below is reversed, with costs, and a new tidal granted.
The other Justices concurred. | [
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] |
Per Curiam.
The petition shows that several proceedings have been instituted on behalf of the Commissioners of Parks and Boulevards of Detroit to condemn lands for the opening and widening of that way.- In the condemnation of lands in cities and villages for the use and benefit of the public, the necessity for using such property, and the just compensation to be made therefor, must be ascertained by a jury of freeholders. Const. Art. 15, § 15; Id. Art. 18, § 2.
The sole question presented by the petition in this case is whether a juror who has been summoned and acted upon the jury in a proceeding to condemn a parcel of land, but in which the jury disagreed and were discharged, is competent and qualified to sit and act upon .a subsequent panel in proceedings to condemn the same parcel for the same purposes mentioned in the former petition. We think it clear that he is disqualified, and might have been challenged for cause; and when the juror, before being sworn, was examined as to his qualifications, and denied having formed or expressed an opinion as to the necessity of taking the land for public use, and the party was not aware that he had sat upon a former panel, and had the question submitted to him as a member thereof, and the party did not discover the fact until after the second proceedings had closed, the party is entitled to have the verdict set aside and á new trial before a disinterested and impartial jury.
The mandamus must issue as prayed for in the petition. | [
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] |
McGrath, J.
This is an application for a mandamus to compel the respondent to vacate an order adjudging the relator guilty of contempt.
It appears that in January, 1890, the George T. Smith Middlings Purifier Company, a corporation doing business at the city of Jackson, in the county of Jackson, made an assignment under the statute; and that af ter Avar ds a petition Avas filed by certain creditors, in the circuit court for the county of Jackson, praying that the assignees might be ordered to file a new inventory and appraisal. Pending consideration of this petition, the assignment, the petition, and all matters connected therewith, were removed to the circuit court for the county of Wayne. The validity of such removal was before this Court, and this Court held 'that the circuit court for the county of Wayne had jurisdiction, and •should proceed to exercise it. Kittridge v. Circuit Judge, 80 Mich. 200. The circuit court for the county of Wayne has ever since continued to exercise jurisdiction in the matter of the assignment, and divers and sundry proceedings have been had in the matter in said court. The assignees originally named were removed by said court, and Rufus H. Emerson and Zenas O. Eldred have been appointed receivers in their stead. Relator on January 25, 1890, filed his bill of complaint in the circuit court for the county of Jackson against the then assignees, praying for their removal, and that a receiver be appointed. The cause so commenced was removed to the Wayne circuit court. The assignees were removed, however, upon application made by creditors..
The receivers on January 10, 1891, filed a petition in said Wayne circuit court, setting forth the execution of the assignment aforesaid, by relator, as president of the ■George T. Smith Middlings Purifier Company; that a sale of certain of the real estate of the assignor, situate at •Jackson, was fixed for and was had January 2, 1891; that the relator, in order to prevent persons from bidding at said sale, and to embarrass said receivers in the performance of their duties, on December 31, 1890, filed his bill in the circuit court for the county of Jackson, in •chancery, against said receivers, without leave of said Wayne circuit court, setting forth that the said assignment and the subsequent appointment of said receivers were void; that said receivers threatened to sell said property, and that such sale would constitute a cloud upon the title of said property; arid praying that the receivers be perpetually enjoined from selling said property. The-petition of the receivers further set forth that, upon the bill so filed as last aforesaid, subpoenas were issued, and on the same date were served upon said receivers; and they pray that relator may be enjoined from prosecuting said suit, and that he be punished for contempt for bringing said suit without leave of the Wayne circuit court. It further appears that, upon the filing of said petition, an order was made requiring the said George T. Smith to show cause why he should not be enjoined and punished; that an answer was filed by said George T. Smith, in which he set up that said assignment was a fraud upon him, but he did not deny, but substantially admitted,, the allegations of said petition; that a hearing was had,, whereupon said George T. Smith was adjudged guilty of contempt, ordered to pay a fine, and to discontinue said suit. It is this order which relator asks this Court, to set aside, on the ground that the original ^assignment was-void, as well as all proceedings under it.
In the case above cited, it was held that it was the intention of the Legislature to place assignments under the control of the court acquiring jurisdiction. Under the statute, a new and special jurisdiction is conferred upon the courts over the entire matter of such assignments, the exercise, of which cannot be interfered with by process from other courts. It has been held that a court,, in the exercise of the powers conferred by the statute, is. in effect an insolvency court, and the same general principles applicable to such courts must be applied; that the assigning debtor, the assignee, and all other persons having an interest in_ or upon the estate, are subject alike to the judgment of that court. Hanchett v. Waterbury, 115 Ill. 220; In re Mann, 32 Minn. 60 (19 N. W. Rep. 347). Such courts have the powers of a court of equity. In re Nicholas, 15 Hun, 317. Under the statute (section 8749), the circuit court in chancery of the proper county has supervisory control over all matters arising out of or under the assignment. The court of the proper county is the court having jurisdiction of the matter of such assignment. The receiver stands in the place of the assignee. Barnum Wire & Iron Works v. Speed, 59 Mich. 272.
The forum in which the relator must question the validity of the assignment, if at all, is the court having control and jurisdiction of said matter, and it would be contrary to every principle of law to permit him to attack it elsewhere; nor can the validity of the assignment be tried upon this application.
. The mandamus must be denied, with costs.
The other Justices concurred. | [
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] |
Per Curiam.
Relator was appointed a patrolman of Metropolitan Police of Detroit on June 28, 1887, and qualified and entered upon the discharge of his duties. On October 17, 1890, by direction of the superintendent, charges were preferred against relator in and by which he was charged in general language of “conduct immoral and unbecoming an officer.” Under this charge was a specification charging relator with the commission of a heinous crime, punishable as a felony under the statutes of this State. The relator was duly summoned, and pleaded not guilty to the specification. A large amount of testimony was taken, after which a statement was filed in the case in the office of the board reviewing the testimony, and stating the conclusion reached by the board, in which it is said:
“Wellman may not- be guilty in manner and form as stated in the specification. That he is guilty as charged of conduct immoral and unbecoming an officer ’ is the judgment of the board, and that he is not entitled to the office of patrolman, and should be dismissed from the force.”
This conclusion was adopted as the finding of the board, and the same was recorded by the secretary in the records as follows:
“ That he is guilty as charged of conduct immoral and unbecoming an officer is the judgment of the board, and that he is not entitled to the office of a patrolman, and should be dismissed from the force;”
Upon a review of the testimony, which is annexed to and made a part of the return, we think the board did right in not finding relator guilty of the specification. The testimony to sustain the specification under the general charge was of the most untrustworthy and unreliable character, and entitled to no credit whatever, and Wellman should have been found not guilty without any hesitation on the part of the board; and when a person is found not guilty of the specification, or if he is not found guilty thereof, he cannot be found guilty of the general charge,, for the reason that general charges must be followed by one or more specifications setting forth the offense charged, with particulars or specifications of time and place, with such certainty as will .apprise the person charged of what he is called upon to meet. In the general charge of “conduct immoral and unbecoming an officer” there is no statement of 'what act he was accused of as being immoral or unbecoming an officer, nor when nor where he so conducted himself. It is not required, and it is not expected, that the accused will be called upon to meet such general charge, separate from the specification under it; and it would be manifestly wro,ng to find a member of the force guilty of such general charge, and expel him from the force.
The powers of the' Metropolitan Police Board' are derived from the statute establishing a police government for the city of Detroit. Section 10 of the police act provides for preferring charges before the board touching the character, competency, or affecting the acts, conduct, etc., of any officer or policeman. The board is required, after reasonable notice to the person charged, to proceed with his trial, and the board may make an order of removal, or suspension for some certain period. Section 9 provides that no person, except superintendent, surgeon, attorney, detectives, secretary, and property clerk, shall be removed from the force except upon written charges preferred against him to the board of police, and after opportunity of being heard in his defense, but they may suspend any member of the force pending the hearing of charges against him. See, also, section 5, to the same effect.
This is a case of discipline within the force; and we have no inclination, nor indeed authority, to interfere, except to secure to an accused person his legal rights under the laws of the land. Discretion of the board, exercised in a legal manner, is not open ,to review. But every accused member of the force has the right, secured to him by the law, to have the charges preferred against him reduced to.writing, and sworn to (section 10), and that they specify, with sufficient certainty of time and place to enable him to make his defense, the delinquencies set out in section 10 of the police act. This was not done in this case, and Wellman has not had an opportunity to be heard upon any charge touching his character or competency, or affecting his acts, conduct, or omission, as an officer or policeman, nor for a violation of or misconduct as defined or prescribed by the rules and regulations of the board, which specifies the act complained of, upon which he was found guilty.
The board of police commissioners do not act as a court, and the formal and technical rules of pleading and practice do not. apply to their investigations. While it is important to good discipline that they may act summarily, giving notice and reasonable opportunity to the accused to make his defense, yet the foundation of their proceeding is that written charges shall be made. This implies that the charges shall specify, with reasonable certainty of time and place, the particular conduct or omission of duty complained of; and it is manifest that a member of the force cannot be tried for one offense, and be found guilty of u different offense from that specified. We approve of the principles enunciated in the cases cited by respondent, viz.: People v. French, 110 N. Y. 494 (18 N. E. Rep. 133); People v. Commissioners, 98 Id. 332; Devault v. Camden, 48 N. J. Law, 434 (5 Atl. Rep. 452); People v. French, 32 Hun, 112; State v. Commissioners, 16 Mo. App. 48; Ayers v. Newark, 49 N. J. Law, 173 (6 Atl. Rep. 660). An examination of these cases will show that, under the general charge, there were specifications filed upon which the accused was found guilty. We do not think the board could find Wellman guilty of conduct immoral and unbecoming an officer without any specifications of the charge.
It follows that the findings and sentence of dismissal Bhould be set aside, and Wellman reinstated as a patrolman of said force. Of course this will not prevent further proceedings under proper charges and specifications.
3 Laws of 1871, p. 236.
Act No. 32, Laws of 1882. | [
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] |
Morse, J.
This is an action of trespass on the case for the taking of. a piano, claimed to belong to plaintiff. The piano is one of the articles mentioned in a certain mortgage, which was found to have been wholly paid and satisfied in the case of Bateman v. Blaisdell, 83 Mich. 3571. The defendant is a deputy-sheriff of Kent county, and, at the time of the commencement of this suit, had possession of the piano, under the writ of replevin in that case. On the trial of the case at bar,, the jury returned a verdict in favor of plaintiff for $200.
There is a dispute as to when Scally took possession of the piano under his writ. The writ came into his hands on February 28, 1889, but he did not remove the piano from the house of the plaintiff’s parents until March 2, 1889. He went to the house with his writ for the purpose of executing it on the day it was issued. He was. then informed that the piano belonged to Maud, and he. must not take it. Scally claims he then levied upon it, but others testify that he did not levy on February 28, but said he was not going to take the piano, and kept, on saying so, until March 2, when he removed it by force. The piano was delivered over to Bateman, who-has ever since had the practical possession of it.
On February 28, 1889, this plaintiff, by her next friend, Benjamin S. Harris, commenced a replevin suit against Loomis K. Bishop, sheriff of Kent county, for the recovery of the possession of this same piano,' before Thomas Walsh, a justice of the peace in and for the city of Grand Rapids, which suit was made returnable March 11, 1889. On that day, defendant moved to dismiss the suit. The motion was denied, and the cause adjourned until March 18, 1889, at which time defendant pleaded. The cause, on defendant's motion, was adjourned again until March 25, 1889, at 9 o'clock A. m. On the last-named day and hour, the plaintiff appeared. Defendant did not appear. After waiting one • hour, trial proceeded, and judgment was rendered in favor of the plaintiff, and the damages of the unlawful detention were assessed at 6 cents. The costs were taxed at 18.48. The damages and costs were paid April 1, 1889, and the justice made the following entry on the docket: “This judgment satisfied and discharged, April 1, 1889."
It is claimed by defendant's counsel that this judgment is a complete bar to the plaintiff's action here. This present suit was commenced April 8, 1889. The undisputed evidence in this case is that the 'piano was not removed from the possession of the plaintiff until March 2, 1889, and we are satisfied that, under any view of the case, this was a new and independent taking, after the commencement of the suit before Justice Walsh, and that, therefore, that suit has no connection with the present one that would make the Walsh judgment a bar to this action.
In the light of the affirmance of this Court of the judgment of the Kent circuit court in the case of Bateman v. Blaisdell, the taking by Scally of this piano, under the writ in that case, was an unlawful one in any event. And, if it belonged to the plaintiff in this suit, his taking it from the house, and from her possession, was unlawful, whether he actually levied upon it before or after the suit was commenced before Justice Walsh.
It is objected that testimony was permitted to be introduced that plaintiff had not had the use of the piano since it was taken out of the house. Defendant's coun sel objected to any testimony as to the loss of the use of the piano after the suit was brought, April 8, 1889. The court said:
“ I will take the testimony subject to the objection, and cover it with the charge, and, if I come to the conclusion that it is not admissible, will strike it out on motion of counsel."
In his instructions, he directed the jury to find no damages for any loss of the use of the piano after April 8, 1889. We find no prejudicial error in this action of the court.
There are other assignments of error as to the admission of testimony, but none of them are found to be worthy of discussion.
The declaration contained three counts, the last one being a count in the common form of a count in trover. The other two alleged special damages, by reason of the loss of the use of the piano, in that she was preparing herself, by daily study and practice upon the same, for the profession of a teacher of music, and was, by the taking of the same, greatly hindered and unjustly prevented from carrying on and pursuing her said study and practice, depriving her of the gains and advantages of said study and practice, to her damage; and also by reason of the taking of said instrument by force, and by threats of arrest and imprisonment, if she resisted, or in any way hindered, him from taking the same, he illegally .and wrongfully converted the said piano to his own use, depriving her of all further use of the same, and of the opportunity of further pursuing her said study and practice of music.
It is argued by defendants counsel that, under this declaration, the plaintiff was only entitled to the value of the instrument, and interest upon such value from the day of its taking, which are the usual damages in an action of trover. We are not enabled from tbe record to find whether or not the jury allowed any other damages than the value of the piano,' and interest upon the same, as there was competent testimony showing its value at the time of the taking' to be more than the amount of the verdict. The testimony on the part of the plaintiff was that the piano, at the time it was taken, was worth from $250 to $300. The evidence upon the part of the defendant was that the instrument about two weeks before the trial was worth $50. It was also shown that, in the replevin suit of Bateman v. Blaisdell, under which writ defendant took it, the piano was valued at $250. The plaintiff was only entitled to the value of the piano, and interest upon it. It does not appear to us that she recovered any more than that, and, under the circumstances, considering that Scally removed this piano by force, and without right, after he knew that plaintiff had replevied it from the sheriff, under whom he was acting, and no effort was made by him to have it returned to her after the judgment in favor of her possession in justice’s court, we shall not reverse the judgment for the error in the instruction of the court as to her damages on account of the loss of the use of it.
The judgment is affirmed, with costs.
The other Justices concurred.
This mortgage was given by the plaintiff’s father and mother, and covered certain household goods, as well as the piano; and for a full statement of facts in this regard, see 83 Mich. 357. | [
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Per Curiam.
Plaintiff, Linda M. Sullivan, appeals by leave granted from the May 11, 1989, order of the Workers’ Compensation Appellate Commission, which reversed the hearing officer’s decision and denied her claim for benefits as untimely. We affirm.
Plaintiff was employed by defendant, the Department of Corrections, at Kinross Correctional Facility and worked there until November 9, 1984. It is undisputed that she received sickness or disability benefits from November 9, 1984, until December 18, 1984, at which time she resigned her employment.
Plaintiff filed a claim for benefits on April 16, 1987. A hearing was held on December 8, 1987, and the hearing officer issued a decision dated January 12, 1988, granting her claim. The hearing officer found that plaintiff was partially disabled as a result of her employment with defendant and that she had been unable to find work paying equal or greater wages since her disability. The hearing officer rejected defendant’s argument that plaintiffs claim for benefits was untimely pursuant to § 381(1) of the Workers’ Disability Compensation Act, MCL 418.381(1); MSA 17.237(381X1), which provides in pertinent part:
A proceeding for compensation for an injury under this act shall not be maintained unless a claim for compensation for the injury, which claim may be either oral or in writing, has been made to the employer or a written claim has been made to the bureau on forms prescribed by the director, within 2 years after the occurrence of the injury. ... If an employee claims benefits for a work injury and is thereafter compensated for the disability by worker’s compensation or benefits other than worker’s compensation, or is provided favored work by the employer because of the disability, the period of time within which a claim shall be made for benefits under this act shall be extended by the time during which the benefits are paid or the favored work is provided.
The hearing officer found that plaintiffs receipt of disability benefits from November 9 until December 18, 1984, constituted the receipt of "benefits other than worker’s compensation” within the meaning of the above statute and that defendant’s payment of the disability benefits amounted to recognition of plaintiffs "claim for compensation for the injury” within the meaning of the first sentence of the above statute. The hearing officer therefore concluded that defendant received timely notice of the plaintiffs claim even though her petition was not filed with the Bureau of Workers’ Disability Compensation until more than two years had elapsed.
Defendant appealed to the appellate commission, arguing that the magistrate had misconstrued the statute. On May 11, 1989, the appellate commis sion issued its decision on the merits. The appellate commission found competent, material and substantial evidence on the record to support the hearing officer’s finding of a November, 1984, injury and a mental disability following plaintiffs last day of work. It also found substantial evidence supporting a finding that the disability continued for approximately one year following the November, 1984, injury. Nevertheless, the appellate commission reversed the hearing officer’s award of benefits because it found plaintiffs claim to have been untimely made, stating:
Defendant acknowledges timely receipt from plaintiff of notice of her injury. It is undisputed that, following her last day worked on November 9, 1984, plaintiff received sick leave benefits to December 18, 1984, inclusive. There is no evidence in the record before us that plaintiff thereafter received any type of benefit for her disability. The record substantiates that plaintiff was cognizant that her work exposure was responsible for her emotional condition on her last day worked and thereafter. ... No claim has been made, nor are there any such proofs before us, that plaintiff was in any way physically or mentally incapacitated from making her claim prior to the filing date of her petition on April 16, 1987.
After citing § 381(1), the appellate commission concluded:
Thus, even taking into account, those benefits paid her through December 18, 1984, plaintiff had to have filed her petition or made some other claim for benefits by December 18, 1986 to be successful here. Her failure to file her petition until April 16, 1987 renders her claim untimely.
We agree. Statutes are to be read in their en tirety so as to produce, if possible, a harmonious and consistent construction as a whole. Joy Management Co v Detroit, 176 Mich App 722, 731; 440 NW2d 654 (1989), lv den 433 Mich 860 (1989). Pursuant to the last sentence of § 381(1), quoted above, the appellate commission properly found that the running of the time period for making a claim was tolled while plaintiff received sickness or disability benefits. The appellate commission also properly found that once plaintiff stopped receiving such benefits she was required to make a further claim for workers’ compensation or other benefits, either orally or in writing to the employer or in writing to the bureau. There is no evidence, or even allegation, here that plaintiff made such additional claim until she filed her petition with the bureau in April, 1987. This claim was clearly more than two years after December 18, 1984, when her disability or sickness benefits ended and the tolling of the running of the time limit ceased. Therefore, the appellate commission properly concluded as a matter of law that plaintiff’s claim for benefits was untimely.
Additionally, plaintiff argues that the appellate commission erred in not granting her request for a remand to the hearing officer in order to allow her to introduce into evidence a letter, dated February 25, 1988, addressed to plaintiff from Aetna Life Insurance Company, defendant’s disability insurance provider. This letter purportedly notified plaintiff of a lien claimed by Aetna against any workers’ compensation benefits she might receive and is also claimed to indicate that Aetna paid sickness or disability benefits to plaintiff through May 14, 1985, and not December 18, 1984, as the evidence otherwise indicates. However, we find no abuse of the discretion afforded the appellate commission by MCL 418.861a(12); MSA 17.237(861a) (12), in refusing plaintiff’s request for remand given her complete failure to provide any plausible explanation for her failure at the original hearing to offer the letter or any other evidence, even her own testimony, that she received disability benefits beyond December, 1984. It is undisputed that the timeliness of plaintiff’s claim was questioned at the hearing. We find it impossible to believe that plaintiff did not know of or could not have discovered with reasonable diligence in time for that hearing the additional period of time during which she allegedly received sickness or disability benefits from Aetna.
The order of the appellate commission is affirmed. | [
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Per Curiam.
Plaintiff appeals by leave granted the December 14, 1988, order of the Workers’ Compensation Appeal Board reversing the hearing referee’s decision ordering the Second Injury Fund/Dual Employment Fund to pay sixty-two percent of compensation benefits resulting from the death of plaintiffs husband. The appeal board’s order also dismissed the Second Injury Fund. We affirm.
On September 8, 1982, plaintiffs husband died as a result of a heart attack suffered while he was herding goats on a farm owned by Angora Enterprises in Chippewa County, Michigan. On June 28, 1983, plaintiff filed a petition for benefits with the Bureau of Workers’ Disability Compensation. Plaintiff named Angora as her husband’s employer and listed his weekly wages as: (1) $200 per week from employment with Angora; and (2) $280 per week from employment as a bus driver with the Sault Area Schools. Angora did not maintain any insurance for workers’ compensation benefits.
Subsequently, plaintiff moved to add the Second Injury Fund to her petition alleging that the fund was liable for 58.33 percent of the compensation benefits awarded.
A hearing on plaintiff’s petition was held before a referee on December 14, 1984. Angora did not answer the petition nor did it enter an appearance at the proceedings. Following the hearing, the referee issued a decision granting plaintiff $303.49 in weekly compensation benefits and $1,500 in reimbursement for her husband’s funeral expenses. The referee also ordered the fund to pay sixty-two percent of the weekly benefits and allowable funeral expenses directly to plaintiff.
On April 19, 1985, the fund appealed the referee’s decision to the appeal board. The fund alleged that the referee: (1) erroneously granted plaintiff compensation benefits since the evidence demonstrated that plaintiff’s husband was an independent contractor rather than an employee of Angora; and (2) incorrectly ordered the fund to pay compensation benefits directly to plaintiff in contravention of MCL 418.372; MSA 17.237(372).
The two-member appeal board panel that reviewed the instant case reached different conclusions. Board member Jane S. Colombo found that plaintiff failed to establish that Angora was an agricultural employer subject to the Workers’ Dis ability Compensation Act. Therefore, Angora was exempt from application of the act. Member Colombo also decided that the fund was not liable for benefits since plaintiff had not shown that Angora was subject to the workers’ compensation act.
Alternatively, board member Kenneth Birch found that plaintiff established that Angora was an employer subject to the act and that her husband was an employee and not an independent contractor of Angora. In addition, board member Birch found that the referee properly ordered the fund to pay its portion of benefits directly to plaintiff.
Since the two-member panel could not reach a unanimous decision, a third member, Joseph V. Wilcox, was assigned pursuant to MCL 418.261(2); MSA 17.237(261)(2). This statute provides that, if a two-member appeal board cannot reach a decision, the chairperson of the board shall assign a third member whose determination is controlling and is the final decision of the appeal board. Id.
Board member Wilcox refused to address whether plaintiff established that Angora was an employer subject to the workers’ compensation act because the issue had not been raised before the referee or the appeal board. Member Wilcox then ruled that the referee had erroneously ordered the fund to pay its portion of the benefits awarded directly to plaintiff. However, member Wilcox decided to affirm the referee’s decision insofar as it imposed liability on Angora.
On December 14, 1988, the appeal board entered two orders, one of which affirmed the referee’s decision as to Angora but modified the amount of plaintiff’s weekly compensation award. The other order reversed the referee’s decision with respect to the fund and dismissed the fund from the action.
On January 3, 1989, plaintiff applied for leave to appeal the order dismissing the fund. On June 23, 1989, a panel of this Court entered an order granting leave and directing the parties to address the issue whether plaintiff established that Angora was subject to the workers’ compensation act.
i
On appeal, plaintiff first argues that she established by a preponderance of the evidence that Angora was an agricultural employer subject to the provisions of the workers’ compensation act. However, the Second Injury Fund concedes that Angora satisfied the statutory requirements and was an agricultural employer subject to the act. See MCL 418.115(d); MSA 17.237(115)(d); MCL 418.155(1); MSA 17.237(155X1). Since the parties do not dispute that Angora was an employer under the auspices of the act and Angora never responded to the contrary, we do not see a conflict necessitating our resolution. Therefore, we decline to undertake any further review of this issue.
ii
Plaintiff next contends that the appeal board erred in dismissing the fund and ruling that MCL 418.372(1); MSA 17.237(372X1) precluded the fund from paying compensation benefits directly to plaintiff. We disagree.
Our review of a Workers’ Compensation Appeal Board’s decision is limited to questions of law, and findings of fact are conclusive in the absence of fraud if there is any competent evidence to support them. Const 1963, art 6, § 28; Aquilina v General Motors Corp, 403 Mich 206, 213, n 4; 267 NW2d 923 (1978). However, the appeal board’s decision may be reversed if the board operated within the wrong legal framework or its decision was based on erroneous legal reasoning. Juneac v ITT Hancock Industries, 181 Mich App 636, 639; 450 NW2d 22 (1989).
In the instant case, the statute at issue, MCL 418.372(1); MSA 17.237(372)(1), provides:
If an employee was engaged in more than 1 employment at the time of a personal injury or a personal injury resulting in death, the employer in whose employment the injury or injury resulting in death occurred is liable for all the injured employee’s medical, rehabilitation, and burial benefits. Weekly benefits shall be apportioned as follows:
(a) If the employment which caused the personal injury or death provided more than 80% of the injured employee’s average weekly wages at the time of the personal injury or death, the insurer or self-insurer is liable for all of the weekly benefits.
(b) If the employment which caused the personal injury or death provided 80% or less of the employee’s average weekly wage at the time of the personal injury or death, the insurer or self-insurer is liable for that portion of the employee’s weekly benefits as bears the same ratio to his or her total weekly benefits as the average weekly wage from the employment which caused the personal injury or death bears to his or her total weekly wages. The second injury fund is separately but dependently liable for the remainder of the weekly benefits. The insurer or self-insurer has the obligation to pay the employee or the employee’s dependents at the full rate of compensation. The second injury fund shall reimburse the insurer or self-insurer quarterly for the second injury fund’s portion of the benefits due the employee or the employee’s dependents. [Emphasis added].
The emphasized language in subsection (l)(b) plainly states that the Second Injury Fund "shall reimburse the insurer or self-insurer” Where a statute is clear and unambiguous, judicial construction or interpretation is precluded. Land v George Schmidt Co, 122 Mich App 167, 170; 333 NW2d 30 (1982), lv den 417 Mich 1083 (1983). In addition, Michigan has long recognized the rule of statutory construction that the express mention of certain things implies the exclusion of other similar things. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). Therefore, we are compelled to abide by the language of MCL 418.372(l)(b); MSA 17.237(372)(l)(b) and rule that payments by the fund cannot be made directly to a claimant (plaintiff) or an uninsured company (Angora). The statute clearly requires that payments shall be made only to an employer’s insurer or a self-insured employer.
While the above conclusion leads to an unfortunate result for plaintiff, we do not believe it is within our power to redefine the clear language of the statute. It is within the purview of the Legislature to effectuate any changes. As a factual matter, the Legislature has taken such steps through House Bill No. 5103, which addresses situations like the instant case where an employee of an uninsured employer cannot collect benefits under the workers’ compensation act. This proposed legislation would give employees of uninsured employers protection under the act.
Since the Legislature has already commenced action, we believe that we should defer to the legislative process. Therefore, we find that MCL 418.372(l)(b); MSA 17.237(372)(l)(b), in its present form, precluded the fund from making payments directly to plaintiff. Board member Wilcox was correct in his ruling that the referee erroneously ordered the fund to pay its portion of benefits to plaintiff.
In light of the foregoing conclusion, we affirm the December 14, 1988, order of the appeal board dismissing the Second Injury Fund.
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Gribbs, J.
This consolidated appeal arises out of the June 11, 1982, arson and shooting at the Detroit Buhl Building in which one person was killed and several others were seriously injured. Defendant Gerald Harrington (Gerald) appeals by leave granted from the denial of defendants’ motions for partial summary disposition. We reverse.
At approximately 11:00 A.M., on June 11, 1982, Gerald received a telephone call at work from his sister-in-law, Katherine Harrington. Katherine told Gerald that Gerald’s brother, Robert Harrington, was going to the law firm of Bell & Hudson, P.C., to demand the return of his $2,500 retainer. Bell & Hudson’s offices were located in the Buhl Building. Katherine said that Robert "just left” and that he was carrying a shotgun, a pistol and a jar of gasoline.
Gerald believed it would take Robert some time to reach the downtown office. He decided to walk over to Bell & Hudson’s offices, approximately five minutes away, to warn them about his brother. Before he left, Gerald telephoned a family-owned party store to see if Robert was there. Gerald left for Bell & Hudson’s office one or two minutes after receiving Katherine’s telephone call.
When Gerald arrived at the Buhl Building, he stopped to check the building directory for Bell & Hudson’s suite number. While he was standing in front of the directory he heard someone shout to a security guard that a shot had been fired in Bell & Hudson’s office. Gerald went up the elevator and arrived in Bell & Hudson’s reception area at approximately 11:15 a.m. Gerald found his brother Robert in one of the corridors. Robert was in a crouched position, holding a shotgun. By the time Gerald arrived, Robert had already used the gasoline to start a fire in the offices and had already killed Eve August and wounded Edward Bell. Several other firm employees suffered serious injuries when they fell from the eighth-floor windows in an attempt to escape the gunman and fire.
Although Robert threatened him and fired additional shots, Gerald argued and struggled with his brother until police arrived.
Robert Harrington was convicted of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment without parole.
Three separate actions were filed against Gerald Harrington and others for the personal injuries sustained during this incident. Plaintiffs generally contended that Gerald owed a duty of reasonable care to plaintiffs because of Gerald’s special relationship to his brother, Robert Harrington. Plaintiffs also alleged that once Gerald rendered assistance to plaintiffs he was required to use reasonable care.
Gerald Harrington moved for summary disposition in all three cases, arguing that he owed no duty to plaintiffs to protect them from his brother. The trial court denied Gerald Harrington’s motion, ruling that there was a question of fact concerning Gerald’s duty that should be decided by a jury. We disagree.
The threshold question in any negligence action is whether the defendant owed a legal duty to the plaintiff. Papadimas v Mykonos Lounge, 176 Mich App 40, 45; 439 NW2d 280 (1989), lv den 433 Mich 909 (1989); Cook v Bennett, 94 Mich App 93, 97-98; 288 NW2d 609 (1979). Unless the defendant owed a duty to the plaintiff, the negligence analysis cannot proceed further. Id. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” Moning v Aliono, 400 Mich 425, 438-439; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). Questions of duty are generally for the court to decide. Moning, supra at 437.
In this case, plaintiffs’ theories against Gerald Harrington allege nonfeasance, or failure to act, by not calling the police or plaintiffs in a timely manner to warn them of Robert Harrington’s intentions. As a general rule, a private person has no duty to protect another from a criminal attack by a third person in the absence of some special relationship between the parties or some special circumstance. Roberts v Pinkins, 171 Mich App 648, 652; 430 NW2d 808 (1988), lv den 432 Mich 903 (1989). "Special relationships” recognized un der Michigan law include landlord-tenant, Samson v Saginaw Professional Bldg, Inc, 393 Mich 393; 224 NW2d 843 (1975), proprietor-patron, Askew v Parry, 131 Mich App 276; 345 NW2d 686 (1983), employer-employee, Blake v Consolidated Rail Com 129 Mich App 535; 342 NW2d 599 (1983), residential invitor-invitee, Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965), psychiatrist-patient, Hinkelman v Borgess Medical Center, 157 Mich App 314, 321-322; 403 NW2d 547 (1987), lv den 428 Mich 905 (1987), and doctor-patient, Duvall v Goldin, 139 Mich App 342; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985). As plaintiffs argue, three members of our Supreme Court held in Farwell v Keaton, 396 Mich 281, 292; 240 NW2d 217 (1976), reh den 397 Mich 958 (1976), that a special relationship arose between social companions "engaged in a common undertaking.” We note that we are not bound by plurality decisions of the Supreme Court. Li v Wong (On Remand), 170 Mich App 256, 260; 428 NW2d 36 (1988), lv gtd on other grounds 432 Mich 891 (1989). In any event, since there is no evidence in this case of a common undertaking, we believe Farwell is distinguishable.
Special circumstances can also give rise to a duty. When a person voluntarily attempts to aid a victim and takes control of the situation, he must use due care or act so as not to unreasonably endanger the person or property of another. Far-well, supra at 287-288; Schenk v Mercury Marine Division, Lowe Industries, 155 Mich App 20, 25; 399 NW2d 428 (1986), lv den 428 Mich 885 (1987). Liability will only be imposed when the voluntary rescuer’s actions increase the original damage. Schenk, supra at 25-26.
In this case, the alleged "special relationship” is based upon the fact that Gerald and Robert Harrington are brothers. We reject the premise that this family relationship is sufficient to impose a duty on Gerald to protect the general public from his brother. See Petersen v Heflin, 163 Mich App 402, 407; 413 NW2d 810 (1987).
Nor can a duty be imposed in this case because of Gerald Harrington’s voluntary attempt to warn plaintiffs about his brother. The actions of Gerald did not increase the danger and may, in fact, have prevented further damage. As plaintiffs suggest, it is possible (but not certain) that Gerald could have been a more effective rescuer had he telephoned Bell & Hudson instead of walking to their office. Despite the tragedy to all involved, we do not believe retrospective wisdom justifies imposition of a legal duty in this case.
Reversed. | [
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] |
G. S. Allen, J.
In this declaratory judgment action, which raises a question of first impression in Michigan, we are asked to set aside the trial court’s grant of summary disposition in favor of plaintiff, Hawkeye-Security Insurance Company, and to conclude that Hawkeye possesses a duty to defend or indemnify defendant, Vector Construction Company, under the terms of a contract of insurance entered into between the parties. We cannot do that which is asked of us.
i
The material facts are not in dispute. BartonMalow Company, a general contractor in the construction field, entered into a subcontract with Vector, a concrete contractor, on April 5, 1984, pursuant to which Vector agreed to provide all labor, materials and equipment necessary to perform all of the concrete work involved in certain improvements to be made at the Delta Township waste water treatment plant. Vector then contracted with Boichot Concrete Company to provide Vector with concrete meeting certain project specifications. Boichot delivered the concrete to Vector during July, August, and September, 1985. Vector used this concrete to construct the roof of the grit building at the plant. The concrete was also used to construct other improvements to the plant. After the concrete had been poured, testing revealed that the concrete failed to comply with project specifications. Consequently, Delta Township, owner of the plant, demanded corrective measures be taken. Vector removed and repoured 13,000 yards of concrete.
Subsequently, Vector filed suit against Boichot, alleging breach of contract, breach of express and implied warranties, and negligence. Barton-Malow filed suit against Vector alleging breach of contract, and against Boichot, alleging negligence, breach of express and implied warranties, and breach of contract under a third-party beneficiary theory.
Vector, in addition to filing suit against Boichot, notified Hawkeye, its insurance carrier, of the incident and filed a claim with Hawkeye. Hawkeye denied coverage and filed a complaint for declaratory relief on February 13, 1987, in Clinton Circuit Court. On Vector’s motion venue was changed to Ingham Circuit Court.
Hawkeye moved for summary disposition under MCR 2.116(0(10) on April 6, 1988. By opinion and order dated April 22, 1988, the court granted Hawkeye’s motion, finding in part:
Said policy, when read as a whole, is unequivocal in that it does not provide coverage for property damage to work product due to faulty workmanship. The defect in the concrete supplied to Respondent by its supplier does not constitute an "occurrence” as defined in the policy. Further, the exclusions under the broad form comprehensive general liability policy endorsement excludes [sic] coverage for the restoration, repair or replacement of property, not on the premises of the insured, which has been made or is necessary by reason of faulty workmanship by or on behalf of the insured.
Vector’s motion for reconsideration was denied on May 16, 1988. Vector now appeals as of right.
ii
A trial court may summarily dispose of a claim where, except as to the amount of damages, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10). Before the court may summarily dispose of a claim under this court rule, the court must determine whether a record might be developed which might leave open an issue upon which reasonable minds could differ, giving the benefit of reasonable doubt to the nonmovant. Dumas v Automobile Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988). All inferences are to be drawn in favor of the nonmovant. Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987), lv den 430 Mich 887 (1988). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v Frantz, 168 Mich App 43, 48-49; 424 NW2d 25 (1988).
iii
Vector secured from Hawkeye the insurance policy in question. This policy contains two sections, one defining the parameters of property coverage and a second defining the parameters of comprehensive general liability coverage. The latter includes coverage for all sums which Vector becomes legally obligated to pay as damages arising from bodily injury or property damage "caused by an occurrence.” The insurance contract defines "occurrence” as follows:
"[0]ccurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured ....
The contract does not define the term "accident.”
In Frankenmuth Mutual Ins Co v Kompus, 135 Mich App 667, 678; 354 NW2d 303 (1984), lv den 421 Mich 863 (1985), a panel of this Court, being called upon to define the term "accident” as contained in an insurance contract definition of "occurrence” which is substantially similar to the definition quoted in the preceding paragraph, adopted the following definition:
" 'An "accident,” within the meaning of policies of accident insurance, may be anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected by the person injured or affected thereby—that is, takes place without the insured’s foresight or expectation and without design or intentional causation on his part. In other words, an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.’ ” Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12, 18-19; 123 NW2d 143 (1963), quoting 10 Couch on Insurance (2d ed), § 41:6, p 27.
Vector argues that its defective workmanship, e.g., use of inferior concrete supplied to it by Boichot, gave rise to causes of action against Boichot sounding in negligence and breach of warranty and that misdeeds that give rise to such causes of action have been held by courts in other jurisdictions to constitute "accidents” for purposes of establishing "occurrences” within the meaning of similarly worded insurance contracts. Whether Vector’s alleged defective workmanship constitutes an accident/occurrence within the meaning of the insurance contract is a question of first impression in Michigan.
Vector relies on Bundy Tubing Co v Royal Indemnity Co, 298 F2d 151 (CA 6, 1962), in support of its argument. In that case, Bundy manufactured thin-walled steel tubing which building contractors and plumbers installed in concrete floors for use in radiant heating systems. Id. Some of the tubing manufactured by Bundy contained defects that caused the tubing to fail and leak. Several parties then sued Bundy to recover damages to property sustained by reason of the defective tubing. The suits alleged negligence in the manufacture of the tubing or breach of warranty or both. Royal, Bundy’s insurer, defended three of eight suits filed against Bundy. They refused to defend the remaining five suits. Thereafter, Bundy sued Royal seeking to recover the amounts paid out in satisfaction of a judgment rendered against it, in settlement of claims, and in costs and expenses incurred in defending the five suits Royal refused to defend. Id. at 151-152.
At issue in Bundy’s suit against Royal was the extent of liability coverage offered in two policies of liability insurance that Royal had issued to Bundy. Both policies contained identical provisions which provided that Royal would pay all sums which Bundy became legally obligated to pay as damages arising from "injury to or destruction of property, including the loss of use thereof, caused by accident.” Id. at 152. (Emphasis added.) Additionally, both policies contained a clause excluding coverage for "injury to or destruction of . . . any goods or products manufactured, sold, handled or distributed [by Bundy] . . . out of which the accident arises.” Id.
The district court held that no duty to defend or indemnify arose under the provisions of the insurance contracts as each of the suits filed against Bundy involved claims of breach of warranties or of negligence and, therefore, the damages were not caused by accident. Id.
The United States Court of Appeals for the Sixth Circuit disagreed with the district court’s finding that no property was damaged as a result of an accident:
In our opinion, property was damaged by the installation of defective tubing in a radiant heating system which caused the system to fail and become useless. A homeowner would never have such equipment installed if he knew that it would last only a very short time. A home with a heating system which did not function would certainly not be suitable for living quarters in the wintertime. The market for its sale would be seriously affected.
The failure of the tubing in the heating system in a relatively short time was unforeseen, unexpected and unintended. Damage to the property was therefore caused by accident. [Id. at 153.]
The court also disagreed with the district court’s conclusions as to the effect the nature of the claims asserted against Bundy had on the scope of coverage.
The fact that the claims here involved breach of warranty or negligence did not remove them from the category of accident. Bundy would not be legally obligated to pay a claim arising out of an accident occurring without its negligence or breach of warranty. If the liability policy were construed so as to cover only accidents not involving breach of warranty or negligence, then no protection would be given to the insured. The insured would not need liability insurance which did not cover the only claims for which it could be held liable. The word "accident” is common in most liability policies and should not be construed in this type of case as not including claims involving negligence or breach of warranty. [Id.]
The court then concluded that the exclusionary clauses contained in each of the insurance contracts eliminated recovery "for the value of the defective tubing or the cost of new tubing to replace it.” Id. However, because the failure of the tubing constituted an accident which damaged the property of others, Royal was obligated to indemnify Bundy for sums arising out of damage done to the property, including "[t]he cost of removing defective tubing and the cost of installing new tubing.” Id. at 154.
We find Vector’s reliance on Bundy misplaced. Bundy stands for nothing more than the proposition that an insurer must defend and may become obligated to indemnify an insured under a general liability policy of insurance that covers losses caused by "accidents” where the insured’s faulty work product damages the property of others. In the instant case Vector seeks what amounts to recovery for damages done to its own work product, and not damage done to the property of someone other than the insured. Instead, we find the case of McAllister v Peerless Ins Co, 124 NH 676; 474 A2d 1033 (1984), to be more instructive.
In McAllister, the plaintiff operated a landscape and excavation business. In 1979, a gentleman named Finkelstein hired McAllister to landscape his property and to construct a leach field on it. In 1980, Finkelstein sued McAllister for breach of contract, alleging faulty workmanship in constructing the leach field and in performing the landscaping and seeking damages "to pay for correcting the allegedly defective work.” Finkelstein did not assert that McAllister’s defective work caused damage to any property other than the work product. Moreover, he did not claim any damage to the work product other than defective workmanship. Id. at 678.
In response to Finkelstein’s suit, McAllister filed a declaratory judgment action to determine coverage. Id. The New Hampshire Supreme Court found no coverage under the policy issued to McAllister by Peerless Insurance Company. Id. at 679. In so doing, the court analyzed the definition of "occurrence” contained within the policy issued to McAllister, which is almost identical to the definition at issue here, and concluded:
The fortuity implied by reference to accident or exposure is not what is commonly meant by a failure of workmanship. . . . Despite proper deference, then, to the reasonable expectations of the policyholder, ... we are unable to find in the quoted policy language a reasonable basis to expect coverage for defective workmanship. [Id. at 680.]
The court then went on to hold that a general grant of coverage contained in a general coverage provision does not give rise to coverage for the cost of correcting defective work. Id. 680-681.
We agree with both the reasoning and the conclusion as expressed by the McAllister court. Accordingly, we hold that the defective workmanship of Vector, standing alone, was not the result of an occurrence within the meaning of the insurance contract. Summary disposition was properly granted on this issue.
iv
Vector next appears to argue that regardless whether the use of inferior concrete constituted an occurrence within the meaning of the insurance contract it is still entitled to coverage because the removal and replacement of the grit building roof constituted "physical injury to or destruction of tangible property” within the meaning of "property damages” as defined by the contract and, under the terms of the insurance contract, "Hawk-eye must pay all sums that Vector had become legally obligated to pay because of property damage.” Vector is mistaken.
The insurance contract defines "property damages” as either:
(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period ....
This definition appears under the heading "Definitions Applicable To Section II.” Section II requires that property damages arise out of an "occurrence” before Hawkeye is required to provide coverage. As the use of inferior cement does not constitute an occurrence within the meaning of the insurance contract, the condition precedent for seeking coverage for property damage has not been met. This definition does not give rise to a duty to defend or indemnify.
v
Vector argues that the trial court incorrectly relied on exclusion (n) in granting summary disposition to Hawkeye. Exclusion (n) provides:
This insurance does not apply
to property damage to the named insured’s products arising out of such products or any part of such products ....
Vector asserts that this exclusion, contained in the main text of the insurance contract, is superseded by three endorsements or riders to the general insurance contract. We disagree.
When a conflict arises between the terms 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, 392; 225 NW2d 776 (1975).
Vector first asserts that exclusion (n) is superseded by the language set forth on the cover sheet of the "Special Multi-Peril Policy” endorsement. This language provides in pertinent part:
In consideration of the payment of premium and in reliance upon the staements [sic] in the Declarations and subject to the Limit of Liability, Exclusions, Conditions, and other terms of this policy, the Company . . . agrees with the insured ... to provide coverage with respect to those designated premises, coverages and kinds of property for which a specific limit of liability is shown in the Declarations.
This language is merely a preface to the "Special Multi-Peril Policy.” It states only that coverage is supplied as indicated in the policy and the exclusions. Accordingly, it does not contradict and hence supersede exclusion (n).
Vector’s second assertion is that an "Extension Schedule,” form no. GL 200940183, supersedes exclusion (n). On this schedule, underneath the heading "Description of Hazards,” the following language appears:
Concrete Construction-including foundations, making, setting up or taking down forms, scaffolds, false-work or concrete distributing apparatus ....
When construing the language of an insurance contract, we give such language its ordinary and plain meaning and avoid technical and strained constructions. Thomas v Vigilant Ins Co, 156 Mich App 280, 282; 401 NW2d 351 (1986), lv den 428 Mich 895 (1987). If, after reading the entire contract, the language can be reasonably understood in differing ways, the ambiguity is to be liberally construed against the insurer. Powers v DAIIE, 427 Mich 602, 623-624; 398 NW2d 411 (1986).
Turning to the schedule in question, we believe that it is reasonable to infer that a form labeled "Extension Schedule” extends coverage to those items listed on the schedule, including "concrete construction.” Our conclusion is bolstered by the following observations about the schedule. First, the schedule lists, next to each item, a premium base, a premium rate, and an advanced premium. Second, at the end of the schedule is the phrase "Additional Coverages,” with reference to an attachment. Third, form no. GL 200940183 is expressly listed on the policy declaration sheet as "applying to Section II” of the insurance contract. Accordingly, we conclude that the schedule does extend coverage to concrete construction.
We also conclude that the term "concrete construction” is ambiguous and, by the insurance contract’s terms, is not so limited as to exclude construction of a concrete roof.
However, we do not believe our reading of the Extension Schedule is at odds with exclusion (n). In McAllister, 124 NH 678-680, the court drew a distinction between coverage of property damage resulting from the defective work product and coverage of damage to the work product itself. The court concluded that the former was covered while the latter was not. McAllister, supra. We believe that this distinction is properly drawn and equally applicable in the instant case. Reading the general insurance contract provisions in conjunction with the Extension Schedule we can only conclude that the schedule extends coverage to Vector for property damage resulting from inadequate concrete construction, e.g., property of a third party damaged when the concrete roof falls in oh that property. Exclusion (n) excludes coverage for damage to the work product, as occurred in the instant case. Accordingly, we conclude that the extension schedule and exclusion (n) are not in conflict and that the former does not supersede the latter.
Vector’s third and final assertion is that the following language contained in the "Broad Form Comprehensive General Liability Endorsement” supersedes exclusion (n). The language of this endorsement provides in pertinent part:
(A) The definition of incidental contract is extended to include any oral or written contract or agreement relating to the conduct of the named insured’s business.
(B) The insurance afforded with respect to liability assumed under an incidental contract is subject to the following additional exclusions:
(4) to any obligation for which the insured may be held liable in an action on a contract by a third party beneficiary for bodily injury or property damage arising out of a project for a public authority; but this exclusion does not apply to an action by the public authority or any other person or organization engaged in the project .... [Emphasis added.]
This endorsement appears on form no. GL 204040682, and this form number is listed on the policy declaration sheet as "applying to Section II.” As previously pointed out, there is no liability under § II absent an "occurrence.” Without an occurrence giving rise to initial coverage, the endorsement is meaningless.
In light of the foregoing, we do not believe that reversal is warranted for any of the reasons asserted by Vector.
VI
Vector’s final argument is that the exception to exclusion (a), when read together with exclusions (n) and (o), creates an ambiguity in the insurance contract which must be construed in favor of coverage. Again, we disagree with Vector’s argument.
The exclusions at issue provide:
This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
(n) to property damage to the named insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith ....
In Stillwater Condominium Ass’n v American Home Assurance Co, 508 F Supp 1075 (D Mont, 1981), aff'd 688 F2d 848 (CA 9, 1982), cert den 460 US 1038; 103 S Ct 1429; 75 L Ed 2d 789 (1983), the United States District Court for the district of Montana addressed the exact issue now before us. In resolving this issue, the court emphasized that exclusionary clauses limit the scope of coverage provided under the insurance contract; they do not grant coverage. Id. at 1079. Moreover, the court pointed out that each individual exclusion refers, not to the other exclusions, but to the hazards insured against by the insurance contract. Accordingly, “exclusions are to be read 'with the insuring agreement, independently of every other exclusion.’ ” Id., quoting Weedo v Stone-E-Brick, Inc, 81 NJ 233, 248; 405 A2d 788 (1979). The court then stated:
Further, the Weedo analysis is consistent with the all-risk nature of the cgl policy. To reiterate, the facts alleged in the Stillwater action are within the coverage of the insuring agreement standing alone. The exception to exclusion (a) preserves that coverage and brings it back within the broad all-risk coverage of the insuring agreement. Exclusions (1) and (m), the business risk or work product exclusions, however, remove the occurrences of the Stillwater action from the coverage granted by the insuring provision. The occurrences of the Stillwater action are not covered because the condominiums which are the basis of the damage are "the named insured’s products” (exclusion [1]), and "work performed by or on behalf of the named insured” (exclusion [m]).
Plaintiff, however, urges the following analysis. The exception to exclusion (a) "grants” coveragé for the occurrences of the Stillwater action. Exclusions (1) and (m) (the business risk exclusions) take away, or are in juxtaposition with, the coverage "granted” in the exception to exclusion (a). Therefore ambiguity arises and coverage results. See, e.g. Commercial Union Assur Companies v Gollan, [118 NH 744] 394 A2d 839, 842 (1978). This analysis, however, is inapposite because the coverage supposedly "granted” by the exception to exclusion (a) has already been granted in the insuring provision. Having been granted in the insuring provision, that coverage is subject to the limitation of each and every exclusion, [id.]
Therefore, the court concluded that no ambiguity was created by the three exclusions. Id. at 1079-1080.
We find the logic of Stillwater persuasive. Therefore, we conclude that the exclusions are not to be read cumulatively, but individually. Doing so, we conclude that each, standing alone, is clear and unambiguous. Exclusion (a) and the exception contained therein do not create coverage. Moreover, a reasonable and practical construction of the exclusions reveals that they apply as found by the trial court. The trial court properly granted summary disposition. But see Fresard v Michigan Millers Mutual Ins Co, 97 Mich App 584; 296 NW2d 112 (1980), afFd by an equally divided Court 414 Mich 686 (1982), reh den 417 Mich 1103 (1983).
VII
For all these reasons we conclude that the insurance contract in question does not extend coverage to Vector on the circumstances of this case. Accordingly, the trial court properly granted summary disposition in favor of Hawkeye.
Affirmed.
The panel in Fresard adopted the minority view. See St Paul Surplus Lines Ins Co v Diversified Athletic Services, 707 F Supp 1506, 1510 (ND 111, 1989). | [
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Per Curiam.
Following a jury trial, defendant was convicted of possession of an open liquor container in a motor vehicle. MCL 436.34a; MSA 18.1005(1). Defendant claimed that his sentence should have been the $40 penalty which would have been imposed pursuant to a schedule of fines authorized by the district court if he had pled guilty. MCL 600.8391; MSA 27A.8391. Defendant relied on People v Courts, 401 Mich 57, 61-62; 257 NW2d 101 (1977), where our Supreme Court stated:
The establishment of a Traffic Violations Bureau and a scheduled fine system creates for the traffic court defendant a circumstance different from the ordinary criminal case where the defendant is subject to the judge’s sentence discretion whether he pleads guilty or is convicted after a trial. A traffic court defendant, if he pleads guilty to certain offenses within any time limits that may be prescribed therefor, can be assured that he will be fined exactly the same amount as any other person pleading guilty to the same offense no matter how disparate the prior driving records of the two defendants may be.
We note that the statute limits the use of scheduled fines to those less serious traffic offenses. For those offenses, it has apparently been decided that a pre-determined fine may be levied in every case. There need be no examination, consideration of the history of the offender, or evaluation of extenuating circumstances. There is no pretense that a scheduled fine system represents an exercise of discretion.
Our concern is that the court’s practice of individualizing punishment for offenses covered by the schedule of fines may result in a defendant receiving a penalty for exercising the right to trial. Since under present doctrine there is no review of the judge’s exercise of sentencing discretion, the judge may in any case in which the defendant has any prior driving record justify an increased sentence nominally because of the prior record, but in actuality as a penalty for exercising the right to trial.
We view the adoption of a scheduled fine system as a judicial declaration that individualized punishment for the offenses covered is neither required nor permitted.
The district court rejected defendant’s argument, finding that it was not unconstitutional to impose a higher penalty than it would have had he pled guilty, relying on People v Rivers, 147 Mich App 56; 382 NW2d 731 (1985). Defendant was sentenced to six months of probation with ten days to be served in the county jail if he failed to successfully complete his probation. Moreover, defendant was ordered to pay $130 in fines, costs and fees.
Defendant then appealed to the circuit court. The circuit court held that Courts had been superseded by People v Coles, 417 Mich 523; 339 NW2d 440 (1983), which provided for appellate sentencing review. Defendant filed an application for leave to appeal. We granted defendant’s application, and now reverse the decisions below and remand the case to the district court for modification of defendant’s sentence in accordance with the fee schedule and the imposition of reasonable court costs.
While Coles created appellate sentencing review which did not exist when Courts was decided, we do not believe that Coles requires Courts to be disregarded. As noted in Courts, this type of case is distinguishable from the normal plea-bargaining situation in that defendant’s sentence is not determined by his background. As also noted in Courts, while the trial court may nominally state that defendant’s background requires a longer sentence, as it did in the instant case, the sentence, in actuality, could have been imposed because defendant exercised his right to trial. Id. In sum, we believe that our Supreme Court’s holding, that the adoption of a scheduled fine system is a judicial declaration that individualized punishment for the offenses covered is neither required nor permitted, remains viable even in light of Coles and Rivers.
Reversed and remanded to the district court for modification of defendant’s sentence pursuant to the fee schedule, together with reasonable court costs. | [
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] |
Holbrook, Jr., J.
This is a foreclosure action arising out of defendant’s breach of a May 20, 1986, land contract to purchase plaintiffs’ property located at 125 South Washington in Oxford, Michigan. Defendant appeals as of right an Oakland Circuit Court order dated March 29, 1989, granting plaintiffs’ motion for summary disposition, pursuant to MCR 2.116(0(10). On appeal, defendant claims foreclosure was improper since at the time plaintiffs’ complaint was filed defendant was not in default within the land contract’s acceleration period. We agree.
On May 20, 1986, plaintiffs conveyed property by land contract to defendant. The relevant portions of the land contract provide:
(g) That should Purchaser fail to perform this contract or any part thereof, Seller immediately after such default shall have the right to declare this contract forfeited and void, and retain whatever may have been paid hereon, and all improvements that may have been made upon the land, together with additions and accretions thereto, and consider and treat Purchaser as his tenant holding over without permission and may take immediate possession of the land, and Purchaser and each and every other occupant remove and put out. If service of a notice of forfeiture is relied upon by Seller to terminate rights hereunder, a notice of intention to forfeit this contract shall have been served at least fifteen (15) days prior thereto.
(h) That if proceedings are taken to enforce this contract by equitable action, after Purchaser shall have been in default for a period of forty-five (45) days or more, the entire amount owing hereon shall be due and payable forthwith, anything herein contained to the contrary notwithstanding.
(i) That time shall be deemed to be of the essence of this contract.
As provided in the land contract, defendant made monthly payments of $700 for the length of the contract, due on the twentieth day of every month. On the anniversary of the contract, defendant was required to make an additional balloon payment of $1,500 in addition to the monthly payment of $700, an amount totaling $2,200. Defendant also agreed to pay all property taxes and special assessments.
For the most part, defendant made her monthly payments but not always on time. According to plaintiffs’ figures, defendant was late on fourteen of the twenty-seven payments which were received prior to the commencement of the litigation. As of March of 1988, defendant’s payments were current. In the spring of 1988, plaintiffs contacted the Oakland County Treasurer and learned that defen dant had yet to pay the 1987 property taxes, which were due February 14, 1988. Plaintiffs further learned that defendant had also been late on the 1986 property taxes. However, plaintiffs took no action and chose not to accelerate the contract. On April 27, 1988, defendant made her April payment. However, defendant failed to make her May payment, including the balloon payment when it came due. On June 8, 1988, plaintiffs served defendant with notice of intention to forfeit the land contract, stating that she failed to pay the property taxes and failed to make the May 20, 1988, payment. On June 13, 1988, defendant sent plaintiffs two checks totaling $2,200 to cover the May payment. On June 14, 1988, defendant paid the delinquent property taxes. On July 1, 1988, defendant made the June payment. On July 25, 1988, defendant made the July payment.
On August 31, 1988, plaintiffs brought suit in Oakland Circuit Court, seeking to foreclose on the land contract. Plaintiffs alleged that defendant failed to make monthly payments as agreed and, together with the annual property tax payments, failed to make any payments since June of 1988. On September 12, 1988, defendant sent a check for $1,400 to cover the August and September payments. However, plaintiffs refused to accept the payment.
On November 23, 1988, defendant moved for summary disposition, claiming that at the time plaintiffs filed their complaint no default was outstanding. On December 21, 1988, the court heard oral arguments on defendant’s motion. On January 5, 1989, the court entered an order denying defendant’s motion for summary disposition.
On January 23, 1989, plaintiffs moved for summary disposition, pursuant to MCR 2.116(0(10). On March 1, 1989, the court heard oral arguments concerning plaintiffs’ motion and thereafter granted the motion. A judgment of foreclosure was thereafter entered. Defendant appeals as of right.
MCL 600.3110; MSA 27A.3110 provides:
Whenever a complaint is filed for the satisfaction or foreclosure of any mortgage on real estate or land contract, upon which there is due any interest or any portion or installment of the principal and there are other portions or installments to become due subsequently, the complaint shall be dismissed upon the defendant’s bringing into court, at any time before the judgment of sale, the principal and interest due, with costs.
The general rule is that a tender of arrears due on a mortgage containing an acceleration clause, made before the holder of the mortgage has exercised his option to declare the entire amount due, prevents the exercise of such an option. Sindlinger v Paul, 428 Mich 161, 164; 404 NW2d 212 (1987), citing 55 Am Jur 2d, Mortgages, § 389, p 433. The same principle applies where a seller seeks to foreclose on a land contract by commencing an action in circuit court. Sindlinger, supra, p 164, citing MCL 600.3101; MSA 27A.3101; MCR 3.410.
In Sindlinger, the Supreme Court, reversing this Court’s decision in Sindlinger v Paul, 145 Mich App 28; 377 NW2d 331 (1985), found this Court’s reliance upon Cooper v Jefferson Investment Co, 70 Mich App 597, 598; 246 NW2d 311 (1976), rev’d on other grounds 402 Mich 294; 262 NW2d 650 (1978), was misplaced. 428 Mich 165. The Court rejected the Cooper rule, which provides that payment of arrears prior to notice of intent to foreclose was no defense. Id. The Court further rejected this Court’s reliance upon Dumas v Helm, 15 Mich App 148; 166 NW2d 306 (1968), and found that it was inapposite because the amount of arrears was tendered after the foreclosure action had begun. 428 Mich 166.
In the case at bar, the trial court erred when it granted the judgment of foreclosure. MCL 600.3110; MSA 27A.3110 provides that a complaint seeking foreclosure must be dismissed upon defendant’s bringing into court the principal and interest due. Moreover, it appears that in Sindlinger the Supreme Court intended to apply its ruling literally. While defendant was in default at the time she received notice of plaintiffs’ intention to foreclose, the default was cured by June 14, 1988. Although defendant continued to make late payments, she was not in default within the meaning of the land contract. Since defendant was not in default at the time plaintiffs’ complaint was filed, the trial court erred in granting foreclosure.
Reversed.
Michael J. Kelly, P.J., concurred. | [
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Per Curiam.
These cases, consolidated for the purpose of arguing the constitutionality of the gross indecency statute, MCL 75.338; MSA 28.570, arise from state police electronic surveillance of the men’s public rest room at a rest area of US-127 in Alaiedon Township, Ingham County, which resulted in the arrest of twenty-eight individuals in February and March of 1986. On July 11, 1989, the Ingham Circuit Court issued an opinion and order dismissing the charges against defendants as well as suppressing videotaped evidence of sexual acts performed by them. On September 22, 1989, this Court granted the prosecution’s motion for immediate consideration, motion for stay, and application for leave to appeal. We also granted the motion for peremptory reversal of the lower court’s suppression of the evidence seized through electronic surveillance of the public rest room, but denied the motion for peremptory reversal as to the constitutional attack on the gross indecency statute. On appeal, the prosecution alleges that the trial court erred in concluding that the gross indecency statute is unconstitutionally vague as it applies to consensual acts of fellatio and masturbation in a public rest room where no other member of the public is actually present. We agree and reverse.
These cases arose out of an investigation that began in February, 1986, as a result of complaints made by citizens concerning homosexual behavior at the public rest stop on Highway US-127 in Alaiedon Township, Ingham County, Michigan. Thereafter, the Michigan State Police installed two cameras in the rest room. As a result of state police officers’ observations of twelve different males performing different sexual acts within the field of vision of the two cameras, a search warrant was issued which authorized the attachment of a video recorder to the cameras. Video surveillance was conducted in intermittent recordings made from February 26, 1986, to March 8, 1986. On the strength of these recordings, defendants were thereafter arrested for gross indecency between males, pursuant to MCL 750.338; MSA 28.570.
The due process clause of the United States Constitution proscribes the state from holding a defendant “criminally responsible for conduct which he could not reasonably understand to be proscribed.” Rose v Locke, 423 US 48, 50; 96 S Ct 243; 46 L Ed 2d 185 (1975). However, "all the due process clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Id. Our Supreme Court in People v Howell, 396 Mich 16; 238 NW2d 148 (1976), held that the term "active gross indecency,” standing alone, fails to give adequate notice of the conduct proscribed. Id. at 21-22. However, the Howell panel opined that defendants’ due process rights were not violated because, on the basis of prior court decisions, the defendants in Howell could not claim that they were not "forewarned that the conduct they allegedly engaged in was subject to prosecution under the statutes.” Thus, we analyze the gross indecency statute in order to determine whether prior interpretations given the statute by this Court have forewarned defendants that their actions were subject to prosecution.
In doing so, we must first determine the proper test as established by this Court in defining "gross indecency.” This Court in People v Dexter, 6 Mich App 247, 253; 148 NW2d 915 (1967), stated that the gross indecency statute penalizes "conduct that is of such character that the common sense of society regards it as indecent and improper.” In so holding, the Dexter Court cited People v Carey, 217 Mich 601; 187 NW 261 (1922), which analyzed the sufficiency of the factual development necessary in an information charging a violation of the gross indecency statute. The Carey Court, supra at 602-603, citing People v Hicks, 98 Mich 86, 90; 56 NW 1102 (1893), noted that "the common sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” In Hicks, supra at 90, the Supreme Court determined "indecent and improper liberties” to be liberties that the "common sense of society would regard as indecent and improper.”
However, in Howell, supra, Justice Levin, joined by Kavanagh, C.J., and Williams, J., held that there is no "common sense of society” standard regarding sexual behavior between consenting adults. Thus, the Levin opinion redefined "act of gross indecency” as any nonconsensual oral or manual sexual acts, oral or sexual acts committed with a minor, or any ultimate sexual act committed in public. Although Justice Levin’s definition in Howell supersedes the Dexter-Carey-Hicks definition of gross indecency, we are not bound by Justice Levin’s opinion since he garnered support from only two other justices. People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973). Instead, in addressing this issue, we choose to continue to apply the "common sense of society” standard as established by the Dexter-Carey-Hicks line of decisions. By so holding, we follow other panels of this Court which have found that the question whether acts violate the gross indecency statute should be determined by a jury employing the "common sense of society” standard. People v Gunnett, 158 Mich App 420, 424; 404 NW2d 627 (1987). People v McCaleb, 37 Mich App 502, 507-508; 195 NW2d 17 (1972), lv den 389 Mich 784 (1973).
Now, we turn to defendants’ challenge to the gross indecency statute in light of the specific facts presented in this case. Where the statute challenged does not involve First Amendment freedoms, we examine the challenge in light of the circumstances of the case at hand. People v Kalchik, 160 Mich App 40, 45; 407 NW2d 627 (1987). Prior Court decisions may provide notice to defen dants sufficient to avoid a constitutional challenge to a statute on the grounds of vagueness. Id. We find that the gross indecency statute, as applied to the defendants in the present case, is not unconstitutionally vague in that defendants were apprised that their conduct was proscribed by the statute.
A summary review of some of the prior cases construing the gross indecency statute is informative. This Court in People v Masten, 96 Mich App 127; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16; 322 NW2d 547 (1982), applied the gross indecency statute to consensual adult activity. In Masten, defendant was charged with attempting to procure an act of gross indecency when he approached three police officers and offered to perform acts of fellatio for the sum of $25. The Masten Court concluded that defendant was amply warned that the act of attempting to procure the commission of a private act of fellatio between consenting adult males was prohibited by the gross indecency statute. Likewise, this Court in People v Dauer, 131 Mich App 839; 346 NW2d 599 (1984), held that the gross indecency statute applies to conduct occurring between two consenting adults. Id. at 841. Finally, this Court in People v Livermore, 9 Mich App 47; 155 NW2d 711 (1967), applied the gross indecency statute to consensual sexual conduct between two women which occurred in a tent at a public camping ground. After reviewing these cases, we find that defendants were forewarned that the conduct in which they were engaged was prohibited by the gross indecency statute. The holdings in Masten, Dauer, and Livermore established sufficient notice to defendants. Thus, MCL 750.338; MSA 28.570, as interpreted by the courts, provides sufficient notice in the situation presented before us and is not unconstitutionally vague. The question whether defen dants’ actions in the present case constitute gross indecency is a question left to the discretion of a jury utilizing the "common sense of society” standard.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
While the appeal was pending, one defendant died and another pled guilty pursuant to a plea bargain, leaving twenty-six defendants subject to this appeal. | [
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Per Curiam.
Petitioner, a prison inmate, appeals as of right from a Wayne Circuit Court order relieving respondent, the Department of Corrections, from complying with a prior court order and affirming a ruling by respondent that the confiscation of certain personal property was proper. We affirm.
In September, 1987, various items were confis cated from petitioner’s cell. Petitioner protested the seizure of these items through respondent’s grievance procedure. Some of the items were returned; however, six mirrors, a television antenna, and a paper punch were deemed contraband because they did not appear on a policy directive which listed items that prisoners were permitted to possess.
Petitioner filed a petition for judicial review, contesting the administrative hearing decision. On December 28, 1988, the trial court ordered that the items in question be returned to petitioner. The court held that, since petitioner bought the mirrors from the prison store and since respondent had not made a showing that the mirrors, antenna, and paper punch threatened the public health, security, order or housekeeping of the facility, the items must be returned. The court, however, noted in its opinion:
Of course nothing in this opinion should be construed as implying that the Department could not seize and retain possession of these items upon an appropriate showing under the Rules. As of this date, however, no such showing has been made, and thus appellant is entitled to their possession.
At the time the trial court issued its opinion, petitioner was no longer housed in general population, but had been reclassified to administrative segregation.
In February, 1989, respondent initiated another administrative hearing concerning the items and ruled that petitioner was not entitled to retain them. In March, 1989, respondent filed a motion with the trial court for relief from the court’s December, 1988, order. Respondent attached an affidavit of George Pennell, an administrative assistant at the prison, which described in detail how the mirrors, antenna, and paper punch could be used as weapons.
The trial court subsequently granted respondent’s motion on three alternative grounds. First, the court found that, under the prior Rule 637, 1979 AC, R 791.6637, respondent had made a satisfactory showing that the confiscated items could pose a security threat. Second, the court noted that Rule 637 had been superseded by Emergency Rule (4), which prohibits prisoners from possessing personal property such as the confiscated items which had not been specifically approved by the director. Finally, the court ruled that, since petitioner had been placed in administrative segregation, he was prohibited from possessing the confiscated items under both the new rules and specific policy directives.
Petitioner’s first claim on appeal is that the circuit court erred by basing its decision on matters that were not part of the administrative hearing report. Petitioner argues that the trial court should not have considered the affidavit of George Pennell.
Although review of an administrative hearing must ordinarily be confined to the record of the administrative hearing, MCL 24.304(3); MSA 3.560(204)(3), we find that the error here is not a ground for reversal. The trial court did not rely exclusively on Pennell’s affidavit for its conclusion that the confiscated items should not be returned. The court also cited a report from the administrative hearing to support its decision. The report set forth:
The u.h.f. t.v. antenna can be easily fashioned into a weapon. Also, a cable hookup is available in all cells at mbp [Marquette Branch Prison]. Mirrors and pieces of mirrors can easily be used as weapons. All cells at [mbp] have a mirror installed in them. PD-BCF-53.01 does not list a two-hole punch as property prisoners are allowed to possess. The fact that these items were allowed in the past has no bearing on them now being classified as contraband.
We find that the administrative hearing report, by itself, was adequate to justify the confiscation of the goods.
Petitioner next claims that the trial court improperly relied on Emergency Rule (4) in granting respondent relief from the December, 1988, order. We disagree.
Emergency Rule (4) was developed in response to the severe inmate disciplinary problems plaguing respondent and became effective on October 3, 1988. It states: "A prisoner may keep only the personal property which is specifically authorized by the director as allowable for the security level in which the prisoner is housed.” Policy Directive 53.01 became effective on September 16, 1985. It contains a list of thirty-two items, other than clothing, which prisoners may keep while in prison. It further states that any exception to the listed items must be approved in advance by the warden/superintendent. A paper punch is not included in the list.
The administrative hearing officer properly relied on Policy Directive 53.01 in finding that the paper punch was properly confiscated. Under the new Emergency Rule (4) only specifically authorized items were permitted in the cells. Since the paper punch did not appear on the list as a specifically authorized item delineated in Policy Directive 53.01, there was no impropriety in removing the paper punch or, for that matter, the mirrors and antenna which were also not on the list. It does not matter that Policy Directive 53.01 became effective before Emergency Rule (4). The policy directive and the emergency rule were both in effect at the time of the hearing in February, 1989, and since they are consistent with each other they may be applied together. See Jordan v Dep’t of Corrections, 165 Mich App 20, 27; 418 NW2d 914 (1987).
Petitioner also argues that, since he was entitled to possess the confiscated items under former Rule 637, he is entitled to maintain those items regardless of the promulgation of Emergency Rule (4). We disagree. Petitioner was not entitled to the confiscated items under the former rule because of their potential use as weapons. In addition, such a holding would be contrary to public policy because if petitioner’s view were adopted, prison authorities would be powerless to make necessary adjustments to overcome the failures of past rules and policies.
Finally, petitioner claims that the trial court’s decision was clearly erroneous as a matter of fact and law. We disagree. Reviewing courts must give great deference to the findings of fact at an administrative hearing. THM, Ltd v Ins Comm’r, 176 Mich App 772, 776; 440 NW2d 85 (1989). Based on our review of the entire record, the trial court’s decision affirming the administrative agency’s finding is supported by competent, material and substantial evidence. See THM, supra. Accordingly, we affirm.
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Per Curiam.
On June 30, 1987, following a jury trial in Calhoun Circuit Court, defendant was convicted of two counts of assault with intent to commit great bodily harm less than murder, MCL 750.84: MSA 28.279, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On August 12, 1987, defendant was sentenced to eighty months to ten years imprisonment for each assault conviction and two years imprisonment for each felony-firearm conviction. Defendant appeals by right from his convictions, contending that the trial court abused its discretion by allowing defendant to be impeached with his prior felony convictions and that defendant was denied effective assistance of counsel. In addition, defendant appeals by right from his sentences, contending that the trial court failed to respond to defendant’s allegations of inaccuracies in the presentence report and that the sentences should shock this Court’s conscience. We affirm defendant’s convictions, but reverse and remand for resentencing.
i
On July 14, 1986, defendant and his friends, Mario Barroso and Grover Lowe, went to a bar. A group of ironworkers, including Max Huntoon and Daniel Marshall, were at the same bar. Later in the evening, defendant, Barroso and Lowe began arguing with Huntoon and Marshall. The dispute eventually moved outside where Huntoon and another ironworker began beating Barroso and Lowe. Defendant fled the scene momentarily. When defendant returned he was carrying a gun. Huntoon lunged toward defendant, and defendant shot him. Defendant then fired three shots into a crowd. One of those shots struck Marshall.
n
We will first address defendant’s contention that the trial court failed to respond to defendant’s claim of inaccuracies in his presentence report since it is defendant’s only meritorious claim.
It is well settled that the use of inaccurate information at sentencing may violate defendant’s constitutional right to due process. US Const, Am XIV; Const 1963, art 1, § 17; People v Fleming, 428 Mich 408, 431; 410 NW2d 266 (1987) (opinion by Boyle, J.), citing Townsend v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 1690 (1948); see also People v Pulley, 411 Mich 523; 309 NW2d 170 (1981); People v Malkowski, 385 Mich 244; 188 NW2d 559 (1971). Accordingly, MCL 771.14(5); MSA 28.1144(5), as amended by 1982 PA 61, provides:
At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report. The court may order an adjournment to permit the parties to prepare a challenge or a response to a challenge. If the court finds that the challenged information is inaccurate or irrelevant, that finding shall be made a part of the record and the presentence investigation report shall be amended and the inaccurate or irrelevant information shall be stricken accordingly before the report is transmitted to the department of corrections.
The Michigan Court Rules at the time of sentencing in this case also provided that "[b]oth parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report.” MCR 6.101(K). Unfortunately, this Court has not been consistent in its approach to defendants’ claims that the trial court did not respond to alleged inaccuracies in the presentence report. See People v Tew, 151 Mich App 556, 559-560; 390 NW2d 738 (1986) (noting "three approaches in dealing with this situation”). Compare People v Gray, 125 Mich App 482; 336 NW2d 491 (1983), and People v Sutton, 158 Mich App 755; 405 NW2d 209 (1987), lv den 429 Mich 871 (1987), with Tew, supra, and with People v Edenburn, 133 Mich App 255; 349 NW2d 151 (1983), People v Garvie, 148 Mich App 444; 384 NW2d 796 (1986), lv den 426 Mich 851 (1986), and People v Brooks, 169 Mich App 360; 425 NW2d 555 (1988) (each group applying a different one of the three approaches). This inconsistency apparently has led to the failure of sentencing courts to consistently respond adequately to defendants’ allegations of inaccuracies in presentence investigation reports.
We follow the analyses in Edenburn, Garvie, and Brooks, since they most closely follow the requirements of the statute providing for presentence investigation reports, MCL 771.14; MSA 28.1144. In Brooks, supra, pp 364-365, this Court wrote:
[W]hen a defendant raises inaccuracies in the presentence report the court must respond to the allegations and exercise its discretion in determining whether the allegations are correct. The court may hold an evidentiary hearing to determine the report’s accuracy, may accept the defendant’s unsworn statement, or may ignore the alleged misinformation while sentencing. The court must clearly indicate that it is not considering the alleged inaccuracy. [Citations omitted.]
In Edenburn, supra, p 258, this Court wrote:
We hold that the duty of the trial judge to respond involves something more than acknowledging that he has heard the defendant’s claims regarding the contents of a presentence report. He must indicate, in exercising his discretion, whether he believes those claims have merit.
The court must make a finding on defendant’s challenge on the record, and, when it finds challenged information to be inaccurate or irrelevant, it must strike that information from the presentence investigation report before sending it to the Department of Corrections. We note that the recently amended Rules of Criminal Procedure, MCR 6.001 et seq. (effective October 1, 1989), adopts a consistent approach. See MCR 6.425(A)-(D).
In this case, after defendant challenged the accuracy of certain information in the presentence report, the court stated:
All right. Is there anything you wish to say before I impose sentence?
In Brooks, supra, pp 364-365, we held that a similar response, "okay,” was ambiguous since we could not determine whether the court’s response meant that the court was agreeing with the defendant’s comments or merely indicating that it heard the defendant. Likewise, we hold that the court’s response in this case was ambiguous.
It may well be that the court accepted defendant’s claims, or considered some of the challenged information irrelevant. And the court may have been addressing defendant’s claim that part of the report’s version of the incident was inaccurate when the court later stated that "the jury heard the evidence and rendered their verdict based upon what they believed the true facts were, . . . and they [found] you guilty.” On the other hand, there is no indication in the record that the court struck any of the challenged information from the report as inaccurate or irrelevant. For this Court to conclude on this record that the court found the information inaccurate or irrelevant, and that it did not consider any of the challenged information when exercising its sentencing discretion, would be engaging in mere speculation. Cf. People v Swartz, 171 Mich App 364, 380; 429 NW2d 905 (1988) (court explained that it did not consider challenged information, but failed to strike from report).
Since the court did not make a clear indication on the record that it was not considering the challenged information, we must remand for re-sentencing at which time the court must resolve any challenge to the accuracy of information in the presentence report. The court is directed to follow the new court rule, MCR 6.425, and the statute, MCL 771.14; MSA 28.1144, in light of the analysis in this opinion.
hi
Next, defendant contends that the sentences imposed by the sentencing court should shock this Court’s conscience.
The sentences were within the appropriate sentencing guideline range and do not shock our conscience. People v Broden, 428 Mich 343; 408 NW2d 789 (1987); People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
IV
Next, defendant contends that his convictions must be reversed because the trial court abused its discretion by admitting evidence of defendant’s prior convictions for impeachment purposes.
Assuming that the trial court abused its discretion in admitting evidence of defendant’s prior convictions of malicious destruction of property and gross indecency, the error does not require reversal. Several witnesses, including defendant, testified to the events surrounding the shootings which support defendant’s convictions. In our opinion, no reasonable juror would have voted to acquit defendant but for the improper impeachment. Therefore, the admission of defendant’s prior convictions was harmless. People v Clemons, 177 Mich App 523, 527; 442 NW2d 717 (1989); MCR 2.613(A).
v
Last, defendant contends that he was denied effective assistance of counsel in his defense because his counsel failed to call Lowe and Barroso to testify at trial.
The decision whether to call witnesses is a matter of trial strategy which can constitute ineffective assistance of counsel only when the failure to do so deprives the defendant of a substantial defense. People v Julian, 171 Mich App 153, 159; 429 NW2d 615 (1988). Clearly, Lowe’s and Barroso’s testimony would not have aided defendant’s defense of self-defense since they did not see what was happening during the fight. Moreover, Lowe’s and Barroso’s testimony would not have aided defendant’s defense of defense of others since defendant clearly testified at trial that the fight had already ended when he returned. (Also, recall defendant’s challenge to the accuracy of information in the presentence report.) In other words, defendant could not claim to have acted on the honest belief that his friends were in danger of serious injury or death because, according to his own testimony, his friends were not in danger. Thus, defendant was not deprived of a substantial defense.
Defendant’s convictions are affirmed; his sentences are reversed and this case is remanded for resentencing. | [
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Per Curiam.
Plaintiff Gary M. Thomas, as personal representative of the Estate of Lurah M. Neymeiyer, appeals from three circuit court orders dismissing his claims against the defendants in this case. We affirm the circuit court’s dismissals.
Plaintiff seeks to regain several oil and gas lease interests presently held by the various defendants in this case. These lease rights were previously held by a Michigan corporation, Oil Well Service, Inc. In January of 1945, Oil Well Service assigned its interests in these oil and gas leases to John Neymeiyer and Rex Wilcox, who were president and vice-president of the corporation. Oil Well Service’s corporate charter became defunct in 1947 and was never revived. When John Neymeiyer died in 1956, his interest in these leases went to his wife, Lurah M. Neymeiyer.
Lurah M. Neymeiyer died in 1965, and William Crane was appointed executor of her estate by the Saginaw County Probate Court. In 1966, according to the power granted under Lurah Neymeiyer’s will, Crane assigned several of the oil and gas lease interests owned by the estate to Rex Wilcox. By order of the probate court, Crane was given full power and authority to administer and dispose of the assets of the estate. During his term as executor of the estate, Crane, by quitclaim deed recorded in April of 1968, conveyed certain oil and gas lease interests to Rex Wilcox. Crane made at least three other assignments of oil and gas lease rights to Wilcox which were recorded in May of 1968. In May of 1968, the probate court allowed a final accounting of Lurah Neymeiyer’s estate and assigned the residue of the estate to William Crane.
After the final accounting of Lurah Neymeiyer’s estate in May of 1968, the oil and gas lease interests were acquired by the various defendants in this action.
Plaintiff Gary Thomas is Lurah Neymeiyer’s grandson. In July of 1987, plaintiff commenced the present action in Saginaw County Probate Court, seeking to reopen Lurah Neymeiyer’s estate, rescind the previous executor’s deeds and assignments, and validate plaintiff’s claimed ownership interests in the oil and gas leases. The probate court transferred plaintiff’s claims to Ogemaw Circuit Court. Plaintiff filed a jury demand, which , the circuit court struck on defendants’ motion. Plaintiff then filed a second amended complaint, alleging causes of action to quiet title, for accounting and restitution, for rescission, and for conversion.
In August of 1988, defendants Steuernol, Sappington, and Total Petroleum moved for summary disposition of plaintiff’s claims under MCR 2.116(C) (7), (8), and (10), arguing mainly that plaintiff’s claims were barred by the statute of limitations. Following a hearing, the circuit court granted summary disposition to these defendants under MCR 2.116(C)(7), on the ground that all of plaintiff’s claims were barred by the statute of limitations. The circuit court made the following findings:
In summary, the Court finds that the deed from William E. Crane, executor of the estate of Lurah M. Neymeiyer, deceased, to Rex A. Wilcox, dated April 3, 1968, and recorded April 8, 1968, started the running of the Statute of Limitations. Plaintiffs complaint was not filed until 1987, or 19 years later. Consequently, Plaintiffs claim is barred.
1. Defendants cite several statutes in support of their motion, and the Court finds that MCLA 600.5801(1) and (4), and MCLA 700.658, are all applicable.
2. The Court finds that the "Crane deed” conveyed the interest that is the subject matter of Plaintiffs claims. The Court rejects Plaintiffs argument that the "Crane Deed” did not convey "working interests”. The Court finds that the "Crane deed” conveyed all interests in the land.
3. The Court finds that the marketable record title act was not intended to preclude the assertion of a defense that a claim is barred by the Statute of Limitations.
Later, in two separate orders, the court granted the remaining defendants summary disposition for the same reasons.
i
Plaintiff argues that the circuit court erred by finding his claims barred by the statute of limitations. We find no error.
Oil and gas lease interests are considered real property interests and are part of the land. Eadus v Hunter, 268 Mich 233, 238; 256 NW 323 (1934). The proper limitations period would be the one applicable to sales of realty. MCL 600.5801(1); MSA 27A.5801(1) provides:
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
When the defendant claims title to the land in question by or through some deed made upon the sale of the premises by an executor, administrator, guardian, or testamentary trustee; or by a sheriff or other proper ministerial officer under the order, judgment, process, or decree of a court or legal tribunal of competent jurisdiction within this state, or by a sheriff upon a mortgage foreclosure sale the period of limitation is 5 years. [Emphasis added.]
The lease rights claimed by plaintiff were disposed of by William Crane in his role as executor of Lurah Neymeiyer’s estate. Crane was expressly authorized to dispose of these interests by Neymeiyer’s will and by the probate court’s order. Crane assigned these interests in 1966 and 1968. Plaintiff did not file his original lawsuit until 1987, far beyond the five-year statutory period.
Plaintiff claims that the statutory period did not commence running until 1986, due to fraud and fraudulent concealment by William Crane, Rex Wilcox, and the other defendants. We disagree.
The doctrine of fraudulent concealment may be used to toll the running of the limitations period. Carr v Wittingen, 182 Mich App 275, 281; 451 NW2d 584 (1990). However, the fraud must be manifested by an affirmative act or misrepresentation. Lumber Village, Inc v Siegler, 135 Mich App 685, 694-695; 355 NW2d 654 (1984). No fraudulent concealment is indicated. Plaintiff’s claim of fraud is based upon three assertions: (1) that Rex Wilcox forged John Neymeiyer’s name on a 1945 document; (2) that Crane was not authorized to convey property sold in an April 3, 1968, deed (the Crane deed); and (3) that certain conveyances made by Rex Wilcox were not recorded with the county Register of Deeds until 1986. None of these facts, if true, establish fraudulent concealment. Whether Rex Wilcox forged John Neymeiyer’s name is not relevant to whether plaintiff had notice of Crane’s assignment of the lease interests. Crane was authorized to sell the property of Lurah Neymeiyer’s estate by the express terms of her will and by the later probate order. Finally, although certain conveyances made by Rex Wilcox were not recorded until 1986, these same properties had been assigned by Crane and recorded in 1968; their assignment by Crane was a matter of public record and was in no way concealed from plaintiff.
Plaintiff also attacks the validity of the Crane deed, which conveyed certain lease rights to Rex Wilcox in April of 1968. Plaintiff contends that this deed did not convey the interest held by Lurah Neymeiyer and did not cover all the lease rights to which plaintiff asserts ownership. We find that the circuit court properly interpreted this deed.
The Crane deed was a quitclaim deed and contained the following pertinent language conveying
[a]ll the right, title and interest in the estate of said Lurah M. Neymeiyer, deceased, in and to all oil and gas lease interests royalties and overriding royalties in and to premises described as ... .
Plaintiff argues that the terms of this quitclaim deed conveyed only royalties and overriding royalties, rather than the working interests, which were previously held by Oil Well Services, Inc., and Lurah Neymeiyer’s estate. We disagree.
A quitclaim deed is generally construed as conveying all the grantor’s interest in the described property unless some interest is expressly excepted or reserved. State Hwy Comm’r v Simmons, 353 Mich 432, 437; 91 NW2d 819 (1958). Deeds should be strictly construed against the grantor so as to give the grantee the greatest estate that the deed’s terms will permit; any reservation or exception by the grantor must be narrowly construed. Stevens Mineral Co v Michigan, 164 Mich App 692, 697-698; 418 NW2d 130 (1987), lv den 430 Mich 896 (1988). In view of this, we reject plaintiffs claim that the Crane deed should be interpreted to convey only royalty and overriding royalty interests and instead interpret it to convey all oil and gas lease interests, including but not limited to royalties and overriding royalties.
With regard to plaintiffs claim that the Crane deed did not convey all oil and gas interests involved, we note that all the oil and gas lease interests in dispute were conveyed by either the Crane deed or by other conveyances made by William Crane as executor of Lurah Neimeyer’s estate. These conveyances were made by 1968 at the latest and were recorded with the register of deeds that same year. Plaintiffs claims to the contrary are meritless.
ii
Plaintiff argues that the circuit court erred in dismissing his claim for a jury trial. We disagree. Plaintiffs first amended complaint, in which he made a demand for a jury trial, alleged only equitable causes of action. Although plaintiff later amended his complaint to add claims for money damages, this amendment occurred after the court had already struck plaintiffs jury demand. Plaintiff did not renew his jury demand after filing his second amended complaint. There is no right to a jury trial where the relief sought is solely equitable in nature. McDonald Ford Sales, Inc v Ford Motor Co, 165 Mich App 321, 324; 418 NW2d 716 (1987). Since only equitable claims were stated in plaintiffs first amended complaint, the court properly struck plaintiff’s jury demand for the claims.
hi
Defendant First of America Bank argues that the circuit court erred by granting plaintiff’s motion to substitute it as a party. We find no error.
First of America is the personal representative for the estate of Ransom H. Sappington, who was named as a defendant by plaintiff but is now deceased. Upon Mr. Sappington’s death in December of 1987, plaintiff moved to substitute defendant First of America in his place. The court granted this motion.
MCR 2.202(A)(1) provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.
First of America argues that, because Mr. Sappington’s mineral lease interests vested with his wife upon his death and his wife was already named a defendant to plaintiff’s suit, it was erroneous to substitute Sappington’s estate as a party defendant. We disagree. Plaintiff’s second amended complaint alleged claims against Sappington for recovery of past income from the oil and gas leases in addition to claims for the recovery of the lease interests themselves. This income, received over a period of years, would be part of Mr. Sappington’s estate. Therefore, First of America was the proper party to substitute in order to recover this money.
Affirmed. | [
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Per Curiam.
This is a first-party, no-fault automobile insurance case. The circuit judge granted summary disposition to the defendant under MCR 2.116(0(10). We reverse.
i
The relevant facts are not in dispute and the case was submitted to the circuit judge on stipulated facts.
Plaintiff owned a motor vehicle which was insured by defendant. While plaintiff was asleep, her fourteen-year-old son took her car without her permission. He picked up two of his friends and an accident followed. Plaintiff’s son and one of his friends were seriously hurt. The other friend was killed.
Initially, defendant paid first-party, no-fault benefits arising out of the serious injuries sustained by plaintiff’s son. In a related third-party case, the insurer settled a claim arising out of the death of the passenger.
About six or seven months after the accident, defendant informed plaintiff that it would no longer pay first-party benefits for expenses arising out of her son’s injuries. This lawsuit followed.
ii
Defendant relied on MCL 500.3113; MSA 24.13113 to terminate benefits under the no-fault policy of automobile insurance. The statute provides, in pertinent part, as follows:
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
(a) the person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.
Defendant argues that the stipulated statement of facts entered into by both parties establishes that plaintiffs son was driving the car "unlawfully,” in violation of MCL 750.414; MSA 28.646, which provides, in pertinent part, as follows:
Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who shall be a party to such unauthorized taking or using, shall upon conviction thereof be guilty of a misdemeanor.
Defendant acknowledges that plaintiff’s son was not charged with any criminal offense and that, therefore, there is no "conviction.” The argument is that, as long as there is a taking without permission, no criminal conviction is required to deny coverage under the no-fault act, citing Dupie v Michigan Mutual Ins Co, unpublished opinion per curiam of the Court of Appeals, decided June 1, 1988 (Docket No. 100037). Aside from the fact that this unpublished opinion has no precedential value, MCR 7.215(C), we find it to he distinguishable. In Dupie, there were affidavits establishing unlawful taking and the plaintiff was charged under the criminal statute and entered a no contest plea. In addition, there is nothing in the Dupie opinion to indicate that the plaintiff was a member of the owner’s household or that he was related to the owner.
III
The question for decision in this case is whether the mere fact of taking without permission by an underage driver who is the son of the owner and who lives in the owner’s household is "unlawful” under the no-fault act. The term "unlawful” is not defined in the no-fault act.
Under MCL 500.3114; MSA 24.13114, plaintiff’s son is a person entitled to personal protection insurance benefits for injuries arising out of a motor vehicle accident because he is a relative of plaintiff domiciled in the same household. In our view, he does not lose that entitlement by virtue of using his mother’s car without her permission.
We hold that the use of plaintiff’s car by her son without her permission was not unlawful under the no-fault act. We cannot say that the Legislature intended that § 3113(a) of the act would apply under the circumstances of this case.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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] |
Per Curiam.
Defendant New York Carpet World appeals as of right from the December 7, 1987, Wayne Circuit Court judgment following a jury verdict awarding plaintiff $1,324,110 in this products liability case.
On December 22, 1983, plaintiff was injured as he was guiding a roll of carpet through a carpet-cutting machine. The carpet became caught between the machine’s roller and guide and plaintiff attempted to release it with his hand. At this point, the machine activated and the cutting blade severed plaintiff’s left thumb.
Plaintiff filed suit against defendant Carpet World, owner of the machine, for negligent maintenance and J.M. Feighery Company, manufacturer of the machine, for defective design. The jury found Feighery and Carpet World liable, but allocated seventy-five percent of the verdict against Carpet World and twenty-five percent against Feighery.
i
On appeal, Carpet World first argues that the trial court erred in denying its motion for summary disposition and granting plaintiff’s motion to strike the affirmative defense raised by Carpet World relating to the exclusive remedy of the Workers’ Disability Compensation Act on the basis of a finding that Carpet World was not plaintiff’s employer and thus was not entitled to assert the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), as a bar to plaintiff’s action.
Carpet World is a Michigan corporation engaged in the retail sale of floor coverings in Michigan and other states. Carpet World is also parent corporation to several wholly owned Michigan sub sidiaries, one of which is New York Leader Carpet Industries, Inc. Leader was established in 1978 to conduct business in the commercial carpeting industry as opposed to the retail-residential industry. Leader operated its business by submitting bids on commercial projects. If the bid was accepted, Leader would place an order with Carpet World for the desired amount of carpet. Installation of the carpet was done by contractors procured by Carpet World. After completion of a project, Carpet World would bill Leader for the cost of materials and labor plus an agreed ten percent markup.
Plaintiff was hired by Carpet World in 1977. In March, 1982, plaintiff assumed an assistant supervisor position with Leader at a warehouse owned by Carpet World. Leader leased office space at the warehouse which was the location of plaintiff’s accident. Plaintiff contends that he was employed by Leader. Carpet World, on the other hand, maintains that plaintiff was its employee.
In ruling on Carpet World’s motion for summary disposition, the trial court first found that Leader was a separate legal entity from Carpet World. The court then applied the "economic reality” test and concluded:
Based upon all of the evidence that’s in the record, looking at the totality of the evidence as it applies to these four factors [of the economic reality test], the Court finds that it is more convincing that the employer is the Leader Company. Not only did the Leader Company pay Worker’s Compensation, and not only has that been determined for the purposes of Worker’s Compensation that is the employer, and not only is it a separate and distinct company from New York Carpet World, but also the employee looked to the Leader Company as his employer, and that is who had the right to hire and fire him.
In Kenyon v Second Precinct Lounge, 177 Mich App 492, 497; 442 NW2d 696 (1989), a panel of this Court enunciated the standard for deciding motions for summary disposition on the issue whether a company is the employer of a worker under the wdca:
Whether a company is a particular worker’s "employer,” as that term is used in the workers’ compensation act, is a question of law for the courts to decide if the evidence on the matter is reasonably susceptible of but a single inference. Nichol v Billot, 406 Mich 284, 302-303; 279 NW2d 761 (1979) (quoting Flick v Crouch, 434 P2d 256 [Okla, 1967]). Only where the evidence bearing on the company’s status is disputed, or where conflicting inferences may reasonably be drawn from the known facts, is the issue one for the trier of fact to decide. Id.
The appropriate test for determining whether defendant or Leader was plaintiff’s employer is the economic reality test. Wells v Firestone Tire & Rubber Co, 421 Mich 641, 647; 364 NW2d 670 (1984). The economic reality test looks to the totality of the circumstances surrounding performed work. The relevant factors considered under the test have been summarized as: (1) control of a 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); Andriacchi v Cleveland Cliffs Iron Co, 174 Mich App 600, 605; 436 NW2d 707 (1989), lv den 433 Mich 879 (1989); Parkkonen v Cleveland Cliffs Iron Co, 153 Mich App 204, 209; 395 NW2d 289 (1986), lv den 428 Mich 859 (1987); Lambard v Saga Food Service, Inc, 127 Mich App 262, 270; 338 NW2d 207 (1983), lv den 419 Mich 958 (1984). Under this test, all of the factors are viewed as a whole and no single factor is controlling. Farrell v Dearborn Mfg Co, 416 Mich 267, 276; 330 NW2d 397 (1982).
In Wells, supra, our Supreme Court specifically dealt with the issue involved in the present case: whether the defendant parent corporation was the plaintiffs employer for purposes of the wdca, where the plaintiff worked for the defendant’s wholly owned subsidiary. The Court first found that the Court of Appeals correctly applied the economic reality test to the case to conclude that the plaintiff was an employee of the defendant parent corporation and thus could not maintain a products liability suit against it. Id., p 650.
However, the Court further commented that this result amounted to a "reverse-piercing” of the defendant’s corporate veil and opined that the fiction of distinct corporations will be ignored if .it is invoked to subvert justice or its existence would cause a result contrary to some other clearly overriding public policy. Id. The Wells Court stated that disregard of the separate corporate entities was warranted in that case because of the important public policies underlying the wdca and the Court’s belief that a contrary determination would be inequitable under the facts. Id., p 651. It should be reiterated that the Wells Court only reached its decision after proper application of the economic reality test. Thus, a "reverse-piercing” of a corporate veil resulting in a corporation’s invoking the protection of the wdca’s exclusive remedy provision should not occur if the economic realities do not call for such a result. See Parkkonen, supra, pp 209-210.
Since the Wells decision, several cases from this Court have followed its rationale. See Verhaar v Consumers Power Co, 179 Mich App 506, 508-510; 446 NW2d 299 (1989); Andriacchi, supra, p 608; Parkkonen, supra, pp 209-210. The only published case which has not adhered to Wells is Wodogaza v H & R Terminals, Inc, 161 Mich App 746; 411 NW2d 848 (1987).
In the instant case, we do not believe that the evidence on the issue whether Carpet World or Leader was plaintiff’s employer was reasonably susceptible of a single inference (i.e., that plaintiff was Leader’s employee). Therefore, the trial court erred in deciding the question as a matter of law. Kenyon, supra. We will briefly highlight, through application of the economic reality test, those facts which clearly demonstrate the conflicting nature of the evidence.
First, with respect to control of plaintiff’s duties, plaintiff was given the position of assistant supervisor to aid a Carpet World warehouse manager who believed that plaintiff was an employee of Carpet World and that he was plaintiff’s supervisor. However, the evidence also revealed that Leader’s principals or officers desired plaintiff’s additional supervision to assist in the processing of carpet for Leader. Under these facts, it is extremely difficult to ascertain which entity plaintiff actually worked for at the warehouse, let alone who controlled plaintiff’s duties.
Next, plaintiff’s wages were paid with checks from Leader which maintained separate accounts from Carpet World. A Leader principal stated at his deposition that plaintiff’s salary came from Leader’s profits. However, a Carpet World vice president maintained that plaintiff’s salary was eventually charged back to Carpet World because he believed that plaintiff performed work for that entity and it was responsible for plaintiff’s wages.
With regard to the right to hire, fire and disci pline plaintiff, Carpet World’s warehouse manager believed that he had authority to discipline plaintiff although he was never directly informed that he could hire, fire or was in charge of plaintiff. Alternatively, a Leader principal maintained that he had the authority to discipline plaintiff.
Finally, in determining whether plaintiff’s duties were an integral part of Carpet World’s or Leader’s business, we again note that plaintiff assumed his position because Leader desired additional supervision. Therefore, plaintiff’s duties could be viewed as important facets of Leader’s business toward the accomplishment of the timely and effective completion of commercial carpeting projects. However, plaintiff also performed work on Carpet World orders if requested to do so by its warehouse manager. In addition, the completion of Leader’s projects was extremely important to Carpet World since it created Leader to become involved in the commercial carpeting industry. Under these circumstances it can be argued that plaintiff’s duties were also an integral part of Carpet World’s business.
We also note that Carpet World was self-insured while Leader’s employees were insured by a commercial carrier. Leader paid plaintiff’s workers’ compensation benefits and filed separate tax returns. However, many of Leader’s principals or officers were also officers and shareholders of Carpet World.
All of the above cited facts lead us to believe that the evidence was too conflicting to emphatically conclude that either Carpet World or Leader was plaintiff’s employer. Therefore, we find that different inferences could reasonably be drawn from the facts. Kenyon, supra, p 497. The trial court erred in granting plaintiff’s motion to strike the affirmative defense relating to the exclusive remedy of the wdca and Carpet World is entitled to a new trial in which the question of its status as plaintiffs employer is submitted to the jury.
ii
While we have already concluded that defendant is entitled to a new trial, we will briefly address the remaining issues raised.
hi
Defendant contends that the trial court abused its discretion in admitting into evidence two exhibits. The first exhibit at issue encompassed the Department of Labor Construction Safety Standards. Plaintiff asserted that defendant violated these regulations with regard to the carpet-cutting machine and was thus negligent. Plaintiffs expert safety consultant testified about the standards. Defense counsel declined to voir dire the witness and failed to object to admission of the evidence. Consequently, we would generally find that defendant waived review of this issue. MRE 103(a)(1). However, we believe that the regulations were inapplicable to the instant case, since they apply to employers or employees engaged in construction operations, and the trial court abused its discretion in admitting them. Schanz v New Hampshire Ins Co, 165 Mich App 395, 405; 418 NW2d 478 (1988). Thus, we instruct the trial court that the regulations should not be admitted on retrial.
The second exhibit consisted of osha regulations dealing with textile machinery equipment and other facilities in plants engaged in the manufacture and processing of textiles. While there appear to be arguments supporting either party’s position, our review of the record indicates that the trial court’s decision on this matter was not an abuse of discretion. Schanz, supra. In any event, we feel that if any error occurred, it was harmless since references to the exhibit were limited and any prejudicial effect on the jury was unlikely.
iv
Defendant next asserts that the trial court erred in giving SJI2d 12.05 regarding violation of the Department of Labor Construction Safety Standards. We previously concluded that the regulations were inapplicable and thus the trial court abused its discretion in admitting them. Therefore, we also feel that giving SJI2d 12.05 in conjunction with this evidence was erroneous and direct the trial court to refrain from rendering the instruction in this context on retrial.
v
Defendant’s final argument is that the trial court abused its discretion in failing to grant defendant a new trial or remittitur based upon an excessive jury award. Since we have granted defendant a new trial, we decline to undertake any review of the award.
VI
In light of the foregoing conclusions, we vacate the jury’s verdict in favor of plaintiff and remand the case for a new trial consistent with this opinion. We do not retain jurisdiction.
Vacated and remanded.
Feighery initially appealed the verdict in Docket No. 106681. However, Feighery subsequently entered into a settlement with plaintiff and the appeal was dismissed. Carpet World is the only defendant a party to the present appeal. | [
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] |
Per Curiam.
Defendant John Kosciecha and attorney Kevin G. Klevorn appeal as of right a Charlevoix Circuit Court order denying counsel fees and expert witness fees. We affirm in part and reverse in part.
Attorney Klevorn signed annual contracts with Charlevoix County to accept indigent criminal appointments for trial purposes for 1988 and 1989. In September, 1988, Klevorn was assigned to represent defendant John Kosciecha, who was charged with open murder, arising out of the death of Kosciecha’s girl friend in July, 1987. Following his preliminary examination, Kosciecha was bound over on the lesser charge of involuntary manslaughter. After numerous pretrial motions were heard, Kosciecha’s six-day jury trial concluded with a verdict of not guilty. The trial court subsequently denied attorney Klevorn’s request to the circuit court for total payment of nearly $10,000 in attorney fees and expenses pursuant to the terms of the 1989 contract, as well as a request for payment of $2,605.89 for Kosciecha’s accident reconstruction expert.
Under the contracts with Charlevoix County, Klevorn received monthly payments of $1,322.92 in 1988 and $1,442.71 in 1989 for a total of $33,187.50 over the two-year period. The contracts also provided reimbursement for extraordinary expenses, e.g., long-distance telephone calls and mileage. The 1988 contract, ¶ 13, provided:
Attorneys assigned under the terms of this Agreement are obligated to see cases through to resolution, even if resolution occurs beyond the termination date of this Agreement. No additional compensation will be paid to the Attorneys for cases not resolved during the term of this Agreement.
The 1988 contract, ¶ 11, provided:
Where an attorney tries a felony case, and said trial continues beyond two days, said Attorney shall be entitled to invoice the County Treasurer for his services at the rate of $35.00 per hour commencing from the time of the commencement of the third day of said trial until its completion.
Klevorn’s initial bill for attorney fees apparently requested payment under the 1989 contract for 253.4 hours (minus a fifteen-hour allowance) at $40 per hour, for a total fee of $9,536, plus $347.10 in costs. The bill was later revised to include 3.5 hours for arguing posttrial motions. The trial court responded by letter, pointing out that Klevorn had been appointed under the 1988 contract and referring to ¶ ¶ 11 and 13. The court suggested that Klevorn revise his bill and invited comment in the case. The trial court later reviewed briefs submitted by Klevorn and the prosecutor and granted additional fees of $1,830.50 pursuant to the 1988 contract.
On appeal, Kosciecha and attorney Klevorn claimed that the trial court failed to determine what was "reasonable compensation”; denied Kosciecha effective assistance of counsel; and deprived counsel of property without due process of law when it awarded attorney Klevorn attorney fees under the terms of his contract with Charlevoix County. We disagree.
MCR 6.005(D), formerly MCR 6.101(C), requires the trial court to appoint trial counsel upon request by an indigent criminal defendant. Compensation for court-appointed counsel in Michigan is governed by MCL 775.16; MSA 28.1253, which in part provides:
The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed.
The determination of the lower court as to reasonable compensation for services and expenses will not be disturbed on appeal absent an abuse of discretion. In re Attorney Fees of Mullkoff, 176 Mich App 82, 85; 438 NW2d 878 (1989), lv den 433 Mich 869 (1989).
Contrary to attorney Klevorn’s claim, the trial court did not fail to address the issue of "reasonable compensation” and did not give precedence to counsel’s contract with Charlevoix County. Rather, its initial approval of the contract (and Klevorn’s agreement to its terms) constituted a determination that the contract provided reasonable compensation for the subjects it covered. Here, the obvious import of the trial court’s original approval of the contract, as well as its letter and opinion ordering additional fees under the contract terms, was its determination that the contract provided for reasonable compensation, at least under the circumstances it specifically addressed. Since ¶|¶ 11 and 13 expressly address the situation which occurred here, the court’s original approval of that contract (and Klevorn’s as well) constituted a determination that the fee provided by its terms was reasonable.
In two recent cases before this Court, In re Mullkoff, supra, and In re Attorney Fees of Jamnik, 176 Mich App 827; 440 NW2d 112 (1989), aff'd 434 Mich 882 (1990), the trial courts were held to have abused their discretion in denying assigned appellate counsel attorney fees for visiting their incarcerated clients, attending oral arguments, and, in Mullkoff, for attending a motion regarding resentencing. In Jamnik, supra at 831-832, this Court concluded: "While the determination of what is reasonable compensation for such services is left to the sound discretion of the trial court, it is an abuse of discretion to simply deny any compensation for such services.”
Here, however, the trial court did not deny all fees. Compare In re Attorney Fees of Burgess, 69 Mich App 689; 245 NW2d 348 (1976). In addition to Klevorn’s monthly stipend, the trial court ordered payment of additional fees and costs. Clearly, Klevorn received some fees for his representation of Kosciecha in the trial court; the trial court did not deny all compensation. We find that the trial court did not abuse its discretion.
Moreover, Kosciecha and attorney Klevorn’s constitutional arguments have been rejected by our Supreme Court’s decision in In re Attorney Fees of Meizlish, 387 Mich 228; 196 NW2d 129 (1972). In Meizlish, our Supreme Court rejected claims that Wayne County’s court rule establishing a fixed fee schedule for assigned counsel violated the lawyers’ due process and equal protection rights and the indigent defendants’ rights to counsel, appeal, due process, and equal protection:
Appellant’s contention that he has been deprived of due process and equal protection under the United States Constitution and Michigan Constitution 1963 has been discussed and decided adversely to him by numerous courts in this country. . . .
Likewise, the courts have uniformly rejected the contention that an attorney is denied the equal protection of laws when he defends an indigent without compensation. [Id. at 236-237.]
Although eighteen years have passed since the Meizlish decision was issued, the constitutional issues remain the same, and this Court is bound by the Supreme Court’s decision.
Kosciecha and attorney Klevorn next argue that the trial court’s denial of payment of expert witness fees was an abuse of discretion. We agree.
MCL 775.15; MSA 28.1252 requires a defendant to show "to the satisfaction of the judge presiding over the court wherein such trial is to be had . . . [that] he cannot safely proceed to a trial [without the proposed witness].” Rulings on such motions are expressly left to the discretion of the trial court. People v Miller, 165 Mich App 32, 47; 418 NW2d 668 (1987).
Kosciecha first sought payment of fees for an accident reconstruction expert in a pretrial motion, arguing that an expert was necessary to respond to the testimony of the prosecution’s accident reconstruction expert from the state police and that such was demonstrated by that witness’ preliminary examination testimony. The trial court denied the request, finding that Kosciecha had failed to show a need for such expert. Kosciecha’s subsequent motion for rehearing was also denied. Regardless, he retained the desired expert, Daniel Lee, and later presented him as a witness at trial.
Thereafter, attorney Klevorn presented Daniel Lee’s bill along with his own bill for attorney fees. Klevorn subsequently filed a brief accompanied by the affidavit of one juror stating that he had found Lee’s testimony very enlightening on issues of particular concern to the jury. In its opinion and order, the trial court denied Klevorn’s request for payment.
We find that the trial court should have granted Kosciecha’s motion to appoint an accident reconstruction expert. Here Kosciecha argued that the tests and conclusions of the prosecution’s experts were faulty, that their results were in error, and that their testing procedures were inadequate. Compare People v Browning, 106 Mich App 516, 528; 308 NW2d 264 (1981), lv den 419 Mich 852 (1984). Thus, we conclude that the trial court erred in refusing to appoint an expert at public expense, and reverse the trial court’s findings regarding the payment of the fees for said witness.
Affirmed in part; reversed in part. | [
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Per Curiam.
Defendant appeals as of right from a November 19, 1986, order of the Ingham Circuit Court ruling that plaintiff was entitled to twelve percent interest per year on a $25,000 mediation evaluation award. Defendant also appeals as of right the court’s February 21, 1989, opinion and order denying his motion for reconsideration of the court’s order granting plaintiff twelve percent interest. We reverse.
On July 1, 1982, defendant was the driver of a vehicle involved in an accident with a car occupied by plaintiff and another individual. Defendant was insured by Michigan Mutual Insurance Company. As a result of the accident, plaintiff and the other occupant filed separate civil suits against defendant seeking damages for injuries they sustained. Plaintiff’s suit was filed on January 25, 1983.
After an assessment of defendant’s liability and the injuries incurred, Michigan Mutual offered to settle both claims by payment of the full policy limits of $50,000. Plaintiff and the other claimant rejected the offer and Michigan Mutual then filed an interpleader action in the Ingham Circuit Court seeking to tender the $50,000 with the court, pending resolution of both suits. In a November 8, 1984, order, the court accepted Michigan Mutual’s tender and ordered its counsel to act as an officer of the court and place the $50,000 into a federally insured financial institution. The money was deposited with First National Bank of Michigan in an insured money market account with a nine percent interest rate.
Thereafter, the other claimant involved in the accident entered into a settlement with defendant and accepted one half of the $50,000 in First National Bank of Michigan. All parties stipulated to the release of $26,289.61 to the claimant, which amount represented $25,000 plus nine percent interest accumulated to the date of withdrawal.
Plaintiff contends that she did not settle with defendant because such action would have adversely affected her pending dramshop actions. In any event, plaintiff’s suit against defendant proceeded to mediation. Plaintiff argued that she was entitled to $25,000 plus twelve percent interest compounded yearly from the date she commenced suit. On July 21, 1986, the mediation panel rendered an award in favor of plaintiff in the amount of $25,000 plus "appropriate” interest. Plaintiff and defendant accepted the award but stipulated to submit the question of appropriate interest to the circuit court for determination.
Subsequently, defendant filed a motion for determination of interest and in an order dated November 19, 1986, the court ordered that plaintiff was entitled to $25,000 plus twelve percent interest per year from the date plaintiff’s complaint was filed. Defendant’s motion for reconsideration was denied.
Defendant’s sole argument on appeal is that the trial court erred in ruling that plaintiff was entitled to statutory prejudgment interest of twelve percent per year from the date the complaint was filed pursuant to MCL 600.6013(4); MSA 27A.6013(4). We agree.
In the instant case, plaintiff’s $25,000 award resulted from the parties’ acceptance of the mediation panel’s evaluation. MCR 2.403(M)(1) provides:
If all the parties accept the panel’s evaluation, judgment will be entered in that amount. The judgment shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date of judgment. [Emphasis added.]
A panel of this Court, in Hatt v Cheff, 177 Mich App 679; 442 NW2d 732 (1989), held that the trial court in that case went against the clear language of MCR 2.403(M)(1) by erroneously awarding the plaintiff prejudgment interest on a $45,000 judgment entered pursuant to mutual acceptance of a mediation evaluation. Id., p 681. We are in complete agreement with the Cheff Court and find that the language of this court rule is plain and unambiguous. Thus, a judgment entered upon unanimous acceptance of a mediation evaluation shall include interest to the date of the judgment. The statement of the mediation award regarding interest is meaningless. The award does not preserve the question of prejudgment interest by indicating that plaintiff is awarded $25,000 plus "appropriate interest.” The stipulation to submit the question to the circuit court cannot empower that court to award a dollar amount plus prejudgment interest. The mediation rule governs and, as previously indicated, interest is included in the mediation award. The circuit court was therefore powerless to award interest beyond the interest earned while the money was held by the court pursuant to the interpleader. Accordingly, we reverse that portion of the court’s November 19, 1986, order providing that plaintiff was entitled to prejudgment interest at the rate of twelve percent per year from the date the complaint was filed.
Reversed and remanded for entry of a judgment consistent with this opinion. We do not retain jurisdiction. | [
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] |
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