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Shepherd, P.J.
Defendants appeal from a judgment of the circuit court entered in favor of plaintiff following a jury trial in the amount of $5,000 on a premises liability claim. The jury had awarded $10,000 in damages but reduced it after it found plaintiff fifty percent negligent. We affirm.
Plaintiff was injured when he fell from a seawall maintained by defendants. Plaintiff apparently tripped on a metal spike protruding from the seawall. Plaintiff had used the seawall for fishing over a period of time with the knowledge and approval of defendants.
The danger in this case, the exposed metal spike, was open and obvious. This was established by plaintiff’s admission that he was aware of the spike’s existence. He had, in fact, previously tried without success to remove it.
We believe that this case is controlled by Riddle v McLouth Steel Products Corp, 182 Mich App 259; 451 NW2d 590 (1990). In Riddle this Court reasoned that, if the encounter with a known or obvious danger has the effect of excusing the landowner’s duty, we would be back to the doctrine of contributory negligence as an absolute bar to recovery. We agree with Riddle.
Affirmed.
McDonald, J., concurred. | [
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] |
Hood, P.J.
The people appeal as of right from the June 30, 1989, order of the Kent Circuit Court dismissing three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2) (l)(a), and three counts of second-degree criminal sexual conduct, MCL 750.520c(l)(a); MSA 28.788(3) (l)(a). We affirm in part and reverse in part.
The charges against defendant arose out of in formation provided to the Grand Rapids Police Department in 1989 by the alleged victim. The victim informed Officer Christine Karpowicz that defendant had sexually assaulted her on numerous occasions between the fall of 1978 and August, 1982. The victim was under the age of eighteen during this time period.
Officer Karpowicz obtained a search warrant for defendant’s home from the Sixty-first District Court on April 27, 1989. The facts supporting the warrant were: (1) defendant sexually assaulted the victim from the fall of 1978 when she was five years old until August, 1982, when she was ten years old; (2) defendant performed various acts of sexual touching and penetration; (3) defendant photographed and videotaped the acts; and (4) the victim observed photographs and videotapes at defendant’s residence.
The search warrant was executed and an abundance of evidence was retrieved from defendant’s home. The evidence included videotapes depicting defendant engaged in sexual acts with children and commercially produced child pornography.
As a result of the items seized, defendant was arrested on April 28, 1989, and charged with multiple counts of criminal sexual conduct against the victim involved in the instant case as well as a second victim discovered upon review of the videotapes. The assaults upon the second victim are not at issue in the instant appeal.
In any event, defendant filed a motion to dismiss both cases and to exclude evidence seized during the search of his residence. A hearing on the motion was held in the Kent Circuit Court on June 23, 1989. The basis of defendant’s motion for dismissal with respect to the charges involved in' this appeal was that, since August, 1982, was the last date on which an offense allegedly occurred, his April, 1989, arrest was barred by the six-year statute of limitations in effect at the time the crimes took place. MCL 767.24; MSA 28.964. Defendant further argued that the amended version of MCL 767.24; MSA 28.964 which extended the statute of limitations in certain criminal sexual conduct cases involving minors applied only prospectively. See MCL 767.24(2); MSA 28.964(2).
Defendant’s motion to suppress evidence was premised on a claim that the search warrant was based upon an affidavit containing stale information and thus was defective.
In a detailed written opinion dated June 30, 1989, the circuit court granted defendant’s motion to dismiss and suppress evidence. An order dismissing the case presently before this Court was entered on the same date.
i
The people first argue that the trial court erred in ruling that the amended statute of limitations in MCL 767.24(2); MSA 28.964(2) should not be applied retroactively and thus was inapplicable to defendant’s case.
MCL 767.24; MSA 28.964 was amended by 1987 PA 255, effective March 30, 1988, to extend the limitation period for criminal sexual conduct cases involving victims who were under the age of eighteen at the time an offense occurred. The amended statute specifically states:
Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim’s twenty-first birthday, whichever is later. [MCL 767.24(2); MSA 28.964(2).]
The circuit court, in granting defendant’s motion to dismiss, opined: (1) that an amendment to a statute of limitations only applies prospectively absent a contrary legislative intent, and no such intent existed in this case; and (2) that retroactive application of the amended limitation period would violate the constitutional prohibition against ex post facto laws. We will address each of the trial court’s findings separately.
First, it is true that in Michigan statutes are generally presumed to operate prospectively unless a contrary legislative intent is shown. Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). This rule has been specifically applied to amendments to statutes of limitation governing civil cases. See Harrison v Metz, 17 Mich 377, 378 (1868); Great Lakes Gas Transmission Co v State Treasurer, 140 Mich App 635, 650-651; 364 NW2d 773 (1985); Farris v Beecher, 85 Mich App 208, 214; 270 NW2d 658 (1978); International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 612-613; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977). However, in the instant case, we are faced with deciding whether amendments extending statutes of limitation applicable to criminal cases apply retroactively. After thorough review of the relevant authority, we believe that they do.
It has been stated:
Statutes limiting the time for the prosecution of offenses may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by completion of the period of limitation, but where a complete defense has arisen under such a statute, it cannot be taken away by a subsequent repeal thereof.
So, too, where a statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period although the original period of limitation had then expired; and such a statute is not invalid. A limitation act, however, cannot operate to revive offenses which were barred at the time of its enactment. [22 CJS, Criminal Law, § 197, p 243, emphasis added; see also 21 Am Jur 2d, Criminal Law, § 224, pp 410-411.]
A rationale for the rule allowing retroactive application of a statutory amendment extending a limitation period was articulated by Judge Learned Hand in Falter v United States, 23 F2d 420, 425-426 (CA 2, 1928):
Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has been safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time ñrst set, or, if it does, the stake forgives it. [Emphasis added.]
We find the aforementioned authority persuasive and believe that the rule with respect to statutes of limitation applicable to criminal cases should be that, when a statute extends the limitation period, the extension applies to offenses not barred at the time the amendment was passed and thus a prosecution may be commenced at any time within the newly established period. See People v Lewis, 180 Cal App 3d 821; 225 Cal Rptr 782 (1986); State v Wolfe, 61 SD 195; 247 NW 407 (1933); People v Buckner, 281 Ill 340; 117 NE 1023 (1917).
We also believe that the above conclusion is sound, considering the fact that in this case the amended limitation period would be applied to criminal sexual conduct against a minor. This rationale was enunciated by the Massachusetts Supreme Court in Commonwealth v Bargeron, 402 Mass 589; 524 NE2d 829 (1988).
In Bargeron the defendant was charged with several counts of assault with intent to commit rape involving children. The offenses occurred from 1979 to 1980 and defendant was indicted in 1987. During the time the alleged crimes took place, the applicable Massachusetts statute of limitations was six years. See Mass Gen Laws ch 277, § 63 (1986 ed). However, in July, 1985, the statute was amended by 1985 Mass Act ch 123, § 63 which extended the limitation period to ten years. The amendment became effective on September 30, 1985. The Bargeron court addressed the issue whether the amended statute of limitations could be retroactively applied. In concluding that the amendment had retroactive effect, the court stated:
It may be argued that the [Massachusetts] Legislature recognized the delays commonly and understandably associated with a child’s report of sexual abuse and wished to accommodate such delays by an extension of the statute of limitations. It makes good sense for the Legislature to consider what is increasingly one of the great scourges of our society—the sexual abuse of children. [Bargeron, 402 Mass 593.]
We believe that the same argument can be made with respect to the Michigan Legislature’s intent in extending the limitation period in criminal sexual conduct cases in which the victim was a minor at the time the offense occurred. The Legislature’s action could be viewed as an attempt to alleviate the delayed reporting problem inherent in the sexual assault of children. We are cognizant of the fact that children, in many instances and for varied reasons, do not or cannot disclose assaults to the appropriate persons. Therefore, we feel that allowing extension of the limitation period governing this case, MCL 767.24(2); MSA 28.964(2), to apply to sexual offenses against minors in which prosecution was not barred at the time the amendment was passed is not unreasonable or unfair. The trial court’s initial finding in this case that the statute of limitations should only apply prospectively was erroneous.
We now address the trial court’s second finding that retroactive application of the amended limitation period would violate the constitutional prohibition against ex post facto laws.
We begin by reiterating a point alluded to earlier in our opinion that an amendment extending a statute of limitations should not operate to revive offenses already barred at the time of its enactment. See 22 CJS, Criminal Law, § 197, p 243; 21 Am Jur 2d, Criminal Law § 224, p 411. Such action would clearly make the amendment violate the ex post facto clauses of the United States and Michigan Constitutions. US Const, art I, § 10; Const 1963, art 1, § 10. However, we do not believe that extending a limitation period before a prosecution is barred violates the prohibition against ex post facto laws.
The Michigan Supreme Court in In re Hoffman, 382 Mich 66, 71-72, n 1; 168 NW2d 229 (1969), adopted by reference the following definition of an ex post facto law set forth in Calder v Bull, 3 US (3 Dall) 386; 1 L Ed 648 (1798):
1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder, p 390; See also People v Stevenson, 416 Mich 383, 396; 331 NW2d 143 (1982).
In addition, in Weaver v Graham, 450 US 24, 29; 101 S Ct 960; 67 L Ed 2d 17 (1981), the United States Supreme Court stated:
[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.
In Commonwealth v Bargeron, supra, the Massachusetts Supreme Court addressed whether retroactive application of its amended statute of limitations violated the constitutional prohibition against ex post facto laws. In doing so, the Court concluded that the extension of the statute of limitations did not fall into any of the definitions of an ex post facto law enunciated in Calder. The Bargeron court noted that all an extension accomplished was to extend the time within which the government could prosecute. Id.
The Bargeron court’s conclusions are firmly supported by decisions from the federal bench. For example in United States ex rel Massarella v Elrod, 682 F2d 688 (CA 7, 1982), cert den 460 US 1037; 103 S Ct 1426; 75 L Ed 2d 787 (1983), the United States Court of Appeals discussed whether an extension to a statute of limitations which took effect prior to expiration of the former limitation period could be retroactively applied. The Massarella court concluded that application of an extension to a limitation period before a prosecution is barred would not violate the ex post facto clause. 682 F2d 689. The court indicated that extension of a limitation period was merely a procedural change and noted that the United States Supreme Court in Weaver v Graham, supra, p 29, n 12, quoting Hopt v Utah, 110 US 574, 590; 4 S Ct 202; 28 L Ed 262 (1884), had stated:
[N]o ex post facto violation occurs and the change effected is merely procedural, and does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.”
See also Massarella, supra, p 689; Falter v United States, supra, pp 425-426.
We, like the Massarella court, believe that extension of the statute of limitations in this case constituted a procedural change since it simply extended the time within which the government could prosecute defendant. Bargeron, supra. Therefore, no ex post facto violation would occur in applying the amended statute of limitations to defendant. Several other jurisdictions have also held that extending the limitation period in criminal cases does not violate the constitutional prohibition against ex post facto laws if the new period is applied to offenses not barred at the time of passage of the law creating the extension. See State v Nunn, 244 Kan 207; 768 P2d 268 (1989); State v Creekpaum, 753 P2d 1139 (Alas, 1988); Clements v United States, 266 F2d 397, 399 (CA 9, 1959), cert den 359 US 985; 79 S Ct 943; 3 L Ed 2d 934 (1959).
The trial court erred in finding that retroactive application of the amended statute of limitations would violate the constitutional prohibition against ex post facto laws.
Taking into consideration all of the above authority, we conclude that the trial court erred in granting defendant’s motion to dismiss the charges. The last offense defendant was alleged to have committed against the victim occurred in August, 1982. Under the old six-year statute of limitations, MCL 767.24; MSA 28.964, the last possible date defendant could have been charged with the offenses would have been August, 1988. The statute of limitations was amended effective March 30, 1988, prior to the expiration of the limitation period of the old statute as applied in this case. Therefore, prosecution of defendant was not barred at the time the amendment was enacted and charges against defendant could be brought any time within the new limitation period.
In sum, the amended statute of limitations in MCL 767.24(2); MSA 28.864(2) should be given retroactive effect and such action would not violate the constitutional prohibition against ex post facto laws.
ii
Plaintiff next argues that the trial court erred in (1) ruling that the search warrant was defective, and (2) suppressing the evidence. We disagree.
In granting defendant’s motion to suppress, the trial court ruled that the affidavit supporting the search warrant was based upon stale information almost seven years old. In addition, the court found that the affidavit did not assert that (1) illicit activity had occurred during the seven-year period, (2) the passage of time was irrelevant, or (3) defendant still resided at the address where he stored the photographs and videotapes. On the basis of these findings, the trial court concluded that the affidavit did not support a finding of probable cause to believe that the items sought remained on the premises. Thus, the trial court determined that the search warrant was defective and the resulting seizure was illegal.
We review a trial court’s ruling on a motion to suppress under the "clearly erroneous” standard. Therefore, the court’s decision will be affirmed unless, upon review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v Toohey, 183 Mich App 348, 352; 454 NW2d 209 (1990). Our review of the record indicates the trial court properly granted defendant’s motion to suppress.
A search warrant may not issue unless probable cause exists to justify the search. US Const, Am IV; Const 1963, art 1, §11; MCL 780.651; MSA 28.1259(1). Probable cause exists when the facts and circumstances would allow a person of reasonable prudence to believe that evidence of a crime or contraband sought is in the stated place. People v White, 167 Mich App 461, 463; 423 NW2d 225 (1988), lv den 430 Mich 874 (1988).
A search warrant must be supported by probable cause existing at the time the warrant is issued. People v Osborn, 122 Mich App 63, 66; 329 NW2d 533 (1982). Therefore, the passage of time is a valid consideration in deciding whether probable cause exists. People v David, 119 Mich App 289, 295; 326 NW2d 485 (1982). There is no bright-line rule as to how much time may intervene between obtaining the facts and formulating the affidavit upon which the warrant is based. People v Mush-lock, 226 Mich 600, 602; 198 NW 203 (1924). The measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but on whether probable cause is sufficiently fresh to presume that the items sought remain on the premises. People v Sundling, 153 Mich App 277, 286-287; 395 NW2d 308 (1986), lv den 428 Mich 887 (1987), quoting People v Gillam, 93 Mich App 548, 553; 286 NW2d 890 (1979). If a pattern of violations is established by a history of criminal activity, a lapse of time is less critical, especially where information has been received which confirms the basic information supporting the warrant. Sundling, supra, p 286.
After reviewing the affidavit and record, we believe the probable cause in this case was not sufficiently fresh to presume that the items sought remained on the premises. Sundling, supra. The affidavit in this case contained information nearly seven years old and did not allege that any crimi nal activity occurred between August, 1982 (last date of an alleged oifense) and April 27, 1989 (date on which the search warrant was obtained). Therefore, the affidavit did not establish a pattern of criminal conduct sufficient to transform the stale information into fresh probable cause. Id., p 288. Finally, the affidavit did not give any reasons why the passage of time was irrelevant.
Consequently, we reluctantly conclude that the trial court correctly found that the search warrant was based upon an affidavit containing stale information and that, therefore, the warrant was defective and the resulting seizure was illegal. We are not left with a definite and firm conviction that a mistake was made. Toohey, supra.
The trial court properly granted defendant’s motion to suppress.
in
In light of the foregoing conclusions, we reverse the trial court’s dismissal of the charges, but affirm the court’s suppression of the evidence.
Affirmed in part and reversed in part.
The charges involving the second victim are not at issue because the prosecution concedes that (1) the charges were properly dismissed based upon expiration of the old statute of limitations, and (2) the amended limitations period did not apply retroactively to that case.
In Michigan, an exception to the general rule favoring prospective application of a statute has been recognized where the statute is remedial or procedural in nature. A panel of this Court recently applied this exception to a criminal case. See People v Bates, 175 Mich App 490, 492; 438 NW2d 298 (1989). | [
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] |
Per Curiam.
Plaintiff appeals by leave granted from an opinion and order of the Workers’ Compensation Appellate Commission affirming with significant modification the magistrate’s decision which awarded him benefits. The issue on appeal concerns the calculation of plaintiff’s average weekly wage. We affirm.
The underlying facts are essentially undisputed. Plaintiff began working as a construction worker for defendant Barton Malow Company on January 10, 1986. On February 19, 1986, plaintiff was permanently disabled when he was struck by a one-ton load of concrete dropped from an overhead crane.
Plaintiff’s earnings record with the defendant company is as follows:
Plaintiff worked only one day of the last week because his injury occurred at that time.
Defendants commenced voluntary payments to plaintiff which were subsequently reduced to $275.85, based on an average weekly wage of $468.14 for seven weeks worked. Although plaintiff attempts to argue here that he worked only five weeks and three days, plaintiff stipulated below that he worked 6.2 weeks.
Following a hearing on this matter, the magistrate determined that plaintiffs average weekly wage should be based on six weeks of work. The appellate commission subsequently modified the magistrate’s decision, ruling that plaintiffs average weekly wage was to be based on seven weeks worked. The appellate commission concluded that a week during which any work was performed must be considered a week "actually worked” under MCL 418.371(3); MSA 17.237(371X3):
If the employee worked less than 39 weeks in the employment in which the employee was injured, the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked. For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked.
As part of its opinion in this matter, the appellate commission incorporated and applied the reasoning from one of its previous decisions, Dolliver v RPI, Inc, 1988 WCACO 206, 222-223:
Subsection 418.371(3) of the Act does allow dropping of weeks in which no work is performed in doing its dividing of total wages earned by total number of weeks actually worked; "For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked.” The subsection does not provide, though, that only those weeks in which work is performed all week shall be considered in computing the total wages earned and the number of weeks actually worked.
It could well be that an employee is injured during the second week on the job, and misses a day each week thereafter because of the injury’s residual effects. The Act does not provide that all weeks but the first on the job then be dropped in computing average weekly wage under the provisions of its subsection 418.371(3). .
Only subsection 418.371(4) addresses the question of partial weeks worked:
"If an employee sustains a compensable injury before completing his or her first work week, the average weekly wage shall be calculated by determining the number of hours of work per week contracted for by that employee multiplied by the employee’s hourly rate, or the weekly salary contracted for by the employee.”
See Verkeyn v Revere Mold & Engineering, 1988 [WCACO 142.]
It is subsection 418.371(6) of the Act which plaintiff wishes used to calculate average weekly wage. However, it must be borne in mind that the provisions of that subsection are to be applied only if there are special circumstances. Chances are four to one, though, that an injury which puts an employee out of. commission will happen on a Monday, Tuesday, Wednesday, or Thursday, as opposed to on a Friday. Applying the provisions of subsection 418.371(6) in a probable 80 percent of such cases is hardly reserving their application to special circumstances. If we must count a last partial week worked as a week for purposes of calculating average weekly wage under the provision of subsection 418.371(3) of the Act, then we must count any earlier partial week worked.
This comports with the rationale of Valt v Woodall Industries, Inc, 391 Mich 678 [219 NW2d 411] (1974) , that benefits of the Act are conferred only upon those who miss full weeks. ... No one but the Legislature may remedy its oversight. Lake Carriers’ Ass’n v Director of the Dep’t of Natural Resources, 407 Mich 424 [286 NW2d 416] (1979); Solakis v Roberts, 395 Mich 13, 21 [233 NW2d 1] (1975) ; Autio v Proksch Construction Co, 377 Mich 517 [141 NW2d 81] (1966); Tews v CF Hanks Coal Co, 267 Mich 466 [255 NW 227 (1934); and Luyk v Hertel, 242 Mich 445 [219 NW 721] (1928).
The appellate commission concluded that the plaintiff in this case performed work in seven separate weeks and that all seven weeks should be counted for purposes of determining his average weekly wage.
This Court’s review of an appellate commission decision is extremely limited. Appellate review is limited to questions of law and, in the absence of fraud, the findings of fact are conclusive if supported by any competent evidence on the record. Upton v General Motors Corp, 124 Mich App 61, 64; 333 NW2d 384 (1983), lv den 417 Mich 1100.12 (1983); DeVores v Ford Motor Co, 171 Mich App 354, 360; 429 NW2d 900 (1988). We give great deference to an agency’s interpretation of a statute. Tercheck v Dep’t of Treasury, 171 Mich App 508, 512; 431 NW2d 208 (1988). We cannot say the appellate commission’s decision in this case is contrary to law.
Affirmed. | [
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] |
Per Curiam.
On remand from our Supreme Court, we have been asked to reconsider our opinion in Allstate Ins Co v Miller, 175 Mich App 515; 438 NW2d 638 (1989), in light of our Supreme Court’s recent decision in Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989). On reconsideration, we affirm our original decision reversing the judgment of the trial court.
At issue in this case is the following exclusionary clause contained in a homeowner’s insurance policy issued by plaintiff to defendant Sandra Silver’s decedent:
We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.
In Freeman, supra, our Supreme Court examined an identical clause and agreed that a two-part test must be applied in determining whether an insurer may obviate its duty to defend or indemnify under the exclusion. Pursuant to this clause, coverage will be excluded when (1) the insured acted either intentionally or criminally, and (2) the resulting injury was either reasonably expected or actually intended to result from such intentional or criminal conduct. See Freeman, p 685. As we noted in our original decision, this exclusionary clause requires the presence of two different mind states: the intention to act and the intention to cause injury (either an actual injury or one that is reasonably expected). Miller, supra, p 520. Freeman was primarily concerned with that part of the exclusion dealing with the intent to cause injury, particularly the criteria for evaluating when an injury is reasonably expected. The Court held that an injury is reasonably expected where it is the natural, foreseeable, expected, and anticipated result of the intentional or criminal conduct. Freeman, supra, pp 687-688. Further, the Court held that whether an injury could "reasonably be expected” required application of an objec tive, as opposed to a subjective, standard of expectation. Id., p 688.
In deciding Miller, however, we did not focus on the portion of the exclusion dealing, with the intent to cause injury as did the Court in Freeman. Rather, our focus was on the insured’s intent to act in the first instance. In this regard, we noted that insanity may preclude a person from forming a certain specific intent and, therefore, we agreed with those decisions from other states holding that when a person cannot form an intent to act because of insanity he or she has not acted intentionally as that term is used in insurance policies, unless the policy explicitly states otherwise. Miller, supra, pp 521-522. The issue of insanity, and whether it precludes a person from acting intentionally or criminally within the insurance law context, was not discussed in Freeman. Thus, we conclude that Freeman does not change our original decision.
Accordingly, we again conclude that the presence of expert testimony to the effect that plaintiffs insured was either not aware of what he was doing or was unable to control his actions when he embarked on a killing spree established a genuine issue of material fact as to whether the plaintiffs insured acted intentionally. Therefore, summary disposition was improper.
Reversed.
Pursuant to Court policy, Judge Cynar has been substituted for visiting Circuit Judge C.W. Simon, Jr., who sat as a member of the original panel in this matter by assignment. | [
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Per Curiam.
Defendant appeals by leave granted the Workers’ Compensation Appellate Commission’s order reversing the decision of the magistrate on the basis that his decision was not supported by competent, material, and substantial evidence on the whole record. In our order granting leave to appeal, this Court ordered the parties to address the following questions:
(1) What is the standard by which the Court of Appeals reviews Workers’ Compensation Appellate Commission review of findings of fact made by the magistrate in this case and does it differ, if at all, from the standard by which the Court of Appeals would have reviewed a finding of fact made by the Workers’ Compensation Appeal Board? See Aquilina v General Motors Corp, 403 Mich 206, 213 [267 NW2d 923] (1978) and §§ 861 and 861a of the Workers’ Disability Compensation Act.
(2) Can the Appellate Commission reverse or modify a magistrate’s fact-findings which are supported by the testimony of at least one qualified expert who has a rational basis for his views? See Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, 130 Mich App 470, 481 [344 NW2d 321] (1983); Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116 [223 NW2d 283] (1974).
We now reverse the appellate commission’s order and reinstate the magistrate’s order.
Plaintiff, decedent’s widow, filed a claim for workers’ compensation arising from decedent’s death, which occurred on July 11, 1986, claiming that continuous job stress caused or aggravated injury to decedent’s heart. Defendant disputed the claim, alleging that death was caused by hypertensive and arteriosclerotic cardiovascular disease.
The magistrate heard the following testimony. Decedent’s supervisor testified that decedent worked for defendant as a food service supervisor, managing four cafeterias and three dining rooms. Three of the cafeterias and two of the dining rooms were in various locations; the remaining cafeteria and dining room were in the Renaissance Center, where decedent’s office was. Decedent was also responsible for managing night banquets, which occurred between one and four times each week, depending on the season, and providing dinners for one-week seminars, which were conducted twice each month, excluding the summer months. Decedent was also responsible for supervising breakfasts, lunches, and dinners on Grand Prix weekends. Decedent also handled union grievances at the first level.
Decedent was a heavy smoker, smoking 2V£ packages of cigarettes each day, and had previously been reprimanded for a drinking problem.
Ruth Little, an employee whom decedent supervised, testified that on June 19, 1986, before the Grand Prix weekend, decedent was very upset, short of breath and complained to her for one hour. Little testified that continental breakfasts and lunches five times a week as well as dinner three or four times a week were required for each seminar.
Daniel Micallef, another employee supervised by decedent, testified that decedent did inventory, scheduled employees, and prepared menus. Decedent began ordering food for the Grand Prix two weeks in advance and ordered food for the seminars. Decedent was worried when he had to plan parties for top executives.
Micallef came to work at 6:00 a.m. on July 11, 1986. Decedent came in at 8:30 A.M., although he was normally there at 7:00 or 7:30 a.m. Micallef was in decedent’s office when he came in. Decedent removed his coat and had his sleeves rolled up. Decedent sighed and Micallef asked him what was the matter. Over defendant’s hearsay objection, Micallef testified that decedent said that "he had just took [sic] the stairs and he wasn’t feeling well. His hands were clammy and his chest hurt.” Plaintiff claimed that the statement was admissible pursuant to MRE 803(l)-(3). The magistrate found that this was a statement of then-existing physical condition. MRE 803(3). Micallef testified that decedent did not look well and that his coloring was gray. Micallef suggested that decedent go to the medical department and be checked. Decedent refused and remained seated in his chair. Micallef left.
Micallef returned shortly to ask decedent about an evening party and, while in decedent’s office, turned to tell something to his secretary. When Micallef turned back, decedent was lying over his desk, coughing or choking. Decedent was turning red. Micallef instructed the secretary to call the medical department and the Emergency Medical Service. The medical department received an emergency call at 9:07 a.m. Another employee came in and helped Micallef lay decedent on the floor. Micallef discovered that decedent did not have a pulse and attempted cardiopulmonary resuscitation. Decedent resumed congested breathing. Two nurses then came in and took over. One of the nurses stated that decedent was "fibrillating.”
Micallef testified that decedent spent one-half of his work time sitting and the other half moving. Decedent worried when important executives would be attending functions.
Micallef also testified that there were more than one set of stairs in the Renaissance Center and there were two sets of stairs leading outside. Micallef did not ask decedent which set of stairs he had taken; however, Micallef believed that decedent had come in from outside because he had his coat on. Micallef did not know decedent’s usual way of entering the building, but believed that decedent normally parked in m lot. Micallef explained that one set of outside stairs ran from the 300 Tower to a motel parking lot; another set ran from the 300 Tower to c lot. There were three flights of steps, each containing "about” ten steps from the motel parking lot. Micallef believed that decedent was talking about those steps. Micallef indicated that decedent would have ridden in an elevator after taking the stairs.
Plaintiff testified that decedent began working for defendant in January or March of 1965. Plaintiff testified that, during the last year decedent worked, he appeared very tired and over-worked. Plaintiff testified that, during the week before the Grand Prix, decedent told her that he could not handle the stress on the job anymore and that his subordinates were "driving him crazy.” Decedent stated that the long hours and stress would cause him to have a heart attack. Decedent told plaintiff that he was having "twinges in his chest around his heart.”
Decedent’s time records show that he worked five hours overtime June 13, 16, and 17, 1986. Decedent also worked 5 Vi hours overtime on June 18, 3 Vi hours overtime on June 19, 2 hours overtime on June 20, 9 hours overtime on Saturday, June 21, 11 Vi hours overtime on Sunday, June 22, and 6 hours overtime on Monday, June 23 and Wednesday, June 25. On Tuesday, June 24, decedent apparently worked his normal hours, from 6:30 a.m. until 3:00 p.m.
On June 26, decedent took two hours vacation time and on Friday, June 27, decedent took four hours vacation time. Decedent was on vacation from June 28 until July 7. During his vacation, decedent drove to Kentucky and then to North Carolina to play golf. Decedent returned to Kentucky by July 4; on July 5, decedent’ son-in-law drove him back to Michigan.
From July 7 until July 9, decedent did not mark his hours and was given credit for his regular hours. On July 10, decedent did not mark any hours worked, but marked six hours as vacation time.
Defendant’s medical records show that on July 11, the nurses arrived at 9:10 a.m. and observed decedent lying on his back. Decedent had some gasping respirations, followed by lack of breathing. Mouth-to-mouth resuscitation was given without success. A large amount of mucus was suctioned from decedent’s mouth. Decedent’s pulse rate was at seventy-six. An oral airway was inserted, and an oxygen mask was attached. No pulse and no breathing occurred, and cardiopulmonary resuscitation was continued. At the hospital, further efforts to revive decedent were unsuccessful.
Before 1986, decedent last went to defendant’s medical department on April 1, 1981. Plaintiff testified that decedent last went to his personal physician in 1985, when he had the flu. While plaintiff urged decedent to go to the doctor, he did not.
The magistrate also reviewed three medical depositions. Doctor Werner U. Spitz, one of plaintiff’s experts and a board certified pathologist and forensic pathologist, testified that he did an autopsy on decedent, who was fifty-six years old at the time of his death. In the autopsy report, Spitz stated that decedent died of arteriosclerotic and hypertensive heart disease, that decedent’s heart was enlarged, and that the coronary arteries were reduced to one-quarter of their original diameter (i.e., seventy-five percent occluded). Decedent was noted to be "somewhat overweight,” weighing 186 pounds and measuring five feet, nine inches tall. In his notes, Spitz indicated that the heart had "no scars, no recent infarct.” Spitz listed hypertensive and arteriosclerotic cardiovascular disease as the immediate cause of decedent’s death on his death certificate.
In response to plaintiff’s attorney’s letter, Spitz wrote:
Mr. Holden suffered of [sic] severe arteriosclerotic and hypertensive heart disease with evidence of old and recent myocardial damage. The wall of the left ventricle of the heart was considerably thickened. The coronary arteries were markedly narrowed, causing inadequate blood supply to the heart muscle.
Based upon the post mortem examination of the body and review of the job description provided to me, there can be no doubt that Mr. Holden’s heart disease was aggravated by the stress of his job and this stress precipitated the myocardial infarction which resulted in his death.
Spitz testified that a "myocardial infarction is a condition where the heart muscle dies and becomes scarred over a long period of time brought on by [an] obstruction of a coronary artery, and as part of the arteriosclerotic process.” Spitz also testified that the stress of decedent’s employment aggravated and accelerated his heart disease. Asked if there were any specific incidents or events which caused or significantly contributed to decedent’s heart damage, Spitz opined:
The general worry that goes on with an in creased work load and the completion of the same and specifically the climbing up of the stairs on the last day of his life when he came to the work area complaining of chest pain after he had just run up the flight of stairs all point towards [sic] my previously stated opinion.
Spitz then testified that the cause of decedent’s death was a heart attack. Spitz stated that this cause of death was determined after the death certificate was completed because he subsequently examined decedent’s heart tissues under a microscope. Spitz conceded that diet and smoking are related to arteriosclerosis.
Doctor Donald Lawrence Newman, plaintiffs other expert and a board certified family practitioner, testified that he was also qualified in the area of internal medical problems. After reviewing decedent’s death certificate, autopsy report, and medical history as well as witnesses’ statements, Newman responded to plaintiffs attorney’s letter as follows:
Mr. Holden had preexisting arteriosclerotic heart disease. His major risk factors were: hypertension, smoking and significant stress, especially related to the long work hours and management responsibility. These risk factors accelerate the arteriosclerotic process.
There is a suggestion of prior heart problems with the noting of "twinges” in the chest the prior year while serving at the Grand Prix. However, the most significant factor in this occupational history is the climbing of the steps on the day of his demise. This was performed in the course of his occupation and was the significant factor to precipitate the myocardial infarction leading to his death at work, or in transport to the hospital.
Doctor Robert Gerisch, defendant’s expert, was board certified in internal medicine, and specialized in cardiology. Gerisch testified that he examined the slides prepared by Spitz and found no evidence of old or recent myocardial infarction. Gerisch explained that the slides showed no evidence of the type of scarring as would be the case with a myocardial infarction, but, instead, showed little scar formations consistent with the natural aging process. Gerisch also testified that stress does not cause or accelerate arteriosclerosis. Gerisch opined that decedent’s work did not cause or accelerate his arteriosclerosis.
The magistrate applied the test outlined by our Supreme Court in Miklik v Michigan Special Machine Co, 415 Mich 364; 329 NW2d 713 (1982), under which the factfinder must determine whether there is heart damage and whether that damage can be linked to the employment. The magistrate found that there was no evidence that decedent had experienced mental distress before he died. The magistrate further found:
A specific finding is made relative to the suggestion in the medical testimony that somehow climbing of stairs on the morning of July 11, 1986 might be related to whatever cardiac episode decedent experienced. The record evidence concerning when such stairs were climbed, their number, and the interval between this activity and decedent’s collapse is sketchy indeed. Without such information I found that the medical testimony positing such as a cause of death to be grossly speculative and such is rejected.
Noting that the Miklik standard was not met, the magistrate nonetheless went on to find that Spitz’ opinion that decedent’s death was aggravated and accelerated by emotional and physical job stress was without evidentiary foundation. Moreover, the magistrate rejected Spitz’ testimony concerning a myocardial infarction because he did not indicate the basis for his conclusion in his testimony.
Plaintiff appealed, claiming that the magistrate’s decision was not supported by competent, material and substantial evidence on the whole record. Plaintiff claimed that Micallef s testimony concerning stair climbing was sufficient to support a specific cause for decedent’s heart attack. Moreover, plaintiff argued that Spitz stated that he came to his conclusion that decedent had had a myocardial infarction after he reviewed slides he had prepared.
The appellate commission held that the magistrate did not make any specific findings as to whether decedent sustained heart damage. The appellate commission did note that the magistrate had rejected Spitz’ conclusion that decedent suffered a myocardial infarction because he failed to indicate the basis for his conclusion. The appellate commission stated that the magistrate’s finding was erroneous because Spitz testified that his microscopic examination revealed old and recent myocardial infarction. The appellate commission then reviewed the various experts’ testimony and concluded that Spitz’ testimony was more persuasive than Gerisch’s because Spitz was a pathologist and Gerisch was an internist. The appellate commission then concluded that decedent suffered heart damage in the form of a myocardial infarction. The appellate commission noted that, even if it had not concluded that decedent had suffered heart damage in the form of a myocardial infarction, the arrhythmia, testified to by Gerisch, was also heart damage when sudden death resulted.
Turning to the issue of causation, the appellate commission determined that Micallefs testimony as to what decedent told him when decedent entered his office was admissible pursuant to MRE 803(1) and (3). The appellate commission then held that the magistrate erred in concluding that the stair-climbing incident was not sufficiently proven and that it was not the cause of decedent’s death.
In response to defendant’s claim that the magistrate had erroneously applied the Miklik test rather than the test subsequently required by MCL 418.301(2); MSA 17.237(301X2), the appellate commission held:
We agree that pursuant to Section 301, claimants seeking compensation for heart and cardiovascular conditions must establish that their employment contributed to or accelerated the condition in a significant manner. However, where as here, the claimant suffered actual heart damage in the form of a myocardial infarction, it is unnecessary to determine the effect of Section 301(2) on plaintiff’s claim.
In so holding, the appellate commission cited Mulka v Providence Hospital, 1988 WCACO 27.
The appellate commission then reversed the magistrate’s conclusion, holding that there was an increased period of stress before decedent’s death, which produced chest pain; that decedent had climbed three flights of stairs, which left him ill; that immediately thereafter decedent suffered a myocardial infarction and died; and that decedent’s heart damage was linked to his employment. Therefore, the appellate commission awarded death benefits to plaintiff. We note that one commissioner concurred in the result only.
Defendant then filed for leave to appeal, claiming that the magistrate’s decision was supported by substantial evidence and, therefore, the appellate commission erred in reversing it. Moreover, the defendant argued that the appellate commission erred in concluding that plaintiff did not have to prove that decedent’s employment significantly aggravated his arteriosclerosis. As noted above, we granted leave to appeal and ordered the parties to address two questions.
Const 1963, art 6, § 28 provides in part:
Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
MCL 418.861; MSA 17.237(861), setting forth this Court’s standard of review of Workers’ Compensation Appeal Board decisions, provides:
The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law. involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.
MCL 418.861a(14); MSA 17.237(861a)(14), setting forth this Court’s standard of review of Workers’ Compensation Appellate Commission decisions, provides:
The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission, if application is made by the aggrieved party within 30 days after the order by any method permissible under the Michigan court rules.
While the language in these sections is virtually identical, the functions of the appeal board and the appellate commission are different. See generally Civil Service Comm v Dep’t of Labor, 424 Mich 571, 576-587; 384 NW2d 728 (1986), modified 425 Mich 1201 (1986).
Under the Workers’ Disability Compensation Act of 1969, the hearing referee heard disputes arising from the act. MCL 418.847, 418.851; MSA 17.237(847), 17.237(851). The referees were expected only to state their decision in conclusory terms and ordinarily did so by filling in the blank spaces on a one-page printed-form order. Civil Service Comm, supra, p 581. On appeal, the appeal board reviewed the records and the order. The appeal board could hear the parties and take additional evidence if desired. MCL 418.859; MSA 17.237(859). The appeal board then announced its findings of fact and conclusions of law in written opinions. In Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135; 274 NW2d 411 (1979), our Supreme Court held that the appeal board was required to review the referee’s decision de novo and that its primary function was finding the controlling facts. The Court also held that the constitution and the statute granted finality to the appeal board’s findings of fact, not the referee’s. Id. Hence, the appellate courts reviewed the appeal board’s decisions by (1) reviewing questions of law, (2) determining whether there was any fraud associated with the findings of fact made by the board and (3) determining whether there was any competent evidence in the record to support the findings of fact made by the board. Aquilina, supra, p 213.
1985 PA 103 substantially revised the Workers’ Disability Compensation Act of 1969. In addition to their written opinions, magistrates were re quired to file a concise written opinion stating findings of fact as well as conclusions of law. MCL 418.847(2); MSA 17.237(847X2). Moreover, the appellate commission was established in lieu of the appeal board.
MCL 418.861a; MSA 17.237(861a) provides:
(3) Beginning October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, "substantial evidence” means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.
(4) As used in . . . (3) "whole record” means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.
(8) A party filing a claim for review under section 859a shall specify to the commission those portions of the record that support that party’s claim and any party opposing such claim shall specify those portions of the record that support that party’s position.
(10) The commission or panel of the commission, [sic] may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.
(11) The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed.
(12) The commission or a panel of the commission may remand a matter to a worker’s compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review. (13) A review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.
In essence, 1985 PA 103 was intended to make the magistrate the factfinder and eliminate de novo review by the appellate commission. Instead, the appellate commission was to review the magistrate’s decision to determine if it was supported by competent, material and substantial evidence on the whole record. The statutory language parallels the language discussed in Michigan Employment Relations Comm, supra. By mandating that the appellate commission employ this standard of review, the Legislature sought to reduce the number of appeals filed with the appellate commission and, thereby, prevent the backlog in appeals which had occurred in the appeal board as a result of the prior standard of review. Civil Service Comm, supra, pp 584-585.
Given the different functions performed by the appeal board and the appellate commission, we believe that the "acting within its powers” language in MCL 418.861a(14); MSA 17.237(861a)(14) becomes critical. Therefore, we conclude that reviewing courts must determine whether the appellate commission correctly applied the competent, material, and substantial evidence on the whole record test when it reviewed the magistrate’s findings of fact.
We now turn to the second issue we directed the parties to brief. In Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 126-127; 223 NW2d 283 (1974), our Supreme Court noted that a factfinder’s determinations as to credibility when confronted with conflicting testimony of a subjective nature should be considered along with the consistency and inherent probability of that testimony in deciding whether his findings of fact are supported by substantial evidence. In Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, 130 Mich App 470, 483; 344 NW2d 321 (1983), this Court stated that the factfinder’s determinations as to credibility are accorded primacy because he is the only person to see and hear the live witnesses. Hence, this Court implied that, absent persuasive reasons for according the testimony different weight or assessing its credibility differently, the reviewing body should adopt the factfinder’s determinations because they would be supported by substantial evidence on the whole record. This Court also stated that expert opinion testimony is substantial if offered by a qualified expert who has a rational basis for his views, whether or not other experts disagree. Id. This holding is consistent with MCL 418.861a(3); MSA 17.237(861a)(3), which defines substantial evidence as "such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.”
In this case, the magistrate reviewed the deposition testimony of the expert witnesses rather than hearing their testimony live. The magistrate then rejected Spitz’ testimony that decedent suffered a myocardial infarction, which, as noted above, differed substantially from his earlier conclusions. The magistrate rejected Spitz’ testimony, in part, because Spitz had failed to indicate the basis for such conclusion. The appellate commission found that Spitz testified that he came to his conclusion that decedent had suffered a heart attack after reviewing the microscopic slides he had prepared. Hence, the appellate commission held that the magistrate’s finding overlooked this testimony and, therefore, was erroneous. Having reviewed the record, we believe that the appellate commission misinterpreted the finding made by the magistrate. While Spitz did testify that he concluded that decedent suffered a myocardial infarction after reviewing the slides, Gerisch, who had previously seen tissues containing evidence of myocardial infarction, explained why the slides did not show evidence of a myocardial infarction. In sum, the magistrate’s finding that Spitz failed to indicate the basis for his conclusion that decedent had suffered a myocardial infarction was supported by substantial evidence and should not have been overturned by the appellate commission.
Defendant also claims that the appellate commission erred when it held that Micallefs testimony concerning the stair-climbing incident was admissible pursuant to MRE 803(1) and (3). The magistrate ruled that Micallefs testimony was admissible pursuant to MRE 803(3), which provides:
Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
While decedent’s statements concerning how he felt were admissible pursuant to this rule, decedent’s statement concerning the stair climbing was not. Cooley v Ford Motor Co, 175 Mich 199, 204; 437 NW2d 638 (1988). See also McCormick, Evidence (2d ed), § 291, pp 689-690.
The appellate commission, however, concluded that the stair-climbing testimony was admissible pursuant to MRE 803(1), which provides:
Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Decedent’s statement described an event, the "taking” of stairs, perceived by the declarant, who had "just” experienced the activity. Hence, the appellate commission properly determined that decedent’s statement was admissible as a present sense impression. Johnson v White, 430 Mich 47, 55-57; 420 NW2d 87 (1988); Hewitt v Grand Trunk WR Co, 123 Mich App 309, 316-318; 333 NW2d 264 (1983).
Defendant also claims that the appellate commission improperly applied the competent, material and substantial evidence standard to the magistrate’s finding, quoted above, that the proof of the stair-climbing incident and its relationship to decedent’s myocardial infarction was speculative. As previously discussed, the appellate commission relied on the statement decedent made to Micallef, finding it admissible pursuant to MRE 803(1) and (3). The appellate commission then held that decedent’s climbing three flights of stairs was a specific work-related event. In addition, the appellate commission noted that plaintiffs experts linked that incident to decedent’s myocardial infarction. Again, the question before the appellate commission was whether the magistrate’s fact findings were supported by competent, material and substantial evidence on the whole record. Reviewing Micallefs testimony, we hold that the magistrate’s conclusion concerning the speculative nature of the stair-climbing incident and its relationship to decedent’s heart attack was supported by competent, material and substantial evidence on the whole record.
In light of our decision on this issue, it is unnecessary for us to decide whether the magistrate and the appellate commission improperly applied MCL 418.301(2); MSA 17.237(301X2).
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Per Curiam.
In this action for declaratory judgment under § 64 of the Administrative Procedures Act, plaintiff appeals as of right from an opinion and order of the circuit court granting defendants’ motion for summary disposition. MCR 2.116(C)(4) and (8). We affirm.
On February 8, 1989, plaintiff was discharged by defendants from his position as warden of the Huron Valley Men’s Facility on the grounds that plaintiff violated policy directives, institutional procedures and employee guidelines of the Michigan Department of Corrections and the Michigan Civil Service Commission. The charges stemmed in part from plaintiffs loss of a master key to the prison and his failure to notify his supervisor of the loss in a timely manner.
On March 16, 1989, plaintiff requested a declaratory ruling from defendants as to whether the aforementioned directives, procedures and guidelines were promulgated as rules pursuant to § 33 of the Administrative Procedures Act, MCL 24.233; MSA 3.560(133), and, if not, whether his discharge pursuant to unpromulgated rules deprived him of due process of law. Defendants failed to respond to plaintiffs request for a declaratory ruling and plaintiff commenced this action for declaratory judgment under § 64 of the apa. MCL 24.264; MSA 3.560(164).
Defendants subsequently moved for summary disposition admitting that the directives, procedures and guidelines were not promulgated as rules pursuant to § 33 of the apa. However, defendants contended that the circuit court lacked subject matter jurisdiction since plaintiff failed to exhaust his administrative remedies. Defendants also contended that plaintiff was foreclosed from pursuing relief in the form of a declaratory judgment pursuant to § 64 of the apa, since plaintiff did not challenge the applicability of the directives, procedures and guidelines.
The circuit court essentially adopted defendants’ rationale and granted defendants’ motion for summary disposition. MCR 2.116(C)(4) and (8).
i
Plaintiff first contends that he was denied due process of law when he was discharged for violat ing directives, procedures and guidelines which were not promulgated as rules pursuant to § 33 of the apa.
The Department of Corrections is an administrative agency subject to the provisions of the apa. Martin v Dep’t of Corrections, 424 Mich 553, 556; 384 NW2d 392 (1986); MCL 24.313; MSA 3.560(213). In order to maintain a valid action for declaratory judgment under §64, plaintiff was required to challenge the validity or applicability of a rule which had been formally promulgated as a rule pursuant to § 33 of the apa. See Bentley v Dep’t of Corrections, 169 Mich App 264, 270; 425 NW2d 778 (1988). Had the Department of Corrections promulgated the directives, procedures and guidelines as rules in accordance with the procedures outlined in the apa, the validity or applicability of the directives, procedures and guidelines could then be determined in an action for declaratory judgment in circuit court under § 64. However, since the directives, procedures and guidelines were not promulgated as rules, in accordance with § 33 of the apa, they could not be challenged under § 64. Bentley, supra, p 270.
In addition, § 101 of the apa provides for judicial review only after all administrative remedies available within an agency have been exhausted unless the court determines that immediate review of a preliminary, procedural or intermediate agency action or ruling is required to provide an adequate remedy. MCL 24.301; MSA 3.560(201). As the circuit court noted in its written opinion, at least two additional levels of administrative relief were available to plaintiff at the time he commenced the instant action. In the event that plaintiff was dissatisfied with the decision of the grievance hearing officer, he could appeal that decision to the Employment Relations Board and then, if necessary, to the Michigan Civil Service Commission.
For the foregoing reasons, we conclude that the trial court did not err in granting defendants’ motion for summary disposition.
ii
We also reject plaintiffs claim that the circuit court should have retained jurisdiction and treated his petition for declaratory judgment as a petition for judicial review under § 101 of the apa. MCL 24.301; MSA 3.560(201). The difficulty in this case is that there was an incomplete record from the relevant administrative agencies. Therefore the circuit court would have had no way of ascertaining the merits of plaintiffs claims and any attempt to review those claims would have been without the benefit of a fully developed administrative record. The circuit court did not err in declining to retain jurisdiction. Bentley, supra at 272; Human Rights Party v Michigan Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977), lv den 402 Mich 906 (1978).
hi
Plaintiff finally contends that he should not be required to exhaust his administrative remedies because the Michigan Civil Service Commission is incompetent to decide constitutional issues and any additional delay would only further prejudice his rights. We disagree.
The mere fact that the Michigan Civil Service Commission cannot provide all of the relief requested does not dispense of the requirement that plaintiff exhaust his administrative remedies before the circuit court acquires jurisdiction. O’Keefe v Dep’t of Social Services, 162 Mich App 498, 505-506; 413 NW2d 32 (1987). The presence of a constitutional issue does not excuse the exhaustion requirement where, as here, there are other issues in controversy. Id.
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Griffin, P.J.
In this no-fault priority dispute, defendant appeals as of right a circuit court judgment holding it solely liable for no-fault personal protection insurance benefits payable as a result of a one-car accident. We reverse.
i
On August 6, 1985, Scott C. Curtiss was involved in a one-car accident. At the time of the accident, Scott resided with his parents, Charles H. and Janet C. Curtiss. As a result of the accident, Scott sustained a severe closed head injury for which he requires extensive medical care.
Prior to August 6, 1985, both plaintiff and defendant had issued no-fault policies covering various vehicles in the Curtiss household. The vehicle involved in the accident, a 1982 Mercury Capri owned by Scott’s mother, was insured under a policy issued by plaintiff, Transamerica Insurance Corporation of America. This policy listed Charles H. and Janet C. Curtiss as named insureds. There was no mention of Scott in this policy, either as a named insured or as an occasional driver.
Defendant, Hastings Mutual Insurance Company, insured a 1977 Pontiac Sunbird, which was co-owned by Scott and his mother. Like the Transamerica policy, the Hastings Mutual policy listed Scott’s parents as the named insureds. However, the Hastings Mutual policy specifically identified Scott C. Curtiss as one of several drivers of the Pontiac Sunbird.
Following the accident, both plaintiff and defendant were notified that Scott would be seeking personal protection benefits as a result of the accident. Plaintiff began paying these benefits and sought reimbursement from defendant. A dispute ensued, and plaintiff ultimately filed suit. In its first amended complaint, Transamerica alleged that Hastings was solely responsible for no-fault benefits because only defendant had a policy in which Scott was a "person named in the policy” within the meaning of § 3114(1) of the no-fault act, MCL 500.3114(1); MSA 24.13114(1):
Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident. A personal injury insurance pol icy described in section 3103(2) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motorcycle accident. When personal protection insurance benefits or personal injury benefits described in section 3103(2) are payable to or for the benefit of an injured person under his or her own policy and would also be payable under the policy of his or her spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.
The case was submitted to the trial court for decision on stipulated facts. The court agreed with plaintiff that defendant was first in priority under the statute and ordered defendant to reimburse plaintiff for all no-fault benefits paid by the plaintiff.
ii
On appeal, defendant contends that the circuit court erred in ruling that Scott, by virtue of his designation as a driver of the Pontiac Sunbird, was a "person named in the policy” within the meaning of MCL 500.3114(1); MSA 24.13114(1). We agree.
Previously, this Court in Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675; 333 NW2d 322 (1983), addressed the scope of the phrase "person named in the policy” as it appears in the above cited statute. In Dairyland, Thomas Sterly was injured in an automobile accident which occurred while he was a passenger in a vehicle driven by plaintiffs insured. At the time of the accident, Sterly lived with his sister Donna and his grandfather. By way of a code designation, Donna was endorsed as a driver on a no-fault policy issued to her mother, who lived elsewhere. This policy had been issued by defendant, Auto-Owners Insurance Company.
After paying no-fault benefits to Sterly, Dairy-land sought reimbursement from Auto-Owners. One of the asserted grounds was that Donna was a person named in her mother’s policy under MCL 500.3114(1); MSA 24.13114(1). The trial court rejected this argument, and we affirmed, reasoning as follows:
Plaintiff did not dispute that the "named insured” on defendant’s policy was Betty Sterly, who is the mother of Thomas and Donna Sterly. The first step in plaintiff’s argument is based on the contention, however, that there is a distinction between "named insured” and "person named in the policy.” Plaintiff has cited no case law from this or any other jurisdiction in support of that contention. Our Court has used the term "named insured” interchangeably when referring to "the person named in the policy” under § 3114. Thus in Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34, 36; 269 NW2d 297 (1978), the Court said:
"Our research has produced only one case that interprets the aforementioned section of the no-fault act. In Citizens Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975), a panel of this Court held that an estranged spouse, not domiciled with the named insured, is still covered by the named insured’s no-fault automobile policy. However, the panel went on to conclude that any other relative of the named insured or the spouse must be domiciled with the named insured in order to be covered under the named insured’s policy.” (Emphasis added.)
And in Citizens Mutual Ins Co, supra, p 732 the Court said:
"Defendant has succinctly stated the issue: do personal protection insurance benefits of a Michigan no-fault automobile insurance policy extend to the estranged wife of a named insured not domiciled in his household?” (Emphasis added.)
We are not persuaded that there is a distinction between the phrase "the person named in the policy” and the phrase "the named insured.”
We further believe it illogical to interpret a code designation, dealing with a risk classification, as the equivalent of naming an insured. Policy language must be construed according to its ordinary, plain meaning. Rowland v Detroit Automobile Inter-Ins Exchange, 388 Mich 476; 201 NW2d 792 (1972). Under plaintiffs interpretation, sons or daughters leaving their parents’ household to establish new domiciles would carry with them coverage from their parents’ policy and extend it to their spouse or other relatives in their new household. This interpretation requires a greatly strained construction of the statutory language and would substantially expand the insurer’s exposure without the insurer’s having any practical means of calculating the risk. [Dairyland Ins, supra at 685-686.]
We find this rationale persuasive and applicable to the present case. Accordingly, we conclude that, for purposes of determining priority under MCL 500.3114(1); MSA 24.13114(1), Scott C. Curtiss is not a "person named in the policy” issued by defendant Hastings Mutual. We are persuaded that to hold otherwise would expand the insurer’s exposure to a point beyond justifiable limits. This point is succinctly illustrated by the following excerpt from defendant’s brief:
Under Transamerica’s theory, Scott will be an insured under the Hastings Mutual policy wherever he goes and whatever he does. If Scott marries and leaves home to live with his spouse, he will continue to be insured because he is "the person named in the policy.” In addition, Scott’s spouse, their children, and any relative domiciled in the same household will be entitled to benefits under Hastings Mutual’s policy. . . . Under Transamerica’s reading of "the person named in the policy,” coverage has now been extended from one household—that of the named insureds—to three households and several more people—probably more people than could reasonably be expected to reside in the Curtiss household. Is this what Hastings Mutual, the Curtisses or the Legislature intended? It hardly seems likely.
Based on the foregoing, we reverse the judgment of the trial court and hold that "the named insured” and "the person named in the policy” are synonymous terms. Accordingly, both insurers occupy the same level of priority for payment of the no-fault benefits and must therefore equally share the burden.
In light of our disposition, we find it unnecessary to address defendant’s remaining issues.
Reversed.
As of October 16, 1987, Transamerica had paid in excess of $169,000 in pip benefits for Scott’s injuries. Following the lawsuit, defendant reimbursed Transamerica for one half of this amount, and the parties have agreed to continue payments on an equal basis pending final resolution of their dispute. | [
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Danhof, C.J.
These two workers’ compensation cases were consolidated on appeal, because they have in common issues involving the proper standard of review of magistrates’ opinions by the Workers’ Compensation Appellate Commission. The Workers’ Compensation Board of Magistrates, MCL 418.213; MSA 17.237(213), and the appellate commission, MCL 418.274; MSA 17.237(274), were created by 1985 PA 103. See Civil Service Comm v Dep’t of Labor, 424 Mich 571; 384 NW2d 728 (1986), modified 425 Mich 1201 (1986), for background of this legislation.
THE AARON CASE
The magistrate found Cynthia Aaron, an apprentice ironworker and unskilled worker, to be entitled to a closed award of benefits from November 27, 1986, until April 22, 1987, because of work-related injuries to her left knee. On appeal, the appellate commission granted plaintiff an open award of benefits.
In its opinion, the appellate commission quoted the following portion of the magistrate’s decision:
The weight of the evidence, Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978), establishes an injury on November 26, 1986 in which plaintiff had a board fly into her knee and nail enter the knee puncturing her knee below the kneecap. She suffered a period of disability and inability to earn wages from the date of injury. The employer paid some workers’ compensation benefits and credit shall be given for benefits paid. After April 22, 1987, the defendant’s doctor continued to order physical therapy and such therapy should be allowed as long as it is deemed necessary. However, she should be able to return to work at limitation. The deposition of Dr. Sprague provided the most information of the plaintiff’s physical condition, but in light of the doctor’s findings, his recommendations that plaintiff return to work unrestricted made no sense. He felt her physical limitation did not prevent her from doing her job, however, he clearly restricted her from crawling, and required she wear knee pads for doing so. He also stated on cross-examination that he would not recommend that she be hired as he did not find her physically able to perform her job if she was being given a physical examination prior to an initial hiring for a job. Dr. Monson, deposed on behalf of defendant, recommended a knee brace. This Magistrate does not see how the plaintiff could return to the duties of her job which included crawling on hands and knees and walking 50 to 75 feet above the ground on metal beams with the indicated restrictions.
Workers’ Disability Compensation benefits are, therefore, granted for the synovitis condition of the knee, for the restricted range of motion and for the buckling problem with her knee.
Thereafter, the commission’s opinion states:
From this decision plaintiff appeals arguing that the findings made by the magistrate dictate the conclusion, as a matter of law, that plaintiff continues to be disabled. We agree.
We find that the findings of fact made by the magistrate are supported by competent, material and substantial evidence on the whole record, and adopt them in part. We are persuaded that specific statements made by the magistrate relating to the testimony of Dr. Sprague are not completely accurate, yet the discrepancy is not fatal to her conclusion. However, her conclusion of law is incorrect. Based upon the great weight of the evidence, plaintiff continues to be limited in her wage earning capacity due to the injury sustained on November 26, 1986. We, therefore, affirm the decision of the magistrate with the modification that plaintiff receive an open award.
Michigan Boiler & Engineering, Aaron’s employer, argues that the appellate commission’s review powers are set forth in MCL 418.861a; MSA 17.237(861a), also added by 1985 PA 103, and that the appellate commission has erred in this case (1) by engaging in fact-finding when it has no authority to conduct a de novo review, (2) by holding the magistrate’s findings of fact to be supported by competent, material, and substantial evidence on the whole record, but only adopting them "in part,” and (3) by failing to state which of the magistrate’s findings of fact it was adopting.
Aaron maintains that the appellate commission’s decision granting her an open award of benefits should be affirmed since both the magistrate and the appellate commission found her to have continuing restrictions that limited her ability to do her job as an apprentice ironworker.
MCL 418.861a; MSA 17.237(861a) reads in pertinent part:
(3) Beginning October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, "substantial evidence” means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.
(4) As used in subsections (2) and (3) "whole record” means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.
(10) The commission or a panel of the commission, [sic] may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.
(11) The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed.
(12) The commission or a panel of the commission may remand a matter to a worker’s compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review.
(13) A review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.
(14) The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission, if application is made by the aggrieved party within 30 days after the order by any method permissible under the Michigan court rules.
It is well established that the appellate commission’s predecessor, the Workers’ Compensation Appeal Board, reviewed the decisions of the hearing referees de novo. It was not even allowed to defer to experienced referees. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135; 274 NW2d 411 (1979). The appeal board also had the discretion to take additional evidence. MCL 418.859; MSA 17.237(859). Under the new procedures established by Act 103, the appellate commission has no authority to take additional evidence on review, Askew v Ann Arbor Public Schools, 431 Mich 714, 723, 724; 433 NW2d 800 (1988), although it may remand a matter to a magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review. Section 861a(12). Further, the appellate commission is limited to reviewing only those specific findings of fact or conclusions of law that the parties have requested be reviewed. Section 861a(ll).
The appellate commission is not authorized to review the magistrate’s findings of fact de novo. Rather, such findings of fact must be considered conclusive by the appellate commission if supported by competent, material, and substantial evidence on the whole record, but such review must include a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof. Section 861a(3) and (13).
"Substantial evidence” is defined by § 861a(3) as such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion; and § 861a(4) defines "whole record” as the entire record of the hearing, including all of the evidence in favor and all the evidence against a certain determination.
However, to the extent that Michigan Boiler argues that the appellate commission has no fact-finding authority, this Court disagrees. Section 861a(14) clearly states that "findings of fact made by the commission” acting within its powers, in the absence of fraud, shall be conclusive. The appellate commission’s fact-finding authority is limited though by the restrictions in § 861a(3) and (13). Thus, if the appellate commission finds after both a qualitative and quantitative analysis of the evidence that the magistrate’s findings of fact are supported by competent, material, and substantial evidence on the whole record, as defined in § 861a(3) and (4), then the appellate commission cannot make different findings of fact. If the appellate commission finds after a proper review pursuant to § 861a that the magistrate’s findings of fact are not adequately supported on the whole record, the appellate commission may proceed to make its own findings of fact or, if the record is insufficient for purposes of review, should remand to a magistrate for purposes of supplying a complete record. Section 861a(12) and (14).
Regarding Michigan Boiler’s contention that the appellate commission made an unauthorized finding of fact when it changed the magistrate’s closed award to an open award, it is true that the determination of disability is a finding of fact where there is any conflicting evidence. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978). However, at the time of Aaron’s injury, "disability” as used in Chapter 3 of the Workers’ Disability Compensation Act was defined as meaning "a limitation of an employee’s wage earning capacity in the employee’s general field of employment.” MCL 418.301(4); MSA 17.237(301X4). Since the magistrate found Aaron to be limited and restricted in what she could do upon her return to work due to her work-related knee injury, this Court thinks that the appellate commission, as a matter of law, held on the basis of the magistrate’s findings of fact that plaintiff was entitled to an open award of benefits because of the limitation on her wage earning capacity in her general field of employment.
Michigan Boiler also argues that the appellate commission erred in stating that the magistrate’s findings of fact were supported by competent, material, and substantial evidence on the whole record, and then only adopting them "in part.”
Section 861a(3) makes such findings of fact conclusive on the appellate commission. While § 861a(10) allows a panel of the appellate commission to adopt "in whole or in part” the order and opinion of the magistrate, it does not permit adoption of the whole or a part of the order and opinion which consists of findings of fact not supported by competent, material, and substantial evidence on the whole record. Section 861a(3). Nevertheless, no remand is required in this case, since the appellate commission’s opinion indicates that the part of the magistrate’s opinion that was not adopted was certain statements inaccurately summarizing the testimony of Dr. Sprague, and that the appellate commission determined that even with Dr. Sprague’s testimony accurately summarized there was competent, material, and substantial evidence supporting the finding of fact that Aaron was limited in her wage earning capacity due to the injury sustained on November 26, 1986.
Michigan Boiler’s final argument is that the appellate commission erred in failing to state which of the magistrate’s findings of fact it was adopting.
The problem relative to the appellate commission’s opinion purporting to find adequate support for the magistrate’s findings of fact and then only adopting them "in part” has been discussed above. Given the appellate commission’s further explanation regarding Dr. Sprague’s testimony, this Court does not find it necessary to remand for clarification in this case. However, the appellate commission is advised that its opinion has been difficult to review, because of a certain lack of lucidity. In the future, more care in drafting opinions would save this Court time when reviewing and would diminish the likelihood of a remand for clarification.
THE WEISS CASE
The magistrate found Vera Weiss, a registered nurse and skilled worker, to be entitled to a closed award of benefits for a work-related back injury. On appeal, the appellate commission granted Weiss an open award of benefits.
This case clearly presents the question of the scope of the appellate commission’s power to review findings of fact made by a magistrate. Here the appellate commission said in its opinion that it would refrain from substituting its views for those of the magistrate on the testimony of witnesses who testified live before the magistrate, but that the magistrate was in no better position than the appellate commission to assess the demeanor and veracity of expert witnesses who testified by depositions. The appellate commission’s opinion then states with specificity why it gave greater weight to the deposition testimony of Dr. Rottenberg, Weiss’ treating physician, and lesser weight to the deposition testimony of Drs. Poliak and Miller, the employer’s experts. It continues with a holding that the magistrate’s finding of fact that Weiss was not disabled beyond September 5, 1986, was not supported by competent, material, and substantial evidence on the whole record. Then the appellate commission found as fact that for the same reasons Weiss had established by a preponderance of the evidence on the whole record that she continued to remain disabled.
Jewish Home for the Aged, Weiss’ employer, argues that the appellate commission cannot modify a magistrate’s finding of fact where that finding is supported by the testimony of at least one qualified expert witness who has a rational basis for his or her view, citing Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, 130 Mich App 470, 481; 344 NW2d 321 (1983).
Weiss maintains that the Great Lakes Steel Division opinion is not controlling on the appellate commission, which is required by § 861a(13) to make both a qualitative and quantitative analysis of the evidence to ensure a full, thorough, and fair review thereof.
In Great Lakes Steel Division of National Steel Corp v Michigan Public Service Comm, supra, p 481, this Court wrote:
In any event, it was for the psc to weigh the conflicting opinion testimony of the qualified ("competent”) experts to determine how the evidence preponderated on this point. See Aquilina v General Motors Corp, 403 Mich 206, 211-212; 267 NW2d 923 (1978). Expert opinion testimony is "substantial” if offered by a qualified expert who has a rational basis for his views, whether or not other experts disagree. To hold otherwise would thus neutralize all expert testimony in cases of conflict and the party with the burden of proof would automatically lose. Const 1963, art 6, §28, intends no such absurd result.
Obviously, that case involved the Public Service Commission, not the Workers’ Compensation Appellate Commission. It is distinguishable because the appellate commission’s authority to review magistrate’s opinions is set forth specifically in § 861a. While the appellate commission cannot modify findings of fact that are supported by competent, material, and substantial evidence on the whole record, such review must include a qualitative and quantitative analysis of the evidence and ensure a full, thorough, and fair review. Section 861a(3) and (13). "Whole record” is defined as meaning the entire record of the hearing, including all the evidence in favor and all the evidence against a certain determination. Section 861a(4).
This Court holds that the statutory language of §861a does permit the appellate commission to reverse or modify a magistrate’s findings of fact even when they are supported by the testimony of at least one qualified expert (or as in this case two qualified experts) who has a rational basis for his or her views. That is because § 861(a) states that "substantial evidence” means such evidence considering the whole record as a reasonable mind will accept as adequate to justify the conclusion, then defines "whole record” as meaning the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination, and provides that a review of the evidence shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.
This language in § 861(a) appears to be modeled on the Supreme Court opinion in Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974). There the Supreme Court said that the standard of appellate review of the findings of fact of the Michigan Employment Relations Commission Labor Mediation Board was the standard set forth in the labor mediation act: findings of the board with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole should be conclusive. The opinion also stated that the standard of review set forth in the statute comported with the requirements of Const 1963, art 6, § 28 relative to the minimum scope of judicial review of administrative decisions: all final decisions shall be subject to direct review by the courts, and such review shall include as a minimum that the findings are supported by competent, material, and substantial evidence in the record. However, Const 1963, art 6, § 28 specifically provides for a different review standard in workers’ compensation cases. It states:
Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
In MERC v Detroit Symphony Orchestra, Inc, supra, the Supreme Court attempted to define the meaning of "substantial evidence” and to delineate the proper standard of review. In that case, the Court of Appeals reversed the findings of fact of the merc board which were supported by some record evidence. However, the Court of Appeals concluded that the merc board’s findings were not supported by substantial evidence, and the Supreme Court agreed. The Supreme Court said at page 124:
The cross-fire of debate at the Constitutional Convention imports meaning to the "substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo re view, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.
The discussion of the "substantial evidence” standard in MERC v Detroit Symphony Orchestra, supra, related to judicial review of an administrative agency and to courts giving proper deference to administrative expertise. By contrast, in workers’ compensation cases, both the appellate commission and the magistrate are part of the administrative agency to whom due deference to administrative expertise is owed by the courts. See Welch, Worker’s Compensation in Michigan: Law & Practice, §21.10, p 304. Thus, there does not appear to be any need for the appellate commission to defer to the magistrate on the basis of administrative expertise. Also, MERC v Detroit Symphony Orchestra involved credibility issues and deference to the trial examiner who heard the testimony firsthand. In most workers’ compensation cases, the expert testimony is by deposition so the magistrate does not see and hear the expert witnesses. Therefore, the appellate commission could reasonably conclude that a magistrate’s decision based on expert testimony given by way of deposition was not entitled to any deference with regard to credibility since both the magistrate and the appellate commission reviewed a written record of the expert witness’ testimony.
Moreover, even though the appellate commission should give deference to the magistrate regarding credibility issues as to witnesses who appeared live before the magistrate, the appellate commission could disagree with the magistrate’s findings on credibility since its review is both qualitative and quantitative, provided the appellate commission had given deference to the magistrate’s superior position in viewing the witness. See MERC v Detroit Symphony Orchestra, supra.
In Aquilina v General Motors Corp, 403 Mich 206, 210-213; 267 NW2d 923 (1978), the Supreme Court said that a workers’ compensation claimant must prove his or her entitlement to benefits by "a preponderance of the evidence” and that, on those issues upon which the employer had the burden of proof, the employer must prove those matters by "a preponderance of the evidence.” However, it was also stated that the standard of review by which the reviewing courts evaluate the findings of fact made by the Workers’ Compensation Appeal Board is the "any competent evidence” standard. Id., p 213, n 4.
MCL 418.861; MSA 17.237(861), which was cited in Aquilina as the source of the "any competent evidence” standard, provides:
The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any fínal order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state. [Emphasis added.]
The rationale for the "any competent evidence” standard of review of the appeal board’s findings of fact was that this Court was only authorized by §861 to review "questions of law” and that a finding of fact by the appeal board could only become a question of law when there was no competent evidence to support it. If there were some competent evidence in the record to support a finding of fact, then the appeal board had the authority under § 861 to weigh that evidence and make its finding, which was conclusive in the absence of fraud.
MCL 418.861a(14); MSA 17.237(861a)(14), quoted supra, was added by 1985 PA 103. It is almost identical to and is substantially the same as the language in § 861, except that § 861 relates to the Workers’ Compensation Appeal Board and § 861a(14) relates to the Workers’ Compensation Appellate Commission. Thus, the ruling in Aquilina, supra, relative to the findings of fact of the appeal board being conclusive if supported by "any competent evidence” is also the standard applicable to this Court’s review of findings of fact made by the appellate commission.
This Court holds that the deposition testimony of Dr. Rottenberg, Vera Weiss’ treating physician, was some competent evidence in support of the appellate commission’s determination that the magistrate’s finding of fact that plaintiff was not disabled beyond September 5, 1986, was not supported by competent, material, and substantial evidence on the whole record and of the appellate commission’s finding that she did in fact continue to be disabled.
THE HOLDEN CASE
The above opinion in Weiss is contrary in some important respects to the recent opinion in Holden v Ford Motor Co, 185 Mich App 305; 460 NW2d 316 (1990), in which this Court first considered the standard by which the Court of Appeals reviews the Workers’ Compensation Appellate Commission’s review of findings of fact made by the magistrate and whether the appellate commission can reverse or modify a magistrate’s findings of fact which are supported by the testimony of at least one qualified expert who has a rational basis for his or her views. For the benefit of the bench and bar, the reasons for not following the Holden case will now be discussed specifically.
In Holden, p 321, this Court said:
In essence, 1985 PA 103 was intended to make the magistrate the factfinder and eliminate de novo review by the appellate commission. Instead, the appellate commission was to review the magistrate’s decision to determine if it was supported by competent, material and substantial evidence on the whole record. The statutory language parallels the language discussed in Michigan Employment Relations Comm, supra. By mandating that the appellate commission employ this standard of review, the Legislature sought to reduce the number of appeals filed with the appellate commission and, thereby, prevent the backlog in appeals which had occurred in the appeal board as a result of the prior standard of review. Civil Service Comm, supra, pp 585-585.
Given the different functions performed by the appeal board and the appellate commission, we believe that the "acting within its powers” language in MCL 418.861a(14); MSA 17.237(861a)(14) becomes critical. Therefore, we conclude that reviewing courts must determine whether the appellate commission correctly applied the competent, material, and substantial evidence on the whole record test when it reviewed the magistrate’s findings of fact. [Emphasis added.]
However, the "acting within its powers” language of § 861a(14), relative to the appellate com mission’s making findings of fact, is identical to the "acting within its powers” language of §861, relative to the appeal board’s making findings of fact. If this language is "critical” to the Holden conclusion that this Court must review the appellate commission’s review of the magistrate’s findings of fact under the "competent, material, and substantial evidence on the whole record test,” would it not also have been critical to this Court’s review of the appeal board’s findings of fact under the "preponderance of the evidence” standard? Yet it is undisputed that this Court’s review of the appeal board’s findings of fact was pursuant to the "any competent evidence” test. Aquilina v General Motors Corp, supra. In the past, appellants in workers’ compensation cases often asked this Court to reverse the appeal board’s findings of fact on the basis that they were not supported by a preponderance of the evidence. This Court routinely declined to do so, on the authority of Aquilina, and instead applied the "any competent evidence” standard.
The Holden opinion does correctly point out that the appellate commission has a more limited function than did the appeal board. Decisions of hearing referees were reviewed de novo by the appeal board, whereas the appellate commission can only review those specific findings of fact or conclusions of law that the parties have requested be reviewed, and the appellate commission must affirm the magistrate’s findings of fact if supported by competent, material, and substantial evidence on the whole record. Further, the appellate commission has no authority to take additional evidence on review.
However, the Holden opinion, while acknowledging the fact that when the appeal board had de novo review this Court only reviewed the appeal board’s findings under the "any competent evidence” standard, overlooks the fact that it is inconsistent to view current statutory provisions that give the appellate commission less reviewing power than the appeal board had as somehow increasing the scope of review of the Court of Appeals. Actually, the decrease in power at the administrative review level constitutes less, not more, reason to expand this Court’s reviewing authority.
Further, there is no apparent intent on the part of the Legislature to increase this Court’s standard of review in workers’ compensation cases. The Holden opinion correctly states that the reason for the change in functions performed by the appellate commission compared with those performed by the appeal board was to address the backlog in appeals at the administrative level. Civil Service Comm v Dep’t of Labor, supra. Unlike the appeal board, which in its de novo review capacity generally wrote long opinions summarizing and analyzing the facts and the law, the appellate commission may write very short opinions by adopting, in whole or in part, the order and opinion of the magistrate. This is an obvious saving of substantial time for the appellate commission. Further, unlike the appeal board, the appellate commission can only review those specific findings of fact or conclusions of law that the parties have requested be reviewed. There is no reason to think, however, that this savings in appellate time at the administrative level was intended to be at the expense of the Court of Appeals. It is neither necessary nor desirable for this Court to make an independent review of the whole record to determine if the appellate commission erred in finding that the magistrate’s findings of fact were not supported by competent, material, and substantial evidence on the whole record.
As a practical matter, if this Court undertakes an expanded review of the appellate commission’s opinions, as compared to this Court’s review of the appeal board’s opinions, it is going to increase substantially the work of this Court, and it will add to the work of the appellate commission as this Court finds itself in disagreement with the appellate commission’s finding that a magistrate’s decisions were not supported by competent, material, and substantial evidence on the whole record, and reverses. The result of this would be an increase in this Court’s backlog and an increase in the appellate commission’s backlog, neither of which comports with the intention of the Legislature when it adopted § 861a.
The fundamental rule of statutory construction is to ascertain and give effect to the intention of the Legislature; to that end a statute should receive a construction which effectuates its purpose rather than one which leads to absurd results. Distel v Dep’t of Mental Health, 138 Mich App 576, 579; 360 NW2d 249 (1984). It is well established that in attempting to discern the intent of the Legislature a court will look to the object of the statute, the evil or mischief it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. In re Spencer Estate, 147 Mich App 626, 631; 383 NW2d 266 (1985).
Although the standard of review employed by the appellate commission is different than the standard of review employed by the appeal board, the reviewing responsibilities of this Court with regard to workers’ compensation cases has not changed. That is, this Court will review the appellate commission’s opinions, as it did the appeal board’s opinions, for errors of law. Section 861a(14), supra. If there is any competent evidence to support an appellate commission finding that the magistrate’s findings of fact were not supported by competent, material, and substantial evidence on the whole record, then this Court will affirm.
Regarding the second issue presented in the Holden case, supra, whether the appellate commission can reverse or modify a magistrate’s findings of fact which are supported by the testimony of at least one qualified expert who has a rational basis for his or her views, the above decision in the Weiss case answers that question in the affirmative. The basis for that decision is the language in § 861a(13) which states that a review of the evidence pursuant to this section shall include "both a qualitative and quantitative analysis of that evidence” and ensure a full, thorough, and fair review thereof. That language is quoted in the Holden opinion, but no reference to it is made in the analysis and determination of the second issue. The Legislature must have intended something by § 861a(13), and that is why this Court held in the Weiss case that the appellate commission could reverse a magistrate’s findings of fact which were supported by the testimony of at least one qualified expert who had a rational basis for his or her views.
The appellate commission’s opinions in the Aaron and Weiss cases are affirmed. | [
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Michael J. Kelly, J.
Defendant-appellant appeals as of right two provisions of a judgment of divorce entered on September 3, 1988, by the Kent Circuit Court. We affirm in part and reverse in part.
i
The first issue is whether the trial court’s award of alimony was proper. We find that it was. The award of alimony is discretionary. Pelton v Pelton, 167 Mich App 22; 421 NW2d 560 (1988). It is to be based on what is just and reasonable under the circumstances. Ackerman v Ackerman, 163 Mich App 796; 414 NW2d 919 (1987). We reject defendant’s argument that the trial court’s consideration of the parties’ ability to work was not supported by the evidence. Ability to pay alimony includes the unexercised ability to earn if income is voluntarily reduced to avoid paying alimony. Healy v Healy, 175 Mich App 187; 437 NW2d 355 (1989). This Court will not substitute its judgment for that of the trial court in a decision to award alimony unless there was an abuse of discretion or this Court is convinced it would have reached a different result. Kurz v Kurz, 178 Mich App 284; 443 NW2d 782 (1989). We find no abuse of discretion in the alimony award.
II
The second issue is whether the proffered settlement award was fair and just in light of the evidence and the trial court’s findings of fact. We find that the trial court’s disparate property division was error. We are left with a definite and firm conviction that a mistake has been made.
At oral arguments the parties agreed that the property division was divided seventy percent to plaintiff wife and thirty percent to defendant husband. The only possible justification for such a marked disparity would be a well-grounded finding of fault. Since the trial court found fault arising out of conduct which occurred subsequent to the breakdown of the marriage relationship, that finding is erroneous as it is post hoc, ergo propter hoc —the obvious fallacy of finding causation from consequence.
The trial court awarded defendant husband the inheritance from his mother which occurred after the divorce was started. Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976). The court then stated it was finding fault and divided the marital assets, $109,951.75 to the plaintiff wife, $49,451.75 to the defendant-husband (sixty-nine percent to thirty-one percent). Instead of exercising its discretion to independently apportion the assets, the court accepted the proposed division submitted by plaintiff’s attorney and described it as "fairest under the circumstances.” The only explanation for this division was the court’s statement that it was based upon defendant’s "relative fault.”_
The only "relative fault” we find in this record was amplified as follows:
The Court: The Court doesn’t often consider fault, but in this case I did. I think there is sufficient evidence here of a relatively recent affair with a lady in California. Now, I understand Mr. Knowles’ contention, but again, I didn’t particularly find his evidence to be entirely credible. I did have the name on the resume and the fact he went out there, the Court is convinced that there was some, if I can use the word "sneaking around,” to go out there because of a purported trip to visit his brother and then we have instead of a trip to California, the flowers, and the other evidence I have has convinced me here that that is one of the things which led directly to the breakdown of the marriage, and the Court did consider fault as a factor in arriving at the property settlement.
The Court is also aware that Mrs. Knowles admitted to an affair back sometime, but apparently that affair occurred at a time when the parties were separated and apparently at that time divorce proceedings were pending, if I recall from my notes, which I reviewed last night, so I did consider relative fault in breaking up the assets.
The record indicates that the trip to California which evidenced the "relatively recent affair” took place four months after the filing of the complaint for divorce. We believe it was improper for the trial court to hold divorcing parties to a standard of morality or behavior appropriate for marital partners. The court seemed to reverse the so-called double standard attributed to earlier generations. In any event the court employed a standard known only to itself that a "relatively recent affair” constituted fault to be assessed against defendant husband while an affair "back some time” involving plaintiff wife was discounted. This is neither equitable nor appropriate. Furthermore, we do not think the evidence of defendant’s "recent affair” was relevant since it took place after the breakdown of the marital relationship and after the plaintiff had filed her complaint for divorce. It is inappropriate to assess such conduct as a cause rather than an effect without a clear revelation of the trial court’s reasoning and record support indicating facts on which it relied.
We reverse as to the property division and remand for equitable distribution of the marital assets, which means roughly congruence. McDermott v McDermott, 84 Mich App 39; 269 NW2d 299 (1978). Any significant departure from that goal should be supported by a clear exposition of the trial court’s rationale.
We affirm the judgment of divorce.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Cynar, J., concurred.
Counsel at oral argument in this Court described the division as seventy/thirty.
Query: Does such a methodology indicate a process of choice between alternative proposals as in baseball arbitration? Here the record is unenlightening. However, such a process would undoubtedly be a lightning rod for appellate scrutiny.
Bifurcation is agreeable to both parties. | [
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Per Curiam.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants. We affirm.
Plaintiff was injured in 1981 while employed by the Michigan Department of Corrections (hereinafter defendant) and sought workers’ compensation benefits. In 1982, a hearing officer found plaintiff to be partially disabled, but found insufficient proofs to make a finding as to plaintiff’s dependents. Both parties appealed. On January 8, 1988, the Workers’ Compensation Appeal Board mailed a decision affirming the determination of partial disability and finding sufficient proofs to make a determination as to plaintiff’s dependents.
It is undisputed that defendant has not paid plaintiff workers’ compensation benefits since the date of the appeal board’s decision. On September 1, 1988, plaintiff filed a petition in the circuit court pursuant to MCL 418.863; MSA 17.237(863) requesting the court to order defendant to pay workers’ compensation benefits as of January 8, 1988, plus penalties.
Defendant responded with a motion for sum mary disposition. Defendant asserted that prior to the issuance of the appeal board’s decision, plaintiff was incarcerated in a state prison and that he remained incarcerated. Plaintiff did not dispute this assertion. Indeed, he identified himself with a prisoner number and listed his address as the state prison in Marquette.
Effective July 30, 1985, an employer shall not be liable to a partially disabled worker for compensation for such periods of time that the employee is unable to perform work because of imprisonment. MCL 418.361(1); MSA 17.237(361)(1). Consistent with Franks v White Pine Copper Division, 422 Mich 636, 668-669; 375 NW2d 715 (1985), we are satisfied that this section applies to compensation for injuries, such as plaintiffs, which predate the provision’s effective date.
Summary disposition under MCR 2.116(0(10) is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Here, it is undisputed that the appeal board awarded plaintiff workers’ compensation benefits for his partial disability on January 8, 1988. It is also undisputed that plaintiff has been incarcerated since before January 8, 1988. MCL 418.361(1); MSA 17.237(361) (1) declares that an employer is not liable for compensation while a partially disabled worker is incarcerated. It follows that defendant was entitled to summary disposition as a matter of law. We therefore reject plaintiffs contention that the trial court erred in refusing to order defendant to pay benefits as of January 8, 1988.
Our resolution of the above question makes it unnecessary to consider the parties’ remaining arguments.
Affirmed. | [
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G. S. Allen, J.
In this medical malpractice action we are asked to determine the propriety of the entry of a November 14, 1988, order, granting defendants Field’s motion for summary disposition under MCR 2.116(0(10) and dismissing plaintiffs’ complaint as pertains to defendants Field. We are also asked to determine the propriety of the entry of a December 15, 1988, order denying plaintiffs’ motion for reconsideration.
On January 27, 1986, plaintiff Janice Tyler consulted defendant Dr. William Loop regarding complaints of numbness and tingling in her left arm. She stated that she had fallen while cross-country skiing on January 2, 1986. Dr. Loop diagnosed her symptoms as "a whiplash-like injury, which . . . resulted in trapezius muscle spasm” and recommended physical therapy and a muscle relaxant. However, her symptoms became progressively worse. On February 16, 1986, Janice had her husband take her to the emergency room of St. Joseph Hospital at Tawas City, where she was seen by Dr. Loop. At this point, Dr. Loop referred Janice to defendant Dr. Field, a neurosurgeon with offices in Saginaw.
Dr. Field examined Janice in his office on February 17, 1986, and performed a series of tests to rule out multiple sclerosis and meningitis. Janice’s father had died of multiple sclerosis, and she had expressed her concern about that to Dr. Field. The test results were normal, with the exception of the cortical response, which was attenuated. However, Dr. Field did not disclose this finding to Janice because he believed it unwise to interject another anxiety factor where there was uncertainty as to the significance of Janice’s weakened cortical response. Later that same day Dr. Field wrote a letter to Dr. Loop in which he detailed his diagnosis and treatment plan. The letter provides in pertinent part: _
I suspect that we are seeing a lady who has probably had some minor irritation or some stretching of her brachial plexus associated with the fall with some persistent paresthesia associated with paracervical muscle tightness associated with that and I would be inclined to have her continue with therapy until the symptoms have subsided. We did talk to her about nmr scanning as well as a spinal fluid examination but felt, at this point, that since her examination was really entirely negative, that probably it was just as well to wait for a little bit before going ahead with any of the studies.
Janice’s condition grew steadily worse. Her numbness increased and she developed a feeling of paralysis on her left side. She tried going to a chiropractor. She took a glucose test for diabetes. She saw a psychiatrist. She even tried going to Florida where she could rest and lie in the sun. Nothing worked. On her return from Florida, Janice experienced small convulsions in the shoulder area. Ronald Tyler telephoned Dr. Field and informed him of the convulsions. Dr. Field ordered Janice taken to St. Mary’s Hospital in Saginaw.
There, a cat scan disclosed that Janice had suffered strokes caused by an occluded carotid artery. As a result of these strokes, Janice had residual paralysis in the left arm, weakness in the left leg which causes her to walk with a cane, and spasticity of the left hip.
On January 5, 1988, plaintiffs filed a complaint alleging that Dr. Field was negligent in failing to perform magnetic resonance imaging or a cat scan following Dr. Loop’s referral to him on February 17, 1986. Accompanying the complaint was an "affidavit of merit” averring that "written affirma tion has been obtained from a licensed health care professional that the case has merit.”
Defendant Field’s answer was filed February 14, 1988. Under MCR 2.301(A) plaintiffs had one year from the date of defendants’ answer to complete discovery, unless the court set another date by pretrial order.
The depositions of plaintiffs and defendant doctors were taken in June and July, 1988.
On August 5, 1988, seven months after suit was filed, Dr. Field moved for summary disposition under MCR 2.116(C)(10). Dr. Field supported his motion with his own affidavit expressing his expert opinion that his conduct had met the requisite standard of professional care and incorporating by reference his deposition which described in detail the procedures followed. In his deposition Dr. Field indicated that he had performed a complete neurological examination. He further indicated that he had suggested and advised plaintiff to submit to magnetic resonance imaging and a spinal tap, but Janice refused. Dr. Field also supported his motion for summary disposition with Janice’s responses to interrogatories, propounded by Dr. Field, in which Janice averred that the names of expert witnesses were unknown at the time interrogatories were answered.
Plaintiffs responded to the motion on August 17, 1988, denying that Dr. Field recommended further tests during the February 17, 1986, office visit and incorporating by reference Ronald Tyler’s deposition that his wife’s visit with Dr. Field was "no more than five minutes.” Plaintiffs further argued that they had consulted with several experts who may be named as expert witnesses, but because the time for discovery had not yet expired and no pretrial or scheduling conferences had been set, Dr. Field’s motion for summary disposition should be denied as premature.
Oral argument on the motion was held on August 22, 1988, at which counsel for plaintiffs stated plaintiffs’ deposition taken by defendants had been received by plaintiffs only the previous week and it would be unreasonable to require plaintiffs to name an expert until the expert had sufficient opportunity to review the deposition. On September 21, 1988, without a pretrial conference, the trial court issued an order, consisting of a standardized form, scheduling the remainder of the events to occur prior to trial. Under this order discovery was to be completed no later than 270 days from entry of the order (viz., June 21, 1989), and plaintiffs were to name their expert witnesses 21 days from the date of the order (viz., October 12,1988).
Plaintiffs did not object to the time limits imposed nor did they name their expert witnesses as required by the order. On October 28, 1988, more than two weeks after the time to name expert witnesses had expired, the trial court issued a written opinion granting Dr. Field’s motion for summary disposition. The court explained:
The defendant has filed an affidavit indicating that the treatment rendered by the defendant was within the standard of care. The plaintiffs have not filed an affidavit or other documentary evidence which counters the defendant’s affidavit on this point, as required by MCR 2.116(G)(4). Therefore, there is no genuine issue of fact presented as to whether Dr. Field’s treatment of plaintiff Janice Tyler met the standard of care.
The order granting summary disposition was entered on November 14, 1988.
Plaintiffs moved for reconsideration and, for the first time, offered expert evidence by way of an affidavit from a Dr. Robert Burton, a neurologist practicing in San Francisco. Dr. Burton’s abbreviated affidavit stated that after receiving the medical records and deposition testimony he "finds there were deviations in the standard of care and treatment contrary to the practice of neurological examinations and diagnoses.” In a written opinion dated December 15, 1988, the trial court found Dr. Burton’s affidavit to be conclusory in nature and not meeting the standards of MCR 2.116(G)(4) and denied reconsideration. An order denying plaintiffs’ motion for reconsideration was entered on January 3, 1989.
A motion for summary disposition brought pursuant to MCR 2.116(0(10) tests whether there is factual support for a claim. In ruling on the motion, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence submitted by the parties. The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists and that the disputed factual issues are material to the disposition of a legal claim. The nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Giving the benefit of reasonable doubt to the nonmovant, the court must determine whether a record might be developed which would leave open an issue upon which reasonable minds could differ. All inferences are to be drawn in favor of the nonmovant. Before judgment may be granted, the court must be satisfied that it would be impossible for a claim asserted to be supported by evidence at trial. W B Cenac Medical Service, PC v Michigan Physicians Mutual Liability Co, 174 Mich App 676, 681; 436 NW2d 430 (1989).
In the instant case, Dr. Field’s conclusions are based on facts that are in dispute. Dr. Field’s deposition testimony was to the effect that he advised Janice that she should submit to nuclear magnetic resonance tests and a spinal tap but she refused. His affidavit averring that he had met the requisite standard of care was based upon those facts. On the other hand, Janice and Ronald Tyler’s deposition testimony disclaimed any mention to them of conducting further tests. Where factual questions exist as to what a doctor did or did not do as regards the treatment rendered to a patient, those factual questions are best resolved by a jury. Cf. Baldwin v Williams, 104 Mich App 735, 739-740; 306 NW2d 314 (1981), lv den 412 Mich 873 (1981).
Moreover, we find merit in plaintiffs’ claim that summary disposition was premature. Kortas v Thunderbowl & Lounge, 120 Mich App 84, 87; 327 NW2d 401 (1982). The problem lies in that portion of the trial court’s September 21, 1988, scheduling order which required plaintiffs to name their expert witnesses within twenty-one days. We find that part of the otherwise proper order premature. Defendants’ motion for summary judgment was filed only a week or so after plaintiffs’ depositions had been received by plaintiffs’ counsel. Several medical witnesses whose testimony would be relevant for purposes of an expert’s formulating an opinion on the adequacy of the standard of care provided had yet to be deposed. Specifically, the chiropractor and the physical therapist had yet to be deposed and, in fact, were not deposed until November, 1988. To expect an expert witness to formulate a sound medical opinion within a twenty-one day period when all relevant facts were not yet available for purposes of forming that opinion is unreasonable. Therefore, we are uncon vinced that the instant case presents a situation where it could yet be said that it was impossible for the claim to be supported at trial because of an insurmountable deficiency. Id., p 88.
Accordingly, we conclude that the trial court erred in granting summary disposition.
Reversed and remanded. We do not retain jurisdiction.
It appears from the pleadings that plaintiff informed Dr. Loop during a visit to his office on February 7, 1986, that she had been experiencing similar symptoms since the summer of 1985.
A slowing in the electrical conduction through the brain from the thalamus to the cortex.
One of two main arteries, one on each side of the neck, which supply blood to the head. 1 Schmidt’s Attorneys’ Dictionary of Medicine, p C-58. | [
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Per Curiam.
As this cause depends on the facts and they are regarded in different ways by the members of the court, it will not be profitable to discuss them.
The decree will be affirmed but without costs. | [
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Campbell, C. J.
Respondent was convicted of manslaughter for killing one Wilber. The death occurred during a dispute concerning the possession of a horse. Rockwell was shown to have struck Wilber with his fist and knocked him down. It was not shown directly how he was killed, but it appeared distinctly this blow did not kill him. The facts indicated either that Rockwell kicked him after he -fell, or else that he was killed by the horse trampling on him. On a first trial the jury disagreed. On a second trial, after being out some time, they came in and asked the court to instruct them “whether the respondent would be guilty if he knocked Wilber down, and the horse jumped on him (Wilber) or kicked him, and thus lulled him.” To which inquiry the court, as the record shows, reiterated that portion of the charge before given that he would be so guilty. The jury -then found him guilty.
The charge before given was unqualified that if the blow was not justifiable and Wilber so fell that the horse jumped and struck Wilber and killed him with his feet, or kicking him, respondent was guilty.
It is impossible to maintain such a charge without making every one liable not only for natural and probable consequences, but for all possible consequences and circumstances which immediately follow a wrongful act. There Was no necessary connection between the act of respondent and the conduct of the horse, which he cannot be said from the record to have been responsible for. And the case was not even put as permissive. The liability was laid down as positive.
The conviction cannot be maintained. And inasmuch as it is clear from the record that the jury would not have convicted except upon this instruction, we think the court below should be advised to stop the prosecution.
The other Justices concurred. | [
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Marston, J.
The respondent was tried upon an information charging him with having committed the •crime of murder and was convicted of manslaughter. ’The case comes here upon exceptions before sentence. The shooting of the deceased by respondent was not denied on the trial. The defense relied on was:
First. That the death was actually caused by morphine poisoning before the wound had so far affected vitality as to induce a belief that it was or could have-been the cause of death;
Second. Justifiable homicide, committed in order to-prevent the abduction and seduction of respondent’s-sister by the deceased; and
Third. .Insanity.
The errors assigned all range .and may appropriately be considered under these three divisions.
First. As to death by poisoning. The position taken! upon this branch of the case is clearly and strongly stated by counsel in his brief as follows:
“One ground of the defense was that the deceased did not come to his death by the hand of the defendant; that before there was time to determine whether the-wound inflicted by the defendant was mortal or not, deceased .was killed outright by morphine administered by hands' other than defendant’s. Not that death was-caused by negligent or unskillful treatment of the wound, but that the medicine administered produced death independently of the wound, and would have produced the-same results upon the same person if administered in the same manner, even though he had not been wounded at all.”
Upon this theory the court was requested to charge:
“8th. If the jury shall believe that the death was-caused by morphine poisoning, or if from the whole testimony they have a reasonable doubt, as to what was-the cause of death, they must acquit.
“ 9th. If the jury shall believe that the injury inflicted by the prisoner would have been fatal, but that death was actually produced by morphine poisoning, they must acquit the defendant.”
These requests with others were presented in writing to the court, who endorsed thereon a refusal except as given in the body of the charge. Turning to this portion of the charge as given, the instructions were as follows:
“First, as to the character of the injury and the cause of the death. This is a question -which, properly may and possibly will first receive your attention in the natural order of things, and in respect to which I say to you, in accordance with the defendant’s request, that in order to convict you should be able from the evidence to trace death to the injury inflicted by the defendant, and that too beyond a reasonable doubt, which I will explain more fully hereafter. [But if the gunshot wound was in itself mortal or reasonably calculated from its nature and extent to produce death, it would be no defense that the deceased, under better or different medical treatment, might have recovered; nor will the law justify a verdict of not guilty merely upon the ground that the medicines administered to restore or relieve the deceased, in point of truth, did co-operate with the wound in producing death. It would be enough if the gunshot wound contributed mediately or immediately to the death, but on the other hand, if the gunshot injury was not a mortal one in itself, nor reasonably calculated to produce death from its nature and extent, and death ensued, not from it, but solely from morphine poisoning, to which the injury did not materially contribute, the defendant could not in that ease, be convicted]. It is, of course, for you to determine all questions of fact upon this as upon any other branch of the case. [It is for you to determine the nature and extent of the wound, whether mortal in itself, or whether reasonably calculated to produce death; if not, what was the cause of death; did it result directly from the medicine? Was that the sole and direct cause of death, or did it (the morphine) merely co-operate with the injury to produce and hasten fatal results ?] These are questions for you to determine, and you are . to dispose of this branch of the case upon these instructions and such evidence as has been given to you. I can give you no further aid upon this branch of the case.”
It will thus be seen that the law was correctly and clearly laid down by the court in accordance with the authorities, and that it clearly covered the defendant’s eighth request.
The ninth request was not given. This request was based upon a theory that where a mortal wound has been given, but the death is actually produced by morphine administered by the hand of another, there must be an acquittal. The State v. Scates, 5 Jones (N. C.), 420, was relied upon as an authority in support of this proposition. In that case the jury was charged that if one person inflicts a mortal wound, and before the assailed person dies, another person kills him by an independent act, the former is guilty of murder, and this was held error.
This case does not, however, come within the principle of that case. Here a mortal wound was given. Physicians were called in who prescribed for and treated the wounded man. Morphine was administered, and it is claimed in such unreasonably large quantities that it caused death. It was not claimed that these physicians were deficient in medical skill, or that morphine in proper quantities, and at proper times, should not have been administered, or that the deceased could under any treatment, or in the absence of all treatment, have survived. Admitting the correctness of the authority relied upon, what application can such a rule have to cases like the present? If death was actually produced by morphine, can it be said in view of the facts, “that another person killed the deceased by an independent act ? ” Here morphine was administered' as a medicine by competent and skillful physicians; it was a proper and appropriate medicine to be given. Was it the independent act of the physicians who prescribed, or of the nurses who administered the morphine? Was it the mortal wound likely to cause death at any moment, or an undue quantity of medicine, unskillfully but honestly given to alleviate suffering, which actually caused death? Were the last powders, which constituted the over-dose, given during the dying man’s last moments, or so recently before death that they could not have caused it or materially contributed thereto ? How under the conflicting theories and uncertainties, which would inevitably arise in such a case, could it be said which was the real cause? Could it be made to appear with clearness and certainty that not the wound, but the medicines administered, were the sole cause of the death? There are authorities which hold that the burthen of so proving would rest upon the accused, in cases where the wound was not a mortal one. The position which counsel seeks to establish amounts to this: that if a competent physician and surgeon, in the treatment of a mortal wound directly causes death, although hastened by never so short .a period, the assailant is excused, even although death would inevitably have resulted from the wound under any or in the absence of all treatment. Such is not the law. Neglect or mistreatment, and beyond such this case does not go, will not excuse, except in cases where doubt exists as to the character of the wound. Where death results in a ease like the present, it can in no proper or legal sense be said to be the independent act of a third person. In a case where the wound is not mortal, the injured person may recover, and thus no homicide have been committed. o If, however, death do result, the accused will be held responsible, unless it was occasioned, not by the wound, but by grossly erroneous medical treatment. But where the wound is a mortal one, there is no chance for the injured person to recover, and therefore the reason which permits the showing of death from medical treatment does not exist. State v. Corbett, 1 Jones (Law), 267; State v. Morphy, 33 Ia., 270: 11 Amer., 122, note and cases cited; Roscoe’s Crim. Ev., 717.
Second. Justifiable Homicide. There is not á scintilla of evidence in the case tending to establish this defense, unless the fact that he had reason to believe that deceased was about to seduce and debauch his sister would be a justification. The undisputed evidence showed that the respondent took his gun, and went out into a field; that he got over into the road at the corner of the street going past the house where the deceased resided; that a person who then met respondent asked him what was going to take place, and he replied, “there will be a damned funeral here, for I am going to shoot Bill Batey; ” that he then went on np the street a little ways, drew np his gun and fired. At this time Batey was distant from him from ten to twenty rods, and was walking towards his (Batey’s) house, in a direction away from the respondent; that after shooting, respondent reloaded his gun, put a cap thereon, and said ‘he guessed Batey had something that would last him now.’ The parties were not near each other; they had no altercation or personal difficulty; no threats of personal injury to respondent had been made by deceased, and as between these two parties there was no pretense of excuse or justification for the shooting.
It was said that the testimony given on the trial showed the reputation of the deceased for chastity was bad, of which fact the respondent had knowledge; that deceased had been arrested for the seduction of a Miss Briggs; that he had publicly stated in respondent’s presence and hearing the manner in which he had seduced her; that while under such arrest he had stated that he wanted to seduce just one more girl, Sarah Cook, but this fact had not been brought to respondent’s knowledge; that the night before the shooting deceased and Sarah Cook had been out together quite late; that on the morning of the shooting, respondent’s sister, Sarah Cook, left' the breakfast table and went over to the house of deceased; that she shortly after-, wards returned, took her wearing apparel and announced that she was going off with Batey, bade the family good bye, and said they might never see her again.
The defense claimed the farther fact to be that Sarah Cook at that time was under the influence of drugs, administered to her by deceased, in order to enable bim to accomplish his purpose, and that the shooting was believed by the respondent to be necessary in order to prevent such a result.
Certain alleged facts were offered and excluded by the court, for the reason, with others, that they had not been brought td- the knowledge of the respondent previous to the shooting, and this is alleged as a distinct ground of error.
This proposed evidence was properly excluded. Not being known to the respondent it could have made no impression upon his mind, and could not have influenced him in any degree in the commission of the fatal act.
Evidence of previous threats not communicated or known, is admissible to confirm or explain other evidence in the case tending to justify or excuse a homicidal act, as having been committed in opposing force to force in defence of life or to avoid great bodily bairn. Such evidence is admissible, because, in connection with other evidence, it tends to show in eases of doubt who was the real aggressor, and the probable character of ■the assault made which had to be repelled, as a person who has made threats is more likely to make an assault upon another. In other words such evidence tends to show and explain the acts of the deceased at the time of the affray, and for this purpose the threat and not its communication, is the material fact. But where it is clear that the deceased, at the time the wound was inflicted, made no attempt to enforce his threats, or from the position of the parties could have made none, so that the accused could not reasonably have supposed that his life was in danger, or that he would receive grievous bodily harm, or that immediate action on his part was necessary to prevent a felony attempted by violence, then evidence of previous threats, whether known to the accused or not, are inadmissible in evidence. 2 Bishop Cr. Pr., § 627; 2 Whart. Cr. L., 1020; People v. Lamb, 2 Keyes, 360; Powell v. State, 19 Ala., 577; Stokes v. People, 53 N. Y., 164: 13 Amer., 498; Dupree v. State, 33 Ala., 380; Newcomb v. State, 37 Miss., 400; Holler v. State, 37 Ind., 56; People v. Scoggins, 37 Cal., 682; Pitman v. State, 22 Ark., 357; Atkins v. State, 16 id., 584.
Would then the belief which the respondent enter tained in reference to the injury to his sister justify him in the course which he adopted? It was argued that the law justifies homicide when committed in the defence of the chastity either of one’s' self or relation; that it is the duty of every • one who sees a felony attempted by violence to prevent it if possible, and that life may be taken in so' doing if necessary. Citing 4 Blackstone 181, and Pond v. People, 8 Mich., 177. The law is undoubtedly laid down in the authorities cited as claimed. But the felony in either case must be a forcible one.
Blackstone says the English, law justifies a woman killing one who attempts to ravish her, and so too the husband or father may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious but not the other. The principle, he says, which runs through all laws seems to be this: that where a crime in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting. It is not claimed that any direct force was attempted in this case, but that the felony intended was to be accomplished by the assistance of drugs administered or to be administered, and that where the power of resistance is thus overcome, and advantage thereof taken to violate her person, the act would be rape, and for such purpose the law would conclusively presume that sufficient force was used, at the time intercourse took place, to so characterize the act. The present case however falls short of coming within the principles which would justify the taking of life. The utmost that can here be said is, that the deceased had used and was likely to use fraudulent means, by administering drugs, to excite the passions, or overcome the resistance he otherwise would have been sure to encounter, in order to accomplish his purpose. So far as he had then gone, even conceding all that is claimed, fraudulent and' not forcible means had been resorted to, which would not create that necessity for immediate action on the part of the accused, by the taking of life, to prevent an attempted forcible felony. Ample time and opportunity existed to enable the accused to resort to other available and adequate means to prevent the anticipated injury. The evil threatened could have been prevented by other means within the reach and power of the accused. There was no such immediate danger, nor would the facts warrant the apprehension of such immediate danger, as would justify a resort to the means adopted.
It but remains to consider the third ground of defense relied upon, viz.: insanity.
Looking at the charge of the court upon this part of the case, in the light of the evidence which, it is claimed, tended to show insanity, we are of opinion that it was sufficiently full, clear and favorable to the respondent. We do not consider it necessary therefore to discuss at length this portion of the charge, or the exceptions taken thereto, or to the refusal to charge as requested. The respondent had a grievance in this case; it was based upon real and not imaginary facts. The deception or delusion under which he labored was not one of fact but of law, in supposing that he had a right to take life under the circumstances. This fully accounts for his action in the premises, but would not justify, excuse or exonerate him from the legal consequences of the act committed.
It must be certified to the circuit court that the exceptions are not well taken, and that the court proceed to judgment.
The other Justices concurred. | [
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Marston, J.
Plaintiff in error brought assumpsit to recover the contract price for the making and execution of a portrait of the deceased daughter of defendant. It appeared from the testimony of the plaintiff that he at a certain time called upon the defendant and solicited the privilege of making an enlarged picture of his deceased daughter. He says “ I was to make an enlarged picture that he would like, a large one from a small one, and one that he would like and recognize as a good picture of his little girl, and he was to pay me.”
The defendant testified that the plaintiff was to take the small photograph and send it away to be finished, “and when returned if it was not perfectly satisfactory to me in every particular, I need not take it or pay for it. I still objected and he urged me to do so. There was no risk about it; if it was not perfectly satisfactory to me I need not take it or pay for it.”
There was little if any dispute as to what the agreement was. After the picture was finished it was shown to defendant who was dissatisfied with it and refused to accept it. Plaintiff endeavored to ascertain what the objections were, but says he was unable to ascertain clearly, and he then sent the picture away to the artist to have it changed.
On the next day he received a letter from defendant reciting the original agreement, stating that the picture shown him the previous day was not satisfactory and that he declined to take it or any other similar picture, and countermanded the order. A farther correspondence was had, but it was not very material and did not change the aspect of the case. When the picture was after-wards received by the plaintiff from the artist, he went to see defendant and to have him examine it. This defendant declined to do, or to look at it, and did not until during the trial, when he examined and found the same objections still existing.
We do not consider it necessary to examine the charge in detail, as we are satisfied it was as favorable to plaintiff as the agreement would warrant.
The contract (if it can be considered such) was an express one. The plaintiff agreed that the picture when finished should be satisfactory to the defendant, and his own evidence showed that the contract in this important particular had not been performed. It may be that the picture was an excellent one and that the defendant ought to have been satisfied with it and accepted it, but under the agreement the defendant was the only person who had the right to decide this question. Where parties thus deliberately enter into an agreement which violates no rule of public policy, and which is free from all taint of fraud or mistake, there is no hardship whatever in holding them bound by it.
Artists or third parties might consider a portrait an excellent one, and yet it prove very unsatisfactory to the person who had ordered it and who might be unable to point out with clearness or certainty the defects or objections. And if the person giving the order stipulates that the portrait when finished must be satisfactory to him or else he will not accept or pay for it, and this is agreed to, he may insist upon his right as given him by the contract. McCarren v. McNulty, 7 Gray, 141; Brown v. Foster, 113 Mass., 136: 18 Amer., 465.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
This is a creditor’s bill to reach about fifty-three acres of land conveyed by one Hill to defendant Hannah in payment for a hundred and sixty acres conveyed to Hill by the defendant Samuel, who at such time was debtor to Bunce upon a note given by him, the said Samuel, and one William Bailey as joint makers, and now in judgment against Samuel Bailey alone.
The court below decreed in favor of complainant.
The theory of the case is that this parcel of fifty-three acres was wholly paid for by defendant Samuel, the joint debtor .with William in the note and sole debtor in the judgment, and was caused to be granted to his wife Hannah to screen it from this debt. It is not deemed necessary to go much into detail or to allude even to several matters in the record. The two Baileys had been much at variance as to their several responsibility as between each other for the note given to Bunce. It was made August 28th, 1869, for $1034, and drawn payable in four years with interest. For some time previous to that date Samuel had been indebted to William, and the evidence imports that the note represented the true amount, and that Bunce on making a sale of certain property to William Bailey consented to take the note in part payment in case the latter would become joint maker, and that William accordingly joined as maker. November, 1869, William bargained with Samuel for Samuel’s farm of eighty acres, on which the latter, with his wife, the defendant Hannah, then resided, and agreed to give in ■exchange three hundred and twenty acres at another place and also five hundred dollars of the debt owing to him by Samuel and represented by tbe joint note to Bunce.
The evidence establishes that the defendant Hannah was originally averse to the trade and unwilling to join in a deed of the eighty acre farm and was only brought to assent after a personal inspection of the land to be received in exchange, and after and upon the explicit promise of her husband and the said William Bailey that one hundred and twenty or one hundred and sixty acres of said land should be granted to her in the trade, and it appears from the case that it was understood between the defendants and said William that he should convey such lands directly to her, and that the- parcels to belong to her were distinctly indicated, and that with this understanding between defendants and William Bailey, and under the circumstances she joined with her husband in making conveyance of the home farm to William Bailey. The case further shows that the deeds on each side were to be left with a person named for delivery, and were so- left, but that in fact the whole tract of three hundrbd and twenty acres was included in one deed to Samuel Bailey, and that Mrs. Bailey did not become aware of this departure in - fact from the arrangement until some time after. It further appears that the portion which, according to the understanding with William was to be vested in her, was called and recognized as her land, and it was considered as made virtually her property by the express understanding and arrangement with William Bailey. In this state of things, and in view of the previous promise and consent of William Bailey that she should have the said one hundred and sixty or one hundred and twenty acres, she bargained the same away to said Hill as her own property and received in exchange the title- to the fifty-three acres in question, and in so doing she obtained only an equivalent for the premises William Bailey agreed she should have, and barely and simply holds the proceeds of the very property he promised she should own.
In the next place it appears very plainly from circumstances and from the deposition of complainant and the silence on the subject, of William Bailey, that this case is carried on in the exclusive interest and' for the sole benefit of said William Bailey, and that Bunce is complainant only in name and to enable William Bailey to enforce collection of the remainder of the old joint note from the property so appropriated as before stated to the defendant Hannah.
In these circumstances the equity is no greater than it would be if William Bailey- had become assignee of the judgment and was the apparent as he is the virtual complainant, and in that case he could not be heard to assail for fraud the title in Mrs. Bailey after having been a party to the transaction and understanding out of which that title arose and a concurring participant therein.
The decree below must be reversed with costs and the bill dismissed.
The other Justices concurred. | [
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Cooley, J.
The controversy here arises out of a contract for the building of a house of worship. The defendant in error was the contractor, and sued to recover the contract price, claiming to have fully performed on his part.' The building had never been accepted, and the defense was that it did not correspond with the contract.
In the following particulars variances between the contract and the performance appear to have been established:
The building was to have fifteen windows, and it had but thirteen.
The floor was to be of pine lumber, an inch and a half thick, and it was but an inch and a quarter.
Outside doors were to be two inches thick, and they were only an inch and three-fourths.
The gallery was to be supported by four posts, and only two were put in.
The studding was to be three by eight inches, and some of it was two by eight.
These were the most important variances, — perhaps all of them. An excuse was made for the deficiency in number in the posts and windows, depending upon facts amounting to a waiver in strict compliance, the sufficiency of which could not be passed upon by us. No excuse that can fairly be called reasonable was made for. the other defects.
The plaintiff counted upon the contract, and also on a quantum meruit. The defense insisted that they were under no obligation to receive the building at all until it was made to correspond to the agreement; the plaintiff, on the other hand, claimed to. recover the contract price, admitting at the same time the right of the defense to recoup for any deficiencies. The jury gave the plaintiff the contract price with a deduction equivalent to about one-sixteenth part of the whole.
The important questions all arise upon the charge of the court, and to an understanding of that we need only state further that there was some evidence tending to show that the building with such studding as was used was not sufficiently -safe for the purpose for which it was erected.
The following instructions' 'were requested by the defendants:
That the church not having been constructed according to the contract, and the defendants not having accepted it, they are not bound either to pay the contract price, or to accept it subject to recoupment for deficiencies.
That when parties enter into a written agreement for the construction of a building, they have a right to insist that it shall be constructed according to the contract, and are not obliged to accept .and pay for one that does not comply substantially with the contract.
That if defendants must pay for the building, the measure of recoupment would be what it would cost to so change the building as to make it conform to the terms of the contract, and not the difference in value between the building as it is and as it would be if completed according to the contract.
These instructions were refused, but the jury were told in substance that if the building was not completed according to the contract, the plaintiff was entitled to recover, but with such allowance from the contract price as would be equal to the cost of making the building what it was agreed it should be. To this, however, he added the qualification, in respect to the studding, that 'the defendants would not be entitled to tear this out, and substitute at the expense of the plaintiff studding of the size stipulated for, but that the difference in the value of the building, caused by this departure from the contract, the defendants should be allowed for. This qualification we infer was made -on the supposition that the cost of making the building what was agreed in this particular would be greater than its importance would justify.
Had the defendants taken possession of this building and applied it to the uses for which they were constructing it, the charge of the circuit judge would in the main have been applicable to the case and might have been supported. But as applied to the facts of this ease it advances a doctrine that is somewhat startling. These defendants contracted for a building of a certain sort, to be constructed according to specifications calculated for durability and strength. It was to be a very plain building, but they had some notions of their own in respect to style, which were to be carried out in the plan. Can it be that the law will permit the contractor to depart from these specifications in noticeable particulars and still compel the defendants to accept the building and make payment for it, subject only to such deductions as twelve men shall believe are equal to the difference in value between the building they bargained for and the building he decided to give them? Or— which seems to have been more exactly the idea of the instruction — with a deduction equal to the cost of such changes as shall make the building what was agreed upon? Can it be that if defendants required certain things to be done with a view to strength and safety, the plaintiff may disregard these and at last resist the demand for strict compliance by showing that he cannot now do what he should have done before without great and ruinous cost? If such is the law it becomes of the highest importance to ascertain, if' we can, what protection a party can have in entering into such contracts, or whether he can have any at all.
We think the learned circuit judge was in error in giving the instructions he gave and in declining to give those the defendants requested. The plaintiff had purposely kept the control of the building in his own hands until he tendered it to the defendants as completed according to the contract, and demanded payment of the contract price. Under such circumstances we understand that it was his duty to know that he had performed his agreement, and if defects were pointed out, to correct them. If a door was too light, it was his duty to substitute such an one as was agreed upon, and he had no business to tell the defendants their remedy was, if they did not like his changes, to get somebody else to put in the door they' bargained for. If he had enclosed within the walls studding less substantial than the contract required, it was his duty to make the correction, and the expense of doing so, when the fault was exclusively his own, could not be taken into the account by way of excuse. He could not put them to the election of making the expensive change at their own cost, or as the alternative, of occupying in discomfort and fear a biouse of meeting where they might believe or imagine their lives would be in peril. When they had bargained for such strength in the building as they deemed important in order that they might worship without having their attention distracted by real or imaginary danger every time the wind blew, they had a right to have it, and that too without paying for it twice over merely because other people might think the weaker ■ building just as good or just as safe. They agreed with the plaintiff upon the building they should have, and it is only when he tenders such a building or when they appropriate to their own use something different, that he is in position to bring suit for constructing it.
The equitable doctrine that every man should pay for that of which he has taken the benefit, even though it was not just what he contracted for, has been fully recognized in this State. Allen v. McKibbin, 5 Mich., 449. But we have never held that a man can be compelled to take and use one thing when he bargained for another and declines to receive the substitute tendered. Sometimes the circumstances may be such that he has no choice, especially in the- case of improvements upon real estate; but this case is not one of that sort. It is as possible for the plaintiff to put the building in the condition agreed upon as for any one else, and there is no equity in any doctrine which will compel these defendants, if they want what was agreed upon, to hunt up some one else who will contract to' make the necessary changes, and who perhaps in turn will demand pay for an incomplete or substituted performance.
In Wildey v. School District, 25 Mich., 419, we held explicitly that one contracting for a building to be put up according to certain specifications had a right to have what he bargained for. Unimportant variances may be overlooked or compensated for under a variety of circumstances which are not in question here, but departures from the contract which are susceptible of correction no , one can be compelled to overlook or waive. Protection to equities cannot require it, and the acceptance of such a doctrine as the plaintiff here insists upon would take from an unscrupulous contractor the chief inducement to keep his promises. What is it to him whether or not he lives up to his agreement if in any event he may collect for such performance as he tenders, and if the party contracting with him has no choice but to take at some price the building the contractor has seen fit to put up? The sanction the law would give to contracts under such a doctrine would as nearly as possible be worthless.
To suggest an extreme case; if this plaintiff had bargained to put up for one of his neighbors a Gothic house, planned to his taste, and had tendered instead the Gothic house varied with a Mansard roof, or something else equally out of harmony, and been met with a refusal to accept the substitute, we do not perceive why he might not answer with success: “ I cannot change this to what was promised, because it would be too expensive: you must receive the building, but if on taking the evidence of the community the preponderance seems to be that this building is of less value than the one I agreed to build, I will pay the difference.” This, it must be conceded, is doctrine not to be accepted in the law on any concession of its being equitable or just.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
From the judge’s finding it appears that the whole controversy turns upon a construction of the deed from Enos Laderoot and his wife to Henry Laderoot. The deed is one of warranty, with the following clause of reservation: “Reserving always, however, the use and occupancy of said lot during the lifetime of the said Enos and Margaret, or the survivor of them. And the party of the second part hereby agrees with the parties of the first part, to use, occupy and enjoy the right thereto above reserved, and to pay therefor all taxes, together with twenty dollars per year rent, in two semi-annual payments of ten dollars each, payable on the first day of April and October of each year, during such lifetime aforesaid; the first payment to be made April 1, 1869.”
It must be admitted that whatever intent the parties had in giving and receiving this instrument is very blindly expressed. On the part of Enos Laderoot it is now said that the purpose manifestly was to reserve to the grantors a life estate, and that whatever possession was given to the grantee might be resumed at will, and when it was continued was subject to the condition that the stipulated taxes and what was called the rent of twenty dollars a year should be promptly paid. The payments, it appears, had not been kept up for the year preceding the bringing of suit.
But the finding of facts shows that the parties have given a practical construction to the deed. Henry Laderoot immediately on its execution went into possession under it, and he and those claiming through him have ever since been in possession. He made the semi-annual payments up to April 1, 1875, and it does not appear that there has been any failure to pay taxes. We are satisfied from all the facts that the understanding of the parties was that “the use and occupancy” which the grantors reserved to themselves ' was to be made available to them through the use, occupancy, and enjoyment of the lot by the grantee, who was to make to them a stipulated semi-annual payment during their, lives and the life of the survivor. This payment they called rent, but it was in the nature rather of a charge upon the land. Failure in payment could not operate as a forfeiture either of the estate, or of the incident to the estate, the right of possession.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Marston, J.
Plaintiffs reside in Owosso, and in 1877 were engaged in the purchase of grain and other farm products. Defendants were commission merchants in the city of Detroit.
On the 26th of April, 1877, one of the plaintiffs had a conversation with one of the defendants in the city of Detroit about speculating in corn and wheat. It resulted in plaintiffs directing defendants to purchase for them 20,000 bushels of corn, deliverable at Chicago in June following. It was claimed that defendants thereupon telegraphed to certain commission merchants in Chicago directing the purchase, and received a few minutes thereafter a telegram announcing the purchase of the quantity mentioned and at prices therein named. It was at this time agreed that plaintiffs should send defendants $1000 as a margin upon this purchase, which was done within a few days thereafter. The receipt thereof was acknowledged by defendants and credited to plaintiff’s account.
Other correspondence was had between these parties in reference to this purchase and the condition of the grain markets.
On May 17th plaintiffs wrote defendants suggesting a change from June to July corn, and on the 18th defendants wrote plaintiffs that they had sold the June corn and purchased July corn, and enclosed a statement of account showing a loss to plaintiffs. The receipt of this letter by plaintiffs was on the next day, and a hope expressed that the loss sustained on the June would be got back on the July corn. The market continued to decline. Farther margins were called for but not made. Two car loads of wheat were shipped by plaintiffs to defendants, and by them sold on commission and the proceeds credited to plaintiffs on account.
Action was brought to recover the amount received for this wheat and to recover back the $1000 margin. There was no dispute as to the wheat or its value, and judgment was recovered for the amount thereof. The court charged the jury that no part of the $1000 could be recovered. In this it is claimed the court erred, and also in not submitting the question to the jury whether any corn was ever actually purchased.
Gregory, one of the plaintiffs, testified that he never saw any of the corn and that none had ever been delivered to him.
He* also testified that in July certain parties called at his office; that they had an envelope, the contents of which he declined to examine, and there was evidence tending to show that they were there and offered to make him a tender of warehouse receipts for July corn. There was evidence tending to show that before the commencement of this action defendants were called upon, in the plaintiff’s interest, and requested to produce and show the telegrams in reference to the purchase of the June corn, but that although search was made, they were unable to find them, although such were produced on the trial. A Mr. Thomas, a broker on ’change for Cooley & McHenry of Chicago, testified that he purchased twenty thousand bushels of corn on April 26th; that he and the party from whom he purchased made the usual memorandum of the transaction, which was afterwards, in accordance with the custom, reduced to formal entries on their respective books. The original memorandum and entiles were not produced, and the witness was unable to give the name of the person from whom he purchased the corn, or where it was at the time, or to whom he afterwards sold it. Other evidence was given which it was claimed tended to show that no actual sale of corn had been made.
It seems to me that the real questions thus raised in the case were, — was there an actual bona ficle sale of corn intended by the parties or any of them, to be delivered and received? Or did the parties intend that no corn should be purchased, delivered, received, but that a settlement should be made upon a basis of the market price of corn at the time mentioned for delivery ?
Some nice distinctions have heretofore been drawn as to the right of a person to sell personal property not at the time owned by him, but which he intended to go into the market and buy, — or as was said, that which he hath neither actually nor potentially. Courts must however, from necessity, recognize the methods of conducting and carrying on business at the present day, and applying well settled principles of the common law enforce what might be called a new class or kind of agreements, heretofore unknown, unless they violate some rule of public policy. The mercantile business of the present day could no longer be successfully carried on, if merchants and dealers were unable to purchase or sell that which as to them had no actual or potential existence. A dealer has a clear right to sell and agree to deliver at some future time that which he then has not, but expects to go into the market and buy. And it is equally clear that the parties may mutually agree that there need not be a present delivery of the goods, but that such delivery may take place at some other time; and that there need not be an actual manual possession given, but a symbolical one, as by the delivery of warehouse receipts according to custom, is also beyond dispute.
In these cases there is something actual and tangible sold, although not then owned or possessed by the vendor, or rather something actual and tangible agreed to be sold, as the agreement is more in the nature of a contract for a future sale. There is also an intention, and such is the agreement, that when the time agreed upon for delivery arrives, the property shall be actually delivered. This, as already said, may, as in the case of grain, be by a delivery of warehouse receipts, for the quantity and quality agreed upon, rather than for any particular lot. The vendee under such an agreement may, before the time for delivery to him has arrived. agree to sell, or transfer his right to the goods, or under the contract to some one else, who, should he retain the same, would be entitled to receive possession thereof at the time agreed upon by the .parties through whom he claims title.
But where the parties at the time of entering into an agreement for the purchase and sale, apparently, of goqds for future delivery, agree that no title to any property shall pass and that nothing shall be delivered, —no delivery made: or where, from the nature of the transaction and the manner and method of carrying on the business, it is apparent that such was the intention of the parties, although not expressed, but the agreement or understanding was that at the time fixed for delivery they should settle, upon a basis of the then market price of the commodity, by the losing party paying to the other the difference, such an agreement would be one that the law would not recognize and enforce. It would not constitute a gale or an agreement to sell property of any kind, but one to speculate upon the prices that certain property would be likely to bring at some future day.
The distinction was clearly pointed out in Rumsey v. Berry, 65 Me., 574. The court said: , “The mischief and illegality arises when the apparent contract is not the real one, when it is a mere cover for ulterior designs and such as are not authorized by law. A contract for the sale and purchase of wheat to be delivered in good faith at a future time is one thing, and is not inconsistent with the law. But such a contract entered into without an intention of haying any wheat pass from one party to the other, but with an understanding that at the appointed time the purchaser is merely to receive or pay the difference between the contract and the market price, is another thing, and such as the law will not sustain. This is what is called a settling of the differences, and as such is clearly and only a betting upon the price of wheat, against public policy, and not only void, but deserving of the severest censure.”
This question was fully discussed by Agnew, J., who delivered the opinion of the court in Kirkpatrick v. Bonsall, 72 Penn. St., 155, where the court held a certain contract was not, on its face, a gambling contract, but that its character might be weighed in connection with other evidence, on the question that the transaction was a gambling scheme. The court said a bargain for an option may be legitimate and for a proper business object. “But it is evident such agreements can be readily prostituted to the worst kind of gambling ventures, and therefore its character may be weighed by a jury in connection with other facts in considering whether the bargain was a mere scheme to gamble upon the chance of prices. The form of the venture when aided by evidence may clearly indicate a purpose to wager upon a rise or fall in the price of oil at a future day, and not to deal in the article as men usually do in that business. We must not confound gambling, whether it be in corporation stocks or merchandise, with what is commonly termed speculation. Merchants speculate upon the future prices of that in which they deal, and buy and sell accordingly. * * Their speculations display talent and forecast, but they act upon their conclusions and buy and sell in a Iona fide way. Such speculation cannot be denounced. But when ventures are made upon the turn of prices alone, with no bona fide intent to deal in the article, but merely to risk the difference between the rise and fall of the price at' a given time, the case is changed. The purpose then is not to deal in the article, but to stake upon the rise or fall of its price. No money or capital is invested in the purchase, but so much only is required as will cover the difference— a margin, as it is figuratively termed. Then the bargain represents not a transfer of property, but a mere stake or wager upon its future price.”
See farther Grizewood v. Blane, 11 C. B., 526; 73 E. C. L., 526, where it was held that a contract to purchase shares of stock without the intention to deliver or receive them was a gaming contract.
In Yerkes v. Salomon, 18 N. Y. Sup. Ct. (11 Hun), 473, it was said that the authorities were abundant upon the proposition that if neither party intended to deliver or accept shares, but merely to pay differences according to the rise or fall of the market, the contract would be a gaming one. And in that case it was held to be error to exclude a question asking what the intention at the time the contracts were made was, whether to tender or call stock, or merely to settle upon differences.
It is clear from these authorities, that the form of the contract on its face, is not conclusive, but that its character should be considered by the jury in the light of all the surrounding facts and circumstances, in order for them to determine whether a mere scheme to gamble upon prices, was the intention, or an actual Iona fide sale of grain to be delivered at the time mentioned.
There were some suspicious facts and circumstances in this case. The weight thereof, or the proper conclusion to be arrived at from a view of the whole case, it is not for this court to determine. The whole case under proper instructions should have been submitted to the jury and the court erred in withdrawing the case from them. There must therefore be a new trial ordered, upon which the case may appear in one of three different aspects.
First. If the parties acted in good faith, and the agreement made contemplated an actual purchase and delivery of grain, and such a purchase was in fact made, then the- amount paid by plaintiffs in error to cover any loss which defendants might suffer or become responsible for on account of a decline in the price or value of the grain purchased, cannot, to the extent of such loss be recovered back.
Second. If under the agreement made, neither party contemplated or intended, that any grain should in fact be purchased, or delivered, but that at the time mentioned for delivery, the difference between the contract and the market price should be paid to the person entitled to receive the same, such agreement being void as against public policy, and both parties being equally in the wrong, the law would afford no assistance to either, and the amount paid over as a margin could not be recovered back.
Third. If plaintiffs in error, acting in entire good faith, authorized defendants to purchase grain for them, to be delivered at a future date, contemplating and intending that an actual purchase of grain, and a delivery thereof to them would be made, but the defendants, without being induced by plaintiff’s action into any misunderstanding, did not in fact make or cause to be made an actual hona fide purchase of grain, but acted upon the theory that the difference in price only should be accounted for and paid, then and under such circumstances, plaintiffs upon discovery of such facts, would have a right to repudiate what had been done, and recover back the amount by them advanced or paid over to the defendants.
Judgment reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Kavanagh, J.
Defendant was convicted on December 9, 1957, by a jury in tbe recorder’s court of the city of Detroit of the crime of extortion contrary to the provisions and form of the statute, CL 1948, § 750.213 (Stat Ann § 28.410), and sentenced to a term of imprisonment of not less than 3-1/2 years nor more than 20 years. Motion for new trial was denied. Leave to appeal was granted by this Court.
The information filed in the cause read in part as follows:
“and gives the said court to understand and be informed that Moses Maranian late of the said city of Detroit, in said county, heretofore, to-wit, on the 4th day of September, a. d. 1956, and on divers other days and dates up to said and including the 22d day of September, a. d. 1956, at the said city of Detroit, in the county aforesaid did then and there orally maliciously threaten injury to the property and person of others, to-wit, Leo Janoff and his family, said threat being substantially in words as follows: ‘Unless payment on all old debts are paid before next week it will be too late. Next time it will be more drastic and we will put the bomb where it will hurt someone and we will bomb your property,’ with intent thereby to extort money or any pecuniary advantage whatever, and to compel the said Leo Janoff to pay the sum of $1,000, the same being against the will of him, the said Leo Janoff; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
The proofs in the case were substantially based upon the testimony of Leo Janoff and one Robert W. Blythe, an alleged accomplice, together with 2 tape recordings of telephone conversations obtained by the police by attaching a recorder to Janoff’s telephone.
Leo Janoff testified that he was a jobber in the tobacco business from 1950 until sometime in 1954; that in the early part of 1954 he was in financial difficulty and in March of that year purchased merchandise from defendant Lester Greenspan in the approximate sum of $5,000, for which he gave checks which were returned for insufficient funds. Janoff also testified he informed Mr. Greenspan at the time he gave him the checks that he did not have the money in the bank and that it- would be necessary for Greenspan to hold them for a number of days until he was able to get the money deposited. Shortly thereafter, an involuntary petition in bankruptcy was filed against Janoff. Eventually he was adjudicated a bankrupt and discharged. Janoff testified that his indebtedness was of the approximate sum of $50,000.
On September 4, 1956, Janoff recéived a telephone call from an unidentified person, who in effect said “Why don’t you take care of Lester Greenspan.” Shortly thereafter on the same day Lester Greenspan, whom Janoff had known for about 15 years, called and demanded his, money. Janoff told Greenspan he could not talk about it on the telephone and would drop in to see him in about a week, to which Greenspan replied that would be too late.
On September 8, 1956, about 9:00 p.m., Janoff heard an explosion in the alley in the rear of his home. On examination, he found a lot of' smoke and a part of his garage had been - damaged. A few minutes later the police arrived, and they determined that a bomb had been set off near the garage. Janoff then informed the police about the telephone calls.. '
On September 10, 1956, Lieutenant Stearla of the Detroit police department, with Janoff’s consent, placed a tape recorder on Janoff’s telephone. On September 12th Janoff received a telephone call from a third person, later identified as defendant Maranian. This party stated he was responsible for the bombing. He said he was collecting Janoff’s tobacco accounts and unless payment was made more drastic action would be taken. He further stated he would contact Janoff later. On September 17, 1956, the same person called,' and the conversation related by Janoff was in substance as follows: Janoff told the caller (Maranian) he had raised around $400, but was informed he would have to do better since the money had to be divided up a number of ways. J anoff asked to whom he should pay the money, and the party indicated he would give Janoff a receipt for the money or post-dated checks. The caller said the cheeks were some checks that Janoff had given to one of his creditors that came back unpaid. He said, “Things will get worse if you don’t raise more money.” He further stated, “Perhaps we go to extremes, but we mean business.” He asked Janoff if he had the $400 with him. Janoff was following police instructions at the time and he informed the other party, “No, he would have to wait a day.” J anoff was then informed he would have to anticipate more trouble. The caller said, “This is the only thing the third man understands,” and “You better start thinking where you can get some money.” The caller also said, “Go out and steal it somewhere.” He further stated that Janoff “had a lot of things to think of, Ms wife, Ms cMldren,” and closed the conversation by saying he would call on Wednesday.
On September 21,1956, the person who first called Janoff called again. Janoff informed him that he had $1,000. Arrangements were made to meet the caller at Livernois and Fenkell avenues in the city of Detroit to give him the $1,000. Janoff drove his car to the designated intersection accompanied by a detective concealed in the back seat. Robert Blythe approached the car when it stopped at the intersection and asked for the money. The police officer aróse from the back seat, chased Blythe, apprehended him, and placed him under arrest.
Janoff testified that shortly after he arrived home he received a telephone call, the caller saying “Hello, you got the wrong man, sucker.”
Robert W. Blythe testified he had known Moses Maranian for 20 years. He stated he was unemployed at the end of August, 1956, at which time he engaged in a conversation with defendant Maranian, who told him Leo Janoff was indebted to various tobacco concerns. Blythe said Maranian suggested that Blythe attempt to collect the account, the latter to receive 25 % of the amount collected. Maranian had the unpaid checks and Blythe, being unemployed, decided to try and collect them. After leaving Maranian, Blythe called Janoff and requested payment. Janoff told him he had settled one way or another and that he did not intend to pay. Janoff stated his was only a moral obligation. Blythe then returned and told Maranian of his call. Maranian informed Blythe he would call Janoff. Blythe testified that subsequently, in a discussion with Maranian about the bombing, Maranian said “they had shook him up” and “that Janoff should be willing to pay some moneys then.” Blythe further testified Maranian had said that they had thrown a “pineapple.”
Blythe also testified that on September 12, 1956, he called Janoff and asked Janoff what he intended to do. Janoff said he wonld try to arrange some type of payment. Janoff wanted to know to whom he was talking. Blythe told him it didn’t matter, that he was not connected with the bombing, but that he knew about it. Blythe further testified that he called Janoff again on September 17th and that Janoff informed him he had $400. Blythe indicated this was not enough and that Janoff wonld have to get more. He further told Janoff that he did not believe that Janoff would want them to get rougher.
Blythe further testified that on September 18th he told Maranian of his conversation with Janoff and Maranian replied he would talk to Janoff again. Blythe didn’t know whether Maranian called Janoff subsequent to that time.
On September 21st Blythe called Janoff, and arrangements were made with reference to the payment of the $1,000. When Blythe met Janoff at Livernois and Fenkell he had 3 checks executed by Janoff which had been given to him by Maranian. On arrival at Livernois and Fenkell he was arrested.
Blythe stated he was never present when Maranian made any telephone calls to Janoff. He did testify that Maranian was present when he called Janoff to arrange the collection of the $1,000. Janoff’s testimony with reference to the telephone conversations was substantially borne out by the recordings which were introduced in evidence.
Following examination and prior to trial the defendant filed a motion to require the people to produce the statements of Robert W. Blythe, Lester Greenspan, and Leo Janoff, memoranda and reports made by police officers in connection with the case, and also all recordings of the telephone conversations. This motion was denied prior to trial, and again denied at the commencement of the trial.
Defendant- contends on appeal:
First, the trial court erred in denying defendant’s motion to require the production of statements of the people’s witnesses and the telephone recordings.
Second, it is not extortion to attempt to compel the payment of a debt fraudulently incurred when telephone threats of force are employed, but is merely an assault, if criminal at all.
Third, the trial court erred in admitting in evidence exhibits 7 and 8- — telephone recordings not authorized by the sender.
Fourth, the evidence was insufficient to warrant the conviction of defendant of the crime of extortion.
In argument in support of his first question, the defendant contends that, in the light of what he calls the modern and more desirable trend in discovery practice and procedure, the trial judge improperly failed to grant his motion. It is his position that it is inconsistent for the courts to construe and apply the civil rules of discovery as liberally and as fairly as they do and yet apply a narrow and limited application' of discovery in criminal proceedings.
Justice Edwards in the case of People v. Johnson, 356 Mich 619, wrote at length on the question of discovery in criminal cases. We do not feel it would be helpful to the bench and bar to restate the historical background of discovery procedure outlined by Justice Edwards with reference to criminal trials, but merely refer to the rule therein established. Discovery will be ordered in all criminal cases, when, in the sound discretion of the trial judge, the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. The burden of showing the trial court facts indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition, rests upon the moving party.
The trial judge in this ease had the records played ont of the hearing of the jury so as to be able to determine whether the evidence was admissible and, presumably, defendant’s counsel, who was present, heard the information disclosed by the records. The same information could have been obtained on cross-examination of Janoff at the preliminary examination. No sufficient showing was made in this ease to justify the granting of the broad discovery motion made by defendant.
The second error complained of by defendant, is that it is not extortion to attempt to compel the payment of a debt fraudulently incurred. In the event the debt was fraudulently incurred, the courts provide a legal and proper forum in which to determine whether or not it is fraudulent, and if so, afford a possible method of collection. The collection of a valid, enforceable debt does not permit malicious threats of injury to one’s person, loved ones, or property if payment is not made. Such acts, if proven, would constitute extortion within the framework of the statute under which defendant was charged.
Defendant claims the trial court erred in admitting in evidence the telephone conversations under the theory of Benanti v. United States, 355 US 96 (78 S Ct 155, 2 L ed 2d 126). The Benanti Case held the prohibition against divulging unauthorized intercepted telephone messages applies to intrastate as well as to interstate messages, and any interception not authorized by the sender is in violation of the Federal communications act, and not admissible in evidence even though authorized by the State law. The Federal communications act, 47 USC (1958 ed), § 605, states in its pertinent part:
“No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.”
Defendant further contends the ruling in Rathbun v. United States, 355 US 107 (78 S Ct 161, 2 L ed 2d 134), which permitted a peace officer to listen upon an extension phone, is not applicable because in this ease there was an actual tapping of a telephone with a recording device, while in the Rathbun Case the police officer who listened to the conversation was using an extension telephone which had not been installed for the purpose of permitting the officer to listen, but was regular telephone equipment.
In Schwartz v. Texas, 344 US 199 (73 S Ct 232, 97 L ed 231), the United States supreme court held that evidence obtained by means of tapping was admissible in a State court where it had been obtained by State agents. Referring to the Schwarts decision, the supreme court in Benanti, supra, said (p 101):
“The rationale of that case is that despite the plain prohibition of section 605, due regard to Federal-State relations precluded the conclusion that congress intended to thwart a State rule of evidence in the absence of a clear indication to that effect.”
In Schwartz v. Texas, supra, the court wrote as follows (pp 200-202):
“Petitioner contends that section 605 of the Federal communications act makes inadmissible in evidence the records of intercepted telephone conversations without the petitioner’s consent. The pertinent provision of the statute reads as follows:
“ ‘No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.’
“Section 501 of 47 USC provides a penalty for the violation of section 605.
“We are dealing here only with the application of a Federal statute to State proceedings. Without deciding, but assuming for the purposes of this case, that the telephone communications were intercepted without being authorized by the sender within the meaning of the act, the question we have is whether these communications are barred by the Federal statute, section 605, from use as evidence in a criminal proceeding in a State court.
“We think not. Although the statute contains no reference to the admissibility of evidence obtained by wire tapping, it has been construed to render inadmissible in a court of the United States communications intercepted and sought to be divulged in violation thereof. Nardone v. United States, 302 US 379 (58 S Ct 275, 82 L ed 314), and this is true even though the communications were intrastate telephone calls. Weiss v. United States, 308 US 321, 329 (60 S Ct 269, 84 L ed 298). Although the intercepted calls would be inadmissible in a Federal court, it does not follow that such evidence is inadmissible in a State court. Indeed, evidence obtained by a State officer by means which would constitute an unlawful search and seizure under the Fourth Amendment to the Federal Constitution is nonetheless admissible in a State court, Wolf v. Colorado, 338 US 25 (69 S Ct 1359, 93 L ed 1782), while such evidence, if obtained by a Federal officer, would be clearly inadmissible in a Federal court. Weeks v. United States, 232 US 383 (34 S Ct 341, 58 L ed 652, LRA 1915B, 834, Ann Cas 1915C, 1177). The problem under section 605 is somewhat different because the introduction of the intercepted communications would itself be a violation of the statute, but in the absence of an expression by congress, this is simply an additional factor for a State to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in section 605 can be achieved under the penal provisions of section 501.
“This question has been many times before the State courts, and they have uniformly held that section 605 does not apply to exclude such communications from evidence in State courts. Leon v. State, 180 Md 279 (as Hubin v. State, 23 A2d 706); People v. Stemmer, 298 NY 728 (83 NE2d 141); Harlem Check Cashing Corp. v. Bell, 296 NY 15 (68 NE2d 854); People v. Channell, 107 Cal App2d 192 (236 P2d 654). While these cases are not controlling here, they are entitled to consideration because of the high standing of the courts from which they come.”
The rule of Schwartz v. Texas, supra, also finds support in the later decisions of the Federal courts. Besides the Benanti Case, the rule has been recognized in United States v. Gris (CCA 2), 247 F2d 860, and Voci v. Farkas (ED Pa), 144 F Supp 103.
In 57 Mich L Rev 37, an article dealing with scientific investigation and defendants’ rights contains the following statement (pp 44,45):
“Prior to 1934 wiretap evidence was generally admissible in State courts. At least there was no indication on the part of State appellate courts that such testimony would be improper. Since the enactment and interpretation of the Federal statute, State reaction has varied. A number of States have done nothing. A few States prohibit wiretapping and wiretap evidence in their courts. At least 2 States specifically provide for the placing of wiretaps pursuant to ex parte court order. The question naturally arose as to the admissibility of such evidence in State courts and the validity of State legislation which regulated or permitted wiretapping. The first question was answered by Schwarts v. Texas, in which State officers had placed taps and had been permitted to testify in a State criminal prosecution about what they overheard. Although the supreme court recognized that the officers had violated the Federal statute, it held that the rule of exclusion in Federal courts is based on the court’s control over the Federal judicial process. Lacking such power constitutionally to control State court practice, the exclusionary rule could not be applied to prohibit the use of wiretap evidence in a State court.”
The recording in exact words of a voice or voices of those engaged in communicating the threats of injury to the victim by placing a recording device on the receiver’s own telephone does not constitute wiretapping any more than would the listening in on an extension phone.
In United States v. Yee Ping Jong, 26 F Supp 69, the court held that it was not error to admit the recording in evidence. The court there said (p 70):
“The manner in which the conversation in question was recorded does not seem to present such an interception as is contemplated by the quoted statute. Webster’s New International Dictionary defines the verb ‘intercept’ in part as follows: ‘To take or seize by the way, or before arrival at the destined place.’ The call to the defendant was made by Agent White, and the conversation between his interpreter and the defendant was not obtained by a ‘tapping of the wire’ between the locality of call and the locality of answer by an unauthorized person, but was, in effect, a mere recording of the conversation at one end of the line by one of the participants. It differed only in the method of recording from a transcription of a telephone conversation made by a participant. We are of opinion that the admission of the record in evidence was not error.”
See the following cases where recorded conversations were admitted: Monroe v. United States, 98 App DC 228 (234 F2d 49); Flanders v. United States (CCA 6), 222 F2d 163; Goldman v. United States, 316 US 129 (62 S Ct 993, 86 L ed 1322); Rathbun v. United States, 355 US 107 (78 S Ct 161, 2 L ed 2d 134).
Judge McAllister, writing for the sixth circuit, in Flanders v. United States, supra, held that such an overhearing is not in violation of the Federal communications act, and there said (p 167):
“We are of the opinion that where, by means of an extension phone, or other device, a third party ‘listens in’ on a telephone conversation with the consent of one of the parties to the conversation, there is no interception of the communication, within the meaning of the statute. With respect for the high authorities that hold a contrary opinion, we are persuaded by the reasoning of those that adopt this view, and consider that the route we follow was pointed out by the supreme court in Goldman v. United States, supra.”
It seems apparent the existence of section 605 of the Federal communications act does not render inadmissible the recordings employed in this State criminal prosecution.
The defendant further claimed that the recordings were not admissible in evidence, since they were obtained in violation of CL 1948, § 750.540 (Stat Ann 1954 Rev § 28.808), which provides in part that it is a high misdemeanor for any person to “tap or make any connection with * * s* telephone instruments.”
The California court, interpreting a California statute very similar to the Michigan wiretap statute, has had the question before it on numerous occasions whether the introduction of evidence obtained by recordings in a manner similar to that in this case constitutes a violation of its State penal statute. That court has uniformly held it does not, and has admitted the recordings as evidence. People v. Malotte, 46 Cal2d 59 (292 P2d 517); People v. Cahan, 141 Cal App2d 891 (297 P2d 715); People v. Lawrence, 149 Cal App2d 435 (308 P2d 821); People v. Dement, 48 Cal2d 600 (311 P2d 505).
The recordings in this case were not obtained in violation of the Michigan statute and consequently were admissible in evidence under the above cited authorities.
We find no error in the trial court admitting these recordings in evidence, after having observed the usual precaution of having them played out of the presence of the jury so that the court could rule on any objections raised by defendant before the jury heard the recordings.
The fourth claim of error on the part of defendant was that the evidence was insufficient to warrant the conviction of this defendant of the crime of extortion. It is the Court’s considered opinion that the evidence produced in this cause was sufficient from which the jury could find that it was the intent of the defendant to extort money from another and was sufficient to sustain the guilty verdict.
We therefore affirm the conviction.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Souris, J., took no part in the decision of this case. | [
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Kavanagh, J.
Plaintiff petitioned the circuit court of Wayne county for a writ of mandamus to compel the presiding judge of Wayne county probate court to appoint plaintiff to the position of court stenographer.
Plaintiff served as a court stenographer in the court of Thomas C. Murphy, judge of probate for the county of Wayne, prior to February 19, 1952. Plaintiff had been an employee of the county of Wayne some 18 years prior to that date. Plaintiff requested and received a leave of absence from the Wayne county civil service commission on February 19, 1952. Subsequently plaintiff made and executed a written document purporting to be a waiver of all of his rights to the position of court stenographer for Judge of Probate Thomas C. Murphy and also Judge of Probate Joseph A. Murphy. Thereafter plaintiff requested and was refused certification by the Wayne county civil service commission as court stenographer to the Wayne county probate court. He instituted action to compel his reinstatement.
On November 1, 1955, the Wayne circuit court entered an order directing the Wayne county civil service commission to certify plaintiff to the position of court stenographer for the probate court of Wayne county.
On November 14, 1955, the Wayne county civil service commission certified plaintiff and notified the presiding judge of the probate court that he should assign plaintiff to duty as a court stenographer in the probate court. Two days later Judge Thomas O. Murphy, then presiding judge of probate court, informed the civil service commission that he could not comply because plaintiff had waived his rights to his position in his own court, and for the further reason that no vacancies for the position of court stenographer existed with respect to the other judges of the probate court. Plaintiff thereupon instituted this action for a writ of mandamus to compel the presiding judge of probate court to reappoint him to his former position.
In his answer, the present defendant, who was substituted as defendant upon his election as presiding judge of probate court, challenged the right of plaintiff to maintain this action, principally relying upon the following facts: (1) that the alleged rights of plaintiff are founded upon the provisions of the Wayne county civil service act and the rules and regulations promulgated thereto, and that said act constitutes an improper interference with the powers, rights, jurisdiction, and duties of the Wayne county probate court; (2) that court stenographers are not subject to classification or control by the Wayne county civil service commission; (3) that the Wayne county probate court is an agency of the State government and not subject to control or dictation by the Wayne county civil service commission; (4) that the county civil service act is unconstitutional, invalid and void; (5) that an action of mandamus does not lie under the facts and circumstances alleged by plaintiff; (6) that defendant has been improperly substituted as party defendant in the case.
On March 3,1958, an opinion of the Wayne county circuit judge was filed, in which he stated:
“The only question to be decided is: Are court reporters in the probate court for the county of Wayne entitled to the protection of civil service statusf”
He proceeded to hold that they are and that plaintiff had a right to be returned to service as a court stenographer of Wayne county in accordance with the rules of the civil service commission. He authorized the issuance of a writ of mandamus against the presiding judge in accordance with the prayer of the petition. Judgment was entered accordingly.
Defendant made application for leave to appeal. The reasons and grounds for appeal were as follows:
“(a) That the trial court erred as a matter of law in granting a writ of mandamus requiring the return of plaintiff to service as a court reporter of the probate court of Wayne county.
“(b) That the trial court erred as a matter of law in determining that mandamus was the proper remedy.
“(c) That the trial court erred as a matter of law in determining that defendant, as ‘presiding judge' of the probate court was under a duty and obligation to petitioner to appoint petitioner as a court reporter to defendant’s court or to the court of any other probate judge.
“(d) That the trial court erred as a matter of law in determining that mandamus and not quo warranto was plaintiff’s proper remedy.
“(e) The trial court erred as a matter of law in ruling that plaintiff’s position as a court reporter in the probate court is within the classified services.
“(f) The trial court erred as a matter of law in ruling that the civil service act does not directly interfere with the power of probate judges over appointed court reporters.
“(g) The trial court erred as a matter of law in ruling that the plaintiff had the right to be returned to service as a court reporter of.the probate court.
“(h) The trial court erred as a matter of law in ruling that this action was properly directed against defendant in his capacity as the presiding judge of the Wayne probate court.
“(i) The trial court erred as a matter of law in ruling that the civil service act, CLS 1956, § 38.414 (Stat Ann 1957 Cum Supp § 5.1191 [14]), supersedes CL 1948, § 701.14 (Stat Ann 1943 Rev § 27.3178[14]), which provides for appointment of court reporters in probate courts.
“(j) The trial court erred as a matter of law in ruling that plaintiff could be returned to probate court service without determining which presently appointed and qualified reporter should be replaced.
“(k) The trial court erred as a matter of law in ruling upon plaintiff’s return to probate court service without designating the particular probate judge to whom he should be assigned for service.
“(1) The ruling of the trial court does not recognize that the defendant, as presiding judge, does not possess the power of controlling appointments of court reporters for other probate judges.”
It is to be noted, that only 1 or 2 of these reasons and grounds for appeal involve the question decided by the lower court.
Leave to appeal was granted. Defendant in a memorandum brief specifically withdrew from con sideration any claim theretofore made that the Wayne county civil service act, as applied to court stenographers for the Wayne county probate court, was invalid and unconstitutional. Counsel for defendant at oral argument again restated defendant’s position in this regard.
Only 2 questions are presented here on appeal:
“1. Where the plaintiff, during a leave of absence from the probate court, waived his right to re-employment with 2 of the 6 probate court judges, is he entitled to maintain mandamus against the presiding judge to obtain re-employment in the probate court ?
“2. Assuming plaintiff’s right to re-employment as a probate court reporter; that all positions in the probate court are presently occupied; that to create a vacancy for plaintiff, one of the incumbents must be ousted; is mandamus the appropriate remedy to accomplish plaintiff’s objective?”
It appears to be the argument of defendant that the presiding judge of probate cannot appoint plaintiff to one of the positions of court stenographer because such positions are already filled (even though the last 2 of these positions are filled with provisional employees), and therefore a writ of mandamus, which is a discretionary writ, should not issue.
Having admitted the right of plaintiff to be certified to the position of court stenographer in the classified service in the probate court of the county of Wayne, all defendant presiding judge of probate court is compelled to do is to put him to work, and under the rules and regulations of the Wayne county civil service commission, as well as the rules of common sense, the last provisional employee must step aside. Provisional employees accept county service with the full knowledge that they may bo called upon to do so.
In this respect, it should he observed that counsel for the defendant stipulated that Evelyn Smith and Ann Dean (Cullitan), performing the duties of court stenographers for the probate court of Wayne county, are provisional employees. It is further agreed that at the time of the submission of this ease for decision, Ann Dean (Cullitan) was the most recently appointed provisional employee serving in the capacity of court stenographer for the probate court for the county of Wayne, having been appointed to her position about June 1,1956, said position being in the courtroom of the Honorable William J. Cody.
No question exists as to the rights of plaintiff and the rights of provisional employees under the civil service act.
CL 1948, § 38.413 (Stat Ann 1957 Cum Supp § 5-.1191 [13]), provides the method of appointment to positions in classified service and provides for the probationary period under the county civil service act. Under this act, recommending power, with respect to clerkship in the office of Wayne county circuit court commissioner is in the civil service commission, but appointing power is in the circuit court commissioner. Duncan v. County of Wayne, 316 Mich 513. In the same case, the Court said (p 522):
“Under the county civil service act the recommending power is in the civil service commission with the appointing power in the circuit court commissioner. * * * The change relates to the method of selection of employees only.”
Insofar as probate court is concerned, the same rule applies.
Under CL 1948, § 701.6 (Stat Ann 1957 Cum Supp § 27.3178 [6]), the power of nomination, appointment and removal of employees and the general direction and control of the business of the probate court is placed in the presiding judge. Such section provides, in part, as follows:
“Where 2 or more probate judges are elected in any county, they shall have equal powers, duties and compensation except that the power of nomination, appointment and removal of the several employees as provided by law for such court, and of the offices connected therewith, and the general direction and control of the business of such court, including the division of the work between the judges, shall be vested, * * * in counties having 1,000,000 inhabitants or more, in the judge who shall be chosen by the several probate judges in said county or, in the case no judge shall receive a majority vote of such judges, then in the judge of such court selected by the governor.”
It follows that no problems are created that would preclude the issuance of the writ of mandamus insofar as any confusion as to plaintiff’s rights and defendant’s duties in the premises.
In view of the above ruling, the only other question requiring an answer is whether or not a probate court stenographer is a public officer within the meaning of the law so that to remove such a stenographer quo warranto would be the proper remedy in place of the writ of mandamus.
In People v. Freedland, 308 Mich 449, 457, Justice Butzel, writing for the Court, quoted from State, ex rel. Hogan, v. Hunt, 84 Ohio St 143, 149 (95 NE 666), as follows:
“ ‘Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created.’ ”
Justice Butzel then went on to say (pp 457, 458):
“The rule is accurately stated in State, ex rel. Barney, v. Hawkins, 79 Mont 506, 528, 529 (257 P 411, 53 ALR 583), where the court said:
“ ‘After an exhaustive examination of the authorities, we hold that 5 elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.’ * * *
“In People, ex rel. Throop, v. Langdon, 40 Mich 673, 682, Mr. Justice Cooley said:
“ ‘The officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond.’ ”
Applying these factors to the instant case, probate court stenographers’ duties do not appear to be those of public officers but those of mere agents and servants constituting employees. They do not exercise power and authority in the same sense as an official who has delegated to him a portion of the sovereign power.
Defendant relies primarily upon the case of Hartingh v. Iosco Circuit Judge, 210 Mich 568, as his authority for contending that quo warranto is the proper remedy in this action and that mandamus cannot lie.
In the Eartingh Case the Supreme Court held that a circuit court stenographer is an officer of the court, made so expressly by the statute. It further held that a circuit court stenographer receives his appointment from the governor of the State. He is required, by statute, before entering upon the duties of his office, to take and subscribe the constitutional oath of office, which oath of office is required to be filed in the office of the secretary of State. His salary is fixed by the legislature and is paid from public funds. The statute refers to the office of court stenographer as an office. It might well be added that .the term of office is fixed by statute, as well as the duties and compensation. The statute 2further provides in his temporary absence the stenographer may appoint a competent person, approved by the judge, pro tempore, who shall be paid by the stenographer in whose place he acts, except in case of illness of the stenographer, when his appointee may be paid by the county. On the contrary, the probate court stenographer is an appointee of the probate judge. The statute authorizes the probate judge to allocate the duties of the stenographers, and he may combine the title and powers of the deputy registers, clerks, and stenographers in any one or more persons.
While it is true that on appointment probate court stenographers take and subscribe the constitutional oath of office, which it is provided shall be filed with the county clerk of the county, and that the county board of supervisors shall fix the reasonable salary, the statute does not .make them- officers of the court —the statute does not refer to the office of stenographer — and, therefore, we conclude it was not the intention of the legislature to make probate court stenographers officials rather than employees. Consequently the rule provided in Hartingh v. Iosco Circuit Judge, supra, does not apply in this case.
We do not find where the circuit judge in any way abused his discretion in granting the writ of mandamus. We feel'that under the above rules established no problem will present itself to the presiding judge in regard to reinstating plaintiff to his rightful position.
The lower court is affirmed, with costs in favor of plaintiff.
Dethmers, C. J., and Carr and Kelly, JJ., concurred with Kavanagh, J.
See CLS 1956, §§ 691.303, 691.304 (Stat Ann 1957 Cum Supp §§ 27.333, 27.334). — Reporter.
“The probate judge of any county may appoint, and. in counties of 50,000 or over shall appoint, 1 or more official court stenographers of such probate court, at a reasonable salary fixed by the county board of supervisors. Such stenographers so appointed shall take and subscribe the constitutional oath of office, which shall be filed with the eounty clerk of the county.” CL 1948, § 701.14 (Stat Ann 1943 Rev § 27.3178[14]).
“The probate judge may allocate the duties of the deputy registers, clerks and stenographers, and may combine the title and powers in any 1 or more persons.” CL 1948, § 701.15 (Stat Ann 1943 Rev § 27.3178[15] ). | [
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] |
O’Hara, J.
Defendants John Clifton Boyd and George Washington Singletery, Jr., were charged in a two-count information with unlawfully administering, dispensing, or disposing of heroin, contrary to MCLA 335.152; MSA 18.1122 and unlawful possession of heroin, MCLA 335.153; MSA 18.1123. After a joint bench trial, defendant Boyd was found guilty on both counts, while defendant Singletery was found guilty of unlawfully administering, dispensing, or disposing of heroin (count I) and not guilty of possession of heroin (count II). Defendant Boyd was sentenced to 20 to 30 years imprisonment on count I and 8 to 10 years imprisonment on count II of the information. His appeal is of right.*
Defendant first argues that where defense counsel requested and was granted a 30-day continuance for the purpose of inquiring into his client’s competence to stand trial that it was reversible error for the trial court not to refer defendant to a diagnostic clinic certified by the Department of Mental Health and then to not hold a hearing on defendant’s competence after examination of defendant by a local psychiatrist.
The salient feature of the instant case is that the trial judge never seriously questioned defendant’s competence to stand trial, and defense counsel never requested a hearing on defendant’s competence. Close attention to the facts reveals that on the first day of trial the trial judge saw that defendant appeared to be drowsy, and inquired by personal interrogation of defendant whether defendant was competent to stand trial. When defendant was able to satisfactorily answer the court’s inquiries, the court let the matter rest. Defense counsel, who throughout the proceedings was alert and forceful, said nothing.
On the second trial day, defense counsel asked for a continuance. His purpose was to have defendant examined by a local psychiatrist to see if there were grounds for making a motion to commit him to the forensic clinic or other approved diagnostic facility for a full competency hearing. The trial judge, in granting defendant’s motion for continuance, cannot be said to have adopted a motion by defense counsel for a competency determination in accordance with the statute, but merely recognized that defense counsel was entitled to a professional opinion as to defendant’s competence before formally raising the matter in the trial court.
In the case at bar, the trial judge gave defendant nearly a full month in order to lay the groundwork for a showing that defendant might be incompetent to stand trial. Had such a showing then been made, it might well have been an abuse of discretion for the trial court not to raise the issue of defendant’s competence' on its own motion in accordance with GCR 1963, 786.2 and Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966). Since the report of the local psychiatrist showed that defendant was fully competent to stand trial, defense counsel, feeling he had no bona fide grounds for pursuing the issue further, abandoned it. The trial judge was aware of this, as shown by his opinion from the bench (in which the trial judge noted that "The court was later pro vided by a local psychiatrist with a written report indicating that Mr. Boyd was in fact competent to stand trial and the question of competency was not further pursued by his counsel”). Thus there was no obligation upon the trial court to raise the issue of defendant’s competence on its own motion in accordance with GCR 1963, 786.2, supra.
With respect to the issues relating to defendant’s competence to stand trial we find no error.
Defendant’s next claim is based upon the delay between his arrest and trial of approximately 20 months. Although defendant was arrested on January 20, 1970, the trial was not held until September 20, 1971. There are several adjournments which defendant claims are without record explanation for the continuances. People v Harrison, 386 Mich 269, 274; 191 NW2d 371, 374 (1971), has held that such lack of record explanation showing good cause for continuances will be the subject of "great concern” on appeal.
The factors to be weighed in a test of the constitutionality of a trial held after long delay include: (1) length of delay; (2) the reason for the delay; (3) defendant’s assertion of his rights; (4) prejudice to the defendant. Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972).
In People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), the Supreme Court adopted the rule announced in Barker v Wingo, supra, including the four factors to be considered and the rule that failure to demand a speedy trial does not constitute a waiver thereof. The Supreme Court also noted that after a delay of 18 months, prejudice is presumed. People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). In Grimmett, there was a 19-month delay, yet the Supreme Court concluded that defendant’s speedy trial right had not been denied because there was no evidence that defendant was prejudiced by the delay.
In Grimmett, the Supreme Court relied extensively on Barker v Wingo, supra, and extensively quoted the Barker opinion concerning the fourth factor, prejudice to the defendant. The speedy trial right is designed to protect three identifiable interests of the defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; (3) limitation of the possibility that the defense will be impaired.
In the instant case, despite a delay of 20 months, it may be conclusively deduced that defendant was not prejudiced by the delay. This is established by the fact, that on the first day of trial defendant Boyd indicated to the trial court that he wished to waive trial and have the case determined on the transcript of the preliminary examination and suppression hearings. The preliminary examination was held less than 30 days after arrest, while the suppression hearing was held 13 months after arrest. There is no indication whatsoever in the suppression hearing transcript, either explicit or implicit, that any witness at the hearing was unable to remember anything relevant to Boyd’s defense because of the passage of time.
The only relevant additional evidence adduced at trial which was not in the hearing or preliminary examination transcripts related to a urine sample and the affidavits concerning lack of license to dispense narcotics. Since the affidavits were based on official records, and there is no indication that those records have ever been challenged as to accuracy, it is clear that the 20-month delay did not affect defendant’s speedy trial right with respect to that portion of the additional evidence. Thus the evidence adduced at trial which does not appear in the record of the suppression hearing or the preliminary examination was not affected by the passage of time.
In the case at bar, defendant Boyd was, except for a few days, free on bond.
Also relevant is the fact that defendant at no time prior to trial interposed an objection to the allegedly prejudicial delay in the disposition of his case. See Barker, supra.
Now we consider the allegation that the trial date was adjourned several times with no reason therefore appearing of record.
As to the first adjournment, the lower court record discloses that codefendant Singletery’s counsel, who was to represent Singletery at his joint trial with defendant Boyd, made a consolidated motion to quash the information and to adjourn the trial date. He claimed a schedule conflict between the trial date in the instant case and other pending litigation. While the trial court denied Singletery’s motion to quash, the order of the court is silent as to the motion to adjourn. However, a new trial date was set, presumptively in response to the motion of defendant Singletery’s attorney.
After the date originally set for trial, defendant Boyd retained different counsel. His original attorney of record had been notified on October 22, 1970 of the new November 30, 1970 trial date. The next pertinent document under date of December 3, 1£>70, informs newly retained counsel of both the altered pretrial and trial dates. This amply corroborates the position of the people that this continuance was wholly attributable to defendant’s desire to substitute counsel.
On February 1, 1971, defendant’s new counsel noticed a motion to quash the information. It was heard on February 8, 1971, the next date to which the trial had been adjourned. When defendant was aggrieved by the trial court’s ruling he sought a stay of proceedings so that he might obtain a transcript of the suppression hearing and seek leave to appeal. Apparently an adjournment was granted, although the record is silent in this regard. Our search of proceedings below also does not reveal any action by defendant to pursue his appellate remedies beyond arranging to obtain a copy of the record of the suppression hearing.
The case was rescheduled for trial on July 6, 1971, but approximately a week prior thereto, the prosecutor made a motion for an order allowing the people to reconstruct their files. The files in question had mysteriously disappeared from the prosecutor’s office at the time the pretrial conference was held. Finally, trial was scheduled for and actually held on September 20, 1971.
We conclude that defendant was not denied his right to a speedy trial and that no prejudice resulted from the delay.
Defendant’s next objection pertains to the introduction into evidence of testimony concerning a urine sample taken from an informant (Mrs. Rios) shortly after she allegedly received an injection from defendant Singletery, at defendant Boyd’s direction. It is the claim of defendant that the prosecutor failed to sufficiently establish the chain of custody with respect to the urine sample so that the state police expert should not have been permitted to testify that his analysis showed the presence of morphine and quinine. Further objection is raised to the fact that the urine sample itself was destroyed for either or both sanitary reasons and chemical decomposition and thus not offered as an exhibit (the vials which had contained the liquid were similarly unavailable, too).
There was testimony by Mrs. Rios and her mother that she was injected with a liquid formed from the mixture of water and a white powder which came from the same envelope as was later identified to have contained heroin. This testimony was further corroborated by the observations of the police and the nurse, all of whom testified that Mrs. Rios, shortly after the injection appeared to be extremely drowsy. While Mrs. Rios and her mother may have been biased as defendant asserts, this goes to credibility and is for the trier of fact. While drowsiness can be induced by an injection of many chemicals, Mrs. Rios’ condition could only be explained on this record by recent ingestion or injection of a depressant drug, of which opiates form a major classification. Thus any error, if there be such, in the admission of testimony relating to the urine sample was harmless, because that evidence was cumulative.
More importantly, however, at the opening of the trial, defendant Boyd’s attorney stated to the court that the chain of evidence was not important since defendant’s theory of the case was illegal search and seizure and entrapment. Defense counsel thus stated that he was willing to waive the chain of custody. Hence, defendant could not have regarded such testimony as critical or particularly damaging to the conduct of his case.
Defendant further contends that it was error to proceed with a pretrial evidence suppression hearing in his absence even though defense counsel expressly stipulated to continue without the presence of defendant Boyd.
While People v Medcoff, 344 Mich 108, 116-117; 73 NW2d 537, 543 (1955), has recognized "[t]he right of the accused to be present at all stages of the trial where his substantial rights might be affected is * * * [a] fundamental one”, it apparently is an issue of first impression in Michigan as to whether a defendant has a non-waivable right to be present at a pretrial evidence suppression hearing.
It is argued that defendant lost his opportunity to cross-examine the witnesses at the suppression hearing, and to take the witness stand himself without fear that he would thereby waive his privilege against self-incrimination at trial. Defendant was present at trial and the testimony on the suppression issue was essentially the same as that at the suppression hearing. No witness changed his testimony, despite extensive cross-examination by defense counsel. We can only conclude that defendant suffered no loss of his cross-examination rights by his absence at the suppression hearing, since his . counsel was present. Defendant’s presence at the later stage of trial when the same testimony was adduced afforded ample opportunity for a motion to allow defendant to take the stand specially to challenge any testimony he chose without waiving his privilege against not testifying in the case in chief. The whole issue of the defendant’s nonpresence at the suppression hearing seems more a matter of form than of substance.
Mayhaps defendant’s claim of error would be entitled to greater credence had he, after defense counsel freely stipulated to proceeding in defendant’s absence, made a later request for a rehearing and had defendant not offered to go to trial on the suppression hearing transcript and the preliminary examination transcript.
In any event the revocation of his bond can hardly be said to bear on the essential legal question of the non-waivable character of the right to be present at the suppression hearing. If it is waivable in the absence of prejudice shown, clearly defendant waived it. If it is non-waivable the reason for his non-presence because of the claimed traffic accident is unimportant. The issue may have to be settled with finality in this state by the Supreme Court. We hold that without any showing of prejudice, the defendant’s absence from a proceeding that is not part of the trial proper can be waived.
The defendant next argues that he was denied due process of law by the alleged acquiescence of the prosecution in certain purportedly false testimony of prosecution witnesses, i.e., that no formal deal or understanding had been arrived at between the police and Mrs. Rios (an informant) in exchange for her testimony in the present case. Appended to defendant’s appellate brief is a copy of an affidavit executed by Ricardo Meana who was the attorney of record for Mrs. Rios on a prior unrelated charge of sale of heroin. In substance the affidavit sets forth generally Meana’s efforts to secure a reduction of the charges against his client. Specifically mentioned are certain discussions he allegedly had with an officer of the Grand Rapids Police Department relative to the "possibility” of charge reduction if Mrs. Rios cooperated with the police.
In reading the affidavit of Meana it becomes apparent that he makes no claim that any deal was in fact concluded between Mrs. Rios or her attorney and the police or prosecutor. Meana stated that he at several points discussed with a police officer the possibility of the charge of sale being reduced to possession, and the possibility that if Mrs. Rios acted as a police agent her cooperation would be reported to her presentence officer for inclusion in the presentence report. Meana believes and is informed that the court which sentenced Mrs. Rios was advised of her cooperation in the presentence report.
This affidavit falls far short of claiming, whether directly or by innuendo, that any representative of the people of the State of Michigan made any deal with Mrs. Rios in exchange for her help in building a case against defendant Boyd. All the affidavit proves, if anything, is that Mrs. Rios’ attorney attempted to negotiate a bargain on her behalf, but that no promises were ever made. This is consistent with the testimony of the officers that they made no promises to Mrs. Rios.
During cross-examination of one of the officers it was brought out that he had known the prosecutor’s office was attempting to obtain Bertha Rios’ cooperation and that the police department had concurred in the prosecutor’s reduction of the sale charge to the lesser offense of possession. It was also disclosed that Mrs. Rios had in fact pled guilty to the possession count and had been sentenced to four months in jail which was suspended and she was placed on probation. Moreover, Mrs. Rios acknowledged that she expected some consideration for her assistance in the instant case. The question is not whether the people did in fact make a concession to a prosecution witness on another charge. The question is whether the people induced a witness to testify other than truthfully in return for the concession. The whole story was laid out in detail on the record. Unlimited cross-examination was afforded defense counsel. This left the issue of Mrs. Rios’ credibility to the trial judge as trier of the facts. We find no reversible error.
Defendant’s next claim relates to the alleged error of the trial judge in denying defendant’s motion to quash count I of the information because the people did not establish his lack of a license to dispense narcotic drugs.
While defendant Boyd did make a motion to quash prior to trial alleging inter alia that there was insufficient evidence adduced at the prelimi-; nary examination to warrant binding him over on count I of the information, dispensing heroin, this argument was grounded on the alleged failure of the people to establish that the accused "actively engaged in administering or dispensing narcotics to Bertha Rios”. Neither in his motion nor accompanying brief was there any mention of the absence of proof with respect to defendant’s lack of license to dispense or administer narcotics. It is axiomatic that in motion practice as elsewhere a party must state the precise, particular grounds on which he bases his claim for relief. By virtue of not raising the lack of license issue below at the time of his motion to quash, defendant waived any right to rely on this particular ground in the Court of Appeals.
Further examination of the record indicates that the prosecution did in fact introduce proofs at trial which clearly and unequivocally established the fact that defendant was not duly licensed to administer or dispense narcotics. Hence, the unobjected to lack of proof on this element of the crime at the preliminary examination proceedings cannot be regarded as denying defendant any substantial right or being sufficiently prejudicial to require reversal of the judgment of conviction.
With respect to defendant’s seventh assignment of error, he asserts that it was reversibly erroneous for the trial judge who was trier of fact to preside over a mid-trial Walker hearing and also to examine the transcript of a preliminary hearing while the trial was in progress.
What actually happened is that defendant, in the midst of his bench trial, demanded a Walker hearing and made no objection to the trier of fact presiding over it. Practically speaking, he must be considered to have waived any objection to this procedure. While it might have been preferable not to have that judge preside over the evidentiary hearing, we do not deem it desirable policy-wise to formulate an absolute rule prohibiting a judge who conducts a Walker hearing and necessarily hears inculpatory statements from presiding at trial. See generally People v Britt, 37 Mich App 175; 195 NW2d 528 (1971).
People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971) , held that it is absolutely reversible error for the trial judge at a bench trial to even glance at the transcript of the preliminary examination. It will be noted that at a preliminary examination evidence is introduced to show the commission of the crime and the probable cause to believe defendant committed it. At a Walker hearing, all that is introduced is evidence relating to whether or not defendant’s alleged admissions are a product of coercion or whether they are the product of defendant’s free will. Such evidence does not relate to guilt or innocence. Where, as here, those statements are ultimately introduced at trial, it is particularly difficult to see how defendant could possibly have been prejudiced.
Unlike the situation in People v Ramsey, the transcript examined by the trial judge here was that of the evidence suppression hearing. Not only was every shred of evidence introduced at that hearing relitigated at trial, but the trial judge, before examining the transcript, asked whether either attorney had any objections. The attorneys had none. Under these circumstances, the doctrine of People v Ramsey is simply inapplicable. People v Dorsey, 45 Mich App 230; 206 NW2d 459 (1973).
Defendant is not entitled to resentencing on the asserted ground that a sentence of 20 to 30 years imprisonment for dispensing of heroin constituted a cruel and unusual punishment. That issue has been resolved against the defendant by our Supreme Court. See People v Ford, 389 Mich 751 (1972) .
Defendant’s sentence of eight to ten years for possession of heroin violates the indeterminate sentencing act as construed by the Supreme Court in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Following correction, defendant’s sentence is a minimum of six years and eight months to a maximum of ten years imprisonment.
Affirmed, but sentence corrected.
All concurred.
Defendant Singletery has also appealed and is proceeding in propria persona, but his case has not been consolidated with the appeal of defendant Boyd. Hence, any reference to Singletery is incidental to our discussion of the issues raised by Boyd in the instant appeal.
Defendant was incarcerated from January 20, 1970 to February 14, 1970 (the date of arrest until shortly prior to the preliminary examination). Any custodial restraint later imposed on defendant is attributable to revocation of his bond by the trial court for failure to appear at duly noticed hearings.
Morphine is a metabolic product of heroin, which is deacetylated upon introduction into the body.
When faced with the issue other jurisdictions generally have recognized that a defendant has a right to be present at the holding of a hearing on a motion to suppress evidence, subject to the usual application of the waiver doctrine. State v Williams, 19 Ohio App 2d 234; 250 NE2d 907 (1969); People v Colombani, 22 App Div 2d 956; 255 NYS2d 906 (1964); United States v Dalli, 424 F2d 45 (CA 2, 1970).
A defendant may not on appeal raise errors or irregularities relating to what transpired at the preliminary examination unless the issue was timely raised prior to or at trial. People v White, 32 Mich App 296; 188 NW2d 236 (1971); People v Stinson, 6 Mich App 648; 150 NW2d 171 (1967); People v Miniear, 8 Mich App 591; 155 NW2d 222 (1967).
Since this case was brought prior to the effective date of the recently enacted Controlled Substances Act, MCLA 335.301 et seq., MSA 18.1070(1) et seq., it is unaffected by the legislative proviso which places the burden of proof on a person to rebut the presumption that he is not the duly authorized holder of an order form or proper registration to dispense heroin or other substance listed in the act. MCLA 335.356; MSA 18.1070(56).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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Fitzgerald, J.
This case is in this Court for the second time. The first appeal was Vorrath v Garrelts, 35 Mich App 463; 192 NW2d 547 (1971). There, a majority of the Court held that the plaintiff contractor did not have a valid mechanic’s lien and reversed the judgment of the trial court which had upheld the lien.
Briefly recapitulating the facts, we find that plaintiff was constructing a house for the defendant. At defendant’s request, changes were made in the building which increased costs. The plaintiff requested additional payment and the defendant refused. The lawsuit resulted.
After this Court’s reversal of the lien matter, plaintiff sought to recover from defendant on a portion of the judgment which he contends was not affected by this Court’s reversal.
The plaintiff argues that the judgment provided both a lien and personal liability on the part of the defendant and that this Court reversed only that part of the judgment providing a lien. The trial court agreed and allowed the plaintiff to proceed. The defendant then sought superintending control which this Court treated as an application for leave to appeal and granted leave.
The first question posed is whether a contract or quasi-contract action by a building contractor is barred by a failure to serve a sworn statement showing all amounts due to subcontractors and materialmen on the owner of the building under construction?
In the first appeal, it was held that foreclosure of a lien was barred by MCLA 570.4; MSA 26.284 which provides in part:
"Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner.”
The language "shall have no right of action or lien” would at first glance seem to prevent a contract or quasi-contract action, such as in the case at bar. Further support for this view is found in Barnard v McLeod, 114 Mich 73; 72 NW 24 (1897). However, that case is not so controlling as it would appear at first glance. In addition to language indicating that a contract action should be treated in the same manner as an action to foreclose a lien, the Court stated the following:
"We do not intend to be understood as saying that the service of such sworn statement is necessarily jurisdictional, and that neglect to serve is fatal in all cases, or that it cannot be waived. Possibly it should not be allowed to stand in the way of recovery where the absence of other liens and the opportunity to effect them are conceded or obvious. This provision is a shield, and, while it should be given full effect for that pur pose, its mission may be held to end with the possibility of such use, should such case arise.” Barnard, supra, p 76.
A case which makes a clear-cut distinction between the treatment to be accorded to a contract action and that accorded to an action to foreclose a lien is Netting Co v Touscany, 247 Mich 279; 225 NW 556 (1929). In Netting, the plaintiff filed a bill in equity to foreclose a lien. The trial court held that the lien was void because the plaintiff had failed to furnish the defendant with a sworn statement as required by the predecessor of the present statute. The Supreme Court affirmed this portion of the decree, indicating that such a statement was a sine qua non to the attachment of a lien. However, the chancellor’s decree had also ordered that the case be transferred to the law side of the court and the defendant had appealed this portion of the decree. The Supreme Court affirmed, holding that the equitable proceedings did not represent an election of remedy and that a law action could be maintained.
In Netting, we have a case where the plaintiff’s failure to comply with the statute was more complete than in the case at bar. Nonetheless, the Supreme Court did not hold that this failure precluded a contract or quasi-contract action. Thus, while failure to comply with the statute prevents the attachment of a lien, it does not prevent an ordinary civil action to recover what is due.
Another case on point is Walker v Syms, 118 Mich 183; 76 NW 320 (1898). This case was an action in assumpsit. The defendant argued that no recovery could be had because no statement had been served. It appeared from the record that there were in fact no liens outstanding and the Court refused to hold that a failure to comply with the statute barred the action. The Court quoted the previously quoted language of Barnard and then stated:
"The case suggested by Justice Hooker is now here. The use here made of the provision of the statute is not that of a shield on the part of the owner against possible liens, but it is an attempt to use the statute to prevent the rendition of a judgment which, according to the findings of the court, ought to be rendered.” Walker, supra, p 189.
See, also, Bollin v Hooper, 127 Mich 287; 86 NW 795 (1901).
In the foregoing authorities, the Supreme Court has treated contract and quasi-contract actions differently from actions to foreclose a lien. The failure to serve a sworn statement may be fatal to an action to foreclose a lien, but it is not an absolute bar to a contract or quasi-contract action. It should be noted that even in Barnard, the case where a judgment was reversed, the Court regarded the defect as curable and remanded for a new trial.
In the case at bar, the defendant does not contend that he will be prejudiced if the action is allowed. He does not contend that allowing the plaintiff to recover would increase his total liability. He makes no showing that the trial court computed damages in a way that would include amounts that are owed to unpaid materialmen and subcontractors. In short, the defendant does not contend that the judgment represents anything other than a just debt.
We are also asked whether the order in the first appeal in this case reversed all of the trial court’s judgment or only that portion ordering foreclosure of a lien?
The general rule appears to be that only the portion of a judgment that is appealed from is held for naught by a reversal. Calistro v Spokane Irrigation District No 10, 78 Wash 2d 234; 472 P2d 539 (1970); State, ex rel Carriger, v Campbell Food Markets, Inc, 65 Wash 2d 600; 398 P2d 1016 (1965); 5B CJS, Appeal & Error, § 1950, p 513; 5 Am Jur 2d, Appeal & Error, §953, p 380. Michigan offers no controlling authority on this point.
The original judgment in this case not only imposed a lien, it also provided for personal liability on a quasi-contract basis. The only issue raised on the first appeal and the only issue considered by this Court was whether or not there was a lien.
, The decision regarding a lien cannot be regarded as disposing of the underlying contractual claim. While a decision destroying a contract action would also destroy a lien action, the same does not hold true for a decision destroying the lien. A lien is something apart from the cause of action and destruction of a lien has no effect on the underlying cause of action except to render it at least partially unenforceable if the defendant is insolvent.
The orders supplemental to judgment issued in this case are proper orders. Those orders are affirmed and the plaintiff allowed to make levy of execution. Costs to appellee.
All concurred.
Though the parties captioned this case as if it were superintending control, this case is here on a grant of leave to appeal, and the original name of the case is used. | [
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] |
J. H. Gillis, J.
On May 7, 1968, in the city of Mason, Lawrence Barton, a contractor, was excavating for a new building on a vacant lot immediately east of defendants’ building. The excavation was almost completed when, at about 11:30 a.m., a portion of the basement foundation of defendants’ building gave way, involving a section of the footing under the southeast corner of the building estimated at from 6 to 8 feet deep and 5 to 16 feet in length. At 11:41 a.m., a section of the southeast brick wall above the footing fell and large cracks developed along the upper front story and laterally along the east side of the building. Between 12 and 12:30 p.m., Mason Police Chief Thomas Stoltz expressed concern to Barton that something should be done that day about the loose bricks on the southeast corner. Both Barton and Mr. Buchman, the owner, agreed that the condition of the southeast wall was potentially dangerous.
It is disputed as to what happened at about 1:45 to 2 p.m. when Barton stationed his backhoe operator before the building. Buchman claims he believed that Barton was just going to reach up with the backhoe to take off some loose bricks. Barton asserts that he received what he assumed was a direct order from Chief Stoltz to tear the building down. In any event, the backhoe operator knocked in the entire front and a portion of one side wall of the building.
On July 3, 1968, the city notified defendants to remove the building because it constituted a public hazard and a nuisance. Defendants responded that they were financially unable to do so and that they were also unable to arrive at a settlement with the parties responsible for the damage.
The City of Mason filed this action to have the partially collapsed building declared a nuisance and a public hazard, for an order for demolition of the building, and for a determination that defendants be assessed the costs of demolition. Circuit Judge Sam Street Hughes found the building to be a public nuisance and ordered it demolished. The findings of Judge Hughes are not contested.
Later, after a nonjury trial before Circuit Judge Marvin J. Salmon regarding assessment of the costs of demolition carried out by the city, Judge Salmon found that the city was at least partly responsible for the collapse of the building. He determined that Chief Stoltz, acting with apparent authority, issued the order which "touched off” events resulting in the building being so damaged as to become a nuisance and a hazard. The judge concluded that defendants were in no way responsible for a situation "that was just pushed on them”. Finding defendants blameless, he concluded that they should not be required to pay to abate the nuisance. This appeal has been taken from the judgment of no cause of action entered in defendants’ favor and presents for our resolution the question of whether defendants must reim burse plaintiff for expenses incurred in fazing defendants’ building.
The Mason city charter specifies that an action will lie for the abatement of a public nuisance and for the recovery of the costs of abatement from the landowner if, as in this case, the city finds it necessary to proceed with the abatement. See also 6 McQuillin, Municipal Corporations (3d ed), § 24.79, p 638-641; 7 McQuillin, Municipal Corporations (3d ed), § 24.561, p 596; 66 CJS, Nuisances, § 138, p 945. No question is raised as to the reasonableness of the costs which were incurred to abate the nuisance.
However, it is well established by ancient precedent that a city may not charge an innocent landowner for the cost of abatement of a nuisance the city has created. City of Hannibal v Richards, 82 Mo 330 (1884); Weeks v Milwaukee, 10 Wis 242 (1860); Patrick v Omaha, 1 Neb (unofficial) 250; 95 NW 477 (1901); Lasbury v McCague, 56 Neb 220; 76 NW 862 (1898); see also 6 McQuillin, Municipal Corporations (3d ed), § 24.62, pp 611-612; 62 CJS, Municipal Corporations, § 281(d)(1), p 635. The finding by the trial judge that the city, through Chief Stoltz, "touched off’ the events resulting in the creation of a nuisance for which the landowners were blameless, precludes recovery by the city.
To deny application of that doctrine would require the innocent landowners to pay a judgment they ought not to and then duplicate their evidence in a separate lawsuit the outcome of which is not certain. We see no reason why the Buchmans cannot assert their innocence in this case.
Affirmed. Costs to appellees.
Fitzgerald, P. J., concurred. | [
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Per Curiam.
Case No. 14036
Plaintiff, City of Birmingham, instituted suit against the County of Oakland and the 48th Judi cial District Court, as codefendants, seeking a declaratory judgment requiring defendant County of Oakland to reimburse plaintiff for witness fees paid in connection with criminal preliminary examinations conducted by the 48th Judicial District Court concerning state law criminal matters.
Plaintiff was granted a judgment by Oakland County Circuit Judge William John Beer. His opinion declared that "it is the responsibility of the defendant, County of Oakland, to pay witness fees incurred by the Oakland County Prosecutor’s office in the course of state law preliminary examinations held in the City of Birmingham”.
Case No. 14250
In the latter part of 1970 and the early' part of 1971, the City of Flint, the district control unit for the 68th District Court, through its director of finance, advised the controller for the County of Genesee of its intention to forward witnesses who had been called to testify in preliminary examinations or trials of state law violations in the 68th District Court, to the office of the Genesee County Treasurer for payment of witness fees. The county refused payment. This action was commenced to obtain a judicial determination of the rights of the parties. Genesee County Circuit Judge Thomas C. Yeotis entered a judgment declaring "the County of Genesee has the legal obligation to pay witness fees and mileage allowances attendant to preliminary examinations and trials of criminal cases in the 68th District Court when the violation of state law giving rise to the action takes place in the City of Flint”.
Both cases having been appealed, this Court, on its own motion, ordered them consolidated for hearing and argument.
Issue
Is the county liable for witness fees and mileage allowances incurred in preliminary examinations and in state law violation trials in district courts of the third class?
The Revised Judicature Act, § 8323; MCLA 600.8323; MSA 27A.8323, states:
"Witnesses in the district court shall be entitled to receive the same fees and mileage allowances to which witnesses in circuit court are entitled. Where the county is responsible for such expenses in the circuit court, the district control unit for the place where the trial occurs shall be responsible for such expenses in the district court.”
Sections 13 and 14, ch 14, Code of Criminal Procedure, MCLA 775.13 and 775.14; MSA 28.1250 and 28.1251, read:
"Sec. 13. Whenever any person shall attend any court as a witness in behalf of the people of this state upon request of the public prosecutor, or upon a subpoena, or by virtue of any recognizance for that purpose, he shall be entitled to the following fees: For attending in a court of record, $12.00 for each day and $6.00 for each half day; for attending in a justice court or upon an examination, $10.00 for each day and $5.00 for each half day; and for traveling, at the rate of 10 cents per mile in going to and returning from the place of attendance, to be estimated from the residence of such witness if within the state; if without the state, from the boundary line which witness passed in going to attend the court.
"Sec. 14. In courts of record such witness shall prove his attendance and travel in open court before the clerk, and in justice courts before the justice, on the day of trial, or upon an examination, and a certificate thereof from the justice, countersigned by the prosecut ing attorney of the county, shall authorize the county clerk to draw an order upon the county treasurer for the payment of the fees of such witnesses attending such justice court as aforesaid, which order shall be paid by the said county treasurer in like manner as witness fees in courts of record are paid, and an order therefor from the clerk of such court of record shall authorize the county treasurer to pay the fees of witnesses attending such court of record as aforesaid in the same manner as the fees of jurors attending such courts are paid.”
On April 10, 1916, Attorney General Grant Fellows in a letter opinion (OAG, 1916, pp 489, 490) stated:
"Chapter 77 of the Judicature Act apparently relates to civil procedure entirely and not to criminal procedure, while section 12015 of the Compiled Laws of 1897 relates solely to criminal procedure. It is my understanding that the Judicature Act taken as a whole relates to civil procedure, etc., as is evidenced by its title and only affects criminal procedure incidentally.
"I am, therefore, of the opinion that section 12015 of the Compiled Laws of 1897 is not superseded by section 4 of Chapter 77 of the Judicature Act.”
The modern counterpart of section 12015 is MCLA 775.13; MSA 28.1250.
In People v Stanley, 344 Mich 530; 75 NW2d 39 (1956), the Supreme Court had the question whether an appeal in a criminal case was governed by the Judicature Act and was therefore of right, or by the Code of Criminal Procedure and was therefore by leave. In holding that the Code of Criminal Procedure controlled, the Court said (p 540; 75 NW2d at 44):
"The title of the judicature act negatives a conclusion that it was intended by the legislature to apply to procedure in criminal cases. The later enactment of the code of criminal procedure, without making reference to the judicature act, shows the legislative intent. These 2 acts were obviously intended by the legislature to apply to the practice and procedure in civil cases separate from that in criminal cases. A mere reading and comparison of the titles of the judicature act and of the code of criminal procedure can lead to only one conclusion — one was intended by the legislature to refer to practice and procedure in civil cases, and the other to criminal procedure.”
On March 9, 1950, Attorney General Stephen J. Roth, in an opinion addressed to John D. Voelker, Prosecuting Attorney of Marquette County (OAG, 1949-1950, No 1179, pp 489-490), stated as follows:
"You have inquired whether the payment of witness fees in criminal cases is to be governed by PA 1915, No 314, chap 48, § 3 (CL 1948, § 6483 [Stat Ann § 27.2557]), as amended by PA 1949, No 96 (Stat Ann 1949 Cum Supp § 27.2557), or by PA 1927, No 175, chap 15, § 13 (CL 1948, § 775.13 [Stat Ann § 28.1250]).
"The first mentioned section is a part of that chapter of the judicature act which treats of the fees of sheriffs and witnesses while the latter section is a part of the chapter of the code of criminal procedure which deals with fees to be paid in criminal cases.
"The cited 1949 amendment to the judicature act increased witness fees throughout the state, except in the county of Wayne, and made them uniform. It also added to the section in question, so far as pertinent, the words italicized below:
" 'Witnesses shall receive for attending in any suit or proceeding pending in a court of record, $5.00 for each day and $2.50 for each half day: Provided, That no complaining witness in any criminal suit or proceeding shall be entitled to witness fees. Witnesses, including complaining witnesses, shall receive for traveling at the rate of 10 cents per mile in coming to the place of attendance, to be estimated from the residence of such witness if within this state, or from the boundary line of this state, which such witness passed in coming, if his residence be out of the state.’ (italics supplied)
"The relevant section of the code of criminal procedure provides for different witness fees and travel expenses for attending courts of record as well as for attending justice courts.
"Prior to the mentioned 1949 legislation there appeared no inconsistency between these two sections, although they differed as to fees and mileage payments, because one related to civil and the other to criminal cases. .
"The title to the judicature act, which was not amended in 1949, presently reads:
" 'An Act to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms of civil actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with, or contravening any of the provisions of this act.’ (italics supplied)
"It will be seen that this title declares the object of the judicature act to be the regulation of practice and procedure in civil matters. The title to the code of criminal procedure, on the other hand, indicates that the object of that act is to regulate criminal procedure, including 'fees of * * * witnesses * * * in criminal cases.’
"The italicized new matter added to the questioned section of the judicature act by PA 1949, No 96, insofar as it purports to govern procedure in criminal cases has no relation whatsoever to civil practice and procedure. Therefore, it cannot be said to be germane, auxiliary or incidental to the general object and purpose of the judicature act as expressed in its title.
"Const 1908, art 5, § 21, provides that 'no law shall embrace more than one object, which shall be expressed in its title.’ In construing this provision the supreme court has declared that although the title to an act need embrace the object or purpose of the act only in general terms, Loomis v Rogers, 197 Mich 265, 271 [163 NW 1018, 1020 (1917)], and need not constitute a table of contents or an index to the act, People [ex rel Wayne Prosecuting Attorney] v Sill, 310 Mich 570, 574 [17 NW2d 756, 758 (1945)], yet it must be sufficiently comprehensive to challenge legislative and public attention to all matters embodied in the act which can be said to be germane, auxiliary or incidental to the title thereof. Rohan v Detroit Racing Association, 314 Mich 326, 356 [22 NW2d 433, 444 (1946)] (166 ALR 1246, 1260). No one would suppose, after reading the title to the judicature act, that this act contained any provision regarding criminal procedure. It is apparent, therefore, that the references to criminal procedure contained in PA 1949, No 96, are not comprehended within the title to the judicature act.
"An argument might be made that the italicized wording of the amendatory act as quoted herein comes within that portion of the title thereof which relates 'to the organization and jurisdiction of the courts of this state.’ In my opinion, such argument is not tenable for the reason that the statutory provision providing for the bringing of a witness before a court and payment to him of a witness fee therefor is not organizational or jurisdictional but is procedural. The judicature act, so far as procedural matters are concerned, has to do solely with the civil as distinguished from the criminal phase thereof.
"Accordingly, in my opinion, PA 1949, No 96, insofar as it relates to criminal cases is violative of Const 1908, art 5, § 21, and void.
"You are therefore advised that the payment of witness fees in criminal cases is governed by the applicable provisions of the code of criminal procedure.”
The present Revised Judicature Act was adopted in 1961. However, its title remains substantially the same as that of the Judicature Act of 1915 and the reasoning that it applies only to the organization and jurisdiction of the courts and to civil procedure, but not criminal procedure, remains applicable. Since witness fees in criminal cases are matters of procedure and not organizational or jurisdictional, to the extent that MCLA 600.8323; MSA 27A.8323 relates to criminal cases, it is void because of violation of that part of Const 1963, art 4, § 24, which reads: "No law shall embrace more than one object, which shall be expressed in its title”.
The title of the Code of Criminal Procedure specifically states that it is to provide for fees of officers, witnesses, and others in criminal cases. Consequently, we hold that the provisions of §§ 13 and 14 of the Code of Criminal Procedure are controlling and dispositive of the question herein presented.
Affirmed as to both cases. | [
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Holbrook, P. J.
Defendants were found guilty after jury trial of breaking and entering of a building with intent to commit larceny. MCLA 750.110; MSA 28.305. The alleged crime was the breaking and entering of a building to steal snowmobiles. On May 11, 1972, defendant Ross was sentenced from three to ten years in prison and on May 12, 1972, defendant Carroll was sentenced from two to ten years in prison. Defendants now raise seven issues on appeal.
Defendants first claim that their arrest was made without probable cause and that, therefore, their convictions must be reversed. Defendants do not argue that any evidence obtained as a product of their alleged illegal arrest should have been suppressed at trial. Assuming arguendo that the arrests were illegal, there is no authority for the proposition that the necessary consequence of an illegal arrest is that a defendant’s subsequent conviction must be reversed. The rule, in fact, is that an unlawful arrest does not prevent the prosecution of a defendant. People v Drummonds, 30 Mich App 275; 186 NW2d 7 (1971); People v Miller, 235 Mich 340; 209 NW 81 (1926); People v Nawrocki, 6 Mich App 46, 53-54; 150 NW2d 516 (1967).
Defendants next claim that the trial court committed reversible error by conducting an inquiry into possible improper influences on the jury outside of the defendants’ presence. On three occasions the trial judge conducted in-chambers inquiries into possible grounds for the disqualification of certain jurors. The defendants’ lawyers were present at these inquiries but the defendants were not. The first inquiry occurred after the attorney for one of the defendants reported that he had observed a witness police officer in a conversation with a group of people including one prospective juror, with another prospective juror listening to the conversation. The defendants’ attorneys apparently accepted the officer’s explanation that the juror had not joined the conversation and that the case had not been discussed because these jurors were not challenged either for cause or peremptorily. None of the attorneys asked that the prospective jurors be examined.
The second incident occurred shortly after opening statements when one of the jurors voluntarily indicated that he was acquainted with one of the witnesses. Again the trial judge conducted an inquiry in chambers with counsel present and again no challenge was made to the juror.
The third incident occurred during the testimony of a witness when one of the jurors realized she knew the witness’s parents and so informed the court. After another in-chambers discussion the trial court excluded the juror from the jury panel upon defense counsel’s request.
Defendants cite People v Percy Harris, 43 Mich App 746; 204 NW2d 734 (1972), and authorities noted therein for the proposition that a hearing on the issue of undue influence of a juror is a critical stage of trial at which defendant has a right to be present. This proposition has also been followed in People v Medcoff, 344 Mich 108; 73 NW2d 537 (1955); People v Nickopoulos, 40 Mich App 146; 198 NW2d 691 (1972); People v Palmer, 28 Mich App 624; 185 NW2d 94 (1970); People v Fountain, 43 Mich App 489; 204 NW2d 532 (1972); People v Bowman, 36 Mich App 502; 194 NW2d 36 (1971); People v Lyle Brown, 37 Mich App 25; 194 NW2d 450 (1971). Accord, People v Thomas, 46 Mich App 312; 208 NW2d 51 (1973). In Medcoff, Palmer, and Percy Harris, both the defendant and his counsel were excluded during the trial court’s inquiry into allegations of juror misconduct, and the Appellate Court found it to be reversible error. In Nickopoulos and Fountain this Court reversed and re manded for a new trial when the trial court conducted an investigation into allegations of jury tampering without the presence of either defense counsel or defendant. Contrariwise, in Bowman there was no error found when in-court and in-chambers conferences between the trial judge and defense counsel about matters of evidence, law, and possible juror prejudice were held in the absence of the defendant and no objections were made by defense counsel to any of the proceedings. Similarly, in Lyle Brown a conference was held in chambers with defense counsel present to discuss a note from a juror to the trial judge and this Court found no error in the defendant’s personal absence from the conference. We find the distinction of counsel’s presence or absence among the above cases a crucial one. In the instant case defense counsel was present at all in-chambers meetings to discuss possible undue influence on the jury and at no time objected to the proceedings. Moreover, the trial judge granted the defense counsel’s request to exclude a juror as a result of the third conference. We therefore find no prejudicial error in defendants’ personal absence from the inquiries into juror impartiality.
In addition, defendants argue that the trial court erred in the first in-chambers inquiry in not sua sponte interviewing the jurors who allegedly overheard the conversation of the witness as described above. People v Levey, 206 Mich 129; 172 NW 427 (1919), cited by defendants as authority that the lack of such an interview is reversible error, is considerably different from this case, since in Levey the judge in a similar situation asked only the jury foreman if another juror had been unduly influenced. Also, here both defense counsel were given the opportunity to have the jurors questioned and declined that opportunity.
The third claim made on appeal, raised by defendant Ross alone, is that his case was prejudiced because the jury saw him in a holding cell and overheard the bailiff making a phone call and telling someone to bring Ross over. Defendant cites People v Duplissey, 380 Mich 100; 155 NW2d 850 (1968), in support of his claim that prejudice against him occurred. In Duplissey, however, a defendant was handcuffed in court during trial despite the fact that he was guilty of no misconduct, though his codefendants were. There the Supreme Court found error in the denial of a separate trial for the defendant. The factual situation here is hardly as extreme as that in Duplissey. Moreover, orderly court process often unavoidably requires use of restraints, prison garb, etc., as a matter of practical necessity and without proof of the lack of such necessity coupled with resulting prejudice we find no error. People v Havey, 11 Mich App 69, 76; 160 NW2d 629 (1968); People v William L Thomas, 1 Mich App 118, 126; 134 NW2d 352 (1965).
The fourth claim made on appeal is that it was error to deny defendants’ motion for separate trials. Defendants argue that at trial a trailer license plate registered in the third defendant’s name, Robert Burns, some bolt cutters, bolts, and wires, all found in the 1958 Chevrolet abandoned at the scene of the crime by the three subjects suspected of breaking and entering, were improperly admitted into evidence since this evidence was allegedly not linked with the crime and not linked with them. Moreover, they contend that because Burns took the stand on his own behalf they were faced with the choice of testifying and disclosing prior breaking and entering convictions or being confronted with the possibility that the jury would assume that since they did not testify they must have had something they were afraid to testify about. Furthermore, they assert that their counsel pointed out in their motion for separate trials that there were separate and inconsistent defenses among all three defendants.
Separation of trials of codefendants is, of course, a matter of judicial discretion. MCLA 768.5; MSA 28.1028; People v Schram, 378 Mich 145; 142 NW2d 662 (1966). In support of their contention that separate trials should have been granted, the defendants cite People v Carter, 387 Mich 397; 197 NW2d 57 (1972). However, that case stands only for the proposition that in joint trials the jury should be instructed on the limited use to which some evidence may be put. The crime alleged here was the breaking and entering of a warehouse to steal snowmobiles by use of a trailer. The admission of the license plate, bolt cutters, etc., can he seen as evidence that such a crime was attempted or committed with use of these tools, regardless of the evidence’s connection with any particular defendant. We find no fault with either the admission of the evidence or the lack of limiting instruction as to its admission. Moreover, both defense counsel expressed satisfaction with the judge’s final instructions to the jury.
As to defendant Burns’s testimony prejudicing defendants Ross’s and Carroll’s case, nothing in his story in any way implicated them in the crime. Furthermore, had there been separate trials for the defendants Burns could still have been called as a witness. While we appreciate the possibility that the defendants may have been questioned about prior convictions had they taken the stand, nothing in Burns’s exculpatory attestations forced them to testify in their own behalf.
The fifth claim made on appeal is that the trial court erred in failing to instruct on lesser included offenses. However, no request was ever made for such instructions. The opinion of two Justices in People v Herbert Van Smith, Jr, 388 Mich 457; 203 NW2d 94 (1972), to the contrary notwithstanding, the law still remains that requests for such instructions must be made. MCLA 768.29; MSA 28.1052; GCR 1963, 516; People v Burton, 46 Mich App 20; 207 NW2d 415 (1973). See also, People v Macklin, 46 Mich App 297, 309; 208 NW2d 62, 69 (1973).
Defendants’ sixth claim on appeal is that there was insufficient evidence to support a finding of guilty beyond a reasonable doubt. An abbreviated version of the facts shows that at approximately 12:54 a.m. on November 4, 1971, Officer Quick of the Saginaw Township Police Department saw a vehicle in the driveway of the Kruger Machinery Company. Officer Quick turned into the driveway. The officer observed three men attempting to attach a trailer loaded with two snowmobiles to a car. The three men fled when they noticed the officer’s approach. Officer Quick did not pursue the men but rather radioed a report and asked for a tracking dog.
A bowling alley known as the Bowl-O-Mat is located between one-quarter and one-half mile from the scene of the crime. At about 1:05 a.m., the assistant manager of the Bowl-O-Mat saw two men, later identified as Ross and Carroll, enter the establishment. About five minutes later, defendant Burns entered the Bowl-O-Mat. After the first two men came in, one of them made a phone call. The assistant manager of the Bowl-O-Mat testified that Bums stated that he was having car trouble in the parking lot and had called Mike’s Wrecker. Burns testified that he had said that he was waiting for a ride because his car was at Mike’s. The three men waited in the Bowl-O-Mat for a short time. A blue Maverick containing two women pulled up in front of the Bowl-O-Mat and the three men went out and got in the back seat. Shortly thereafter the car was stopped by the police and the two women and Burns, Ross, and Carroll were taken to the police station.
The car which the criminals abandoned at the scene of the crime was owned by Janice Ormes, who was Ross’s girlfriend. Inside this car the police found a trailer license plate that had been issued to defendant Burns. Janice Ormes was one of the two women in the blue Maverick. The other woman was Rosemary Martinus, who was Burns’s girlfriend.
The owner and employees of the Kruger Machinery Company gave testimony that indicated that all doors to the building were closed and secured when the last employee left the premises. In the morning the door was open. Two snowmobiles were found outside the building and at most one had been left outside by the Kruger Company. We believe, as did the trial judge, that the case could properly be submitted to the jury on the basis of these facts and that the verdicts of guilty were supported by sufficient evidence beyond a reasonable doubt.
Affirmed.
All concurred. | [
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] |
J. H. Gillis, P.J.
Defendants, Melvin Bonner and Reilly Browder, along with Lucious Miller, were convicted by a jury of breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305. Defendants, Bonner and Browder, appeal as of right alleging separate issues. The cases have been consolidated on appeal.
At trial the prosecution’s evidence showed the owner of a real estate office in Flint, Michigan, fearful of repeated breaking and enterings, installed an alarm system in his building which included interior microphones from which he could monitor activity inside the building from his house a short distance away.
At approximately 2 a.m. one morning he heard the sound of breaking glass via the monitoring system. He called police and then went to the scene. A police car 1-1/2 blocks away arrived first. One police officer positioned himself near the rear of the building and saw defendant Bonner supporting Lucious Miller by his feet while the latter tried to pull himself through a broken window. Defendant Browder was positioned as a lookout surveying the front of the building and from time to time returned to the point of entry, presumably with status reports. The officer and his partner, who had sealed off the driveway at the front of the building, announced their presence, and after an abortive attempt to flee, defendants were arrested. Defendants Bonner and Miller were observed to have small shards of glass in their hair and cuts on their hands. A brick was found at the scene on which shards of glass were found embedded.
Defendant Bonner maintains that evidence is insufficient to allow a jury finding of the specific intent to commit larceny necessary to support the charge for which he was convicted. We disagree. As stated in People v Palmer, 42 Mich App 549, 551; 202 NW2d 536, 538 (1972):
"We could safely generalize that breaking and entering is not undertaken as an end in itself, nor as an avenue to innocent pastimes. It is usually the first step toward the commission of some further criminal act in the invaded premises.”
Thus, it can be readily inferred that the act of breaking and entering, here established beyond peradventure, carries with it some further criminal intent. Whether the specific intent is larcenous is a question for the jury, provided that at least some circumstance reasonably leads to that conclusion. People v Palmer, supra, 552.
This case is not unlike People v Lambo, 8 Mich App 320; 154 NW2d 583 (1967), where it was held that the unexplained presence of the defendant in a grocery store at 3:45 a.m. pursuant to an obvious forced entry was sufficient to support a finding of larcenous intent. Cf. People v Hughes, 27 Mich App 221; 183 NW2d 383 (1970). Here, the unexplained breaking and entering took place at 2 a.m. and involved a commercial business office shown to have contained dictating equipment, adding machines, tape recorders and amplifiers. We decline to hold that because the police arrived promptly and placed defendants under arrest before the venture was completed that a jury may not infer larcenous intent from these facts and circumstances.
Our review of the record reveals no prejudicial error occurred in trial court instructions to the jury and the failure of defense counsel to make an opening statement, while irregular, does not merit reversal in this case. See GCR 1963, 507.1; see also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 393.
At sentencing it was shown that at the time of the commission of the offense, defendant Browder was on bond awaiting trial on 2 counts of breaking and entering and 1 count of attempted breaking and entering, and that he had since been convicted and sentenced to 4 to 15 years in prison. The trial court informed defendant that MCLA 768.7b; MSA 28.1030(2), allowed a consecutive sentence to be imposed for this present but subsequent felony conviction, and allowed defendant and his counsel a brief recess to examine that statute. Thereafter, defendant Browder was sentenced to five to ten years in prison, the term to commence when he had completed his prior prison sentence on the other charges.
Defendant Browder now attacks the constitutional validity of the statute and the procedures by which it was implemented in his case.
MCLA 768.7b, supra, provides:
"When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.” (Emphasis supplied.)
Defendant concedes that the Legislature may differentiate, as it has by the above statute, two classes of persons; those who have committed subsequent felonies while on bond and those who have not, and provide for different punishments between those classes. We think that is a wise concession. The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed. Such a purpose is laudable, rational and the statute reasonably tends to achieve that purpose. See Naudzius v Lahr, 253 Mich 216; 234 NW 581 (1931).
Rather, defendant’s concern is that all persons subject to consecutive sentencing are not treated alike. The statute is permissive; a sentence imposed on the bonded offender "may run consecutively”. The essence of defendant’s theory is that if judicial discretion is the sole determinant, inequity will result. We disagree. The exercise of sound judicial discretion is contemplated in our law in the imposition of any sentence. We decline to interfere by interposing artificial standards not correlated to the concept of individualized justice implicit in the exercise of discretion by the sentencing judge. Cf. People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
Defendant next challenges the consecutive sentencing statute on the ground that it provides no hearing and no opportunity to challenge the substantive facts necessary to make the statute operative. Reference is made to MCLA 769.13; MSA 28.1085, which provides that those accused of being habitual criminals may have trial by jury on the issues of the identity of the accused as related to the alleged former convictions. See In re Brazel, 293 Mich 632; 292 NW 664 (1940).
Since it is apparent that a person subject to consecutive sentencing is also within the class of persons subject to prosecution as an habitual criminal, a somewhat detailed analysis of the history of the power to sentence consecutively vis-a-vis the prosecution of criminal recidivists is necessary to understand why due process does not require trial of the substantive facts before imposition of a consecutive sentence and why different treatment is in order.
Prosecution as an habitual criminal first requires one, two or three prior convictions. MCLA 769.10 et seq.; MSA 28.1082, et seq. The prior convictions may be for crimes within this state or for crimes under the laws of any other "state, government or country * * * which if committed within this state, would be a felony”. The statutes do not specify when the prior felony may have occurred, but only that at some point conviction resulted. Prosecution may be instituted in the first instance as a repeated offense, or by supplemental information following conviction of the second or subsequent offense. MCLA 769.13, supra. In either case, the issues litigated concern the identity of the accused as related to the fact of former conviction. In re Brazel, supra. The effect of successful prosecution under those statutes is to automatically lengthen the maximum sentence for which the multiple offender may be incarcerated on the principal charge since by law the maximum sentence for a given crime is always imposed; judicial discretion operates to vary only the minimum punishment. See MCLA 769.8; MSA 28.1080, People v Walton, 17 Mich App 687; 170 NW2d 315 (1969). It is possible that complex factual or legal arguments concerning the validity of the prior convictions could be relevant considerations. See Chewning v Cunningham, 368 US 443; 82 S Ct 498; 7 L Ed 2d 442 (1962).
Consecutive sentencing while not unknown at common law was not permitted in Michigan. In re Bloom, 53 Mich 597; 19 NW 200 (1884); In re Lamphere, 61 Mich 105; 27 NW 882 (1886); In re Allison, 322 Mich 491; 33 NW2d 917 (1948). The present statutory authorization, MCLA 768.7b, supra, presupposes the defendant to be already under a sentence. The effect of consecutive sentencing is not to increase the maximum punishment prescribed for the second offense but merely postpones the time at which the second sentence will commence. Inquiry into the validity of the prior conviction is not relevant, since if overturned on appeal or otherwise, the prisoner automatically starts serving his sentence on the subsequent conviction. Indeed, the only issue of fact is whether, at the time of the commission of the second offense, the defendant was at liberty on a bond for another charge.
It is our opinion that due process does not require yet another adversary hearing to again fix the time of the crime for which the defendant was convicted. Nor can we conceive that a jury should be called upon to determine if that date coincides with the period during which the defendant was on bond for the other charge for which he was, of necessity, convicted.
Rather, such information can be readily ascertained and contained in a presentence report as part of the "antecedents, character and circumstances” of the defendant. MCLA 771.14; MSA 28.1144. As in the case at bar, the defendant should be ádvised that he is subject to consecutive sentencing and be given the opportunity, during allocution, to explain, correct, or deny such information.
As we have stated in People v Zachery Davis, 41 Mich App 683, 692; 200 NW2d 779, 784 (1972), and as stated in People v Malkowski, 385 Mich 244, 249; 188 NW2d 559, 562 (1971):
"It is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information.”
If, for some reason, a defendant contends the information in the presentence report is erroneous, the asserted facts upon which consecutive sentencing would be appropriate should be supported by proof. See People v Zachery Davis, supra. Since, in this case, defendant, while represented by counsel, admitted the operative facts, we hold his consecutive sentence lu be in order. See Oyler v Boles, 368 US 448; 82 S Ct 501; 7 L Ed 2d 446 (1962).
Affirmed.
All concurred.
We find it exceedingly difficult to imagine how a defendant under a prison sentence, brought to court from prison by court officers, could challenge the only other fact to be established before the statute becomes operative, i.e., his incarceration for another offense. | [
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Churchill, J.
On November 2, 1971, defendant L. T. Buchanan was convicted by a negotiated plea of guilty to unarmed robbery, MCLA 750.530; MSA 28.798, and on December 2, 1971, received a sentence of 12 to 15 years.
All issues raised on appeal in this case, except two, are the same as those considered by us in the companion case of People v Means, 49 Mich App 570; 212 NW2d 288 (1973), and what we said in that case about the manner in which sentences were determined and administered is incorporated herein by reference.
On January 21, 1972, defendant’s appellate counsel filed a motion for leave to withdraw his plea of guilty. The motion, and the defendant’s attached affidavit, assert his innocence and contain vague allegations about promises of leniency by his trial counsel. The affidavit states that he lied to help friends who were suspects in the same case, and that because of fear, he did not disclose all of the facts about his defense to his attorney. The affidavit doesn’t specify when, to whom, nor in what respects he lied, nor how lying would have helped anyone, nor the cause of his fear, nor what facts were not disclosed to his attorney.
The affidavit appears to be a studied effort at ambiguity. Because of the failure to include substantial factual allegations to support the claim that the plea was not voluntary, the court would have been justified in refusing to grant a testimonial hearing. People v James Smith, 27 Mich App 650; 183 NW2d 866 (1970). Had this been done we can only speculate as to whether the defendant would have sought to file an amended affidavit to satisfy the substantial factual allegations requirement.
The procedure actually followed deprived the defendant of this opportunity, and also of other substantial rights.
After refusing to issue a writ of habeas corpus to bring the defendant back from prison to testify, on June 5, 1972, the trial judge did preside at a testimonial hearing at which the only witness was the defendant’s trial attorney. The defendant’s appellate counsel called the trial attorney as his witness, but we are satisfied that he had no other choice if he wanted the motion to be considered by the court. At the conclusion of the testimony by the trial lawyer the court denied the motion, stating among other things:
"The court has in its own mind the testimony that was developed on the trial of Milton Gooden and also the trial of Tommy Buchanan [the defendant’s cousin]. The facts all fit from all four sources to support the proposition that the defendant at the time of his guilty plea was involved and that he was guilty in fact of armed robbery not unarmed robbery.”
After reviewing what the defendant told the court when he pled guilty, the trial judge went on to say:
"If the Court of Appeals states that the trial court erred in refusing to grant an evidentiary hearing, then they may well do so, and if the Court of Appeals finds that he should come back obviously we will hold an evidentiary hearing. I feel it would be a tragedy [sic] of justice to have this defendant withdraw his guilty plea after being advised of all his constitutional rights.”
The trial court made factual determinations partially on the basis of an evidentiary hearing at which the defendant was not given the opportunity to be present and testify, and partially on evidence heard by the trier of fact in another proceeding in which the defendant was not even a party. This is not the type of evidentiary hearing ordered by the Supreme Court in People v Jones, 385 Mich 288; 188 NW2d 536 (1971), and in People v Johnson, 386 Mich 305; 192 NW2d 482 (1971).
The defendant is granted the opportunity to file an amended. motion and affidavit attacking the voluntariness of his plea. If he does so the case will be assigned to another judge for all further proceedings. It is not our purpose to extend the rule set forth in People v Frazier Walker, 24 Mich App 360; 180 NW2d 193 (1970), aff'd, 385 Mich 596; 189 NW2d 41 (1971), beyond the actual trial situation. In this case, however, the trial judge’s candid expression of his views about a testimonial hearing, if ordered, indicates the propriety of this requirement. We do not retain jurisdiction.
The defendant’s sentence of 12 to 15 years was in violation of the indeterminate sentence statute as construed in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The portion of the minimum sentence in excess of ten years is reversed. The valid remainder of the sentence is affirmed and his sentence now stands as 10 to 15 years. Moore v Parole Board, 379 Mich 624; 154 NW2d 437 (1967); People v Hempton, 43 Mich App 618; 204 NW2d 684 (1972); MCLA 769.24; MSA 28.1094.
All concurred. | [
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] |
V. J. Brennan, J.
This case arises out of plaintiff’s discharge from employment as the Superintendent of Schools for the Westwood Community School District.
Plaintiff was employed as Superintendent of Schools for the Westwood Community School District under a personal service contract which provided that his term of employment was to be for a three-year period commencing September 30, 1968. On October 8, 1968, plaintiff was informed that charges had been filed against him and that he had been placed on an inactive list pending resolution of the charges.
Pursuant to the employment contract a hearing was scheduled for a determination of the charges. Plaintiff requested that he be given a tenure hearing in accordance with the Michigan tenure of teachers act (MCLA 38.104; MSA 15.2004) but the school board denied the request on the basis that plaintiff was not entitled to such a hearing. Plaintiff thereupon filed a complaint in the Circuit Court for the County of Wayne seeking a declaratory judgment that he be given a tenure hearing under the tenure of teachers act. The circuit court, without deciding whether plaintiff was entitled to the protection of the tenure of teachers act, issued a preliminary order requiring the board, if it wished to proceed with a hearing, to comply with the hearing requirements of the tenure of teachers act but allowing the board to hear charges against plaintiff which would ordinarily be beyond the scope of that act. The circuit court also retained supervision and superintending control to assure that plaintiff was given a fair hearing. The hearing was held and resulted in plaintiff’s dismissal as superintendent.
Plaintiff thereupon filed a motion for summary judgment (GCR 1963, 117.2[3]) in the circuit court alleging that he was denied a fair hearing before the board and seeking his reinstatement as superintendent. Plaintiff asserted that he was not discharged for good and just cause and that his discharge was arbitrary and capricious. The undisputed facts show that not all of the members of the school board were present at all of the hearings, that no transcript was available to the board when it made its decision and that the board terminated the hearing despite the fact that plaintiff’s counsel indicated that he had other available witnesses to present. The circuit court determined that plaintiff was entitled to a partial summary judgment. The court found plaintiff’s discharge to be improper for the following reasons:
1. All members of the board did not consider all of the evidence.
2. The board arbitrarily terminated the hearing without giving the plaintiff an opportunity to complete his case or make argument.
3. There is serious question in light of the circumstances that the board was a tribunal free from bias or prejudice.
4. The defendants have not carried their burden of showing good and just cause for the discharge of the plaintiff.
The circuit court held that such actions on the part of the board denied plaintiff of due process. We feel that it is not necessary to reach this constitutional issue since a proper disposition of the case can be made on other grounds.
Plaintiff’s employment contract provided that he was subject to discharge only for,
" * * * good and just causes, provided, however, that the Board does not arbitrarily or capriciously call for his dismissal and that the Superintendent shall have the right to service of written charges, notice of hearing, and a fair hearing before the Board.”
The contract is silent as to the meaning to be given to the words "fair hearing” but it must át least be taken to mean that the plaintiff was entitled to present witnesses and evidence in his own behalf to the board for their consideration. Here plaintiff was denied such a fair hearing when the board abruptly terminated the hearing and precluded plaintiffs counsel from presenting other available witnesses. Summary judgment was, therefore, properly granted.
Defendant next alleges that the circuit court erred in including $10,950 for reduced earnings in the damage award. The general rule is that an employee who has been wrongfully discharged is entitled, as damages, to the amount owing under the contract of employment less the amount that he earned during the unexpired portion of the contract term or the amount that he could have earned if he had made a reasonable effort to obtain similar employment. Damages for reduced earnings beyond the expiration of the contract are properly granted only when the employer had reason to foresee that such damage would result at the time the contract was made and if the amount of money damages can be proved to a reasonable degree of certainty. 5 Corbin, Contracts, § 1095, p 514. Such damages are not to be awarded in every case where an employee is wrongfully terminated.
The dissenting opinion of Justice T. G. Kavanagh in Munro v Elk Rapids Schools, 383 Mich 661, 692; 178 NW2d 450, 464 (1970), adopted as the opinion of the Court on rehearing, 385 Mich 618; 189 NW2d 224 (1971), outlined the problems faced by discharged teachers:
"Discharge (or failure to rehire) is a blemish that can permanently scar his record and effectively limit any chance he has to be rehired as a teacher in this state.”
That this result also accompanies the discharge of administrative personnel is amply demonstrated by plaintiff’s search for new employment. Under these circumstances we cannot say that the circuit court was in error in granting damages for reduced future earnings.
Defendant finally asserts that since plaintiff’s original complaint only sought a declaratory judgment as to whether the tenure of teachers act applied, it was error for the lower court to grant a partial summary judgment in favor of plaintiff on the basis that an improper hearing was given. Plaintiff and defendant both filed an affidavit and memorandum of law in support of their positions on the issue of whether summary judgment should be granted. By so doing, and because no objection was raised below, defendant consented to the trial of the issue. Therefore, under GCR 1963, 118.3, the complaint was amended to conform to the issues tried and any defect therein was cured. See Michner Plating Co v Davis Drilling Co, Inc, 10 Mich App 358; 159 NW2d 366 (1968), leave denied, 381 Mich 760 (1968); Krager v Harold E Hedler Storage, Inc, 7 Mich App 644; 152 NW2d 708 (1967); Star Steel Supply Co v White, 4 Mich App 178; 144 NW2d 673 (1966).
Affirmed.
All concurred. | [
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] |
Bashara, J.
On March 3, 1972, the Detroit Police Department, acting pursuant to a search warrant, seized funds in the amount of $2,560 from plaintiffs bank deposit box.
On March 8, 1972, the defendant Michigan Department of Treasury issued jeopardy tax assessments and tax warrants of $12,985.82 against plaintiffs for use and income taxes. These warrants and levies were served on defendant Detroit Police Department and several Michigan banks on March 9, 1972. Notice of such assessments and tax warrants were then sent by certified mail to the plaintiffs on March 11, 1972. The Department of Treasury thus received $2,560 from the Detroit Police Department and $2,485.86 from the Peoples State Bank.
Plaintiffs commenced an action in Wayne County Circuit Court on June 5, 1972, asking that defendants be ordered to show cause why the funds should not be returned. The Department of Treasury’s challenge to the court’s jurisdiction and motion for accelerated judgment thereon was de nied and the funds ordered returned. Only the defendant Department of Treasury appeals.
The principal issue before us is whether the Wayne County Circuit Court properly had jurisdiction of this matter. The keystone of our inquiry must be based on article 6, section 28 of the Michigan Constitution of 1963, stated as follows:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses shall be subject to direct review by the courts as provided by law. This review shall include as a minimum, the determination whether such ñnal decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmens’ compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” (Emphasis supplied.)
The state statute, in amplification of the constitutional provision, indicates that the circuit court of the county of which an appellant is a resident may have jurisdiction to hear only those agency appeals for which no review has been provided by law.
Defendant persuasively argues that the circuit court was without jurisdiction since appeals are provided from jeopardy tax assessments and warrants under several Michigan statutes. MCLA 206.421(3); MSA 7.557(1421X3) provides that any taxpayer aggrieved by determinations of income tax liability may appeal to the State Board of Tax Appeals or, after payment of the disputed tax, sue in the Circuit Court of the County of Ingham. The Income Tax Act further states that illegally collected taxes shall be credited or refunded upon petition by the taxpayer within three years. Adverse decisions by the State Board of Tax Appeals or the Ingham County Circuit Court may be appealed by the mandates of the statute.
The procedure for protesting an allegedly illegal jeopardy tax assessment and warrant for use taxes is contained in the department of revenue act. The statute allows the taxpayer a review in the State Board of Tax Appeals or to pursue any appropriate remedy provided for judicial review of the issues involved. The question of what is an appropriate course to pursue does not appear to have been answered by the courts of this state. We believe that the following alternatives would be available: (1) suit in the Court of Claims which generally has exclusive jurisdiction of claims against state agencies; (2) an action for mandamus directed to state officers commenced in the Court of Appeals after appropriate petitions before proper administrative officers have been rejected; (3) complaint filed in circuit court alleging unconstitutionality of a statute on its face, Asta v Department of Revenue, 338 Mich 505; 61 NW2d 608 (1953). However, the parties have conceded that the Michigan statutes authorizing the tax warrants are not unconstitutional. Indeed, summary proceedings against a taxpayer’s property prior to a judicial hearing have long been recognized. Phillips v Commissioner of Internal Revenue, 283 US 589; 51 S Ct 608; 75 L Ed 1289 (1931), and see Horack v Franchise Tax Board, 18 Cal App 3d 363; 95 Cal Rptr 717 (1971).
In short, the circuit courts may have jurisdiction to hear actions alleging the unconstitutionality of a statute on its face. However, every impropriety of an agency action, based on a valid statute, does not constitute a question of denial of due process for circuit courts to decide. Administrative agencies and tribunals have been created with power to hear complaints regarding their respective agency actions under the authority of statutes cited.
We hold, therefore, that the plaintiffs failed to exhaust their administrative remedies under the available statutes and should have no recourse to the Circuit Court of Wayne County absent an unconstitutional statute. Asta v Department of Revenue, supra; Bennett v Royal Oak School Dist, 10 Mich App 265; 159 NW2d 245 (1968).
Reversed.
All concurred.
MCLA 205.110; MSA 7.555(20); MCLA 206.423(2); MSA 7.557(1423)(2).
MCLA 600.631; MSA 27A.631.
1967 PA 281; MCLA 206.441; MSA 7.557(1441).
MCLA 205.7; MSA 7.657(7).
MCLA 600.6419; MSA 27A.6419.
GCR 1963, 714.1. | [
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] |
V. J. Brennan, P. J.
We concur, and adopt Justice Adams’ opinion in its entirety except as to the disposition of issue number 2. That issue being whether the trial court erred in admitting defend ant Unsworth’s boots and whether the officers had probable cause to seize the boots.
The defendant in her brief relies on People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971), contending that here the viewing and seizing of the boots constituted an illegal search and seizure because it was warrantless. We feel, however, that the viewing of the boots was not a search; and, after examining the record, find that the viewing was reasonable.
We point out that at the time the defendant Unsworth was being interviewed by the detectives at the Dearborn police station, she had voluntarily appeared. The officers also had in their possession a description given by witnesses who were in the bar on the morning oí1 the murders, which description fit the defendant Unsworth. During this interview, one of the officers observed the sole of her boot and recognized that design as being similar to the design of, the boot imprint that was found by the garage in the snow. Upon this observation, he placed the defendant under arrest and asked her for the boots.
Armed with the above information as well as other specific facts, the officers had reasonable cause to take immediate steps to retrieve and examine the boots.
In People v Eddington, 387 Mich 551; 198 NW2d 297 (1972), the Court points out that where a detective had seized and examined the shoes of the defendant at the defendant’s apartment they consider the reasonableness of this seizure in the light of all of the circumstances and in that case found that he had to act with dispatch because the occasion warranted it. We point out that had the officers, at the time of their examination of defendant’s boots, not done so, the evidence could very well have been lost; the officers here "acted reasonably and with the dispatch the occasion warranted”. Moreover, unlike People v Trudeau, supra, where the officer was acting only on the similarity in the modus operandi of the crime for which Trudeau was under arrest, the officers in this case had more than a mere suspicion of defendant’s involvement.
We have examined the facts and the record in this matter and find that it was not error to admit defendant Unsworth’s boots in evidence.
Conviction affirmed.
T. M. Burns, J., concurred. | [
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] |
Per Curiam.
Defendant pled guilty on February 8, 1971, to the offense of breaking and entering with the intent to commit larceny contrary to MCLA 750.110; MSA 28.305. He was sentenced May 3, 1971, to a term of 7-1/2 to 10 years in prison. When this case was originally appealed we remanded for an evidentiary hearing on the issue of whether defendant was mentally incompetent before and during the time of his arrest, incarceration and the subsequent plea-proceedings. An extensive hearing was held below lasting five days. The issues defendant raised originally are now before us again.
Defendant first seeks a vacating of his guilty plea on the ground that his heavy use of drugs both before and after his arrest made him mentally unfit so that he could not competently waive his constitutional rights, especially his right to counsel, and plead guilty. After the evidentiary hearing held at our order the hearing judge, who was not the judge at the plea-taking, in a written opinion determined that the defendant "at the time he entered his plea of guilty, was mentally competent fully to understand the nature and consequences of his act and to understand and make a choice in regard to the constitutional rights which were explained to him by the judge”. We have carefully reviewed the 683 pages of testimony transcribed from the evidentiary hearing and have concluded that the hearing judge’s determination with respect to defendant’s competency is amply supported by the record. Assuming the evidence showed that the defendant was a heavy user of amphetamines and other drugs, the only expert testimony introduced by defendant on the subject of drug abuse was essentially inconclusive about the effects of drug use on any one particular individual. Defendant, moreover, had not been examined by the drug expert who testified. The hearing judge was left with the responsibility of assessing other witnesses’ credibility and the weight of their testimony, a task which we find was properly completed.
Defendant next objects that the trial court erred in not advising him of his right to counsel at the sentencing. Defendant had been advised of his right to counsel at the plea-taking proceedings, but waived it. GCR 1963, 785.4, effective June 1, 1973, now requires that a defendant be advised at each stage of the criminal proceedings that he has a right to counsel at public expense. Until the adoption of that rule, however, there was no requirement that a defendant, having been advised of his right to counsel at the plea-taking, be again advised of that right at the sentencing. See, former GCR 1963, 785.3; People v Zunno, 384 Mich 151, 156; 180 NW2d 17, 19-20 (1970).
Defendant finally claims that the trial court erred in considering defendant’s juvenile record in passing sentence. This much disputed issue was recently decided in People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973), wherein the Supreme Court held that it was permissible for the trial court to review a defendant’s juvenile record in determining an appropriate sentence.
Defendant was permitted at oral argument to assert that People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), required the reduction of his minimum sentence to 2/3 of his maximum sentence. We agree, and amend his minimum sentence to read 6-2/3 years.
Affirmed, except as to modification of minimum sentence. | [
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Lesinski, C. J.
Harold Peck, a service station attendant, was slain in a robbery on January 19, 1970. Defendant was charged and convicted under the felony-murder statute, MCLA 750.316; MSA 28.548. This Court heard an appeal from that conviction and returned the cause to the trial court to determine whether a certain witness, whom defendant was not allowed to cross-examine as to his juvenile record, did in fact have a juvenile record. People v Yacks, 38 Mich App 437; 196 NW2d 827 (1972). A new trial was granted on the basis that it was erroneous for the trial judge in the first trial to deny defendant the right to cross-examine a prosecution witness concerning his juvenile record.
The second trial before a jury resulted in a first-degree murder conviction and life sentence. This appeal followed.
I
The first issue we confront on appeal is whether there was error in denial of defendant’s request for a Walker hearing prior to a second trial, where a Walker hearing concerning the same confession had been held prior to the first trial. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
When a defendant is granted a new trial, his case stands in the same place procedurally as though there had been no trial previously. People v Peck, 147 Mich 84; 110 NW 495 (1907). Defendant claims that in his case the trial judge is obliged to reinquire into the voluntariness of any admission, confession, or statement by way of a second Walker hearing. We cannot agree. To say that a trial judge must reexamine the voluntariness issue in this case misinterprets both the purpose of the Walker hearing and the role of a reviewing court in the judicial process.
In People v Robinson, 386 Mich 551, 557; 194 NW2d 709, 710 (1972), our Supreme Court stated that the "sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination”. In its review of the first Yacks trial, the Court of Appeals found that a statement made by the accused to Flint Police Department detectives was indeed voluntary. Yacks, supra, at 440; 196 NW2d at 828. The trial judge in the second trial was thus bound by that determination. People v Whisenant, 384 Mich 693, 702-703; 187 NW2d 229, 233 (1971).
II
Next, was> it error to refuse to suppress an identification of defendant made by a witness in a prior confrontation violative of standards set forth in United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)?
Witness Jerry H. Crocker testified that he had seen the accused at the gas station immediately prior to the victim’s death. At a hearing on a motion to suppress, witness Crocker stated that he had been at the station for about ten minutes, paying for gasoline and purchasing a package of cigarettes. While inside the station with the deceased for 2-3 minutes, the witness saw two men. He identified one man, standing close to the station door reading a magazine, as wearing a green jacket similar to an Army fatigue jacket and as having dark hair and dark eyes. The witness also identified this person as being dark complected and needing a shave. This identification was furnished to the Flint Police Department on the day following the murder. Having described the man in the gas station as being dark complected, Mr. Crocker nevertheless identified the defendant (who is light complected) as being the person he had seen reading a magazine in the station shortly before Mr. Peck’s death.
Defendant’s principal objection is that in fact witness Crocker’s identification of the accused was not based on his experience at the gas station, but rather upon an impermissibly suggestive one-on-one confrontation arranged by Flint Police Department detectives at a time when the accused was without counsel. At the defendant’s preliminary examination, Mr. Crocker sat at the rear of the courtroom. The accused was brought into the courtroom by sheriffs deputies. He was attired in jail clothing. At this time Detective Hatchew, in charge of this case, was seated in front of Mr. Crocker. When the defendant was seated, Detective Hatchew turned to Mr. Crocker and at that time Mr. Crocker identified defendant as the person he had seen at the station. Mr. Crocker was not asked to testify at the preliminary examination.
This identification-confrontation occurred following the issuance of a warrant for Mr. Yacks’ arrest. The Wade-Gilbert right to counsel had attached. United States v Wade, supra; Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967). See Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972).
At issue then is whether this confrontation was impermissibly suggestive and whether it alone would lead to a likelihood of irreparable misidentification. The burden of showing witness Crocker’s subsequent trial identification free from the taint of impermissible pretrial circumstances is on the prosecution. People v Young, 21 Mich App 684; 176 NW2d 420 (1970).
Upon reviewing the record we conclude, as did the trial court, that the prosecutor met this burden and that witness Crocker’s trial identification of Yacks was based on his face-to-face meeting at the murder scene and not at the courtroom confrontation one month later. We note for the benefit of the profession and especially the law enforcement community, that the allegations of deliberate, intentional staging of the identification confrontation by the Flint Police Department are not supported by this record. Were we to find this confrontation was a deliberate attempt to avoid the rules set forth in the Wade-Gilbert-Stovall trilogy, the result would be the opposite. United States v Wade, supra; Gilbert v California, supra; Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). We would not countenance this "in-courtroom” sham to avoid the due process considerations of Wade.
Ill
Further, on appeal it is contended that the trial court erroneously denied defense counsel an opportunity to develop his theory of the case.
During the course of their investigation of this homicide the police developed several leads. One of these clues led them to Jimmy Willford. Willford had previously sought employment with the police department both as an officer and later as an informer. During the course of interrogation, he related several different stories to the detectives who questioned him. He implicated defendant Yacks and Elmer Hall in the crime. On the basis of Willford’s conversations with the police and his affidavit, a search warrant was issued. The murder weapon and a gun stolen from the station (the objective of the robbery) were recovered from Yacks’ home. Hall and Yacks were arrested and charged with first-degree murder. Codefendant Willford hanged himself in his jail cell prior to trial after several unsuccessful attempts at self-destruction. Hall was later completely exonerated, while the defendant was convicted, at least in part, on the same evidence.
During his cross-examination of Detective Hat-chew, defense counsel sought to show the arrest and confinement of Mr. Hall and his subsequent exoneration. The trial court ruled that this was collateral and ordered counsel to abandon this line of questioning. Here the evidence sought to be elicited was not a theory of defense. Rather, it was an attempt to impeach Detective Hatchew. Whether he believed what Willford had told him was entirely collateral and the trial court properly exercised his discretion in limiting testimony pertaining thereto.
Furthermore, we see no prejudice to the defendant here. Following argument on the point, and a ruling by the trial court, defense counsel did establish that Mr. Hall had been wrongly arrested, incarcerated, and released on the basis of Will-ford’s story to police. Therefore, we find that the jury had before it the unmistakable inference that the defense counsel wished — i.e., that the police had made a terrible error in arresting Mr. Hall, and they could have made the same error in arresting the defendant.
IV
It is also argued that it was error in this case to allow evidence of other crimes under the "similar acts statute”, MCLA 768.27; MSA 28.1050.
Ronald Stier, manager of a supermarket, testified that defendant had robbed him at gunpoint using a distinctive weapon similar to that identified as the murder weapon. He also identified the defendant and his cofelon, the deceased Willford, without difficulty.
Ordinarily evidence that a defendant had perpetrated other criminal acts is inadmissible at trial as being collateral and because of the prejudice it brings to the minds of the jurors. People v Schweitzer, 23 Mich 301 (1871). From this record it is clear that the witness’ identification of the accused and the weapon was sufficient to establish a connection other than one that the armed robbery of the grocery store came from defendant’s propensity to commit crime. People v Fleish, 321 Mich 443; 32 NW2d 700 (1948).
Furthermore, witness Stier’s testimony was introduced for the sole purpose of identifying the defendant as the party possessing the murder weapon. The court instructed the jury of the limited uses of such testimony under the similar acts statute. MCLA 768.27; MSA 28.1050. The evidence was material since the theory of the defense was that although defendant was present at the station, he was innocent of any criminal intent, because he didn’t know that Willford would commit a robbery. People v McPherson, 38 Mich App 534; 197 NW2d 173 (1972). We find no error.
V
The next issue we examine is whether the trial court abused its discretion in allowing indorsement of a witness on the day of trial.
This case involves a second trial of the accused for murder. Defense counsel argues that to allow indorsement at this late date, after the identity of witness Stier had been known for two years, was error. The prosecutor showed no reason for failure to indorse.
We cannot agree. The defendant can complain of error only if he shows prejudicial surprise and is deprived of an opportunity to meet evidence by the court’s denial of an adjournment motion or otherwise. Defense counsel did not ask for continuance or adjournment. While we have never considered this a strict requirement, lack of a request to continue or adjourn, or at least a request to interview the witness, tends to negate the argument that tardy indorsement was prejudicial. People v Lee, 307 Mich 743; 12 NW2d 418 (1943); People v Hodges, 34 Mich App 90; 190 NW2d 703 (1971). We find no abuse of discretion.
VI
Finally, we examine the allegation that it was error to allow a witness to testify as to subsequent robberies he committed with the defendant to establish identity, possession of the murder weapon and intent.
The evidence against the accused was almost entirely circumstantial. Both those persons apparently present at the murder scene, Peck and Will-ford, were dead. The testimony of witness William Lillieberg, objected to at trial, was necessary to the prosecution to circumstantially identify the defendant as being at the scene of the crime and to show his purpose in being there. Furthermore, it was important to show defendant’s knowledge that Willford intended to commit the robbery and his participation as an accomplice. People v Flansburgh, 24 Mich App 470; 180 NW2d 373 (1970).
To show the prosecutor’s assertions were true, witness Lillieberg testified that Yacks and Willford had staged another robbery in which defendánt Yacks used the .25-caliber automatic and Willford used the .38 revolver. The prosecution put its circumstantial case to the jury fairly — if Yacks had used the same gun in one armed robbery and had been seen with it on several other occasions, then it might be fairly inferred that he had used the same gun to kill. Peck. Thus, the evidence adduced was not used solely to show propensity to commit crime; rather it was used to show that Yacks was at least present at the scene of Peck’s murder. More important, it served to show intent and negative defendant’s claim that he was an innocent bystander.
Admission of such evidence was for the trial court and permissible under the statute, MCLA 768.27; MSA 28.1050. We find no error.
A review of the remainder of defendant’s allegations of error indicates they are insubstantial.
Conviction affirmed.
All concurred. | [
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Churchill, J.
On February 2, 1972, the defendant was convicted by plea of uttering and publishing a forged check contrary to MCLA 750.249; MSA 28.446. On March 27, 1972, he was sentenced to 8-1/2 to 14 years in prison and appeals as of right.
On appeal he asserts that the different sentence provided for the offense set forth in MCLA 750.249; MSA 28.446, and that provided for in MCLA 750.253; MSA 28.450, violate the equal protection clauses of the State and Federal Constitutions.
The defendant also asserts that he could have been charged under MCLA 750.249; MSA 28.446, which carries a 14-year penalty, or under MCLA 750.253; MSA 28.450, which carries a 5-year maximum penalty, and that this discretion granted to the prosecuting attorney violates the due process and equal protection clauses of the Federal and State Constitutions.
We concur with People v Brooks, 43 Mich App 715; 204 NW2d 718 (1972), wherein both of these arguments were considered and rejected.
The defendant’s assertion that the 14-year maximum sentence for this offense constitutes cruel and unusual punishment is completely without merit. See People v Gunn, 34 Mich App 106; 190 NW2d 793 (1971), and the cases cited therein.
The defendant claims that he did not have effec tive assistance of counsel at sentencing. People v Dye, 6 Mich App 217; 148 NW2d 501 (1967).
On January 13, 1972, Harold Schuitmaker signed and filed an appearance for the defendant on behalf of the law firm of Adams & Adams. Mr. Schuitmaker and the defendant signed a waiver of preliminary examination, and Mr. Schuitmaker appeared in court with the defendant when he pled guilty on February 2. On February 10, the defendant and Mr. Schuitmaker signed a document that it was mutually agreed between the defendant and Harold Schuitmaker that Harold Schuitmaker withdraw his representation as his attorney in this case and another case. This document was typed on the law firm legal paper and it was filed February 14. It does not appear that there was any further communication between the defendant, who was in continuous custody, and any attorney before the defendant was brought into court to be sentenced on March 27. The affidavit of the probation officer attached to the prosecuting attorney’s brief states that Mr. Schuitmaker was vigorous in espousing the defendant’s cause to the probation officer. The dates of these discussions do not appear and neither does it appear that the court was asked to approve the withdrawal.
At the time of sentencing Horace W. Adams of the firm of Adams & Adams was in the courtroom. The following facts and assertions appear from a discussion between the court, the prosecuting attorney, the defendant, and Mr. Adams. The defendant asserted that Mr. Schuitmaker quit because of the defendant’s inability to pay him. This was refuted by the court, reminding the defendant that Mr. Schuitmaker was appointed counsel. The defendant then stated that he had paid a $100 retainer fee and Mr. Adams stated that no bill would be filed with the court! The defendant then told the court that when he agreed in jail to sign a withdrawal request he told Mr. Schuitmaker that he would need an attorney to represent him at sentencing. Mr. Adams then said, "He has an attorney representing him, your Honor, I am here”.
The defendant then indicated that he had no further request of the court for counsel because he was standing with his guilty plea. In response to a direct question by the court the defendant agreed that the arrangement was satisfactory.
The defendant made a statement on his own behalf. Mr. Adams made a very brief statement confirming something that the defendant said. The court then sentenced the defendant.
The defendant was an immigrant to this country in 1957 and had spent much of his time since then in prison. His remark to the court that he was not then asking for an attorney because he was standing on his guilty plea indicates that he did not fully appreciate the role of counsel at sentencing.
It is unclear whether Mr. Adams came to court for the purpose of representing the defendant. It is clear that the defendant was unaware that Mr. Adams was going to represent him. It also appears that there had been no private consultation of one member of the firm with the other with the defendant’s permission. There had been a total breakdown in the attorney-client relationship for several weeks. Under the circumstances it is our opinion that the defendant did not have the effec tive assistance of counsel at sentencing and did not knowingly and understandingly waive such a right.
At the time of sentencing the court informed the defendant that he was taking his prior criminal convictions into consideration, including a 1961 Monroe County Circuit Court felony conviction. The defendant attached a transcript of the 1961 arraignment and plea to his brief to demonstrate that the defendant did not then have an attorney and did not understandingly waive his right to an attorney and that the 1961 conviction was invalid. The defendant, on appeal, argues that this was improper, citing United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). We do not decide if this allegation if true requires a remand for resentencing. It is remanded for another reason herein stated. The defendant may pursue the issue in the trial court.
The matter is remanded for resentencing on defendant’s affirmed conviction.
All concurred.
We commend for consideration by defense counsel the outline of duties of counsel at sentencing at Standard 5.3, Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures. | [
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Per Curiam.
Defendant pled guilty to a charge of assault with intent to rob while armed, contrary to MCLA 750.89; MSA 28.284. He was sentenced to a term of 10 to 30 years in prison and appeals as of right.
Appellate counsel filed a brief which, in essence, stated that counsel was unable to find any defect in the taking of the plea. Our independent review of the record convinces us that appellate counsel was correct in this regard. Defendant was fully and accurately advised of his constitutional rights. The record contains a substantial factual basis to support the plea; and defendant indicated on the record that his plea was truthful and voluntary.
Defendant, being dissatisfied with his appellate counsel, requested that he have additional time to file a brief in his own behalf. This Court granted that request. Defendant subsequently filed with this Court a supplemental brief raising essentially two issues; one relating to the truthfulness of the plea and one relating to the use of the "rights” questionnaire used in Oakland County Circuit Court.
Defendant asserts for the first time in this appeal that his plea was not truthful, in that he was innocent of the crime, had no personal knowledge of the crime, and answered as he did on the record only after being previously coached by trial counsel. It is impossible for this Court to ascertain where the truth lies, when, as here, we are confronted with assertions in an appellate brief which are inconsistent with defendant’s prior on-the-record statements. Since this Court can only base its decision upon the record before it, it is incumbent on defendant to create the necessary record in the trial court. A challenge to the truth or voluntariness of the plea can only be raised on appeal after the question has been preserved by a motion to withdraw the guilty plea made before the trial court, coupled with any necessary evidentiary hearing. See People v Taylor, 387 Mich 209; 195 NW2d 856 (1972).
Defendant’s arguments with respect to the use of the "rights” questionnaire are without merit, since there is no claim that the use of the questionnaire was a substitute for an on-the-record examination of the defendant. Since defendant herein was informed of all his constitutional rights by the judge during the plea proceeding and defendant indicated on the record that he understood those rights, any frailties of the questionnaire are moot.
Affirmed.
McGregor and Van Valkenburg, JJ., concurred. | [
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] |
Per Curiam.
Plaintiff appeals from a summary judgment for defendant. Affirmed.
The plaintiff, as the natural father and administrator of the estate of the deceased minor, alleged that on August 12, 1970, Anthony Curry had been swimming at the municipal pool at Miller High School in Detroit, Michigan. He maintains that on this date the deceased minor either fell or was pushed into the pool in water above his head. As a result he suffered serious injuries from which he subsequently died. The swimming pool was owned and operated by the City of Detroit, a municipal corporation, through its Department of Parks and Recreation.
The basis on which summary judgment was granted was that defendant is immune from liability for the tortious conduct of its employees by virtue of 1964 PA 170 as amended by 1970 PA 155; MCLA 691.1401 et seq.; MSA 3.996(101) et seq.
Plaintiff alleges two assignments of error which in substance are that these Public Acts violate the Michigan Constitution 1963, art 4, § 24:
"No law shall embrace more than one object which shall be expressed in its title.”
He first argues that 1970 PA 155 amending 1964 PA 170 is constitutionally infirm in that the object of the act as contained in § 7 of the 1970 statute is not properly expressed in its title. Essentially what plaintiff alleges is that the Legislature performed a useless gesture in 1970 by reenacting the title to 1964 PA 170 without any change.
We have examined the Public Acts in question and find that the 1970 Public Act deleted the constitutionally objectionable words as found in Maki v East Tawas, 18 Mich App 109; 170 NW2d 530 (1969), aff'd 385 Mich 151; 188 NW2d 593 (1971). Further, the 1970 act was enacted in accordance with the constitutional mandate of the Michigan Constitution 1963, art 4, §24. It also is in conformity with Michigan Constitution 1963, art 4, § 25:
"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
In a nutshell, the plaintiff has mistaken the title to the amendatory act of 1970 as being the title to the amended act itself.
The second issue on appeal is that 1964 PA 170 as amended by 1970 PA 155 is violative of the Michigan Constitution 1963, art 4, § 24 because the Public Acts "embrace more than one object”.
Upon examination of the two Public Acts in question and the relevant case law, we find this issue is without merit. In re Brewster Street Housing Site, 291 Mich 313; 289 NW 493 (1939); People v Carey, 382 Mich 285; 170 NW2d 145 (1969); People v Barber, 14 Mich App 395; 165 NW2d 608 (1968).
The Court acknowledges with gratitude the various amici curiae briefs filed in this case.
Affirmed.
The proper motion was not one for summary judgment GCR 1963, 117, but a motion for accelerated judgment GCR 1963, 116. Cibor v Oakwood Hospital, 14 Mich App 1; 165 NW2d 326 (1968); Bloss v Williams, 15 Mich App 228; 166 NW2d 520 (1968); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 32 et seq.
The title to 1964 PA 170 was held violative of the Michigan Constitution 1963, art 4, § 24 because the title to that act was less comprehensive than that contained in the object of § 7 of that act. In the title to that act were the words, "caused by negligence”, while in § 7 were the words "tort liability”. Therefore the object of § 7 of the act was not expressed in its title. While the Maki case was pending before the Supreme Court the Legislature passed 1970 PA 155 to amend 1964 PA 170 to correct the constitutional infirmity that was found to exist by this Court. | [
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Graves, J.
October 26, 1868, William Holcomb and Jesse Holcomb gave Sloan their joint and several promissory note for $500 payable two years after date with annual interest at ten per cent. In May, 1869, Jesse Holcomb died. December 1st, 1877, Sloan brought this suit against William Holcomb on the note. It bore three indorsements upon the back, the last bearing date March 9, 1872, and covering a payment of $319.45 made 'by the administrator of the estate of Jesse Holcomb, and this payment was made after allowance by commissioners on the claim when exhibited by Sloan. At the trial Holcomb insisted upon the Statute of Limitations as a bar and the defense was valid unless the payment from the estate hindered.
Sloan testified that plaintiff in error told him after the death of Jesse Holcomb to present the note to •Jesse Holcomb’s estate and get what pay he could out of the estate and that he did so and received the amount endorsed. He also testified that plaintiff in error subsequently asked him how much had been allowed on the note and that he informed him of the amount as near as he could recollect it.
The only question of importance in the case is whether the payment from the estate of Jesse Holcomb repels William Holcomb’s defense under the Statute of Limitations. The court below ruled that it did so and awarded judgment in favor of Sloan.
We are of opinion that under the provisions of 0U1 statute the payment by the administrator of Jesse Holcomb did not impair the defense.
Section 7165, Comp. L., provides that if there are two or more joint contractors, no one of them shall lose the benefit of the provisions of the chapter so as to be chargeable, by reason only of any payment made by any other or others of them. If we assume for the purpose of the case that apart from this statute the estate of Jesse Holcomb could be considered as a joint debtor in any such sense as would justify the claim that a payment from it should or could renew the debt as against the plaintiff in error, then it is quite certain that the provision cited must apply, and whether after the death of Jesse Holcomb there was any party besides the plaintiff in error who could by payment keep the note in life as against him according to the doctrine of some eases it is quite unnecessary to consider.
If there was not there was no pretense of objection against the defense, and on the contrary if the estate ought to be considered as a joint party competent to renew by payment, the provision quoted cannot be avoided, and the payment was not of force to renew the note as against the plaintiff in error. Shoemaker v. Benedict, 1 Kern., 176; Peirce v. Tobey, 5 Met., 168; Balcom v. Richards, 6 Cush., 360.
And we see nothing in the fact that plaintiff in error advised the exhibition of the note against the estate, to change the result.
The judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
Mrs. Barnes sued Brown for. slander, upon allegations that he had charged her in conversations referred to, with larceny and perjury.
. The charges of larceny in the declaration referred to the theft of $160, — in one count alleged generally, and in another as taken from a coat pocket in Brown’s house.
There was testimony of the various forms of the charge, and in some instances with additional particulars. It is objected that the words alleged must not only be proved exactly as laid, but proved without any additions. We do not understand that such additions can be regarded as producing a variance, unless in some way repugnant, or changing the sense. The slanderous words alleged being actionable in themselves cannot be made less so by other words not in any way altering their effect. There was no such difficulty here. No authority is shown for claiming the variance to be of any importance.
The testimony of a son of Mrs. Barnes was admitted against objection, to show that Brown had said to him that his mother, who was described by an opprobrious epithet, “stole some money from me” or “stole that money from me.” It is not denied that repetitions of the same slander may be shown, but it is claimed this was a different slander. We think this was a repetition of the same slander, the essence of which consisted in the charge of theft, and that in the absence of anything to show Brown had ever charged her with stealing anything but the $160, may fairly be presumed to have referred to that specific charge. As we had occasion to review the doctrine concerning such repetitions in Leonard v. Pope, 27 Mich., 145, we need not discuss it here. But we do not understand that the proof of repetitions of the same slander means a verbatim repetition. The evidence Is intended to show malice in repeating charges of a substantially similar nature, and calculated to produce the same inpression on the community. In this case the charge of being a thief was the real mischief, and the testimony of the son went far enough to bring it within the rule of Leonard v. Pope.
Complaint is also made of the admission of a file of chancery records in a controversy between the parties In which the perjury set forth in the declaration was there stated as charged to have- been committed; 'The error relied on is that this testimony was improper because no attempt was made to prove the slander as to that-perjury.
Upon a careful examination of the record we do not find that when this testimany was introduced the count concerning the charge of perjury had been abandoned. That abandonment made this evidence immaterial, but it was not improper when offered, and no motion was made to strike it out. We cannot, therefore, hold that there was error in leaving it in, and we must assume it was not regarded as of much importance or some ruling would have been asked to get rid of it. We do not, as the record stands, see how it could have done any harm — especially as it does not seem to have been read to the jury. But however this may be, we discover no error in its introduction at the time when it was let in. If admissible at all, the fact that bad reasons were assigned for it cannot affect the right.
We think there was no error in refusing to admit the testimony of a neighbor that he never heard the slanders. Such negative evidence proves nothing as to the main fact, and to make it of any significance in showing that the reports obtained no considerable circulation, and therefore were not very injurious, it would be necessary on this theory to swear a large part of the whole community. It is possible that cases may exist where such evidence might have some force in rebutting proof of the general currency of gossip, but we do not now see how such a necessity is likely to exist. In the present case there was no such occasion made out.
Brown was allowed to be asked against the objection of his counsel, concerning his pecuniary circumstances at the time of the slander. The court cautioned the jury very carefully against giving such testimony any consideration except as bearing on the injury likely to flow from slanders uttered by a man of his standing.
We are quite sensible of the danger of opening the door to such inquiries, because the jury may be influenced by the testimony at times more than they should be in calculating damages. But if testimony is admissible at all, that is a risk which can only be guarded against by cautions from the court, which here were faithfully given.
There has been some conflict in the authorities about such evidence, but there are respectable decisions in favor of it, some of which were cited on the argument. Such questions must be determined somewhat by the ordinary experience of men, and certainly the mischief of slander depends very much on the influence of its author and his standing among his neighbors. This must itself depend on a great, many things combined, and it cannot be denied that pecuniary standing is one of the elements which we are very apt to consider in determining the position and weight of others. It is far from being the only or controlling element, but it may be an important one, and it is frequently if not generally of some force. A similar inquiry was presented in Threadgool v. Litogot, 22 Mich., 271, but it was not necessary to consider it fully. We think there is reason for admitting such inquiry, with cautions against allowing it weight beyond what it deserves, and especially against allowing it to swell the damages on its own account. In the present case it does not appear to have done so.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
The Attorney General in this case very properly conceded that there was error which would entitle the respondent to a new trial.
On the part of respondent it was urged that on evidence so inconclusive as in this case, no man ought to be convicted, and that the respondent, therefore, should be discharged on the ground that having once been entitled to an acquittal on "the merits, he ought not to be put in jeopardy again.
Without desiring to express any opinion whatever as to the impression produced upon our minds by this testimony, or what in our opinion would be the duty of a jury thereunder, we think the case is not so clear as to authorize this court to order the discharge of the respondent. The case should go back and be submitted to a jury, who under proper instructions can pass upon all the facts, giving to them such weight as they may consider proper.
Under the theory of the defense adopted in this case the court should have permitted full and searching enquiry to be made in reference to any supposed arrangements between the officers and. other parties complicated in this transaction.
The exceptions must be sustained and a new trial ordered.
The other Justices concurred. | [
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Graves, ,J.
Mrs. Probasco made a claim against Mrs. Simpson’s estate for $668.69 and the commissioners allowed it at $669.12. Cook as administrator, appealed to the circuit court, and a trial there took place before the judge sitting without a jury, and he made a general finding in favor of the claimant for $684.70.
Some exceptions were taken to evidence and we are asked to review them upon a case made. No other' question is presented. The parties appear to have gone to trial before the circuit judge upon some private notion of their own as to what ‘ was in contest, since nothing express appears to denote what was meant to be set up or alleged on one side or the other, except that the claimant said she claimed a given amount. No oral or written pleading in any form or of any description seems to have been made, and the nature of the dispute can be ascertained only from the testimony itself, including that to which all the objections relate. The estate might have insisted upon some kind of statement in the record, conveying an intelligible idea of the character of the claim, and in form sufficiently definite to afford a criterion for judging of the relevancy and propriety of testimony. This was not done and the whole contention was at sea, and it is now difficult to'find any marks or buoys for retrospective revision. Because we must first see the evidence in order to find out the ground of controversy, and understand what question the parties were bringing evidence upon and to which their evidence ought to be confined. The circuit judge must have labored under a like perplexity unless relieved by oral explanations of counsel which do not appear in the record. If not assisted in that way he must have been compelled to rule on such offers of testimony as counsel saw fit to make without any guide concerning the matter of dispute, and without being informed except by the testimony offered, of the real difference the parties were struggling to try before him.
When parties tacitly agree to conduct a litigation blindfold, and to make no disclosure of their difference except by producing testimony, as they choose, it can hardly be expected that a court of error will exhaust itself in endeavors to revise the points they make on the admission of testimony, or put any harsh construction on rulings admitting it. We shall not take trouble to rehearse the details of the controversy. It is not necessary.
The substance of the matter would seem to be that Mrs. Simpson bought of 'Mrs. Probasco a parcel of real estate for $1600, and made arrangements for payment through a Mr. Friend, who was representative of the estate of her former husband, a Mr. Davis, out of her dower. interest in the Davis estate; and which dower interest she at the same time placed in Friend’s hands for that and other purposes. That up to her death the parties acted on this understanding, and Mr. Friend her trustee, who had no personal interest whatever, converted a considerable part of the dower interest into money and paid the same to Mrs. Probasco, who acknowledges the payment. That a portion of the original debt, and being the sum demanded in this cause, remains unsatisfied and is unquestionably a lawful claim against Mrs. Simpson’s estate.
The papers and arrangements were made substantially at the same time and as parts of one transaction and they should be viewed together. They are not clear. Upon their face, however, they indicate that Friend took the dower interest from Mrs. Simpson in trust to apply the proceeds on the debt of Mrs. Probasco, and moreover suggest a call for extrinsic facts and explanations, and we discover in this record no fault in the rulings. Catlin v. Birchard, 13 Mich., 110; Colman v. Post, 10 Mich., 422; Kimball v. Myers, 21 id., 276; Bowker v. Johnson, 17 id., 42; Vose v. Morton, 5 Gray, 594; Stoops v. Smith, 100 Mass., 63; Hubbard v. Gurney, 64 N. Y., 457; Hebbard v. Haughian, 70 N. Y., 54; Forbes v. Watt, L. R. 2 Scotch & Div. App., 214; Wharton’s Ev., §§ 1031, 1032 and notes. The circumstance that the fund Mrs. Simpson placed in the hands of her trustee to pay the debt had not been wholly consumed at her death, does not affect the liability of her estate for the debt. The remains of the fund still belong to her estate, and her representatives cannot compel Mrs. Probasco to look after them.
The order should be affirmed with costs, and the same should be certified to the court below and to the probate ' court. "
.The other Justices concurred. | [
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Cooley, J.
The bill in each of these cases was filed to foreclose a mortgage on the undivided half of certain lands. The controversy is the same in each, and concerns the right to certain fixtures, which are claimed by complainants as a part of the real estate,.but have been removed by the defendant George Baker, as personalty.
The land consists of about two acres, with saw-mill upon it. In 1866 the land was owned by Charles S. Corsett and one Miles, and a carding machine was then put in. Some time in 1871, Miles sold his undivided half of the premises to Stephen W. Walrath, and Walrath by arrangement with Corsett put a planing and matching machine into a small building erected for. the purpose. The machine was a large one, weighing some 3500 pounds, and was fastened to the floor with bolts. The saw-mill had an upright saw, with suitable gearing and shafting and was run by water power. When the planer and matcher was put in, Corsett and Walrath entered into partnership to operate the machinery on the premises, and Corsett under the arrangement was to be owner of •one-half the planer and matcher. On December 20,1871, Walrath conveyed his undivided half to Nettie L. Williams, and took back a purchase money mortgage, which is the same mortgage being foreclosed in the second of these suits. The land in this deed and mortgage is .simply described by metes and bounds, and nothing is said of buildings or fixtures. When Nettie L. Williams purchased, a new partnership was formed under the name of Corsett, Williams & Co., composed of Charles S. Corsett, Charles B. Williams, husband of Nettie L. Williams, and Mrs. Williams, for the purpose of running the saw-mill and other machinery on the premises. In May, 1872, Charles S. Corsett mortgaged his undivided half of the premises to John A. Robertson to secure the payment of money borrowed. This mortgage also described the land by metes and bounds, adding to the description the words “together with the mill.” This is the mortgage which is being foreclosed in the first suit. After this mortgage was given, the firm of Corsett, Williams & Co. or Corsett for them, purchased and set up on the premises a moulding machine, a tenoning machine, a morticing machine, a blind slat tenoning machine, a blind wiring machine, and other similar machinery, which the firm from that time made use of in their business. Some of these were fastened to the floor by bolts or braces, and others were not fastened at all. The firm of s Corsett, Williams & Co. also added to their power by renting and placing in the mill an engine and boiler, and in September, 1872, these were removed, and an engine and boiler purchased by Mrs. Williams were substituted.
August 1, 1875, a new copartnership was formed, consisting of Charles S. Corsett, Charles B. Williams and George Baker, to carry on business on the same premises, and by means of the machinery already enumerated. It was understood that Williams and Corsett put into the copartnership the use of the real estate and machinery, though what right Williams had to put in what belonged to his wife does not distinctly appear.
Baker put in a thousand dollars in money. At the same time, to secure Baker for any liability he might incur on behalf of the firm, or any moneys he might pay for the other partners, Williams and Corsett executed to him a bill of sale of the planer and matcher, the tenon-' ing machine, the moulding machine, and several articles which need not be particularly enumerated. Corsett and Mrs. Williams also severally conveyed to Baker undi vided halves of the real estate, in trust to secure him for any indebtedness he might pay for them. Soon after the last partnership 'was formed, the engine was removed from the premises'and'another substituted. In May, 1876, Baker sold out his interest in the copartnership to Charles B. Williams. At that’time he claimed that $2027 was owing and secured to him' by the bill of sale given to him by Corsett and Charles B. Williams and by the deeds of trust executed by Corsett and Mrs. Williams. At length, in February, 1877, Baker went upon the premises and proceeded to ■ remove from the buildings the following articles, 'claiming all of them as personal property, the steam engine, planer and matcher, tenoning machine, moulding machine, upright shaping machine, Scroll sawing machine, three saw tables and circular saws used thereon, blind slat tenoning machine, morticing machine, blind wiring machine, slab saw, upright mulay saw, all the line and counter shafting, pulleys and belts, water-wheel and gearing and shafting connected therewith.
The complainants in these bills claim all this machinery as constituting a part of the realty, and they have obtained decrees in the court below requiring it all to be restored to the premises from which Baker removed it. The facts above set forth constitute a part only of all the facts bearing upon the controversy, but we have chosen to omit all that could have no important influence upon the result.
I. We find in the record no ground whatever for claiming the right to remove from the premises the water-wheel and gearing and shafting connected therewith, so far as they constitute parts of the saw-mill proper, or the upright mulay saw, which we suppose also belongs to the saw-mill. The saw-mill has never, so far as we are informed, been owned separate from the land, or been treated otherwise than as a part of the realty. Prima facie the saw-mill and all its appoint ments would constitute a part of the real estate, Davenport v. Shants, 43 Vt., 546; and in this case no agreement, understanding or intent is shown that can control the prima facie case.
II. Aside from the saw-mill proper and the engine— of which we shall speak presently — we think the machinery in controversy remained personalty, and was lawfully removed as such. No single article of this machinery was made expressly for use in the building where it was placed, and not elsewhere; all of it was equally capable of beneficial use on being removed to and set up in some other building. It might therefore become a part of the real estate when affixed to it, if such was the'intent, or it might remain personal estate if an understanding to that effect was clearly indicated or fairly deducible from the circumstances. Rogers v. Brokaw, 25 N. J. Eq., 496; Blancke v. Rogers, 26 N. J. Eq., 563; Voorhees v. McGinnis, 48 N. Y., 278.
No express agreement of the parties that this machinery should become real estate, or on the other hand remain personal, is shown, though there is some evidence that as between Corsett and Eobertson it was understood that the money loaned by the latter should be expended in machinery that would be subject to the lien of Robertson’s mortgage. It does not appear that the other members of the firm of Corsett, Williams & Co. were parties to the understanding, or that Corsett himself had any definite purpose when he put in the machinery to make good his promise to Eobertson if one was made by him. It appears beyond any controversy or question that the real estate was all the time owned by individuals in undivided interests, and no understanding or agreement is shown that it should be carried into the partnership as partnership property. The firm had the use of it, and nothing more. It therefore remained individual property, and the separate interests might have been dealt with by the owners at discretion. But it is quite as manifest that the ma chinery was brought in as partnership property, and constituted a part of its stock in business. As such it would have been liable to the payment of partnership debts, and must have been subject to the adjustment of balances between the partners.
No doubt had the real estate been partnership property, fixtures attached by the partners might have become a part of it. Christian v. Dripps, 28 Penn. St., 271. But in the case of Adams v. Lee we had occasion to point out the difficulty of any merger of the chattel in the realty when the ownership of the two was not identical; and in the well-considered case of Trappes v. Harter, 2 Cromp. & Mees., 153, it was held under circumstances analogous to the present that the machinery remained the property of the partnership. It is true the authority of that case was somewhat shaken by the subsequent ease of Ex parte Cotton, 2 M., D. & D., 725, followed in Cullwick v. Swindell, L. R. 3 Eq. Cas., 249, but in Cotton’s case Trappes v. Harter seems to have been wholly overlooked, and we cannot know what importance would have been allowed to it had it not escaped attention.
Where a partnership occupies individual real estate, and sets up trade fixtures in it, there seems to be no good reason why, when their occupation ceases, the partnership should not have the same right to remove the fixtures that any tenant would have under corresponding circumstances. The same reasons exist for encouraging the partners to make the best possible use of their possession, by protecting them in their expenditures upon the land so far as may be consistent with justice to others; and neither the owners of the fee nor their creditors are wronged by the removal of the fixtures* any more than they would-be if the occupant had with them no relations whatever but those of tenancy. The partnership for most legal, purposes is a distinct entity; — having its own property, capable of contracting separate debts, having the right to sue -in equity its several members, and to be protected against their conduct to the same extent that it might be against the conduct of strangers. Then why should it not be protected against its fixtures being merged in the individual property of one or more of its members to which they had been attached for the better, more convenient and more profitable management of their business? To us the case of Trappes v. Harter seems entirely reasonable, and it harmonizes with the views of this court as expressed in Adams v. Lee, 31 Mich., 440.
III. The case of the engine’is somewhat different in the facts, but not in the principle. When the rented engine was taken out, the one that was substituted belonged to Mrs. Williams, and that was exchanged for another, the copartnership of Corsett, Williams & Co. paying a difference of $300. All the money put into it was therefore the money either of Mrs. Williams or of the copartnership, and Corsett, as owner of an undivided half of the real estate, could have had no equitable claim to it whatever. Moreover the steam power was put in because it was needed to operate the new machinery which we have found did not become a part of the realty; and the reasons which apply to the machinery apply with equal force to the engine which was procured to operate it.
As this is sufficient to dispose of the controversy, we pass by without notice some other claims which are made on behalf of defendant Baker, and which become immaterial. The decree will be modified in accordance .with these views and remanded for execution. The defendant Baker will recover the costs of this court.
The other Justices concurred. | [
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] |
Cooley, J.
Plaintiff in error was complained of with others before a justice of the peace in the following form:
“ State of Michigan, )
County of Saginatu, j
The complaint and examination on oath and in writing of Beuben W. Andrus, taken and made before me, James W. Clark, a justice of the peace of the city of Saginaw, in said county, upon the 14th day of September, A. D. 1876, who being duly sworn, says that heretofore to wit: on the 12th day of September, A. D. 1876, at the township of Chesaning, and in the county aforesaid, Mary Jane Smith, Norris Alexander, Freeman Cargen, and Julia Cargen, feloniously, willfully, and of their malice aforethought did kill and murder Charles Smith, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan, wherefore the said Beuben W. Andrus prays that the said Mary Jane Smith, Norris Alexander, Freeman Cargen and Julia Cargen may be apprehended and held to answer this complaint and further dealt with in relation to the same as law and justice may require.
B. W. Andrus.
Taken, sworn and subscribed to before me the day and year first above written.
James W. Clark,
Justice of the Peace.”
The accused being arrested and brought before the justice, waived an examination, and the cases were certified to the circuit court, where plaintiff in error was informed against for murder, and was convicted of murder in the first degree.* Freeman Cargen was joined with her in the information, but was first tried.
I. It is assigned for error that the justice in certifying the case to the circuit court only certified that he found the offense “ as charged in said complaint and warrant to have been committed, and that there is probable cause to believe them [the defendants] guilty thereof,” and did not find whether the offense was murder in the first or in the second degree. But this was sufficient. Brownell v. People, 38 Mich., 732; Turner v. People, 33 Mich., 363; Yaner v. People, 34 Mich., 286.
II. When the case was called for trial several jurors were challenged for cause, all of whom on being examined under oath testified that they, had heard and read of the case, and had an opinion positive in its character as to whether or not Charles Smith,-named in the information, was murdered, but had neither formed nor expressed an opinion as to the guilt or innocence of the plaintiff in error, and had no bias or prejudice for or against her, and believed they could render an impartial verdict according to the evidence. The circuit judge overruled the challenges. The' ruling was correct. Holt v. People, 13 Mich., 224; Stephens v. People, 38 Mich., 739.
III. One Balnum, also called as a juror, was challenged for cause, and the cause assigned was that he had already been rejected as a juror on the trial of Freeman Cargen upon the same information, on the peremptory challenge of said Freeman. It is said that “the natural prejudice thereby created makes his impartiality matter of serious doubt.” It is no doubt possible that one may in feeling resent being rejected as a juror, or be prejudiced thereby against the person challenging him; but that his prejudice will extend to others who had nothing to do with the rejection is a suggestion too unnatural to constitute a basis for judicial action. The challenge was properly overruled.
IV. It is assigned for error that the court received and entered judgment upon a verdict of murder in the first degree, whereas murder in the first degree was not charged in the information, but^only murder. The form of the information was the one in common use in this State, and in Sneed v. People, 38 Mich., 248, this very objection was considered and overruled.
The plaintiff in error has no cause of complaint on this record, and the conviction is sustained.
The other Justices concurred. | [
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] |
Marston, J.
The judgment in this case was rendered in April, 1877, previous to the time the respondent in Dorsey v. The People, 37 Mich., 382, was sentenced, and at a time when it was conceded there was no existing contract which would authorize the confinement of the. respondent in this case in the Detroit House of Correction.
The judgment must be reversed and the prisoner be discharged.
The other Justices concurred. | [
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] |
Cooley, J.
The action in this case is brought to recover from William Taylor and Aaron B. Taylor as principals, and Joseph K. Taylor as surety, the amount of several promissory notes given by the principals, and for the payment of which the surety is supposed to have bound himself by a bond executed before the notes were given.
The notes were given in pursuance of a certain agreement under which William and Aaron B. Taylor became agents for the plaintiff in the sale of musical instruments. They also agreed to buy certain instruments, and “to execute and deliver to said Bullock their equal promissory notes, executed by them and payable to his order for the full amount of the aggregate prices of said instruments, * * and that said notes shall be due and payable at Second National Bank of Bast Saginaw, Michigan, in three equal instalments of six, nine, and twelve months from the date of each delivery of said instruments, with interest thereon at the rate of ten per cent, per annum, from the date of each of said notes.” The bond signed by Joseph K. Taylor was conditioned for the performance by his' principals of the stipulations of this agreement.
The question in the case arises on the notes which were afterwards given. The following is a copy of one of them:
“$70.83. Mt. Pleasant April 12, 1875.
Nine months after date we promise to pay to B. D. Bullock or order the sum of seventy 83-100 dollars value received, with ten per cent, interest, with current exchange or express charges. If this note is not paid at maturity it is to draw ten per cent, from date, and the undersigned agree to pay fifteen dollars attorney’s fees, over and above all taxable costs, should any proceedings be instituted to collect this note, payable-at Second National Bank, Bast Saginaw.
Wm. Taylor & Co.”
The surety insists that such notes are not within the terms of Ms undertaking; first, because they contain a promise to pay exchange or express charges in addition to the sum owing; second, because they provide for the payment of an attorney’s fee, to which he has never consented; and third, because, being for the payment of uncertain sums, they are not promissory notes at all.
We quite agree with counsel for the plaintiff that the provision for the payment of exchange or express charges is merely nugatory. By the agreement as well as by the terms -of the notes, they were made payable at East Saginaw, and it therefore became the duty of the promisors to be at any expense necessary in the transmission of the money to that place. Whether they sent by draft or by express the expense would equally fall upon them, and. an express promise to pay it could add nothing to their liability. The provision on the subject may have been inserted in the notes for a more perfect understanding of the agreement, but the surety could not complain of it, because it could not in any manner add to his liability, or vary his undertaking.
The agreement embodied in some of the notes for the payment by the makers, of an attorney’s fee in case any proceedings are instituted for collection, presents a somewhat different question. If the agreement is valid and constitutes a part of the obligation of the makers upon which a recovery may be had in a suit for the amount owing on the note, then it will be conceded the notes which contain it are not within the terms of the obligation the surety has assumed. The surety undertook for the payment of the price of goods to be sold, and not for any penalty for failure to pay promptly; and his promise cannot be enlarged in the slightest particular without his consent. Smith v. Shelden, 35 Mich., 42. It is suggested, however, — and there is some authority for that view, — that the provision for the payment of an attorney’s fee is only the personal undertaking of the makers, which from its very terms does not become operative until suit brought, and consequently cannot be counted upon in the suit for collection of the note, and is no more a part of the obligation for which the surety has undertaken than if it were a promise evidenced by a separate instrument. A more important suggestion is, that the promise is absolutely void.
In this State the attorney’s fees which the successful party is permitted to recover in courts of record are prescribed by statute or by rule of court. In justices’courts none are given, except in a few special cases. The policy of our law is to limit such recovery to a very moderate sum in every case where it is permitted at all. We have also in this State had usury laws from the very first; and though their penalties have not been severe, they have fixed a maximum of ten per centum per annum, which is not to be exceeded under any circumstances. And it is a question of very grave importance whether the policy which thus limits attorney’s fees and also limits the rates of interest, can be set aside by provisions like that under review.
The notes' upon which a recovery is sought in this case vary in amount from $41.50 to $104.12. Six of them, including two for $41.50 each, contain the promise to pay an attorney’s fee of fifteen dollars, should any proceedings be instituted for collection. All of them could be sued' in justice’s court, and the mere taking out of a summons would be a proceeding for collection. Therefore the makers are made to promise that if the payee, when the notes come due and are not paid, shall take out a summons upon each of them, the makers will pay an attorney’s fee of fifteen dollars upon each. ^ It is of course preposterous to call this a fee: a fee supposes services; and here the services to be compensated may be purely nominal. The sum is nothing but a penalty: it cannot even be regarded as stipulated damages on a default; for the sum to be paid bears no proportion to the sums overdue, but is the same for the smallest notes as for the largest. Moreover, the law itself determines what shall be the recoverable damages on default in the payment of a liquidated demand, and limits it to a sum not to exceed ten per centum per annum: while these stipulations in some eases provided fof the payment of a sum equal to thirty five per centum, however brief might be the period of default.
A stipulation for such a penalty we think must be held void. It is opposed to the policy of our laws concerning attorney’s fees, and it is susceptible of being made the instrument of the most grievous wrong and oppression. It would be idle to limit interest to a certain rate, if under another name forfeitures may be imposed to an amount without limit. The provision in these notes is as much void as it would have been had it called the sum imposed by its true name of penalty or forfeiture. There is no consideration whatever that can support it. .
It follows that the circuit court should have rendered judgment for the amount of the notes, ignoring this provision. The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
Morton sued Crane, who is a justice of the peace, for entering up judgment against him without jurisdiction, in an action instituted by one Bose, and issuing execution thereon by virtue of which the property of Morton was seized and sold. The main facts in the case are not in controversy, and the questions in dispute are purely questions of law.
The proceedings in the suit by Bose against Morton are in evidence, and they are full of errors. The suit was commenced by summons, and Bose being a constable, the summons was put into his hands for service. There are decisions in New York which hold that where the first process in a suit is not process against the body, the plaintiff if a constable and otherwise disqualified may serve it himself; though the same cases concede that he could not in his own suit serve a warrant or an execution. Bennet v. Fuller, 4 Johns., 486; Tuttle v. Hunt, 2 Cow., 436; Putnam v. Man, 3 Wend., 203. The reason for holding that he may serve the one process but not the others appears to be that in the case of a summons there is no special danger of abuse, while in the other eases there would be. We have not been, able to assent to this conclusion. The danger of abuse in case of a summons consists in this, that the officer may falsely make return of a service never made, and thereby put himself in position to obtain judgment by default against a party who perhaps will hear of the. proceedings for the first time when an execution appeal’s against him. No danger of abuse from an officer serving his own process can be greater than this, and the practice which would subject the officer to this temptation should not be tolerated. The courts generally have adhere'd with great propriety and justice to the rule that in no case shall a man be officer and party in the same proceeding. Singletary v. Carter, 1 Bailey (S. C.), 467; Gage v. Graffam, 11 Mass., 181; Woods v. Gilson, 17 Ill., 218; Filkins v. O’Sullivan, 79 Ill., 524; Boykin v. Edwards, 21 Ala., 261; Ford v. Dyer, 26 Miss., 243; Chambers v. Thomas, 3 A. K. Marsh., 536. In Parmalee v. Loomis, 24 Mich., 242, this court declined to follow the New York cases, but at the same time held that the service by an officer of a summons in his own favor was an irregularity only.
In this case the service was made by copy, and under the statute, unless the defendant appeared, the plaintiff must take out a new summons in continuation of the suit. Comp. L., § 5263. Morton did not appear in person, but one Hitchcock appeared iin his name, and consented to an adjournment of the case to a future day. Crane thereupon made an entry in his docket that “parties appeared,” without showing how, and entered a continuance as was agreed. On the adjourned day there was no appearance for defendant, and Eose took judgment.
It now appears that Hitchcock was sent to Crane’s office by Morton’s father, with directions to answer for Morton in another case, but not to appear for him in the Eose suit, and that it was in disregard of his instructions that he answered for Morton when the Eose suit was called. His appearance in that case was therefore entirely without authority.
The complaint made againt Crane is that he falsely entered on his docket that the defendant appeared. But had the appearance of Hitchcock been authorized, no complaint could have been made of this entry. It is proper that in every case the justice should make his docket show in what manner the parties appear, but there is no statute expressly requiring it. The party “ appears ” as much when he answers by attorney as when he answers in person.
But it is said the justice was not justified in permitting Hitchcock to appear for Morton without first enquiring into the facts, and that inquiry would have disclosed the want of authority. In effect, it is said, Crane gave to himself apparent jurisdiction to proceed by his unfounded assumption that Hitchcock was authorized; and that the want of authority appearing, the apparent jurisdiction is disproved.
No doubt the justice was very careless and blameable; but the question on this part of the case is whether in permitting Hitchcock to appear and adjourning the case he was acting judicially. The rule is too well settled for further controversy that no action will lie against a judicial officer for anything done by him in his judicial capacity. Mostyn v. Fabrigas, 1 Cowp., 161; Dicas v. Lord Brougham, 6 C. & P., 249; Fray v. Blackburn, 3 B. & S., 576; Bradley v. Fisher, 13 Wall., 335; Yates v. Lansing, 5 Johns., 282, and 9 Johns., 395; Phelps v. Sill, 1 Day, 315; Raymond v. Bolles, 11 Cush., 315; Stone v. Graves, 8 Mo., 148; Taylor v. Doremus, 16 N. J., 473.
That the action was judicial is unquestionable. A suit had been begun, and it was the duty of the justice to call it and see if the parties appeared. The plaintiff did appear, and Hitchcock answered for the defendant. If he answered with authority, the justice was possessed of the case for the purposes of a trial, but if not, the suit would go down unless a new summons was taken out. A question was therefore presented for decision by the justice, whether Hitchcock was or was not authorized to appear, and upon this the justice was compelled to pass. No reason can be assigned for holding him responsible for an erroneous decision of this question that would not apply to the case of an error at any stage of the case. It is true he should have been more cautious and required a showing of authority under oath; but it is not the grossness of the fault that can render him responsible: the law protects him from responsibility in civil suits from strong reasons of public policy, and it permits no inquiry further when it is once shown that the action complained of was judicial.
Had the justice assumed jurisdiction when the law gave him none, he would not be protected, because in such a ease he would falsely assume a judicial character which he did not possess. Wingate v. Waite, 6 M. & W., 739; Piper v. Pearson, 2 Gray, 120. But such was not this case. The worst that can be said here is that the further authority of the justice to act depended upon the truth of Hitchcock’s assumption of right to appear. But upon this the justice was required judicially to pass; and when the jurisdiction depends upon facts which are to be found by the magistrate himself, his finding in favor of jurisdiction is a complete protection even though it prove to be erroneous. Cave v. Mountain, 1 Man. & Gr., 257.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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1
] |
Graves, J.
November first,' 1875, one Kruger owned and was in possession of a lot of forty acres in Barry county. He had a house and barn on the place, and about nineteen acres were improved and under cultivation. The rest was wild, and there was much valuable timber. Kruger had no family with him.
At the time mentioned the defendant Edward J., who was a married man, entered into a' written agreement with him to remove to the house and among other things carry on the place upon shares. The arrangement was to continue for ■ a year with the privilege of two. The parties were to work together. The wood land was to be cleared off and fenced and railroad ties to be got out and sold, and crops to be put in. Each party was to provide his own provisions but the wife of Wilcox was to cook and wash for Kruger. It is unnecessary to repeat all the stipulations.
November 3, Wilcox entered with his family pursuant to the agreement and continued for a little over two and a half months or until the 24th of January, at which time Mrs., Wilcox refused to stay any longer and went away with her family. This violation of the agreement is said to have been caused by Kruger, who is alleged in the answer to have been “disagreeable, ugly-tempered and difficult to get along with.” No facts are stated however, and the case is bare of evidence to justify the removal.
March 6, 1876, the defendant Edward J. Wilcox assumed to sell and assign his contract with Kruger, to his father, the defendant James L. Wilcox. The latter resided about a mile and a half from Kruger’s place, and on receiving the assignment he repaired to Kruger and told him his wife was ready to do his work under the contract whenever he should take it to her.
March 11th, 1876, Kruger sold and conveyed to complainant.
The defendant James, assuming to be entitled under the old contract to do so, proceeded to the premises, and with hands to help him, began to cut and remove all such timber as he chose, and thereupon complainant filed this bill to stay the waste. The court below granted relief, and we think properly.
First. Upon the facts as they appear in the record the younger Wilcox may be fairly held to have thrown up the contract and to have justified Kruger in deeming it to have no further obligatory force upon him. A leading motive of Kruger must have been the obtainment of the help of Mrs. Wilcox, and when she left, a main condition was broken. Evidently both parties so understood, and we find nothing satisfactory in the case to show that her husband after that made any real effort to meet the duties he had agreed to render.
Second. The agreement between young Wilcox and Kruger was of a personal nature and contemplated personal association and personal service. It implied that there could be no substitution at the will of one party, and the attempt to assign was for that reason abortive. The elder Wilcox obtained no right whatever; first, because the contract had been practically rescinded; and second, because it was not assignable.
Third. Complainant was not required to wait at all after getting his deed. The evidence shows that spoliation was being rapidly carried on under a claim of right, and he was justified in proceeding without delay to put a stop to it.
We discover no objections to the decree and it must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
This was an action of assumpsit brought by the plaintiffs in error against the defendant, in which they sought to charge him, as an alleged stockholder of the Peninsular Bailway Company, with the amount of a judgment recovered against the company for an alleged indebtedness for labor.
The case was tried by the court without a jury.' There was a finding of facts by the court and judgment thereon for the defendant. The case comes here for review upon the findings made.
Upon the argument it was urged that the principal and by far the most important question in the ease is the one relating to the constitutionality of the act of 1877, being Act No. 141, p. 129.
It is a cardinal principle with courts not to pass upon the constitutionality of acts of the Legislature, unless where necessary to a determination of the ease. Whatever view we might take of the act referred to, it could have no influence or bearing in this case, as the finding of the court upon the facts in the case was fatal to the right of plaintiff to recover.
The court found as matter of fact that the plaintiffs on the trial failed to prove that the defendant Eldred was a stockholder within the meaning of the statute under which the plaintiff sought to recover. The court then proceeded to set forth what appeared from the proofs relating thereto, and also to set forth that portion of the testimony bearing thereon, but as we cannot draw conclusions of fact from the evidence or proofs in the case, but are bound by the facts as found by the court, we need not refer to the evidence accompanying the finding of fact. It requires no argument to demonstrate the fact that plaintiffs could not recover in this case unless Eldred was a stockholder. If they failed to establish that fact there was. an end of their case, no matter what the showing might have been in all other respects.
The court also found that the orders for labor were taken by plaintiffs as assignees, and under an arrangement with the president of the corporation that plaintiffs should hold them for ninety days, and if not then paid, that they should thereafter draw ten per cent interest, and that an agreement to that effect was endorsed thereon by the president; that judgment was afterwards recov ered upon these orders, and interest theieon at ten per cent, included therein.
This brings the case within Hanson v. Donkersley, 37 Mich., 184, and was fatal to plaintiffs’-right to recover. The judgment must be affirmed with costs. .
The other Justices concurred. | [
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] |
Per Curiam.
The board of education of Port Huron is a municipal corporation distinct from that of the city, and its members are not city officers subject to removal by the common council. The power given that body to remove officers does not reach any but city officers. The school board hold for specific terms and not during pleasure. | [
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Graves, J.
This bill was filed to enjoin a foreclosure at law and compel a discharge of the mortgage attempted to be foreclosed: and the court below, on final hearing after answer and proofs, granted the relief sought and the defendants appealed.
The mortgage was given to defendants’ testator April 29, 1863, by complainant Holden, N. Green upon part of lot one in section twelve in township twenty-one north, of range seventeen west, in Manistee county, to secure two thousand and four hundred dollars in five payments represented by as many notes of the mortgagor, the last being payable on or before May 1st, 1868, with the right of election to postpone it for another year, and the whole carrying interest at the rate of seven per cent.
In the same year and shortly after the mortgage was-given, the complainant Walter B. Green acquired from his brother, the other complainant, an equal undivided half interest in the mortgaged premises, and. complainants being in partnership in the lumbering business, they agreed to consider this property as firm property. And subsequently but not long afterwards they caused it to be platted as an addition to the village of Man-istee. The first four notes were taken up and they are not in question. The controversy relates to the note of four hundred dollars drawn payable by May 1st, 1868.
Nathan Engelmann, mortgagee and defendants’ testator, died on the 3d of March, 1872, but during several years prior to that time his brother, the defendant Michael, possessed plenary authority over his business (which was somewhat extensive) on the east side of Lake Michigan. In the early part of 1870 complainants held-a large account for logs against Nathan, the mortgagee, and they claim that complainant Walter took this account, which excluded the balance on the mortgage, to Milwaukee, and there met the defendant Michael, and that it was there agreed and determined between them that a sufficient amount of the demand for logs to satisfy the remaining note secured by the mortgage should be then deemed as applied upon- it, and that defendant Michael agreed that on return of his brother Nathan, who was abroad, he would give up the note, and that he, Michael, would discharge the mortgage the first time thereafter when he should be at Manistee, and that he, Michael, then executed and delivered a writing in substantial accordance with the understanding and importing that the mortgage was paid. The complainants further claim 'and the testimony supports it, that entries were subsequently 'made in the books of account on each side of such kind as to afford some corroboration of this statement about settlement of the mortgage; that they were disposing of lots on the premises and were negotiating for loans, and that the mortgage was a standing impediment, and that on this account especially they were, as was 'explained to the defendant Michael, extremely solicitous to get it out of the way, and that subsequently they showed the writing received from the defendant Michael to purchasers of lots and to others with or through whom they were negotiating to obtain loans as a means of verifying representations made in good faith and in full reliance upon the arrangement' with defendant Michael that the mortgage was paid; that this writing was burned in the great fire which happened afterwards in Chicago.
April 28, 1877, notice was published by defendants for foreclosure and sale under the power contained in the mortgage on the 28th of July thereafter, and $680 was claimed to be due and unpaid at the date of the notice. The bill was filed shortly before the time fixed for the sale.
The determination of the case depends wholly on the view the facts authorize and no question of law arises. The examination by counsel has been as full and complete in all respects as could be wished and an elaborate opinion on the evidence is neither called for nor expedient. Upon full consideration the facts impress us as they seem to have impressed the court below. Without going into details or referring to other facts having more or less force we may allude to two or three somewhat general considerations. The last note at the latest was due and payable as long ago as May, 1869. It bore interest at seven per cent, and according to the defense nothing has been paid since 1867; If so, the statute of limitations barred it several years ago. The security has always been unquestioned, and until recently money has been continually in demand at ten per cent. The mortgagee is described as having been a precise and accurate business man and not indifferent to gain, and the case implies that the defendant Michael is a man of prudent and cautious ways and disposed to look sharply to his interest. From 1870 until his death the mortgagee must have been aware, and the defendant Michael during the whole -intervening period must have known, that a town was growing up on the mortgaged premises, and both, as there is reason to conclude from the evidence, must have suspected at least that complainants were dealing with the property and negotiating for loans upon it, and that other parties were buying, building and improving or loaning money upon the premises or otherwise contracting in regard to them upon the faith and belief that the mortgage was in fact satisfied.
At the same time the case shows that the defendants insist that nothing has been paid as principal at any time and nothing even as interest from 1867, a period of ten years, and there is no evidence of any demand for principal and interest from 1870 to the time of the notice to foreclose.
There would be great difficulty in harmonizing these considerations with the theory of the defense. But they possess great weight in the opposite scale, and reinforce the claim.' of complainants.
We think the decree should be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
At the time this case was argued and submitted I was of the impression that the justice did have jurisdiction, and that the judgments rendered in justice’s court were a bar to the actions brought in the present case. An examination of our statutes relating to justice’s courts, and to executors and administrators, and reflection thereon, lead to a different conclusion.
Admitting that when the probate court has, by a decree for that purpose, assigned the residue of the estate of the deceased to such persons -as are by law entitled to the same, who then have the right to demand and recover their respective shares from the executor or administrator, who are personally liable therefor, yet I think it does not necessarily follow therefrom that the action therefor can be brought in justice’s court. If the amount sought to be recovered was within the jurisdiction of a justice of the peace, then no good reason can be perceived why the action might not be brought in justice’s court, and to this extent we fully concur in the reasoning of the courts in the cases cited by counsel for defendant. The question raised cannot be determined in this way, however. Our statute has limited the general jurisdiction of justices of the peace, by specifying certain eases or classes of cases, in which they shall have no jurisdiction, and “actions against executors or administators as such” are thus prohibited. What is the proper construction of this clause? Is it first, that actions may be brought in justice’s court against persons acting as executors and administrators, for matters relating to and concerning them as individuals, in which the estate they represent, in their administrative capacity, is in no way to be affected? or secondly, does it mean that in all cases where a personal judgment may be recovered against them, for or on account of acts done or omitted to be done by them, as representatives of the estate of a deceased person, they may be sued in justice’s court, while it is in cases only where the judgment to be recovered, if any, is in form against the estate, that the jurisdiction is taken away? It is this second view which counsel for defendant takes and insists upon in this case. It is said that the statute “providing that no justice of the peace shall have cognizance of actions ‘against executors or administrators as such’ deprives them of jurisdiction of cases only in which the liability attaches, to executors or administrators in their representative capacity, and does not apply to eases in which there is an individual liability.”
This provision in the Justice’s Act must be read in view of our statutes relating to the estates of deceased persons.
See. 4479, 2 Comp. Laws, reads as follows: “In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator.” An examination of this chapter shows what actions may be so commenced. When commissioners have been appointed for examining and allowing claims against the estate, no action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin; nor shall any attachment or execution be issued against the estate, until the expira tion of the time limited by the court for the payment of debts.
By § 4461 whenever a decree shall have been made by the probate court for the distribution of the assets among the creditors, the executor or administrator, after the time of payment shall arrive, shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own debt, or he shall be liable on his bond, and the same may be put in suit.
Sections 4468 and 4469 provide for the presentation and allowance of claims accruing or becoming absolute, after the time limited for presenting claims, and if established the probate court shall require the executor or administrator to pay the same, if he shall have sufficient assets for that purpose, and if not, such part as he shall have assets to pay. And by § 4470, if an action shall be commenced against an executor or administrator on such claim, he may give notice that he has fully administered the estate; and by § 4471, if it shall appear on the trial of such action that he had fully administered, and had no assets, he shall be discharged and have judgment for his costs, but if it is found that he had assets sufficient to pay only a part of such claim, judgment shall be rendered against him for such sum only as shall be equal to the amount of assets in his hands. If the appointment of commissioners to allow claims be omitted, claimants may prosecute their claims against the executor, administrator, etc. § 4478. •
Here then is an enumeration of the cases where an executor or administrator may be sued, and the statute is clear that in no other case shall any action be commenced or prosecuted against them. This case comes within the provisions of, and was brought under § 4461. This, then, is one of the cases where the statute permits an action to be brought against the executor or administrator, and were it not for this section the action could not be brought. The statute speaks of and treats the action as one to be brought against them officially; it is to reach assets of the estate in their hands. The judgment to be recovered cannot exceed the amount of the assets as decreed by the probate court, and that court having made a decree for the distribution of the assets, it is binding upon the executor. It thereupon becomes his duty as such executor to pay over the. amount thereof, and failing so to do, he is, by the statute, declared to be personally liable therefor, as for his own debt. This personal liability, however, does not sever and disconnect the claim from being one in fact ágainst the estate. If a judgment is recovered and paid, it is charged as against the assets in his hands, and is so treated in the final settlement; otherwise the recovery and payment of -judgments under this section, no matter to what amount, would not tend to diminish the assets, and still leave him liable, through the probate court, to account therefor.
His being made personally liable as for his own debt, does not make it his own debt, but where responsible it enables the judgment creditor to collect his claim, without resorting to the administrator’s bond, as he otherwise might be obliged to do. In seeking to recover under this statute, the creditor or claimant would have to allege and prove the facts, showing that the party charged had been acting as executor or administrator, and how the liability was in this manner created.
This, therefore, is one of the cases where the statute permits an action to be brought against an executor or administrator, — and after the decree of the probate court ordering payment, I can see no good reason why suit might not be brought .in justice’s court, or. an action of garnishee be commenced, were it not for the statute which takes from the justice his jurisdiction in such cases. All such actions are against the executor or administrator as sueh. Whether the judgment binds them personally, or not, to that extent, it is only to enable parties to reach assets in their hands.
What then was the object of adding to this clause limiting the jurisdiction of justices in cases against executors or administrators, the words as such ? Would not the construction be the same if such words had been omitted ? In all probability such would have been the case, but the addition of these words, makes clear what without them might have created some doubt.
There are statutes which prohibit the bringing of actions against certain persons or give to particular courts exclusive jurisdiction against them, by referring to and speaking of them by their official name or title only, and that such statutes prohibit or give to the particular court exclusive jurisdiction, as the case may be, of all actions against them, not merely in their official character, but as individuals, and in reference to their personal matters, in no way connected with their office, there can be no doubt. A notable instance of this kind is the Act of Congress relating to the original jurisdiction of the Supreme Court, that it shall have “ exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers,” etc.
So our Constitution says that senators and representatives shall in all cases, except treason and some other crimes, be privileged from arrest, and that they shall not be subject to any civil process during the session of the Legislature. Here it is apparent their official designation exempts them as individuals. So, might it not be said, were it not for the words “as such,” that while a person was acting as executor or administrator he could not be sued in justice’s court, either as such or as an individual in reference to matters in no way connected with his duties as administrator ? In my opinion it was to prevent any such question arising that the words referred to were inserted, and that in these cases the justice had no jurisdiction, and the judgments rendered by him were no bar in the present action.
In my opinion the judgment should be affirmed with costs.
Campbell, C. J. and Graves, J. concurred.
Cooley, J. I concur in the result. | [
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Campbell, C. J.
Tryon sued the defendants in the Superior Court of Detroit for a libel published in the Detroit Evening News in the following terms, connected in some of the counts in .the declaration with various colloquies and innuendoes:
“ When Oapt. W. H. Myler of the Police force cautioned his men against giving news to the reporters, it had no effect whatever: the papers got the news just as promptly and just as correctly as before, and Mr. Myler was taught how useless it was for him to try and smother up the misdoings of favorites. Now, however, a real blow has been struck at local journalism in Detroit which will have its effect especially upon the Tribune and may injure all the other papers more or less. It is the action of Try on, a reporter of the Tribune. On no other journal in the city could such a thing have been possible. Tryon insinuated himself into the good graces of Sergeant George H. Thomas of the central station, and learned fromuhim his private opinion of various matters and things connected with the Police Department. In the course of the conversation, which was free and easy, Sergeant Thomas made many remarks concerning the ' department, principally in jest. These and the remainder of the conversation the Tribune reporter carried directly to Police Headquarters, and charges were promptly preferred against Sergeant Thomas. At the trial yesterday afternoon Sergeant Thomas frankly confessed to having made the statements alleged, but explained how and why he made them, and that there was not the least malice in the affair or any attempt to prejudice the men against their superior officer or to injure any man of the force. The explanation was not satisfactory to the Board, and Sergeant Thomas was suspended from duty for one month. There is not a patrolman on the force who does not symathize with Thomas and who does not condemn the reporter who made public a private conversation.”
The case having been brought to trial in the Superior Court of Detroit and the publication proved and not justified, the court directed a verdict to be rendered for the defendant. The ground of this ruling was necessarily that the article was not libelous.
It is not claimed that verbal statements of the kind contained in the printed article would be slanderous and actionable in themselves without proof of special damage. But it is. claimed by plaintiff that when such remarks are reduced to writing and published in print in a newspaper they become actionable. Defendants insist there is nothing in the paper which is in any way injurious.
The only criterion which can be applied is whether this article had in fact any tendency to injure the plaintiff or bring ridicule, blame or contempt upon him.
There can be no pretense that there is any privilege belonging to such cases. The general public to whose entertainment or instruction all newspapers are supposed to be devoted, has no concern whatever with the lawful doings and affairs of private persons; and all mention of them in print must be made under the private obligation of publishing no untruths to their prejudice, and tlie public obligation of saying nothing to their prejudice at all unless upon adequate occasion. Where this duty is violated an action lies for many things where an. unwritten slander would not be actionable, for the manifest reason, well recognized in law as well as in general sentiment, that such defamation is made more permanent, and obtains greater publicity, and may operate to prejudice large numbers of people or whole communities against the person injured, with no adequate means of undoing the mischief.
In determining what is libelous it is not possible for courts to declare in advance just what words or charges or subjects must be included in the article complained of. The same words or the same averments may be, according to their purpose and surroundings, or according to their use sincerely or ironically, very harmless or very injurious. In Gen. Hamilton’s celebrated argument for the defense in the case of People v. Croswell, 3 Johns. Cas., 337, wdrich has.for some purposes been regarded as of almost judicial authority, he laid much stress on the impossibility of determining the intrinsic guilt or innocence of. particular language, without reference to its purpose or tendency in the particular case; and remarked that even “ texts taken from the holy scriptures, and scattered among the people, may, in certain times, and under certain circumstances, become libellous, nay, treasonable. • These texts are, then, innocent, libellous, or treasonable, according to the time and intent.” The whole subject is to be governed by good sense and ordinary understanding, and questions must be decided naturally and not according to metaphysical or technical methods which ignore the real meaning and bearings of the language which is used by those who have made statements in print about their neighbors. If an article is published which is untrue and intended and reasonably adapted to harm the person to whom it refers, it is an unlawful publication, and its publisher is liable to answer for it in such damages as may be lawfully awarded. The amount of injury and the amount of compensation for it, must be determined by the jury as judges of the facts.
In the present case the article intimates that the action of plaintiff, who is a newspaper reporter, was so extraordinary that it could not have been possible except by a person employed on his own journal. It charges him with insinuating himself into the good graces of a police sergeant on a force which had been cautioned against giving news to reporters, and learning from that officer his private opinion of various matters and things concerning the Police Department, and, in that conversation, which was free and easy, hearing many remarks, principally in jest, concerning the department. It charges him with at once carrying those remarks to headquarters, resulting in the expulsion of Thomas from his place, and states that there is not a patrolman who does not sympathize with Thomas and condemn plaintiff.
No one can read this article without seeing that it is intended not only to censure plaintiff but to hold him up as having done "a very mean thing. Assuming, which perhaps is possible, that private remarks made by a police .officer about his department and its officials may be of such a nature that duty requires every one who hears them to at once bear the tale to headquarters, it is very certain that this duty is not universal, and that this article meant it to be understood that in the case of the plaintiff he was not acting under any such duty. If the • article had contained no unpleasant insinuations, and had merely stated the' fact that Thomas had in private conversation made statements that were described, and that plaintiff had carried them to headquarters, it might possibly have appeared that he was blameless. Here, however, the statements so reported are not specified, and the article plainly intimates they should not have been reported. It is quite clear that while there may be some reason for requiring a certain amount of care in the members of a police force to avoid such acts or remarks as will injure their usefulness, or that of the force, it is equally true that as men and citizens they lose none of their rights to think and express their thoughts, where such expression is not calculated to interfere with their duty.
Every man often says in the freedom of private and friendly intercourse things which, although true in all respects, he would never think of making public. The talebearer who reveals such secrets — whether cautioned against doing so or not, — is generally thought to be a very contemptible creature. At the common law a person who stealthily listened to private conversation and then made mischief by it, was indictable as an eavesdropper, and held to be a public nuisance. One who has so much respect paid to his supposed decency, as to be allowed to listen without lurking in a concealed listening place, and then abuses his privileges, is not usually thought to be any better.
In practically asserting so strongly as this article implies, the duty of discretion, and the necessity to a reporter of avoiding the violation of social confidence, its tone is praiseworthy, but this very fact makes the charge on plaintiff injurious.' The necessity of frequently meeting members of the great body of reporters, and of having more or less to say to them, would require gentlemen to be very closely on their guard, and to treat them with scanty civility unless they were understood to be generally worthy of being trusted. "When a man is found wanting in this he must expect to lose his reputation and standing with the press as well as in society, and imputations of such misconduct cannot be, regarded as containing no cause of complaint.
"We think the article sued on was libelous. How far the grievance may extend or how much it may be mitigated by any showing is not for us to determine.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Edwards, J.
This is an appeal from the denial by the Ingham county circuit court of plaintiffs’ bill of complaint seeking to restrain the operation of defendants’ garbage dump because of claimed zoning ordinance violation.
Plaintiffs are neighboring property owners in a rural area of Ingham county — the nearest of whose residences to the dump in question appears from the testimony to be 1/4 of a mile. They seek injunctive relief, relying on an agricultural zoning provision in a township zoning ordinance enacted in 1954.
Defendants contend that the garbage dump operation at the site in question preceded the enactment of the zoning ordinance and hence qualifies as a prior nonconforming use in accordance with such a provision in the zoning ordinance. They also contend that the dump is operated in compliance with the health laws and ordinances by the daily land fill method.
Appellants’ principal contention before this Court is that the dump was being operated in violation of Ingham county sanitary regulations at the time of the passage of the zoning ordinance and hence could not qualify as a lawful nonconforming use. They cite and rely on Troutman v. Aiken, 213 Ga 55 (96 SE2d 585); Rapasadi v. Phillips, 2 App Div 2d 451 (156 NYS2d 746).
In these cases it is clear that the use of the property prior to passage of the ordinance was unlawful. This Court, of course, recognizes that a use maintained in the face of a lawful prohibition cannot become a legal nonconforming use. See Township of West Bloomfield v. Chapman, 351 Mich 606.
See, also, Leigh v. City of Wichita, 148 Kan 607 (83 P2d 644, 119 ALR 1503).
In the instant situation, however, we note that the county health regulations were passed in 1948, that the zoning ordinance was passed in 1954, that the county health department did not contact defendants or object to their method of operation until March, 1957, and that no action was taken to have the dump declared unlawful prior to commencement of the present suit in October, 1957. The proofs also show that when the county health department finally contacted and instructed defendants as to the method of operation required, they promptly complied with all regulations. They were observing the regulations fully when this suit was instituted, and remained in full compliance therewith at the time decision was rendered in the trial court.
' From the testimony presented in this case, the most that could be deduced about the defendants’ operation in 1954 was that the method of handling garbage did not comply fully with the county health regulations. Plaintiffs point, however, to no ordi nance or statute forbidding the garbage operation itself as of the time of passage of the zoning ordinance. We do not believe that a violation of a provision of a regulatory ordinance necessarily destroys the lawfulness of the basic use where compliance with the regulation can be had on demand and where such compliance actually follows.
The circuit judge heard extensive testimony and, in company with the parties, visited and inspected the site. His opinion found as facts that defendants had proved a valid nonconforming use, that the operation as currently handled was not a public nuisance, and he dismissed the bill. In so doing he relied on Township of Kalamazoo v. Kalamazoo Garbage Co., 229 Mich 263, wherein this Court said (p 264):
“I cannot imagine a location more admirably adapted for the maintenance of a piggery than the one in question.”
The circuit judge said further in relation to the instant case:
“The proofs do not establish a health hazard. Phillip Shirley, director of division of sanitation, Ingham county health department, testified that he gave no instructions to defendants prior to March, 1957; that defendants are obeying all county and State regulations; no violations for the past year; one of the problems of the health department is the disposal of garbage; that the land fill is the best method outside cities; and that the land fill of defendants is the best operated one of the 3 in Ingham county. This testimony indicates that there was no equitable grounds for restraining the defendants from carrying on their business at the time of the filing of the suit nor at the time of trial.”
A review of this record justifies the findings of fact contained in the decree of the chancellor. He viewed the premises and heard the witnesses, and perforce we place much reliance upon his findings. Blough v. Steffens, 349 Mich 365.
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr,. Kelly, Smith, Black, Kavanagh, and Souris, JJ.> concurred. | [
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Black, J.
“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.” Lisenba v. California, 314 US 219, 236 (62 S Ct 280, 86 L ed 166), quoted in Blackburn v. Alabama, 361 US 199 (80 S Ct 274, 280, 4 L ed 2d 242, 248).
I hold that admission in evidence of defendant Hamilton’s confession deprived him of process due by our Constitution (1908) and criminal code §, to say nothing of the process that is due by supreme law.
Maurice ■ Hamilton and Victoria Hirmiz were charged in the first degree with having murdered Victoria’s husband, Aziz Hirmiz. They were tried together in Detroit recorder’s court. The jury found defendant Hamilton guilty of murder as charged and defendant Hirmiz “not guilty by reason of insanity.” Defendant Hamilton was sentenced to life imprisonment “without favorable recommendation.” He appeals to this Court upon leave granted.
Hamilton was born in and is a citizen of Iraq. He lived there until September of 1955, when he came to Detroit on authority of a student visa for the purpose of “learning to be a mechanic.” He could not speak English and had learned but few English words in the short time between arrival in Detroit and indictment there. Aged 19 at the time, he had never previously been “involved with the law.”
Mr. and Mrs. Hirmiz had been acquainted with Hamilton in Iraq. Mr. Hirmiz had been a neighbor, there, of Hamilton’s family. Mrs. Hirmiz had been a friend of Hamilton’s mother in Baghdad.
The homicide occurred during the night of February 9-10, 1956, in the Detroit apartment of Mr. and Mrs. Hirmiz. Mr. Hirmiz was found knifed to death. The police, called during the morning of February 10th, found his body in a bedroom of the Hirmiz apartment. They also found Mrs. Hirmiz in an adjacent room with her hands tied behind her and her feet tied to a table. She insisted that “a colored man” had entered the apartment and, after having killed her husband, that he tied her up in the manner described. Her story changed later.
Shortly after arrival of the police Hamilton and Mrs. Hirmiz’ brother, Azzawi Haisha, came to the apartment. The 2 defendants thereupon were arrested and taken to police headquarters for interrogation. There they were detained, incommunicado excepting as presently indicated, until each confessed. Mrs. Hirmiz’ confession was obtained by the police Saturday morning, February 11th. Implicating Hamilton as wielder of the knife, she said he was to be paid — or had been paid — by her for the homicide and that she had instructed him to tie her up for the purpose of supporting her first story. The police thereupon employed her confession to obtain Hamilton’s confession. He did not yield until Monday. His confession was recorded about 10 in the evening of that day, February 13th.
One Jamil Jalaba, friend of Mr. and Mrs. Hirmiz and of Hamilton, communicated the content of Mrs. Hirmiz’ confession to Hamilton. It is apparent from the record that Jalaba, doubtless in good faith, aided the police in bringing about Hamilton’s confession by talking repeatedly with Hamilton alone and in the presence of officers Areeda and Clinton, on 1 occasion for 2 hours. (The situation in such regard is much like that shown in Spano v. New York, 360 US 315 [79 S Ct 1202, 3 L ed 2d 1265], save only that there are incomprehensible voids in the record of what Jalaba told Hamilton.) According to officer Clinton (talking with Hamilton through Jalaba at conclusion of Hamilton’s confession), “He (Ham ilton) was firmly convinced that no matter what happened to him that the worst that conld happen would be that he would be or he would face deportation.” Much of this testimonial uncertainty is due, of course, to the necessary and steady employment of interpreters and the manifest difficulty of recording testimony properly, the Chaldean and Arabic dialects of important witnesses being different.
From this point forward the record discloses much dispute and uncertainty. If Hamilton is believed, he was mistreated scandalously by the officers between the Friday morning arrest and the time of the Monday confession. The officers testified to the contrary, and at detailed length. We need not, however, evaluate these typically disputed versions of the interrogation period, the following facts having been clearly established.
From the time of arrest February 10th, and continuously until his confession was obtained and recorded February 13th, defendant Hamilton was interrogated periodically by police officers — without pretense of effort on their part to comply with quoted section 13 of the criminal code — for the purpose of obtaining from him a confession of guilt. Even when Mrs. Hirmiz’ confession was obtained the police did not comply with the requirements of said sections 13 and 26 of the code. Hamilton was not arraigned, 'or taken before a magistrate, until Tuesday morning, February 14th. During the 50-odd hour period between the 2 confessions an attorney sought to see Hamilton professionally. The attorney was refused access, not once but several times, having been sent first to one officer and then to others on various floors of the headquarters building. He finally gave up. The only excuse given by the State for such refusal of access is one of suggestion that the attorney was soliciting business; that the officers had a right to find out, as a condition of access as sought, the nature of the attorney’s retainer and identity of the person who paid him and arranged for his services, and that the attorney was unable to satisfy the officers that he did represent Hamilton or had been engaged properly in Hamilton’s behalf. And the principal excuse for failure to comply with requirements of the 2 quoted sections of the code is that “he could not have been arraigned Saturday afternoon, or Sunday, or on Monday, February 13th, a holiday.” No testimony supports this last representation. Neither does the law.
Thus we face a recurrent question of due process of law; whether in the presented circumstances Hamilton’s confession of guilt — of first degree murder — ■ was shown by the prosecution as having been voluntary and so receivable in evidence. I hold it was-not, and refer particularly to said sections 13 and 26 in conjunction with the reasoning of Mallory v. United States, 354 US 449 (77 S Ct 1356, 1 L ed 2d 1479), and Upshaw v. United States, 335 US 410 (69 S Ct 170, 93 L ed 100). That reasoning should be inosculated with quoted sections 13 and 26 quite as firmly as if written therein.
Hamilton’s continued detention was unwarranted and so unlawful under these sections. It was unlawful because the delay was unnecessary, and unlawful because its manifest purpose was that of “sweating” a confession after the officers were fully enabled to complain and arraign according to the requirements of said section 26. His unjustifiably continued detention, coupled as it was with undisputed proof that counsel engaged for him was, during such detention, refused even limited conference, amounted to a denial .of due process. Said sections 13 and 26, and Rule 5(a) of the Federal rules of criminal procedure , are quite alike and equally mandatory. Each requires that the person arrested be taken “without unnecessary delay” before a judicial officer for the purposes of complaint and proceedings subsequent thereto.
This does not mean that an arrested person cannot be “booked” and questioned for such time of “brief delay” as presented circumstances fairly require in order to determine the immediate question of release or complaint (Mallory, supra, at pages 454, 455 and Cicenia v. LaGay, 357 US 504, 509, 510 [78 Ct 1297, 2 L ed 2d 1523]). It does mean that an unnecessary and so unlawful delay of compliance with either of said sections 13 and 26, when done for prolonged interrogatory purposes and without proven justification of the delay, renders involuntary and so inadmissible whatever confessional admissions the detained person may have made while so unlawfully
Here the delay (from and after, at least, the time of Mrs. Hirmiz’ confession) was “unnecessary” as a matter of law. It admits of no defense on account of the claimed intervention of the half and whole holidays of Saturday, Sunday and Monday. Hamilton should have been taken before a magistrate no later than Saturday afternoon, immediately following the confession of his codefendant. And it will not do so say or infer that the magisterial courts of Wayne county were closed and remained so until the following Tuesday. Magistrates of Michigan are, for the purposes of said sections 13 and 26, on legal duty at all times; Sunday, holidays or no. See Linnen v. Banfield, 114 Mich 93, 97, wherein pertinent, statutes yet in effect (How Stat § 1591; CLS 1956,. §435.101 [Stat Ann 1957. Rev §18.861], and How Stat § 7250; CL 1948, § 604.12 [Stat Ann _§ 27.471]) were construed as keeping our magisterial courts continuously open for such purposes. There is, finally, no proof here tending to show that not one of the many magistrates of Wayne county was available during such intervening days. It is not even shown that an unsuccessful effort was made during the time between the respective confessions to invoke the indicated services of one or more of them.
This construction of our rules of criminal procedure will bring them to necessitous concord with corresponding features of Federal Rule 5(a). Too, it will mean that constitutional due process means the same thing in Michigan, to an arrested person, whether he is charged or to be charged with violation of State or Federal law. We have our own guarantee of due process. Lot us attend its enforcement.
Admittedly, some of these conclusions collide with the “question-of-fact” doctrines found in cases like Mooradian v. Davis, 302 Mich 484; Oxford v. Berry, 204 Mich 197; Leisure v. Hicks, 336 Mich 148; and Hammitt v. Straley, 338 Mich 587. But such doctrines now, considering intervening decisions of the Supreme Court found in recent annotations, 1 L ed 2d 1735, to which should be added Crooker v. California, 357 US 433 (78 S Ct 1287, 2 L ed 2d 1448); Spano v. United States, supra, and Blackburn v. Alabama, supra, live perilously at best. No longer, our alternative task being that of determination whether Hamilton’s confession was admissibly voluntary as a matter of federally guaranteed due process, may we escape the duty of independent examination of the record; apart from fact-findings below. Norris v. Alabama, 294 US 587 (55 S Ct 579, 79 L ed 1074); Spano v. New York, supra. Such Federal question is squarely before us unless, of course, this Court concludes in lieu of its determination that Hamilton’s confession was erroneously received in evidence by the standards of Michigan law.
Here, as in Cicenia, supra , a feeling of “strong distaste” generates from the protracted detention in violation of law of this youthful — and ill if not terrified — subject of another country; one whose comprehension of English words and of American processes of justice — including the consequences of such processes — must have been substantially nil, much as if he were shown as being of loiv or uneducated mentality; meanwhile denying access of counsel to him, all for the record-evident purpose of extracting a confession of guilt of murder in the first degree. As in McNabb, supra, we can and should deal with such a situation prospectively under our supervisory powers, guarding thus against more actual or inferential judicial sanction of procedures which are violative either of section 13 or section 26. At the same time we can and should assure to this accused person the process that is due him.
My conclusion upon this record was announced, in the preamble above. The trial judge erred in receiving, over objection, defendant Hamilton’s confession of guilt. On that account I would reverse the judgment of the trial court and order that Hamilton be tried anew.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, JJ., concurred. -
The Constitutional reference is to article 2, § 16. The statutory-references read as follows:
“A peaee officer who has arrested a person without a warrant must without unnecessary delay, take the person arrested before the most convenient magistrate of the county in which the offense was committed, and must make before the magistrate a complaint, stating the offense for which the person was arrested.” Section 13, chapter 4, code of criminal procedure (CL 1948, § 764.13 [Stat Ann 1954 Eev § 28.872]).
“Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.” Section 26, chapter 4, code of criminal procedure (CL 1948, § 764.26 [Stat Ann 1954 Eev § 28.885]).
The prosecuting attorney advises that “Neither (referring to both .defendants) spoke English, and though both spoke Arabic, the native tongue of each was Chaldean, a dialect used in Iraq.”
The prosecuting attorney, characterizing Jalaba’s testimony, tells us:
“It is readily apparent from Jalaba’s testimony that he was eager to assist Hamilton, and went to police headquarters to see appellant after talking to a lawyer and learning that the latter would not act without authority from Hamilton’s father because appellant was a minor.”
Later in the day Jalaba talked by long distance with someone in Baghdad. It is not clear whether the person talked with was or was not one of Hamilton’s parents.
Hamilton’s appendix had been removed some 10 days prior to the date of the homicide. Whether on account of opening of the surgical Incision, as Hamilton claimed in his testimony, or whether he "went into a convulsion” as testified by one of the officers, he was hospitalized for several hours — by order of the police — during the Sunday of his detention.
Tlie attorney testified:
“Q. Then it was 4 or 4-1/2 hours you spent chasing around police headquarters trying to see Maurice Hamilton, is that correct?
“A. That is correct.”
“We hold that this case falls squarely within the McNabb ruling [McNabb v. United States, 318 US 332 (63 S Ct 608, 87 L ed 819)] and is not taken out of it by what was decided in the Mitchell Case [United States v. Mitchell, 322 US 65 (64 S Ct 896, 88 L ed 1140)]. In the McNabb Case we held that the plain purpose of the requirement that prisoners should promptly be taken before committing magistrates was to check resort by officers to ‘secret interrogation of persons accused of erime/ We then pointed out the circumstances under which petitioners were interrogated and confessed. This was done to show that the record left no doubt that the MeNabbs were not promptly taken before a/judicial officer as the law required, but instead were held for secret questioning, and (p 345) ‘that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made.’ The McNabb confessions were thus held inadmissible because the MeNabbs were questioned while held in 'plain disregard of the duty enjoined by congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw, supra, at pages 412, 413.
Having quoted said Rule 5(a), the court in Mallory said of it 452) :
“This provision has both statutory and judicial antecedents for guidance in applying it. The requirement that arraignment be ‘without unnecessary delay’ is a compendious restatement, without substantive change, of several prior specific Federal statutory provisions. (E. g., 20 Stats 327, 341, 342; 48 Stat 1008; also 28 Stat 416.) See Dession, The New Federal Rules of Criminal Procedure, 55 Yale LJ 694, 707. Nearly all the States have similar enactments.” (For Rule 5(a) see 18 USCA, Federal Rules of Criminal Procedure, p 115; see, also, 327 US 821, 835.—Reporter.)
“The duty enjoined upon arresting officers to arraign 'without unnecessary delay’ indicates that the command does not call for mechanical or automatic obedience. Circumstances may- justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession.” Mallory, supra, p 455).
“No person shall he compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without •due process of law.” (Const 1908, art 2, § 16).
“We share the strong distaste expressed by the 2 lower courts over the episode disclosed by this record. Cf. Stroble v. California, 343 US 181, 197, 198 (72 S Ct 599, 96 L ed 872). Were this a Federal prosecution we would have little difficulty in dealing with what occurred under our general supervisory power over the administration of justice in the Federal courts. See McNabb v. United States, 318 US 332 (63 S Ct 608, 87 L ed 819).” Cicenia v. LaGay, supra, pp 508, 509. | [
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Kavanagh, J.
Plaintiff, special administratrix of the estate of James C. Young, deceased, commenced suit to recover damages from the principal defendant for the death of plaintiff’s decedent. Suit was instituted by attachment against the property of principal defendant, but no personal service was obtained. However, such principal defendant appeared specially by her attorney, seeking a dissolution of the writ of attachment. An order was entered dissolving the writ. An amended declaration seeking to recover damages from the principal defendant by reason of such defendant having negligently and carelessly caused the death of plaintiff’s decedent was filed. The attorney for the principal defendant entered a general appearance and an answer. Later the appearance and answer were withdrawn.
Default judgment in the amount of $11,500 was entered in said case in favor of plaintiff and against the principal defendant under date of April 23,1959, based on count 2 of the amended declaration. This amended declaration alleged under paragraph 4 thereof as follows:
“That on November 26, 1958, plaintiff’s deceased and defendant were on opposite sides of the outer liquor bar in the Maple Island Tavern in Cedar Creek township, Muskegon county; plaintiff’s deceased, not being an employee of defendant, being seated on a bar stool and defendant standing on the service side of said bar. That the defendant did, then and there carelessly, negligently, handle a certain 22 caliber revolver in such a manner as to cause the same to become accidently discharged, she not pointing said gun at plaintiff’s deceased intentionally.”
In addition the amended declaration alleged that by reason of careless and negligent conduct on the part of defendant, said gun was discharged, striking plaintiff’s decedent. It alleged the exercise of due care for his safety and freedom from contributory negligence on the part of plaintiff’s decedent. It also alleged the injuries resulted in the death of plaintiff’s decedent on November 28, 1958. The amended declaration further alleged loss of support for the widow and 2 children, medical, hospital, funeral and burial expenses, and loss of earnings, and claimed a judgment in the amount of $20,000.
Following entry of the judgment a writ of garnishment was issued out of the circuit court for the county of Muskegon against the Michigan Surety Company, affiant claiming that Michigan Surety Company, by virtue of policy number ML9989, insuring Olga Nina Morrall respecting operation of a tavern at 3471 Maple Island road, Muskegon county, had property, money, goods, chattels, and effects in its hands and under its custody and control belonging to the principal defendant.
Under date of April 29, 1959, general counsel for garnishee defendant filed a written disclosure denying that Michigan Surety Company was in any way or manner indebted to the said Olga Nina Morrall in any sum or amount whatever.
Attorney for plaintiff made demand for personal examination of the garnishee defendant, requesting that garnishee defendant produce before the court insurance policy number ML9989. On May 1, 1959, Michigan Surety Company filed an answer disclosing the existence of the policy, claiming the said policy was an owners’, landlords’, and tenants’ liability insurance policy and therefore was a protection against the ordinary hazards incidental to the ownership, maintenance, and use of the aforesaid premises. Michigan Surety Company further alleged that the plaintiff’s decedent was an employee of defendant Olga Nina Morrall on March 26, 1958. The answer further claimed that there was no liability under the aforesaid policy for any act, either wilful or negligent, by the defendant and insured, Olga Nina Morrall herself.
A petition for order defining statutory issue in garnishment was filed and noticed for hearing. A motion to vacate the judgment in the principal case was then filed by Michigan Surety Company and noticed for hearing on the same date.
Michigan Surety Company in its motion to vacate judgment claimed that the court had no jurisdiction over the defendant Olga Nina Morrall because she had never been served with process in the suit; that the attachment suit was a proceeding m rem and that when the writ was dissolved the res was destroyed and the court lost jurisdiction over the defendant without personal service of the process upon her; that the attorney for defendant, by withdrawing the appearance and answer, caused jurisdiction to be lost; and that said defendant’s attorney was without authority to appear for said principal defendant and without authority to accept service of process for such defendant in the suit.
The plaintiff replied to the motion to vacate judgment by asserting that a writ of attachment is also a summons, and that the acceptance of service of the writ by the authorized attorney for the principal defendant conferred jurisdiction on the court so that a personal judgment could be entered. Principal defendant’s attorney testified at the hearing on the motion that he was authorized by principal defendant to enter the general appearance and answer and to withdraw same.
Following the hearing, the motion to vacate the judgment was denied by the trial court. Appropriate order with reference to the motion to vacate was filed. The hearing on the statutory issue in garnishment was ordered to be confined to the issues raised in the writ of garnishment, the disclosure and the answer. At the hearing a stipulation was then entered between attorneys for the plaintiff and the attorney for the garnishee defendant, which provided as follows:
“It is hereby stipulated * * * that the liability of garnishee defendant to plaintiff in the above matter may be decided by the court solely on the basis of briefs submitted by the respective parties and those facts and matters of record set forth below.
“It is further stipulated that all allegations of fact contained in plaintiff’s amended declaration,, particularly paragraph 4 thereof, may be taken as true and admitted, together with the facts that at the time complained of principal defendant was the owner and the operator of the Maple Island Tavern and the attached insurance policy was in full force and effect.
“It is further stipulated that the court may consider in evidence for the purpose of determining the liability of garnishee defendant the transcript of the examination in court of the garnishee defendant, and the original judgment rendered against principal defendant.
“It is further stipulated that plaintiff’s motion to limit the statutory issue is renewed and that the court may consider in connection therewith the original written motion of plaintiff together with the affidavit and photostats of letters attached thereto.”
The pertinent portions of the insurance agreement were as follows:
“Coverage A — Bodily Injury Liability
“To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason, of the liability imposed upon the insured by law for damages, including damages for care and loss of services, because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the hazards herein-after defined. * * *
“Division 2. — Premises—Operations, ■ Owners’, Landlords’ & Tenants’. • ' ‘
“The ownership, maintenance, or use, for the purposes stated in the declarations, Of premises, or property and all operations occurring during the policy period which are necessary or incidental thereto including pick-up and delivery, installation, servicing, removal, or demonstration, and accidents (except accidents due to misdelivery) which occur after completion or abandonment of operations, and arise out of pick-up or delivery operations or the existence of tools, uninstalled equipment, and abandoned or unused material. *■ * *
“6. Assault and Battery
“Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.”
This latter provision was under the definition' of “hazards” and not under “exclusions.” The remain ing provisions of the policy are the usual ones in an owners’, landlords’, and tenants’ liability policy.
' The court in its opinion found that under the terms of this policy the insurance company would have been liable to the principal defendant under the stipulated facts submitted to the court. He further found that the judgment in the principal case was based upon count 2 of the amended declaration and particularly paragraph 4 thereof, which presented a question of careless and negligent handling of a revolver causing the same to be accidentally discharged, and that the principal defendant did not point said gun at plaintiff’s decedent intentionally; and that such a judgment having been obtained against her, she could maintain an action under the policy to compel the insurance company to indemnify her. He particularly found that the shooting was accidental under the stipulation and that it was entirely dehors this record to mention manslaughter. He, therefore, found that the Michigan Surety Company did have money in its hands subject to garnishment. Judgment in the amount of $10,000 was entered against the garnishee defendant and in favor of plaintiff.
Garnishee defendant appeals to this Court, stating the question as follows:
“Is an insurer issuing an owners’, landlords’, and tenants’ policy insuring against the hazards necessary or incidental to the operation of the premises liable to the insured when the insured pointed a loaded revolver at another person, the revolver being discharged mortally wounding such person, and also subject to garnishment based on a judgment obtained by the administrator of the decedent’s estate!
“The trial court answered ‘Yes.’
“We contend the answer should be ‘No.’ ”
It is to be noted that appellant in its statement of the question attempts to bring back into the case for consideration the assault and battery clause of the insurance policy. This defense was not before the trial court, having been stipulated out of the case by counsel for Michigan Surety Company when he stipulated that the shooting had been one of negligence and that the gun was not intentionally pointed by the principal defendant.
It is to be noted that the trial judge in his opinion indicated that reference to manslaughter conviction by counsel for garnishee defendant in his brief in the trial court was an improper fact statement, and, because of the stipulation that the shooting was accidental, the reference to manslaughter was outside the record and could not be considered.
An examination of the briefs, disclosures, records, and stipulation indicates that counsel for garnishee defendant was not relying upon this defense in the lower court, and that if he had in mind relying upon it he clearly stipulated this defense out of the case. The failure to raise a question in the lower court precludes the Supreme Court considering it on appeal. Birmingham Park Improvement Assn. v. Rosso, 356 Mich 88; Churukian v. LaGest, 357 Mich 173; Poelman v. Payne, 332 Mich 597.
The stipulated facts of an accidental or negligent injury inflicted by the principal defendant, while she was the owner and operator of a tavern and while the policy of insurance was in effect, precludes the defense of assault and battery. The question of intent and/or wilfulness is an element of assault and battery. Tinkler v. Richter, 295 Mich 396; Cogswell v. Kells, 293 Mich 541. This element has been stipulated out of the case by garnishee defendant in stipulating that Mrs. Morrall was not intentionally pointing the gun at plaintiff’s decedent. Under the stipulated facts, the accident complained of did arise out of hazards defined in the policy, that is, “the ownership, maintenance, or use, for the purposes stated in the declaration, of premises, or property and all operations occurring during the policy period which are necessary or incidental thereto.” Clearly the reference to “incidental thereto” is to “such ownership, maintenance, or use.” Since the ownership and operation of the premises as a tavern had been directly stipulated, there can be no question that liability under the policy would have occurred if the principal defendant brought an action against garnishee defendant. Therefore, even under the theory of the garnishee defendant, that such liability must exist before a garnishment can be maintained, there is liability on the part of the garnishee defendant.
The trial court was correct in finding such liability, and the judgment entered against the garnishee defendant is affirmed, with costs in favor of plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred. | [
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Durand, J.
The respondent was convicted of a violation of section 9175, How. Stat., which reads as follows:
“Every person who shall knowingly have in his possession any engine, machine, tool, or inclement adapted and designed for cutting through, forcing, or breaking open any building, room, vault, safe, or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid, shall be, on conviction thereof, punished by imprisonment in the State prison not more than ten years, or by imprisonment in the county jail not more than one year, or a fine not exceeding $1,000, or both such fine and imprisonment, at the discretion of the court."
The respondent insists that no conviction can be had under this statute unless the information charges, and the evidence shows, the particular building intended to be broken into, and who is the owner of it. This contention cannot be sustained. If it is necessary, before a conviction can be had under this statute, to establish the location and ownership of the particular building intended to be broken into, it would be necessary in most cases to-wait until the person having such tools in his possession with the intent to use them feloniously is caught in the very act of burglary, which is another and entirely distinct offense. Such a construction would render this statute practically nugatory, and would entirely defeat its purpose and object. This statute was enacted to make the crime of burglary more infrequent, and, as far as possible, to prevent it. It is aimed at that class of criminals who provide themselves with implements to make the commission of the crime of burglary easy, and who go about the country from place to place with the intent to use them whenever they find an opportunity to do so. The possession of such implements, and a general intent to use them in the felonious manner mentioned in the statute, is all that is necessary; and in this case the showing of such an unlawful possession and felonious intent on the part of the respondent in the county of Ionia was all that was-required to be shown. It was not necessary to allege or prove any intent to use them in a particular place, or for a specified purpose, or in any definite manner. In this respect the offense charged is similar to that of having in possession counterfeit bills, with intent to use them as true, and in such a case it is never necessary to aver or prove the time, place, or manner in which the bills were intended to be uttered. Com. v. Tivnon, 8 Gray, 375; Archb. Crim. Pl. 513. The crime is complete when it satisfactorily appears that a person is found to be knowingly equipped with tools and implements adapted and designed for burglarious purposes, he knowing the same to be so, and haying the felonious intent to employ them for that purpose when an opportunity satisfactory to him presents itself, or when he finds a building or place sufficiently unguarded to prompt him to take the risk of an attempt.
There is no error in the record, and the judgment is affirmed.
The other Justices concurred. | [
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McGrath, C. J.
This is habeas corpus to inquire into the cause of the detention of Bertha Gates at the State Industrial Home for Girls at Adrian.
The mittimus, .issued by a justice of the peace, recites that she was complained against before said justice for larceny; that a trial was had, and the cause—
“ Submitted to the jury, and, after being out for a time, returned, and said they find that the said Bertha Gates is guilty in the manner and form as charged against her, and is of the age of ten years and eight months.'”
The statute (3 How. Stat. § 9836) provides for the reception at said industrial home of girls over the age of 10 years and under the age of 17 years, and that—
“It shall be the duty of all courts and magistrates •sentencing girls to said home to certify to the keeper of said home the age of the person so committed, as.nearly .as can be ascertained by testimony taken under oath before such court or magistrate, or in such manner as the court •or magistrate shall direct.”
Section 9895 provides that the report of the county agent shall be attached to the mittimus.
The return shows that the detention is upon the naked mittimus, which contains no certificate as to age, nor is the report of the county agent attached thereto. The •statute contemplates a finding as to the age of the person by the magistrate, based upon the testimony taken under oath before him, or taken under oath in such manner as he shall direct, and that he shall certify such age to the keeper. No mere recitation in the mittimus that the jury “said they find” answers the requirement of the statute.
The prisoner must be discharged.
The other Justices concurred. | [
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Long, J.
Tbis cause was tried before tbe court witb out a jury, and findings of fact and law made. Judgment was rendered .in favor of the defendants.
It appears that on September 9, 1889, the parties to this suit, together with M. D. Baldwin and J. B. Rhodes, formed a copartnership under the name of Baldwin, Rhodes & Co., and engaged in the manufacture and sale of saw swages. They continued in business to April 6, 1891. The plaintiff was acting in the capacity of agent for the firm in the sale of swages, and was to receive a com-mission from the firm of 33£ per cent, upon all swages sold by him, after and when each swage was fully paid for. Upon April 6, 1891, plaintiff sold all his interest in said copartnership to the defendants in this suit, who are two of the copartners in said firm, for the sum of $1,700, giving a bill of sale of such interest, which, by its terms, conveys all and every interest the plaintiff had in the firm of Baldwin, Rhodes & Co.
The court found that the plaintiff sold swages to Sallette & Chittenden and the Poplar Bluff Lumber Company, upon which he was entitled to receive commissions of $25 each; that he also sold swages to S. Spangler and to the Ouelette-Ourphy Lumber Company, upon which he was entitled to receive $15 each, under his contract with Baldwin, Rhodes. & Co.; that said swages were not paid for on April 6, 1891, but were afterwards, and before the commencement of this suit; that the plaintiff sold a swage to B. T. Ratlibun, which has not yet been paid for; that at the time the suit was commenced the firm of Baldwin, Rhodes & Go. had fully paid the plaintiff his commissions for the sale of swages to Sallette & Chittenden, the Poplar Bluff Lumber Company, S. Spangler, and the Ouelette Curphy Lumber Company, by advancements, and by casb collected and retained by Mm which belonged to the firm, prior to April 6; these cash items being as follows:
To cash for trees....................................$ 2 25
“ “ from Louch.........................-...... 4 00
“ “ to Mrs. Lobdell, by daughter.........-...... 10 00
“ cartage.......................................... 25
“ cash____________________________________________ 40 00
“ “ from Schultz.....................-.......... 12 00
“ 1 anvil...................................-.....- 5 00
“ one-half Campbell note.......................... 12 50
“ cash, freight, Corditt............................ 1 72
That the several items above specified were all charged by the defendants against the plaintiff generally, but that it was expressly agreed between the firm and the plaintiff that said several items might be deducted from plaintiff's commissions for the sale of swages. It was also found that the firm of Baldwin, Rhodes & Co., since April 6, 1891, had paid nothing whatever to the plaintiff for or on account of commissions earned by him in the sale of swages.
As conclusions of law the court found that the plaintiff was not entitled to recover against the defendants for his claimed commissions upon sales to the parties above named, for the reason that such commissions had been paid by the firm prior to April 6, 1891. As to the sale to Mr, Rathbun, the court concluded that no recovery could be had, for the reason that the firm had not yet received pay for the swage.
When the findings were filed, plaintiff's counsel requested the court to amend them by including therein the following statements:
“ The books of account of said firm of Baldwin, Rhodes & Co. were kept by the defendant Frank A. Baldwin,- and each member of the firm was charged in account with the sum of one thousand dollars ($1,000) as capital stock, and credited with various amounts paid or credited thereon from time to time. All of tbe members of tbe firm were charged, from time to time, with various items in their respective accounts, which were offset in the accounts by credits whenever the respective parties became entitled to credits in their dealing and accounting with the firm. Each and every one of the matters and items which are found and treated as payments by the firm of Baldwin, Rhodes & Co. to the plaintiff of his commissions, as set forth in the findings herein, are matters for which it is claimed on the part of the defendants that the firm of Baldwin, Rhodes & Co. had made advances or paid money to or for the plaintiff at his request, and the same were charged to him upon the books of said firm, in the plaintiff’s general account with said firm upon said books, at and prior to the time that the plaintiff sold and transferred his interest in said firm and its effects to the defendants, on the 6th day of April, 1891.’’
This was refused, and exception taken. Exceptions were also taken to the findings:
1. That Baldwin, Rhodes & Co. had fully paid the plaintiff his commissions upon the sale of swages to Sallette & Chittenden, the Poplar Bluff Lumber Company, S. Spangler, and the Ouelette Curphy Lumber Company.
2. That it was expressly agreed between the firm of Baldwin, Rhodes & Co. and the plaintiff that the several items set forth in the findings might be deducted from plaintiff’s commissions.
A specific exception was also taken to the items heretofore set forth, and also to the conclusions of law and the judgment.
Prank A. Baldwin, one of the defendants, was called as a witness, and asked:
“ Q. Now, during the time Mr. Lobdell was selling swages under that arrangement, did he make any application to the firm for advances on account of his commissions?
“A. He did, from time to time, make application, on the ground that he had not money enough to go out and pay ,his expenses, and he wanted money advanced; and he said that any advances should be deducted from his commissions as they came in, taking his first commission?. * * * Those items were kept separate. There was an arrangement — a positive agreement — made with them all that all moneys that I advanced should be charged up to his commissions. I was the general manager of the business of Baldwin, Rhodes & Co.”
Some other testimony of like character was given by the defendant Tuthill. It is said, however, that defendant Baldwin corrected his testimony under cross-examination, by saying that the advances should be deducted.out of any money that might come to him, commissions or dividends, or any money that might come to his credit. We cannot, however, weigh this testimony, or examine into it, and say that upon it we might have found the fact different from the conclusion reached by the circuit judge. All special findings of fact by the trial court are to be considered in the nature of a special verdict, and, if the evidence has some tendency to support the findings, they are controlling. Young v. Taylor, 36 Mich. 25; Burk v. Webb, 32 Id. 173; Shelden v. Dutcher, 35 Id. 10. The same might be said of the special exceptions taken to the different items of the above account. If the firm of Baldwin, Rhodes & Co. or the defendants had authority to deduct these advances, and also the different items of the account, from plaintiff’s commissions, they were properly deducted, and the court was not in error in making the deduction. We find some evidence to support that finding.
It is said, however, that the transfer of the plaintiff’s interest in the effects and business of Baldwin, Rhodes & Co. to the defendants operated as a dissolution of the firm; that the bill of sale amounted to an assignment only of plaintiff’s share of any surplus there might be in the firm assets after the firm debts were paid, and an accounting-had as to each member of the firm; that, therefore, the questions here could only be disposed of upon a general accounting, which must be had in a court of equity. This is not in accordance with the terms of the bill of sale, by which the plaintiff sold and disposed of to the defendants all his rights and interests in the firm property and effects. He had no further rights therein, except to have paid over to him any commissions which he had earned upon the sale of swages before that time, and for these he was to be paid only when the same were paid in to the firm; and, the court below found that even these amounts had been advanced to him under an arrangement with the manager of the firm's business, one of the defendants in this case. The plaintiff is not in a position to assert that the firm was dissolved by his retirement from it. He was paid his share and retired. If the other partners concluded to go on with the business, he could raise no objection. The firm owed him nothing, except to pay over the commissions which he had before that time earned, and these were certain in amount, and, according to the testimony of Frank A. Baldwin, had been fully paid. He is not entitled to an accounting, and the court very properly refused the findings of fact tendered by his counsel. As this must dispose of all the other questions raised, we need not discuss them.
Judgment is affirmed, with costs.
The other Justices concurred.
The bill o£ sale contained the following clause: “ Reserving, however, my right to certain commissions on the sale of swages made by me, and unpaid for at this date, and which commissions said Tuthill and Baldwin agree to pay when said commission orders are paid.”
Counsel cited in support o£ this contention: 5 Wait, Act. & Def. 186; 17 Amer. & Eng. Enc. Law, 1099; Learned v. Ayres, 41 Mich. 677; Hutchinson v. Dubois, 45 Id. 148; Glynn v. Phetteplace, 26 Id. 383; Davis v. Merrill, 51 Id. 480; Gardiner v. Fargo, 58 Id. 72. | [
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] |
Durand, J.
This cause was commenced in the circuit court for the county of Antrim, in chancery, by sworn bill of complaint, signed by William L. Drayton and Hattie A. Drayton, as complainants, for the purpose, among other things, of having a certain sheriff’s deed on statutory sale on the foreclosure of a real-estate mortgage set aside, and the foreclosure proceedings declared void; and also for the purpose of having the said mortgage, and a promissory note given therewith, declared satisfied and canceled. Before the proofs were taken, complainant William L. Drayton died, and his sons, Charles E. and Ben S. Drayton, were substituted in his stead as complainant^. The record shows that, after prolonged negotiations, one John W. Willis, on November 12, 1884, concluded a purchase from the defendants, Chandler & Taylor, of a second-hand saw-mill, boiler, and engine for $1,600,'payable according to three promissory notes executed, by John W. Willis and Nancy Willis, his wife, to said Chandler & Taylor on October 15, 1884. One of the notes-was for $200, due January 1, 1885; one for $600, due April 1, 1885; and one for $800, due January 1, 1886, — with 10 per cent, interest. As security for the payment of these notes,. John W. and Nancy Willis, on November 12, 1884, executed a chattel mortgage for $1,600 on the saw-mill, boiler, engine, and appurtenances; and on the same day Nancy Willis executed to Chandler & Taylor a mortgage for $1,600 on certain real-estate owned by her, which mortgage was also given as security for said notes. On the same day William L. Draytonexecuted to Chandler & Taylor his note for $800, due April 1, 1886; and, as security for the payment thereof, he and his wife, Hattie A. Drayton, executed the mortgage which was- subsequently foreclosed by advertisement, and which this bill is filed to set aside as having been satisfied, and which is the subject of the contention in this case. The parties do not agree fully as to the real consideration, or upon what contingency the mortgage was to become operative, and there is nothing in this note or mortgage to indicate what the real consideration for them was, but it is entirely apparent to us from the record that they were given as further and collateral security for the payment of the debt from Willis to Chandler & Taylor. At the time of making the contract for the purchase of the mill and other machinery from Chandler & Taylor, Dray-ton was the owner of land upon which stood timber of more or less value, which he desired to have sawed up; and the fact that Willis was to set up this mill and machinery upon Dray-ton's land, and to saw up the Drayton timber, was undoubtedly the principal cause which induced Drayton to give the mortgage referred to, and, in addition, Chandler & Taylor declined to sell Willis this property without the additional security that the Drayton mortgage furnished.
After the purchase of the mill, Willis caused it to be set up upon the Drayton land, and did some sawing afterwards, but not for a very great length of time, when he finally abandoned it. Chandler & Taylor then took possession of this mill and machinery under their chattel mortgage, but did not regularly foreclose the same, but such talk was had between the parties as finally resulted in the claim made by Chandler & Taylor that they took this mill as payment for the $600 note, including the accrued interest thereon, the first $200 note having been paid before that time by Willis. The record shows that Chandler & Taylor after-wards sold this mill and machinery to one Jones for $750. The last $800 note of the -original indebtedness from Willis to them, according to their claim, still remained due and unpaid.
No regular foreclosure and sale of the mill and machinery, which was taken and appropriated by them by virtue of the chattel mortgage held by them, had ever been made, or attempted to be made; no proceedings had been taken by them for the foreclosure of the Nancy Willis real-estate mortgage; and with this condition existing, and without any proceedings being taken or attempted by them looking towards the settlement of the equities existing between them and Willis or the Draytons, they treated the Drayton note and mortgage as a separate and distinct security, and one in which they alone had any interest. In pursuance of this view, they proceeded to foreclose the Drayton mortgage by advertisement in the usual form, and did foreclose it by a sale, which took place in pursuance of the usual statutory notice, on the 23d day of December, 1887. At this sale the Draytons made some objections in reference to the foreclosure by advertisement, but the sale was proceeded with, and the deed executed by the sheriff on that day.
At the hearing in the court below, the court did not determine whether the Drayton note and mortgage was intended as a guaranty of collection, or whether it was security for payment, as, in his view of the case, it was unnecessary to find that fact. His views were based upon the proposition that where a chattel mortgage is taken as security for a debt, and a party holding the chattel mortgage, under his power of seizure, takes the property and appropriates it to himself, it works a cancellation of the debt. He also held that in this case there was no sale such as was contemplated and required by the chattel mortgage; and that Chandler & Taylor, having taken the chattel-mortgaged property in their own hands, had no right whatever to call upon the Draytons for anything in addition. The decree was accordingly entered in favor of the complainants, granting them the relief prayed for, which was a cancellation of the alleged sale under the foreclosure of the Drayton mortgage, and also a cancellation of the note and mortgage as well.
From this decree the defendants appeal.
It is apparent from the whole record that the chattel mortgage, the Nancy Willis mortgage, and the Drayton mortgage were all given to secure the same debt, which was the debt existing from John W. Willis to Chandler & 'Taylor. The Draytons, who gave their mortgage as collateral security for the payment of this debt, were interested in the security assured by the other two mortgages. If, by a legal enforcement of those securities, enough had been realized to pay the debt, the Drayton mortgage would have been considered as paid; and if enough had not been obtained, or if for any reason the Draytons had been compelled to pay any portion of the debt, they would have been entitled to be subrogated to all the rights of Chandler .& Tajdor in those securities. The foreclosure of the Dray-ton mortgage by advertisement was a practical denial of all these rights. It was a denial of the contention made by the Draytons that no liability existed against them under their mortgage except upon the contingency claimed "by them in the bill, — that the property covered by the chattel mortgage should be destroyed by fire. Under these circumstances, the Drayton mortgage could not be properly foreclosed by advertisement, and that sale must be declared void. In this case the defendants should have proceeded to foreclose the Drayton mortgage in equity, where all the rights of the parties could have been equitably determined and protected. That the statutory foreclosure by advertisement is not adapted to cases where there are conflicting equities, which can only be properly considered and protected in a court of chancery, was clearly held by this Court in Dohm v. Haskin, 88 Mich. 144, and we consider that as the settled law of this State.
We tliink, however, that the learned circuit judge was in error, under the facts presented by the record in this case, in holding that the mere appropriation of the property covered by the chattel mortgage operated as a payment of the entire debt, and a full satisfaction of the Drayton mortgage. Drayton having assented to the sale, but no price having been agreed upon, we are of the opinion that the correct rule to apply in this case is that the defendants be held to an accounting with the complainants for the full value at the time of its conversion by them of the property covered by the chattel mortgage? and which was appropriated by them in violation of its provisions, and that such value shall be applied upon the indebtedness, for part of which the Drayton mortgage is collateral security. While the bill does not ask this specific relief, yet we consider it sufficient as a bill to redeem, and the prayer for general relief will be treated as a prayer to be allowed to redeem. This is in accordance with the doctrine asserted in Flanders v. Chamberlain, 24 Mich. 305, and is within the rule laid down by the Court in numerous cases. And equity, having once acquired jurisdiction, may retain it to give such full relief as will finally dispose of the controversy. This right is fully asserted in Whipple v. Farrar, 3 Mich. 436, and Miller v. Stepper, 32 Id. 194; and has been steadily adhered to in every other case where the question has arisen in this Court. We shall therefore hold this as a bill to redeem. The full amount of all payments must be allowed upon the indebtedness as of the time when made. The full value of the property covered by the chattel mortgage, and which we find was taken and unlawfully appropriated by tbe defendants, must also be allowed as payment on tbe indebtedness as of tlie time of tlie misappropriation, and such value is to be fixed by tlie court, to wliicb we will remand the case upon the evidence upon that point already taken in the case, and such further evidence in relation thereto as may be taken under his reasonable order for that purpose. The value of all property belonging to complainants which it shall be found by the proof was taken by the defendants at the time of the removal of the chattel-mortgaged property, as stated in the bill, shall also be allowed as payment upon the indebtedness. If any balance ■of said indebtedness shall then remain unpaid, such balance shall be a lien upon the property described in the Dray-ton mortgage, and which the court, in the exercise of its equitable power, shall order to be sold for suoli deficiency. In that case, however, the defendants should transfer to the complainants the real-estate mortgage given by Nancy Willis, and to which they are equitably entitled if they are to pay any of said debt, before proceeding to make sale for such deficiency.
The decree of the court below must be reversed, and the case remanded for further proceedings in accordance with the views stated. The defendants will recover the ■costs of this Court.
The other Justices concurred.
See Huyck v. Graham, 82 Mich. 353; Pritchard v. Kalamazoo College, Id. 587. | [
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Per Curiam.
This is an application for a mandamus to compel tbe payment of expenses incurred in tbe pursuit of one charged with an offense committed in tbe city of Detroit.
Tbe act creating the board of metropolitan police provides that—
“Whenever any crime shall be committed in said city, and tbe person or persons accused or suspected of being guilty shall flee from justice, tbe said board of police may, at their discretion, authorize any person or persons to pursue and arrest such accused or suspected person or persons, and return them to tbe proper court having jurisdiction oí the offense for trial." Section 8, Charter, p. 315.
The same section makes it the duty of the board—
“To audit and allow all bills for traveling expenses' incurred in the pursuit of criminals by members of the force or any other officer or person, and to present the same to the board of county auditors of Wayne county for payment, in all cases where criminals are charged with offenses committed in said city; and the said board of auditors shall in no case allow or cause to be paid by said county any bill or account for the pursuit or apprehension of criminals charged with or suspected of the commission of crime in said city, unless the said bill or account is presented by said board of police, and indorsed as allowed by the president and secretary thereof."
The case is ruled by People v. Board of Auditors, 13 Mich. 233. Section 21 of the act must be construed with section 8, and expenses incurred in the pursuit of criminals must be regarded as excepted from section 21.
The mandamus will issue as prayed.
Section 21 provides that “the necessary expenses incurred in the execution of criminal process for offenses charged to have been committed in the city of Detroit, and the maintenance of the police department hereby created within the said city of Detroit, shall be a city charge.” | [
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Grant, J.
Action of replevin in justice’s court. Judgment for plaintiffs for two dollars damages. Case taken to the circuit court by certiorari, where the judgment was reversed, and judgment entered for defendant for costs and an attorney fee of $15.
Defendant appeared specially in justice’s court, and moved to quash the proceedings, for the reason that no bond had been filed as required by law. The suit was commenced in the name of George W. Hopkins & Son as plaintiffs. The name of the son was not given either 'in the affidavit, Avrit, bond, or declaration. The' bond Avas executed by George W. Hopkins & Son as principals, and George W. Hopkins as surety. The justice returned that “plaintiffs, through their attorney, offered to amend or give a new bond; but the said attorney [for defendant] refused to accept the amendment, claiming it was no bond, and could not be amended.” Thereupon the justice overruled the motion to quash, and the defendant Avithdrew from the case.
The bond Avas irregular, but it might have been amended or a new bond filed. How. Stat. §§ 6856, 7631. The statute requires security additional to the pecuniary responsibility of the plaintiffs. One of several copartners, plaintiffs, is no additional security.
Defendant was under no obligation to accept an amended bond, or a neAV bond; nor did he waive any rights by refusing his consent thereto, and by insisting that the bond could not be amended. The justice should have directed either an amendment or a new bond, and given the plaintiffs reasonable time to furnish it, and, on their failing to -do this, he should have quashed the proceedings.
One other objection to the jurisdiction of the court was raised by certiorari, but, inasmuch as it was not made in the justice's court, it cannot now be considered. Wilcox v. Railroad Co., 45 Mich. 280.
Judgment affirmed.
The other Justices concurred. | [
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Long, J.
The bill in this case was filed September 21, 1885, to foreclose a mortgage given November 29, 1855, by Edward A. Franks and Mary E. Franks, his wife,, to the American Board of Commissioners for Foreign Missions, upon'land adjoining the Mission House on Mackinac island. The mortgage secured four promissory notes made by Edward A. Franks, the last of which matured September 13, 1859. There is no averment in the bill that any payment was ever made upon these notes, but upon the. notes themselves in evidence there are several payments indorsed, the last of which is dated August 18, 1870. It appears that on August 30, 1876, the mortgagee, for a valuable consideration, assigned all of these notes and the mortgage to Mary E. Franks, she becoming the owner and holder of them under such assignment. On September 14, 1878, Mary E. Franks gave to the complainant her own note for the sum of $1,-*075.40, payable on or before September 14, 1878, with interest at 10 per cent., payable annually. To secure the payment of this note, Mary E. Franks assigned to the complainant the above-described mortgage, in which assignment she guaranteed that there was due on said mortgage and accompanying notes the sum of $1,075.40. It also appears that on September 24, 1875, Edward A. Franks had executed aiid delivered his note to the complainant for $478.70, due in August, 1876, with interest at 10 per cent., and that on September 14, 1878, he had also executed and delivered to the complainant another promissory note for $596.70, due one day after date, with 10 per cent, interest. It was to take up and pay these two notes that Mary E. Franks made her note above mentioned, and assigned the mortgage. The assignment from Mary E. Franks to the complainant of said mortgage reserved, as exempt from the operation of the mortgage, a parcel of land supposed to contain about 16 acres granted by the United States to Edward A. Franks, and described as—
“The lot of land in the village of Mackinac upon which stands the ‘Mission House,’ so called, and surrounding the same, and adjoining private property on the west and south, containing 16 acres, more or less.”
The assignment also contained a provision that no proceedings should be had to foreclose said mortgage under two years from September 14, 1878. Indorsed on the back of the assignment, under date of September 14, 1878, is a writing of Edward A. Franks, the original mortgagor, to the effect that said mortgage was still a valid and subsisting lien upon the property described therein. No payments have been made to the complainant on the note of $1,075.40 given him by Mary E. Franks, nor has any portion of the mortgage debt been paid. The court below made a decree in the case, finding due upon the note of Mary E. Franks to the complainant to June 15, 1889, the sum of $1,884.85, and ordering a sale of the premises described in the mortgage, except this parcel exempted in the assignment to the complainant.
It appears that Edward A. Franks, the mortgagor, died January 24, 1881. The bill was amended by the order of the court after it had been filed, by adding the names of the heirs at law of Edward A. Franks, and making them parties defendant. Parties holding subsequent incumbrances were also made parties defendant. From the decree of the court below, Mary E. Franks alone appealed. It is stated here in open court that Mary E. Franks died in November, 1891.
The defense to the bill is, in effect, the plea of the statute of limitations, under How. Stat. § 8709 (Act No. 204, Laws of 1879), which provides:
“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after the last payment was made on said mortgage: Provided, however, that this act shall not be,, construed to apply to mortgages which have been due fifteen years or more, or the last payment upon which was made fifteen years or more prior to the passage of this act; but in all such cases no suit or proceedings shall be maintained to foreclose the same unless commenced within five years after this act shall take effect.”
This act took effect August 30, 1879. The mortgage was given November 29, 1855. The last payment was made upon it August 18, 1870. The statute of limitations would begin to run from the date of this last payment, and the 15 years would expire August 18, 1885. The bill was filed September 21, 1885, over a month after the expiration of the 15 years from the time of the last payment, and consequently any suit or proceeding upon it would be barred, as the mortgage is to be construed as falling within the proviso of this act. By the terms of this proviso, the act is not to apply to mortgages which had been due 15 years or more prior to the passage of the act, or where the last payment was made 15 years or more prior thereto. The last note which the mortgage was given to secure matured September 13, 1859, so that the 15 years after the mortgage matured would bring the time to September 13, 1874, which was prior to the passage of the act of 1879. The mortgage then falls within the proviso of that statute, and under it the mortgagor would have five years from the time the act took effect to commence foreclosure proceedings. The act taking effect August 30, 1879, foreclosure proceedings could be commenced at any time prior to August 31, 1884. On that date it would be barred under the proviso, of this statute. The bill was not filed until more than a year after the expiration of the five years. McKisson v. Davenport, 83 Mich. 211.
It is claimed, however, that the stipulation in the assignment by which the complainant agreed not to foreclose for two years from the date of the assignment, and the further stipulation that there was $1,075.40 due and payable on the mortgage, take the case out of this statute, and rebut the presumption of payment; that by this agreement Mrs. Franks recognized the old mortgage and notes as subsisting, valid obligations at the time of her assignment to the complainant; that her husband’s acknowledgment on that day as mortgagor operated to renew the mortgage so as to continue it in force for 15 years more; that Mrs. Franks’ assignment of the mortgage to the complainant, for the purpose of securing a debt, would constitute a mortgage of the old mortgage, and would extehd the old mortgage 15 years from the time this assignment was made.
We do not agree with this contention. The mortgage was 19 years past due when assigned. The 2 years provided for in the assignment expired September 14, 1880, and complainant waited 5 years and 7 days after that date before he filed his bill. The mortgage was assigned as security to the note of Mary E. Franks. The 15 years from the time of the last payment upon the mortgage had not yet elapsed when this assignment was made, and the mere fact that the mortgagor certified that there was $1,075.40 unpaid upon the mortgage at that time was not a promise upon the part of the mortgagor which renewed the mortgage and gave it new life from that date; its only effect being to estop the mortgagor from claiming that that amount was not due and payable at that time, when he might thereafter be called upon by the assignee of the mortgage to pay the Mary E. Franks note, upon her failure to pay it.
The case does not fall, as claimed by counsel for complainant, within the principle of Wallace v. Finnegan, 14 Mich. 170, and Blair v. Carpenter, 75 Id. 167. In the latter case there was a second mortgage given, and the contention was whether it was given as a payment to be applied on the first mortgage, and this Court held that it was intended as a payment, and that, therefore, the first mortgage was brought out of the bar of the statute'by the payment. In the present case it is not claimed that any payment was made upon the mortgage, but that the mortgagor simply certified that at a certain date there was a certain amount due upon the mortgage. This would not operate to renew the mortgage, or in any wise interrupt the running of this statute against it.
The defendant Mary E. Franks answered the bill. One of the defendants demurred, but the only defendant appealing from the decree of the court is Mary E. Franks. It is therefore contended that under her answer she is not in a position to take advantage of the bar of the statute, but that the question should have been raised by demurrer by her. It was said in Campau v. Chene, 1 Mich. 410:
“If the complainant has any ground of exception within the statute to prevent the bar, or ground to rebut the presumption arising from length of time, it should be stated in the bill. * * * If a complainant merely states a claim founded on such a distance of time that the court, upon the analogy it has adopted with respect to the statute of limitations, will refuse to assist, he may then be considered as having stated himself out of court, and he may be told that, if any peculiar circumstances existed in his case which would have entitled him to relief, he ought to have brought them forward upon the record.”
The rule seems to be settled that the complainant must, in his bill, so state his case that if admitted .by the answer, or proved at the hearing, the court can decree some relief upon it. Fox v. Pierce, 50 Mich. 504; Baent v. Kennicutt, 57 Id. 270. We think the question may be raised as well under the answer as by demurrer to the bill. The court below was therefore in error in decreeing foreclosure of this mortgage. It was barred by the statute above cited, and complainant’s bill' should have been dismissed.
The decree of the court below is reversed, and the bill dismissed, with costs.
Morse, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit. | [
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McGrath, J.
Plaintiff’s horse was frightened by three sharp whistles from a locomotive when within from 30 to 50 feet of defendant’s tracks, on a narrow approach on a highway known as the “ O’Hara Highway,” and she was thrown out of her buggy down an embankment. The highway runs east and west, and crosses the tracks over a fill between two cuts, one about 20 rods south of the highway, and the other from 40 to 80 rods north. Both cuts are deep enough to hide an approaching train. The grade from the crossing north to the cut rises about 18 feet, and between the cuts the grade is raised from 3 to 6 feet above the adjoining lands. At the crossing, the railroad track is about 6 feet above the former grade of the highway. Plaintiff appears to have stopped twice, and looked and listened, and did not observe the train until within about 30 feet of the railroad tracks, whereupon she backed away from the tracks about the length of the. buggy, and stopped. The train came from the north, and, when from 24 to 26 rods north of the highway, the engineer gave the three whistles, causing the horse to> rear and plunge over the embankment. The railroad was originálly constructed in 1880 by the Port Huron & Northwestern Railway Company. Defendant subsequently purchased the road, and was operating it at the time of plaintiff’s injury, June 5, 1889.
The declaration consists of a single count, which contains the following allegations of negligence:
“And the plaintiff alleges that the defendant was negligent and careless in the following particulars, to wit:
“ First. That the defendant did not, nor did its predecessor, restore the highway aforesaid, as near as it might be, to its former state or condition, but, on the contrary, raised the same twenty feet, and, on the top or crest thereof, left only a narrow driveway, about five feet wide, not sufficient to enable a horse and buggy to turn without danger, and on both sides thereof constructed and maintained deep ditches, without guards of any kind, but sharp slopes from the top to the bottom, thereby making an attempt to drive over or turn upon said road extremely perilous and dangerous. * * *
“And the plaintiff further alleges that, at the highway crossing about one mile north of said O’Hara highway, it became and was the duty of the defendant, in operating the special train aforesaid, to blow a whistle, but the defendant neglected so to do; and by reason of such neglect this plaintiff, who was driving on said O’Hara highway, and who would have heard such whistle, did not hear the same, and therefore had no warning that such special train was approaching until it came too near for her to avoid the injury aforesaid, she being unable to see the approaching of said train by reason of the care required, and the management of her horse, and a turn in said road that ■prevented such train being in sight, and because of the neglect of the defendant or its agents or servants to blow the whistle aforesaid, or to blow any whistle when approaching said crossing at the distance required by law.
“And the plaintiff alleges that the defendant was also negligent in the following particulars, to wit:
“1. In its failure to restore said O’Hara highway to its former condition, and to keep the same in repair.
“2. In constructing the approaches upon said O’Hara highway, the track was so high and so narrow that travel thereon was extremely dangerous.
“ 3. In the failure of the defendant to blow a whistle or ring a bell at the crossing north of the O’Hara highway.
“4. In the failure of the defendant to blow a whistle at least 40 rods before said O’Hara crossing was reached, or to ring the bell continuously until such crossing was passed.
“5. In the careless and negligent acts of the engineer or manager of the engine drawing said train, in blowing a shrill whistle 50 feet from said crossing, thereby frightening the plaintiff’s horse, and causing the accident and injury aforesaid.
“ 6. In the fact that said train was being run at a speed of 40 miles an hour, in such a negligent and careless manner. * * *
“7. In the neglect of the defendant or its predecessor to put up or maintain guards on said road to save vehicles and am'miáis from being overturned or thrown into the ditches.
“ 8. In the construction of a deep ditch on each side of said highway. * * *
“9. In constructing the approaches by excavating deep ditches on each side of the road. * * *
“10. That the engineer, or person who managed the engine, operating the special train aforesaid on the day and. at the time aforesaid, was incompetent and unskillful, and was careless and negligent in the conduct of his business and in the running of said train, by reason of want of experience and of general unfitness, by reason of which, in the conduct of such train, he neglected to properly run the same, and to give proper signals.”
It is alleged as error that there were several distinct acts of negligence alleged, and that the court refused to instruct the jury that each and every allegation must be proven. Plaintiff relied upon the failure to properly construct the approach, the neglect of the engineer to blow the statutory whistle, and the negligent blowing of the whistle near the crossing, claiming that this combination of circumstances produced the injury, and the case went to the jury upon that theory. Plaintiff’s proofs tended to establish all the allegations of negligence, except the last, and no testimony was offered in support of that charge. Proof of the unskillfulness of the engineer was -not necessary to establish defendant’s liability. Conceding that the engineer was skillful and competent, a case of negligence was made out, if the other allegations were established.
In Wormsdorf v. Railway Co., 75 Mich. 472, relied upon by defendant’s counsel, a collision occurred between two streetcars. The negligence alleged was a defective connecting rod, the absence of a conductor to apply the rear brake, and a fractious horse on one car, and the neglect of the driver ■of the other car to stop and permit plaintiff to alight. The trial court instructed the jury that there were four grounds of recovery, and that they might stand or fall sep arately. This Court did uot think that the pleadings would support the instruction; holding that if the breaking of the rod was accidental, and the car rushed upon the horses, causing the horses to run away, the declaration was not so drawn as to place the company in fault for the sole neglect of the driver of the other car to stop and invite his passengers to alight; that it would have te contain allegations of fact directly contrary to what was charged. In other words, the allegations had been made dependent. But here no such difficulty presents itself. It Avas immaterial whether the conduct of the engineer was the result of inexperience or' carelessness. The allegation not proven must be regarded as immaterial. Thompson v. Railway Co., 91 Mich. 255.
The averment as to the rate of speed of the train is not that the train was running at an unusual rate of speed, but that it was being run at a speed of 40 miles an hour, in a negligent and careless manner. While it is not necessarily negligent to run a train at the usual rate, or at 40 miles an hour, it is negligent to maintain the usual rate of speed without observing the usual precautions and danger signals to warn the public of its approach.
The statute makes it the duty of railroad companies to restore the highway to its former state, as near as may be, and to construct suitable crossings for the passage of teams. How. Stat. § 3323. The obligation imposed by the statute continues until its proper discharge. By the transfer to. it, the defendant took subject to all the obligations and duties prescribed by the general railroad laws of the State. Act No. 10, Laws of 1889.
The fact that the township did some work on the roadway of this approach, in an endeavor to make it passable, did not relieve defendant from its obligations. The township could not waive performance so as to affect plaintiff’s right of action. Even a license by the municipality to place a dangerous obstruction in a public highway does not relieve the licensee from liability to an individual who may be injured thereby. Wolfe v. Telegraph Co., 33 Fed. Rep. 320. It may be true that plaintiff knew the character of this approach, but she assumed no risk incident to or consequent upon the failure of duty upon the part of defendant. It was held in Maltby v. Railway Co., 52 Mich. 108, that the right to use a public highway, even though it be in a dangerous condition, can not be abridged by the neglect to repair it.
The question of plaintiff’s negligence was properly, and we think fairly, submitted to the jury. The roads were soft; the morning misty. When 40 rods from the crossing she stopped, looked, listened, and spoke to her daughter, who was with her, about listening for trains. Approaching the crossing, she noticed children coming south upon the railroad track. When she reached a point 150 feet from the crossing, she again stopped, looked, and listened, and then started up the approach. When within 30 feet of the tracks, her daughter told her that the children had left the track. She looked and saw the train, and then attempted to back away from it, and had backed about the length of the buggy, when the three sharp whistles were given, whereupon the horse reared, and jumped down the embankment. The horse was quiet and manageable until the whistles sounded. It is not claimed that plaintiff was-moving towards the crossing when the whistles were given; indeed, the engineer says that he saw plaintiff as he emerged from the cut, and that he saw the horse rear and the buggy tip over, and then he gave the whistles. Plaintiff was not injured on the crossing. She did discover the approach of the train when it must have been at least 30' to 40 rods from the crossing. She did not attempt to cross, but stopped and backed her horse still further from the train. The engineer saw her, according to his own testimony, when he was from 60 to 80 rods away. Plaintiff’s testimony tended to show that no whistle was then sounded, nor until the train was from 24 to 26 rods from the crossing. Plaintiff was at a safe distance from the crossing, had the approach been properly constructed, and had the engineer refrained from sounding his whistle. In. going to the point where injured, she was justified in assuming that the engineer would exercise care, in view of her presence upon this narrow approach. Geveke v. Railroad Co., 57 Mich. 589.
We find no error in the record, and the judgment is affirmed.
Morse, C. J., Long and Montgomery, JJ., concurred with McGrath, J. Grant, J., concurred in the result. | [
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Montgomery, J.
This is ejectment, brought to recover possession of land in Ionia county. The case must turn upon the question of whether a sale of the land made October 4, 1887, for a drain assessment first spread upon the tax roll of the township in 1884, under the law of 1881, is valid. The tax assessed was returned delinquent to the county treasurer for the year 1884, and reassessed in the year 1885, under Act No. 227, Laws of 1885. The amount assessed and spread upon the tax roll of the township was $145.68. The tax was again returned delinquent by the treasurer of the township to the county treasurer for the year 1885, and by the county treasurer returned to the Auditor General, and was sold by the county treasurer, by order of the Auditor General, on the 4th day of October, 1887, for the sum of $175.42. There was added to the original tax 1 per cent, per month from February, 1886, to October, 1887, making an interest charge which is in excess of 7 per cent., computed from the date when the tax became originally payable to the date of sale.
The proceedings taken to lay out the drain were had under Act 269, Laws of 1881, and the sale was made under Act 227, Laws of 1885. Section 23 of the law of 1881, being, section 1713, How. Stat., provided:
“ If the taxes levied for the construction of any drain are not collected by the township treasurer, the land upon which they are levied shall be returned to the county treasurer in a separate return, * * * and such taxes may be paid-to the county treasurer, with seven per cent, interest and cost of advertising, at any time before sale, as hereinafter provided.”
Section 6 of chapter 6 of the drain law of 1885 provides:
“All taxes levied under the provisions of this act, or of Act No. 269 of the Session Laws of 1881, with all lawful costs, interest, and charges, shall be and remain a perpetual lien upon the lands upon which they are assessed.”
Section 7 provides:
“Such taxes shall follow such lands, * * * and all the general provisions of law now existing, or that may be hereafter enacted, for enforcing the payment of township, county, and State taxes, shall apply to such drain taxes, and to the lands returned delinquent therefor.”
■Section 79 of the general tax law of 1885 provides:
“To all taxes unpaid on the first day of February next after their assessment there shall be added interest at the rate of one per cent, for every month or part of a month during which such taxes remain unpaid."
It is contended by the plaintiff that this section authorized the Auditor General to add 1 per cent, per month as interest; that the provision of the drain law, that “all the general provisions of law now existing for enforcing the payment of township, county, and State taxes shall apply to such drain taxes," requires that the interest charge provided by the general tax law shall be added to the drain tax.
It may well be doubted whether it would be competent for the Legislature to increase the burden provided by the law under which the tax was assessed by increasing the rate of the interest charge. Mogg v. Hall, 83 Mich. 576. But we do not discover in the statute of 1885 evidence of any such purpose. The interest which, with the principal, shall be and remain a lien upon the lands under the provisions of section 6, is the interest charge which was fixed by the law under which the tax was levied. Furthermore, if this construction of section 6 were doubtful, we do not think that the ‘provision in the drain act, adopting the provisions of the general law relating to the enforcement and collection of taxes, is to be construed to include those provisions of the latter law relating to the interest charge. This precise question was considered by the supreme court of Illinois in the case of Murphy v. People, 120 Ill. 234 (11 N. E. Rep. 202). We cannot add anything to the reasoning of the court in that case.
As the conclusions of the circuit judge were in accordance with the views above expressed, the judgment will be affirmed, with costs.
The other Justices concurred. | [
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Montgomery, J.
The plaintiff is the owner of a building on Woodward avenue, in the city of Detroit, the first floor of which was occupied, up to November 1, 1889, by Charles F. Karpp, under a written lease, the term of which did not expire until May, 1891. The plaintiff claims that defendants became the occupants on November 1, and brings this action for the use and occupation from that date until February, 1890.
The testimony offered in the case tended to show that Karpp was agent for his wife, Annie L. Karpp; that in July, 1888, Mrs. Karpp gave to defendants a chattel mortgage of the goods and merchandise which were kept in the store building in question, and that this mortgage remained in force and unpaid, and that on or about November 1, 1889, defendants, by an arrangement with Mrs. Karpp, placed an agent in the store building, whose duty it was to receive 'the cash which was from day to day realized by sales of merchandise, and apply it on the indebtedness of Mrs. Karpp to defendants. Mrs. Karpp was permitted to draw out a stated sum for her personal expenses, and some of the other expenses, such as gas bills, fuel, etc., were paid out of the proceeds of the sales. New goods were furnished from time to time by the defendants to keep up the stock. It would appear that all parties still expected that Mrs. Karpp would have an interest remaining after sufficient goods had been disposed of to satisfy the mortgage; but it proved otherwise, and, after applying the proceeds of the sales of the goods made up to about February 1, the remainder of the goods were shipped to the defendants, and credited on Mrs. Karpp’s indebtedness to them, and a balance still remained due to defendants from Mrs. Karpp of about $1,200, or thereabouts. These facts were undisputed.
The plaintiff urged two grounds of recovery:
1. That defendants were in fact the occupants of the premises, and therefore liable to pay plaintiff for the rent of the same.
2. That there was an agreement on the defendants’ part to pay the rent.
The circuit judge submitted the case to the jury, and a verdict was rendered in favor of the defendants.
Complaint is made of the charge, but, in the view we take of the case, the alleged errors therein, if any,— and we do not intimate that there are, — are immaterial.
The defendants were occupants under Mrs. Karpp, so far as they were occupants at all. She was still the one beneficially interested in the business, and the presence of their agent was for the purpose of protecting their security. This they had a right to do without making themselves liable for the rent. If, as between Mrs. Karpp and the defendants, there was no obligation on defendants’ part to pay rent, it is difficult to perceive how they could be held liable to plaintiff without proof of an express agreement to pay. Doty v. Gillett, 43 Mich. 203; Carver v. Palmer, 33 Id. 342.
The case of Thompson v. Sanborn, 52 Mich. 141, cited by plaintiff to support his contention, presented a very different state of facts. In that case the former tenant parted with his entire interest, and ceased to occupy the premises. The defendant thereupon called upon the plaintiff to be allowed to continue the use of the way, but objected to the price which the former tenant had been paying. The plaintiff refused to reduce the rate, whereupon the defendant made the reply that, if he paid any rent, it would be under protest. He proceeded to occupy, but refused to pay for it. The Court held that he could not accept the benefit and at the same time reject the condition, and that defendant’s act was conclusive on him, and amounted to a submission to the plaintiff’s terms. But in the present case Mrs. Karpp still remained liable for the rent, and still continued to have the benefit of the occupancy.
Plaintiff sought to establish an agreement with the defendants through Karpp and Mr. Howard, the agent in possession, but we have searched the record in vain to find any evidence of authority of these men to bind the defendants. Both deny having such authority, and the burden rested upon the plaintiff to prove it.
It would have been entirely proper for the circuit judge to have directed a verdict for the defendants. This being so, it follows that there was no error to the prejudice of the plaintiff, and the judgment will be affirmed, with costs.
The other Justices concurred. | [
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] |
Grant, J.
Plaintiff purchased a ticket over defend-’
ant’s road from Lansing to Dimondale. She occupied a seat a little back from the center of the car. As the train approached Dimondale, the station was called by the brakeman. Plaintiff arose from her seat before the cars stopped. Two passengers, Mr. and Mrs. Stiles, sat near her. Dimondale is a small place, and there were more passengers for that place than usual. There was no specified time for the stoppage of the train, but it was, of course, required to stop long enough to permit passengers to get off and on. Three passengers, including Mr. and Mrs. Stiles, preceded plaintiff. Mrs. Stiles was next to plaintiff, and Mr. Stiles carried her satchel. The first two passengers had alighted in safety, when the conductor gave the signal to the engineer to start. Plaintiff said' she thought she was in the door, or near it, when the train started. She had heard the conductor say, “All aboard.” Mrs. Stiles alighted with safety with the help of the brakeman. Plaintiff followed closely after Mrs. Stiles, and testified that as Mr. and Mrs. Stiles stepped down, and the brakeman reached for her, she gave him her hand, and got off. As she stepped upon the ground she-fell and was injured. The fall was unquestionably caused by the motion of the train, although the brakeman may have been negligent in assisting her. Mr. Stiles testified that the train was not in motion when he got off. Mrs.. Stiles says that the train was in motion when she got off, and that when she felt the motion of the car she was “somewhere at the head of the stairs.” There was other evidence tending to show that the brakeman invited the-plaintiff to alight, and told her to hurry up. The brakeman testified that he helped Mrs. Stiles down, and that he called out to plaintiff, “Hold on,” or “Wait a minute,” or something to that effect, and that he endeavored to get on the train to pull the cord. He also said that he had hold of her when she alighted, and assisted her as well as he could. The fact most in dispute was whether the brakeman invited plaintiff to alight, or told her to wait. The exact position of the plaintiff in the car when the train started is not shown, but it is evident that she was near the door. The other facts in the case are chiefly undisputed.
Plaintiff, in her declaration, alleges the duty of the defendant to stop its train, and keep it stationary for a sufficient length of time to allow passengers to alight in safety, and not to move or start the train until all the passengers for that station had reasonable time and opportunity to alight; not to solicit or permit passengers to alight, nor to offer to aid and assist them in alightiqg, when the train was in motion. She then avers that the train had stopped; that she, with others, without fault or negligence on her part, attempted to alight, making all reasonable haste; that those who preceded her alighted in safety; that she, following immediately and closely after those preceding her, and without any fault or negligence on her part, attempted to alight, and reached and stood upon the lower step of the platform, and that, before she had reasonable ■ time to safely alight, the train, through lack of due care on defendant's part, negligently started, and began to move away from the station; that defendant's brakeman negligently offered and attempted to help and assist her to alight, and negligently took hold of her hand for that purpose, and that she was forced to, and did, put her hand upon the shoulder of said brakeman in attempting to alight; that the moving train carried and took her feet to and beyond the place where the said brakeman was so standing, before she could step from said platform upon the ground, causing her to rest and support herself almost entirely upon the hand and shoulder of the brakeman, who, immediately her feet were clear of the platform, negligently let go his hold of her, in consequence of which she, without fault or negligence on her part, was suddenly and violently dropped and thrown to the ground, the brakeman swinging himself upon the train and departing with it.
The above is a substantial statement of the plaintiff's case, as presented in her declaration.
The jury,, have found all the facts necessary to the plaintiff's claim in her favor, viz.:
1. That the plaintiff was proceeding with due promptness to alight from the train.
2. That the train had stopped, and she was invited to alight.
3. That the train had not stopped a reasonable length of time to permit the passengers for that station to alight.
4. That plaintiff was in the exercise of due care. ■
5. That the defendant was guilty of negligence in starting its train before plaintiff had alighted, and in inviting her to alight when the train was in motion.
1. The first point raised is that the declaration is insufficient, in that it does not distinctly aver that the train was not stopped for a sufficient length of time to enable plaintiff, using due diligence, to safely alight. We think the declaration is sufficient. It alleges that the train started “before the plaintiff had reasonable time to safely alight." The plain inference from the averments is that the train was negligently started while the passengers, including the plaintiff, were in the act of alighting. Had the defendant desired a more specific allegation, it should have demurred.
2. It is next insisted that there is a fatal variance between the declaration and the proofs, in that the declaration avers that the plaintiff stood on the lower step of the car, and was in the act of stepping therefrom, when the car started, while the proof is that she stood near the door. The point is technical, and without merit. Defendant was not misled by the averment or the proof. The gist of the action is that the train started while plaintiff was proceeding to alight. It is immaterial whether she stood near tbe door, on tbe. platform, or on one of tbe steps. It was unnecessary to aver the exact place, nor does its averment preclude proof that sbe in fact stood two or three feet from tbe place alleged.
3. Tbe main question in tbe case is, was plaintiff guilty of negligence in alighting from tbe train, under the circumstances, when it was in motion? Defendant's counsel insist that tbe court should have directed a verdict for it, because plaintiff passed out of tbe car, down tbe steps, and alighted, when sbe knew that tbe train was moving. The learned counsel in this proposition leave out entirely tbe facts that tbe train was moving slowly; that sbe bad been invited to alight; that tbe brakeman stood there to assist, and did assist, her to alight; and that be suddenly let go her band, and swung himself upon tbe departing train.
Tbe authorities are quite uniform that jumping from a moving train before it has reached tbe station, and boarding a train while in motion, are presumptivly negligent acts, and in many cases are negligent per se; so, also, is the act of jumping from a train which is running past the station where tbe passenger desires to stop. Lake Shore & M. S. Ry. Co. v. Bangs, 47 Mich. 470; Kirchner v. Detroit City Railway, 91 Id. 400; Railroad Co. v. Aspell, 23 Penn. St. 147; Railroad Co. v. Randolph, 53 Ill. 510; Railroad Co. v. Hazzard, 26 Id. 373; Dougherty v. Railroad Co., 86 Id. 467; Damont v. Railroad Co., 9 La. Ann 441; Railroad Co. v. Hendricks’ Adm’r, 26 Ind. 232; Railroad Co. v. Swift, Id. 459. But it is not negligent per se for a passenger to alight from a train after it has stopped and be has been invited to alight, and, while doing so, the train is again started, and especially when tbe brakeman or conductor is standing upon the ground inviting and assisting him, unless the speed of tbe train was such that tbe danger is obvious. This proposition is based upon sound reason and good sense. It is sustained by tbe clear weight of authorities, which it is unnecessary here to cite. They will be found in the text-books, where the principle is laid down. Beach, Contrib. Neg. § 53; Bish. Non-Cont. Law, § 1101; Whart. Neg. § 380; Thomp. Trials, § 1684.
The learned circuit judge fully and clearly explained to the jury the law applicable to the case, both as to the negligence of the plaintiff and that of the defendant, and properly left it to them to determine the question of plaintiff’s negligence. Under the circumstances, as shown by plaintiff’s evidence, it is apparent that but few, if any, would hesitate to alight from the train as she did. The language of this Court in Strand v. Railway Co., 64 Mich. 216, applies to this case and controls it. See pages 219, 220.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
The defendant, on the 18th day of June, 1887, contracted in writing to purchase of one William L. Jenks the N. W. £ of S. W. £ of section 19, township 7 N., range 16 E. The contract was in the usual printed form, and contained a covenant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or appurtenances, except for firewood or otherwise for his own use, or while clearing off the lands for cultivation in the ordinary manner. Immediately after entering upon the lands he erected a small dwelling-house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom the contract had in the mean time been assigned by Jenks, terminated the contract, and required the defendant to surrender possession. The house was a one-story frame house, 20 by 26, and suitable for the purposes of a dwelling-house to be used upon the land in question. After the removal of the house from the premises, it was placed upon a 40 across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaintiff, and the defendant appeals.
Two questions only are presented in appellant’s brief. It is first claimed that replevin will not lie, because the house had become a fixture upon the land to which it was moved, and was therefore real estate; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party.
We think that when this house was erected upon the land held under contract it became a part of the realty, and as such the property of the owner of the land, subject only to the rights of the purchaser therein. Kingsley v. McFarland, 82 Me. 231 (19 Atl. Rep. 442); Milton v. Colby, 5 Metc. (Mass.) 78; Iron Co. v. Black, 70 Me. 473; Tyler, Fixt. 78. It being severed from the land, it became personal property, and replevin would lie unless it became affixed to the realty by the tortious act of the defendant in removing it and placing it upon other lands. But we think no such legal effect can be given to the defendant’s wrong. The house was moved upon land of a third party. There was no privity of title between the owiiership of the house and the ownership of the land to which it was removed. The cases cited by defendant of Morrison v. Berry, 42 Mich. 389, and Wagar v. Briscoe, 38 Id. 587, do not apply.
The house remaining personal property in the wrongful possession of defendant, it follows that no homestead right, which consists in an interest in lands, attached.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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Per Curiam.
The relator was adjudged an incompetent person by the probate court of Ionia county, August 20, 1886, and one Levi J. Barnard was appointed guardian. He gave the required bond, and has ever since had the charge and control of the estate of said alleged incompetent. On May 24, 1892, relator filed his petition in the probate court of said county, praying that the order adjudging him incompetent might be set aside and,held for naught, on the ground that it was void for jurisdictional defects appearing upon the face of the proceedings. The respondent refused to entertain the petition for the reason that he had no authority to vacate a final order or decree rendered by the court. Belator now asks for the writ of mandamus to compel the respondent to proceed and hear his petition upon the merits.
Proceedings of this character, to test the validity of orders of the probate court appointing guardians, have universally been brought to this Court by certiorari or writ of error. Belator alleges that he was never incompetent, and that the petition itself does not show a case of incompetency. If this were so, he certainly should have proceeded promptly, and taken the usual method to test the validity of the proceedings. We do not think he is in position, under this allegation in his petition, to invoke the discretionary writ of mandamus to compel action on the part of the probate court, which might very seriously affect those who have acted in good faith in reliance upon the jurisdiction of the court.
Undoubtedly the relator might petition the court for the termination of the guardianship upon the ground of his present competency, and the court in that case should proceed to a hearing upon the merits of such a petition. We think the petition is sufficieiit for that purpose.
The writ will therefore issue, directing the respondent to proceed to a hearing and determination of the present competency of the relator to have the charge and control of his property. | [
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McGrath, J.
Respondent was convicted of bigamy, and the sole question in the case is whether a complaint for bigamy may be made by the first wife. It is well established that one not a competent witness against the person charged is not competent to make a complaint against him, so that the real question is whether, in a criminal action for bigamy, the first wife is a competent witness.
Our statute (How. Stat. § 7546, as amended by Act No. 211, Laws of 1885) is as follows:
“ A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband' without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children icith suitable support, within the meaning of act number one hun dred and thirty-six of the session laws of eighteen hundred ■and eighty-three, and except in cases where the husband or wife shall be a party to the record in a suit, action, or proceeding where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject-matter in controversy or litigation in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action, or proceedings; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as ■competent to testify in relation to said separate property and the title thereto, without the consent of said husband or wife, who is a party to the record in such suit, action, or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage; but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”
It is clear that the words “personal wrong or injury” are used in a restricted sense. Given their broadest signification, there would be no necessity for the exceptions following that clause, and no necessity for the insertion of the italicized clause, or the amendment of 1885. To the general common-law rule excluding the testimony of husband and wife, there were exceptions which were allowed from the necessity of the case, “for the protection of the wife in her life and liberty, and partly for the sake of public justice.” This necessity is described by Lord Mansfield to mean,—
“Not a general necessity, as where no other witness ■can be had, but a particular necessity, as where, for instance, the wife would otherwise be exjeosed, without remedy, to personal injury.” Bentley v. Cooke, 3 Doug. 422.
In 1 East, P. C. 455, Mr. East regards it as settled that—
“In all cases of personal injuries committed, by the husband or wife against each other, the injured party is an admissible witness against the other.”
The text-writers generally refer to the exceptions to the general rule of incompetency as embracing cases of personal injury. Whart. Crim. Ev. § 393; 2 Tayl. Ev. § 1371. The instances given are where a man has been indicted for forcible abduction with intent to marry; for assisting at a rape; for attempting to poison; for maliciously shooting; or for an assault and battery. Mr. Taylor says:
“ For many years doubts were entertained whether a wife was or was not an admissible witness against her husband in cases where he was proceeded against, under the vagrant act, as a rogue and vagabond for deserting her, and for causing her to become chargeable to the parish. These doubts have now been resolved in the negative.” 2 Tayl. Ev. § 1371.
The amendment of 1885 to our own statute makes the wife a witness in proceedings for refusal to support.
In People v. Carpenter, 9 Barb. 580, the husband was indicted for using criminal means — as subornation of perjury — to injure the wife in a proceeding for divorce, and the court held that there was no violence, no injury, nor threat of injury, to her person, against which it was necessary to protect her; that she had abundant means of defense and redress in the judicial proceedings in which the fraud was practiced; and that she was therefore not a competent witness in the criminal proceeding; citing People v. Chegaray, 18 Wend. 637; Den v. Johnson, 18 N. J. Law, 87; State v. Welch, 26 Me. 30; State v. Burlingham, 15 Id. 104.
The language of the rule at common law was as broad as the language “personal injury” in our statute, and that language meant, and was held to mean, violence, either actual or constructive, to the person, and by a long line of decisions the wife was not allowed to give testimony in prosecutions for bigamy, or any other crime not involving personal violence or corporeal injury to her. The words “wrong" and “injury" are often used the one for the other. An injury to the person is a wrong, and a constructive injury to the person is also a wrong. A wrong is defined to be an injury, and an injury as a wrong. A personal wrong or injury is an invasion of a personal right; it pertains to the person, the individual. A cause of action growing out of a personal wrong is one designed to protect or secure some individual right. The right, as well as the wrong, must pertain to the person. It must be one that is purely personal in its character, and in no sense can the exception here be said to embrace public wrongs, which are personal only in the sense that they wound the feelings or annoy or humiliate, but inflict no injury upon the person.
The last clause of the section was evidently added in view of the fact that, under another statute, the proceeding for adultery cannot be instituted except by the wife or husband, and is therefore of a personal character.
Our statute is peculiar, and we have been unable to discover any adjudications upon a like statute. It is anomalous, also, in that it embraces within one section the law governing the admissibility of the testimony of husband or wife in criminal proceedings, as well as civil cases. The authorities in those states where the question has arisen under statutes which, although they differ, involve the same principle, are in conflict. In Iowa the statute provides that neither the husband nor wife shall be a witness-against the other, except in a criminal proceeding for crime .committed by one against the other. In State v. Sloan, 55 Iowa, 220 (7 N. W. Rep. 517), the court say simply that “in our opinion, if the defendant is guilty of bigamy, he committed a crime against his wife." State v. Hughes, 58 Iowa, 165 (11 N. W. Rep. 706), follows the Sloan case, but in neither opinion is the question discussed. In Nebraska, under a similar statute, in Lord v. State, 17 Neb. 526 (23 N. W. Rep. 507), the husband was convicted of adultery. The court say:
“The statute makes it an offense for a husband to desert his wife and live and cohabit with another woman. If the husband is prosecuted for the offense, the prosecution certainly would be a criminal proceeding for a crime committed against the wife. * * * In our view, it was intended by the legislature to include the offense here charged'; and the ends of justice will be best subserved by permitting the wife to testify.”
In Overton v. State, 43 Tex. 616, the husband and wife had separated, and the husband was charged with the theft of the wife’s property. The statute is the same as that of Iowa. The court say:
“This provision of the code cannot, in our .opinion, be properly given so. broad an interpretation as to permit husbands and wives to testify against each other in prosecutions for offenses against their property. To give it such a construction would be to make a marked innovation upon a well-established common-law rule of evidence not required or warranted by its language. There is nothing, we think, in the spirit and object for which this provision of the code was evidently designed, which requires or should induce us to give it this interpretation. Its plain and obvious import is to limit the permission given to the husband and wife to testify against each other to prosecutions for personal offenses by one against the other.”
In Compton v. State, 13 Tex. App. 271, the indictment charged the husband with incest with the daughter of his wife by a former husband. The court overrules Morrill v. State, 5 Tex. App. 447, and Roland v. State, 9 Id. 277, and holds that the wife is not a competent witness against her husband.
In State v. Armstrong, 4 Minn. 335, the court say:
“A prosecution for the crime of adultery does not fall within the cases in which a wife could testify against her husband under the general rule, for two reasons: First. The necessity which warrants the exception does not exist, as all the material features of such an offense are susceptible of proof without her aid as readily as in other crimes. Second. It is not a crime against her person, and involves no violence to or abuse of her.”
In New York the statute provides that in all criminal trials, and examinations before trial, a husband or wife may be examined as a witness in behalf of the other, but upon no such trial or examination shall a husband or wife be compelled to testify against the other. In People v. Houghton, 24 Hun. 501, the court held that the latter clause was negative only, and made no innovation upon the ■old common-law rule; that the statute affirmed her competency only in favor of her husband, and not against him.
•In Utah, the Code of Civil Procedure provided that the •exception (to competency) did not apply to a criminal action or proceeding for a crime committed by one against the other. The Code of Criminal Procedure provided that, except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife should be a competent witness for or against the other in a criminal action or proceeding to which one or both were parties. In Bassett v. U. S., 137 U. S. 496 (11 Sup. Ct. Rep. 165), which was a prosecution for polygamy upon error from the supreme court of Utah, reported in 5 Utah, 131 (13 Pac. Rep. 237), the court held that the testimony of the wife was inadmissible. Mr. Justice Brewer, speaking for the court, says:
“ Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man, and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder or robbery or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the statute speaks of crimes against her, it is simply an affirmation of the old, familiar, and just common-law rule.”
In the cases excluding the testimony of the wife, it is held that the legislature had imported into the statute the common-law rule, and that, before any departure from that rule —affirmed, as it is, through the ages of common law; a rule having its solid foundation, as is said by Mr. Justice Brewer, in the best interests of society — can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. The clear weight of authority supports the principles laid down in .these last-cited cases, and is against the admissibility of the testimony. If not a crime against. her, it certainly is not a wrong which is personal to her. Criminal statutes are not grounded in personal grievances, but in public injuries, and a prosecution for bigamy is not a cause of action growing out of a personal wrong or injury.
The conviction must therefore be set aside, and the respondent discharged.
Long and Montgomery, JJ., concurred with McGrath, J. | [
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] |
Long, J.
The bill in this case was filed January 16, 1890, to set aside a deed made by Zimri Cook in his lifetime. Mary Hodges, a daughter, filed the bill originally, biyt subsequently Sarah L. Young, the other daughter, joined in it as complainant. They are the only heirs at law of Zirari Cook. Burton BE. Lang is the son of Mary Hodges. Mary Cook is the widow of the deceased.
Zimri Cook died December 29, 1889, at his home, in Branch county, at the age of about 80 years. He was married to the defendant Mary Cook April 20, 1881. He made a will September 19, 1883, giving his wife all his personal property and a life interest in his real estate, with the remainder over, after the payment of a legacy to defendant Burton H. Lang and some other legacies, to his two daughters above named. On February 19, 1889, — about 11 months before he died, — he made a deed, which is now sought to be set aside, conveying to his wife the title in fee to his real estate, consisting of 80 acres of land .in Branch county.
But three questions are raised:
1. Was Zimri Cook, when he made this deed, mentally competent to make a valid deed?
2. Was he induced to make it by undue influence?
3. Was the deed delivered to the defendant Mary Cook in the lifetime of the grantor?
The court below entered a decree in favor of the complainants, setting aside the deed. Hpon what ground this ruling was made is not shown. We are not advised whether the court found that the deed was not actually delivered, or whether that court came to the conclusion that the grantor was mentally incompetent to make it, or placed it upon the ground of undue influence. We have frequently said that, where the court below had an opportunity to see the witnesses and hear the testimony, it would have great weight with us in determining questions of fact. In the present case the* testimony was not taken in open court, but before a commissioner. The court, therefore, determined* the rights of the parties upon the record now before us, and with no greater advantage. We have examined the record with great care. Nearly 250 pages of testimony are contained in it. The questions involved are purely of fact. Many witnesses on each side were ■called upon the questions raised.
At the time of the marriage of Zimri Cook with the defendant he was about 70 or 71 years of age, and possessed of some considerable personal property and this farm. Mrs. Cook had been previously married, and had two children. She was at that time about 42 years of age, and lived upon a farm left her by her former husband, in Branch county. It is shown by many witnesses that at the time of the marriage Mr. Cook talked about deeding the farm to his wife. Upon numerous occasions after the marriage he stated to a large number of his neighbors and •friends that he had given his daughters all he intended to; that they had had their share of his property; that he intended his wife, Mary, should have the farm. This was both before and after the will was made. Some time after the will was made he became quite ill from erysipelas, and the record shows that his wife was very kind and attentive to him. He frequently spoke of this to his neighbors, .and told them he intended to give her the farm.
On the day the deed was drawn he sent for George A. Russell, a justice of the peace, to draw it. Mr. Russell found him in bed, suffering from another attack of erysipelas, but he said he had been up that day, and got up ■again while Mr. Russell was there.' He told Mr. Russell he wanted a deed drawn, conveying the farm to his wife. Mr. Russell prepared it, read it over to him, and he signed it. Other persons were there, who witnessed it. After its execution, Mr. Russell asked him if he would take it, and he said: “ Give it to Mary. She will take care of it." Mr. Russell put the deed in an envelope, and gave it to Mary Oook. This testimony was corroborated by other witnesses, and we are convinced from the whole testimony that the deed was delivered to the defendant by Zimri Cook with intent to have it take effect as a conveyance of the farm to her. This is not only shown by the several witnesses who were there on that occasion, but by statements made by Mr. Cook before that time, as to what disposition he intended to make of his property, and his claim that his life had been saved by the care and attention bestowed upon him by his wife, and his desire to fulfill the promise made to her at the time of their marriage.
The record is replete with testimony showing the care bestowed upon him by his wife for the eight years and upwards she had lived with him as his wife. It is apparent that she was a kind and loving wife, and ministered to all his wants in every way possible. It is also-evident that he believed that he had done for his daughters all that they had a right to ask under the circumstances. At the time of his marriage he was alone in the world. His daughters were married, and had families of' their own, and one of them lived in a distant state. The-outcome of his marriage was a happy one, and there is nothing strange in his making the disposition of the farm which he did.
There is some testimony having a tendency to show that the deed was not actually delivered. We have examined it, and think that the whole testimony, taken together, in connection with the surrounding circumstances, strongly preponderates in favor of the delivery of the deed to the-defendant. After the decease of Mr. Cook she put it upon record.
While it is true that Zimri Cook was nearly 80 years of' age at the time the deed was made, yet the testimony shows that he had been in the habit of attending to his own business affairs. He had always been a man of more than ordinary physical force, and of strong mind. Ilissickness had to some extent impaired his physical strength, but the officer who drew the deed and many other wit nesses testify that on the clay the deed was executed he was as bright and intelligent as ever. He got up out of his bed, and after the execution of the deed talked with the officer about his (the officer’s) afflictions. Mr. Russell had a broken leg, and the .old man inquired about this, ■and talked of other matters with his customary clearness of mind. People who were acccustomod to see him constantly were also called as witnesses, and testified that he was mentally a strong man. We discover nothing in the record to evidence that he Avas not competent to make the deed.
That he was unduly influenced to make the deed is certainly not proven, and, in fact, the only claim on the part of the complainants that it Avas procured by undue influence is that a will was made in 1883, giving his Avife a life interest in the farm, and that it must have been through undue influence that he changed his mind, and conveyed to her the fee by the deed. It avüI be remembered that the sickness of Mr. Cook was after the avüI ■was made. When he had partially recovered from his trouble he recognized the services which his wife had performed, and the kind and loving treatment he had received; and it is not strange that he desired to compensate her. There is- nothing in the record which can be claimed as showing any undue influence, which Avould induce a court to set aside this deed upon that ground.
We are satisfied upon the whole record that complainants have failed to make out the casé stated in their bill.
The decree of the court beloAV must be set aside, and a decree entered here dismissing the bill of complaint, with costs of both courts.
The other Justices concurred. | [
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Long, J.
This bill is filed to quiet title.
The land in controversy is a strip 4.97 feet in width in •front of, and claimed by complainants to be a part of, lot 66 of section 7 of the Governor and Judges* plan of the city of Detroit. This lot, as platted, is situated on the corner of Barclay Place and John B. street. Complainants derived their title through Hugh Flynn, deceased, who was the husband of Ann Flynn, the other complainants being: the children of Hugh and Ann Flynn. Hugh Flynn derived his title under a deed from Angelica Ohapaton, made March 11, 1846, describing the land as—
“All that part of lot number sixty-six (66) on which there is a frame house, and which was conveyed by Daniel J. Campan to Edgar F. Bandolph in trust for Stewart C. Marsh, John Compton, and John M. Burdsall, by deed dated August 11, 1843.**
At the time the deed was made to Hugh Flynn, in March, 1846, he went into possession, and he and the ■complainants herein have occupied the premises continuously since that time. No question is raised but that the title to lot 66 vested in the complainants through this •chain of title, and that they have continuously occupied the house which is still standing, thereon.
At the time this deed was made the house was standing over, upon the strip of land in controversy about one foot, and still remains there; the balance of the strip being-fenced in by a picket fence commencing at the house, and continuing around the strip to the other side, completely inclosing it, with no opening from the street into it or from the house into it. The city claims the strip to be a part of John B. street, and, making- that claim, the ■complainants, to 'quiet the title, filed this bill.
John E. street, it is claimed by the city, was originally-platted 60 feet in width, but that it has never been opened and maintained that width; that this strip has always been used as a grass plat and for purposes of ornament, and that complainants and their grantors have been allowed to use and occupy it for that purpose by express permission under an act of the Governor and Judges, passed May 18, 1807, entitled “An additional act concerning the town of Detroit,” and that such occupation or use conferred no title upon the complainants or their grantors; that John E. street has existed, and been worked, paved, and traveled, for more than 50 years as a public highway, and that this strip is a part thereof, and the inclosure should be presumed to have been made under the license of the act. above referred to, and the subsequent act of November 7, 1815 (1 Terr. Laws, pp. 286, 289), and the subsequent regulating ordinances of the common council, and could not create title by adverse possession.
The act of 1807 provided that the first seven feet of the sidewalk space should be reserved for—
“Erecting porches in the front of houses; for doors of cellars; for an area to allow light to apartments below the level of the ground; for a grass plat or shrubbery; or for other purposes of either utility or ornament, as the inclinations and taste of the proprietor may direct.”
The act of 1815 provided tliat no erections on this space, except porches, should exceed 50 inches in height. It was further provided that—
“Every person placing fencing or paling, not exceeding 50 inches in height, on the front line of the ten [seven] feet, shall also place another fence or paling on the rear line of the said ten [seven] feet, along the line of his lot, of at least equal height, and the said ten [seven] feet shall not be severed from the street.”
It is claimed by the complainants that the use to which the disputed space was put was not within the license of these acts. It appears that the house was already built upon a part of this trip when Hugh Flynn became possessed of the property, and the whole strip was inclosed with the lot, and not separated from it by fence or any other structure. The inclosing of the strip with the lot cannot be said to be within the terms of these acts, and no presumption can arise from these facts that complainants’ possession and continued use of the premises was under the license of the acts. The act of 1815 expressly prohibited such inclosures as shown, and the manner in which the premises have been inclosed and used by the complainants and their grantors is entirely different from the license of the acts. Complainants had no right or license under the acts to erect a building or maintain one upon that strip; they had no right to keep and maintain a fence of that height in front of the strip without separating the strip from the lot with a fence of equal height; and yet both were done, and for nearly 40 years they have continued in open violation of the acts.
In People v. Carpenter, 1 Mich. 273, it was held that an iron stairway on the front of a building, and within the limits of the street, was not within the license conferred by these acts.
It is settled in this State that title may be acquired by adverse possession of property within the limits of streets. City of Big Rapids v. Comstock, 65 Mich. 78; Village of Essexville v. Emery, 90 Id. 183. The ordinances of the city of Detroit have for more than 30 years prohibited encroachments upon the public streets, and yet no steps have been taken to compel the removal of this fence until this suit was brought, so far as shown by this record.
It would seem that these facts establish beyond controversy the right of complainants to this land by adverse possession.
It is suggested that inasmuch as the deed to Hugh Flynn describes the land as “all that part of said lot on which there is a frame house, and which was conveyed,” etc., it takes with it the land on which the building stands, and the whole of it; that is, this building being expressly conveyed by the deed, and it standing in part on the strip in controversy, it carries with it the whole strip. The following cases hold this doctrine: Bacon v. Bowdoin, 22 Pick. 401; Allen v. Scott, 21 Id. 25; Rogers v. Snow, 118 Mass. 118; Oliver v. Dickinson, 100 Id. 114. We need not discuss- this proposition, however, as it is apparent that the complainants cannot be said to have entered or held under the license of these acts, and consequently have the right to set up their adverse possession, which has been fully established. The court below very properly entered decree in favor of complainants.
The decree will be affirmed, with costs.
Grant, Montgomery, and Durand, JJ., concurred. McGrath, J., did not sit. | [
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FER CURIAM.
Flaintiff appeals as of right the trial court’s order granting summary disposition in defendants’ favor. We reverse because we are required by MCR 7.215(J)(1) to follow the holding in Mazumder v Univ of Michigan Bd of Regents, 270 Mich App 42; 715 NW2d 96 (2006). However, we disagree with the Mazumder holding that equitable tolling is appropriate in cases affected by the retroactive application of our Supreme Court’s ruling in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). Fursuant to MCR 7.215(J)(2), we declare a conflict with Mazumder and state that, if we were not obligated to follow Mazumder, we would affirm.
I. FACTS
On January 18, 2001, the decedent was admitted to Sparrow Hospital for a total knee revision arthroplasty surgery. The surgery took longer than expected because of complications. After surgery, the decedent was transferred to a hospital room, where a nurse, who noted the decedent’s low blood pressure, paged defendant John C. Siano, Jr., M.D., three times. Dr. Siano called in an order, but a doctor did not see the decedent until the next morning. At that time, the decedent was transferred to the intensive care unit, where he was treated for adult respiratory distress syndrome, transient disseminated intravascular coagulation, and thrombocytopenia. The decedent was intubated on January 27, 2001, and continued to suffer complications. He died on May 11, 2001.
On July 5, 2001, plaintiff was appointed the personal representative of the decedent’s estate. Plaintiff notified defendants of his intent to file a medical malpractice claim on May 9, 2003. Plaintiff filed his initial complaint on October 20, 2003.
Dr. Siano and Lansing Internal Medicine Associates, EC., filed a motion for summary disposition under MCR 2.116(C)(4), (7), and (10), arguing, in relevant part, that plaintiffs claim was not timely filed. Edward W Sparrow Hospital Association concurred and also filed a motion for summary disposition. Defendants specifically argued that plaintiff had two years from the date of the malpractice, January 18, 2001, or two years from his appointment as personal representative, July 5, 2001, to initiate this action. However, plaintiff filed his complaint on October 20, 2003, approximately nine months after the statutory period of limitations expired and approximately three months after the wrongful death saving period expired.
Plaintiff responded to these motions arguing, among other things, that, pursuant to Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), overruled in part by Waltz, and MCL 600.5852 and 600.5856(d), he mailed notices of intent on May 9, 2003, thereby tolling the time period for filing a complaint for 182 days. He argued that Waltz, which was decided six months after he filed his complaint, was not controlling in this case. Plaintiff also argued that, if Waltz was applicable, his claim should be subject to judicial tolling.
The trial court determined that Waltz was applicable to plaintiffs claim and entered an order granting defendants’ motions for summary disposition. On appeal, plaintiff contends that the trial court erred in dismissing his claim.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo whether the statutory period of limitations bars a claim. Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 570-571; 703 NW2d 115 (2005). A motion for summary disposition under MCR 2.116(C)(7) permits summary disposition when a claim is barred by the statutory period of limitations. In reviewing such a motion, “ ‘a court must accept as true a plaintiffs well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiffs favor.’ ” Geralds v Munson Healthcare, 259 Mich App 225, 229-230; 673 NW2d 792 (2003), quoting Farm Bureau Mut Ins Co v Combustion Research Corp, 255 Mich App 715, 720; 662 NW2d 439 (2003).
B. APPLICATION OF WALTZ
There is no question that plaintiffs claim is barred by the application of Waltz. “The statute of limitations for a wrongful death action is governed by the statute of limitations applicable to the underlying theory of liability.” Eggleston v Bio-Medical Applications of Detroit, Inc, 248 Mich App 640, 646; 645 NW2d 279 (2001), rev’d on other grounds 468 Mich 29 (2003). “The general period of limitation for a malpractice action is two years.” Miller v Mercy Mem Hosp, 466 Mich 196, 199; 644 NW2d 730 (2002), citing MCL 600.5805(5). “In general, a plaintiff in a medical malpractice case must bring his claim within two years of when the claim accrued, or within six months of when he discovered or should have discovered his claim.” Solowy v Oakwood Hosp Corp, 454 Mich 214, 219; 561 NW2d 843 (1997); MCL 600.5805(1) and (6) and 600.5838a. Before a plaintiff can commence a medical malpractice action, the plaintiff must mail a notice of intent to file suit to each health care professional or health care facility the plaintiff wishes to sue. MCL 600.2912b. This notice of intent to file suit must be sent at least 182 days before suit is commenced. MCL 600.2912b(l). MCL 600.5856 states:
The statutes of limitations or repose are tolled:
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b.
Also at issue in this case is the wrongful death saving provision of MCL 600.5852, which states:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
The alleged malpractice in this case occurred, at the latest, on January 19, 2001. Therefore, the medical malpractice period of limitations would have expired on January 19, 2003. Plaintiff was appointed the personal representative of the decedent’s estate on July 5, 2001. The wrongful death saving provision then extended the time plaintiff had to file his suit until July 5, 2003. Plaintiff sent his notice of intent to file a claim on May 9, 2003, after the medical malpractice period of limitations expired, but before the saving period of MCL 600.5852 expired. However, plaintiff did not file his complaint until October 20, 2003, after the saving period expired.
Plaintiff contends that MCL 600.5856(d) tolled the saving period and gave him until January 3, 2004, to timely file his complaint. Plaintiff relies on Omelen chuk, in which our Supreme Court referred to MCL 600.5852 as setting forth a “limitation period.” Omelenchuk, supra at 577. Accordingly, plaintiff believed that the notice tolling provision applied to the wrongful death saving provision in MCL 600.5852. However, in Waltz, our Supreme Court clarified that, despite the “imprecise choice of words” in Omelenchuk, MCL 600.5852 “is not a statute of limitations, but a saving statute.” Waltz, supra at 654 (emphasis in original). The Court further stated, “Section 5852 clearly provides that it is an exception to the limitations period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired.” Id. at 651 (emphasis in original). This exception to the limitations period cannot be tolled by MCL 600.5856(d). Id. at 651-652. The Court continued, “The source of the confusion surrounding our holding in Omelenchuk stems in part from our passing references to § 5852 as creating a ‘limitation period.’ ” Id. at 653. The Court clarified that MCL 600.5852 does not create a separate limitations period, but is a saving statute. Id. at 654. The Court held, “To the limited extent. . . Omelenchuk might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision, it is hereby overruled.” Id. at 655.
As mentioned previously, the medical malpractice period of limitations in this case expired on January 19, 2003. Therefore, plaintiff would have had to provide his notice of intent before this date to avail himself of the tolling provision of MCL 600.5856(d). Waltz, supra at 651. Because plaintiff did not provide the notice of intent until May 9, 2003, MCL 600.5856(d) does not apply. To avail himself of the saving provision of MCL 600.5852, plaintiff had to file his complaint within two years of being appointed personal representative of the estate, i.e., by July 5, 2003. Plaintiff did not file his complaint until October 20, 2003. Therefore, under Waltz, plaintiffs complaint is time-barred.
C. RETROACTIVITY OF WALTZ
Plaintiff, however, contends that Waltz should be applied prospectively and should not affect this case. We disagree.
“Judicial decisions generally are given full retroactive effect.” Holmes v Michigan Capitol Med Ctr, 242 Mich App 703, 713; 620 NW2d 319 (2000). “Prospective application is a departure from this usual rule and is appropriate only in ‘exigent circumstances.’ ” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005) (citation omitted). Prospective application is generally limited to decisions that overrule clear and uncontradicted case law, id. at 587, or decisions that address an issue of first impression whose resolution was not clearly foreshadowed, Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997). Our Supreme Court has listed three factors to be weighed when considering whether a case warrants prospective application: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice. However, these factors are only considered after the threshold question of whether the decision clearly established a new principle of law. Pohutski v City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002).
In Ousley v McLaren, 264 Mich App 486, 493-495; 691 NW2d 817 (2004), this Court determined that Waltz did not overrule clear and uncontradicted case law, but clarified confusing and imprecise dicta from Omelenchuk, and, to the extent that Waltz decided an issue of first impression, it was clearly foreshadowed “by the previous decision holding that § 5852 is a saving provision, not a statute of limitations or repose.” Therefore, this Court held that Waltz applies retroactively. Id. at 495. This Court, relying on Ousley, again determined in Farley, supra at 574, that Waltz applies retroactively. See also McMiddleton v Bolling, 267 Mich App 667, 671; 705 NW2d 720 (2005); Lentini v Urbancic (On Remand), 267 Mich App 579, 582 n 3; 705 NW2d 701 (2005). Further, this Court in McLean v McElhaney, 269 Mich App 196, 200; 711 NW2d 775 (2005), accurately noted that “in three orders entered the same day, the Supreme Court remanded cases to this Court for consideration as on leave granted, with the specific direction that Waltz be given full retroactive application,” citing Wyatt v Oakwood Hosp & Med Centers, 472 Mich 929 (2005), Evans v Hallal, 472 Mich 929 (2005), and Forsyth v Hopper, 472 Mich 929 (2005).
This Court is bound to follow the rule of law established by a published decision of the Court of Appeals issued on or after November 1, 1990. MCR 7.215(J)(1). Accordingly, we are required to follow Ousley. Because Waltz did not clearly establish a new principle of law, consideration of the factors listed in Pohutski was not necessary. It also appears manifest that our Supreme Court intended Waltz to apply retroactively from the remand orders in Wyatt, Evans, and Forsyth. Orders of our Supreme Court with an understandable rationale constitute binding precedent. Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002).
We note that, in Mullins v St Joseph Mercy Hosp, 269 Mich App 586 ; 711 NW2d 448 (2006), the majority declared a conflict with Ousley. Thereafter, this Court entered an order convening a special panel under MCR 7.215(J) to resolve the conflict between Mullins and Ousley, i.e., to consider whether Waltz should be given retroactive effect. Mullins v St Joseph Mercy Hosp, 269 Mich App 801 (2006). However, unless and until Ousley is vacated, we are required to follow Ousley, which is still binding precedent under MCR 7.215(J)(1).
Plaintiff also argues that applying Waltz retroactively denies him his constitutional right to due process of law because applying Waltz shortens the period of limitations for his claim by 182 days. We disagree. The period of limitations for a medical malpractice case is still two years, with tolling allowed if a notice of intent is sent within the period of limitations. The only period being shortened is the saving period of MCL 600.5852. The Court in Waltz, supra at 652 n 14, rejected a similar argument that its decision shortened the two-year period under MCL 600.5852. Therefore, we reject plaintiffs argument that applying Waltz denied him due process.
Plaintiff also argues that there was a change in the statute of limitations with Waltz and that courts are to apply the statute of limitations in effect at the time the cause of action arose, which, in this case, would allow tolling of the wrongful death saving period. Plaintiff correctly asserts that “the applicable statute of limitations is the one in effect when the plaintiffs cause of action arose.” Rzadkowolski v Pefley, 237 Mich App 405, 411; 603 NW2d 646 (1999). However, the statutory period of limitations for plaintiffs medical malpractice action was always two years under MCL 600.5805(6). The statute of limitations for medical malpractice actions did not change with the decision in Waltz. Waltz only construed the saving provision of MCL 600.5852. Therefore, the statute of limitations in effect at the time the cause of action arose was the same as the statute of limitations that the trial court applied to plaintiffs case.
D. EQUITABLE TOLLING
Plaintiff also contends that the trial court should have denied defendants’ summary disposition motion on the basis of judicial tolling. Since this appeal was filed, this Court issued its opinion in Mazumder, in which a majority of the panel invoked equitable tolling as a basis for post-notice-of-intent tolling of the wrongful death saving period, MCL 600.5852, under MCL 600.5856(d). Though we are required to follow it, we disagree with the majority’s decision in Mazumder.
1. SUMMARY OF MAZUMDER MAJORITY’S DECISION
In Mazumder, the plaintiff alleged that the defendants’ medical malpractice caused the wrongful death of the decedent on June 3, 2000. On May 2, 2002, the plaintiff was appointed personal representative of the decedent’s estate. On April 27,2004, the plaintiff sent the defendants notice of her intent to file a medical malpractice claim. On October 21,2004, the plaintiff filed suit. Mazumder, supra at 47. On appeal of the trial court’s denial of the defendants’ motions for summary disposition pursuant to MCR 2.116(C)(7), this Court confronted the
question... whether plaintiffs wrongful death medical malpractice action is properly dismissed after the decision in Waltz because the 182-day statutory tolling period, MCL 600.5856, on which plaintiff relied in calculating the period of limitations for filing her action was no longer applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired during the required 182-day statutory notice period for filing a medical malpractice action, MCL 600.2912b. [Mazumder, supra at 45.]
The Supreme Court decided Waltz on April 14, 2004, shortly before the plaintiff provided the defendants with notice of intent to file a malpractice claim. Mazumder, supra at 47, 54.
The Mazumder majority acknowledged that, in Ousley and subsequent decisions, this Court had affirmed that Waltz applies with full retroactivity. Mazumder, supra at 44-47. The Mazumder majority further acknowledged that, according to this precedent, the two-year wrongful death saving period, MCL 600.5852, was not tolled under MCL 600.5856(d) after the plaintiff sent notices of intent to sue, MCL 600.2912b, and the plaintiffs complaint would be considered untimely. Mazumder, supra at 47-50.
Nevertheless, the Court in Mazumder reasoned that “given the widespread recognition within the bench and bar of notice tolling during the saving period before the decision in Waltz, and the injustice that results from ignoring that recognition, plaintiff is entitled to equitable relief.” Id. at 48. In support of this holding, the Court, in part IV(E) of its decision, relied on (1) the dicta in Omelenchuk suggesting that MCL 600.5852 set forth a period of limitations, Mazumder, supra at 54-55; (2) two published decisions and five unpublished opinions of this Court purportedly following the Omelenchuk dicta, Mazumder, supra at 55 n 10; and (3) Morrison v Dickinson, 217 Mich App 308; 551 NW2d 449 (1996), for the proposition that “the Legislature’s intent was that the 182-day notice provision [MCL 600.2912b] would be counterbalanced by the 182-day tolling provision [MCL 600.5856],” both of which were enacted by 1993 PA 78, Mazumder, supra at 58.
In part IV(F) of the majority opinion in Mazumder, this Court reviewed the circumstances in which a court may apply the equitable or judicial tolling doctrine, and concluded that the doctrine applied in Mazumder be cause, in light of the Omelenchuk dicta and subsequent decisions apparently adopting it, the plaintiff understandably “relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case.” Id. at 59-62. Among other authority, this Court cited Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004), for the proposition that equitable tolling would excuse a plaintiffs failure to satisfy the applicable period of limitations when the failure stemmed from the plaintiffs “ ‘understandable confusion about the legal nature of her claim....’” Mazumder, supra at 59, quoting Bryant, supra at 432.
2. BINDING PRECEDENT REGARDING EQUITABLE TOLLING IGNORED BY MAZUMDER MAJORITY
A fatal flaw in the application of equitable tolling in Mazumder is that the majority neglected to completely examine and apply controlling precedent limiting the equitable tolling doctrine. The Michigan Supreme Court has held that equitable tolling cannot apply when a statute setting forth an applicable period of limitations contains no language contemplating equitable tolling. The majority opinion in Mazumder failed to acknowledge these Michigan Supreme Court cases and the limitation they place on equitable tolling.
Equitable or judicial tolling does not apply when a clear and unambiguous statute sets forth the applicable period of limitations and the statute does not “hint... that the Legislature intended that there be any tolling of that time.” Secura Ins Co v Auto-Owners Ins Co, 461 Mich 382, 387; 605 NW2d 308 (2000). In Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 266; 696 NW2d 646 (2005), the Supreme Court overruled the “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), as inconsistent with the language of the statute of limitations, MCL 600.5805(1) and (10). The Supreme Court noted the following at the conclusion of its period of limitations analysis:
This Court has rejected similar attempts to modify statutes of limitations. See.. . Secura Ins Co [supra at 387-388] (holding that the doctrine of judicial tolling cannot be applied in the absence of statutory language permitting such tolling).... While the judicial temptation to relax a statute of limitations may be understandable in the context of a lawsuit in which a plaintiff, alleging that he or she has suffered a serious wrong, has been denied his or her day in court, the costs involved in terms of undermining the clarity and predictability of the law, allowing stale complaints to proceed, and injecting uncertainty into a myriad of legal relationships, are considerable, not to mention that a court that does so would be exercising “legislative,” not “judicial,” power. See Const 1963, art 3, § 2; art 4, § 1; art 6, § 1. [Garg, supra at 285 n 12.]
In Devillers, supra at 564, the Supreme Court overruled its prior holding in Lewis v DAIIE, 426 Mich 93; 393 NW2d 167 (1986), on the basis that the Court in Lewis improperly had imposed onto the “one-year-back” period of limitations in MCL 500.3145(1) “a judicial tolling doctrine under which the one-year statutory period is tolled from the time a specific claim for benefits is filed to the date the insurer formally denies liability.” The Supreme Court in Devillers determined that, contrary to the plain language in MCL 500.3145(1),
[t]he Lewis majority impermissibly legislated from the bench in allowing its own perception concerning the lack of “sophistication” possessed by no-fault claimants, as well as its speculation that the average claimant expects payment without the necessity for litigation, to supersede the plainly expressed legislative intent that recovery of PIP benefits be limited to losses incurred within the year prior to the filing of the lawsuit. [Devillers, supra at 582-583 (emphasis added).]
The Supreme Court’s holding in Devillers supports the conclusion that equitable or judicial tolling does not apply in this case because the plain language in the relevant statutes, MCL 600.5805(5), 600.5852, and 600.5856, does not contemplate the possibility of judicial tolling. See Mazumder, supra at 71 (HOEKSTRA, EJ., dissenting) (opining that “[a]s in Devillers, an application of the doctrine of equitable tolling here would result in the ‘categorical redrafting’ of the plain and unambiguous language employed in both MCL 600.5856(d) and MCL 600.5852,” which “relief is beyond the authority of this Court”).
Furthermore, the Supreme Court in Devillers expressly distinguished Bryant, in which the Court found that, in light of the plaintiffs understandable confusion regarding the nature of her claims, i.e., whether medical malpractice or ordinary negligence, “[t]he equities of this case” warranted suspension of the applicable periods of limitations. Bryant, supra at 432. The Supreme Court in Devillers explained in relevant part that, unlike the involvement of the plain statutory language of MCL 500.3145(1) in the case before it, “in Bryant, there was no controlling statute negating the application of equity.” Devillers, supra at 591 n 65. In Titan Ins Co v North Pointe Ins Co, 270 Mich App 339; 715 NW2d 324 (2006), this Court recognized “that equitable tolling cannot be applied to unambiguous statutory language.” Id., at 345, citing Devillers, supra at 586. This Court affirmed “the trial court’s determination that plaintiff was attempting to expand the statute [MCL 500.3145(1)] by adding a tolling provision and that, because the statute was unambiguous, further interpretation was not permitted.” Titan Ins Co, supra at 346.
In summary, the majority in Mazumder ignored the controlling Michigan Supreme Court precedent in Devillers, Garg, and Secura Ins Co, which dictates that, in the absence of any hint that the Legislature intended for equitable or judicial tolling to apply, a court may not apply tolling contrary to the plain statutory language of MCL 600.5852 and 600.5856. The majority in Mazumder seems also to have disregarded the well-established principle that “the doctrine of stare decisis requires [the Court of Appeals] to follow the majority decisions of the [Michigan] Supreme Court, even when [the Court of Appeals] disagreed] with them.” Detroit v Vavro, 177 Mich App 682, 685; 442 NW2d 730 (1989); see also Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993) (restating the principles that “it is the Supreme Court’s obligation to overrule or modify case law if it becomes obsolete, and until this Court takes such action, the Court of Appeals and all lower courts are bound by that authority” and that, although “the Court of Appeals may properly express its belief that a decision of [the Supreme] Court was wrongly decided or is no longer viable, that conclusion does not excuse the Court of Appeals from applying the decision to the case before it”).
3. QUESTIONABLE MERITS OF MAZUMDER MAJORITY’S EQUITABLE TOLLING ANALYSIS
With respect to the majority’s equitable tolling analysis in Mazumder, we also note that the majority concluded that the plaintiff justifiably relied on the confusing dicta in Omelenchuk, but the majority failed to recognize or address the Supreme Court’s preOmelenchuk characterization of MCL 600.5852 as a saving provision, not a statute of limitations. Lindsey, supra at 58-69. We agree with Judge HOEKSTRA, who provided the dissenting opinion in Mazumder:
Here, plaintiff maintains that she reasonably relied on Omelenchuk to conclude that the notice tolling provisions of MCL 600.5856(d) apply to the period for commencing a wrongful death action under MCL 600.5852. However, as recognized by the courts in both Waltz and Ousley, any such implication by the Court in Omelenchuk was expressed in dicta that clearly contradicted the clear and unambiguous language employed in MCL 600.5856(d) and MCL 600.5852, as well as the characterization of MCL 600.5852 as a statute of limitations “saving provision” and an “exception” to the statute of limitations in Lindsey, which was decided before Omelenchuk, and in Miller, which was decided after Omelenchuk. Under such circumstances, it cannot be said that plaintiff exercised reasonable diligence in the timely pursuit of her claim, in choosing to rely on Omelenchuk to afford the relevant statutes a broad interpretation not supported by the plain language of the statute, such that the interests of justice require the application of the doctrine of equitable tolling. Indeed, as recognized by the Court in Waltz, and again by this Court in Ousley, a diligent and reasonable reading of the relevant precedents and statutory language plainly advises that a medical malpractice plaintiffs filing of a notice of intent to sue does not toll the wrongful death saving provision. [Mazumder, supra at 69 (HOEKSTRA, EJ., dissenting) (citations omitted; emphasis added).]
Given (1) that the plain language of MCL 600.5852 and 600.5856 does not contemplate equitable or judicial tolling and (2) the interrelationship of Lindsey, Omelenchuk, and Miller (discussed in Judge HOEKSTEA’s dissent in Mazumder), which does not give rise to a reasonable basis for a belief that Omelenchuk implicitly overruled Lindsey, we disagree that applying the statutory period of limitations to cases like Mazumder would occasion some fundamental unfairness or warrant the extraordinary application of the equitable or judicial tolling doctrine.
III. CONCLUSION
For the reasons stated above, we believe that Mazumder was wrongly decided. Although we disagree with Mazumder, we nonetheless follow it as required by MCR 7.215(J)(2). Accordingly, we conclude that the trial court should have denied defendants’ motions for summary disposition on the basis that, although the statutory period of limitations expired, it was tolled by principles of equity, thereby rendering plaintiffs complaint timely. We recommend that this case be submitted to a special conflict panel pursuant to MCR 7.215(J)(3).
Reversed and remanded. We do not retain jurisdiction.
Now MCL 600.5805(6).
The statute allows a plaintiff to file suit 154 days after mailing the notice of intent if the plaintiff does not receive a written response to the notice within 154 days of mailing. MCL 600.2912b(8). A plaintiff may also file suit before the 182 days expire if the plaintiff receives written notice from the defendant that the defendant does not intend to settle the claim. MCL 600.2912b(9).
3 Effective April 22, 2004, MCL 600.5856 was amended and subsection d became subsection c. The pertinent portion of the statute now reads:
The statutes of limitations or repose are tolled in any of the following circumstances:
(c) At the time the notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would he barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
Because subsection d was in effect at the time the cause of action accrued, we refer to MCL 600.5856(d) throughout this opinion.
This Court in Mazumder also cited the Michigan Supreme Court’s orders in Forsyth, Wyatt, and Evans that directed this Court to apply Waltz retroactively. Mazumder, supra at 45 n 2.
The Court in Mazumder, supra at 59-60, also cited Pohutski, in which the Supreme Court, contrary to 14 years of consistent Supreme Court and Court of Appeals precedent, eliminated the trespass-nuisance exception to governmental immunity on the basis that the plain language of the governmental tort liability act did not contemplate the trespass-nuisance exception. Pohutski, supra at 678-679, 689-690, 693-699 (applying its ruling prospectively in light of the “extensive reliance” on the incorrect statutory interpretation the Supreme Court announced in 1988 and the “longstanding” nature of the incorrect interpretation).
In Bryant, the Supreme Court primarily analyzed the distinctions between a medical malpractice claim and a claim of ordinary negligence. Id. at 420-432. The Supreme Court determined that, although the plaintiff had brought an action for ordinary negligence, several of her allegations sounded in medical malpractice and that the two-year medical malpractice period of limitations in MCL 600.5805(6), as well as the wrongful death saving period in MCL 600.5852, had expired. Id. at 424-432. The Supreme Court nonetheless reasoned that
[t]he equities of this case . .. compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan, even in the wake of our opinion in Dorris [v Detroit Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999)]. Plaintiffs failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights. Accord ingly, for this case and others now pending that involve similar procedural circumstances, we conclude that plaintiffs medical malpractice claims may proceed to trial along with plaintiffs ordinary negligence claim. MCR 7.316(A)(7). However, in future cases of this nature, in which the line between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter of prudence to file their claims alternatively in medical malpractice and ordinary negligence within the applicable period of limitations. [Bryant, supra at 432-433.]
Neither the majority opinion in Mullins nor the dissent in McLean, supra at 204-208 (O’Connell, EJ., dissenting), to which the majority in Mullins refers, mentions the Supreme Court’s 1997 Lindsey characterizations of MCL 600.5852 as a saving provision, distinct from a statute of limitations. | [
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] |
McGrath, C. J.
Plaintiff’s colt was killed at a highway crossing. The highway runs north and south. The railroad right of way is south-southwest. Defendant’s right of way adjoins that of the Michigan Central. The-sketch on following page will aid in a description of the-, situation.
The train was bound south-west, and the colt was killed at the cattle-guard. The guard is distant from the line of the highway 35 feet, measuring on the westerly rail, and 27 feet, measuring on the easterly rail.
The statute provides that every railroad company shall provide its right of way fences with—
“ Suitable connecting fences and cattle-guards at all highway and street crossings, which shall at all times be kept in effective repair, and sufficient to prevent stock of all kinds from passing upon the track of the railroad at such highway or street crossings.”
This statute evidently contemplates that railway tracks-shall be exposed within the limits of the highway only. By exposing its right of way and tracks beyond the limits-of the highway, defendant had increased the danger, and rendered itself liable for damage occasioned thereby. Andre v. Railroad Co., 30 Iowa, 107; Railroad Co. v. Newbrander, 40 Ohio St. 15; Railroad Co. v. Morgan, 38 Ind. 190; Railroad Co. v. Herbold, 99 Id. 91.
In Railroad Co. v. Morthland, 80 Ill. 458, the horse got upon the track where no fence was required, and followed the track until he reached the cattle-guard, and the court held that the omission to keep up fences and cattle-guards did not tend to produce the injury, and the court also found that the accident was due to the fault of plaintiff in allowing the horse to run at large.
The defendant cannot complain because the court submitted to the jury its claim that the manner in which it had constructed the fences and cattle-guards was a substantial compliance with the statute.
Whether the killing was due to defendant’s failure to properly construct its fences and cattle-guards was properly submitted to the jury. The train struck the colt at the cattle-guard. There was some evidence that before the train had reached the crossing the other horses had crossed over the track. This colt had dropped behind the others, and was eating grass on the company’s right of way, beyond the line of the highway. Other testimony tended to show that the presence of the train prevented the colt from getting across the company’s track upon the highway; that the colt, in its endeavor to get around the train, ran with the train upon the slope of the company’s road-bed, had passed from the highway in and upon the company’s grounds, and when it reached the guard undertook to jump across it, and was struck. In either case it cannot be said as a matter of law that the negligence of the company did not occasion the injury. There was no testimony that the colt had reached the company’s track until after the head of the train had passed the line of the highway. Mumpower v. Railroad Co., 59 Mo. 245; Holden v. Railroad Co., 30 Vt. 297; Towne v. Railroad, 124 Mass. 101.
Defendant insists that plaintiff was negligent, in that the colt was running at large, and relies upon Robinson v. Railroad Co., 79 Mich. 323. In that case plaintiff had turned his cattle into the highway; but here the fact is undisputed that this colt broke out of a pasture, where it was on the morning of the day upon which it was killed, and was in the highway without plaintiff’s knowledge. There was no evidence of any want of reasonable care on plaintiff’s part, and he cannot be said to have allowed or permitted or suffered the colt to run at large, within the language of the Bobinson case. .
With reference to the questions raised upon the admission of testimony, it is sufficient to say that the colt was a well-bred animal, sired by Hambrino, and from Lady Vera, who had paced a 2:20 gait, and was entitled to registry. The testimony tended to show that the colt was a promising one. Considerable testimony of horsemen was taken as to the value of get from such stock, and we think it was properly admitted. The value was given as high ■as $2,500. The jury found a verdict for $800.
The verdict was rendered April 18, 1891. The case was the last tried at that term of court, and the jurors were thereupon discharged for the term. On the 22d day of May following, after the judgment had been entered, plaintiff’s counsel moved the court to correct and amend the record of the verdict and judgment by adding thereto the .sum of $168, so as to make them read $968, instead of $800. The motion was based upon affidavits made by •each of the jurors, which set forth that they had instructed the foreman to return a verdict for $800 as the value of the horse, and $168 for interest thereupon, and that the foreman had neglected to make mention of the interest. The court granted the motion. This .was error. There is no warrant for correcting a verdict after the discharge •of the jury. Such a practice is open to serious objection and gross abuse. The only remedy in such case is a motion for a new trial.
The judgment will be reduced to $800, with interest from the date of its rendition in the court below, and affirmed at that figure, with the costs of this Court to. defendant.
The other Justices concurred.
3 How. Stat. § 3377. | [
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Marston, J.
This case is disposed of by Anderson v. White, ante, p. 130, decided at the present term, the only difference being that the action in this case was brought in justice’s court, while the other was in the circuit. There is no statute permitting in justices’ courts the course of practice adopted in this case.
The judgment of the circuit reversing the judgment rendered in the justice’s court must be affirmed with costs.
The other Justices-concurred. | [
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Per Curiam.
This is an action on the case brought for an obstruction to the navigation of the Kaw Kawlin river, whereby the scow of the plaintiffs, engaged in transporting wood on the river, was subjected to several delays. The defendants are the Kaw Kawlin River Booming Company and its president; and the obstruction was caused by filling the river with logs and detaining them by a swing boom of the Booming Company until they could be assorted. The plaintiff McGinnis, it seems, was the foreman of one Whipple who was contractor for running all the logs on said river for the season over the Ballou dam, so called, three miles above the defendant’s boom. The course of business was for McGinnis to run logs over the dam until the river was filled to the boom, and then wait until defendants could assort them, and the obstruction the scow encountered was from these logs thus filling the river between the dam and the boom. But it very clearly appears that if this was any wrong to parties desiring to navigate the river, it was the mutual wrong of McGinnis and defendants working together to a common end, and they might be joined as co-defendants in an action for causing the obstruction.
If McGinnis can sue these defendants for detaining his scow, they might have maintained a similar action against him, and the extraordinary spectacle would have been exhibited of persons uniting to commit a nuisance, and then demanding from each other compensation for their individual damages.
The circuit judge was correct in instructing the jury that the action was not maintainable, and the judgment must be affirmed with costs. | [
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] |
Campbell, C. J.
Plaintiff in error recovered judgment against the Grand Rapids, Rockford & Greenville Railroad Company, which was organized in 1870, for arrearages due on a contract made in 1872 to construct a portion of its line. This contract embraced the usual items of construction, including earthwork, clearing, bridging, culverts, ties, timber, piles and other items. The whole indebtedness created was between $40,000 and $50,000, of which about $20,000 was paid. The judgment was for the remainder. Defendant Miller is found to have been a stockholder in 1872, but the amount of his stock is not found. Execution was returned unsatisfied on the judgment May 12, 1877, the suit having been begun on the 80th of March, 1876, and judgment rendered February 15, 1877, for $20,167.97 and costs.
The present suit was brought against Miller as a stockholder for his alleged personal liability June 9th, 1877. The court below held the individual responsibility of railroad stockholders did not exist in favor of contractors such as Peck and Brown were found to be. Error is brought on this ruling.
The chief position taken in the elaborate argument of the plaintiff in error is that the Constitution of 1850 introduced a provision giving a "claim against every stockholder for any labor done for his company, to whatever person the company immediately dealt with, and that a contractor is as much entitled to relief as the laborer would have been for work done in the direct employment of the corporation. It is also claimed that the statutes have secured the same remedy, and that a' law of 1877 restricting recovery by new and onerous provisions has no force to destroy the former right.
The constitutional provision is as follows:
“The stockholders of all corporations and joint stock associations shall be individually liable for all labor performed for such corporation or association.” Art. 15, § 7.
The statute of 1871, which was in force when the contract was made and. performed, was in these words:
“ Sec. 8.' All of the stockholders of any such company shall be individually liable to an amount equal to the amount of stock held by them respectively, for all the labor performed, and also for all ties, wood, and supplies furnished for the company, but they shall not be liable to an action therefor until an execution shall be returned unsatisfied, in whole or in part, against the corporation, and the amount due on each execution shall be prima facie evidence of the amount recoverable, with costs, against any such stockholder; and every stockholder against whom any such recovery for labor shall have been had, shall have the right to recover the same of the other stockholders in said corporation, in ratable proportion to. the amount of stock they shall respectively hold.” Comp. L., § 2412.
A preliminary question is raised that these parties from the whole finding stood in the position of laborers rather than contractors, and thus avoided one difficulty claimed by defendant to preclude them from recovery. This assumption is based on the fact that it appears the work was done under an agreement which when reduced to writing and presented to the company was objected to and never signed, as variant from what they understood the contract to be, and the company in turn presented for signature to Peck and Brown a writing which they objected to for a similar reason, and the work was done without signing any contract.
The finding being express that the work was done under contract, and the facts stated making it equally plain that it was, the only dispute seems to have been, not as to what the- parties were willing to agree upon, but what they had agreed upon before. Such a contract actually carried out does not cease to be a contract because the parties differ as to its terms when they attempt to put them into writing. It was open to prpof, like all other matters of difference. It was no less a contract,
There was some reference made to a statute of 1877 as abolishing the old remedies, but we do not feel called on to consider it in the view we take .of this ease, as it was not apparently considered in the court below.
Two questions seem to arise in the outset, — ¿first, whether the liability under the Constitution for labor, which declares stockholders liable generally, is affected by the more restricted statutory liability; and second, whether contractors like those before us are within the law.
This action is brought under the statute, and not under the Constitution. If the constitutional provision Is sufficient to execute itself without legislation, It can only be by some proceeding in equity. There is no remedy at la¡w to do complete justice in such a case without some aid of statutes. The responsibility of the stockholder, as we held in Hanson v. Donkersley, 37 Mich., 184, is not primary, but collateral, and in a suit under the statute the statutory conditions must be fully complied with. This would affect the amount of recovery, if recovery is allowed, inasmuch as under the statute there is no liability beyond the amount of stock held by the defendant. In other respects the statute is broader than the Constitution in extending the liability beyond labor. But it follows the Constitution in declaring for whom the labor is to be performed.
The inquiry therefore arises 'whether the remedy for labor extends to the case of a contractor who has built a section of road.
As intimated in Brockway v. Innes, ante, p. 47, we can get very little assistance from adjudged cases in construing this language of the Constitution. But there can be no doubt, we think, that the main if not the only object of this provision .was to secure the claims of laborers whose wages are not usually very large, but whose means are not generally such that they can avoid suffering unless they are secured. Such persons have not ■ the same knowledge of business or command of resources as contractors, and they are much less able to protect themselves in advance by proper measures of precaution against loss. There is nothing in the proceedings of the constitutional convention to indicate from what source the provision was borrowed. The general railroad law of New York, which had then been recently adopted, contained a clause enforcing liability “for all the debts due or owing to any of its laborers and servants for services performed for such corporation,” and this has been held not to extend to the contractor for building a portion of a railroad. Aikin v. Wasson, 24 N. Y., 482. The natural meaning of the provision in question is that the work must be performed for the company, and create a company liability to the person-who performs it. If the labor is not performed for the company but for some one else with whom the company is in contract relations, it requires some expansion of the language to reach the middle man, and this would not be allowable unless upon plain evidence of such an intent. Courts cannot enlarge the liability of sureties beyond the plain terms of their suretyship.
It does not necessarily follow that there can be no liability for labor to a person who in performing a labor service employs his own assistants and workmen. There are certainly very many cases where the work which is done by a contractor is labor in the proper sense of the term and is so understood. There are undoubtedly cases where the line may not be easily drawn. But in such a case as the present there is no difficulty. These contractors were to go upon the line of the proposed railway, and transform a certain section of it into the structure of a track, clearing away trees and stumps, raising an embankment, building bridges and culverts, piling low land, and laying timber and ties where they belong, and turning over to the railway company ready for the finishing additions something which was the result of combined skill, labor and materials, as distinct in its character as a building. The value of such a structure cannot be nicely analyzed into so many days’ work or so much material. The contractors make their own bargains with their men, and for their material, and include in their prices such profits as they can induce the company to give, and which will make the undertaking remunerative for their time, expenditure, risk, and any other element which they suppose included. To call the completion of. such a contract labor done or materials furnished for the company would be to leave out the important element of a complete result which was the thing bargained for. If such a contract had been violated in any particular, the contractor could not recover the full price of the rest and confine the damages to the one item left out or spoiled. Putting in weak timbers endangering a bridge, might easily involve very much more than the additional cost of a few feet of sound timber. The effect of the failure on the entire work might be considerable, and could not be apportioned indefinitely among, the separate items of labor, time or materials. And where suit is brought on such a contract and judgment recovered for less than its face, or for its whole face, any attempt to determine what part is for labor and what part for something else may be impossible. It cannot reasonably be said that the men who work for such a contractor are performing labor for the company, and it is very certain that the contractor is himself doing something quite different. The same legislature which adopted the statute of 1871 recognized the difference by making special provision whereby railroad companies may be required to protect the wages of men employed by contractors or furnishing them material. Comp. L., §§ 2393-4-5. This law is copied from a New York law forming part of the same general system under which contractors were held not entitled to look to stockholders. Kent v. N. Y. Central R. R., 12 N. Y., 628.
If railroads were the only corporations, and if railroad construction were the only kind of labor contemplated by the Constitution, there would be more force in the suggestion that the majority of labor is left unprovided for by this construction. There is no reason to suppose railroads were particularly in the mind of the convention. At that particular time it is very certain they had given no occasion for the protection of contractors. But it is plain enough that the provision was intended to cover completed as well as inchoate enterprises, when corporations would have less occasion to make contracts than to employ men. There is no branch of business which is not more or less done by companies, from mines and manufactories of all sorts, large and small, to transportation by land and water, farming, building, lumbering, and numberless other enterprises. More persons labor for companies than for individual •employers in many parts of the country, and experience .has always shown these laborers, properly so called, are very much at the mercy of employers and need protection against corporate irresponsibility.
We do not see that there is any lack of cases for •the application of the constitutional provision after (excluding railway contractors.
It is much to be regretted that anybody should be injured or impoverished by relying on broken promises tof companies or stockholders. We are obliged however, to apply the law as we find it, and we do not think it applies to this case.
The judgment must be affirmed with costs.
Cooley and Graves, JJ. concurred; Marston, J. did not sit in this case. | [
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Campbell, C. J.
Brittain brought trover against Bodgers for conversion of a drill machine. The case shows that the machine was some time in the winter of 1870-1 taken from the shop of Brittain to the shop of Bodgers, and remained there till suit brought in November, 1875. That during this interval Bodgers used it. Demand was made of Bodgers before suit brought, and refused.
It also appeared that defendant some time in March, 1871, purchased the machine at a sale under chattel mortgage given by Brittain. This sale seems to have been after the removal. Brittain claims that the mortgage had been paid, and this is disputed.
The court- directed the jury that if they found Brittain had any cause of action they should give the value of the machine at the time it was taken into the possession’of Bodgers, with interest from that time at seven per cent.
This instruction was incorrect upon any theory, because it is fairly to be inferred from the case that the defendant set up no claim to the ownership of the property until he purchased at the mortgage sale, and there could be no pretense of any earlier conversion by him.
But the question comes up further, what evidence there was of conversion and its date. It may be fairly claimed that when plaintiff on the trial opened his case by showing a demand and refusal in' 1875, he thereby elected to fix the date of it as set forth in his declaration. Without deciding this, it seems to us the record is quite consistent with the fact that there was no earlier action which put Bodgers in the wrong. Unless his purchase was tortious he certainly could not be sued in trover without demand.
It is to be inferred from the record that Brittain had given a chattel mortgage which he did not pay promptly, and that the sale was made when there had been an apparent default. It is not shown by the bill of exceptions that Rodgers had any reason to doubt the validity of this mortgage, or that he was a guilty party to the seizure if the seizure was wrongful. If the sale was made under a genuine mortgage given by Brittain, and in apparent conformity with its terms, to a purchaser acting in good faith, we do not think the case parallel with such facts as those in Trudo v. Anderson, 10 Mich., 357, where the vendor never had any authority whatever to dispose of the property in dispute in the way he did, and was therefore himself a mere trespasser. In the present case, so far as we now see, there was an act done apparently within the. actual written authority of the mortgagee, which under the old law would have been a valid transfer at law even if payment of the mortgage had been tendered after default. Whatever may have been the actual infirmity of title under the sale, the innocent purchaser cannot be regarded as a trespasser, and cannot be held to have wrongfully converted property to which the mortgagor by his written authority had enabled the mortgagee to give an apparently good title. The long acquiescence of more than four years, if — as seems apparent — with knowledge by Brittain of the claims of Rodgers, cannot be allowed to work a right to damages which would perhaps never have been incurred if his claim had been asserted.
The judgment must be reversed with costs and a new trial granted. We have not the authority to give a new judgment with the proper deductions as we were requested to do. *
The other Justices concurred. | [
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Marston, J.
The facts in this case resemble very closely those in Welch v. Marvin, 36 Mich., 60, and we think the decision in that case must be here followed.
If the contract between defendants in error and Caswell was still in existence and uncancelled, plaintiff in error could not be held liable upon his promise, and the jury should have been so instructed as requested. The case referred to had not been published when this one was tried. Had it been, or the attention of the learned judge been called thereto, we doubt not the ruling would have been different.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, J.
This was a garnishee suit against the plaintiff in error, originating in justice’s .court. The constable to whom the summons was issued returns that he served it on “John W. Drew, agent of the within named defendant.” What Drew’s agency was does not appear. In his return to the writ of certiorari the justice states that,on the return day of the summons “the said parties appeared, and the said John W. Drew was sworn and proceeded to make a disclosure.” The disclosure actually made, however, appears to have been made by D. D. Drew, who describes himself as “ticket agent of said, road.”
It is, we think, the fair import of the justice’s return that when he says “the said parties appeared” he means the plaintiff and Drew. But as the mere fact that one has an agency of some undisclosed sort for another cannot authorize him to appeal- in suits for his principal, the jurisdiction of the justice must obviously depend upon the validity of the service of the summons. If that was insufficient, the whole proceeding falls to the ground.
The statute (Comp. L., § 6463) permits the summons on a corporation garnishee to be served on “the presi clent, cashier, secretary, treasurer, general or special agent, superintendent, or other principal officer.” John W. Brew is not represented to be an officer of the railroad company, but an agent. But what sort of an agent? Was he agent to buy wood, or employ a switch-man, or to keep cattle off the track, or what was his agency? Every servant of the road is in a sense an agent: there must be something more definite than the mere designation of a man as agent before a court can say that his relation to the corporation was such as to make him its representative for the purpose of receiving service of process for it.
The terms “general or special agent” are very indefinite, but employed as they are here in association with terms designating the principal officers of the corporation, they evidently intend agents who either generally or in respect to some particular department of the corporate business have a controlling authority, either general or special. They do not mean every man who is entrusted with a commission or an employment. It could hardly be pretended that the Legislature had the power to make every inferior agent the agent of the company for such a purpose; if it had, it would be a power which a prudent Legislature would be careful not to exercise, and which we are confident there has been no intention to exercise in this statute.
The justice, then, never obtained jurisdiction. The appearance of B. B. Brew, and his disclosure were of no validity whatever. It is suggested in the brief for defendant in error that certiorari is not the proper remedy, because the garnishee statute gives an appeal. Farrell v. Taylor, 12 Mich., 113. It is a sufficient answer that the proceeding had no validity under the garnishee law, and certiorari was the appropriate remedy to get rid of the void judgment.
The judgment must be reversed with costs of all the courts.
The other Justices concurred. | [
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Graves, J.
This is a certiorari to a circuit court commissioner to review his decision on an application to dissolve an attachment.
February 7th, 1878, Loder sued out an attachment from the circuit court, against Littlefield on an affidavit of Littlefield’s non-residence in the State. Littlefield subsequently applied to dissolve the attachment on the claim that the representation made in the affidavit, of his being a non-resident was not true, and the commissioner thereupon cited Loder to show cause against the application. The parties attended before the commissioner pursuant to the citation and order for hearing, and respectively made proofs, and the commissioner upon final hearing determined in favor of the application and made an order for the dissolution of the attachment.
The result depended upon whether it was shown that the affidavit in attachment was well grounded in its statement respecting Littlefield’s non-residence, and we think the commissioner erred in holding that the facts were insufficient.
It was admitted by all that Littlefield formerly resided in New York and there was not only a lack of substantial and necessary facts to make out that he had discontinued his residence there and had established one here, but facts were adduced which amounted to affirmative proof that no real change of residence had taken place.
In saying this we of course confine ourselves to the case in the record and do not mean that a state of facts leading to a different opinion might not possibly be shown.
The proof was positive that he had declared to various persons that his home was in New York, and it was likewise proved that he had registered himself at the hotel as a resident of New York. He testified that his wife owned a house there and that there was her home ; that there was no difficulty' whatever between them; that he pays her visits from time to time and then lives with her in the same house where she has her home and cohabits with her as her husband. His own statements show that such has been the case for years. There is no occasion to refine upon this case. It is impossible to reconcile defendant’s explanations with the conclusion that he has become a resident of this State.
The order made by the commissioner must be quashed, with costs against Littlefield.
The other Justices concurred. | [
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] |
Graves, J.
This was a proceeding taken under Comp. L., ch. 215, to enforce a claim for $62.65 in the circuit court as a mechanic’s lien. Although the certificate of lien described the supposed debtors as Zebel C. Duyer and Ellen Duyer, and the petition and other papers on the part of complainants so described them, it would seem that their true names were Zebel C. Guyer and Ellen Guyer, and not Duyer. But this is not important now. The circuit judge dismissed the petition for want of jurisdiction and the petitioners appealed.
The ruling was correct. The jurisdiction is statutory and does not depend upon the common-law authority of the court. The statute contemplates that one person by his own act may impose a lien upon the land of another without any writing between them, and that the lien so obtained may be summarily enforced.
Implications in favor of jurisdiction cannot be much indulged. Judicial cognizance of the remedy is assigned to courts of chancery and the purpose of the Legislature to subordinate it to the limits prescribed for the general jurisdiction except as otherwise specially provided or necessarily implied is extremely plain. The amendment made in 1873 is distinct in its utterance on this subject, 1 Sess. L. 1873, p. 119. Chapter 215 before mentioned is silent in regard to the amount necessary to confer jurisdiction. The Legislature have left that matter to the general statute which expressly says that courts of chancery “shall dismiss every suit concerning property (excepting suits between copartners, and suits for the foreclosure of mortgages), where the matter in dispute shall not exceed one hundred dollars, with costs to the defendant.” Comp. L., § 5059. The enforcement of these statutory liens is within this provision.
Indeod.it would be remarkable if it were competent for any one claiming a right of lien for the matter of five dollars or other trifling amount to involve the debtor in the heavy costs of a suit in chancery and moreover subject the court to the surrender of its time and attention to an infinity of little claims. It has always been a leading feature of our system to confine original jurisdiction in small eases to inferior courts and to exclude such matters from original cognizance in the higher tribunals. Even in attachment cases the circuit court is not allowed to take jurisdiction unless the amount- sworn to be due over and above all legal set-offs exceeds $100. Comp. L., § 6400. The purpose to observe the principle is apparent in the Constitution. But we are not now called on to consider whether that instrument permits the Legislature to extend the jurisdiction of these higher courts to civil cases of this kind where the amount is less than $100. It is sufficient for the present that it has not been attempted.
The decree below must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The information was filed under section twelve of article four of the act of 1873, “to revise the laws providing for the incorporation of railroad companies,” etc. 1 Sess. Laws, 1873, p. 496, 537. The section is as follows:
“ Sec. 12. If any person shall, by the placing of any impediment upon the track of any railroad, or by any other means whatsoever throw from said track any engine or cars used thereon, or attempt so to do, whether such engine or cars be thrown from said track or not, or shall by any other means whatsoever willfully endanger or attempt to endanger the lives of persons engaged in the work of said road, or persons traveling on the engine or cars of said road, he shall be subject to imprisonment in the State Prison during his natural life, or any number of years, in the discretion of the court. And it shall not be necessary for the People to allege or prove in any such case that the person thereby intended to injure or endanger the life of any particular person or persons.”
No serious question seems to be made of the crimiinal conduct of defendant; but whether, it is an act within the statute is the point in dispute. The information contains four counts, the first three of which are intended to charge a completed offense under the statute, and the fourth a felonious attempt. For the purposes of this ease it will be sufficient to give the first count, which is copied in the margin.
The evidence on which a conviction was obtained on this indictment showed the following facts: One night in September, 1877, as a train on the Michigan Central Railroad was passing east from Chicago, defendant entered one of the cars at Niles. When near Dowagiac he spoke to O’Kief, the conductor, and requested to be waked up when he reached that place. O’Kief told him they were near Dowagiac now and he had better not go to sleep. The nest O’Kief saw of defendant they were past Dowagiac some four miles. Finding defendant asleep, or pretending to be so, O’Kief roused him up and asked where he intended to go now. He said to Dowagiac. O’Kief replied they were past Dowagiac, .and inquired why he did not get off there. Defendant said he was asleep, and had something to say about his request to be waked up. The train was then near Glenwood. O’Kief told him he could get off there. He said he would if he could have a pass back to Dowagiac. This was refused to him and he refused either to pay fare for carriage farther or to get off. O’Kief thereupon called upon Hess, a brakeman, to put defendant off, which was done at the rear end of the train. Defendant showed great anger, and as Hess was about to step upon the train again defendant fired a pistol apparently aimed at Hess. There was evidence from which it might be inferred that the ball grazed the pantaloons of Hess just above the knee and struck the buffer of the car he was entering.
This was the offense for .which "the defendant was tried and convicted. It was a gross and probably a felonious assault, but we have not been able to convince ourselves that it was such criminal conduct as the statute of 1873 was aimed at. ■.
For the punishment of felonious assaults where only individual injuries are intended, the common law and the previous statutes made ample provision.' There was no occasion whatever for a provision like that in the Act of 1873 for the punishment of assaults with intent to kill or maim particular persons, and their trial and punishment would not thereby in any degree be facilitated or made more certain. If the Legislature had such assaults in view in passing the Act of 1873, it is impossible to assign any sufficient reason for it.
There was, however, a class of offenses for which legislation was greatly needed; and these offenses are very well indicated by the general terms of the act. They were cases'in which, for the purposes of plunder, or for the gratification of revenge upon railroad companies, or from other motives, equally criminal acts were done which threatened indiscriminate and perhaps wholesale injury to persons engaged in the management of railroad trains, or persons being transported upon them. Placing obstructions upon the track with intent to throw off the train was perhaps the most- common instance of the criminal conduct for which special legislation was needed, but this was only one of many ways in which great and indiscriminate injury might be inflicted, and the statute was made general to embrace all similar cases, and not with any. purpose to make new provisions for criminal assaults which were already sufficiently provided for.
To fire a pistol at a brakeman may endanger the life of a person “engaged in the work” of the railroad; but so might beating a laborer engaged in repairing its track, or any other criminal injury inflicted in a private quarrel. But such an offense is not what this statute contemplates; it has in view offenses which threaten more general injury, and in which the evil contemplated is to be' accomplished, not by singling out individuals for assaults that endanger no others, but by attacks upon or interference with the track, cars, or machinery' of the railroad.
We think the defendant cannot be convicted under the Act of 1873; and it must be certified to the court below that judgment should be arrested and the defendant discharged.
The other Justices concurred.
“Cass County — ss.
Harsen D. Smith, prosecuting attorney in and for the county of Cass aforesaid for and in behalf of the People of the State of Michigan, comes into said court at the September term thereof, A. D. 1877, and gives the court here to understand and be informed that heretofore, to wit, on the 6th day of September, A. D. 1877, at the township of Wayne in the county aforesaid, the Michigan Central Railroad Company, being a corporation duly organized under the laws of said State, then and there owned, used and operated a railroad called the Michigan Central Railroad, which said railroad did then and there run through said township of Wayne in the county-aforesaid, and that on said last named day said Michigan Central Railroad Company ran and operated a train of its ears over its said road through the said township of Wayne aforesaid, consisting of passenger coaches and an engine and other cars, which said coaches at the time then and there contained a large number of persons traveling over said road, and other persons engaged in the work of said road, and that one Leopold Dunkel, then and there, as said train of cars was passing through said township of Wayne, in the county aforesaid, over its said track in said township, did willfully endanger the lives of said persons traveling on said cars and coaches-of said road and the lives of said persons engaged in the work of said road, by then and there shooting and discharging a pistol loaded with powder and a leaden ball at the said persons on said train of cars as aforesaid, and did then and there shoot at said persons on said train, thereby willfully endangering the lives of said persons on said train as aforesaid contrary to the statute in such case made and provided.” | [
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] |
Campbell, C. J.
This is an action to recover the amount of local taxes levied within the territory of the township of Roscommon while attached to Midland, and claimed not to have been expended legally.
In 1859 the unorganized counties of Roscommon and Ogemaw were attached to the township of Midland, “for all municipal and taxable purposes, until set off into other townships.” Sess. L. 1859, p. 879.
In 1861 an act was passed “to regulate the manner of attaching unorganized territory to organized counties, for judicial and municipal purposes,” and after declaring that unless otherwise determined by the board of supervisors, such county should be attached to the county town, and after providing in a certain contingency for making a separate town, made a further proviso in these words: “And provided further, That all taxes levied in said unorganized county, so attached, for other than for State or county purposes, shall be expended within the limits of such unorganized territory.” Sess. L. 1861, p. 293.
The township of Roscommon was organized separately in 1873, and had been divided subsequently by the erection of two more townships. During the interval from the passage of the Act of 1861 to the organization in 1873 township and highway taxes and school taxes had been levied including the two-mill tax under the school legislation. It is claimed that this money was not expended within the new township and should be refunded. It also appears that there is no such money to any considerable amount remaining in the treasury of Midland.
The ground is taken for the defense, first, that the Act of 1861 does not apply to cases like the present; and second, that no action lies if it does apply.
The statute of 1861 applies in terms to all past as well as future eases. But it is insisted the language of the Act of 1859 made Roscommon an integral part of-Midland, and not territory attached. The language which we have quoted from that statute, as well as its title, which is “An Act to attach the unorganized counties of Roscommon and Ogemaw to the township of Midland,” cannot, we think, be so construed. There is a plain design to retain the two counties named in their integrity, and not to put them out of existence. The act expressly limits the union by reference to a future separation, and while such separation is possible in a perfect and single township, the language is significant as denoting a temporary purpose.
But we think there are insuperable difficulties in the way of enforcing this action. There is no statute declaring that the unexpended funds shall belong to the future separated townships, and there are no provisions of law under which it can be ascertained at any time without a somewhat complicated calculation, if at all, just what moneys are in such condition. The statute does not provide for separate management of the funds raised in the unorganized territory, and could not very well do so without making a system quite different from ordinary town government. The regular township laws, which are the only guide to town officers, do not furnish adequate means for such separate management, and if there is any sufficient appropriation under the law of 1861, it can only be made effective either by some preventive proceedings against misdirection during the union, or by steps of some sort taken at or after the separation.
The law of 1861 does not, any more than the ordinary laws, contemplate the raising of any unnecessary taxes. It is contrary to all our- system to levy taxes for the purpose of accumulating funds for the future. The statute of 1861 plainly contemplates that money shall be raised only for -current expenditure, and that it shall be expended by the town under whose authority it is raised. It makes no provision for any fund passing intact by inheritance to the new township.
Moreover the whole policy of the State has been to keep the financial arrangements on division of municipalities out of the courts, and to leave them to disposal by the administrative authorities on business and equitable principles resting largely in sound discretion. From the nature of the case town business must be done without technicality and with reference to the general usages and understanding concerning the bearing of the action which is taken. It is quite easy to see that money may be used for the benefit of part of a township for schools, ways and bridges, where it is not laid out. technically within that region. The words of the statute must have a reasonable and not necessarily a literal interpretation. We are not satisfied that money thus expended without any abuse or fraud of discretion would not come within the terms of the statute. It could not have been intended to require the unorganized territory to escape burdens which were necessary for its welfare merely because the whole expenditure was not made inside of its bounds.
But, however this may be, it is not the town but the taxpayers who will be damaged by having taxes drawn from them which they ought not to pay, and while it might be quite desirable to have the town authorized to act as their representative, that office cannot be assumed without authority. Whether money is levied rightly or wrongly, under the statute, it is quite clear that if now put- into the treasury of Koseommon it would. still require legislation to provide for its proper disposition not only in that town but in the other towns set off from it.
The statute of 1861, — whether it be regarded as laying down a principle or as establishing a binding appropriation, cannot be carried into effect without further legislation which will provide for some ascertainment by the township or other authorities, of the shares belonging to the funds entitled to contribution, as well as a remedy to secure it. It is probable the proviso was added to the bill without much thought as to its effect. It is too imperfect to be carried out as it stands, under present legislation.
Judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J..
This cause is governed by Yost v. American Insurace Co., ante, p. 531, just decided. The suit is upon a similar premium note. The only peculiarity in this case is that when the agent solicited the insur anee lie fully explained to Cougle that under the charter of the company the insurance terminated at the end of the year for which payment was made in advance, and was only renewable at the option of the insured by the payment of'another installment on the premium note. It thus appears that the insurance was effected on the distinct understanding that the contract bore the construction which in the case of- Yost has been shown to be the natural and reasonable one.
The judgment is affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Defendant below was convicted of the murder of John E. Morley and brings error. The principal error which induced this court to reverse the judgment, at the last term, was that the crime set forth in the information is not the same in description as the one which the prosecution was allowed to put in proof.
The information, which is very meager in its allegations, sets forth that Chapman “on the twelfth day of November, one thousand eight hundred and seventy-six, at the township of Meridian, in said Ingham county, with force and arms did make a felonious assault in and upon the body of one John F. Morley, in the peace of the People of the State of Michigan then and there being, and then and there willfully and of his malice aforethought did kill and murder the said John F. Morley,” etc.
The proof offered and admitted against objection was that on the day named in the information (November 12, 1876), Chapman committed an assault on Morley at the town of Meridian. That Morley was subsequently removed to his home in Lansing, where he lived until November 27th, 1876, and then died, as was claimed, of the injuries- which he had received fifteen days before in the former town. The averments in the information laid the whole transaction in Meridian, and averred the assault and the death as simultaneous. It was objected that under such averments it could not lawfully be shown against respondent that an assault made in one town was followed after an interval of time by death in another place.
The difficulty which is presented does not relate to the frame of the indictment as a sufficient pleading, aside from the proofs. Although very far short of being a good common-law indictment for homicide, most of the deficiencies are within the statute which dispenses with setting forth the manner of killing. Comp. L., § 7916. The common law required the nature of the weapon to appear, as well as the nature and position of the wound, while it was competent to show the assault to have been made with any weapon or implement which could produce a similar injury. The statute dispenses with these averments which had never been construed according to their real meaning. But it does not follow, even as to such averments, that where the information or indictment does go into details, it will not be inter preted on common-law principles far enough to prevent repugnancy. It here avers an assault, which is á crime of violence, and the death sought to be proven was the result of an assault, so that there was in that respect no lack of conformity.
Neither is the information defective for not containing sufficient- averments of time. It does contain averments which would unquestionably make out a murder where the death was simultaneous with the stroke. There is no occasion, therefore, to refer to § 7923, •which applies to indictments and informations deficient on their face in this respect.
The difficulty here is that the offense is misdescribed in two respects: first, in setting-forth the assault and death as concurrent in time, and second, in averring them — which would perhaps have necessarily followed— as concurrent in place.
The pleader seems to have supposed, and such is the argument made, that the murder is considered in law as occurring when the blow was given which resulted in it. The time and place of the blow are given — as they always should be, if. possible — in strict accordance with the facts. The whole transaction is averred to have been a single occurrence.
The Legislature has never undertaken and it is reasonable to suppose they never will undertake, to allow criminal charges to be so drawn as to mislead any one concerning the offense which they purport to describe, and we have no statute which authorizes prosecutors to misdescribe or omit any thing which at the common law was regarded as an essential element of the crime, whatever may be the case as to matters indifferent. And when a description is found in an information which uses common law phrases and references, it must be assumed as intended to have its common law interpretation. As has been frequently remarked, the rules of pleading are framed on the supposition that accused persons may be innocent, and they cannot be construed except in that light. They are assumed as necessarily containing, according to the constitutional requisition, enough to inform an innocent man of the facts intended to be shown against him. Brown v. People, 29 Mich., 232; People v. Marion, 28 Mich., 255; People v. Olmstead, 30 Mich., 431. Making all due allowance for the averments which at common law need not be strictly made out, the offense must not at any rate he misdescribed, nor can the indictment omit any thing essential to its description. Enders v. People, 20 Mich., 233; Merwin v. People, 26 Mich., 298.
From the earliest history of the common law, all homicides have been regarded as composed of two distinct elements, neither of which has been allowed in theory or in legal practice to merge the other. The injury which causes death is never regarded as constituting the crime of murder or manslaughter. The death of the victim not only within a year and a day, but also within the same jurisdiction was the controlling element which distinguished the guilt of the assailant from a common assault. The time and place of death were always considered as necessary to he averred, and were required to be averred as independent of the averments of assault. Until provided for by statute, death in one county from an attack in another did not make murder in either county. 2 Hale P. C., 163; 1 Russ. Cr., 548-9; Regina v. Gt. Western Rw., 3 Ad. & El. (N. S.), 333. And a statute which provided for the- punishment of crimes commenced in one county and finished in another has been applied to such cases. 1 Russ. Cr., 548. It is only under modern statutes that death on land from an injury at sea, or death at sea from an injury on land, could be reached by either common law or admiralty courts. See cases referred to in People v. Tyler, 7 Mich., 161. When this case came up a second time in Tyler v. People, 8 Mich., 320, it was held by a majority of this court that the fact of death within this State was so impor tant a part of homicide as to give jurisdiction where the blow which caused it was beyond the jurisdiction. It is enough for the present case to say that the fact of death is an essential ingredient in homicide, and until it occurs there'is no such crime, and one who aids the assailant between the blow and the death is not an accessory before or after the fact. 2 Hawk. P. C., 448, 320; 4 Bl. Com., 38; 1 Russ. Cr., 38; Archb. Cr. Pl., 10; 1 Hale P. C., 622. The time for bringing-a prosecution-by appeal ran from the death and not from the injury. 1 Hale P. C., 427. And it has been expressly held that an indictment which correctly showed the dates of the stroke and subsequent death, was bad if ■ it charged the murder as of the former day, and good if it charged it as of the latter, although better if it connected the offense with both. 1 Hale P. C., 427, 428.
It certainly would not strike any one who is not a criminal lawyer that there could be any identity in two descriptions, one of which described a murder where death was immediate, and another where it occurred at a different place and after a considerable interval. If the person killed in the present case had been a stranger, and described in the information as a person whose name was unknown (and in that case the rules of pleading would be the same), an innocent defendant charged with killing him on the 12th of November, in Meridian, could hardly be expected to understand he was to meet a case where the supposed victim died elsewhere thereafter, and might find great difficulty in getting at the facts. Whatever liberality may be used in allowing criminal prosecutions to proceed on false allegations, courts cannot without going entirely beyond reason permit such a charge as that contained in the information before us to cover facts entirely inconsistent with it.
It is ' undoubtedly true that thé wrongful act of the respondent may have all been done on the 12th of November, but it is equally clear that on that day there had been no murder, and that an averment of the death at Meridian was untrue. There is no doctrine of relation which could alter the date or the time of the death, and no rule which could anticipate the death and complete the crime earlier:.
We are not called upon now to speculate on the question whether in a case like this there may not be a brief indictment which would obviate the difficulties. It is not desirable to favor any practice which does not fairly inform accused persons of the charges against them. There may be, nevertheless, some forms legally sufficient, which are not of much use for such a purpose. It would not be creditable to the administration of justice to go far enough to permit repugnant statements.
The judgment has been already entered in accordance with these views.
The other Justices concurred. | [
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Cooley, J.
This case • originated in justice’s court. The return of the constable to the process which commenced it, showed due service. The defendant appeared on the return day and pleaded to the merits. Subsequently the constable was permitted by the justice to amend his return, and he made such an amendment as showed the service to have been insufficient. The defendant thereupon moved to dismiss the cause, which motion was denied. The denial of this motion is the error now relied upon.
When the motion to dismiss was made, there was an issue on the merits, and no motion was made by defendant for leave to withdraw his plea. At that stage of the case it was of no importance whether the writ was or was not properly served. Stone v. Welling, 14 Mich., 514; Falkner v. Beers, 2 Doug. (Mich.), 117.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
This case brings up .for review an order of the circuit court for the county of Macomb affirming an order of the probate' court, making final distribution of the estate of Mahala Stoddard. The question presented by the record arises upon the will of Mahala Stoddard, which is copied in the margin. Mahala Stoddard died in 1870, and Clara Belle Stoddard was her sole heir at law. It is manifest from a reading of the will that she was also the principal object of her mother’s testamentary bounty. - She died, however, at the age of fifteen years, not having married, and plaintiff was appointed her administrator. He claims that the gift to Clara Belle Stoddard was a gift of the same interest she would have taken as heir-at-law, and that consequently, on a familiar principle of the common law, she took on the death of her mother as heir-at-law and not as devisee. This being so, on her death, the property would pass to her heirs-at-law and next of kin, and not to the persons who, under the will of Mahala Stoddard, were to take in the event of Clara Belle dying unmarried before coming of age. In the probate court this claim was disallowed, and the property was assigned to Samuel D. Weeks, David Weeks, Jane Gibson, Sabrina Argo, and the children of Mary Robinson, with provision, however, that “before any actual distribution be made, that all proper charges and expenses for or on account of said Clara Belle Stoddard under the will aforesaid, be paid out of said estate.”
The argument which has been made on behalf of the plaintiff in error has not satisfied us that there is any error in this order. Nothing seems to us plainer than that the testator did not intend to give to her daughter the same interest in her estate which the daughter would have taken as heir-at-law. What she did intend was, to make provision for the daughter’s support and education, and then to give her the estate conditionally; that is to say, to give it to her in case she did not die during minority, leaving no child. The intent to make a gift of this conditional nature is so plain that no argument can make it plainer. And this of course is an end of the plaintiff’s claim; for if the gift by will was conditional, it could not be a gift of the same interest which the daughter would have taken under the Statute of Descents, or under that and the Statute of Distributions. We think the title to neither , the real nor the personal estate ever vested in Clara Belle, because by her death during minority and childless, the condition was never performed.
It is said, however, that there are unsatisfied claims for the care, nursing and medical attendance bestowed upon and provided for Clara Belle in her lifetime, and that sufficient of the estate of her mother should have been assigned to the plaintiff in error to provide for these. But such claims were, under the will, claims against the estate of the mother, with which the plaintiff in error had nothing to do. The order relating to that subject was the proper one.
The judgment must be affirmed with costs.
The other Justices concurred.
I, Mahala Stoddard of the town of Kichmond, county of Macomb and State of Michigan, of the age of forty-seven years, and being of sound mind and memory, do make public and declare this my last will and testament in manner following, that is to say:
1st. I give and devise to my nephew Samuel D. Weeks, the sum of one hundred dollars, to be paid out of my personal estate.
2nd. I give and devise all the rest of my personal and real estate of whatever name and nature whatsoever to my daughter, Clara Belle Stoddard, her heirs and assigns forever, except in case my said daughter shall die during her minority and leave no child, then and in such case I give and devise my estate in manner following:
To my said nephew Samuel D. Weeks, I give and devise one-fourth of all my estate. The rest and residue to be divided into four equal parts, of which my brother David Weeks shall receive one part, my sister Sobrina Argo one part, and the children of my deceased sister Mary Kobinson the remaining one-fourth part.
And X hereby dispose of and commit the tuition and custody of my daughter Clara Belie, for such time as she continues unmarried or under the age of twenty-one years to my friend Jane M. Kinney, and it is my request that she be appointed the guardian of .my said daughter immediately after my decease; but if the said Jane M. Kinney shall die during the single life or nonage of my said daughter, then and in that case I commit the care and custody of her to my executor hereinafter appointed.
And it is my will and request that the board and tuition of my daughter and all necessary expenses attending her education, and care in sickness be paid from the income of my estate if the same shall be sufficient; if not, then so much of the principal as shall be adequate to such expenses.
And lastly I do hereby appoint my brother David Weeks to be the executor of this my last will and testament, hereby revoking all former wills by me made.
In witness whereof I have hereunto pet my hand and seal this 3rd day of August, A. D., 1870.
Mahala Stokdabd. | [
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] |
Campbell, C. J.
After the appointment of a general administrator commissioners were appointed to hear claims against the estate, and had given notices and entered on their duties. Afterwards an appeal was taken from the appointment of administrator and pending the- appeal a special administrator was appointed. The commissioners continued to act, and a motion is made for a prohibition, the facts being admitted.
Per Curiam. The appeal from the appointment of the administrator did not carry up with it any of the collateral proceedings and only stayed further proceedings in pursuance of the order appealed from. Comp. L., § 5225. The commissioners when once appointed become a special tribunal which for most purposes is independant of the probate court, and from which an appeal lies to the circuit court. There can be no reason why proceedings before them should be affected by such an appeal, so long as no appeal has been taken from the order appointing them, which must stand by itself. If there were no one to represent the estate before them, there might be a temporary suspension of action by them in the actual hearing and disposal of claims, because the estate is interested in such disposal; but a special administrator has for that purpose the same duty as a general administrator and is bound to attend to the interests of the estate. We think the commissioners should proceed without reference to the appeal, and that the special administrator should represent the estate before them.
The prohibition must be denied. | [
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Cooley, J.
This is a case made after judgment. No exceptions whatever appear in the record, and there is consequently nothing for this court to review.
The case is dismissed with costs.
The other Justices concurred. | [
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Mabston, J.
Complainants filed a bill to restrain the defendants, as County Treasurer and Auditor General, from selling their lands for the delinquent taxes assessed thereon for the year 1875. A decree was rendered perpetually enjoining defendants from executing any conveyance under the sale made, and declaring the taxes assessed upon the lands null and void. From this decree defendants appealed.
Upon the argument in this court it was urged that the levy of.taxes for 1875 was void for two reasons.
First. For want of the certificate of the board of review, required by the charter of the city of Marquette; and
Second. For want of the certificate of equalization by the chairman of the board of supervisors.
The. facts were stipulated to by the solicitors, and the following are the material portions thereof bearing upon these questions.
“3d. That the assessors of said city of Marquette made an assessment roll for the year 1875 in due form, containing a description of the real estate in said city, and the names of the resident tax-payers of said city; that the mayor and assessors of said city and supervisors of the several wards met at the council rooms at the time prescribed by law as a board of review for reviewing said assessment roll, and remained in session as required by law and reviewed said roll. Said board kept no record of their doings. After they had completed the review of said assessment roll no certificate was attached thereto by any of the members of said board other than the following, which was without date, and was signed only by the assessors, and attached to said roll.
“We do hereby certify that the within assessment roll contains a description of all the real estate in the city of Marquette liable to be taxed, according to our best information, and that we have estimated the same at what we believe to be the 'true cash value thereof, and not at the price it would sell for at a forced auction sale; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll, and that we _ have estimated the same at its true cash value according to our best information and belief.
(Signed) E. M. Spalding, Assessor.
(Signed) Rich’d P. Traverse, do.”
4th. That said roll certified by said assessors as aforesaid, was laid before the board of supervisors of said county of Marquette, at their annual meeting for 1875, and was acted upon by said board, and equalized by them, but no certificate signed by the chairman or any member of said board was made upon or appended to said roll, nor was there any thing upon, or appended to said roll to show that it was ever acted upon or presented before said board of supervisors, except a blank certificate filled out, but not signed,' of which a copy is hereto annexed, and the certificate of the clerk of said board, (both upon one sheet) which were attached to said roll, copies of which certificates are hereto annexed, upon one sheet, marked “Exhibit A.”
5th. That the subsequent proceedings for the collection of taxes upon the lands described in said bill for the taxes of 1875, and for the return and sale of said lands for such taxes as delinquent, were founded upon the assessment roll above mentioned.
6th. That at the annual tax-sale of lands by the said county treasurer of said county in October, 1876, said lands were sold to the State for said taxes, assessed as aforesaid thereon for the year 1875.
Dated, May 4th, 1877.”
The charter of the city of Marquette did not require the board of review to make or keep any record of their proceedings.
It is not claimed or pretended in this case, that the lands were not subject to taxation, or that there was any irregularity whatever in any of the proceedings, or that any step required by the statute, in the assessment of taxes, either in substance or form, was not well and faithfully observed, except in the failure of the board of review to attach their certificate to the roll, and of the chairman of the board of supervisors to sign the certificate of equalization as already noted. There is no claim or pretense that complainants or either of them were injuriously affected by such omissions; relief is not claimed upon any such theory, but solely upon the omissions stated. Complainants while seeking equitable relief in this case stand strictly upon their legal rights. They have not offered nor do they offer to pay any portion of the taxes assessed upon their lands.
I do not see how this case differs in any essential respect from the case of the Albany & Boston Mining Co v. Aud. Gen., 37 Mich., 391. In that ease it was claimed that the assessment roll was not drawn up and put into shape until after the time allowed for its review by the supervisor, and a majority of the court held in that case that a court of equity would not enjoin the collection of the tax. The rule there laid down was “that equity would not interfere to restrain the collection of the public revenue for mere irregularities. Either it should appear that the property is exempt from taxation, or that the levy is without legal power, or that the persons imposing it were unauthorized, or that they proceeded fraudulently.” Clearly the complainants do not bring their case within the principles laid down in that case. Indeed I think that was a stronger case calling for relief than the present. There it could fairly be insisted that the parties might have been prejudiced by changes afterwards made in preparing a new assessment roll. No such claim could however be set up in this case. How such omissions would affect the validity of a tax-deed, in an action at law, we need not now determine. It is enough to say that they do not entitle the parties to relief in this form of action.
The decree must be reversed, and the bill be dismissed with costs of both courts.
Graves and Cooley, JJ., concurred. | [
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] |
Campbell, C. J.
Eespondent was convicted before a justice of selling intoxicating liquor to a minor, and appealed to the circuit court of Eaton county where he was again convicted.
Two preliminary questions of jurisdiction are raised; first, whether any justice can try such cases, the fine being allowed to reach $100, and costs being also- allowable; and second, whether a justice residing, in the village of Eaton Eapids but in the township of Hamlin could lawfully sit and try the case in that part of the village which is in the township of Eaton Eapids. This was expressly authorized by Act 449 of the Local Laws of 1871, vol. 3, p. 195, but it is claimed this statute is invalid.
By section 5525 of Compiled Laws the criminal jurisdiction of justices extends to offenses punishable by fine not exceeding ¡$100, or imprisonment not exceeding three months, or both. In 1861 section 16 was amended (now § 5540) by adding to the provision directing the justice to inflict such punishment “either" by fine or imprisonment, or both, as the nature of the case may require” within the limit fixed by law for the punishment of the offense, a clause which says this shall be done “ together with such costs of prosecution as the justice of the peace shall order.”
It is evident that this amendment was intended'to authorize the addition of costs in all cases which by the former section would have come within the jurisdiction, and not to cut off any of that" jurisdiction. We think, therefore, that this objection is of no force.
The Constitution vacates the office of a justice who changes his residence, or is by change in boundaries placed beyond his township. Art. 6, § 22. It is quite clear that he is regarded as a local officer for many purposes, and the laws have always gone on that theory.
But we find nothing in the Constitution which requires a justice to do all of his business at his residence or at any fixed office. It is declared by statute that no court ,shaE be held in any bar-room or grocery, or other place where intoxicating liquors are sold. Comp. L. § 5256. But neither Constitution nor statute has ever required a justice to hold courts always at any one place. He holds them in fact sometimes in one place and sometimes in another, according to temporary convenience. And there is nothing in any settled policy of the Consti tution or of our laws heretofore, which would necessarily make it inconsistent with public convenience to allow a court to be held outside of the township. The statute of 1871 does not authorize a justice to reside or to do general business, but only to hold courts in any part of the village — all of which must be almost as near the line as is required to permit an election of counties in trying offenses committed near a boundary.
In exercising his judicial powers a justice represents the. State rather than the township, and his officers may be any constable of the county as well as the sheriff, and his juries may be summoned from the county at large. This being so, we can see no reason why the act of 1871 is not valid. It has been held in New York that there is no necessary disability in justices to hold criminal (courts beyond their townships (Gurnsey v. Lovell, 9 Wend., 319; Schroepel v. Taylor, 10 Wend., 196) and we conceive the matter is left with the legislature^ '
The court held that it was no defense to a charge of selling intoxicating liquor to a minor that the seller had reason to believe and did believe him to be of age. This we think was clearly wrong. It cannot be assumed that the Legislature would attempt such a wrong as to punish as criminal an act which involved no criminal intent. There .can be no crime where there is no criminal mind. This principle is as old as the criminal law, and underlies the whole of it. Pond v. People, 8 Mich., 150.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
In this case a bond for arbitration was conditioned for the performance of an award to be made on or before the 3d day of August, 1872, at ten o’clock in the forenoon. The award was not made until the afternoon of that day, and the submission and hearing were begun after that hour. Suit being brought-on the bond it was held by the court below that no recovery could be had on it for the non-performance of the award.
No question arises upon its legality between the parties, but only as to whether the bond covers it. We find no authority for disputing the correctness of the ruling of the circuit court. The point was passed upon and decided in the same way in Freeman v. Adams, 9 Johns., 115, and Bloomer v. Sherman, 5 Paige, 575. If the party has any remedy it must be on the award and the action of the two litigants in consenting to and taking part in the actual submission. Upon this we need not now decide.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Kelly, J.
Two parcels of real estate in Ingham county were deeded to “Mack Jones and Jenette Jones, husband and wife.”
Subsequent to Mack Jones’ death in 1956, Edward Spence was appointed administrator and a hearing on determination of heirs in probate court, confirmed on appeal to the circuit court, established the fact that Mack had a wife and 9 children in Georgia who were his lawful heirs. The administrator filed suit for partition.
The Ingham county circuit court decreed that:
“The 2 pieces of real estate held by Mack Jones and defendant, as husband and wife, was in fact held by them as tenants in common and each party hereto is entitled to an undivided 1/2 interest therein since defendant was neither a wife nor widow of the deceased at any time as Mack Jones had a living wife, to wit: ‘Leona Thomas’ from whom he had never been divorced, nor a joint tenant as not divided [devised?] as such.”
Defendant testified that she believed in good faith that she was Mack’s common-law wife. Defendant’s bill for divorce was introduced containing the allegation that she was Mack’s common-law wife and Mack admitted this fact by sworn answer.
Testimony of a real-estate. agent, was introduced to the effect that he had known Mack and defendant as husband and wife and had sold, property to them. Defendant and defendant’s neighbors testified that she had worked and earned money and helped accumulate the property.
Neither of the 2 deeds used the words “joint tenancy” or “right of survivorship,” nor any other words indicating the tenancy which was created by said deeds.
Appellant contends:
“Certainly it was the expectation of Mack and Jenette that they would take as husband and wife. They believed themselves to hold that relationship.”
The fact that defendant contributed materially to the purchase of the property and that Mack and defendant were under the erroneous impression that if they were designated as “husband and wife” they would become tenants by the entireties, is not controlling.
Statutory provisions (CL 1948, §.552.103 [Stat Ann 1957 Rev § 25.133]) with reference to property owned by husband and wife as joint tenants or as tenants by the entireties have no application.
In Cristia v. Cristia, 317 Mich 66, 69-71, we said:
“At the time of the trial the parties owned the vendees’ interest in a dwelling house occupied by both. • The property was purchased on land contract in November, 1941. They were designated therein as husband and wife and it is plaintiff’s claim that there was a common-law marriage between herself and defendant prior to the execution'of said contract. Defendant denied any such relationship, claiming, in substance, that when the property was purchased he and plaintiff had agreed that they would be married in the future, and that the contract was drawn in the form indicated at plaintiff’s suggestion. It is significant that in her bill of complaint plaintiff did not claim a common-law marriage,, but. rather alleged - a ceremonial marriage in March, 1942. The performance of such ceremony indicates that the parties did not regard themselves prior thereto as husband and wife. The trial court found that in fact there was no common-law marriage, and the record fully supports the conclusion in this regard.
“The decree directed the sale of the vendees’ interest in the property being purchased under the land contract and an equal division of the proceeds. Plaintiff asks that the property be awarded to her, claiming that she contributed materially to its purchase. The evidence clearly establishes that each of the parties made payments on the purchase price. The trial court was fully justified in construing their respective interests therein as equal. Under the land contract, however, they did not take as tenants by the entireties but rather as tenants in common. It does not appear that the conveyance to them undertook to create a joint tenancy. Apparently the parties were under the erroneous impression that if they were designated as husband and wife they would become tenants by entireties, at least after the marriage occurred. On the record before us the conclusion cannot be avoided that each acquired an undivided 1/2 interest as a tenant in common. Wright v. Kaynor, 150 Mich 7; McNitt v. McNitt, 230 Mich 303; Scott v. Grow, 301 Mich 226 (141 ALR 819); Collins v. Norris, 314 Mich 145. In view of the actual situation with reference to the title to the property, the decree may not properly require its sale. Statutory provisions with reference to property owned by husband and wife as joint tenants, or as tenants by the entireties, have no application. Plaintiff has an undivided 1/2 interest in the property, which may not be taken from her. The decree to be entered in this Court will leave the parties tenants in common of the vendees’ interest under the land contract.”
The record does not establish an estate by the entireties or a joint tenancy, and the trial court did not err in decreeing that defendant has an undivided 1/2 interest as tenant in common.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
For elaim of common-law marriage based on events subsequent to January 1, 1957, see OLS 1956, § 551.2 (Stat Ann 1957 Eev §’25.2).—• Reporter. • . .
“* See CL 1929, § 12768 (CL 1948, § 552.103 [Stat Ann 1957 Rev § 25.133]).” | [
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Cooley, J.
Complaint is made that the circuit judge, perhaps by inadvertence, so shaped his instructions to the jury as to withdraw their attention from the principal question of fact in the case, and to lead them to suppose no such question was made. We do not agree in this criticism, but have no occasion to comment upon it.
The suit was brought by Mrs. Yan Tine to recover the amount of small loans made by her to Smith and her husband John K. Yan Tine, while they were in business together as partners. Several little loans appear to have been made at different times, notes being taken therefor in the names of other parties who were supposed by Smith to be the lenders. Two of them, including a note which is counted on in this suit, were made payable to Brown, who was cashier of the First National Bank of Flint. Smith offered on the trial to show an arrangement made by him with Brown, while the latter was the apparent owner of these notes, that if Smith would pay one of them he would look to Van Tine for the other, and that Smith made payment accordingly. The offer was rejected. No consideration for Brown’s promise was pretended, and if made it was clearly nudum pactum. Besides, it appeared without dispute on this record that, as between the two partners, it belonged to Smith to pay the notes.
The principles involved in the case are covered by Moore v. Foote, 34 Mich., 443, and Osborn v. Osborn, 36 Mich., 48, and require no discussion here.
The judgment is affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Eecovery was had below upon two bonds signed by Hall and Geiger, one of which was on its face drawn up as a joint security with one Lewis Hall, to secure costs in a case where Lewis Hall was plaintiff, but not signed by Lewis Hall.
The court below allowed Geiger to be questioned whether he had not before signed bonds with Harvey 33. Hall without requiring Lewis Hall to sign them as a condition for the signature of witness. The jury were also instructed that the burden of proof was on defendants below to show that they signed on condition that Lewis Hall should sign also.
This bond was upon its face a bond in which Lewis Hall was named as a party and as the person whose obligation was to be secured, who was therefore the principal obligor. It was immaterial whether or not Geiger had signed other bonds- with Harvey Hall and not required Lewis to sign. This was a bond which on its face required such a signature, and if it were admis sible to prove one contract by the fact that the parties had on some occasion made another, — which is certainly a novel proposition, — this ease would bear no resemblance to one where Lewis was a stranger, and not principal.
We decided at the June term, in Johnston & Vincent v. Township of Kimball, ante, p. 187, as we practically decided in this case when formerly before us (37 Mich., 590), that there was no presumption that sureties had agreed to waive the signature of a principal whose name appeared as an obligor with theirs in the bond, and that if such a bond could be established as a liability against them without his signature, it could only be by positive proof that they had delivered it to become operative as against themselves alone.
The judgment must be reversed with costs and a new trial granted.
We cannot but express our surprise at the rulings below in a case which had already been reversed on the same question. This is a litigation in which the obstinacy of parties has made costs far exceeding the amount in controversy. Such exhibitions of litigious ugliness are not creditable.
The other Justices concurred. | [
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] |
Cooley, J.
The plaintiff in error, on what seems to US a most improbable story told under oath by his daughter, a child under the age of ten, was convicted of having committed the crime of incest with her. We cannot .review the conviction upon the facts, but the question whether in law the crime of incest was possible under the circumstances is made by the record, and requires determination.
By statute of this State it is provided that “If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her -will, or shall unlawfully and carnally know and abuse ■any female child under the age of ten years,” he shall be punished, etc. Comp. L., § 7529. In this manner the offense of rape is defined, and it will be seen that in the case of a female child under the age of ten years, the want of consent is immaterial. See People v. McDonald, 9 Mich., 150. It is manifest then, that if the girl’s statement is worthy of belief, the defendant was guilty of the crime of rape. It only remains to be seen whether the same facts will support indifferently the' charge of rape and the charge of incest.
The statute for the punishment of incest provides', that “All persons, being within the degree of consanguinity within which marriages are prohibited, or declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, shall be punished,” etc. Comp. L., § 7705. There was of course in this case neither intermarriage nor adultery, and the question is whether that can be called fornication which is accomplished by force on the part of the* male, or at least without consent on the part of the female.
In People v. Jenness, 5 Mich., 305, 321, it was said by Mr. Justice Christiancy that “this offense [of incest] can only be committed by the concurrent act of two persons of opposite sexes; and the assent or concurrence of the one is as essential to the commission of the offense as that of the other.” This we believe presents! the legal view of the offense with accuracy. Fornication differs from rape in the absence of the important element of force which renders it specially atrocious. Fornication when the element of near relationship makes it incest, may be an offense equally detestable and heinous, but it still lacks the distinguishing characteristic of rape. The one is accomplished by the impelling will of one person, and the other by the concurrent assent of two. People v. Harriden, 1 Park. C. R., 344; Croghan v. State, 22 Wis., 444.
As the conviction was reversed, and an order entered for the prisoner’s discharge on the argument, we have only to file this opinion as a statement of the reasons for our judgment.
The other _ Justices concurred. | [
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] |
Maeston, J.
The questions raised in this ease are disposed of by the opinion in People v. Gordon, ante, p. 259.
The judgment will be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
This is an 'application for mandamus, and the case comes up on a state of facts found by the circuit court on the basis of the order to show cause against the application.
At the spring election of 1876 one George W. Few was elected highway commissioner of the township of Baraga and acted in the office until December 5th thereafter, at which time he was ousted by judgment in the nature of proceedings by quo warranto in consequence of having failed to give the required official bond. August 26th, 1876, having given lawful notice for letting a job of more than $10 at that time, he attended to receive bids. Only two bidders appeared at the opening of the biddings. He offered the work, and one of these, a Mr. Sterling, his brother-in-law, bid $715, and the other one, McCawley, offered to do the work for $700.
The job was awarded to the latter. Thereafter and in course of about twenty minutes another person appeared and offered to take the job at $250 and MeCawley suggested to Few to put up the job again and save the money. He declined on the ground that the work was already let and could not legally be re-offered. A contract was then drawn up to be executed by Mc-Cawley and the latter went away to obtain security.
It would seem that the parties then separated without anything farther and without even the form of a postponement in terms to any future specific time. No contract had been made. The next occurrence was about a week later. McCawley then informed Few that he would not contract and would not give the security. Few thereupon and without farther ceremony or notice accepted Sterling’s bid for $715 made a. week before, and the latter gave security which was satisfactory to him.
He began the work, and in the course of four or five days the township board met and resolved that having failed to give an official bond, Few was not lawful commissioner, and that they would not recognize him, and on the next day they caused the resolution to be served on Sterling. The latter disregarded the- notice and completed the job to Few’s satisfaction.
Few then gave Sterling an order on respondent for $715. It was afterwards transferred to relator and presented for payment to respondent, who refused to pay it.
Another order for $9.75 was also' given by Few to Sterling and by the latter assigned to relator. This was likewise refused by respondent. It was given in August, 1876, for another small job performed by Sterling whilst Few was commissioner in fact, and we see no lawful ground on which payment of it can be refused. Upon the facts in the record the township is not bound to pay the large order.
To hold the township it was necessary that the commissioner should substantially pursue the statute. His official agency in contracting for so large a job is special and is expressly limited and restrained and all persons assuming to contract with him on the basis of the statute are bound to take notice of the regulations. The Legislature has deemed them necessary for the public interest, — necessary to guard against collusive and fraudulent conduct, and the policy is plainly wise and it ought not to be thwarted or narrowed by construction. The law intends publicity, and that the biddings shall be made in substance and effect at the time appointed therefor, and that the whole business shall be substantially closed up on the same occasion. The security to be given is to be proposed or tendered in connection with the bid, or at all events on the same occasion' and before the auction has wholly gone by, so that the transaction may be closed without unreasonable delay and without allowing time and opportunity for secret and irregular arrangements.
The giving of security is a very material element and the purpose is that it shall be so tendered as to be connected with the offer at the time when the question of acceptance is to be decided. Here no security was tendered by any body at the time of the bidding and for at least a week afterwards, and then at a private interview McCawley announced his retirement from the bid, and on such refusal and at such time the job was appropriated to Sterling on his bid previously made at the auction. This transaction was casual and separate and not one which had the empty merit of being connected with the published and official- occasion by any pretense of adjournment, and it was scarcely if any more in conformity with the intent of the statute than a pure private bargain would have been. Comp. L., § 1246: Pub. Acts 1875, pp. 80, 91.
The writ must be allowed to require payment of the small ord.er, but denied as to the large one, and as the whole proceeding has coupled the two together, we shall not give costs.
The other Justices concurred. | [
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Campbell, C. J.
Innes sued Brockway, who was a stockholder in the Amboy, Lansing & Traverse Bay Bail-road, for what he claimed to be a debt for labor performed for that company.
The plaintiff below was assistant chief engineer of the road. It is claimed by plaintiff in error that the exceptional liability provided by the Constitution and statutes against corporation stockholders for “labor performed for such corporation” does not include such services as those of Innes.
We think this objection is well taken. The Constitution evidently intended to protect those persons who most needed protection and who would be most likely to suffer without it. No doubt the term “labor” in some extended senses will include every possible human exertion, mental and physical, and in that broad signification it would be hard to find any case which would not come within the law. But inasmuch as the provision is manifestly designed to be exceptional, we must apply to it the ordinary meaning which is in common use, and which it must be presumed the people understood when they voted on the Constitution. Doubtless the precise line between what is commonly called labor, and other employment cannot be drawn with absolute precision. But we feel very sure that the position of an assistant chief engineer would never have been classed as that of a laborer, nor his work as labor in the popular sense. It is mostly direction and scientific work, involving much more superintendence than personal exertion in manual labor. He is chosen for his knowledge and not for his muscular capacity, in which latter quality he may or may not be eminent.
We can get little aid from authority on any such question. It is not to be decided upon verbal niceties or far-fetched reasoning. We are bound to construe the provision as the ordinary meaning of language would define it, and no extended argument can make it plainer than the words themselves. In our opinion the provision is not ambiguous as applicable to such an employment as that of the plaintiff below.
Judgment must be reversed with costs of both courts.
The other Justices concurred. | [
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Campbell, C. J.
Defendant in error replevied a piano from plaintiffs in error, who defend on the ground that she purchased from one Ackley, and that the purchase was void as against a levy made by them upon an attachment against him.
Several questions are presented on the record, but inasmuch as the only defense was under the levy, the validity of that is the first matter to be considered.
The defendants by their own testimony showed that while Ackley was temporarily absent, and his house, where his wife was present at the time, was locked up, they broke into it by violence and seized the piano upon the writ.
It is admitted this was a trespass, but it is claimed the levy may be a good levy in spite of the wrongful acts by which it was accomplished.
We think this is too dangerous a doctrine to be tolerated. Public policy requires above all things that courts and officers executing their process shall respect the lawful rights of all persons. The practical permission which over-zealous officers would receive to commit wrongs with substantial impunity, if their levies should be held good without regard to the manner of their enforcement, would remove every check on lawlessness. To hold that an act is lawful which may be lawfully resisted is absurd. Such misconduct should neither be justified nor winked at. Any officer who breaks the law should be held to be entirely without excuse, and as fully responsible as any other malefactor.
The doctrine on this subject is so fully discussed in Ilsley v. Nichols, 12 Pick., 270, and People v. Hubbard, 24 Wend., 369, that we need not go into any further investigation. The doctrine is sensible and just, and is the only one whereby private safety and public peace can be preserved. There can be no respect for courts and their process if their ministers are upheld in violations of law, or if they can be lawfully opposed in exercising their functions, as they may be if such levies are held valid.
As the defense entirely failed, it is not important what rulings were made on other points. Judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
The bill in this case was filed for the foreclosure of a mortgage given to secure the payment of a note executed by Enoch C.'Hoyt and Susan V. his wife, and given for the debt of the former.
The answer admitted the execution of the note and mortgage; alleges that she received no valuable consideration for the giving of the same; that she did not execute the note and mortgage freely, or without fear or compulsion, but that the same was obtained by way of duress and fear.
There is no doubt- but the note was given for the debt of the defendant’s husband. The testimony of defendant standing alone would fall short of establishing the defense set up, while that on the part of the complainant is direct, clear and satisfactory that defendant executed the note and mortgage freely, and that no threats or compulsion whatever were used or resorted to.
The claim of payments made by Enoch Hoyt during his lifetime, from the receipts of the store, as appeared upon the book, we think are. not proven, and should not be allowed. These entries all appeared upon the last page in the book, and were in the handwriting of Enoch Hoyt. This was the day-book used in the store. No entries appeared thereon after page 248 until page 316, when these entries appeared, and the leaves from page 272 to 315 appeared to have been torn out, but at what time was not shown. The complainant while admitting the receipt and endorsement of certain, payments, denied that any payments'were made after October 4th. In this state of the case the proof of payments claimed to be made after October 4th, as appeared by the books, is insufficient.
The decree of the court below must be affirmed, with costs.
The other Justices concurred. | [
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